CREDIT AGREEMENT
Dated as of May 18, 2005
among
OMNI ENERGY SERVICES CORP.
AMERICAN HELICOPTERS INC., and
TRUSSCO, INC., and
as Borrowers,
OMNI ENERGY SERVICES CORP.-MEXICO,
OMNI PROPERTIES CORP.,
OMNI OFFSHORE AVIATION CORP.,
OMNI SEISMIC AVIATION CORP.,
OMNI ENERGY SEISMIC SERVICES CORP.,
TRUSSCO PROPERTIES, L.L.C., and
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
Credit Agreement (Omni)
TABLE OF CONTENTS
Page
----
SECTION 1. AMOUNT AND TERMS OF CREDIT...................................................... 2
1.1 Credit Facility................................................................. 2
1.2 [INTENTIONALLY OMITTED]......................................................... 4
1.3 Prepayments..................................................................... 5
1.4 Use of Proceeds................................................................. 8
1.5 Interest and Applicable LIBOR Margin; Payment Computation....................... 8
1.6 [INTENTIONALLY OMITTED]......................................................... 10
1.7 [INTENTIONALLY OMITTED]......................................................... 10
1.8 Cash Management Systems......................................................... 10
1.9 Fees............................................................................ 11
1.10 Receipt of Payments............................................................. 11
1.11 Application and Allocation of Payments.......................................... 12
1.12 Loan Account and Accounting..................................................... 12
1.13 Indemnity....................................................................... 13
1.14 Access.......................................................................... 13
1.15 Taxes........................................................................... 14
1.16 Capital Adequacy; Increased Costs; Illegality................................... 14
1.17 Single Loan..................................................................... 15
SECTION 2. CONDITIONS PRECEDENT............................................................ 16
2.1 Conditions to the Closing....................................................... 16
2.2 Further Conditions to Each Advance.............................................. 18
2.3 Additional Conditions Precedent to Post-Closing Date Advances................... 19
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................. 20
3.1 Corporate Existence; Compliance with Law........................................ 20
3.2 Executive Offices, Collateral Locations, FEIN................................... 21
3.3 Corporate Power, Authorization, Enforceable Obligations......................... 21
3.4 Financial Statements and Projections............................................ 22
3.5 Material Adverse Effect......................................................... 23
3.6 Ownership of Property; Liens.................................................... 23
3.7 Labor Matters................................................................... 24
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness....... 24
3.9 Government Regulation........................................................... 24
3.10 Margin Regulations.............................................................. 25
3.11 Taxes........................................................................... 25
3.12 ERISA........................................................................... 25
3.13 No Litigation................................................................... 26
3.14 Brokers......................................................................... 26
3.15 Intellectual Property........................................................... 26
3.16 Full Disclosure................................................................. 27
3.17 Environmental Matters........................................................... 27
3.18 Insurance....................................................................... 28
3.19 Deposit and Disbursement Accounts............................................... 28
i Credit Agreement (Omni)
3.20 Government Contracts............................................................ 28
3.21 Customer and Trade Relations.................................................... 28
3.22 Bonding; Licenses............................................................... 28
3.23 Solvency........................................................................ 28
3.24 Aircraft........................................................................ 29
3.25 Anti-Terrorism Laws............................................................. 29
3.26 Inactive Subsidiaries........................................................... 29
3.27 Nature of Business.............................................................. 29
3.28 Revolver Documents.............................................................. 30
3.29 Subordinated Debt............................................................... 30
3.30 Ownership of Property Identified in Pre-Closing Field Survey and Audit.......... 30
SECTION 4. FINANCIAL STATEMENTS AND INFORMATION............................................ 30
4.1 Reports and Notices............................................................. 30
4.2 Communication with Accountants.................................................. 30
SECTION 5. AFFIRMATIVE COVENANTS........................................................... 30
5.1 Maintenance of Existence and Conduct of Business................................ 30
5.2 Payment of Charges.............................................................. 31
5.3 Books and Records............................................................... 31
5.4 Insurance; Damage to or Destruction of Collateral............................... 31
5.5 Compliance with Laws............................................................ 35
5.6 Supplemental Disclosure......................................................... 35
5.7 Intellectual Property........................................................... 36
5.8 Environmental Matters........................................................... 36
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee Letters and Real
Estate Purchases................................................................ 37
5.10 Obtaining of Permits, Etc....................................................... 37
5.11 FAA Matters; Citizenship........................................................ 37
5.12 Efforts With Respect to Permitted Term B Loan Facility.......................... 38
5.13 Explosives...................................................................... 38
5.14 Revolving Credit Facility....................................................... 38
5.15 Casualty Aircraft Proceeds...................................................... 38
5.16 Additional Proceeds of Preferred Stock Transaction.............................. 38
5.17 Further Assurances.............................................................. 38
SECTION 6. NEGATIVE COVENANTS.............................................................. 38
6.1 Mergers, Subsidiaries, Etc...................................................... 38
6.2 Investments; Loans and Advances................................................. 39
6.3 Indebtedness.................................................................... 39
6.4 Employee Loans and Affiliate Transactions....................................... 41
6.5 Capital Structure and Business.................................................. 41
6.6 Guaranteed Indebtedness......................................................... 42
6.7 Liens........................................................................... 42
6.8 Sale of Stock and Assets........................................................ 42
6.9 ERISA........................................................................... 42
6.10 Financial Covenants............................................................. 42
6.11 Hazardous Materials; Explosives................................................. 42
6.12 Sale-Leasebacks................................................................. 43
6.13 Restricted Payments............................................................. 43
ii Credit Agreement (Omni)
6.14 Change of Corporate Name, State of Incorporation or Location; Change
of Fiscal Year.................................................................. 43
6.15 No Impairment of Intercompany Transfers......................................... 44
6.16 Changes Relating to Subordinated Debt; Material Contracts....................... 44
6.17 Anti-Terrorism Laws............................................................. 44
6.18 Inactive Subsidiaries........................................................... 45
SECTION 7. TERM............................................................................ 45
7.1 Termination..................................................................... 45
7.2 Survival of Obligations Upon Termination of Financing Arrangements.............. 45
SECTION 8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES.......................................... 45
8.1 Events of Default............................................................... 45
8.2 Remedies........................................................................ 47
8.3 Waivers by Credit Parties....................................................... 48
SECTION 9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT............................. 48
9.1 Assignment and Participations................................................... 48
9.2 Appointment of Agent............................................................ 50
9.3 Agent's Reliance, Etc........................................................... 51
9.4 GE Capital and Affiliates....................................................... 51
9.5 Lender Credit Decision.......................................................... 52
9.6 Indemnification................................................................. 52
9.7 Successor Agent................................................................. 52
9.8 Setoff and Sharing of Payments.................................................. 53
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions in Concert........ 53
SECTION 10. SUCCESSORS AND ASSIGNS.......................................................... 55
10.1 Successors and Assigns.......................................................... 55
SECTION 11. MISCELLANEOUS................................................................... 56
11.1 Complete Agreement; Modification of Agreement................................... 56
11.2 Amendments and Waivers.......................................................... 56
11.3 Fees and Expenses............................................................... 57
11.4 No Waiver....................................................................... 58
11.5 Remedies........................................................................ 59
11.6 Severability.................................................................... 59
11.7 Conflict of Terms............................................................... 59
11.8 Confidentiality................................................................. 59
11.9 GOVERNING LAW................................................................... 59
11.10 Notices......................................................................... 60
11.11 Section Titles.................................................................. 61
11.12 Counterparts.................................................................... 61
11.13 WAIVER OF JURY TRIAL............................................................ 61
11.14 Press Releases and Related Matters.............................................. 61
11.15 Reinstatement................................................................... 61
11.16 Advice of Counsel............................................................... 62
11.17 No Strict Construction.......................................................... 62
11.18 Revolver Intercreditor Agreement................................................ 62
iii Credit Agreement (Omni)
SECTION 12. CROSS-GUARANTY.................................................................. 62
12.1 Cross-Guaranty.................................................................. 62
12.2 Waivers by Borrowers............................................................ 63
12.3 Benefit of Guaranty............................................................. 63
12.4 Waiver of Subrogation, Etc...................................................... 63
12.5 Election of Remedies............................................................ 63
12.6 Limitation...................................................................... 64
12.7 Contribution with Respect to Guaranty Obligations............................... 64
12.8 Liability Cumulative............................................................ 65
iv Credit Agreement (Omni)
INDEX OF APPENDICES
Annex A (Recitals) - Definitions
Annex B - [INTENTIONALLY OMITTED]
Annex C - [INTENTIONALLY OMITTED]
Annex D (Section 2.1(a)) - Schedule of Documents
Annex E (Section 4.1(a)) - Financial Statements and Projections -- Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A
Commitments definition) Commitments as of Closing Date
Exhibit A-1 - Form of Aircraft Security Agreement
Exhibit A-2 - Form of Noteholder Subordination Agreement
Exhibit A-3 - Form of Term B Subordination Agreement
Exhibit A-4 - Form of Borrowing Base Certificate
Exhibit A-5 - Form of Trussco Subordination Agreement
Exhibit 1.1(b)(i) - Form of Notice of Advance
Exhibit 1.1(b)(ii) - Form of Term A Note
Exhibit 9.1(a) - Form of Assignment Agreement
Schedule 1.1 - Agent's Representatives
Disclosure Schedule 1.4 - Sources and Uses; Funds Flow Memorandum
Disclosure Schedule 2.1(b) - Prior Lenders and Prior Lender Obligations as of Closing Date
Disclosure Schedule 3.1 - Type of Entity; State of Organization
Disclosure Schedule 3.2 - Executive Offices, Collateral Locations, FEIN
Disclosure Schedule 3.4(a) - Financial Statements
Disclosure Schedule 3.4(b) - Pro Forma
Disclosure Schedule 3.4(c) - Projections
Disclosure Schedule 3.5(a) - Existing Defaults under Existing Debentures
Disclosure Schedule 3.6 - Real Estate and Leases
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates; Outstanding Stock
Disclosure Schedule 3.11 - Tax Matters
Disclosure Schedule 3.12 - ERISA Plans
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.14 - Brokers
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Hazardous Materials
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.22 - Bonds; Patent, Trademark Licenses
Disclosure Schedule 3.24 - Aircraft
v Credit Agreement (Omni)
Disclosure Schedule 3.30 - Exceptions re Ownership of Items in Pre-Closing Field Survey and Audit;
Disclosure Schedule 5.1 - Trade Names
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Transactions with Affiliates
Disclosure Schedule 6.7 - Existing Liens
Disclosure Schedule 6.13 - Restricted Payments
vi Credit Agreement (Omni)
This CREDIT AGREEMENT (this "Agreement") is entered into as of May
18, 2005, among:
(a) (i) OMNI ENERGY SERVICES CORP., a Louisiana corporation
("Omni");
(ii) AMERICAN HELICOPTERS INC., a Texas corporation ("American");
and
(iii) TRUSSCO, INC., a Louisiana corporation ("Trussco," Omni,
American, and Trussco are hereinafter sometimes referred to individually or
collectively as "Borrower" or "Borrowers");
(b) (i) OMNI ENERGY SERVICES CORP.-MEXICO, a Louisiana corporation
("Mexico");
(ii) OMNI PROPERTIES CORP, a Louisiana corporation ("Omni
Properties");
(iii) OMNI OFFSHORE AVIATION CORP., a Louisiana corporation
("Offshore Aviation");
(iv) OMNI SEISMIC AVIATION CORP., a Louisiana corporation ("Seismic
Aviation");
(v) OMNI ENERGY SEISMIC SERVICES CORP., a Louisiana corporation
("Seismic Services"); and
(vi) TRUSSCO PROPERTIES, L.L.C., a Louisiana limited liability
company ("Trussco Properties"; Mexico, Omni Properties, Offshore Aviation,
Seismic Aviation, Seismic Services and Trussco Properties are hereinafter
sometimes referred to individually or collectively as "Guarantor" or
"Guarantors");
(c) the other Credit Parties signatory hereto; and
(d) (i) GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(in its individual capacity, "GE Capital"), for itself, as Lender, and as Agent
for Lenders, and (ii) the other Lenders signatory hereto from time to time.
RECITALS
A. Borrowers have requested that Lenders extend a multiple draw term
credit facility to Borrowers of up to Fifty Million Dollars ($50,000,000.00) in
the aggregate for the purpose of (i) refinancing certain indebtedness of
Borrowers and (ii) providing funds for other purposes permitted hereunder
(including a portion of the amount necessary to fund the Proposed Acquisition),
all as further specified herein. For these purposes, Lenders are willing to make
certain loans and other extensions of credit to Borrowers of up to such amount
upon the terms and conditions set forth herein.
B. Borrowers have agreed to secure all of their obligations under the Loan
Documents by granting to Agent, for the benefit of Agent and Lenders, a security
interest in and lien upon substantially all of their existing and after-acquired
personal and real property other than those assets that are expressly excluded
hereunder or in the other Loan Documents.
C. Each Guarantor is willing to guarantee all of the obligations of
Borrowers to Agent and Lenders under the Loan Documents and to secure its
guarantee obligations by granting to Agent, for the benefit of Agent and
Lenders, a security interest in and lien upon all of its existing and
after-acquired personal and real property other than those assets that are
expressly excluded hereunder or in the other Loan Documents.
Credit Agreement (Omni)
D. Capitalized terms used in this Agreement shall have the meanings
ascribed to them in ANNEX A and, for purposes of this Agreement and the other
Loan Documents, the rules of construction set forth in ANNEX A shall govern. All
Annexes, Disclosure Schedules, Exhibits and other attachments (collectively,
"Appendices") hereto, or expressly identified to this Agreement, are
incorporated herein by reference, and taken together with this Agreement, shall
constitute but a single agreement. These Recitals shall be construed as part of
the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
parties hereto agree as follows:
SECTION 1. AMOUNT AND TERMS OF CREDIT
1.1 Credit Facility.
(a) [INTENTIONALLY OMITTED]
(b) Term A Loan.
(i) Subject to the terms and conditions hereof, each Lender
agrees to make available to Borrowers from time to time until the
Commitment Termination Date its Pro Rata Share of advances (each an
"Advance"). The aggregate amount of Advances shall not at
any time through and including the Commitment Termination Date
exceed the Term A Loan Commitment. Furthermore, the Pro Rata Share
of the aggregate Advances made by any Lender shall not at any time
through and including the Commitment Termination Date exceed its
separate Term A Loan Commitment. The obligations of each Lender
hereunder shall be several and not joint. Until the Commitment
Termination Date, any Borrower may borrow under this SECTION 1.1(b);
provided, that the amount of any Advance to be made at any time
shall not exceed Term A Loan Availability at such time, and the
amount of any Advance to be made to any Borrower at any time (when
added to the principal amount of such Borrower's Allocable Share of
the Term A Loan) shall not exceed the Borrowing Base of such
Borrower at such time. Each Advance shall be made on notice by
Borrower Representative on behalf of the applicable Borrower to one
of the representatives of Agent identified in SCHEDULE 1.1 at the
address specified therein. Any such notice must be given no later
than 11:00 a.m. New York time three (3) Business Days in advance of
the funding date for the requested Advance (the date of the funding
of any Advance, the "Funding Date"). Each such notice (a "Notice of
Advance") must be given in writing (by telecopy or overnight
courier) substantially in the form of EXHIBIT 1.1(b)(i), and shall
include the information required in such Exhibit and such other
information as may be required by Agent. Each Notice of Advance
shall be irrevocable and the applicable Borrower shall be bound to
make a borrowing in accordance therewith. Each Advance shall be made
in a minimum amount of $1,500,000. On the Commitment Termination
Date, the Term A Loan Commitment will be automatically and
permanently reduced to zero dollars ($0).
(ii) Except as provided in SECTION 1.12, each Borrower shall
execute and deliver to each Lender a note to evidence the Term A
Loan Commitment of that Lender. Each note shall be in the principal
amount of the Term A Loan Commitment of the applicable Lender, dated
the Closing Date and substantially in the form of EXHIBIT 1.1(b)(ii)
(each a "Term A Note" and, collectively, the "Term A Notes"). Each
Term A Note shall represent the obligation of the applicable
Borrower to pay
Credit Agreement (Omni)
the applicable Lender's Term A Loan Commitment or, if less, such
Lender's Pro Rata Share of the aggregate unpaid principal amount of
all Advances to such Borrower together with interest thereon as
prescribed in SECTION 1.5. The aggregate principal amount of the
Advances advanced to each Borrower shall be the primary obligation
of that Borrower (but shall also be guaranteed by all other
Borrowers pursuant to SECTION 12), and the principal amount thereof
outstanding at any time is referred to herein as such Borrower's
"Allocable Share" of the Term A Loan.
(iii) Each Borrower shall repay its Allocable Share of the
Term A Loan in quarterly installments that are payable on each Loan
Payment Date (including the Maturity Date). The amount payable by
each Borrower on each Loan Payment Date (the "Quarterly Payment
Amount") shall be an amount equal to the aggregate amount of the
"Quarterly Advance Amortization Amounts" (as defined below) for such
Loan Payment Date with respect to all Advances to such Borrower that
have been made prior to such Loan Payment Date. The "Quarterly
Advance Amortization Amount" for each Advance for each Loan Payment
Date shall be determined at the time at which such Advance is made
in accordance with the following:
(A) As used in this section, the following terms shall
have the following meanings:
(1) "Amortization Amount" means, as to any
Advance, an amount equal to 50.0% thereof.
(2) "Quarterly Period" means, with respect to any
Loan Payment Date, the period from the immediately
preceding Loan Payment Date through such Loan Payment
Date.
(B) As to each Advance:
(1) the Amortization Amount shall be amortized on
a straight line quarterly basis from and including the
first Loan Payment Date following the Funding Date of
such Advance through but excluding the final Loan
Payment Date hereunder; provided, that the amount
calculated for the first Loan Payment Date in such
amortization schedule shall be prorated based on the
portion of the Quarterly Period that such Advance was
outstanding during such Quarterly Period (the amount
determined with respect to such Advance as to any Loan
Payment Date as provided above is the "Quarterly Advance
Amortization Amount" for such Advance for such Loan
Payment Date).
(2) The "Quarterly Advance Amortization Amount"
for such Advance for the final Loan Payment Date shall
be equal to 50% of the amount of such Advance.
(iv) Notwithstanding SECTION 1.1(b)(iii), the aggregate
outstanding principal balance of the Term A Loan shall be due and
payable in full in immediately available funds on the Maturity Date,
if not sooner paid in full. No payment with respect to the Term A
Loan may be reborrowed.
Credit Agreement (Omni)
(v) Each payment of principal with respect to the Term A Loan
shall be paid to Agent for the ratable benefit of each Lender,
ratably in proportion to each such Lender's respective Pro Rata
Share.
(c) [INTENTIONALLY OMITTED]
(d) Reliance on Notices; Appointment of Borrower Representative.
Agent shall be entitled to rely upon, and shall be fully protected in
relying upon, any Notice of Advance or similar notice believed by Agent to
be genuine. Agent may assume that each Person executing and delivering any
notice in accordance herewith was duly authorized, unless the responsible
individual acting thereon for Agent has actual knowledge to the contrary.
Each Credit Party hereby designates Omni as its representative and agent
on its behalf for the purposes of issuing Notices of Advance, giving
instructions with respect to the disbursement of each Advance, giving and
receiving all other notices and consents hereunder or under any of the
other Loan Documents and taking all other actions (including in respect of
compliance with covenants) on behalf of any Credit Party or Credit Parties
under the Loan Documents. Borrower Representative hereby accepts such
appointment. Agent and each Lender may regard any notice or other
communication pursuant to any Loan Document from Borrower Representative
as a notice or communication from all Credit Parties, and may give any
notice or communication required or permitted to be given to any Credit
Party or Credit Parties hereunder to Borrower Representative on behalf of
such Credit Party or Credit Parties. Each Credit Party agrees that each
notice, election, representation and warranty, covenant, agreement and
undertaking made on its behalf by Borrower Representative shall be deemed
for all purposes to have been made by such Credit Party and shall be
binding upon and enforceable against such Credit Party to the same extent
as if the same had been made directly by such Credit Party.
1.2 [INTENTIONALLY OMITTED]
Credit Agreement (Omni)
1.3 Prepayments.
(a) Voluntary Prepayments. Borrowers may, at any time after the
first anniversary of the Closing Date, (i) on at least five (5) days'
prior written notice by Borrower Representative to Agent voluntarily
prepay all or part of the Term A Loan; provided that any such prepayments
shall be in a minimum amount of $500,000 and integral multiples of
$250,000 in excess of such amount and (ii) on at least ten (10) days'
prior written notice by Borrower Representative to Agent, terminate the
Term A Loan Commitment; provided that upon such termination, the entire
Term A Loan and all other Obligations shall be immediately due and payable
in full. Borrowers may not voluntarily prepay all or any portion of the
Term A Loan or voluntarily terminate any portion of the Term A Loan
Commitment prior to the first anniversary of the Closing Date. Any such
voluntary prepayment and any such termination of the Term A Loan
Commitment as permitted above must be accompanied by the payment of the
Fee required by SECTION 1.9(c), if any. Upon any such prepayment and
termination of the Term A Loan Commitment, each Borrower's right to
request Advances shall simultaneously be terminated. Any partial
prepayments of the Term A Loan of any Borrower shall be applied to prepay
the scheduled installments of such Borrower's Term A Loan in inverse order
of maturity.
(b) Mandatory Prepayments.
(i) Immediately upon receipt by any Credit Party of any cash
proceeds of any asset disposition, Borrowers shall prepay the Term A
Loan in an amount equal to all such proceeds, net of (A) commissions
and other reasonable and customary transaction costs, fees and
expenses properly attributable to such transaction and payable by
Borrowers in connection therewith (in each case, paid to
non-Affiliates), (B) transfer taxes, (C) amounts payable to holders
of senior Liens on such asset (to the extent such Liens constitute
Permitted Encumbrances hereunder), if any, and (D) an appropriate
reserve for income taxes in accordance with GAAP in connection
therewith. Any such prepayment shall be applied in accordance with
SECTION 1.3(c). The following shall not be subject to mandatory
prepayment under this CLAUSE (i): (1) proceeds of sales of Inventory
in the ordinary course of business; (2) asset disposition proceeds
of less than $100,000 in the aggregate after the Closing Date; and
(3) asset disposition proceeds that are reinvested by any Credit
Party in Equipment, Fixtures or Real Estate that constitutes
Mortgaged Property within 180 days following receipt thereof;
provided, that the applicable Credit Party notifies Agent of its
intent to reinvest at the time such proceeds are received by such
Credit Party and when such reinvestment occurs. As to any amounts
that are payable as provided above based on amounts received by a
Guarantor, without limiting Borrowers' payment obligations as
provided above with respect thereto, the relevant Guarantor shall
contribute the relevant amount received by it to the Borrower that
is its direct parent (or if no Borrower is its direct parent, to any
Borrower that is its indirect parent).
(ii) If any Credit Party issues Stock or issues or incurs any
Indebtedness (other than Permitted Indebtedness), no later than the
Business Day following the date of receipt of the proceeds thereof,
Borrowers shall prepay the Term A Loan in an amount equal to (x)
twenty-five percent (25%) of all such proceeds (in the case of Stock
issuances) and (y) sixty-five percent (65%) of all such proceeds (in
the case of issuance or incurrence of Indebtedness). Any such
prepayment shall be applied in
Credit Agreement (Omni)
accordance with SECTION 1.3(c). The following shall not be subject
to prepayment under this CLAUSE (ii): (x) proceeds of Stock
issuances to directors and employees of Omni pursuant to stock
option or compensation plans approved by Omni's Board of Directors
(or its compensation committee to the extent so empowered by such
Board of Directors) in the aggregate amount of no more than $500,000
from and including the Closing Date, and (y) net proceeds of the
Preferred Stock Transaction that are received prior to, on or after
the Closing Date, until the aggregate gross amount of such proceeds
equals or exceeds $5,000,000. As to any amounts that are payable as
provided above based on amounts received by a Guarantor, without
limiting Borrowers' payment obligations as provided above with
respect thereto, the relevant Guarantor shall contribute the
relevant amount received by it to the Borrower that is its direct
parent (or if no Borrower is its direct parent, to any Borrower that
is its indirect parent).
(iii) Immediately upon receipt by any Credit Party of any cash
proceeds of any tax refund, Borrowers shall prepay the Term A Loan
in an amount equal to all such proceeds. Any such prepayment shall
be applied in accordance with SECTION 1.3(c). As to any amounts that
are payable as provided above based on amounts received by a
Guarantor, without limiting Borrowers' payment obligations as
provided above with respect thereto, the relevant Guarantor shall
contribute the relevant amount received by it to the Borrower that
is its direct parent (or if no Borrower is its direct parent, to any
Borrower that is its indirect parent).
(iv) Until the Termination Date, Borrowers shall prepay the
Obligations on the date that is ten days after the earlier of (A)
the date on which Omni and its Subsidiaries' annual audited
Financial Statements for the immediately preceding Fiscal Year are
delivered pursuant to ANNEX E or (B) the date on which such annual
audited Financial Statements were required to be delivered pursuant
to ANNEX E, in an amount equal to seventy-five percent (75%) of
Excess Cash Flow for the immediately preceding Fiscal Year. Any
prepayments from Excess Cash Flow paid pursuant to this CLAUSE (iv)
shall be applied in accordance with SECTION 1.3(c). Each such
prepayment shall be accompanied by a certificate signed by an
Authorized Officer of Borrower Representative certifying the manner
in which Excess Cash Flow and the resulting prepayment were
calculated, which certificate shall be in form and substance
reasonably satisfactory to Agent.
(v) (A) If at any time the Leverage Ratio is in excess of
the Maximum Leverage Ratio, Borrowers shall immediately prepay
the outstanding principal of the Term A Loan in such amount as
may be required to cause the Leverage Ratio to be no more than
the Maximum Leverage Ratio;
(B) If at any time the Term A Loan exceeds the Aggregate
Borrowing Base, Borrowers shall immediately prepay the
outstanding principal of the Term A Loan in such amount as may
be required to cause the Term A Loan to be no more than the
Aggregate Borrowing Base; and
(C) If at any time the Allocable Share of the Term A
Loan of any Borrower exceeds the Borrowing Base of such
Borrower, such Borrower shall immediately prepay the
outstanding principal of the Term A Loan in such
Credit Agreement (Omni)
amount as may be required to cause the Allocable Share of the
Term A Loan of such Borrower to be no more than the Borrowing
Base of such Borrower.
(vi) In the event of an acquisition of Omni by a third part
investor (an "Omni Acquisition"), Borrowers shall prepay the Term A
Loan in full concurrent with such Omni Acquisition (and any
remaining Unfunded Term A Loan Commitment shall terminate).
(vii) If the Proposed Acquisition has not become a Permitted
Acquisition and closed on or before December 31, 2005, the Term A
Loan Commitment shall be automatically and permanently reduced on
such date in an amount equal to the lesser of $20,000,000 and the
amount of the Term A Loan Commitment as of such date.
(c) Application of Certain Mandatory Prepayments. Any prepayments
made by any Borrower pursuant to SECTION 1.3(b) above shall be applied as
follows:
(i) first, to Fees and reimbursable expenses of Agent then due
and payable pursuant to any of the Loan Documents;
(ii) second, to interest then due and payable on that
Borrower's Allocable Share of the Term A Loan;
(iii) third, to prepay the scheduled principal installments of
that Borrower's Allocable Share of the Term A Loan in the inverse
order of maturity, until such Allocable Share has been prepaid in
full;
(iv) fourth, to interest then due and payable on the Allocable
Share of the Term A Loan of each other Borrower, pro rata;
(v) fifth, to the Allocable Share of the Term A Loan of each
other Borrower, pro rata, to prepay the scheduled principal
installments thereof in the inverse order of maturity, until such
Allocable Shares have been prepaid in full; and
(vi) sixth, to all remaining Obligations of Borrowers,
provided, that, as to any such prepayments which are not directly
attributable to any Borrower, such amounts shall be applied to the
outstanding Obligations of all Borrowers in accordance with the foregoing,
allocated ratably between the relevant Obligations of Borrowers based on
the amounts of the relevant Obligations.
The Term A Loan Commitment shall be permanently reduced by the amount of
any such prepayments provided for above.
(d) Application of Prepayments from Insurance and Condemnation
Proceeds. Prepayments from insurance or condemnation proceeds from
casualties or losses to cash or any Collateral in accordance with SECTION
5.4(g) and the Mortgages, respectively, shall be applied to scheduled
installments of the Allocable Share of the Term A Loan of the Borrower
that incurred such casualties or losses in the inverse order of maturity.
The Term A Loan Commitment shall be permanently reduced by the amount of
any such prepayments. If insurance or condemnation proceeds received by a
particular Borrower exceed the outstanding principal balance of the
Allocable Share of the Term A Loan of such Borrower, the allocation and
application of those exceeds proceeds shall be determined by Agent,
subject to the approval of Requisite Lenders. Notwithstanding anything to
the contrary in the foregoing or in any other provision hereof (including
SECTION 5.4), Omni may keep and retain
Credit Agreement (Omni)
the insurance proceeds arising from the Casualty Aircraft up to a maximum
aggregate amount of $1,500,000; provided, that in the case of any such
proceeds relating to the Casualty Aircraft having tail number N976AA, such
proceeds are promptly used to repay the Indebtedness of Applied Financial,
L.L.C. that is secured by a Permitted Encumbrance on such Casualty
Aircraft until such Indebtedness has been paid in full.
(e) No Implied Consent. Nothing in this SECTION 1.3 shall be
construed to constitute Agent's or any Lender's consent to any transaction
that is not permitted by other provisions of this Agreement or the other
Loan Documents. Without limiting the foregoing SECTION 1.3(b)(vi) shall
not be deemed to constitute a consent to any contemplated or proposed Omni
Acquisition.
(f) Working Capital Loan Priority Collateral Proceeds.
Notwithstanding anything to the contrary contained in this SECTION 1.3,
proceeds of Working Capital Loan Priority Collateral shall not be payable
hereunder to the extent that they are paid to Revolver Lender and such
payment is in accordance with the Revolver Intercreditor Agreement.
(g) Deposits to Designated Deposit Accounts. All amounts that are
received by any Credit Party in connection with any of the transactions
described in CLAUSES (i) (other than with respect to Working Capital
Priority Collateral), (ii), or (iii) of SECTION 1.3(b), and amounts
received on account of insurance or condemnation proceeds from casualties
or losses to any Collateral (other than with respect to Working Capital
Priority Collateral, shall, to the extent not paid directly to Agent, be
deposited directly into the Designated Deposit Account of the relevant
Borrower (or, if such amounts are received by a Credit Party that is not a
Borrower, into one of the Designated Deposit Accounts of a Borrower).
1.4 Use of Proceeds. The proceeds of the initial Advance under the Term A
Loan shall be used solely for the Refinancing (and to pay any related
transaction expenses) and for the financing of Borrowers' ordinary working
capital and general corporate needs, all as more particularly set forth on
DISCLOSURE SCHEDULE 1.4, which contains a description of Borrowers' sources and
uses of funds as of the Closing Date, including the initial Advance and the
proceeds of the Preferred Stock Transaction received on such date, and a funds
flow memorandum detailing how funds from each source are to be transferred to
particular uses. The proceeds of the Acquisition Advance shall be used solely to
finance a portion of the cash purchase price of the Proposed Acquisition as more
particularly provided herein. The proceeds of any other post-Closing Date
Advance shall be used solely for purposes approved of by Agent in its sole
discretion.
1.5 Interest and Applicable LIBOR Margin; Payment Computation.
(a) Borrowers shall pay interest on the Term A Loan to Agent, for
the ratable benefit of Lenders, in arrears on each applicable Interest
Payment Date, at the applicable LIBOR Rate plus the Applicable LIBOR
Margin per annum as more particularly set forth below.
As of the Closing Date, the Applicable LIBOR Margin (such margin
will be referred to as the "Base LIBOR Margin") shall be (i) 6.50% until
such time (if any) at which the Permitted Term B Loan Facility has closed,
and (ii) 5.50% thereafter.
Credit Agreement (Omni)
The Applicable LIBOR Margin may be adjusted by reference to the
following grid:
IF LEVERAGE RATIO IS: APPLICABLE LIBOR MARGIN
--------------------- -----------------------
3.75 to 1.0 Base LIBOR Margin plus 0.75%
Adjustments in the Applicable LIBOR Margin commencing with the first
Fiscal Quarter ending after the Closing Date shall be implemented
quarterly on a prospective basis, for each calendar month commencing at
least five (5) days after the date of delivery to Lenders of the quarterly
unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of
those Financial Statements, Borrower Representative shall deliver to Agent
and Lenders a certificate, signed by one of its Authorized Officers,
setting forth in reasonable detail the basis for the continuance of, or
any change in, the Applicable LIBOR Margin. Failure to timely deliver such
Financial Statements shall, in addition to any other remedy provided for
in this Agreement, result in an increase in the Applicable LIBOR Margin to
the highest level set forth in the foregoing grid, until the first day of
the first calendar month following the delivery of those Financial
Statements demonstrating that such an increase is not required. If an
Event of Default has occurred and is continuing at the time any reduction
in the Applicable LIBOR Margin is to be implemented, that reduction shall
be deferred until the first day of the first calendar month following the
date on which such Event of Default is waived or cured.
(b) If any payment on the Term A Loan becomes due and payable on a
day other than a Business Day, the maturity thereof will be extended to
the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate
during such extension.
(c) All computations of Fees calculated on a per annum basis and
interest shall be made by Agent on the basis of a 360-day year, in each
case for the actual number of days occurring in the period for which such
interest and Fees are payable. Each determination by Agent of an interest
rate and Fees hereunder shall be presumptive evidence of the correctness
of such rates and Fees.
(d) So long as an Event of Default has occurred and is continuing
under SECTION 8.1(A), (H) or (I) or so long as any other Event of Default
has occurred and is continuing and at the election of Agent (or upon the
written request of Requisite Lenders) confirmed by written notice from
Agent to Borrower Representative, the interest rates applicable to the
Term A Loan shall be increased by two percentage points (2%) per annum
above the rates of interest otherwise applicable hereunder unless Agent or
Requisite Lenders elect to impose a smaller increase (the "Default Rate"),
and all outstanding Obligations shall bear interest at the Default Rate
applicable to such Obligations. Interest at the Default Rate shall accrue
from the initial date of such Event of Default until that Event of Default
is cured or waived and shall be payable upon demand.
(e) [INTENTIONALLY OMITTED]
Credit Agreement (Omni)
(f) Notwithstanding anything to the contrary set forth in this
SECTION 1.5, if a court of competent jurisdiction determines in a final
order that the rate of interest payable hereunder exceeds the highest rate
of interest permissible under law (the "Maximum Lawful Rate"), then so
long as the Maximum Lawful Rate would be so exceeded, the rate of interest
payable hereunder shall be equal to the Maximum Lawful Rate; provided,
that if at any time thereafter the rate of interest payable hereunder is
less than the Maximum Lawful Rate, Borrowers shall continue to pay
interest hereunder at the Maximum Lawful Rate until such time as the total
interest received by Agent, on behalf of Lenders, is equal to the total
interest that would have been received had the interest rate payable
hereunder been (but for the operation of this paragraph) the interest rate
payable since the Closing Date as otherwise provided in this Agreement. In
no event shall the total interest received by any Lender pursuant to the
terms hereof exceed the amount that such Lender could lawfully have
received had the interest due hereunder been calculated for the full term
hereof at the Maximum Lawful Rate.
1.6 [INTENTIONALLY OMITTED]
1.7 [INTENTIONALLY OMITTED]
1.8 Cash Management Systems. On or prior to the Closing Date, Borrowers
and the other Credit Parties will establish, and will maintain until the
Termination Date, a cash management system (including as to which Deposit
Accounts are disbursement accounts) acceptable to Agent in its sole discretion.
Without limiting the foregoing:
(a) with respect to Deposit Accounts of the Credit Parties in
existence as of the Closing Date, the applicable Credit Party shall have
executed and delivered to Agent a Blocked Account Agreement with respect
to all such Deposit Accounts;
(b) after the Closing Date no Credit Party shall add or replace any
banks at which they maintain Deposit Accounts, or open any new Deposit
Accounts, unless (x) Agent shall have consented in writing in advance to
such change and (y) prior to the time of such change, the applicable
Credit Party and bank shall have executed and delivered to Agent a Blocked
Account Agreement with respect to all Deposit Accounts at such bank;
(c) (i) with respect to any Deposit Account that is a disbursement
account, Agent agrees that the applicable Credit Party who holds such
Deposit Account may continue to write checks on, and otherwise make
withdrawals from, such Deposit Account unless and until an Event of
Default occurs, at (or after) which time Agent may elect, in its sole and
absolute discretion, to take control of such Deposit Account and all cash
deposited therein, and (ii) with respect to any Deposit Account that is
not a disbursement account, the applicable Blocked Account Agreement shall
provide that Agent at all times controls such Deposit Account and all cash
deposited therein (unless otherwise agreed to by Agent in its sole
discretion); and
(d) each Borrower shall at all times maintain a designated Deposit
Account (each, a "Designated Deposit Account"), which shall not be a
disbursement account, into which all proceeds other than proceeds of
Working Capital Loan Primary Collateral (or proceeds that constitute
Working Capital Loan Primary Collateral) shall, to the extent not paid
directly to Agent, be deposited immediately upon receipt by any Credit
Party, and with respect to which the applicable Borrower and the
applicable bank shall have executed and delivered to Agent a Blocked
Account Agreement.
Credit Agreement (Omni)
1.9 Fees.
(a) Borrowers shall pay to GE Capital, individually, the Fees
specified in the GE Capital Fee Letter.
(b) As additional compensation for the Lenders, Borrowers shall pay
to Agent, for the ratable benefit of Lenders, in arrears, on the first
Business Day of each month prior to the Commitment Termination Date and on
the Commitment Termination Date, a Fee for Borrowers' non-use of available
funds in an amount equal to sixth-tenths of one percent (0.60%) per annum
(calculated on the basis of a 360 day year for actual days elapsed)
multiplied by the difference between (x) the Term A Loan Commitment (as it
may be reduced from time to time) and (y) the average for the period of
the daily closing balances of the Term A Loan outstanding during the
period for which such Fee is due.
(c) If Borrowers pay after acceleration or prepay all or any portion
of the Term A Loan or terminate the Term A Loan Commitment, whether
voluntarily or involuntarily and whether before or after acceleration of
the Obligations, Borrowers shall pay to Agent, for the benefit of Lenders
as liquidated damages and compensation for the costs of being prepared to
make funds available hereunder an amount equal to the Applicable
Percentage (as defined below) multiplied by the sum of (i) the principal
amount of the Term A Loan paid after acceleration or prepaid, and (ii) the
amount of the Unfunded Term A Loan Commitment terminated. As used herein,
the term "Applicable Percentage" shall mean (x) three percent (3.0%) in
the case of a prepayment or termination prior to the first anniversary
date of the Closing Date (it being understood that voluntary prepayments
or termination of Term A Loan Commitments are not permitted during such
period), provided that if the relevant prepayment and termination is being
made pursuant to SECTION 1.3(b)(vi), so long as GE Capital shall have been
given a right of first refusal to provide the financing for the relevant
Omni Acquisition, the Applicable Percentage shall be two percent (2.0%));
(y) two percent (2.0%) in the case of a prepayment or termination from and
after the first anniversary of the Closing Date and prior to the third
anniversary of the Closing Date and (z) one percent (1.0%) thereafter..
The Credit Parties agree that the Applicable Percentages are a reasonable
calculation of Lenders' lost profits in view of the difficulties and
impracticality of determining actual damages resulting from an early
prepayment of the Term A Loan or termination of the Term A Loan
Commitment. Notwithstanding the foregoing, no prepayment fee shall be
payable by Borrowers upon a mandatory prepayment made pursuant to SECTIONS
1.3(b) (other than CLAUSE (vi) thereof) or 1.16(c); provided, that
Borrowers do not permanently terminate the Term A Loan Commitment upon any
such prepayment and, in the case of prepayments made pursuant to SECTIONS
1.3(b)(i) or (b)(ii), the transaction giving rise to the applicable
prepayment is expressly permitted under SECTION 6. The fee provided for
above shall not be payable upon a reduction of the Term A Loan Commitment
pursuant to SECTION 1.3(b)(vii).
1.10 Receipt of Payments. Borrowers shall make each payment under this
Agreement not later than 3:00 p.m. (New York time) on the day when due in
immediately available funds in Dollars to the Collection Account. For purposes
of computing interest and Fees and determining Term A Loan Availability as of
any date, all payments shall be deemed received on the Business Day on which
immediately available funds therefor are received in the Collection Account
prior to 3:00 p.m. (New York time). Payments received after 3:00 p.m. (New York
time) on any Business Day or on a day that is not a Business Day shall be deemed
to have been received on the following Business Day.
Credit Agreement (Omni)
1.11 Application and Allocation of Payments.
(a) So long as no Event of Default has occurred and is continuing,
(i) payments matching specific scheduled payments then due shall be
applied to those scheduled payments; (ii) voluntary prepayments shall be
applied in accordance with the provisions of SECTION 1.3(a); and (iii)
mandatory prepayments shall be applied as set forth in SECTIONS 1.3(c) and
1.3(d), as applicable. All payments and prepayments of the Term A Loan
shall be applied ratably to the portion thereof held by each Lender as
determined by its Pro Rata Share. As to any other payment, and as to all
payments made when an Event of Default has occurred and is continuing or
following the Maturity Date, each Borrower hereby irrevocably waives the
right to direct the application of any and all payments received from or
on behalf of such Borrower, and each Borrower hereby irrevocably agrees
that Agent shall have the continuing exclusive right to apply any and all
such payments against the Obligations of Borrowers as Agent may deem
advisable notwithstanding any previous entry by Agent in the Loan Account
or any other books and records. In the absence of a specific determination
by Agent with respect thereto, payments shall be applied to amounts then
due and payable in the following order: (1) to Fees and Agent's expenses
reimbursable hereunder; (2) to interest on the Term A Loan; (3) to
principal payments on the Term A Loan; and (4) to all other Obligations,
including expenses of Lenders to the extent reimbursable under SECTION
11.3.
(b) Agent is authorized to, and at its sole election may, charge to
the Term A Loan balance on behalf of each Borrower and cause to be paid
all Fees, expenses, Charges, costs (including insurance premiums in
accordance with SECTION 5.4) and interest and principal, other than
principal of the Term A Loan, owing by Borrowers under this Agreement or
any of the other Loan Documents if and to the extent Borrowers fail to pay
promptly any such amounts as and when due, even if the amount of such
charges would exceed Term A Loan Availability at such time or would cause
the balance of the Allocable Share of the Term A Loan of any Borrower to
exceed such Borrower's Borrowing Base after giving effect to such charges.
At Agent's option and to the extent permitted by law, any charges so made
shall constitute part of the Term A Loan hereunder.
1.12 Loan Account and Accounting. Agent shall maintain a loan account (the
"Loan Account") on its books to record: all Advances and the Term A Loan (and
the Allocable Share thereof of each Borrower), all payments made by Borrowers,
and all other debits and credits as provided in this Agreement with respect to
the Term A Loan or any other Obligations. All entries in the Loan Account shall
be made in accordance with Agent's customary accounting practices as in effect
from time to time. The balances in the Loan Account, as recorded on Agent's most
recent printout or other written statement, shall, absent manifest error, be
presumptive evidence of the amounts due and owing to Agent and Lenders by each
Borrower; provided, that any failure to so record or any error in so recording
shall not limit or otherwise affect any Borrower's duty to pay the Obligations.
Agent shall render to Borrower Representative a monthly accounting of
transactions with respect to the Term A Loan setting forth the balance of the
Loan Account as to each Borrower for the immediately preceding month. Unless
Borrower Representative notifies Agent in writing of any objection to any such
accounting (specifically describing the basis for such objection), within 30
days after the date thereof, each and every such accounting shall be presumptive
evidence of all matters reflected therein. Only those items expressly objected
to in such notice shall be deemed to be disputed by Borrowers. Notwithstanding
any provision herein contained to the contrary, any Lender may elect (which
election may be revoked) to dispense with the issuance of Notes to that Lender
and
Credit Agreement (Omni)
may rely on the Loan Account as evidence of the amount of Obligations from time
to time owing to it.
1.13 Indemnity.
(a) Each Credit Party that is a signatory hereto shall jointly and
severally indemnify and hold harmless each of Agent, Lenders and their
respective Affiliates, and each such Person's respective officers,
directors, employees, attorneys, agents and representatives (each, an
"Indemnified Person"), from and against any and all suits, actions,
proceedings, claims, damages, losses, liabilities and expenses (including
reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal) that
may be instituted or asserted against or incurred by any such Indemnified
Person as the result of credit having been extended, suspended or
terminated under this Agreement and the other Loan Documents and the
administration of such credit, and in connection with or arising out of
the transactions contemplated hereunder and thereunder and any actions or
failures to act in connection therewith, including any and all
Environmental Liabilities and legal costs and expenses arising out of or
incurred in connection with disputes between or among any parties to any
of the Loan Documents (collectively, "Indemnified Liabilities"); provided,
that no such Credit Party shall be liable for any indemnification to an
Indemnified Person to the extent that any such suit, action, proceeding,
claim, damage, loss, liability or expense results from that Indemnified
Person's gross negligence or willful misconduct. NO INDEMNIFIED PERSON
SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY
OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE
ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR
TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION
CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) [INTENTIONALLY OMITTED]
1.14 Access. Each Credit Party that is a party hereto shall, during normal
business hours, from time to time upon two Business Days' prior notice as
frequently as Agent reasonably determines to be appropriate: (a) provide Agent
and any of its officers, employees and agents access to its properties,
facilities, advisors, officers and employees of each Credit Party and to the
Collateral, (b) permit Agent, and any of its officers, employees and agents, to
inspect, audit and make extracts from any Credit Party's books and records, and
(c) permit Agent, and its officers, employees and agents, to inspect, review,
evaluate and make test verifications and counts of the Accounts, Inventory and
other Collateral of any Credit Party. If an Event of Default has occurred and is
continuing, each such Credit Party shall provide such access to Agent and to
each Lender at all times and without advance notice. Furthermore, so long as any
Event of Default has occurred and is continuing, Borrowers shall provide Agent
and each Lender with access to their suppliers and customers. Each Credit Party
shall make available to Agent and its counsel reasonably promptly originals or
copies of all books and records that Agent may reasonably request. Each Credit
Party shall deliver any document or instrument necessary for Agent, as it may
from time to time reasonably request, to obtain records from any service bureau
or other Person that maintains records for such Credit Party, and shall maintain
duplicate records or supporting documentation on media, including computer tapes
and discs owned by such Credit Party. Agent will give Lenders at least five
days' prior written
Credit Agreement (Omni)
notice of regularly scheduled audits. Representatives of other Lenders may
accompany Agent's representatives on regularly scheduled audits at no charge to
Borrowers.
1.15 Taxes.
(a) Any and all payments by each Borrower hereunder (including any
payments made pursuant to SECTION 12) or under the Notes shall be made, in
accordance with this SECTION 1.15, free and clear of and without deduction
for any and all present or future Taxes. If any Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder
(including any sum payable pursuant to SECTION 12) or under the Notes, (i)
the sum payable shall be increased as much as shall be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 1.15) Agent or Lenders, as
applicable, receive an amount equal to the sum they would have received
had no such deductions been made, (ii) such Borrower shall make such
deductions, and (iii) such Borrower shall pay the full amount deducted to
the relevant taxing or other authority in accordance with applicable law.
Within 30 days after the date of any payment of Taxes, Borrower
Representative shall furnish to Agent the original or a certified copy of
a receipt evidencing payment thereof.
(b) Each Credit Party that is a signatory hereto shall jointly and
severally indemnify and, within ten days of demand therefore, pay Agent
and each Lender for the full amount of Taxes (including any Taxes imposed
by any jurisdiction on amounts payable under this SECTION 1.15) paid by
Agent or such Lender, as appropriate, and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction outside
the United States (a "Foreign Lender") as to which payments to be made
under this Agreement or under the Notes are exempt from United States
withholding tax under an applicable statute or tax treaty shall provide to
Borrower Representative and Agent a properly completed and executed IRS
Form W-8ECI or Form W-8BEN or other applicable form, certificate or
document prescribed by the IRS or the United States certifying as to such
Foreign Lender's entitlement to such exemption (a "Certificate of
Exemption"). Any foreign Person that seeks to become a Lender under this
Agreement shall provide a Certificate of Exemption to Borrower
Representative and Agent prior to becoming a Lender hereunder. No foreign
Person may become a Lender hereunder if such Person fails to deliver a
Certificate of Exemption in advance of becoming a Lender.
1.16 Capital Adequacy; Increased Costs; Illegality.
(a) If any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy, reserve
requirements or similar requirements or compliance by any Lender with any
request or directive regarding capital adequacy, reserve requirements or
similar requirements (whether or not having the force of law), in each
case, adopted after the Closing Date, from any central bank or other
Governmental Authority increases or would have the effect of increasing
the amount of capital, reserves or other funds required to be maintained
by such Lender and thereby reducing the rate of return on such Lender's
capital as a consequence of its obligations hereunder, then Borrowers
shall from time to time upon demand to Borrower Representative by such
Lender (with a copy of such demand to Agent) pay to Agent, for the account
of such Lender, additional amounts sufficient to compensate such Lender
for such reduction. A certificate as to the amount of
Credit Agreement (Omni)
that reduction and showing the basis of the computation thereof submitted
by such Lender to Borrower Representative and to Agent shall be
presumptive evidence of the matters set forth therein.
(b) If, due to either (i) the introduction of or any change in any
law or regulation (or any change in the interpretation thereof) or (ii)
the compliance with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), in
each case adopted after the Closing Date, there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or
maintaining any portion of the Term A Loan, then Borrowers shall from time
to time, upon demand to Borrower Representative by such Lender (with a
copy of such demand to Agent), pay to Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. A certificate as to the amount of such increased cost, submitted to
Borrower Representative and to Agent by such Lender, shall be presumptive
evidence of the matters set forth therein. Each Lender agrees that, as
promptly as practicable after it becomes aware of any circumstances
referred to above which would result in any such increased cost, the
affected Lender shall, to the extent not inconsistent with such Lender's
internal policies of general application, use reasonable commercial
efforts to minimize costs and expenses incurred by it and payable to it by
Borrowers pursuant to this SECTION 1.16(b).
(c) [INTENTIONALLY OMITTED]
(d) Within 30 days after receipt by Borrower Representative of
written notice and demand from any Lender (an "Affected Lender") for
payment of additional amounts or increased costs as provided in SECTIONS
1.15(a), 1.16(a) or 1.16(b), Borrower Representative may, at its option,
notify Agent and such Affected Lender of its intention to replace the
Affected Lender. So long as no Default or Event of Default has occurred
and is continuing, Borrower Representative, with the consent of Agent, may
obtain, at Borrowers' expense, a replacement Lender ("Replacement Lender")
for the Affected Lender, which Replacement Lender must be reasonably
satisfactory to Agent. If Borrowers obtain a Replacement Lender within 90
days following notice of their intention to do so, the Affected Lender
must sell and assign its Term A Loan and Term A Loan Commitment to such
Replacement Lender for an amount equal to the principal balance of the
Term A Loan held by the Affected Lender and all accrued interest and Fees
with respect thereto through the date of such sale and such assignment
shall not require the payment of an assignment fee to Agent; provided,
that Borrowers shall have reimbursed such Affected Lender for the
additional amounts or increased costs that it is entitled to receive under
this Agreement through the date of such sale and assignment.
Notwithstanding the foregoing, Borrowers shall not have the right to
obtain a Replacement Lender if the Affected Lender rescinds its demand for
increased costs or additional amounts within 15 days following its receipt
of Borrowers' notice of intention to replace such Affected Lender.
Furthermore, if Borrower Representative gives a notice of intention to
replace and does not so replace such Affected Lender within 90 days
thereafter, Borrowers' rights under this SECTION 1.16(d) shall terminate
with respect to such Affected Lender and Borrowers shall promptly pay all
increased costs or additional amounts demanded by such Affected Lender
pursuant to SECTIONS 1.15(a), 1.16(a) and 1.16(b).
1.17 Single Loan. The Allocable Share of the Term A Loan of each Borrower
and all of the other Obligations of each Borrower arising under this Agreement
and the other Loan Documents shall constitute one general obligation of that
Borrower secured, until the Termination Date, by all of the Collateral.
Credit Agreement (Omni)
SECTION 2. CONDITIONS PRECEDENT
2.1 Conditions to the Closing. No Lender shall be obligated to make any
Advance on the Closing Date, or to take, fulfill, or perform any other action
hereunder, until the following conditions have been satisfied or provided for in
a manner reasonably satisfactory to Agent, or waived in writing by Agent:
(a) Credit Agreement; Loan Documents. This Agreement or counterparts
hereof shall have been duly executed by, and delivered to, Borrowers, each
other Credit Party, Agent and Lenders; and Agent shall have received such
documents, instruments, agreements and legal opinions as Agent shall
reasonably request in connection with the transactions contemplated by
this Agreement and the other Loan Documents, including all those listed in
the Schedule of Documents attached hereto as ANNEX D, each in form and
substance reasonably satisfactory to Agent.
(b) Repayment of Prior Lender Obligations. Agent shall have received
fully executed originals of pay-off letters or other release documents
reasonably satisfactory to Agent confirming that all of the Prior Lender
Obligations will be repaid in full on the Closing Date from the proceeds
of the initial Advance and that all Liens upon any of the property of any
Credit Party in favor of any Prior Lender shall be terminated by such
Prior Lender immediately upon such payment. In addition, Borrowers shall
have repaid the Indebtedness secured by Liens on the Casualty Aircraft
having tail number N133RT and such Liens shall have been released.
(c) Revolver Credit Availability. Revolver Credit Availability (as
determined on a pro forma basis, with trade payables being paid currently,
and expenses and liabilities being paid in the ordinary course of business
and without acceleration of sales, but in all cases after taking into
account any fundings under the Revolver Credit Agreement on the Closing
Date) shall be at least $2,500,000.
(d) Approvals. Agent shall have received (i) satisfactory evidence
that the Credit Parties have obtained all required consents and approvals
of all Persons including all requisite Governmental Authorities, to the
execution, delivery and performance of this Agreement and the other Loan
Documents and the consummation of the Related Transactions or (ii) an
officer's certificate in form and substance reasonably satisfactory to
Agent affirming that no such consents or approvals are required.
(e) Payment of Fees. Borrowers shall have paid the Fees required to
be paid on the Closing Date in the respective amounts specified in SECTION
1.9 (including the Fees specified in the GE Capital Fee Letter), and shall
have reimbursed Agent for all fees, costs and expenses of closing
presented as of the Closing Date.
(f) Capital Structure: Other Indebtedness. The capital structure of
each Credit Party and the terms and conditions of all Indebtedness of each
Credit Party shall be acceptable to Agent in its sole discretion.
(g) Due Diligence. Agent shall have completed its business and legal
due diligence, including a thorough review of all litigation pending
against any Credit Party, with results reasonably satisfactory to Agent.
(h) Acquisition Target Letter Agreement. Omni and the Acquisition
Target shall have entered into an letter agreement, in form and substance
acceptable to Agent in its sole
Credit Agreement (Omni)
discretion, in which the Acquisition Target and Omni agree that if on or
before December 31, 2005, Omni reasonably demonstrates that it has the
financial ability to consummate the Proposed Acquisition, the Acquisition
Target and Omni would enter into good faith negotiations to reach
agreement regarding a transaction substantially similar to the transaction
contemplated by the Acquisition LOI and on terms no less favorable to Omni
than the Acquisition LOI Terms.
(i) Revolver Credit Documents. The Revolver Credit Agreement (and
all documents to be executed in connection therewith) and the Revolver
Intercreditor Agreement shall have been duly executed by, and delivered
to, Agent and each of the parties thereto. All conditions precedent to the
Revolver Credit Agreement shall have been satisfied, such agreement shall
have become effective, and no default or event of default shall have
occurred or be continuing under the Revolver Credit Agreement. The
Revolver Credit Documents shall be in form and substance acceptable to
Agent in its sole discretion.
(j) Subordinated Debt Matters.
(i) Agent and Lenders shall have received fully executed
copies of the Debenture Settlement Documents, each of which shall be
in form and substance satisfactory to Agent, Lenders and their
respective counsel. The Debenture Settlement Transaction shall have
been consummated in accordance with the terms of the Debenture
Settlement Documents, and the Existing Debentures shall have been
cancelled. The holders of the New Subordinated Notes shall have
executed and delivered to Agent the Noteholder Subordination
Agreement.
(ii) Agent and Lenders shall have received fully executed
copies of the Trussco Modification Agreement (and all documents
contemplated thereby, including documents evidencing the assignment
of the Pledged Trussco Note Interest to Omni Properties), which
shall be in form and substance satisfactory to Agent, Lenders and
their respective counsel. The Trussco Modification Transaction shall
have been consummated in accordance with the terms of the Trussco
Modification Agreement, Trussco Note No. 3 shall have been cancelled
and the Pledged Trussco Note Interest shall have been assigned to
Omni Properties. Each of the Trussco Modification Parties shall have
executed and delivered to Agent a Trussco Subordination Agreement.
(k) Consummation of Preferred Stock Transaction. Agent and Lenders
shall have received fully executed copies of the Preferred Stock
Transaction Documents, each of which shall be in form and substance
satisfactory to Agent, Lenders and their respective counsel. The Preferred
Stock Transaction shall have been consummated in accordance with the terms
of the Preferred Stock Documents, and the gross cash proceeds of such
transaction shall be no less than $3,500,000 (and the amount actually
received by Omni shall be no less than the gross amount of the proceeds
net of underwriting discounts and commissions and other reasonable costs
paid to non-Affiliates in connection therewith). The Preferred Stock
Transaction, including the issuance of preferred stock thereunder, shall
be in full compliance with all applicable state and federal laws
concerning the issuance of securities and all applicable rules and
regulations of any exchange on which any Stock of Omni is traded.
(l) Minimum EBITDA. Omni and its Subsidiaries shall have had, for
the 12 Fiscal Month period ending October 31, 2004, EBITDA of not less
than $10,500,000.
Credit Agreement (Omni)
(m) Information Memorandum. Omni shall have (i) provided to Agent
prompt assistance in the preparation of an information memorandum in
connection with Agent's syndication of the Permitted Term B Loan Facility,
(ii) used commercially reasonable efforts to obtain proposals from
potential lenders in connection therewith, and (iii) utilized senior
management of Omni to participate in meetings and conference calls with
such lenders at such times and places as Agent may have reasonably
requested.
(n) Aircraft-Related Matters.
(i) With respect to each Owned Aircraft, (a) Agent shall have
received (i) evidence satisfactory to it and FAA counsel that such
Aircraft is owned by Omni and duly registered in the name of Omni on
the records of the FAA and (ii) evidence satisfactory to Agent
indicating the termination and release of all existing Liens on such
Owned Aircraft (including applicable filings with the FAA to effect
such release) other than Liens on the Excluded Aircraft; and (b) the
Aircraft Security Recordation shall have occurred (other than with
respect to the Excluded Aircraft and the Casualty Aircraft).
(ii) Agent shall have received the opinion of FAA counsel
which (a) indicates that the Aircraft Collateral is owned by Omni
free and clear of all defects and Liens except Permitted
Encumbrances, and that, for each Owned Aircraft, an Aircraft
Registration and (except with respect to the Excluded Aircraft and
the Casualty Aircraft) Aircraft Security Recordation has been
effected with the FAA, and (b) are otherwise in form and substance
satisfactory to Agent.
(iii) Agent shall have received the originals of all FAA
Certificates of the Credit Parties which may be assigned as
collateral security.
(o) Insurance Opinion. Agent shall have received an opinion from
Xxxxx that the certificates of insurance, together with the endorsements
thereto, (i) comply with SECTION 5.4, (ii) are in such amounts and cover
such perils as is customarily provided for Aircraft of a similar nature
owned by Persons engaged in the same or similar business as the Borrowers,
(iii) are placed with insurers of recognized reputation and
responsibility, and (iv) are otherwise in form and substance satisfactory
to Agent.
(p) No Material Adverse Effect. Agent shall have determined, in its
sole discretion, that no event or development shall have occurred since
December 31, 2004, that could reasonably be expected to result in a
Material Adverse Effect.
2.2 Further Conditions to Each Advance. Except as otherwise expressly
provided herein, no Lender shall be obligated to fund any Advance if, as of the
date thereof:
(a) any representation or warranty by any Credit Party contained
herein or in any other Loan Document is untrue or incorrect as of such
date as determined by Agent or Requisite Lenders, except to the extent
that such representation or warranty expressly relates to an earlier date
and except for changes therein expressly permitted or expressly
contemplated by this Agreement and Agent or Requisite Lenders have
determined not to make such Advance as a result of the fact that such
warranty or representation is untrue or incorrect;
Credit Agreement (Omni)
(b) any event or circumstance having a Material Adverse Effect shall
have occurred since December 31, 2004 or could reasonably be expected to
occur after giving effect to the relevant Advance;
(c) any Default or Event of Default has occurred and is continuing
or would result after giving effect to any Advance, and Agent or Requisite
Lenders shall have determined not to make any Advance as a result of that
Default or Event of Default; or
(d) after giving effect to any Advance, (i) the aggregate principal
amount of the Term A Loan would exceed the lesser of (A) the Term A Loan
Commitment as of such time and (B) the Aggregate Borrowing Base as of such
time, (ii) the aggregate principal amount of the Allocable Share of the
Term A Loan of any Borrower would exceed such Borrower's Borrowing Base,
or (iii) the Leverage Ratio would exceed the Maximum Leverage Ratio.
The request and acceptance by any Borrower of the proceeds of any Advance shall
be deemed to constitute, as of the date thereof, (i) a representation and
warranty by Borrowers that the conditions in this SECTION 2.2 (and, with respect
to each post-Closing Date Advance, that the conditions of SECTION 2.3) have been
satisfied and (ii) a reaffirmation by Borrowers of the cross-guaranty provisions
set forth in SECTION 12 and of the granting and continuance of Agent's Liens, on
behalf of itself and Lenders, pursuant to the Collateral Documents.
2.3 Additional Conditions Precedent to Post-Closing Date Advances. It
shall be a further condition to each post-Closing Date Advance (including the
Acquisition Advance) that each of the following conditions shall have been
satisfied:
(a) Evidence of Sufficient Borrowing Base; Borrowing Base
Certificate. Agent shall be satisfied in its sole discretion (based on a
current Field Survey and Audit and such other documentation and backup
evidence as Agent deems necessary or appropriate) that the amount of the
Advance requested by the relevant Borrower does not exceed the amount that
such Borrower is permitted to borrow as of the relevant time pursuant to
the provisions hereof, and shall have received a duly executed Borrowing
Base Certificate dated as of the date of the proposed Advance.
(b) Consent of Agent Regarding Proposed Use. As to any such Advance
other than the Acquisition Advance, no less than five Business Days prior
to the date of the proposed Advance Borrower Representative shall have
provided Agent with a detailed description of the proposed use of the
requested Advance (with such supporting documentation as may be requested
by Agent) and Agent shall have approved such proposed use in its sole
discretion (which approval, if given, may be subject to the satisfaction
of additional conditions in Agent's sole discretion, in which case all
such additional conditions must also be satisfied as a condition to such
Advance).
(c) Revolver Credit Availability. Revolver Credit Availability (as
determined on a pro forma basis, with trade payables being paid currently,
and expenses and liabilities being paid in the ordinary course of business
and without acceleration of sales) shall be at least $2,500,000.
(d) Acquisition Advance. With respect to the Acquisition Advance:
(i) Agent shall have determined that the Proposed Acquisition
qualifies as a Permitted Acquisition, and Agent shall have received
all documents and other
Credit Agreement (Omni)
items required pursuant to the definition of Permitted Acquisition,
all in form and substance satisfactory to Agent;
(ii) the Proposed Acquisition shall be irrevocably consummated
concurrent with the funding of the Acquisition Advance in accordance
with all applicable laws, and Omni shall have purchased pursuant to
the Acquisition Documents, and shall have become the owner, free and
clear of all Liens other than Permitted Encumbrances, of all of the
Stock of the Acquisition Target;
(iii) the Acquisition Advance shall be no more than the
Maximum Acquisition Advance Amount, and the Term B Acquisition
Advance shall be no more than the Maximum Term B Acquisition Advance
Amount; and
(iv) the proceeds of the Acquisition Advance shall be applied
and used solely to pay a portion of the cash portion of the
Acquisition Purchase Price, and the Term B Acquisition Advance shall
be applied and used solely to pay the portion of the cash portion of
the Acquisition Purchase Price that is not paid with the Acquisition
Advance and (to the extent that any portion of the Term B
Acquisition Advance remains thereafter) to pay any related
transaction expenses payable to non-Affiliates of Borrowers and the
Acquisition Target.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Term A Loan, the Credit Parties executing
this Agreement, jointly and severally, make the following representations and
warranties to Agent and each Lender with respect to all Credit Parties, each and
all of which shall survive the execution and delivery of this Agreement.
3.1 Corporate Existence; Compliance with Law. Each Credit Party:
(a) is a corporation, limited liability company or limited
partnership duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or organization
set forth in DISCLOSURE SCHEDULE 3.1;
(b) is duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not result in exposure to losses or
liabilities which could reasonably be expected to have a Material Adverse
Effect;
(c) has the requisite power and authority and the legal right to
own, pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease and to conduct its business as
now conducted or proposed to be conducted;
(d) subject to specific representations regarding Environmental
Laws, has all licenses, permits, consents or approvals from or by, and has
made all material filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for
such ownership, operation and conduct;
(e) is in compliance with its charter and bylaws or partnership or
operating agreement, as applicable;
(f) subject to specific representations set forth herein regarding
ERISA, Environmental Laws, tax and other laws, is in compliance with all
applicable provisions of
Credit Agreement (Omni)
law, except where the failure to comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect;
(g) (1) that owns or operates any Aircraft, is an "air carrier"
within the meaning of the Act and holds a valid and effective operating
certificate under 49 U.S.C. Section 41102(a)(1) and all other permits,
licenses and certificates necessary to operate such Aircraft (including an
air carrier operating certificate issued pursuant to Chapter 447 of Title
49 to the extent that such Person operates aircraft capable of carrying 10
or more individuals or 6,000 pounds or more of cargo), and (2) that owns
any Aircraft is a United States Citizen as defined in 49 U.S.C. Section
40102(a)(15); and
(h) has issued to it all FAA Certificates and other permits,
licenses and certificates necessary to continue to conduct its business as
now or heretofore conducted by it or proposed to be conducted by it (which
conduct shall include the operation of any Aircraft), and each FAA
Certificate is set forth in DISCLOSURE SCHEDULE 3.1, is in full force and
effect without material restrictions, and no action has been taken or
threatened to be taken by the FAA which could result in the imposition of
any material restrictions thereon. Without limiting the foregoing, Omni
holds a valid FAA Certificate issued pursuant to 49 U.S.C. Section 44705.
3.2 Executive Offices, Collateral Locations, FEIN. As of the Closing Date,
each Credit Party's name as it appears in official filings in its state of
incorporation or organization, state of incorporation or organization,
organization type, organization number, if any, issued by its state
incorporation or organization, and the current location of each Credit Party's
chief executive office and the warehouses and premises at which any Collateral
is located are set forth in DISCLOSURE SCHEDULE 3.2, none of such locations has
changed within the four months preceding the Closing Date and each Credit Party
has only one state of incorporation or organization. In addition, DISCLOSURE
SCHEDULE 3.2 lists the federal employer identification number of each Credit
Party. Finally, DISCLOSURE SCHEDULE 3.2 lists, for all Seismic and Environmental
Equipment and Aircraft Collateral and Excluded Aircraft, the location at which
such Seismic and Environmental Equipment and Aircraft Collateral and Excluded
Aircraft is stored or maintained (and indicates, for each such location, whether
such location is owned by a Credit Party, is a leased location, or is a third
party warehouse or storage facility, specifically indicating all applicable
third parties owning or leasing such facilities).
3.3 Corporate Power, Authorization, Enforceable Obligations. The
execution, delivery and performance by each Credit Party of the Loan Documents
to which it is a party and the creation of all Liens provided for therein:
(a) are within such Person's power;
(b) have been duly authorized by all necessary corporate, limited
liability company or limited partnership action;
(c) do not contravene any provision of such Person's charter, bylaws
or partnership or operating agreement as applicable;
(d) do not violate any law or regulation, or any order or decree of
any court or Governmental Authority;
(e) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate or permit the acceleration of any
performance required by, any
Credit Agreement (Omni)
indenture, mortgage, deed of trust, lease, agreement or other instrument
to which such Person is a party or by which such Person or any of its
property is bound;
(f) do not result in the creation or imposition of any Lien upon any
of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and
(g) do not require the consent or approval of any Governmental
Authority or any other Person, except those referred to in SECTION 2.1(c),
all of which will have been duly obtained, made or complied with prior to
the Closing Date.
Each of the Loan Documents shall be duly executed and delivered by each Credit
Party that is a party thereto and each such Loan Document shall constitute a
legal, valid and binding obligation of such Credit Party enforceable against it
in accordance with its terms.
3.4 Financial Statements and Projections. Except for the Projections, all
Financial Statements concerning Omni and its Subsidiaries that are referred to
below have been prepared in accordance with GAAP consistently applied throughout
the periods covered (except as disclosed therein and except, with respect to
unaudited Financial Statements, for the absence of footnotes and normal year-end
audit adjustments) and present fairly in all material respects the financial
position of the Persons covered thereby as at the dates thereof and the results
of their operations and cash flows for the periods then ended.
(a) Financial Statements. The following Financial Statements
attached hereto as DISCLOSURE SCHEDULE 3.4(a) have been delivered on the
date hereof:
(i) The audited consolidated and unaudited consolidating
balance sheets at December 31, 2004, 2003 and 2002 and the related
statements of income and cash flows of Omni and its Subsidiaries for
the Fiscal Years then ended, certified by Ernst & Young, LLP.
(ii) The unaudited balance sheet(s) at March 31, 2005 and the
related statement(s) of income and cash flows of Omni and its
Subsidiaries for the three Fiscal Quarters then ended.
(b) Pro Forma. The Pro Forma delivered on the date hereof and
attached hereto as DISCLOSURE SCHEDULE 3.4(b) was prepared by Omni giving
pro forma effect to the Related Transactions, was based on the unaudited
consolidated and consolidating balance sheets of Omni and its Subsidiaries
dated March 31, 2005, and was prepared in accordance with GAAP, with only
such adjustments thereto as would be required in accordance with GAAP.
(c) Projections. The Projections delivered on the date hereof and
attached hereto as DISCLOSURE SCHEDULE 3.4(c) have been prepared by Omni
and its Subsidiaries in light of the past operations of their businesses,
but including future payments of known contingent liabilities, and reflect
projections for the seven year period beginning on January 31, 2005 on a
quarter by quarter basis for such period. The Projections are based upon
the same accounting principles as those used in the preparation of the
financial statements described above and the estimates and assumptions
stated therein, all of which Omni believes to be reasonable and fair in
light of current conditions and current facts known to Omni and, as of the
Closing Date, reflect Omni's good faith and reasonable estimates of the
future financial performance of Omni and its Subsidiaries for the period
set forth therein. The Projections are not a guaranty of future
performance, and actual results may differ from the Projections.
Credit Agreement (Omni)
3.5 Material Adverse Effect.
(a) Between December 31, 2004 and the Closing Date:
(i) no Credit Party has incurred any obligations, contingent
or noncontingent liabilities, liabilities for Charges, long-term
leases or unusual forward or long-term commitments that are not
reflected in the Pro Forma and that, alone or in the aggregate,
could reasonably be expected to have a Material Adverse Effect;
(ii) no contract, lease or other agreement or instrument has
been entered into by any Credit Party or has become binding upon any
Credit Party's assets and no law or regulation applicable to any
Credit Party has been adopted that has had or could reasonably be
expected to have a Material Adverse Effect; and
(iii) other than the defaults with respect to the Existing
Debentures described in DISCLOSURE SCHEDULE 3.5(a), which will no
longer exist after the consummation of the Debenture Settlement
Transaction, no Credit Party is in default and to the best of
Borrowers' knowledge no third party is in default under any material
contract, lease or other agreement or instrument, that alone or in
the aggregate could reasonably be expected to have a Material
Adverse Effect. Since December 31, 2004, no event has occurred, that
alone or together with other events, could reasonably be expected to
have a Material Adverse Effect.
3.6 Ownership of Property; Liens. As of the Closing Date, the real estate
("Real Estate") listed in DISCLOSURE SCHEDULE 3.6 constitutes all of the real
property owned, leased, subleased, or used by any Credit Party. Each Credit
Party owns good and marketable fee simple title to all of its owned Real Estate,
and valid and marketable leasehold interests in all of its leased Real Estate,
all as described on DISCLOSURE SCHEDULE 3.6, and copies of all such leases or a
summary of terms thereof reasonably satisfactory to Agent have been delivered to
Agent. DISCLOSURE SCHEDULE 3.6 further describes any Real Estate with respect to
which any Credit Party is a lessor, sublessor or assignor as of the Closing
Date. Each Credit Party also has good and marketable title to, or valid
leasehold interests in, all of its personal property and assets. As of the
Closing Date, none of the properties and assets of any Credit Party are subject
to any Liens other than Permitted Encumbrances, and there are no facts,
circumstances or conditions known to any Credit Party that may result in any
Liens (including Liens arising under Environmental Laws) other than Permitted
Encumbrances. Each Credit Party has received all deeds, assignments, waivers,
consents, nondisturbance and attornment or similar agreements, bills of sale and
other documents, and has duly effected all recordings, filings and other actions
necessary to establish, protect and perfect such Credit Party's right, title and
interest in and to all such Real Estate and other properties and assets.
DISCLOSURE SCHEDULE 3.6 also describes any purchase options, rights of first
refusal or other similar contractual rights pertaining to any Real Estate. As of
the Closing Date, no portion of any Credit Party's Real Estate has suffered any
material damage by fire or other casualty loss that has not heretofore been
repaired and restored in all material respects to its original condition or
otherwise remedied. As of the Closing Date, all material permits required to
have been issued or appropriate to enable the Real Estate to be lawfully
occupied and used for all of the purposes for which it is currently occupied and
used have been lawfully issued and are in full force and effect. The current
construction and use of the Real Estate does not violate (a) any statutes, laws,
regulations, rules, ordinances, permits, requirements or orders or decrees of
any kind whatsoever now in effect (including zoning, use or building statutes,
laws, ordinances), or (b) any building permits or any conditions, easements,
rights-of-way, agreements of record, urban renewal plans, parking agreements,
covenants, restrictions of record or any other
Credit Agreement (Omni)
agreement affecting such Real Estate and each Credit Party further represents
that to the best of its knowledge, such Real Estate does not violate any
applicable zoning regulations.
3.7 Labor Matters. Except as set forth on DISCLOSURE SCHEDULE 3.7, as of
the Closing Date:
(a) no strikes or other material labor disputes against any Credit
Party are pending or, to any Credit Party's knowledge, threatened;
(b) hours worked by and payment made to employees of each Credit
Party comply with the Fair Labor Standards Act and each other federal,
state, local or foreign law applicable to such matters;
(c) all payments due from any Credit Party for employee health and
welfare insurance have been paid or accrued as a liability on the books of
such Credit Party;
(d) no Credit Party is a party to or bound by any collective
bargaining agreement, management agreement, consulting agreement,
employment agreement, bonus, restricted stock, stock option, or stock
appreciation plan or agreement or any similar plan, agreement or
arrangement (and true and complete copies of any agreements described on
DISCLOSURE SCHEDULE 3.7 have been delivered to Agent);
(e) there is no organizing activity involving any Credit Party
pending or, to any Credit Party's knowledge, threatened by any labor union
or group of employees;
(f) there are no representation proceedings pending or, to any
Credit Party's knowledge, threatened with the National Labor Relations
Board, and no labor organization or group of employees of any Credit Party
has made a pending demand for recognition; and
(g) there are no material complaints or charges against any Credit
Party pending or, to the knowledge of any Credit Party, threatened to be
filed with any Governmental Authority or arbitrator based on, arising out
of, in connection with, or otherwise relating to the employment or
termination of employment by any Credit Party of any individual.
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and
Indebtedness.
(a) Except as set forth in DISCLOSURE SCHEDULE 3.8, as of the
Closing Date, no Credit Party has any Subsidiaries, is engaged in any
joint venture or partnership with any other Person, or is an Affiliate of
any other Person.
(b) All of the issued and outstanding Stock of each Credit Party is
owned by each of the Stockholders and in the amounts set forth in
DISCLOSURE SCHEDULE 3.8.
(c) Except as set forth in DISCLOSURE SCHEDULE 3.8, there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Credit Party may be required to issue,
sell, repurchase or redeem any of its Stock or other equity securities or
any Stock or other equity securities of its Subsidiaries. All outstanding
Indebtedness and Guaranteed Indebtedness of each Credit Party as of the
Closing Date (except for the Obligations) is described in SECTION 6.3
(including DISCLOSURE SCHEDULE 6.3).
3.9 Government Regulation. No Credit Party is an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940. No Credit Party is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, or any other federal or state
statute that restricts or limits its ability to incur Indebtedness or to perform
its
Credit Agreement (Omni)
obligations hereunder. The making of the Term A Loan by Lenders to Borrowers,
the application of the proceeds thereof and repayment thereof and the
consummation of the Related Transactions will not violate any provision of any
such statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
3.10 Margin Regulations. No Credit Party is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" as such
terms are defined in Regulation U of the Federal Reserve Board as now and from
time to time hereafter in effect (such securities being referred to herein as
"Margin Stock"). No Credit Party owns any Margin Stock, and none of the proceeds
of the Term A Loan or other extensions of credit under this Agreement will be
used, directly or indirectly, for the purpose of purchasing or carrying any
Margin Stock, for the purpose of reducing or retiring any Indebtedness that was
originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any portion of the Term A Loan or other extensions of
credit under this Agreement to be considered a "purpose credit" within the
meaning of Regulations T, U or X of the Federal Reserve Board. No Credit Party
will take or permit to be taken any action that might cause any Loan Document to
violate any regulation of the Federal Reserve Board.
3.11 Taxes. All Federal and other material tax returns, reports and
statements, including information returns, required by any Governmental
Authority to be filed by any Credit Party have been filed with the appropriate
Governmental Authority, and all Charges have been paid prior to the date on
which any fine, penalty, interest or late charge may be added thereto for
nonpayment thereof excluding Charges or other amounts being contested in
accordance with SECTION 5.2(B) and unless the failure to so file or pay would
not reasonably be expected to result in fines, penalties or interest in excess
of $250,000 in the aggregate. Proper and accurate amounts have been withheld by
each Credit Party from its respective employees for all periods in full and
complete compliance with all applicable federal, state, local and foreign laws
and such withholdings have been timely paid to the respective Governmental
Authorities. DISCLOSURE SCHEDULE 3.11 sets forth as of the Closing Date those
taxable years for which any Credit Party's tax returns are currently being
audited by the IRS or any other applicable Governmental Authority, and any
assessments or threatened assessments in connection with such audit, or
otherwise currently outstanding. Except as described in DISCLOSURE SCHEDULE
3.11, as of the Closing Date, no Credit Party has executed or filed with the IRS
or any other Governmental Authority any agreement or other document extending,
or having the effect of extending, the period for assessment or collection of
any Charges. None of the Credit Parties and their respective predecessors are
liable for any Charges: (a) under any agreement (including any tax sharing
agreements) or (b) to each Credit Party's knowledge, as a transferee. As of the
Closing Date, no Credit Party has agreed or been requested to make any
adjustment under IRC Section 481(a), by reason of a change in accounting method
or otherwise, which would reasonably be expected to have a Material Adverse
Effect.
3.12 ERISA.
(a) DISCLOSURE SCHEDULE 3.12 lists, as of the Closing Date, (i) all
ERISA Affiliates and (ii) all Plans and separately identifies all Pension
Plans, including Title IV Plans, Multiemployer Plans, and all Retiree
Welfare Plans. Copies of all such listed Plans, together with a copy of
the latest form IRS/DOL 5500-series, as applicable, for each such Plan,
have been delivered to Agent. Except with respect to Multiemployer Plans,
each Qualified Plan has been determined by the IRS to qualify under
Section 401 of the IRC, the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would cause the loss of such
Credit Agreement (Omni)
qualification or tax-exempt status. Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the IRC and its
terms, including the timely filing of all reports required under the IRC
or ERISA. Neither any Credit Party nor ERISA Affiliate has failed to make
any material contribution or pay any material amount due as required by
either Section 412 of the IRC or Section 302 of ERISA or the terms of any
such Plan. No "prohibited transaction," as defined in Section 406 of ERISA
and Section 4975 of the IRC, has occurred with respect to any Plan, that
would subject any Credit Party to a material tax on prohibited
transactions imposed by Section 502(i) of ERISA or Section 4975 of the
IRC.
(b) Except as set forth in DISCLOSURE SCHEDULE 3.12: (i) no Title IV
Plan has any material Unfunded Pension Liability; (ii) no ERISA Event has
occurred or is reasonably expected to occur; (iii) there are no pending,
or to the knowledge of any Credit Party, threatened material claims (other
than claims for benefits in the normal course), sanctions, actions or
lawsuits, asserted or instituted against any Plan or any Person as
fiduciary or sponsor of any Plan; (iv) no Credit Party or ERISA Affiliate
has incurred or reasonably expects to incur any material liability as a
result of a complete or partial withdrawal from a Multiemployer Plan; and
(v) within the last five years no Title IV Plan of any Credit Party or
ERISA Affiliate has been terminated, whether or not in a "standard
termination" as that term is used in Section 4041 of ERISA, nor has any
Title IV Plan of any Credit Party or any ERISA Affiliate (determined at
any time within the last five years) with material Unfunded Pension
Liabilities been transferred outside of the "controlled group" (within the
meaning of Section 4001(a)(14) of ERISA) of any Credit Party or ERISA
Affiliate (determined at such time).
3.13 No Litigation. No action, claim, lawsuit, demand, investigation or
proceeding is now pending or, to the knowledge of any Credit Party, threatened
against any Credit Party, before any Governmental Authority or before any
arbitrator or panel of arbitrators (collectively, "Litigation"),
(a) that challenges any Credit Party's right or power to enter into
or perform any of its obligations under the Loan Documents to which it is
a party, or the validity or enforceability of any Loan Document or any
action taken thereunder, or
(b) other than the Advantage Litigation (without regard to any
material adverse developments in such litigation of which Agent became
aware after February 25, 2005) that has a reasonable risk of being
determined adversely to any Credit Party and that , if so determined,
could reasonably be expected to have a Material Adverse Effect.
Except as set forth on DISCLOSURE SCHEDULE 3.13, as of the Closing Date there is
no Litigation pending or, to any Credit Party's knowledge, threatened, that
seeks damages in excess of $250,000 or injunctive relief against, or alleges
criminal misconduct of, any Credit Party.
3.14 Brokers. Except as set forth on DISCLOSURE SCHEDULE 3.14, no broker
or finder brought about the obtaining, making or closing of the Term A Loan or
the Related Transactions, and no Credit Party or Affiliate thereof has any
obligation to any Person in respect of any finder's or brokerage fees in
connection therewith.
3.15 Intellectual Property. As of the Closing Date, each Credit Party owns
or has rights to use all Intellectual Property necessary to continue to conduct
its business as now conducted by it or presently proposed to be conducted by it,
and each Patent, Trademark, Copyright and License is listed, together with
application or registration numbers, as applicable, in DISCLOSURE SCHEDULE 3.15.
Each Credit Party conducts its business and affairs without infringement of or
interference with any
Credit Agreement (Omni)
Intellectual Property of any other Person in any material respect. Except as set
forth in DISCLOSURE SCHEDULE 3.15, no Credit Party is aware of any material
infringement claim by any other Person with respect to any Intellectual
Property.
3.16 Full Disclosure. No information contained in this Agreement, any of
the other Loan Documents, Financial Statements or Collateral Reports or other
written reports from time to time prepared by any Credit Party and delivered
hereunder or any written statement prepared by any Credit Party and furnished by
or on behalf of any Credit Party to Agent or any Lender pursuant to the terms of
this Agreement contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made. Projections from time to time delivered hereunder are or
will be based upon the estimates and assumptions stated therein, all of which
Borrowers believed at the time of delivery to be reasonable and fair in light of
current conditions and current facts known to Borrowers as of such delivery
date, and reflect Borrowers' good faith and reasonable estimates of the future
financial performance of Borrowers and of the other information projected
therein for the period set forth therein. Such Projections are not a guaranty of
future performance and actual results may differ from those set forth in such
Projections. The Liens granted to Agent, on behalf of itself and Lenders,
pursuant to the Collateral Documents will at all times be fully perfected first
priority Liens in and to the Collateral described therein, subject, as to
priority, only to Permitted Encumbrances.
3.17 Environmental Matters.
(a) Except as set forth in DISCLOSURE SCHEDULE 3.17, as of the
Closing Date:
(i) the Real Estate is free of contamination from any
Hazardous Material except for such contamination that would not
adversely impact the value or marketability of such Real Estate and
that would not result in Environmental Liabilities that could
reasonably be expected to exceed $100,000;
(ii) no Credit Party has caused or suffered to occur any
material Release of Hazardous Materials on, at, in, under, above,
to, from or about any of its Real Estate;
(iii) the Credit Parties are and have been in compliance with
all Environmental Laws, except for such noncompliance that would not
result in Environmental Liabilities which could reasonably be
expected to exceed $100,000;
(iv) the Credit Parties have obtained, and are in compliance
with, all Environmental Permits required by Environmental Laws for
the operations of their respective businesses as presently conducted
or as proposed to be conducted, except where the failure to so
obtain or comply with such Environmental Permits would not result in
Environmental Liabilities that could reasonably be expected to
exceed $100,000, and all such Environmental Permits are valid,
uncontested and in good standing;
(v) no Credit Party is involved in operations or knows of any
facts, circumstances or conditions, including any Releases of
Hazardous Materials, that are likely to result in any Environmental
Liabilities of such Credit Party which could reasonably be expected
to exceed $100,000;
Credit Agreement (Omni)
(vi) there is no Litigation arising under or related to any
Environmental Laws, Environmental Permits or Hazardous Material that
seeks damages, penalties, fines, costs or expenses in excess of
$100,000 or injunctive relief against, or that alleges criminal
misconduct by, any Credit Party;
(vii) no notice has been received by any Credit Party
identifying it as a "potentially responsible party" or requesting
information under CERCLA or analogous state statutes, and to the
knowledge of the Credit Parties, there are no facts, circumstances
or conditions that may result in any Credit Party being identified
as a "potentially responsible party" under CERCLA or analogous state
statutes; and
(viii) the Credit Parties have provided to Agent copies of all
existing environmental reports, reviews and audits and all written
information pertaining to actual or potential Environmental
Liabilities, in each case relating to any Credit Party.
(b) Each Credit Party hereby acknowledges and agrees that Agent
(i) is not now, and has not ever been, in control of any of
the Real Estate or any Credit Party's affairs, and
(ii) does not have the capacity through the provisions of the
Loan Documents or otherwise to influence any Credit Party's conduct
with respect to the ownership, operation or management of any of its
Real Estate or compliance with Environmental Laws or Environmental
Permits.
3.18 Insurance. DISCLOSURE SCHEDULE 3.18 lists all insurance policies of
any nature maintained, as of the Closing Date, for current occurrences by each
Credit Party, as well as a summary of the terms of each such policy.
3.19 Deposit and Disbursement Accounts. DISCLOSURE SCHEDULE 3.19 lists all
banks and other financial institutions at which any Credit Party maintains
deposit or other accounts, and such Schedule correctly identifies the name,
address and telephone number of each depository, the name in which the account
is held, a description of the purpose of the account, and the complete account
number therefor.
3.20 Government Contracts. Except as set forth in DISCLOSURE SCHEDULE
3.20, as of the Closing Date, no Credit Party is a party to any contract or
agreement with any Governmental Authority and no Credit Party's Accounts are
subject to the Federal Assignment of Claims Act (31 U.S.C. Section 3727) or any
similar state or local law.
3.21 Customer and Trade Relations. As of the Closing Date, there exists no
actual or, to the knowledge of any Credit Party, threatened termination or
cancellation of, or any material adverse modification or change in: the business
relationship of any Credit Party with any customer or group of customers whose
purchases during the preceding 12 months caused them to be ranked among the ten
largest customers of such Credit Party; or the business relationship of any
Credit Party with any supplier essential to its operations.
3.22 Bonding; Licenses. Except as set forth on DISCLOSURE SCHEDULE 3.22,
as of the Closing Date, no Credit Party is a party to or bound by any surety
bond agreement or binding requirement with respect to products or services sold
by it or any trademark or patent license agreement with respect to products sold
by it.
3.23 Solvency. Both before and after giving effect to (a) the Advance to
be made or incurred on the Closing Date or such other date as Advances requested
hereunder are made or
Credit Agreement (Omni)
incurred, (b) the disbursement of the proceeds of such Advances pursuant to the
instructions of Borrower Representative; (c) the Refinancing and the
consummation of the other Related Transactions; and (d) the payment and accrual
of all transaction costs in connection with the foregoing, each Credit Party is
and will be Solvent.
3.24 Aircraft. DISCLOSURE SCHEDULE 3.24 sets forth a complete and accurate
list of all Aircraft owned or used by any Credit Party, and as to each Aircraft,
specifies the owner thereof, the year of manufacture, the number of seats, the
serial number, the tail number and the model designation. The Casualty Aircraft
suffered total losses prior to the Closing Date and are no longer operational.
3.25 Anti-Terrorism Laws.
(a) None of the Credit Parties nor or any Affiliate of any Credit
Party, is in violation of any Anti-Terrorism Law or engages in or
conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
(b) None of the Credit Parties, nor or any Affiliate of any Credit
Party, or their respective agents acting or benefiting in any capacity in
connection with the Term A Loan or other transactions hereunder, is any of
the following (each a "Blocked Person"):
(i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order No.
13224;
(iii) a Person or entity with which any Lender is prohibited
from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires
to commit or supports "terrorism" as defined in the Executive Order
No. 13224;
(v) a Person or entity that is named as a "specially
designated national" on the most current list published by the U.S.
Treasury Department Office of Foreign Asset Control at its official
website or any replacement website or other replacement official
publication of such list; or
(vi) a Person or entity who is affiliated or associated with a
person or entity listed above.
(c) No Credit Party, or to the knowledge of any Credit Party any of
its agents acting in any capacity in connection with the Term A Loan or
other transactions hereunder, (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for
the benefit of any Blocked Person, or (ii) deals in, or otherwise engages
in any transaction relating to, any property or interests in property
blocked pursuant to the Executive Order No. 13224.
3.26 Inactive Subsidiaries. Each of the Inactive Subsidiaries has no
Indebtedness or other material liabilities, conducts no operations or business,
and owns no assets or properties.
3.27 Nature of Business. No Borrower is engaged in any business other than
the business of providing oil field seismic support services, oil field aviation
transportation services or oil field
Credit Agreement (Omni)
environmental services (and other activities incidental thereto). Each of the
Credit Parties (other than Borrowers) has no Indebtedness or other material
liabilities, conducts no operations or business, and owns no assets or
properties.
3.28 Revolver Documents. As of the Closing Date, Borrowers have delivered
to Agent a complete and correct copy of the Revolver Documents (including all
schedules, exhibits, amendments, supplements, modifications, assignments and all
other documents delivered pursuant thereto or in connection therewith).
3.29 Subordinated Debt. As of the Closing Date, Borrowers have delivered
to Agent a complete and correct copy of (i) the Trussco Notes and the Trussco
Modification Agreement, and (ii) the Existing Debentures, the Debenture
Settlement Documents and the New Subordinated Notes (including in all cases all
schedules, exhibits, amendments, supplements, modifications, assignments and all
other documents or agreements delivered pursuant thereto or in connection
therewith). All Obligations constitute Indebtedness entitled to the benefits of
the subordination provisions contained in (i) the Trussco Subordination
Agreement and (ii) the Noteholder Subordination Agreement.
3.30 Ownership of Property Identified in Pre-Closing Field Survey and
Audit. As of the Closing Date, Borrowers own all of the property identified in
the Pre-Closing Field Survey and Audit with the exception of the items described
in DISCLOSURE SCHEDULE 3.30, and each item of property identified in the
Pre-Closing Field Survey and Audit is owned by the Borrower identified therein
as the owner thereof.
SECTION 4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices.
(a) Each Credit Party executing this Agreement hereby agrees that
from and after the Closing Date and until the Termination Date, it shall
deliver to Agent or to Agent and Lenders, as required, the Financial
Statements, notices, Projections and other information at the times, to
the Persons and in the manner set forth in ANNEX E.
(b) Each Credit Party executing this Agreement hereby agrees that,
from and after the Closing Date and until the Termination Date, it shall
deliver to Agent or to Agent and Lenders, as required, the various
Collateral Reports at the times, to the Persons and in the manner set
forth in ANNEX F.
4.2 Communication with Accountants. Each Credit Party executing this
Agreement authorizes (a) Agent and (b) so long as an Event of Default has
occurred and is continuing, each Lender, to communicate directly with its
independent certified public accountants, including Xxxxxxx Xxxx Xxxxxxx of
Texas, PC, and authorizes and shall instruct those accountants and advisors to
communicate to Agent and each Lender information relating to any Credit Party
with respect to the business, results of operations and financial condition of
any Credit Party.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Credit Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof and until
the Termination Date:
5.1 Maintenance of Existence and Conduct of Business. Each Credit Party
shall:
(a) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and its material rights
and franchises; provided, that this SECTION 5.1(a) shall not apply to
Immaterial Subsidiaries;
Credit Agreement (Omni)
(b) continue to conduct its business substantially as now conducted
or as otherwise permitted hereunder;
(c) at all times maintain, preserve and protect all of its assets
and properties used or useful in the conduct of its business, and keep the
same in good repair, working order and condition in all material respects
(taking into consideration ordinary wear and tear) and from time to time
make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry practices;
and transact business only in such corporate and trade names as are set
forth in DISCLOSURE SCHEDULE 5.1.
5.2 Payment of Charges.
(a) Subject to SECTION 5.2(b), each Credit Party shall pay and
discharge or cause to be paid and discharged promptly all Charges payable
by it, including (i) Charges imposed upon it, its income and profits, or
any of its property (real, personal or mixed) and all Charges with respect
to tax, social security and unemployment withholding with respect to its
employees, (ii) lawful claims for labor, materials, supplies and services
or otherwise, and (iii) all storage or rental charges payable to
warehousemen or bailees, in each case, before any thereof shall become
past due, except in the case of CLAUSES (ii) and (iii) where the failure
to pay or discharge such Charges would not result in aggregate liabilities
in excess of $200,000.
(b) Each Credit Party may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges, Taxes or claims
described in SECTION 5.2(a); provided, that (i) adequate reserves with
respect to such contest are maintained on the books of such Credit Party,
in accordance with GAAP; (ii) no Lien shall be imposed to secure payment
of such Charges (other than payments to warehousemen and/or bailees) that
is superior to any of the Liens securing the Obligations and such contest
is maintained and prosecuted continuously and with diligence and operates
to suspend collection or enforcement of such Charges; (iii) none of the
Collateral becomes subject to forfeiture or loss as a result of such
contest; and (iv) such Credit Party shall promptly pay or discharge such
contested Charges, Taxes or claims and all additional charges, interest,
penalties and expenses, if any, and shall deliver to Agent evidence
reasonably acceptable to Agent of such compliance, payment or discharge,
if such contest is terminated or discontinued adversely to such Credit
Party or the conditions set forth in this SECTION 5.2(b) are no longer
met.
5.3 Books and Records. Each Credit Party shall keep adequate books and
records with respect to its business activities in which proper entries,
reflecting all financial transactions, are made in accordance with GAAP and on a
basis consistent with the Financial Statements attached as DISCLOSURE SCHEDULE
3.4(a).
5.4 Insurance; Damage to or Destruction of Collateral.
(a) Credit Parties shall, at their sole cost and expense, maintain
the policies of insurance as in effect on the date hereof of the types and
amounts as set forth in SECTION 5.4(a)(i) through (vi) below and described
on DISCLOSURE SCHEDULE 3.18, or otherwise in form and with insurers
reasonably acceptable to Agent. Credit Parties shall also carry and
maintain any other insurance that Agent may reasonably require from time
to time. The insurance required to be carried and maintained by Credit
Parties shall, in all events, be placed with insurers having a minimum
A.M. Best rating of A:X (or as may be otherwise
Credit Agreement (Omni)
agreed by Agent), be in such form, with terms, conditions, limits and
deductibles as shall be acceptable to Agent, and include the following:
(i) Aircraft Hull and War Risks Insurance. Credit Parties
shall maintain all-risk (ground, in-flight and taxiing) aircraft
hull and engine insurance (including, without limitation, with
respect to engines or parts thereof while removed from the Aircraft,
and foreign object damage insurance) covering each Aircraft and each
Engine and war risks and allied perils insurance (including, without
limitation, political/non-political hijacking, acts of terrorism,
confiscation, expropriation, nationalization or seizure). All such
insurance shall be in full force and effect throughout any
geographical areas at any time traversed by such Aircraft, and shall
be written in an agreed amount not less than the replacement cost of
such Aircraft or Engine, as applicable, from time to time acceptable
to Agent. All such insurance shall be payable in United States
Dollars, in the United States. Any insurance carried in accordance
with this SECTION 5.4(a)(i) shall not contain any provision for
self-insurance (other than deductibles), nor shall any Credit Party
self-insure for such coverages. Deductibles shall not exceed
$250,000;
(ii) Aircraft Third Party Liability. Credit Parties shall
maintain comprehensive third party aircraft liability insurance
against bodily injury and property damage losses arising from
ground, flight and taxiing exposures including, without limitation,
contractual liability, premises damages, cargo liability, bodily
injury, death and property damage liability, passenger legal
liability coverage and sudden accident pollution coverage, in an
amount not less than $25,000,000 for each occurrence; provided, that
the minimum insurance amounts specified in this CLAUSE (ii) may be
further increased to such higher amount as may be customary in the
industry as determined by Agent based on a recommendation from an
independent insurance company with knowledge of the industry. Such
policy shall include war risks and allied perils in accordance with
AVN 52D or its equivalent (as it exists on the date hereof).
Deductibles shall not exceed $100,000;
(iii) All-Risk Property Damage Insurance. Credit Parties shall
maintain all-risk property damage insurance written on a replacement
cost basis covering buildings and contents as well as all mobile
equipment. Such policy shall contain an agreed amount endorsement
waiving any co-insurance penalty;
(iv) Commercial General Liability Insurance. Credit Parties
shall maintain commercial general liability insurance written on an
occurrence basis with a limit of not less than $25,000,000. Such
coverage shall include, but not be limited to, premises/operations,
broad form contractual liability, independent contractors,
products/completed operations, property damage and personal injury
liability. Such insurance shall not contain an exclusion for
punitive or exemplary damages where insurable by law;
(v) Workers' Compensation/Employer's Liability Insurance.
Credit Parties shall maintain (i) Workers' Compensation insurance in
accordance with statutory provisions covering accidental injury,
illness or death of an employee of any Credit Party while at work or
in the scope of his employment with such Credit Party, (ii) Defense
Bases Act and War Hazards Compensation Act coverage if the Aircraft
and related personnel are operating in an area of hostilities, and
(iii) Employer's
Credit Agreement (Omni)
Liability in an amount of not less than $1,000,000. Such coverage
shall not contain any occupational disease exclusions; and
(vi) Excess/Umbrella Liability Insurance. Credit Parties shall
maintain excess or umbrella liability insurance written on an
occurrence basis in an amount of not less than $35,000,000 providing
coverage limits excess of the insurance limits required under
SECTIONS 5.4(a)(iv) and (v) above. Such insurance shall follow from
the primary insurances and drop down in case of exhaustion of
underlying limits and/or aggregates. Such insurance shall not
contain an exclusion for punitive or exemplary damages where
insurable under law.
(b) Credit Parties shall cause all insurance policies carried and
maintained in accordance with this SECTION 5.4 to be endorsed as follows:
(i) Agent, for the benefit of Agent and Lenders, shall be an
additional insured and sole loss payee (other than Revolver Lender)
with respect to the policies described in SECTIONS 5.4(a)(i) and
(iii). Agent, for the benefit of Agent and Lenders, shall be an
additional insured with respect to liability policies described in
SECTIONS 5.4(a)(ii), (iv), (v) (to the extent allowed by law), and
(vi);
(ii) With respect to policies described in SECTIONS 5.4(a)(i)
and (III), the interests of Agent, for the benefit of Agent and
Lenders, shall not be invalidated by any action or inaction of any
Credit Party or any other Person (other than Agent), and shall
insure Agent, for the benefit of Agent and Lenders, regardless of
any breach or violation by any Credit Party or any other Person, of
any warranties, declarations or conditions of such policies;
(iii) Inasmuch as the liability policies are written to cover
more than one insured, all terms conditions, insuring agreements and
endorsements, with the exception of the limits of liability, shall
operate in the same manner as if there were a separate policy
covering each insured;
(iv) The insurers thereunder shall waive all rights of
subrogation against Agent, for the benefit of Agent and Lenders, any
right of setoff or counterclaim, and any other right to deduction,
whether by attachment or otherwise;
(v) Such insurance shall be primary without right of
contribution of any other insurance carried by or on behalf of
Agent, for the benefit of Agent and Lenders, with respect to their
interests as such in the Aircraft; and
(vi) If such insurance is canceled for any reason whatsoever,
including nonpayment of premium, or any adverse material changes are
initiated by the carrier which affect the interests of Agent, such
cancellation or change shall not be effective as to Agent until 30
days (ten days in the case of non-payment of premium or less in the
case of war and allied perils risks) after receipt by Agent of
written notice sent by registered mail from such insurer.
(c) If any Credit Party at any time or times hereafter shall fail to
obtain or maintain any of the policies of insurance required by this
Agreement, or to pay all premiums relating thereto, Agent may at any time
or times thereafter obtain and maintain such policies of insurance and pay
such premiums and take any other action with respect thereto that Agent
deems advisable. By doing so, Agent shall not be deemed to have waived any
Default or
Credit Agreement (Omni)
Event of Default arising from any Credit Party's failure to maintain such
insurance or pay any premiums therefor. All sums so disbursed, including
reasonable attorneys' fees, court costs and other charges related thereto,
shall be payable on demand by Borrowers to Agent and shall be additional
Obligations hereunder secured by the Collateral. It is acknowledged and
agreed that Agent shall have no obligation to obtain insurance for any
Credit Party, and that any obligation imposed upon any Credit Party,
including but not limited to the obligation to pay premiums, shall be the
sole obligation of such Credit Party and not that of Agent or any Lender.
(d) On the Closing Date and at least ten (10) days prior to each
policy renewal (but not less than annually), Credit Parties shall have
delivered to Agent (i) insurance certificates for each policy of insurance
maintained by Credit Parties and required under this SECTION 5.4
(including all endorsements referred to in SECTION 5.4(b)), and (ii) an
up-to-date DISCLOSURE SCHEDULE 3.18 (which shall identify the
underwriters, the type of insurance, the limits, deductibles and term
thereof of each policy of insurance maintained by Credit Parties).
(e) On the Closing Date and concurrently with the furnishing of all
new insurance certificates referred to in SECTION 5.4(d), Credit Parties
shall furnish Agent with a statement from an independent insurance broker,
acceptable to Agent, stating that (i) all premiums then due have been
paid, (ii) in the opinion of such broker, the insurance then maintained by
Credit Parties is in compliance with this Agreement, (iii) the
endorsements required pursuant to SECTION 5.4(b) have been endorsed to
Credit Parties' relevant insurance policies, and (iv) it will promptly
advise Agent in writing of any default in the payment of any premiums or
any other act or omission, on the part of any person, which might
invalidate or render unenforceable, in whole or in part, any insurance
provided by Credit Parties hereunder.
(f) Each Credit Party irrevocably makes, constitutes and appoints
Agent (and all officers, employees or agents designated by Agent), so long
as any Default or Event of Default has occurred and is continuing or the
anticipated insurance proceeds exceed $1,000,000, as such Credit Party's
true and lawful agent and attorney-in-fact for the purpose of making,
settling and adjusting claims under any all-risk property policy of
insurance, endorsing the name of such Credit Party on any check or other
item of payment for the proceeds of such all-risk property policy of
insurance and for making all determinations and decisions with respect to
such all-risk property policy of insurance. Agent shall have no duty to
exercise any rights or powers granted to it pursuant to the foregoing
power-of-attorney.
(g) Borrower Representative shall promptly notify Agent of any loss,
damage, or destruction to the Collateral in the amount of $250,000 or
more, whether or not covered by insurance. After deducting from such
proceeds (i) the expenses incurred by Agent in the collection or handling
thereof, and (ii) amounts required to be paid to creditors (other than
Lenders) having Permitted Encumbrances, Agent may, at its option, apply
such proceeds to the reduction of the Obligations in accordance with
SECTION 1.3(d) or permit or require the applicable Credit Party to use
such money, or any part thereof, to replace, repair, restore or rebuild
the Collateral in a diligent and expeditious manner with materials and
workmanship of substantially the same quality as existed before the loss,
damage or destruction. Notwithstanding the foregoing, if the casualty
giving rise to such insurance proceeds could not reasonably be expected to
have a Material Adverse Effect and such insurance proceeds do not exceed
$1,000,000 in the aggregate, Agent shall permit the applicable Credit
Party to replace, restore, repair or rebuild the Collateral; provided,
that if such Credit Party shall not
Credit Agreement (Omni)
have completed or entered into binding agreements to complete such
replacement, restoration, repair or rebuilding within 180 days of such
casualty, Agent may apply such insurance proceeds to the Obligations in
accordance with SECTION 1.3(d); provided further, that in the case of
insurance proceeds pertaining to any Credit Party that is not a Borrower,
such insurance proceeds shall be applied ratably to all of the Loans owing
by each Borrower. All insurance proceeds made available to any Credit
Party to replace, repair, restore or rebuild Collateral shall be deposited
in a cash collateral account. Thereafter, such funds shall be made
available to the relevant Borrower or other Credit Party to provide funds
to replace, repair, restore or rebuild the Collateral as follows: (i)
Borrower Representative shall request a release from the cash collateral
account be made to such Borrower or other Credit Party in the amount
requested to be released; and (ii) so long as the conditions set forth in
SECTION 2.2 have been met, Agent shall release funds from the cash
collateral account. To the extent not used to replace, repair, restore or
rebuild the Collateral as provided above (including within the time period
specified above), such insurance proceeds shall be applied in accordance
with SECTION 1.3(d). In addition, if an Event of Default shall have
occurred and be continuing at any time at which there is cash in the cash
collateral account as contemplated above, such cash may be immediately
applied in accordance with SECTION 1.3(d) and shall no longer be available
to Borrowers or any other Credit Parties for the purposes contemplated
above.
(h) Upon request, Credit Parties shall furnish Agent with copies of
all insurance policies, binders and cover notes or other evidence of such
insurance. Notwithstanding anything to the contrary herein, no provision
of this Agreement shall impose on Agent any duty or obligation to verify
the existence or adequacy of the insurance coverage maintained by Credit
Parties, nor shall Agent be responsible for any representations or
warranties made by or on behalf of Credit Parties to any insurance broker,
company or underwriter.
5.5 Compliance with Laws. Each Credit Party shall comply with all federal,
state, local and foreign laws and regulations applicable to it, including those
relating to ERISA, labor laws, Federal Aviation Act Laws, and Environmental Laws
and Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6 Supplemental Disclosure. From time to time as may be reasonably
requested by Agent (which request will not be made more frequently than once
each year absent the occurrence and continuance of an Event of Default) or at
Credit Parties' election, the Credit Parties shall supplement each Disclosure
Schedule hereto, or any representation herein or in any other Loan Document,
with respect to any matter hereafter arising that, if existing or occurring at
the date of this Agreement, would have been required to be set forth or
described in such Disclosure Schedule or as an exception to such representation
or that is necessary to correct any information in such Disclosure Schedule or
representation which has been rendered inaccurate thereby (and, in the case of
any supplements to any Disclosure Schedule, such Disclosure Schedule shall be
appropriately marked to show the changes made therein); provided, that (a) no
such supplement to any such Disclosure Schedule or representation shall amend,
supplement or otherwise modify any Disclosure Schedule or representation, or be
or be deemed a waiver of any Default or Event of Default resulting from the
matters disclosed therein, except as consented to by Agent and Requisite Lenders
in writing, and (b) no supplement shall be required or permitted as to
representations and warranties that relate solely to the Closing Date.
Credit Agreement (Omni)
5.7 Intellectual Property. Each Credit Party will conduct its business and
affairs without infringement of or interference with any Intellectual Property
of any other Person in any material respect and shall comply in all material
respects with the terms of its Licenses.
5.8 Environmental Matters. Each Credit Party shall and shall cause each
Person within its control to:
(a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other
than noncompliance that could not reasonably be expected to have a
Material Adverse Effect;
(b) implement any and all investigation, remediation, removal and
response actions that are appropriate or necessary to maintain the value
and marketability of the Real Estate or to otherwise comply with
Environmental Laws and Environmental Permits pertaining to the presence,
generation, treatment, storage, use, disposal, transportation or Release
of any Hazardous Material on, at, in, under, above, to, from or about any
of its Real Estate in all material respects;
(c) notify Agent promptly after such Credit Party becomes aware of
any violation of Environmental Laws or Environmental Permits or any
Release on, at, in, under, above, to, from or about any Real Estate that
is reasonably likely to result in Environmental Liabilities in excess of
$100,000;
(d) promptly forward to Agent a copy of any order, notice, request
for information or any communication or report received by such Credit
Party in connection with any such violation or Release or any other matter
relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess of
$100,000, in each case whether or not the Environmental Protection Agency
or any Governmental Authority has taken or threatened any action in
connection with any such violation, Release or other matter. If Agent at
any time has a reasonable basis to believe that there may be a violation
of any Environmental Laws or Environmental Permits by any Credit Party or
any Environmental Liability arising thereunder, or a Release of Hazardous
Materials on, at, in, under, above, to, from or about any of its Real
Estate, that, in each case, could reasonably be expected to have a
Material Adverse Effect, then each Credit Party shall, upon Agent's
written request:
(i) cause the performance of such environmental audits
including subsurface sampling of soil and groundwater, and
preparation of such environmental reports, at Borrowers' expense, as
Agent may from time to time reasonably request, which shall be
conducted by reputable environmental consulting firms reasonably
acceptable to Agent and shall be in form and substance reasonably
acceptable to Agent, and
(ii) permit Agent or its representatives to have access to all
Real Estate for the purpose of conducting such environmental audits
and testing as Agent deems appropriate, including subsurface
sampling of soil and groundwater. Borrowers shall reimburse Agent
for the costs of such audits and tests and the same will constitute
a part of the Obligations secured hereunder.
(e) promptly implement any recommendations in the Environ Report;
Credit Agreement (Omni)
(f) promptly establish, and at all times after the Closing Date
maintain, a management system for environmental, health and safety
equivalent to ISO 14001, and promptly provide Agent with all periodic
management and compliance audits prepared thereunder.
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee Letters and Real
Estate Purchases. Each Credit Party shall use commercially reasonable efforts to
obtain a landlord's agreement, mortgagee agreement or bailee letter, as
applicable, from the lessor of each leased property, mortgagee of owned property
or bailee with respect to any warehouse, processor or converter facility or
other location where Collateral is stored or located, which agreement or letter
shall contain a waiver or subordination of all Liens or claims that the
landlord, mortgagee or bailee may assert against the Collateral at that
location, and shall otherwise be reasonably satisfactory in form and substance
to Agent. With respect to such locations or warehouse space leased or owned as
of the Closing Date and thereafter, if Agent has not received a landlord or
mortgagee agreement or bailee letter as of the Closing Date (or, if later, as of
the date such location is acquired or leased), any Borrower's Eligible Aviation
Equipment and Eligible Seismic and Environmental Equipment at that location
shall, in Agent's discretion, be excluded from consideration for purposes of
calculating such Borrower's Borrowing Base or be subject to such Reserves as may
be established by Agent in its reasonable credit judgment. After the Closing
Date, no real property or warehouse space shall be leased by any Credit Party
and no Inventory shall be shipped to a processor or converter under arrangements
established after the Closing Date without the prior written consent of Agent
(which consent, in Agent's discretion, may be conditioned upon the exclusion of
any Borrower's Eligible Aviation Equipment and Eligible Seismic and
Environmental Equipment at that location from consideration for purposes of
calculating such Borrower's Borrowing Base or the establishment of Reserves
acceptable to Agent) or, unless and until a reasonably satisfactory landlord
agreement or bailee letter, as appropriate, shall first have been obtained with
respect to such location. Each Credit Party shall timely and fully pay and
perform its obligations under all leases and other agreements with respect to
each leased location or public warehouse where any Collateral is or may be
located. To the extent otherwise permitted hereunder, if any Credit Party
proposes to acquire a fee ownership interest in Real Estate after the Closing
Date, then such Credit Party shall first provide to Agent a mortgage or deed of
trust granting Agent a first priority Lien on such Real Estate, together with
environmental audits, mortgage title insurance commitment, real property survey,
local counsel opinion(s), and, if required by Agent, supplemental casualty
insurance, and such other documents, instruments or agreements reasonably
requested by Agent, in each case, in form and substance reasonably satisfactory
to Agent.
5.10 Obtaining of Permits, Etc. Each Credit Party shall obtain, maintain
and preserve, and take all necessary action to timely renew, all permits,
licenses, FAA Certificates, authorizations, approvals, entitlements and
accreditations which are necessary or useful in the proper conduct of its
business.
5.11 FAA Matters; Citizenship. Each Credit Party that (i) operates or owns
any Aircraft shall be an "air carrier" within the meaning of the Act and hold a
certificate under 49 U.S.C. Section 41102(a)(1) as currently in effect or as may
be amended or recodified from time to time and all other permits, licenses and
certificates necessary to operate such Aircraft, and (ii) that owns any Aircraft
shall at all times be a United States Citizen as defined in 49 U.S.C. Section
40102(a)(15). Omni shall at all times hold a valid FAA Certificate issued
pursuant to 49 U.S.C. Section 44705. Each Credit Party that at any time operates
or owns any aircraft capable of carrying 10 or more individuals or 6,000 pounds
or more of cargo shall hold an air carrier operating certificate issued pursuant
to
Credit Agreement (Omni)
Chapter 447 of Title 49. Each Credit Party shall use, operate, maintain and
store all Aircraft, and every part thereof, carefully and in accordance with
prudent industry practice and all applicable laws, rules, regulations and orders
(including Part 135 of the Federal Aviation Regulations and all other applicable
Federal Aviation Act Laws).
5.12 Efforts With Respect to Permitted Term B Loan Facility. Until the
earlier of the time at which the Permitted Term B Loan Facility has closed and
December 31, 2005, Omni shall (i) provide to Agent prompt assistance in the
preparation of an information memorandum in connection with Agent's syndication
of such facility, (ii) use commercially reasonable efforts to obtain proposals
from potential lenders in connection therewith, and (iii) utilize senior
management of Omni to participate in meetings and conference calls with such
lenders at such times and places as Agent may reasonably request, and Agent
shall be satisfied with all such efforts in its sole discretion.
5.13 Explosives. The Credit Parties shall (i) cause all explosives used by
any Credit Party to be stored, maintained and used in compliance with all
applicable laws and in a safe and secure manner (it being understood that in no
event shall any such explosives be permanently or regularly stored or maintained
at or on any of the Real Estate), and (ii) cause the adoption and maintenance of
policies and procedures satisfactory to Agent in its sole discretion with
respect to such storage, maintenance and use of explosives.
5.14 Revolving Credit Facility. Credit Parties shall at all times maintain
in full force and effect the Revolver Credit Agreement (or a similar revolving
credit facility in a like amount and on terms no less favorable to Credit
Parties).
5.15 Casualty Aircraft Proceeds. The Credit Parties shall promptly upon
receipt of insurance proceeds arising from the Casualty Aircraft having tail
number N976AA, use such proceeds to repay the Indebtedness of Applied Financial,
L.L.C. that is secured by a Permitted Encumbrance on such Casualty Aircraft
until such Indebtedness has been paid in full.
5.16 Additional Proceeds of Preferred Stock Transaction. On or before the
100th day after the Closing Date, the aggregate amount of gross cash proceeds
from the Preferred Stock Transaction shall be no less than $5,000,000. To the
extent that any portion of the Preferred Stock Transaction, including the
issuance of preferred stock thereunder, occurs after the Closing Date, such
transaction and issuance shall be in full compliance with all applicable state
and federal laws concerning the issuance of securities and all applicable rules
and regulations of any exchange on which any Stock of Omni is traded.
5.17 Further Assurances. Each Credit Party executing this Agreement agrees
that it shall and shall cause each other Credit Party to, at such Credit Party's
expense and upon the reasonable request of Agent, duly execute and deliver, or
cause to be duly executed and delivered, to Agent such further instruments and
do and cause to be done such further acts as may be necessary or proper in the
reasonable opinion of Agent to carry out more effectively the provisions and
purposes of this Agreement and each Loan Document.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally agrees as
to all Credit Parties that from and after the date hereof until the Termination
Date:
6.1 Mergers, Subsidiaries, Etc. No Credit Party shall directly or
indirectly, by operation of law or otherwise, (a) form or acquire any
Subsidiary, or (b) merge with, consolidate with, acquire all or substantially
all of the assets or Stock of, or otherwise combine with or acquire, any Person
Credit Agreement (Omni)
(except that (i) any Credit Party may merge with any other Credit Party provided
that (A) a Borrower shall be the survivor of any merger between a Borrower and a
non-Borrower Credit Party, and (B) Borrower Representative shall be the survivor
of any merger to which it is a party, and (ii) any Inactive Subsidiary may
dissolve, liquidate or wind up its affairs at any time so long as the
Indebtedness and other obligations of such Person does not become a liability of
any Credit Party). Notwithstanding the foregoing, Omni may acquire all of the
issued and outstanding membership interests of the Acquisition Target pursuant
to the Permitted Acquisition.
6.2 Investments; Loans and Advances. Except as otherwise expressly
permitted by this SECTION 6, no Credit Party shall make or permit to exist any
investment in, or make, accrue or permit to exist loans or advances of money to,
any Person, through the direct or indirect lending of money, holding of
securities or otherwise, except that:
(a) Borrowers may hold investments comprised of notes payable, or
stock or other securities issued by Account Debtors to any Borrower
pursuant to negotiated agreements with respect to settlement of such
Account Debtor's Accounts in the ordinary course of business consistent
with past priorities;
(b) each Credit Party may maintain its existing investments in its
Subsidiaries as of the Closing Date; and
(c) so long as no Default or Event of Default has occurred and is
continuing, Borrowers may make investments, subject to Control Letters in
favor of Agent for the benefit of Lenders or otherwise subject to a
perfected security interest in favor of Agent for the benefit of Lenders,
in an amount of no more than $1,000,000.00 in the aggregate as of any time
of determination, in
(i) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency thereof
maturing within one year from the date of acquisition thereof;
(ii) commercial paper maturing no more than one year from the
date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Group or Xxxxx'x
Investors Service, Inc.;
(iii) certificates of deposit maturing no more than one year
from the date of creation thereof issued by commercial banks
incorporated under the laws of the United States of America, each
having combined capital, surplus and undivided profits of not less
than $300,000,000 and having a senior unsecured rating of "A" or
better by a nationally recognized rating agency (an "A Rated Bank");
(iv) time deposits maturing no more than thirty (30) days from
the date of creation thereof with A Rated Banks; and
(v) mutual funds that invest solely in one or more of the
investments described in CLAUSES (i) through (iv) above.
(d) Omni Properties may hold the Pledged Trussco Note Interest;
provided that it shall take no action to enforce its rights or remedies
thereunder or collect payment thereof.
6.3 Indebtedness.
(a) No Credit Party shall create, incur, assume or permit to exist
any Indebtedness, except (without duplication):
Credit Agreement (Omni)
(i) Indebtedness secured by purchase money security interests
and Capital Leases permitted in SECTION 6.7(c);
(ii) the Term A Loan and the other Obligations;
(iii) unfunded pension fund and other employee benefit plan
obligations and liabilities to the extent they are permitted to
remain unfunded under applicable law;
(iv) existing Indebtedness described in DISCLOSURE SCHEDULE
6.3, including, to the extent expressly identified therein, any
Permitted Vehicle and Rolling Stock Indebtedness and Senior Mortgage
Indebtedness, and refinancings thereof or amendments or
modifications thereto that do not have the effect of increasing the
principal amount thereof (other than, with respect to Permitted
Vehicle and Rolling Stock Indebtedness, increases that do not result
in the aggregate amount of such Indebtedness exceeding the maximum
amount of such Indebtedness permitted under the definition of
Permitted Vehicle and Rolling Stock Indebtedness) or changing the
amortization thereof (other than to extend the same) and that are
otherwise on terms and conditions no less favorable to any Credit
Party, Agent or any Lender, as determined by Agent, than the terms
of the Indebtedness being refinanced, amended or modified;
(v) Indebtedness under interest rate hedging agreements or
arrangements designed to provide protection against fluctuations in
interest rates, on terms, for periods and with counterparties
acceptable to Agent;
(vi) Indebtedness specifically permitted in connection with
the Permitted Acquisition;
(vii) Guaranteed Indebtedness permitted under SECTION 6.6;
(viii) Indebtedness owed under the Revolver Credit Agreement
in an aggregate principal amount not to exceed $15,000,000;
(ix) Any Indebtedness that may arise at any time under the
Permitted Term B Loan Facility in an aggregate principal amount not
to exceed $35,000,000;
(x) Indebtedness consisting of intercompany loans and advances
made by any Borrower to any other Borrower; provided, that: (A) each
Borrower shall have executed and delivered to each other Borrower,
on the Closing Date, a demand note (collectively, the "Intercompany
Notes") to evidence any such intercompany Indebtedness owing at any
time by such Borrower to such other Borrowers, which Intercompany
Notes shall be in form and substance reasonably satisfactory to
Agent and shall be pledged and delivered to Agent pursuant to the
Pledge Agreement as additional collateral security for the
Obligations; (B) each Borrower shall record all intercompany
transactions on its books and records in a manner reasonably
satisfactory to Agent; (C) the obligations of each Borrower under
any such Intercompany Notes shall be subordinated to the Obligations
of such Borrower hereunder in a manner reasonably satisfactory to
Agent; (D) at the time any such intercompany loan or advance is made
by any Borrower to any other Borrower and after giving effect
thereto, each such Borrower shall be Solvent; (E) no Default or
Event of Default would occur and be continuing after giving effect
to any such
Credit Agreement (Omni)
proposed intercompany loan; and (F) the aggregate balance of all
such intercompany loans owing (x) to any Borrower pursuant to this
SECTION 6.3(a)(x) shall not exceed $10,000,000 at any time and (y)
by any Borrower pursuant to this SECTION 6.3(a)(x) shall not exceed
$10,000,000 at any time;
(xi) Indebtedness under the New Subordinated Notes;
(xii) Indebtedness under Trussco Note 1 and Trussco Note 2,
and the Trussco Settlement Obligations; and
(xiii) After consummation of the Permitted Acquisition (if
consummated, Indebtedness under the Acquisition Seller Note.
Without limiting the foregoing SECTION 6.3(a) and notwithstanding anything
to the contrary therein or in this Agreement, no Credit Party shall cause
the Indebtedness of the Credit Parties to exceed the "Specified Debt
Amount" under and as defined in the Noteholder Subordination Agreement.
(b) No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any,
interest or other amount payable in respect of any Indebtedness prior to
its scheduled maturity, other than (i) the Obligations; (ii) Indebtedness
secured by a Permitted Encumbrance if the asset securing such Indebtedness
has been sold or otherwise disposed of in accordance with SECTIONS 6.8(b)
or (c); (iii) Indebtedness permitted by SECTION 6.3(a)(iv) upon any
refinancing thereof in accordance with SECTION 6.3(a)(iv) (excluding any
such Indebtedness that is expressly enumerated in any other clause of
Section 6.3(a)); (iv) other Indebtedness (excluding Subordinated Debt) not
in excess of $250,000; (v) as otherwise permitted in SECTION 6.13; or (vi)
Indebtedness under the Revolver Credit Agreement to the extent the payment
thereof is not made in contravention of the Revolver Intercreditor
Agreement.
6.4 Employee Loans and Affiliate Transactions.
(a) No Credit Party shall enter into or be a party to any
transaction with any other Credit Party or any Affiliate thereof except in
the ordinary course of and pursuant to the reasonable requirements of such
Credit Party's business and upon fair and reasonable terms that are no
less favorable to such Credit Party than would be obtained in a comparable
arm's length transaction with a Person not an Affiliate of such Credit
Party. All such transactions existing as of the date hereof are described
in DISCLOSURE SCHEDULE 6.4(a). Notwithstanding and without limiting the
foregoing, the Preferred Stock Transaction shall be permitted.
(b) No Credit Party shall enter into any lending or borrowing
transaction with any employees of any Credit Party, except loans to its
respective employees in the ordinary course of business consistent with
past practices for travel and entertainment expenses, relocation costs and
similar purposes up to a maximum of $50,000 to any employee and up to a
maximum of $250,000 in the aggregate at any one time outstanding.
6.5 Capital Structure and Business. If all or part of a Credit Party's
Stock is pledged to Agent, that Credit Party shall not issue additional Stock.
No Credit Party shall amend its charter or bylaws in a manner that would
adversely affect Agent or Lenders or such Credit Party's duty or ability to
repay the Obligations. No Credit Party shall engage in any business other than
the businesses currently engaged in by it.
Credit Agreement (Omni)
6.6 Guaranteed Indebtedness. No Credit Party shall create, incur, assume
or permit to exist any Guaranteed Indebtedness except (a) by endorsement of
instruments or items of payment for deposit to the general account of any Credit
Party, and (b) for Guaranteed Indebtedness incurred for the benefit of any other
Credit Party if the primary obligation is expressly permitted by this Agreement.
6.7 Liens. No Credit Party shall create, incur, assume or permit to exist
any Lien on or with respect to its properties or assets (whether now owned or
hereafter acquired) except for (a) Permitted Encumbrances; (b) Liens in
existence on the date hereof and summarized on DISCLOSURE SCHEDULE 6.7 securing
the Indebtedness described on DISCLOSURE SCHEDULE 6.3 and permitted
refinancings, extensions and renewals thereof, including extensions or renewals
of any such Liens; provided, that the principal amount of the Indebtedness so
secured is not increased and the Lien does not attach to any other property; and
(c) Liens created after the date hereof by conditional sale or other title
retention agreements (including Capital Leases) or in connection with purchase
money Indebtedness with respect to Equipment and Fixtures acquired by any Credit
Party in the ordinary course of business, involving the incurrence of an
aggregate amount of purchase money Indebtedness and Capital Lease Obligations of
not more than $3,500,000 outstanding at any one time for all such Liens
(provided, that such Liens attach only to the assets subject to such purchase
money debt and such Indebtedness is incurred within 20 days following such
purchase and does not exceed 100% of the purchase price of the subject assets).
In addition, no Credit Party shall become a party to any agreement, note,
indenture or instrument, or take any other action, that would prohibit the
creation of a Lien on any of its properties or other assets in favor of Agent,
on behalf of itself and Lenders, as additional collateral for the Obligations,
except operating leases, Capital Leases or Licenses which prohibit Liens upon
the assets that are subject thereto.
6.8 Sale of Stock and Assets. No Credit Party shall sell, transfer,
convey, assign or otherwise dispose of any of its properties or other assets,
including the Stock of any of its Subsidiaries (whether in a public or a private
offering or otherwise) or any of its Accounts, other than (a) the sale of
Inventory in the ordinary course of business, and (b) the sale or other
disposition by a Credit Party of Equipment, Fixtures or Real Estate that are
obsolete or no longer used or useful in such Credit Party's business and having
a book value not exceeding $100,000 in the aggregate in any Fiscal Year; (c) the
sale or other disposition of other Equipment and Fixtures having a book value
not exceeding $100,000 in the aggregate in any Fiscal Year; and (d) the sale of
the Stock of any of the Inactive Subsidiaries.
6.9 ERISA. No Credit Party shall, or shall cause or permit any ERISA
Affiliate to, cause or permit to occur (i) an event that could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or (ii) an ERISA Event to the extent such ERISA Event would reasonably be
expected to result in taxes, penalties and other liabilities in an aggregate
amount in excess of $250,000 in the aggregate.
6.10 Financial Covenants. Borrowers shall not breach or fail to comply
with any of the Financial Covenants.
6.11 Hazardous Materials; Explosives. No Credit Party shall cause or
permit a Release of any Hazardous Material on, at, in, under, above, to, from or
about any of the Real Estate where such Release would (a) violate in any
respect, or form the basis for any Environmental Liabilities under, any
Environmental Laws or Environmental Permits or (b) otherwise adversely impact
the value or marketability of any of the Real Estate or any of the Collateral,
other than such violations or
Credit Agreement (Omni)
Environmental Liabilities that could not reasonably be expected to have a
Material Adverse Effect. No Credit Party shall own or hold title to any
explosives.
6.12 Sale-Leasebacks. No Credit Party shall engage in any sale-leaseback,
synthetic lease or similar transaction involving any of its assets.
6.13 Restricted Payments. No Credit Party shall make any Restricted
Payment, except
(a) intercompany loans and advances between Borrowers to the extent
permitted by SECTION 6.3,
(b) dividends and distributions by Subsidiaries of any Borrower paid
to such Borrower,
(c) employee loans permitted under SECTION 6.4(b),
(d) payments of principal and interest of Intercompany Notes issued
in accordance with SECTION 6.3(a)(x);
(e) dividends in the form of common Stock of Omni;
(f) payments in an aggregate amount not to exceed $50,000 for the
repurchase, retirement or surrender of the preferred Stock described in
DISCLOSURE SCHEDULE 6.13;
(g) (i) scheduled payments of interest and principal on Trussco Note
1 and Trussco Note 2 (other than on account of the Pledged Trussco Note
Interest); (ii) the payment of the Trussco Subordinated Obligations to the
extent permitted under the Trussco Subordination Agreement; (iii)
scheduled payments of interest and principal on the New Subordinated Notes
to the extent that such payments are permitted under the Noteholder
Subordination Agreement (including accelerated principal to the extent
that the acceleration of the New Subordinated Notes is permitted under the
Noteholder Subordination Agreement), and "Permitted Distributions" under
and as defined in the Noteholder Subordination Agreement; (iv) repayment
of the entire principal balance of the New Subordinated Notes from the
proceeds of a funding under the Permitted Term B Loan Facility; and (v)
scheduled payments of interest on the Permitted Term B Loan Facility to
the extent that such payments are permitted under the Term B Subordination
Agreement.
provided, that no Event of Default has occurred and is continuing or would
result after giving effect to any Restricted Payment pursuant to CLAUSES (e) or
(f) above.
6.14 Change of Corporate Name, State of Incorporation or Location; Change
of Fiscal Year. No Credit Party shall (a) change its name as it appears in
official filings in the state of its incorporation or other organization, (b)
change its chief executive office, principal place of business, corporate
offices or warehouses or locations at which Collateral (other than Aircraft) is
held or stored, or the location of its records concerning the Collateral, (c)
change the type of entity that it is, (d) change its organization identification
number, if any, issued by its state of incorporation or other organization, or
(e) change its state of incorporation or organization or incorporate or organize
in any additional jurisdictions, in each case without at least 30 days prior
written notice to Agent and after Agent's written acknowledgment that any
reasonable action requested by Agent in connection therewith, including to
continue the perfection of any Liens in favor of Agent, on behalf of Lenders, in
any Collateral, has been completed or taken, and provided that any such new
location shall be in the continental United States. No Credit Party shall change
its Fiscal Year.
Credit Agreement (Omni)
6.15 No Impairment of Intercompany Transfers. No Credit Party shall
directly or indirectly enter into or become bound by any agreement, instrument,
indenture or other obligation (other than this Agreement and the other Loan
Documents) that could directly or indirectly restrict, prohibit or require the
consent of any Person with respect to the payment of dividends or distributions
or the making or repayment of intercompany loans by a Subsidiary of any Borrower
to any Borrower or between Borrowers.
6.16 Changes Relating to Subordinated Debt; Material Contracts.
(a) No Credit Party shall change or amend the terms of any
Subordinated Debt (or any indenture or agreement in connection therewith)
(other than, with respect to the Permitted Term B Loan Facility, as
permitted under the Term B Subordination Agreement) if the effect of such
amendment is to: (a) increase the interest rate on such Subordinated Debt;
(b) change the dates upon which payments of principal or interest are due
on such Subordinated Debt other than to extend such dates; (c) change any
default or event of default other than to delete or make less restrictive
any default provision therein, or add any covenant with respect to such
Subordinated Debt; (d) change the redemption or prepayment provisions of
such Subordinated Debt other than to extend the dates therefor or to
reduce the premiums payable in connection therewith; (e) grant any
security or collateral to secure payment of such Subordinated Debt; or (f)
change or amend any other term if such change or amendment would
materially increase the obligations of the Credit Party thereunder or
confer additional material rights on the holder of such Subordinated Debt
in a manner adverse to any Credit Party, Agent or any Lender.
(b) No Credit Party shall change or amend the terms of any contract
or agreement to which such Credit Party is a party involving aggregate
consideration payable to or by such Credit Party of $200,000 or more
(other than purchase orders in the ordinary course of the business of such
Credit Party and other than contracts that by their terms may be
terminated by such Credit Party in the ordinary course of its business
upon less than 60 days notice without penalty or premium).
(c) No Credit Party shall change, amend, supplement, alter, add to
or modify any provision of the Revolver Credit Agreement or any other
Revolver Documents (i) so as to make any such agreement more onerous or
more restrictive to Credit Parties than they are as of the Closing Date or
(ii) if the effect thereof would be materially adverse to Credit Parties
or any of them.
6.17 Anti-Terrorism Laws. No Credit Party, nor any of its Affiliate or
agents, shall:
(a) conduct any business or engage in any transaction or dealing
with any Blocked Person, including the making or receiving any
contribution of funds, goods or services to or for the benefit of any
Blocked Person;
(b) deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order
No. 13224; or
(c) engage in or conspire to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in the Executive Order No.
13224, the USA Patriot Act or any other Anti-Terrorism Law.
Credit Agreement (Omni)
Credit Parties shall deliver to Lenders any certification or other
evidence requested from time to time by any Lender in its sole discretion,
confirming Credit Parties' compliance with this SECTION 6.17.
6.18 Inactive Subsidiaries. No Credit Party shall permit any of the
Inactive Subsidiaries to (a) incur any Indebtedness or other liabilities, (b)
conduct any operations or business, or (c) own or acquire any assets or
properties.
SECTION 7. TERM
7.1 Termination. The financing arrangements contemplated hereby shall be
in effect until the Maturity Date, and the Term A Loan and all other Obligations
shall be automatically due and payable in full on such date and the Term A Loan
Commitment, if any, that remains on such date shall automatically terminate.
7.2 Survival of Obligations Upon Termination of Financing Arrangements.
Except as otherwise expressly provided for in the Loan Documents, no termination
or cancellation (regardless of cause or procedure) of any financing arrangement
under this Agreement shall in any way affect or impair the obligations, duties
and liabilities of the Credit Parties or the rights of Agent and Lenders
relating to any unpaid portion of the Term A Loan or any other Obligations, due
or not due, liquidated, contingent or unliquidated, or any transaction or event
occurring prior to such termination, or any transaction or event, the
performance of which is required after the Maturity Date. Except as otherwise
expressly provided herein or in any other Loan Document, all undertakings,
agreements, covenants, warranties and representations of or binding upon the
Credit Parties, and all rights of Agent and each Lender, all as contained in the
Loan Documents, shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the Termination Date; provided, that the provisions of SECTION 11, the payment
obligations under SECTIONS 1.15 and 1.16, and the indemnities contained in the
Loan Documents shall survive the Termination Date.
SECTION 8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 Events of Default.
The occurrence of any one or more of the following events (regardless of
the reason therefor) shall constitute an "Event of Default" hereunder:
(a) Any Borrower (i) fails to make any payment of principal of, or
interest on, or Fees owing in respect of, the Term A Loan or any of the
other Obligations when due and payable, or (ii) fails to pay or reimburse
Agent or Lenders for any expense reimbursable hereunder or under any other
Loan Document within ten days following Agent's demand for such
reimbursement or payment of expenses.
(b) Any Credit Party fails or neglects to perform, keep or observe
any of the provisions of SECTIONS 1.4, 1.8, 5.4(a), 5.4(b), 5.4(d),
5.4(e), 5.11, 5.13, 5.15, 5.16 or 6, or any of the provisions set forth in
ANNEX G.
(c) Any Borrower fails or neglects to perform, keep or observe any
of the provisions of SECTION 4.1 or any provisions set forth in ANNEXES E
or F, respectively, and the same shall remain unremedied for three
Business Days or more.
(d) Any Credit Party fails or neglects to perform, keep or observe
any other provision of this Agreement or of any of the other Loan
Documents (other than any provision
Credit Agreement (Omni)
embodied in or covered by any other clause of this SECTION 8.1) and the
same shall remain unremedied for 15 days or more.
(e) (i) an "Event of Default" (as defined in the Revolver Credit
Agreement) occurs under the Revolver Credit Agreement, or the commitments
provided to Borrowers by Revolver under the Revolver Credit Agreement are
at any time less than the Minimum Revolver Commitment Amount or any
Borrower or other Credit Party give notice of the termination of the
Revolver Credit Agreement, (ii) an Event of Default (as defined in the
Term B Credit Agreement) occurs under the Term B Credit Agreement, (iii) a
default or breach occurs with respect to any Subordinated Debt or under
Trussco Note 1 or Trussco Note 2, or (iv) a default or breach occurs under
any other agreement, document or instrument to which any Credit Party is a
party that is not cured within any applicable grace period therefor, and
such default or breach (A) involves the failure to make any payment when
due in respect of any Indebtedness or Guaranteed Indebtedness (other than
the Obligations or those items described in the preceding CLAUSES
(i)-(iii)) of any Credit Party in excess of $500,000 in the aggregate
(including (1) undrawn committed or available amounts and (2) amounts
owing to all creditors under any combined or syndicated credit
arrangements), or (B) causes, or permits any holder of such Indebtedness
or Guaranteed Indebtedness or a trustee to cause, Indebtedness or
Guaranteed Indebtedness or a portion thereof in excess of $500,000 in the
aggregate to become due prior to its stated maturity or prior to its
regularly scheduled dates of payment, or cash collateral in respect
thereof to be demanded, in each case, regardless of whether such default
is waived, or such right is exercised, by such holder or trustee.
(f) Any representation or warranty herein or in any Loan Document or
in any written statement, Borrowing Base Certificate, report, financial
statement or certificate made or delivered to Agent or any Lender by any
Credit Party is untrue or incorrect in any material respect as of the date
when made or deemed made.
(g) Assets of any Credit Party with a fair market value of
$2,500,000 or more are attached, seized, levied upon or subjected to a
writ or distress warrant, or come within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors of any Credit
Party and such condition continues for 30 days or more.
(h) A case or proceeding is commenced against any Credit Party
seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code, or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) appointing a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar official) for
such Credit Party or for any substantial part of any such Credit Party's
assets, or (iii) ordering the winding-up or liquidation of the affairs of
such Credit Party, and such case or proceeding shall remain undismissed or
unstayed for 60 days or more or a decree or order granting the relief
sought in such case or proceeding is granted by a court of competent
jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief under the
Bankruptcy Code, or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consents to or fails to contest in a
timely and appropriate manner the institution of proceedings thereunder or
the filing of any such petition or the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for such Credit Party or for any substantial part of
any such Credit Party's assets, (iii) makes an assignment for the benefit
of creditors, (iv) takes any action in furtherance of any of the
Credit Agreement (Omni)
foregoing; or (v) admits in writing its inability to, or is generally
unable to, pay its debts as such debts become due.
(j) A final judgment or judgments for the payment of money in excess
of $100,000 in the aggregate at any time are outstanding against one or
more of the Credit Parties (which judgments are not covered by insurance
policies as to which liability has been accepted by the insurance
carrier), and the same are not, within 30 days after the entry thereof,
discharged or execution thereof stayed or bonded pending appeal, or such
judgments are not discharged prior to the expiration of any such stay.
(k) Any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms
(or any Credit Party shall challenge the enforceability of any Loan
Document or shall assert in writing, or engage in any action or inaction
based on any such assertion, that any provision of any of the Loan
Documents has ceased to be or otherwise is not valid, binding and
enforceable in accordance with its terms), or any Lien created under any
Loan Document ceases to be a valid and perfected first priority Lien
(except as otherwise permitted herein or therein) in any of the Collateral
purported to be covered thereby.
(l) Any Change of Control occurs.
(m) Any event occurs, whether or not insured or insurable, as a
result of which revenue-producing activities cease or are substantially
curtailed at facilities of Borrowers generating more than 25% of
Borrowers' consolidated revenues for the Fiscal Year preceding such event
and such cessation or curtailment continues for more than 30 days.
(n) Borrowers shall receive notice of a rejection of coverage from
their insurers with respect to claims asserted in the Advantage
Litigation.
8.2 Remedies.
(a) If any Event of Default has occurred and is continuing, Agent
may (and at the written request of the Requisite Lenders shall), without
notice, suspend the Term A Loan Commitment with respect to additional
Advances, whereupon any additional Advances shall be made or incurred in
Agent's sole discretion (or in the sole discretion of the Requisite
Lenders, if such suspension occurred at their direction) so long as such
Default or Event of Default is continuing. If any Event of Default has
occurred and is continuing, Agent may (and at the written request of
Requisite Lenders shall), without notice except as otherwise expressly
provided herein, increase the rate of interest applicable to the Term A
Loan to the Default Rate.
(b) If any Event of Default has occurred and is continuing, Agent
may (and at the written request of the Requisite Lenders shall), without
notice: (i) terminate the Term A Loan Commitment; (ii) reduce the Term A
Loan Commitment from time to time; (iii) declare all or any portion of the
Obligations, including all or any portion of the Term A Loan, to be
forthwith due and payable, all without presentment, demand, protest or
further notice of any kind, all of which are expressly waived by Borrowers
and each other Credit Party; or (iv) exercise any rights and remedies
provided to Agent under the Loan Documents or at law or equity, including
all remedies provided under the Code; provided, that upon the occurrence
of an Event of Default specified in SECTIONS 8.1(h) or (i), the Term A
Loan Commitment shall be immediately terminated and all of the Obligations
shall become immediately due and payable without declaration, notice or
demand by any Person.
Credit Agreement (Omni)
8.3 Waivers by Credit Parties. Except as otherwise provided for in this
Agreement or by applicable law, each Credit Party waives (including for purposes
of SECTION 12): (a) 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 Agent on which any
Credit Party may in any way be liable, and hereby ratifies and confirms whatever
Agent may do in this regard, (b) all rights to notice and a hearing prior to
Agent's taking possession or control of, or to Agent's replevy, attachment or
levy upon, the Collateral or any bond or security that might be required by any
court prior to allowing Agent to exercise any of its remedies, and (c) the
benefit of all valuation, appraisal, marshaling and exemption laws.
SECTION 9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations.
(a) Subject to the terms of this SECTION 9.1, any Lender may make an
assignment to a Qualified Assignee of, or sell participations in, at any
time or times, the Loan Documents, the Term A Loan, and any Term A Loan
Commitment or any portion thereof or interest therein, including any
Lender's rights, title, interests, remedies, powers or duties thereunder.
Any assignment by a Lender shall: (i) require the consent of Agent (which
consent shall not be unreasonably withheld or delayed with respect to a
Qualified Assignee) and the execution of an assignment agreement (an
"Assignment Agreement") substantially in the form attached hereto as
EXHIBIT 9.1(a) and otherwise in form and substance reasonably satisfactory
to, and acknowledged by, Agent; (ii) be conditioned on such assignee
Lender representing to the assigning Lender and Agent that it is
purchasing the Term A Loan to be assigned to it for its own account, for
investment purposes and not with a view to the distribution thereof; (iii)
after giving effect to any such partial assignment, the assignee Lender
shall have a Term A Loan Commitment in an amount at least equal to
$5,000,000 and the assigning Lender shall have retained a Term A Loan
Commitment in an amount at least equal to $5,000,000; and (iv) include a
payment to Agent of an assignment fee of $3,500. In the case of an
assignment by a Lender under this SECTION 9.1, the assignee shall have, to
the extent of such assignment, the same rights, benefits and obligations
as all other Lenders hereunder. The assigning Lender shall be relieved of
its obligations hereunder with respect to its Term A Loan Commitment or
assigned portion thereof from and after the date of such assignment. Each
Borrower hereby acknowledges and agrees that any assignment shall give
rise to a direct obligation of Borrowers to the assignee and that the
assignee shall be considered to be a "Lender". In all instances, each
Lender's liability to make Advances hereunder shall be several and not
joint and shall be limited to such Lender's Pro Rata Share of the Term A
Loan Commitment. In the event Agent or any Lender assigns or otherwise
transfers all or any part of the Obligations, Agent or any such Lender
shall so notify Borrowers and Borrowers shall, upon the request of Agent
or such Lender, execute new Notes in exchange for the Notes, if any, being
assigned. Notwithstanding the foregoing provisions of this SECTION 9.1(a),
any Lender may at any time pledge the Obligations held by it and such
Lender's rights under this Agreement and the other Loan Documents to a
Federal Reserve Bank, and any Lender that is an investment fund may assign
the Obligations held by it and such Lender's rights under this Agreement
and the other Loan Documents to another investment fund managed by the
same investment advisor; provided, that no such pledge to a
Credit Agreement (Omni)
Federal Reserve Bank shall release such Lender from such Lender's
obligations hereunder or under any other Loan Document.
(b) Any participation by a Lender of all or any part of its Term A
Loan Commitment shall be made with the understanding that all amounts
payable by Borrowers hereunder shall be determined as if that Lender had
not sold such participation, and that the holder of any such participation
shall not be entitled to require such Lender to take or omit to take any
action hereunder except actions directly affecting (i) any reduction in
the principal amount of, or interest rate or Fees payable with respect to,
the Term A Loan in which such holder participates, (ii) any extension of
the scheduled amortization of the principal amount of the Term A Loan in
which such holder participates or the final maturity date thereof, and
(iii) any release of all or substantially all of the Collateral (other
than in accordance with the terms of this Agreement, the Collateral
Documents or the other Loan Documents). Solely for purposes of SECTIONS
1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a
participation shall give rise to a direct obligation of Borrowers to the
participant and the participant shall be considered to be a "Lender".
Except as set forth in the preceding sentence no Borrower or Credit Party
shall have any obligation or duty to any participant. Neither Agent nor
any Lender (other than the Lender selling a participation) shall have any
duty to any participant and may continue to deal solely with the Lender
selling a participation as if no such sale had occurred.
(c) Except as expressly provided in this SECTION 9.1, no Lender
shall, as between Borrowers and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in,
all or any part of the Term A Loan, the Notes or other Obligations owed to
such Lender.
(d) Each Credit Party executing this Agreement shall assist any
Lender permitted to sell assignments or participations under this SECTION
9.1 as reasonably required to enable the assigning or selling Lender to
effect any such assignment or participation, including the execution and
delivery of any and all agreements, notes and other documents and
instruments as shall be requested and, if requested by Agent, the
preparation of informational materials for, and the participation of
management in meetings with, potential assignees or participants. Each
Credit Party executing this Agreement shall certify the correctness,
completeness and accuracy of all descriptions of the Credit Parties and
their respective affairs contained in any selling materials provided by
them and all other information provided by them and included in such
materials, except that any Projections delivered by Borrowers shall only
be certified by Borrowers as having been prepared by Borrowers in
compliance with the representations contained in SECTION 3.4(c).
(e) Any Lender may furnish any information concerning Credit Parties
in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided,
that such Lender shall obtain from assignees or participants
confidentiality covenants substantially equivalent to those contained in
SECTION 11.8.
(f) So long as no Event of Default has occurred and is continuing,
no Lender shall assign or sell participations in any portion of its Term A
Loan or Term A Loan Commitment to a potential Lender or participant, if,
as of the date of the proposed assignment or sale, the assignee Lender or
participant would be subject to capital adequacy or
Credit Agreement (Omni)
similar requirements under SECTION 1.16(a), increased costs under SECTION
1.16(b), or withholding taxes in accordance with SECTION 1.15(a).
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender"), may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing by the Granting Lender
to Agent and Borrowers, the option to provide to Borrowers all or any part
of Advances that such Granting Lender would otherwise be obligated to make
to Borrowers pursuant to this Agreement; provided, that (i) nothing herein
shall constitute a commitment by any SPC to make any Advance; and (ii) if
an SPC elects not to exercise such option or otherwise fails to provide
all or any part of any such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The making of
an Advance by an SPC hereunder shall utilize the Term A Loan Commitment of
the Granting Lender to the same extent, and as if such Advance were made
by such Granting Lender. No SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which
shall remain with the Granting Lender). Any SPC may (i) with notice to,
but without the prior written consent of, Borrowers and Agent and without
paying any processing fee therefor assign all or a portion of its
interests in the Term A Loan to the Granting Lender or to any financial
institutions (consented to by Borrowers and Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the
funding or maintenance of the Term A Loan and (ii) disclose on a
confidential basis any non-public information relating to its Term A Loan
to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This SECTION
9.1(g) may not be amended without the prior written consent of each
Granting Lender, all or any of whose Advances are being funded by an SPC
at the time of such amendment. For the avoidance of doubt, the Granting
Lender shall for all purposes, including without limitation, the approval
of any amendment or waiver of any provision of any Loan Document or the
obligation to pay any amount otherwise payable by the Granting Lender
under the Loan Documents, continue to be the Lender of record hereunder.
9.2 Appointment of Agent. GE Capital is hereby appointed to act on behalf
of all Lenders as Agent under this Agreement and the other Loan Documents. The
provisions of this SECTION 9.2 are solely for the benefit of Agent and Lenders
and no Credit Party nor any other Person shall have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement and the other Loan Documents, Agent shall act solely
as an agent of Lenders and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for any
Credit Party or any other Person. Agent shall have no duties or responsibilities
except for those expressly set forth in this Agreement and the other Loan
Documents. The duties of Agent shall be mechanical and administrative in nature
and Agent shall not have, or be deemed to have, by reason of this Agreement, any
other Loan Document or otherwise a fiduciary relationship in respect of any
Lender. Except as expressly set forth in this Agreement and the other Loan
Documents, Agent shall not have any duty to disclose, and shall not be liable
for failure to disclose, any information relating to any Credit Party or any of
their respective Subsidiaries or any Account Debtor that is communicated to or
obtained by GE Capital or any of its Affiliates in any capacity. Neither Agent
nor any of its Affiliates nor any of their respective officers, directors,
employees, agents or representatives shall be liable to any Lender for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document, or in connection herewith or therewith, except for damages caused by
its or their own gross negligence or willful misconduct.
Credit Agreement (Omni)
If Agent shall request instructions from Requisite Lenders or all affected
Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any other Loan Document, then Agent shall be
entitled to refrain from such act or taking such action unless and until Agent
shall have received instructions from Requisite Lenders or all affected Lenders,
as the case may be, and Agent shall not incur liability to any Person by reason
of so refraining. Agent shall be fully justified in failing or refusing to take
any action hereunder or under any other Loan Document (a) if such action would,
in the opinion of Agent, be contrary to law or the terms of this Agreement or
any other Loan Document, (b) if such action would, in the opinion of Agent,
expose Agent to Environmental Liabilities or (c) if Agent shall not first be
indemnified to its satisfaction against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from acting
hereunder or under any other Loan Document in accordance with the instructions
of Requisite Lenders or all affected Lenders, as applicable.
9.3 Agent's Reliance, Etc. Neither Agent nor any of its Affiliates nor any
of their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with this Agreement or the other Loan Documents, except for damages caused by
its or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, Agent: (a) may treat the payee of any Note as the
holder thereof until Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form reasonably satisfactory to Agent; (b)
may consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement or the other Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Credit Party or to
inspect the Collateral (including the books and records) of any Credit Party;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (f) shall incur no liability under or in respect of this
Agreement or the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
9.4 GE Capital and Affiliates. With respect to its Term A Loan Commitment
hereunder, GE Capital shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Lender and may exercise the same as
though it were not Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include GE Capital in its individual capacity. GE
Capital and its Affiliates may lend money to, invest in, and generally engage in
any kind of business with, any Credit Party, any of their Affiliates and any
Person who may do business with or own securities of any Credit Party or any
such Affiliate, all as if GE Capital were not Agent and without any duty to
account therefor to Lenders. GE Capital and its Affiliates may accept fees and
other consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the same to Lenders. If the
Permitted Term B Loan Facility closes, GE Capital may be the agent thereunder
and may be a lender thereunder. Each Lender acknowledges the potential conflict
of interest between GE Capital as a Lender holding
Credit Agreement (Omni)
disproportionate interests in the Loans, GE Capital as agent and a lender under
the Permitted Term B Loan Facility, and GE Capital as Agent.
9.5 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Agent or any other Lender and based on
the Financial Statements referred to in SECTION 3.4(a) and such other documents
and information as it has deemed appropriate, made its own credit and financial
analysis of the Credit Parties and its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Each
Lender acknowledges the potential conflict of interest of each other Lender as a
result of Lenders holding disproportionate interests in the Term A Loan, and
expressly consents to, and waives any claim based upon, such conflict of
interest.
9.6 Indemnification. Lenders agree to indemnify Agent (to the extent not
reimbursed by Credit Parties and without limiting the obligations of Credit
Parties hereunder), ratably according to their respective Pro Rata Shares, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against Agent
in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted to be taken by Agent in connection
therewith; provided, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from Agent's gross negligence or
willful misconduct. Without limiting the foregoing, each Lender agrees to
reimburse Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and each other Loan Document, to the extent that Agent is not
reimbursed for such expenses by Credit Parties.
9.7 Successor Agent. Agent may resign at any time by giving not less than
30 days' prior written notice thereof to Lenders and Borrower Representative.
Upon any such resignation, the Requisite Lenders shall have the right to appoint
a successor Agent. If no successor Agent shall have been so appointed by the
Requisite Lenders and shall have accepted such appointment within 30 days after
the resigning Agent's giving notice of resignation, then the resigning Agent
may, on behalf of Lenders, appoint a successor Agent, which shall be a Lender,
if a Lender is willing to accept such appointment, or otherwise shall be a
commercial bank or financial institution or a subsidiary of a commercial bank or
financial institution if such commercial bank or financial institution is
organized under the laws of the United States of America or of any State thereof
and has a combined capital and surplus of at least $300,000,000. If no successor
Agent has been appointed pursuant to the foregoing, within 30 days after the
date such notice of resignation was given by the resigning Agent, such
resignation shall become effective and the Requisite Lenders shall thereafter
perform all the duties of Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor Agent as provided above. Any successor
Agent appointed by Requisite Lenders hereunder shall be subject to the approval
of Borrower Representative, such approval not to be unreasonably withheld or
delayed; provided, that such approval shall not be required if a Default or an
Event of Default has occurred and is continuing. Upon the acceptance of any
Credit Agreement (Omni)
appointment as Agent hereunder by a successor Agent, such successor Agent shall
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Agent. Upon the earlier of the acceptance of any appointment as
Agent hereunder by a successor Agent or the effective date of the resigning
Agent's resignation, the resigning Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents, except that any
indemnity rights or other rights in favor of such resigning Agent shall
continue. After any resigning Agent's resignation hereunder, the provisions of
this SECTION 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was acting as Agent under this Agreement and the other
Loan Documents.
9.8 Setoff and Sharing of Payments. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, upon the occurrence and during the continuance of any Event of Default
and subject to SECTION 9.9(f), each Lender is hereby authorized at any time or
from time to time, without prior notice to any Credit Party or to any Person
other than Agent, any such notice being hereby expressly waived, to offset and
to appropriate and to apply any and all balances held by it at any of its
offices for the account of any Borrower or Guarantor (regardless of whether such
balances are then due to such Borrower or Guarantor) and any other properties or
assets at any time held or owing by that Lender or that holder to or for the
credit or for the account of any Borrower or Guarantor against and on account of
any of the Obligations that are not paid when due; provided, that the Lender
exercising such offset rights shall give notice thereof to the affected Credit
Party promptly after exercising such rights. Any Lender exercising a right of
setoff or otherwise receiving any payment on account of the Obligations in
excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender's
or holder's Pro Rata Share of the Obligations as would be necessary to cause
such Lender to share the amount so offset or otherwise received with each other
Lender or holder in accordance with their respective Pro Rata Shares (other than
offset rights exercised by any Lender with respect to SECTIONS 1.13, 1.15 or
1.16). Each Credit Party that is a Borrower or Guarantor agrees, to the fullest
extent permitted by law, that (a) any Lender may exercise its right to offset
with respect to amounts in excess of its Pro Rata Share of the Obligations and
may sell participations in such amounts so offset to other Lenders and holders
and (b) any Lender so purchasing a participation in the Term A Loan or other
Obligations held by other Lenders or holders may exercise all rights of offset,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender or holder were a direct holder of the Term A Loan and
the other Obligations in the amount of such participation. Notwithstanding the
foregoing, if all or any portion of the offset amount or payment otherwise
received is thereafter recovered from the Lender that has exercised the right of
offset, the purchase of participations by that Lender shall be rescinded and the
purchase price restored without interest.
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions in
Concert.
(a) Advances; Payments.
(i) Each Lender shall make the amount of such Lender's Pro
Rata Share of any Advance available to Agent in same day funds by
wire transfer to Agent's account as set forth in ANNEX H not later
than 11:00 a.m. (New York time) on the requested Funding Date. After
receipt of such wire transfers (or, in the Agent's sole discretion,
before receipt of such wire transfers), subject to the terms hereof,
Agent shall make the requested Advance to the Borrower designated by
Borrower Representative in the Notice of Advance. All payments by
each Lender shall be made without setoff, counterclaim or deduction
of any kind.
(ii) Not less than once during each calendar week or more
frequently at Agent's election (each, a "Settlement Date"), Agent
shall advise each Lender by
Credit Agreement (Omni)
telephone, or telecopy of the amount of such Lender's Pro Rata Share
of principal, interest and Fees paid for the benefit of Lenders with
respect to the Term A Loan. Provided that each Lender has funded all
payments or Advances required to be made by it and has purchased all
participations required to be purchased by it under this Agreement
and the other Loan Documents as of such Settlement Date, Agent shall
pay to each Lender such Lender's Pro Rata Share of principal,
interest and Fees paid by Borrowers since the previous Settlement
Date for the benefit of such Lender on the Term A Loan held by it.
To the extent that any Lender (a "Non-Funding Lender") has failed to
fund all such payments and Advances or failed to fund the purchase
of all such participations, Agent shall be entitled to set off the
funding short-fall against that Non-Funding Lender's Pro Rata Share
of all payments received from Borrowers. Such payments shall be made
by wire transfer to such Lender's account (as specified by such
Lender in ANNEX H or the applicable Assignment Agreement) not later
than 2:00 p.m. (New York time) on the next Business Day following
each Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may assume that
each Lender will make its Pro Rata Share of each Advance available to
Agent on each funding date. If such Pro Rata Share is not, in fact, paid
to Agent by such Lender when due, Agent will be entitled to recover such
amount on demand from such Lender without setoff, counterclaim or
deduction of any kind. If any Lender fails to pay the amount of its Pro
Rata Share forthwith upon Agent's demand, Agent shall promptly notify
Borrower Representative and Borrowers shall immediately repay such amount
to Agent. Nothing in this SECTION 9.9(b) or elsewhere in this Agreement or
the other Loan Documents shall be deemed to require Agent to advance funds
on behalf of any Lender or to relieve any Lender from its obligation to
fulfill its Term A Loan Commitment hereunder or to prejudice any rights
that Borrowers may have against any Lender as a result of any default by
such Lender hereunder. To the extent that Agent advances funds to any
Borrower on behalf of any Lender and is not reimbursed therefor on the
same Business Day as such Advance is made, Agent shall be entitled to
retain for its account all interest accrued on such Advance until
reimbursed by the applicable Lender.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement
in the belief or expectation that a related payment has been or will
be received by Agent from Borrowers and such related payment is not
received by Agent, then Agent will be entitled to recover such
amount from such Lender on demand without setoff, counterclaim or
deduction of any kind.
(ii) If Agent determines at any time that any amount received
by Agent under this Agreement must be returned to any Borrower or
paid to any other Person pursuant to any insolvency law or
otherwise, then, notwithstanding any other term or condition of this
Agreement or any other Loan Document, Agent will not be required to
distribute any portion thereof to any Lender. In addition, each
Lender will repay to Agent on demand any portion of such amount that
Agent has distributed to such Lender, together with interest at such
rate, if any, as Agent is required to pay to any Borrower or such
other Person, without setoff, counterclaim or deduction of any kind.
(d) Non-Funding Lenders. The failure of any Non-Funding Lender to
make any Term A Loan or any payment required by it hereunder shall not
relieve any other Lender
Credit Agreement (Omni)
(each such other Lender, an "Other Lender") of its obligations to make
such Advance or purchase such participation on such date, but neither any
Other Lender nor Agent shall be responsible for the failure of any
Non-Funding Lender to make an Advance or make any other payment required
hereunder. Notwithstanding anything set forth herein to the contrary, a
Non-Funding Lender shall not have any voting or consent rights under or
with respect to any Loan Document or constitute a "Lender" or a "Lender"
(or be included in the calculation of "Requisite Lenders" hereunder) for
any voting or consent rights under or with respect to any Loan Document.
At Borrower Representative's request, Agent or a Person reasonably
acceptable to Agent shall have the right with Agent's consent and in
Agent's sole discretion (but shall have no obligation) to purchase from
any Non-Funding Lender, and each Non-Funding Lender agrees that it shall,
at Agent's request, sell and assign to Agent or such Person, all of the
Term A Loan Commitment of that Non-Funding Lender for an amount equal to
the principal balance of the Term A Loan held by such Non-Funding Lender
and all accrued interest and fees with respect thereto through the date of
sale, such purchase and sale to be consummated pursuant to an executed
Assignment Agreement.
(e) Dissemination of Information. Agent shall use reasonable efforts
to provide Lenders with any notice of Default or Event of Default received
by Agent from, or delivered by Agent to, any Credit Party, with notice of
any Event of Default of which Agent has actually become aware and with
notice of any action taken by Agent following any Event of Default;
provided, that Agent shall not be liable to any Lender for any failure to
do so, except to the extent that such failure is attributable to Agent's
gross negligence or willful misconduct. Lenders acknowledge that Borrowers
are required to provide Financial Statements and Collateral Reports to
Lenders in accordance with ANNEXES E AND F hereto and agree that Agent
shall have no duty to provide the same to Lenders.
(f) Actions in Concert. Anything in this Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no
Lender shall take any action to protect or enforce its rights arising out
of this Agreement or the Notes (including exercising any rights of setoff)
without first obtaining the prior written consent of Agent and Requisite
Lenders, it being the intent of Lenders that any such action to protect or
enforce rights under this Agreement and the Notes shall be taken in
concert and at the direction or with the consent of Agent or Requisite
Lenders.
SECTION 10. SUCCESSORS AND ASSIGNS
10.1 Successors and Assigns. This Agreement and the other Loan Documents
shall be binding on and shall inure to the benefit of each Credit Party, Agent,
Lenders and their respective successors and assigns (including, in the case of
any Credit Party, a debtor-in-possession on behalf of such Credit Party), except
as otherwise provided herein or therein. No Credit Party may assign, transfer,
hypothecate or otherwise convey its rights, benefits, obligations or duties
hereunder or under any of the other Loan Documents without the prior express
written consent of Agent and Lenders. Any such purported assignment, transfer,
hypothecation or other conveyance by any Credit Party without the prior express
written consent of Agent and Lenders shall be void. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of each Credit Party, Agent and Lenders with respect to the
transactions contemplated hereby and no Person shall be a third party
beneficiary of any of the terms and provisions of this Agreement or any of the
other Loan Documents.
Credit Agreement (Omni)
SECTION 11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The Loan Documents
constitute the complete agreement between the parties with respect to the
subject matter thereof and may not be modified, altered or amended except as set
forth in SECTION 11.2. Any letter of interest, proposal letter, commitment
letter, fee letter or confidentiality agreement, if any, between any Credit
Party and Agent or any Lender or any of their respective Affiliates, predating
this Agreement and relating to a financing of substantially similar form,
purpose or effect shall be superseded by this Agreement. Notwithstanding the
foregoing, (i) the GE Capital Fee Letter and (ii) any market flex provisions and
the provisions with respect to the Term B Loan Facility (as defined therein)
contained in the final commitment letter between Agent and Borrower shall
survive the execution and delivery of this Agreement and shall continue to be
binding obligations of the parties.
11.2 Amendments and Waivers.
(a) Except for actions expressly permitted to be taken by Agent, no
amendment, modification, termination or waiver of any provision of this
Agreement or any other Loan Document, or any consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the
same shall be in writing and signed by Agent and Borrowers, and by
Requisite Lenders or all affected Lenders, as applicable. Except as set
forth in CLAUSES (B) and (C) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require
the written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or consent
with respect to any provision of this Agreement that waives compliance
with the conditions precedent set forth in SECTION 2.2 to the making of
any Advance shall be effective unless the same shall be in writing and
signed by Agent, Requisite Lenders and Borrowers. Notwithstanding anything
contained in this Agreement to the contrary, no waiver or consent with
respect to any Default or any Event of Default shall be effective for
purposes of the conditions precedent to the making of Advances set forth
in SECTION 2.2 unless the same shall be in writing and signed by Agent,
Requisite Lenders and Borrowers.
(c) No amendment, modification, termination or waiver shall, unless
in writing and signed by Agent and each Lender directly affected thereby:
(i) increase the principal amount of any Lender's Term A Loan Commitment
(which action shall be deemed to directly affect all Lenders; (ii) reduce
the principal of, rate of interest on or Fees payable with respect to the
Term A Loan of any affected Lender; (iii) extend any scheduled payment
date (other than payment dates of mandatory prepayments under SECTION
1.3(b)(i)-(vi)) or final maturity date of the principal amount of the Term
A Loan of any affected Lender; (iv) waive, forgive, defer, extend or
postpone any payment of interest or Fees as to any affected Lender; (v)
release any Guaranty or, except as otherwise permitted herein or in the
other Loan Documents, release, or permit any Credit Party to sell or
otherwise dispose of, any Collateral with a value exceeding $2,000,000 in
the aggregate (which action shall be deemed to directly affect all
Lenders); (vi) change the percentage of the Term A Loan Commitment or of
the aggregate unpaid principal amount of the Term A Loan that shall be
required for Lenders or any of them to take any action hereunder; and
(vii) amend or waive this SECTION 11.2 or the definition of the term
"Requisite Lenders" insofar as such definitions affect the substance of
this SECTION 11.2. Furthermore, no amendment, modification, termination or
waiver affecting the rights or duties of Agent under this Agreement or any
other Loan Document shall be effective unless in writing and signed by
Agent in addition to Lenders required hereinabove
Credit Agreement (Omni)
to take such action. Each amendment, modification, termination or waiver
shall be effective only in the specific instance and for the specific
purpose for which it was given. No amendment, modification, termination or
waiver shall be required for Agent to take additional Collateral pursuant
to any Loan Document. No amendment, modification, termination or waiver of
any provision of any Note shall be effective without the written
concurrence of the holder of that Note. No notice to or demand on any
Credit Party in any case shall entitle such Credit Party or any other
Credit Party to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this SECTION 11.2 shall be binding upon each
holder of the Notes at the time outstanding and each future holder of the
Notes.
(d) If, in connection with any proposed amendment, modification,
waiver or termination (a "Proposed Change"):
(i) requiring the consent of all affected Lenders, the consent
of Requisite Lenders is obtained, but the consent of other Lenders
whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in this CLAUSE (I) and in
CLAUSE (II) below being referred to as a "Non-Consenting Lender");
or
(ii) requiring the consent of Requisite Lenders, the consent
of Lenders holding a Pro Rata Share in excess of 50% is obtained,
but the consent of Requisite Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower
Representative's request, Agent or a Person reasonably acceptable to Agent
shall have the right with Agent's consent and in Agent's sole discretion
(but shall have no obligation) to purchase from such Non-Consenting
Lenders, and such Non-Consenting Lenders agree that they shall, upon
Agent's request, sell and assign to Agent or such Person, all of the Term
A Loan Commitment of such Non-Consenting Lenders for an amount equal to
the principal balance of the Term A Loan held by the Non-Consenting
Lenders and all accrued interest and Fees with respect thereto through the
date of sale, such purchase and sale to be consummated pursuant to an
executed Assignment Agreement.
(e) Upon payment in full in cash and performance of all of the
Obligations (other than indemnification Obligations), termination of the
Term A Loan Commitment and a release of all claims against Agent and
Lenders, and so long as no suits, actions, proceedings or claims are
pending or threatened against any Indemnified Person asserting any
damages, losses or liabilities that are Indemnified Liabilities, Agent
shall deliver to Borrowers termination statements, mortgage releases and
other documents necessary or appropriate to evidence the termination of
the Liens securing payment of the Obligations.
11.3 Fees and Expenses. Borrowers shall reimburse (i) Agent for all fees,
costs and expenses (including the reasonable fees and expenses of all of its
counsel, advisors, consultants and auditors) and (ii) Agent (and, with respect
to CLAUSES (c) and (d) below, all Lenders) for all fees, costs and expenses,
including the reasonable fees, costs and expenses of counsel or other advisors
(including environmental and management consultants and appraisers), incurred in
connection with the negotiation, preparation and filing and/or recordation of
the Loan Documents and incurred in connection with:
Credit Agreement (Omni)
(a) any amendment, modification or waiver of, consent with respect
to, or termination of, any of the Loan Documents or Related Transactions
Documents or advice in connection with the syndication and administration
of the Term A Loan made pursuant hereto or its rights hereunder or
thereunder;
(b) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by Agent, any Lender, any Credit Party or any other
Person and whether as a party, witness or otherwise) in any way relating
to the Collateral, any of the Loan Documents or any other agreement to be
executed or delivered in connection herewith or therewith, including any
litigation, contest, dispute, suit, case, proceeding or action, and any
appeal or review thereof, in connection with a case commenced by or
against any or all of the Credit Parties or any other Person that may be
obligated to Agent by virtue of the Loan Documents; including any such
litigation, contest, dispute, suit, proceeding or action arising in
connection with any work-out or restructuring of the Term A Loan during
the pendency of one or more Events of Default; provided, that in the case
of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;
provided further, that no Person shall be entitled to reimbursement under
this CLAUSE (B) in respect of any litigation, contest, dispute, suit,
proceeding or action to the extent any of the foregoing results from such
Person's gross negligence or willful misconduct;
(c) any attempt to enforce any remedies of Agent against any or all
of the Credit Parties or any other Person that may be obligated to Agent
or any Lender by virtue of any of the Loan Documents, including any such
attempt to enforce any such remedies in the course of any work-out or
restructuring of the Term A Loan during the pendency of one or more Events
of Default; provided, that in the case of reimbursement of counsel for
Lenders other than Agent, such reimbursement shall be limited to one
counsel for all such Lenders;
(d) any workout or restructuring of the Term A Loan during the
pendency of one or more Events of Default; and
(e) efforts to (i) monitor the Term A Loan or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or
their respective affairs, and (iii) verify, protect, evaluate, assess,
appraise, collect, sell, liquidate or otherwise dispose of any of the
Collateral;
including, as to each of CLAUSES (a) through (e) above, all reasonable
attorneys' and other professional and service providers' fees arising from such
services and other advice, assistance or other representation, including those
in connection with any appellate proceedings, and all expenses, costs, charges
and other fees incurred by such counsel and others in connection with or
relating to any of the events or actions described in this SECTION 11.3, all of
which shall be payable, on demand, by Borrowers to Agent. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants, environmental advisors, appraisers,
investment bankers, management and other consultants and paralegals; court costs
and expenses; photocopying and duplication expenses; court reporter fees, costs
and expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal or
other advisory services.
11.4 No Waiver. Agent's or any Lender's failure, at any time or times, to
require strict performance by the Credit Parties of any provision of this
Agreement or any other Loan Document shall not waive, affect or diminish any
right of Agent or such Lender thereafter to demand strict
Credit Agreement (Omni)
compliance and performance herewith or therewith. Any suspension or waiver of an
Event of Default shall not suspend, waive or affect any other Event of Default
whether the same is prior or subsequent thereto and whether the same or of a
different type. Subject to the provisions of SECTION 11.2, none of the
undertakings, agreements, warranties, covenants and representations of any
Credit Party contained in this Agreement or any of the other Loan Documents and
no Default or Event of Default by any Credit Party shall be deemed to have been
suspended or waived by Agent or any Lender, unless such waiver or suspension is
by an instrument in writing signed by an officer of or other authorized employee
of Agent and the applicable required Lenders, and directed to Borrowers
specifying such suspension or waiver.
11.5 Remedies. Agent's and Lenders' rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
that Agent or any Lender may have under any other agreement, including the other
Loan Documents, by operation of law or otherwise. Recourse to the Collateral
shall not be required.
11.6 Severability. Wherever possible, each provision of this Agreement and
the other Loan Documents shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or any other Loan Document shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Agreement or such other Loan Document.
11.7 Conflict of Terms. Except as otherwise provided in this Agreement or
any of the other Loan Documents by specific reference to the applicable
provisions of this Agreement, if any provision contained in this Agreement
conflicts with any provision in any of the other Loan Documents, the provision
contained in this Agreement shall govern and control.
11.8 Confidentiality. Agent and each Lender agree to use commercially
reasonable efforts (equivalent to the efforts Agent or such Lender applies to
maintaining the confidentiality of its own confidential information) to maintain
as confidential all confidential information provided to them by the Credit
Parties and designated as confidential for a period of two years following
receipt thereof, except that Agent and any Lender may disclose such information
(a) to Persons employed or engaged by Agent or such Lender;
(b) to any bona fide assignee or participant or potential assignee
or participant that has agreed to comply with the covenant contained in
this SECTION 11.8 (and any such bona fide assignee or participant or
potential assignee or participant may disclose such information to Persons
employed or engaged by them as described in CLAUSE (A) above);
(c) as required or requested by any Governmental Authority or
reasonably believed by Agent or such Lender to be compelled by any court
decree, subpoena or legal or administrative order or process;
(d) as, on the advice of Agent's or such Lender's counsel, is
required by law;
(e) in connection with the exercise of any right or remedy under the
Loan Documents or in connection with any Litigation to which Agent or such
Lender is a party; or
(f) that ceases to be confidential through no fault of Agent or any
Lender.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THE LOAN DOCUMENTS
Credit Agreement (Omni)
AND THE OBLIGATIONS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THE CREDIT PARTIES, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND
THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY X XXXXX XXXXXXX XXXXXXX XX XXX XXXX XXXXXX; PROVIDED FURTHER, THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION
THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN ANNEX I OF THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR TEN BUSINESS DAYS AFTER DEPOSIT IN
THE UNITED STATES MAIL, REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
WITH PROPER POSTAGE PREPAID.
11.10 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered: (a) upon the earlier of actual receipt and ten
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid; (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this SECTION
11.10); (c) one Business Day after deposit with a reputable overnight courier
with all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number indicated in ANNEX I or to such other
Credit Agreement (Omni)
address (or facsimile number) as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or other
communication to any Person (other than Borrower Representative or Agent)
designated in ANNEX I to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
11.11 Section Titles. The Section titles and Table of Contents contained
in this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties hereto.
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT PARTY ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
11.14 Press Releases and Related Matters. Each Credit Party executing this
Agreement agrees that neither it nor its Affiliates will in the future issue any
press releases or other public disclosure using the name of GE Capital or its
affiliates or referring to this Agreement, the other Loan Documents or the
Related Transactions Documents without at least two Business Days' prior notice
to GE Capital and without the prior written consent of GE Capital unless (and
only to the extent that) such Credit Party or Affiliate is required to do so
under law and then, in any event, such Credit Party or Affiliate will consult
with GE Capital before issuing such press release or other public disclosure.
Each Credit Party consents to the publication by Agent or any Lender of
advertising material relating to the financing transactions contemplated by this
Agreement using Borrower's name, product photographs, logo or trademark. Agent
reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.
11.15 Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against any
Credit Party for liquidation or reorganization, should any Credit Party become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Credit Party's assets, and shall continue to be effective or to be reinstated,
as the case may be, if at any time payment and performance of the Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the
Obligations, whether as a "voidable preference," "fraudulent conveyance," or
Credit Agreement (Omni)
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
11.16 Advice of Counsel. Each of the parties represents to each other
party hereto that it has discussed this Agreement and, specifically, the
provisions of SECTIONS 11.9 and 11.13, with its counsel.
11.17 No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
11.18 Revolver Intercreditor Agreement. It is understood and agreed by
each of the parties hereto that, notwithstanding any terms of this Agreement and
any other Loan Documents (other than the Revolver Intercreditor Agreement) that
may be to the contrary, this Agreement and such other Loan Documents, together
with all rights and remedies of the Agent and Lenders hereunder and thereunder,
are subject at all times to the express terms of the Revolver Intercreditor
Agreement.
SECTION 12. CROSS-GUARANTY
12.1 Cross-Guaranty. Each Borrower hereby agrees that such Borrower is
jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to Agent and Lenders and their respective successors and assigns, the
full and prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance of, all Obligations owed or hereafter owing to Agent
and Lenders by each other Borrower. Each Borrower agrees that its guaranty
obligation hereunder is a continuing guaranty of payment and performance and not
of collection, that its obligations under this SECTION 12 shall not be
discharged until payment and performance, in full, of the Obligations has
occurred, and that its obligations under this SECTION 12 shall be absolute and
unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan Document
or any other agreement, document or instrument to which any Borrower is or
may become a party;
(b) the absence of any action to enforce this Agreement (including
this SECTION 12) or any other Loan Document or the waiver or consent by
Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any security for the Obligations or any action, or the
absence of any action, by Agent and Lenders in respect thereof (including
the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor.
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.
Credit Agreement (Omni)
12.2 Waivers by Borrowers. Each Borrower expressly waives all rights it
may have now or in the future under any statute, or at common law, or at law or
in equity, or otherwise, to compel Agent or Lenders to marshal assets or to
proceed in respect of the Obligations guaranteed hereunder against any other
Credit Party, any other party or against any security for the payment and
performance of the Obligations before proceeding against, or as a condition to
proceeding against, such Borrower. It is agreed among each Borrower, Agent and
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this SECTION 12 and such waivers, Agent and Lenders would
decline to enter into this Agreement.
12.3 Benefit of Guaranty. Each Borrower agrees that the provisions of this
SECTION 12 are for the benefit of Agent and Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between any other Borrower and Agent or Lenders, the
obligations of such other Borrower under the Loan Documents.
12.4 Waiver of Subrogation, Etc. Notwithstanding anything to the contrary
in this Agreement or in any other Loan Document, and except as set forth in
SECTION 12.7, each Borrower hereby expressly and irrevocably waives any and all
rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off and any and all defenses available to a
surety, guarantor or accommodation co-obligor. Each Borrower acknowledges and
agrees that this waiver is intended to benefit Agent and Lenders and shall not
limit or otherwise affect such Borrower's liability hereunder or the
enforceability of this SECTION 12, and that Agent, Lenders and their respective
successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this SECTION 12.4.
12.5 Election of Remedies. If Agent or any Lender may, under applicable
law, proceed to realize its benefits under any of the Loan Documents giving
Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower
or by any other Person, either by judicial foreclosure or by non-judicial sale
or enforcement, Agent or any Lender may, at its sole option, determine which of
its remedies or rights it may pursue without affecting any of its rights and
remedies under this SECTION 12. If, in the exercise of any of its rights and
remedies, Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Borrower or any
other Person, whether because of any applicable laws pertaining to "election of
remedies" or the like, each Borrower hereby consents to such action by Agent or
such Lender and waives any claim based upon such action, even if such action by
Agent or such Lender shall result in a full or partial loss of any rights of
subrogation that each Borrower might otherwise have had but for such action by
Agent or such Lender. Any election of remedies that results in the denial or
impairment of the right of Agent or any Lender to seek a deficiency judgment
against any Borrower shall not impair any other Borrower's obligation to pay the
full amount of the Obligations. In the event Agent or any Lender shall bid at
any foreclosure or trustee's sale or at any private sale permitted by law or the
Loan Documents, Agent or such Lender may bid all or less than the amount of the
Obligations and the amount of such bid need not be paid by Agent or such Lender
but shall be credited against the Obligations. The amount of the successful bid
at any such sale, whether Agent, Lender or any other party is the successful
bidder, shall be conclusively deemed to be the fair market value of the
Collateral and the difference between such bid amount and the remaining balance
of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this SECTION 12, notwithstanding that any present
or future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Agent or any Lender might otherwise be
entitled but for such bidding at any such sale.
Credit Agreement (Omni)
12.6 Limitation. Notwithstanding any provision herein contained to the
contrary, each Borrower's liability under this SECTION 12 (which liability is in
any event in addition to amounts for which such Borrower is primarily liable
under SECTION 1) shall be limited to an amount not to exceed as of any date of
determination the greater of:
(a) the net amount of all Loans advanced to any other Borrower under
this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such Borrower; and
(b) the amount that could be claimed by Agent and Lenders from such
Borrower under this SECTION 12 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into account,
among other things, such Borrower's right of contribution and
indemnification from each other Borrower under SECTION 12.7.
12.7 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Borrower shall make a payment under this
SECTION 12 of all or any of the Obligations (other than Loans made to that
Borrower for which it is primarily liable) (a "Guarantor Payment") that,
taking into account all other Guarantor Payments then previously or
concurrently made by any other Borrower, exceeds the amount that such
Borrower would otherwise have paid if each Borrower had paid the aggregate
Obligations satisfied by such Guarantor Payment in the same proportion
that such Borrower's "Allocable Amount" (as defined below) (as determined
immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Borrowers as determined immediately prior
to the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Obligations and termination of the Term A
Loan Commitment, such Borrower shall be entitled to receive contribution
and indemnification payments from, and be reimbursed by, each other
Borrower for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor
Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Borrower shall be equal to the maximum amount of the claim that could then
be recovered from such Borrower under this SECTION 12 without rendering
such claim voidable or avoidable under Section 548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(c) This SECTION 12.7 is intended only to define the relative rights
of Borrowers and nothing set forth in this SECTION 12.7 is intended to or
shall impair the obligations of Borrowers, jointly and severally, to pay
any amounts as and when the same shall become due and payable in
accordance with the terms of this Agreement, including SECTION 12.1.
Nothing contained in this SECTION 12.7 shall limit the liability of any
Borrower to pay the Loans made directly or indirectly to that Borrower and
accrued interest, Fees and expenses with respect thereto for which such
Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of the Borrower to
which such contribution and indemnification is owing.
Credit Agreement (Omni)
(e) The rights of the indemnifying Borrowers against other Credit
Parties under this SECTION 12.7 shall be exercisable upon the full and
indefeasible payment of the Obligations and the termination of the Term A
Loan Commitment.
12.8 Liability Cumulative. The liability of Borrowers under this SECTION
12 is in addition to and shall be cumulative with all liabilities of each
Borrower to Agent and Lenders under this Agreement and the other Loan Documents
to which such Borrower is a party or in respect of any Obligations or obligation
of the other Borrower, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
[REMAINDER OF PAGE LEFT BLANK]
Credit Agreement (Omni)
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
"BORROWERS":
OMNI ENERGY SERVICES CORP. AMERICAN HELICOPTERS INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------- -----------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
TRUSSCO, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
[SIGNATURES CONTINUED]
Credit Agreement (Omni)
"AGENT" and a "LENDER"
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx
Duly Authorized Signatory
[SIGNATURES CONTINUED]
Credit Agreement (Omni)
The following Persons are signatories to this Agreement in their capacity
as Credit Parties and not as Borrowers.
"CREDIT PARTIES"
OMNI ENERGY SERVICES CORP.- OMNI PROPERTIES CORP.
MEXICO
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ -----------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
OMNI OFFSHORE AVIATION CORP. OMNI SEISMIC AVIATION CORP.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ --------------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
OMNI ENERGY SEISMIC SERVICES TRUSSCO PROPERTIES, L.L.C.
CORP.
By: OMNI ENERGY SERVICES CORP.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
-----------------------
xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Chief Executive Officer -----------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
Credit Agreement (Omni)
