\n I *1.5 0.25% 1.50% 0.300%
\n II **1.5 but *2.0 0.50% 1.75% 0.375%
\n III **2.0 but *2.5 0.75% 2.00% 0.425%
\n IV **2.5 1.25% 2.50% 0.500%
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n* Less than
\n** Greater than or equal to<\/p>\n
The Applicable Percentage shall be determined and adjusted quarterly on the
\ndate (each a “Rate Determination Date”) five (5) Business Days after the
\n ———————–
\ndate by which the annual and quarterly compliance certificates and related
\nfinancial statements and information are required in accordance with the
\nprovisions of Sections 7.1(a) and (b) and Section 7.2(b), of the Incorporated
\nCovenants, as applicable; provided that in the event an annual or quarterly
\n ——–
\ncompliance certificate and related financial statements and information are not
\ndelivered timely to the Agency Services Address by the date required by Sections
\n7.1(a) and (b) and Section 7.2(b) of the Incorporated Covenants, as applicable,
\nthe Applicable Percentages shall be based on Pricing Level IV until such time as
\nan appropriate compliance certificate and related financial statements and
\ninformation are delivered, whereupon the applicable Pricing Level shall be
\nadjusted based on the information contained in such compliance certificate and
\nrelated financial statements and information.<\/p>\n
Each Applicable Percentage shall be effective from a Rate Determination Date
\nuntil the next such Rate Determination Date. The Administrative Agent shall
\ndetermine the appropriate Applicable Percentages in the pricing matrix promptly
\nupon receipt of the quarterly or annual compliance certificate and related
\nfinancial information and shall promptly notify the Borrower and the Lenders of
\nany change thereof. Such determinations by the Administrative Agent shall be
\nconclusive absent manifest error. Adjustments in the Applicable Percentages
\nshall be effective as to existing Extensions of Credit as well as new Extensions
\nof Credit made thereafter.<\/p>\n
“Borrower” means Navigant International, Inc., a Delaware corporation,
\n ——–
\nas referenced in the opening paragraph, its successors and permitted assigns.<\/p>\n
“Closing Date” means the date hereof.
\n ———— <\/p>\n
“Commitment” means the Revolving Commitment.
\n ———- <\/p>\n
“Commitment Fee” shall have the meaning given such term in Section 3.5
\n ————–<\/p>\n
“Commitment Percentage” means the Revolving Commitment Percentage.
\n ——————— <\/p>\n
2 <\/p>\n
“Commitment Period” means the period from and including the Closing
\n —————–
\n Date to but not including the earlier of (i) the Termination Date, or (ii)
\n the date on which the Commitments terminate in accordance with the
\n provisions of this Credit Agreement.<\/p>\n
“Consolidated Group” means the Borrower and its consolidated
\n ——————
\n subsidiaries, as determined in accordance with GAAP.<\/p>\n
“Credit Documents” means a collective reference to this Credit
\n —————-
\n Agreement, the Notes, the Pledge Agreement, the Security Agreement, the
\n Intercreditor Agreement, each Joinder Agreement, and all other related
\n agreements and documents issued or delivered hereunder or thereunder or
\n pursuant hereto or thereto.<\/p>\n
“Credit Party” means any of the Borrower and the Guarantors.
\n ———— <\/p>\n
“Debt Transaction” means, with respect to any member of the
\n —————-
\n Consolidated Group, any sale, issuance or placement of Funded Debt, whether
\n or not evidenced by promissory note or other written evidence of
\n indebtedness, except for Funded Debt permitted to be incurred pursuant to
\n Section 8.1 of the Incorporated Covenants (other than Subordinated Debt
\n permitted to be incurred pursuant to Section 8.1(f) of the Incorporated
\n Covenants).<\/p>\n
“Equity Transaction” means, with respect to any member of the
\n ——————
\n Consolidated Group, any issuance or sale of shares of its capital stock or
\n other equity interest, other than an issuance (i) to a member of the
\n Consolidated Group, (ii) in connection with a conversion of debt securities
\n to equity or (iii) in connection with exercise by a present or former
\n employee, officer or director under a stock incentive plan, stock option
\n plan or other equity-based compensation plan or arrangement.<\/p>\n
“Event of Default” means such term as defined in Section 7.1.
\n —————- <\/p>\n
“Excess Funding Guarantor” shall have the meaning given such term in
\n ————————
\n Section 4.6.<\/p>\n
“Excess Payment” shall have the meaning given such term in Section
\n ————–
\n 4.6.<\/p>\n
“Extension of Credit” means, as to any Lender, the making of, or
\n ——————-
\n participation in, a Loan by such Lender (including extensions and
\n conversions thereof).<\/p>\n
“Fees” means all fees payable pursuant to Section 3.5.
\n —- <\/p>\n
“Funded Debt” means, with respect to any Person, without duplication,
\n ———–
\n (i) all Indebtedness of such Person for borrowed money, (ii) all
\n obligations of such Person evidenced by bonds, debentures, notes or similar
\n instruments, or upon which interest payments are customarily made, (iii)
\n all purchase money Indebtedness (including for purposes hereof,
\n indebtedness and obligations described in clauses (iii) and (iv) of the
\n definition of “Indebtedness”) of such Person, including without limitation
\n the principal portion of all obligations of such Person under Capital
\n Leases, (iv) all Support Obligations of such Person with respect to Funded
\n Indebtedness of another Person, (v) the maximum available amount of all
\n standby letters of credit or acceptances issued or created for the account
\n of such Person, (vi) all Funded Debt of another Person secured by a Lien on
\n any Property of such Person, whether or not such Funded Indebtedness has
\n been assumed, provided that for purposes hereof the amount of such Funded
\n ——–
\n Debt shall be limited to the greater of (A) the <\/p>\n
3<\/p>\n
amount of such Funded Debt as to which there is recourse to such Person and
\n (B) the fair market value of the property which is subject to the Lien,
\n (vii) the outstanding attributed principal amount under any Securitization
\n Transaction, and (viii) the principal balance outstanding under any
\n synthetic lease, tax retention operating lease, off-balance sheet loan or
\n similar off-balance sheet financing product to which such Person is a
\n party, where such transaction is considered borrowed money indebtedness for
\n tax purposes but is classified as an operating lease in accordance with
\n GAAP. The Funded Debt of any Person shall include the Funded Debt of any
\n partnership or joint venture in which such Person is a general partner or
\n joint venturer, but only to the extent to which there is recourse to such
\n Person for the payment of such Funded Debt.<\/p>\n
“Guarantor” means each of those Persons identified as a “Guarantor” on
\n ———
\n the signature pages hereto, and each other Person which may hereafter
\n become a Guarantor by execution of a Joinder Agreement, together with their
\n successors and permitted assigns.<\/p>\n
“Guaranteed Obligations” means, as to each Guarantor, without
\n ———————-
\n duplication, (i) all obligations of the Borrower (including interest
\n accruing after a Bankruptcy Event, regardless of whether such interest is
\n allowed as a claim under the Bankruptcy Code) to the Lenders and the
\n Administrative Agent, whenever arising, under this Credit Agreement, the
\n Notes or the other Credit Documents, and (ii) all liabilities and
\n obligations, whenever arising, owing from the Borrower to any Lender, or
\n any Affiliate of a Lender, arising under any Hedging Agreement relating to
\n Obligations hereunder.<\/p>\n
“Incorporated Covenants” shall have the meaning assigned to such terms
\n ———————-
\n in Section 6.1.<\/p>\n
“Incorporated Representations” shall have the meaning assigned to such
\n —————————-
\n terms in Section 6.1.<\/p>\n
“Intercreditor Agreement” means that certain Intercreditor Agreement
\n ———————–
\n dated as of the date hereof by and among NationsBank, N.A., as
\n Administrative Agent under the Revolving Credit Agreement, NationsBank,
\n N.A., as Administrative Agent under this Credit Agreement, and the Credit
\n Parties, as amended or modified from time to time, in substantially the
\n form of Schedule 8.10 hereto.
\n ————- <\/p>\n
“Interest Payment Date” means (i) as to any Base Rate Loan, the last
\n ———————
\n day of each March, June, September and December, the date of repayment of
\n principal of such Loan and the Termination Date and (ii) as to any
\n Eurodollar Loan, the last day of each Interest Period for such Loan, the
\n date of repayment of principal of such Loan and the Termination Date, and
\n in addition where the applicable Interest Period is more than three months,
\n then also on the date three months from the beginning of the Interest
\n Period, and each three months thereafter. If an Interest Payment Date
\n falls on a date which is not a Business Day, such Interest Payment Date
\n shall be deemed to be the next succeeding Business Day.<\/p>\n
“Interest Period” means, as to any Eurodollar Loan, a period of one,
\n —————
\n two, three or six month’s duration, as the Borrower may elect, commencing
\n in each case, on the date of the borrowing (including conversions,
\n extensions and renewals); provided, however, (A) if any Interest Period
\n ——– ——-
\n would end on a day which is not a Business Day, such Interest Period shall
\n be extended to the next succeeding Business Day (except that in the case of
\n Eurodollar Loans where the next succeeding Business Day falls in the next
\n succeeding calendar month, then on the next preceding <\/p>\n
4<\/p>\n
Business Day), (B) no Interest Period shall extend beyond the Termination
\n Date, and (C) where an Interest Period begins on a day for which there is
\n no numerically corresponding day in the calendar month in which the
\n Interest Period is to end, such Interest Period shall end on the last day
\n of such calendar month.<\/p>\n
“Joinder Agreement” means a Joinder Agreement substantially in the
\n —————–
\n form of Schedule 7.11-1 to the Revolving Credit Agreement but relating to
\n —————
\n this Credit Agreement, executed and delivered by an Additional Credit Party
\n in accordance with the provisions of Section 6.2 hereof.<\/p>\n
“Lenders” means each of the Persons identified as a “Lender” on the
\n ——-
\n signature pages hereto, and their successors and assigns.<\/p>\n
“Loan” or “Loans” means the Revolving Loans (and any Base Rate Loans
\n —- —–
\n or Eurodollar Loans comprising such Revolving Loans).<\/p>\n
“Net Proceeds” means gross cash proceeds (including any cash received
\n ————
\n by way of deferred payment pursuant to a promissory note, receivable or
\n otherwise, but only as and when received) received in connection with an
\n Equity Transaction or Debt Transaction, net of (i) reasonable transaction
\n costs, including underwriting discounts and commissions, (ii) estimated
\n taxes payable in connection therewith, and (iii) in the case of a Debt
\n Transaction, any amounts payable in respect of Funded Debt, including
\n without limitation principal, interest, premiums and penalties, which is
\n secured by, or otherwise related to, any property or asset which is the
\n subject thereof to the extent that such Funded Debt and any payments in
\n respect thereof are paid with a portion of the proceeds therefrom.<\/p>\n
“Non-Excluded Taxes” means such term as is defined in Section 3.10(a).
\n —————— <\/p>\n
“Note” or “Notes” means the promissory notes of the Borrower in favor
\n —- —–
\n of each of the Lenders evidencing the Revolving Loans in substantially the
\n form attached as Schedule 2.1(e), individually or collectively, as
\n —————
\n appropriate, as such promissory notes may be amended, modified,
\n supplemented, extended, renewed or replaced from time to time.<\/p>\n
“Notice of Borrowing” means a written notice of borrowing in
\n ——————-
\n substantially the form of Schedule 2.1(b)(i), as required by Section
\n ——————
\n 2.1(b)(i).<\/p>\n
“Notice of Extension\/Conversion” means a written notice of extension
\n ——————————
\n or conversion in substantially the form of Schedule 3.2, as required by
\n ————
\n Section 3.2.<\/p>\n
“Obligations” means the Revolving Loans.
\n ———– <\/p>\n
“Participation Interest” means the purchase by a Lender of a
\n ———————-
\n participation in Loans as provided in Section 3.13.<\/p>\n
“Pledge Agreement” means the Pledge Agreement dated as of the Closing
\n —————-
\n Date given by the Borrower and the other pledgors identified therein to
\n NationsBank, N.A., as Administrative Agent, to secure the obligations
\n hereunder, as amended and modified.<\/p>\n
“Pro Rata Share” shall have the meaning given such term in Section
\n ————–
\n 4.6.<\/p>\n
5<\/p>\n
“Rate Determination Date” shall have the meaning given such term in
\n ———————–
\n the definition of “Applicable Percentage”.<\/p>\n
“Register” shall have the meaning given such term in Section 9.3(c).
\n ——– <\/p>\n
“Required Lenders” means, at any time, two or more Lenders having in
\n —————-
\n the aggregate more than fifty percent (50%) of the Commitments, or if the
\n Commitments have been terminated, two or more Lenders having in the
\n aggregate more than fifty percent (50%) of the aggregate principal amount
\n of the Obligations outstanding (taking into account in each case
\n Participation Interests or obligation to participate therein); provided
\n ——–
\n that the Commitments of, and outstanding principal amount of Obligations
\n (taking into account Participation Interests therein) owing to, a
\n Defaulting Lender shall be excluded for purposes hereof in making a
\n determination of Required Lenders.<\/p>\n
“Revolving Commitment” means, with respect to each Lender, the
\n ——————–
\n commitment of such Lender to make Revolving Loans in an aggregate principal
\n amount at any time outstanding of up to such Lender’s Revolving Committed
\n Amount.<\/p>\n
“Revolving Commitment Percentage” means, for each Lender, a fraction
\n ——————————-
\n (expressed as a percentage) the numerator of which is the Revolving
\n Commitment of such Lender and the denominator of which is the Aggregate
\n Revolving Committed Amount. The initial Revolving Commitment Percentage of
\n each Lender is set forth on Schedule 2.1(a).
\n ————— <\/p>\n
“Revolving Committed Amount” means, with respect to each Lender, an
\n ————————–
\n amount equal to such Lender’s Revolving Commitment Percentage of the
\n Aggregate Revolving Committed Amount. The initial Revolving Committed
\n Amount of each Lender is set forth on Schedule 2.1(a).<\/p>\n
“Revolving Credit Agreement” means that certain Credit Agreement dated
\n ————————–
\n as of June 9, 1998 by and among the Borrower, certain subsidiaries of the
\n Borrower, as guarantors, the lenders identified therein and NationsBank,
\n N.A., as Administrative Agent, as amended and modified from time to time.<\/p>\n
“Revolving Loans” shall have the meaning assigned to such term in
\n —————
\n Section 2.1(a).<\/p>\n
“Security Agreement” means the Security Agreement dated as of the
\n ——————
\n Closing Date given by the Borrower and the other grantors identified
\n therein to NationsBank, N.A., as Administrative Agent, to secure the
\n obligations hereunder, as amended and modified.<\/p>\n
“Termination Date” means August __, 1999 (being the date 120 days from
\n —————-
\n the Closing Date).<\/p>\n
B. 1.2 COMPUTATION OF TIME PERIODS.
\n ————————— <\/p>\n
For purposes of computation of periods of time hereunder, the word “from”
\nmeans “from and including” and the words “to” and “until” each mean “to but
\nexcluding.”<\/p>\n
6<\/p>\n
C. 1.3 ACCOUNTING TERMS.
\n —————- <\/p>\n
Except as otherwise expressly provided herein, all accounting terms used
\nherein shall be interpreted, and all financial statements and certificates and
\nreports as to financial matters required to be delivered to the Lenders
\nhereunder shall be prepared, in accordance with GAAP. All calculations made for
\nthe purposes of determining compliance with this Credit Agreement shall (except
\nas otherwise expressly provided herein) be made by application of GAAP applied
\non a basis consistent with the most recent annual or quarterly financial
\nstatements delivered pursuant to Section 7.1 of the Incorporated Covenants;
\nprovided, however, if (a) the Borrower shall object to determining such
\n——– ——-
\ncompliance on such basis at the time of delivery of such financial statements
\ndue to any change in GAAP or the rules promulgated with respect thereto or (b)
\nthe Administrative Agent or the Required Lenders shall so object in writing
\nwithin 30 days after delivery of such financial statements, then such
\ncalculations shall be made on a basis consistent with the most recent financial
\nstatements delivered by the Borrower to the Lenders as to which no such
\nobjection shall have been made.<\/p>\n
It is further acknowledged and agreed that, except as expressly provided
\notherwise, for purposes of determining the Applicable Percentage and compliance
\nwith the financial covenants in Section 7.9 of the Incorporated Covenants (and
\ncompliance therewith on a Pro Forma Basis), in the case of acquisitions and
\ndispositions which have occurred during the applicable period to the extent
\npermitted hereunder, adjustments shall be made to take into account historical
\nperformance (reflecting adjustments in income for elimination of salaries,
\nowners’ perks and other items reasonably eliminated pursuant to contractual
\nprovisions) relating thereto during such applicable period prior to the date of
\nsuch acquisition or disposition, and the effect of any Indebtedness paid with
\nproceeds from a disposition, provided that coverage items (relating to interest
\n ——–
\nand rental expense and other such items, under Consolidated EBITDA, Consolidated
\nFixed Charges or the like) shall be determined by annualization from the date of
\nacquisition of disposition rather than by reference to historical performance
\nrelating prior the date of acquisition or disposition.<\/p>\n
3. SECTION 2
\nCREDIT FACILITIES
\n—————–<\/p>\n
A. 2.1 REVOLVING LOANS.
\n ————— <\/p>\n
(a) Revolving Commitment. During the Commitment Period, subject to the
\n ——————–
\nterms and conditions hereof, each Lender severally agrees to make revolving
\ncredit loans (the “Revolving Loans”) to the Borrower from time to time in the
\n —————
\namount of such Lender’s Revolving Commitment Percentage of such Revolving Loans
\nfor the purposes hereinafter set forth; provided that (i) with regard to the
\n ——–
\nLenders collectively, the aggregate principal amount of Obligations outstanding
\nat any time shall not exceed the Aggregate Revolving Committed Amount, and (ii)
\nwith regard to each Lender individually, such Lender’s Revolving Commitment
\nPercentage of Obligations outstanding at any time shall not exceed such Lender’s
\nRevolving Committed Amount. Revolving Loans may consist of Base Rate Loans or<\/p>\n
7<\/p>\n
Eurodollar Loans, or a combination thereof, as the Borrower may request, and may
\nbe repaid and reborrowed in accordance with the provisions hereof.<\/p>\n
(b) Revolving Loan Borrowings.
\n ————————- <\/p>\n
(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
\n ——————-
\n borrowing by written notice (or telephone notice promptly confirmed in
\n writing) to the Administrative Agent not later than 11:00 A.M. (Charlotte,
\n North Carolina time) on the Business Day prior to the date of the requested
\n borrowing in the case of Base Rate Loans, and on the third Business Day
\n prior to the date of the requested borrowing in the case of Eurodollar
\n Loans. Each such request for borrowing shall be irrevocable and shall
\n specify (A) that a Revolving Loan is requested, (B) the date of the
\n requested borrowing (which shall be a Business Day), (C) the aggregate
\n principal amount to be borrowed, and (D) whether the borrowing shall be
\n comprised of Base Rate Loans, Eurodollar Loans or a combination thereof,
\n and if Eurodollar Loans are requested, the Interest Period(s) therefor. If
\n the Borrower shall fail to specify in any such Notice of Borrowing (I) an
\n applicable Interest Period in the case of a Eurodollar Loan, then such
\n notice shall be deemed to be a request for an Interest Period of one month,
\n or (II) the type of Revolving Loan requested, then such notice shall be
\n deemed to be a request for a Base Rate Loan hereunder. The Administrative
\n Agent shall give notice to each Lender promptly upon receipt of each Notice
\n of Borrowing pursuant to this Section 2.1(b)(i), the contents thereof and
\n each such Lender’s share of any borrowing to be made pursuant thereto.<\/p>\n
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
\n —————
\n aggregate principal amount of $5,000,000 and integral multiples of
\n $1,000,000 in excess thereof in the case of Eurodollar Loans, or $1,000,000
\n (or the remaining Aggregate Revolving Committed Amount, if less) and
\n integral multiples of $500,000 in excess thereof in the case of Base Rate
\n Loans.<\/p>\n
(iii) Advances. Each Lender will make its Revolving Commitment
\n ——–
\n Percentage of each Revolving Loan borrowing available to the Administrative
\n Agent for the account of the Borrower, or in such other manner as the
\n Administrative Agent may specify in writing, by 1:00 P.M. (Charlotte, North
\n Carolina time) on the date specified in the applicable Notice of Borrowing
\n in Dollars and in funds immediately available to the Administrative Agent.
\n Such borrowing will then be made available to the Borrower by the
\n Administrative Agent by crediting the account of the Borrower with the
\n aggregate of the amounts made available to the Administrative Agent by the
\n Lenders and in like funds as received by the Administrative Agent.<\/p>\n
(c) Repayment. The principal amount of all Revolving Loans shall be due
\n ———
\nand payable in full on the Termination Date.<\/p>\n
(d) Interest. Subject to the provisions of Section 3.1,
\n ——– <\/p>\n
(i) Base Rate Loans. During such periods as Revolving Loans shall be
\n —————
\n comprised in whole or in part of Base Rate Loans, such Base Rate Loans
\n shall bear interest at a per annum rate equal to the Base Rate plus the
\n —-
\n Applicable Percentage;<\/p>\n
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
\n —————-
\n be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans
\n shall bear interest at a per annum rate equal to the Eurodollar Rate plus
\n —-
\n the Applicable Percentage.<\/p>\n
8<\/p>\n
Interest on Revolving Loans shall be payable in arrears on each applicable
\nInterest Payment Date (or at such other times as may be specified herein).<\/p>\n
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
\n —————
\nexecuted Note in favor of each Lender.<\/p>\n
(f) Maximum Number of Eurodollar Loans. The Borrower will be limited to a
\n ———————————-
\nmaximum number of five (5) Eurodollar Loans outstanding at any time. For
\npurposes hereof, Eurodollar Loans with separate or different Interest Periods
\nwill be considered as separate Eurodollar Loans even if their Interest Periods
\nexpire on the same date.<\/p>\n
4. SECTION 3
\nOTHER PROVISIONS RELATING TO CREDIT FACILITIES
\n———————————————-<\/p>\n
A. 3.1 DEFAULT RATE.
\n ———— <\/p>\n
Upon the occurrence, and during the continuance, of an Event of Default,
\nthe principal of and, to the extent permitted by law, interest on the Loans and
\nany other amounts owing hereunder or under the other Credit Documents shall bear
\ninterest, payable on demand, at a per annum rate 2% greater than the rate which
\nwould otherwise be applicable (or if no rate is applicable, whether in respect
\nof interest, fees or other amounts, then 2% greater than the Base Rate).<\/p>\n
B. 3.2 EXTENSION AND CONVERSION.
\n ———————— <\/p>\n
Subject to the terms of Section 5.2, the Borrower shall have the option, on
\nany Business Day, to extend existing Loans into a subsequent permissible
\nInterest Period or to convert Loans into Loans of another interest rate type;
\nprovided, however, that (i) except as provided in Section 3.8, Eurodollar Loans
\n——– ——-
\nmay be converted into Base Rate Loans only on the last day of the Interest
\nPeriod applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate
\nLoans may be converted into Eurodollar Loans, only if no Default or Event of
\nDefault is in existence on the date of extension or conversion, (iii) Loans
\nextended as, or converted into, Eurodollar Loans shall be subject to the terms
\nof the definition of “Interest Period” set forth in Section 1.1 and shall be in
\n —————
\nsuch minimum amounts as provided in Section 2.1(b)(ii), and (iv) any request for
\nextension or conversion of a Eurodollar Loan which shall fail to specify an
\nInterest Period shall be deemed to be a request for an Interest Period of one
\nmonth. Each such extension or conversion shall be effected by the Borrower by
\ngiving a Notice of Extension\/Conversion (or telephone notice promptly confirmed
\nin writing) to the Administrative Agent prior to 11:00 A.M. (Charlotte, North
\nCarolina time) on the Business Day of, in the case of the conversion of a
\nEurodollar Loan into a Base Rate Loan, and on the third Business Day prior to,
\nin the case of the extension of a Eurodollar Loan as, or conversion of a Base
\nRate Loan into, a Eurodollar Loan, the date of the proposed extension or
\nconversion, specifying the date of the proposed extension or conversion, the
\nLoans to be so extended or converted, the types of Loans into which such Loans
\nare to be converted and, if appropriate, the applicable Interest Periods with
\nrespect thereto. Each request for extension or conversion shall be irrevocable
\nand shall constitute a representation and warranty by the Borrower of the
\nmatters specified in subsections (a) through (e) of Section 5.2. In the event
\nthe Borrower fails to request extension or conversion of any Eurodollar Loan in
\naccordance with this<\/p>\n
9<\/p>\n
Section, or any such conversion or extension is not permitted or required by
\nthis Section, then such Eurodollar Loan shall be automatically converted into a
\nBase Rate Loan at the end of the Interest Period applicable thereto. The
\nAdministrative Agent shall give each Lender notice as promptly as practicable of
\nany such proposed extension or conversion affecting any Loan.<\/p>\n
C. 3.3 PREPAYMENTS.
\n ———– <\/p>\n
(a) Voluntary Prepayments. Revolving Loans may be repaid in whole or in
\n ———————
\npart without premium or penalty; provided that (i) Eurodollar Loans may be
\n ——–
\nprepaid only upon three (3) Business Days’ prior written notice to the
\nAdministrative Agent and must be accompanied by payment of any amounts owing
\nunder Section 3.11, and (ii) partial prepayments shall be minimum principal
\namounts of $5,000,000, in the case of Eurodollar Loans, and $1,000,000, in the
\ncase of Base Rate Loans, and in integral multiples of $1,000,000 in excess
\nthereof.<\/p>\n
(b) Mandatory Prepayments. If at any time the aggregate principal amount
\n ———————
\nof Obligations shall exceed the Aggregate Revolving Committed Amount, Borrower
\nshall immediately make payment on the Revolving Loans in an amount sufficient to
\neliminate the excess.<\/p>\n
(c) Application. Unless otherwise specified by the Borrower, prepayments
\n ———–
\nmade hereunder shall be applied first to Base Rate Loans and then to Eurodollar
\nLoans in direct order of Interest Period maturities. Amounts prepaid hereunder
\nmay be reborrowed in accordance with the provisions hereof.<\/p>\n
D. 3.4 TERMINATION AND REDUCTION OF COMMITMENTS
\n —————————————-<\/p>\n
(a) Voluntary Reductions. The Revolving Commitments may be terminated or
\n ——————–
\npermanently reduced in whole or in part upon three (3) Business Days’ prior
\nwritten notice to the Administrative Agent, provided that (i) after giving
\n ——–
\neffect to any voluntary reduction the aggregate amount of Obligations shall not
\nexceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
\nreductions shall be minimum principal amount of $5,000,000, and in integral
\nmultiples of $1,000,000 in excess thereof.<\/p>\n
(b) Mandatory Reductions. The Revolving Commitments shall be permanently
\n ——————–
\nreduced in an amount equal to one hundred percent (100%) of the Net Proceeds
\nreceived from any Debt Transaction or Equity Transaction.<\/p>\n
(c) Termination. The Commitments hereunder shall terminate on the
\n ———–
\nTermination Date.<\/p>\n
E. 3.5 FEES.
\n —- <\/p>\n
In consideration of the Revolving Commitments hereunder, the Borrower
\nagrees to pay to the Administrative Agent for the ratable benefit of the Lenders
\na commitment fee (the “Commitment Fee”) equal to the Applicable Percentage per
\n ————–
\nannum on the average daily unused<\/p>\n
10<\/p>\n
amount of the Aggregate Revolving Committed Amount for the applicable period.
\nThe Commitment Fee shall be payable quarterly in arrears on the 15th day
\nfollowing the last day of each calendar quarter for the immediately preceding
\nquarter (or portion thereof) beginning with the first such date to occur after
\nthe Closing Date.<\/p>\n
F. 3.6 CAPITAL ADEQUACY.
\n —————- <\/p>\n
If any Lender has determined, after the date hereof, that the adoption or
\nthe becoming effective of, or any change in, or any change by any Governmental
\nAuthority, central bank or comparable agency charged with the interpretation or
\nadministration thereof in the interpretation or administration of, any
\napplicable law, rule or regulation regarding capital adequacy, or compliance by
\nsuch Lender with any request or directive regarding capital adequacy (whether or
\nnot having the force of law) of any such authority, central bank or comparable
\nagency, has or would have the effect of reducing the rate of return on such
\nLender’s capital or assets as a consequence of its commitments or obligations
\nhereunder to a level below that which such Lender could have achieved but for
\nsuch adoption, effectiveness, change or compliance (taking into consideration
\nsuch Lender’s policies with respect to capital adequacy), then, upon notice from
\nsuch Lender to the Borrower, the Borrower shall be obligated to pay to such
\nLender such additional amount or amounts as will compensate such Lender for such
\nreduction. Each determination by any such Lender of amounts owing under this
\nSection shall, absent manifest error, be conclusive and binding on the parties
\nhereto.<\/p>\n
G. 3.7 INABILITY TO DETERMINE INTEREST RATE.
\n ———————————— <\/p>\n
If prior to the first day of any Interest Period, the Administrative Agent
\nshall have determined (which determination shall be conclusive and binding upon
\nthe Borrower) that, by reason of circumstances affecting the relevant market,
\nadequate and reasonable means do not exist for ascertaining the Eurodollar Rate
\nfor such Interest Period, the Administrative Agent shall give telecopy or
\ntelephonic notice thereof to the Borrower and the Lenders as soon as practicable
\nthereafter. If such notice is given (a) any Eurodollar Loans requested to be
\nmade on the first day of such Interest Period shall be made as Base Rate Loans
\nand (b) any Loans that were to have been converted on the first day of such
\nInterest Period to or continued as Eurodollar Loans shall be converted to or
\ncontinued as Base Rate Loans. Until such notice has been withdrawn by the
\nAdministrative Agent, no further Eurodollar Loans shall be made or continued as
\nsuch, nor shall the Borrower have the right to convert Base Rate Loans to
\nEurodollar Loans.<\/p>\n
H. 3.8 ILLEGALITY.
\n ———- <\/p>\n
Notwithstanding any other provision herein, if the adoption of or any
\nchange in any Requirement of Law or in the interpretation or application thereof
\noccurring after the Closing Date shall make it unlawful for any Lender to make
\nor maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
\nLender shall promptly give written notice of such circumstances to the Borrower
\nand the Administrative Agent (which notice shall be withdrawn whenever such
\ncircumstances no longer exist), (b) the commitment of such Lender hereunder to
\nmake Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
\nLoan to Eurodollar Loans shall forthwith be canceled and, until such time as it
\nshall no longer be unlawful for such Lender to make or maintain Eurodollar
\nLoans, such Lender shall then have a commitment only to make a Base Rate Loan
\nwhen a Eurodollar Loan is requested and (c) such Lender’s Loans then outstanding
\nas Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
\non the <\/p>\n
11<\/p>\n
respective last days of the then current Interest Periods with respect to such
\nLoans or within such earlier period as required by law. If any such conversion
\nof a Eurodollar Loan occurs on a day which is not the last day of the then
\ncurrent Interest Period with respect thereto, the Borrower shall pay to such
\nLender such amounts, if any, as may be required pursuant to Section 3.11.<\/p>\n
I. 3.9 REQUIREMENTS OF LAW.
\n ——————- <\/p>\n
J.<\/p>\n
If, after the date hereof, the adoption of or any change in any Requirement
\nof Law or in the interpretation or application thereof applicable to any Lender,
\nor compliance by any Lender with any request or directive (whether or not having
\nthe force of law) from any central bank or other Governmental Authority, in each
\ncase made subsequent to the Closing Date (or, if later, the date on which such
\nLender becomes a Lender):<\/p>\n
(a) shall subject such Lender to any tax of any kind whatsoever with
\nrespect to any Eurodollar Loans made by it or its obligation to make Eurodollar
\nLoans, or change the basis of taxation of payments to such Lender in respect
\nthereof (except for (i) Non-Excluded Taxes covered by Section 3.10 (including
\nNon-Excluded Taxes imposed solely by reason of any failure of such Lender to
\ncomply with its obligations under Section 3.10(b)) and (ii) changes in taxes
\nmeasured by or imposed upon the overall net income, or franchise tax (imposed in
\nlieu of such net income tax), of such Lender or its applicable lending office,
\nbranch, or any affiliate thereof));<\/p>\n
(b) shall impose, modify or hold applicable any reserve, special deposit,
\ncompulsory loan or similar requirement against assets held by, deposits or other
\nliabilities in or for the account of, advances, loans or other extensions of
\ncredit by, or any other acquisition of funds by, any office of such Lender which
\nis not otherwise included in the determination of the Eurodollar Rate hereunder;
\nor<\/p>\n
(c) shall impose on such Lender any other condition (excluding any tax of
\nany kind whatsoever);<\/p>\n
and the result of any of the foregoing is to increase the cost to such Lender,
\nby a material amount, of making, converting into, continuing or maintaining
\nEurodollar Loans or to reduce any amount receivable hereunder in respect
\nthereof, then, in any such case, upon notice to the Borrower from such Lender,
\nthrough the Administrative Agent, in accordance herewith, the Borrower shall be
\nobligated to promptly pay such Lender, upon its demand, any additional amounts
\nnecessary to compensate such Lender for such increased cost or reduced amount
\nreceivable, provided that, in any such case, the Borrower may elect to convert
\n ——–
\nthe Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
\nthe Administrative Agent at least one Business Day’s notice of such election, in
\nwhich case the Borrower shall promptly pay to such Lender, upon demand, without
\nduplication, such amounts, if any, as may be required pursuant to Section 3.11.
\nIf any Lender becomes entitled to claim any additional amounts pursuant to this
\nsubsection, it shall provide prompt notice thereof to the Borrower, through the
\nAdministrative Agent, certifying (x) that one of the events described in this
\nparagraph (a) has occurred and describing in reasonable detail the nature of
\nsuch event, (y) as to the increased cost or reduced amount resulting from such
\nevent and (z) as to the additional amount demanded by such Lender and a
\nreasonably detailed explanation of the calculation thereof. Such a certificate
\nas to any additional amounts payable pursuant to this subsection submitted by
\nsuch Lender, through the Administrative Agent, to the Borrower shall be
\nconclusive and binding on the parties hereto in the absence of manifest error.
\nThis covenant shall survive the termination of this Credit Agreement and the
\npayment of the Loans and all other amounts payable hereunder.<\/p>\n
12<\/p>\n
K. 3.10 TAXES.
\n —– <\/p>\n
(a) Except as provided below in this subsection, all payments made by the
\nBorrower under this Credit Agreement and any Notes shall be made free and clear
\nof, and without deduction or withholding for or on account of, any present or
\nfuture income, stamp or other taxes, levies, imposts, duties, charges, fees,
\ndeductions or withholdings, now or hereafter imposed, levied, collected,
\nwithheld or assessed by any court, or governmental body, agency or other
\nofficial, excluding taxes measured by or imposed upon the overall net income of
\nany Lender or its applicable lending office, or any branch or affiliate thereof,
\nand all franchise taxes, branch taxes, taxes on doing business or taxes on the
\noverall capital or net worth of any Lender or its applicable lending office, or
\nany branch or affiliate thereof, in each case imposed in lieu of net income
\ntaxes, imposed: (i) by the jurisdiction under the laws of which such Lender,
\napplicable lending office, branch or affiliate is organized or is located, or in
\nwhich its principal executive office is located, or any nation within which such
\njurisdiction is located or any political subdivision thereof; or (ii) by reason
\nof any connection between the jurisdiction imposing such tax and such Lender,
\napplicable lending office, branch or affiliate other than a connection arising
\nsolely from such Lender having executed, delivered or performed its obligations,
\nor received payment under or enforced, this Credit Agreement or any Notes. If
\nany such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
\nor withholdings (“Non-Excluded Taxes”) are required to be withheld from any
\n ——————
\namounts payable to the Administrative Agent or any Lender hereunder or under any
\nNotes, (A) the amounts so payable to the Administrative Agent or such Lender
\nshall be increased to the extent necessary to yield to the Administrative Agent
\nor such Lender (after payment of all Non-Excluded Taxes) interest or any such
\nother amounts payable hereunder at the rates or in the amounts specified in this
\nCredit Agreement and any Notes, provided, however, that the Borrower shall be
\n ——– ——-
\nentitled to deduct and withhold any Non-Excluded Taxes and shall not be required
\nto increase any such amounts payable to any Lender that is not organized under
\nthe laws of the United States of America or a state thereof if such Lender fails
\nto comply with the requirements of paragraph (b) of this subsection whenever any
\nNon-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
\nthereafter the Borrower shall send to the Administrative Agent for its own
\naccount or for the account of such Lender, as the case may be, a certified copy
\nof an original official receipt received by the Borrower showing payment
\nthereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
\nappropriate taxing authority or fails to remit to the Administrative Agent the
\nrequired receipts or other required documentary evidence, the Borrower shall
\nindemnify the Administrative Agent and the Lenders for any incremental taxes,
\ninterest or penalties that may become payable by the Administrative Agent or any
\nLender as a result of any such failure. The agreements in this subsection shall
\nsurvive the termination of this Credit Agreement and the payment of the Loans
\nand all other amounts payable hereunder.<\/p>\n
(b) Each Lender that is not incorporated under the laws of the United
\nStates of America or a state thereof shall:<\/p>\n
(X)(i) on or before the date of any payment by the Borrower under this
\n Credit Agreement or Notes to such Lender, deliver to the Borrower and the
\n Administrative Agent (A) two (2) duly completed copies of United States
\n Internal Revenue Service Form 1001 or 4224, or successor applicable form,
\n as the case may be, certifying that it is entitled to receive payments
\n under this Credit Agreement and any Notes without deduction or withholding
\n of any United States federal income taxes and (B) an Internal Revenue
\n Service Form W-8 or W-9, or successor applicable form, as the case may be,
\n certifying that it is entitled to an exemption from United States backup
\n withholding tax;<\/p>\n
13<\/p>\n
(ii) deliver to the Borrower and the Administrative Agent two (2)
\n further copies of any such form or certification on or before the date that
\n any such form or certification expires or becomes obsolete and after the
\n occurrence of any event requiring a change in the most recent form
\n previously delivered by it to the Borrower; and<\/p>\n
(iii) obtain such extensions of time for filing and complete such
\n forms or certifications as may reasonably be requested by the Borrower or
\n the Administrative Agent; or<\/p>\n
(Y) in the case of any such Lender that is not a “bank” within the
\n meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent
\n to the Borrower (for the benefit of the Borrower and the Administrative
\n Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of
\n the Internal Revenue Code, (ii) agree to furnish to the Borrower on or
\n before the date of any payment by the Borrower, with a copy to the
\n Administrative Agent two (2) accurate and complete original signed copies
\n of Internal Revenue Service Form W-8, or successor applicable form
\n certifying to such Lender’s legal entitlement at the date of such
\n certificate to an exemption from U.S. withholding tax under the provisions
\n of Section 881(c) of the Internal Revenue Code with respect to payments to
\n be made under this Credit Agreement and any Notes (and to deliver to the
\n Borrower and the Administrative Agent two (2) further copies of such form
\n on or before the date it expires or becomes obsolete and after the
\n occurrence of any event requiring a change in the most recently provided
\n form and, if necessary, obtain any extensions of time reasonably requested
\n by the Borrower or the Administrative Agent for filing and completing such
\n forms), and (iii) agree, to the extent legally entitled to do so, upon
\n reasonable request by the Borrower, to provide to the Borrower (for the
\n benefit of the Borrower and the Administrative Agent) such other forms as
\n may be reasonably required in order to establish the legal entitlement of
\n such Lender to an exemption from withholding with respect to payments under
\n this Credit Agreement and any Notes;<\/p>\n
unless in any such case any change in treaty, law or regulation has occurred
\nafter the date such Person becomes a Lender hereunder which renders all such
\nforms inapplicable or which would prevent such Lender from duly completing and
\ndelivering any such form with respect to it and such Lender so advises the
\nBorrower and the Administrative Agent. Each Person that shall become a Lender
\nor a participant of a Lender pursuant to Section 9.3 shall, upon the
\neffectiveness of the related transfer, be required to provide all of the forms,
\ncertifications and statements required pursuant to this subsection, provided
\n ——–
\nthat in the case of a participant of a Lender the obligations of such
\nparticipant of a Lender pursuant to this subsection (b) shall be determined as
\nif the participant of a Lender were a Lender except that such participant of a
\nLender shall furnish all such required forms, certifications and statements to
\nthe Lender from which the related participation shall have been purchased.<\/p>\n
L. 3.11 INDEMNITY.
\n ——— <\/p>\n
The Borrower promises to indemnify each Lender and to hold each Lender
\nharmless from any loss or expense which such Lender may sustain or incur (other
\nthan through such Lender’s gross negligence or willful misconduct) as a
\nconsequence of (a) default by the Borrower in making a borrowing of, conversion
\ninto or continuation of Eurodollar Loans after the Borrower has given a notice
\nrequesting the same in accordance with the provisions of this Credit Agreement,
\n(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
\nthe Borrower has given a notice thereof in accordance with the provisions of
\nthis Credit Agreement or (c) the making of a prepayment of Eurodollar Loans on a
\nday which is not the last day of an Interest Period with respect thereto. With
\nrespect to Eurodollar Loans, such indemnification may include an amount equal to
\nthe excess, if any, of (i) the amount of interest which <\/p>\n
14<\/p>\n
would have accrued on the amount so prepaid, or not so borrowed, converted or
\ncontinued, for the period from the date of such prepayment or of such failure to
\nborrow, convert or continue to the last day of the applicable Interest Period
\n(or, in the case of a failure to borrow, convert or continue, the Interest
\nPeriod that would have commenced on the date of such failure) in each case at
\nthe applicable rate of interest for such Loans provided for herein (excluding,
\nhowever, the Applicable Percentage included therein, if any) over (ii) the
\namount of interest (as reasonably determined by such Lender) which would have
\naccrued to such Lender on such amount by placing such amount on deposit for a
\ncomparable period with leading banks in the interbank Eurodollar market. The
\ncovenants of the Borrower set forth in this Section 3.11 shall survive the
\ntermination of this Credit Agreement and the payment of the Loans and all other
\namounts payable hereunder.<\/p>\n
M. 3.12 PRO RATA TREATMENT.
\n —————— <\/p>\n
Except to the extent otherwise provided herein:<\/p>\n
(a) Loans. Each Loan, each payment or prepayment of principal of any
\n —–
\nLoan, each payment of interest on the Loans, each payment of Commitment Fees,
\neach reduction of the Aggregate Revolving Committed Amount and each conversion
\nor extension of any Loan, shall be allocated pro rata among the Lenders in
\naccordance with the respective principal amounts of their outstanding Loans and
\nParticipation Interests.<\/p>\n
(b) Advances. No Lender shall be responsible for the failure or delay by
\n ——–
\nany other Lender in its obligation to make its ratable share of a borrowing
\nhereunder; provided, however, that the failure of any Lender to fulfill its
\n ——– ——-
\nobligations hereunder shall not relieve any other Lender of its obligations
\nhereunder. Unless the Administrative Agent shall have been notified in writing
\nby any Lender prior to a borrowing that such Lender will not make the amount
\nthat would constitute its ratable share of such borrowing available to the
\nAdministrative Agent, the Administrative Agent may assume that such Lender is
\nmaking such amount available to the Administrative Agent, and the Administrative
\nAgent may, in reliance upon such assumption, make available to the Borrower a
\ncorresponding amount. If such amount is not made available to the
\nAdministrative Agent by such Lender within the time period specified therefor
\nhereunder, such Lender shall pay to the Administrative Agent, on demand, such
\namount with interest thereon at a rate equal to the Federal Funds Rate for a
\nperiod of two (2) Business Days, and thereafter at the Base Rate, for the period
\nuntil such Lender makes such amount immediately available to the Administrative
\nAgent. If such Lender does not pay such amounts to the Administrative Agent
\nforthwith upon demand, the Administrative Agent may notify the Borrower and
\nrequest the Borrower to immediately pay such amount to the Administrative Agent
\nwith interest at the Base Rate. A certificate of the Administrative Agent
\nsubmitted to any Lender with respect to any amounts owing under this subsection
\nshall be conclusive in the absence of manifest error.<\/p>\n
N. 3.13 SHARING OF PAYMENTS.
\n ——————- <\/p>\n
The Lenders agree among themselves that, in the event that any Lender shall
\nobtain payment in respect of any Loan any other obligation owing to such Lender
\nunder this Credit Agreement through the exercise of a right of setoff, banker’s
\nlien or counterclaim, or pursuant to a secured claim under Section 506 of Title
\n11 of the United States Code or other security or interest arising from, or in
\nlieu of, such secured claim, received by such Lender under any applicable
\nbankruptcy, insolvency or other similar law or otherwise, or by any other means,
\nin excess of its pro rata share of such payment as provided for in this <\/p>\n
15<\/p>\n
Credit Agreement, such Lender shall promptly purchase from the other Lenders a
\nparticipation in such Loans and other obligations in such amounts, and make such
\nother adjustments from time to time, as shall be equitable to the end that all
\nLenders share such payment in accordance with their respective ratable shares as
\nprovided for in this Credit Agreement. The Lenders further agree among
\nthemselves that if payment to a Lender obtained by such Lender through the
\nexercise of a right of setoff, banker’s lien, counterclaim or other event as
\naforesaid shall be rescinded or must otherwise be restored, each Lender which
\nshall have shared the benefit of such payment shall, by repurchase of a
\nparticipation theretofore sold, return its share of that benefit (together with
\nits share of any accrued interest payable with respect thereto) to each Lender
\nwhose payment shall have been rescinded or otherwise restored. The Borrower
\nagrees that any Lender so purchasing such a participation may, to the fullest
\nextent permitted by law, exercise all rights of payment, including setoff,
\nbanker’s lien or counterclaim, with respect to such participation as fully as if
\nsuch Lender were a holder of such Loan or other obligation in the amount of such
\nparticipation. Except as otherwise expressly provided in this Credit Agreement,
\nif any Lender or the Administrative Agent shall fail to remit to the
\nAdministrative Agent or any other Lender an amount payable by such Lender or the
\nAdministrative Agent to the Administrative Agent or such other Lender pursuant
\nto this Credit Agreement on the date when such amount is due, such payments
\nshall be made together with interest thereon for each date from the date such
\namount is due until the date such amount is paid to the Administrative Agent or
\nsuch other Lender at a rate per annum equal to the Federal Funds Rate. If under
\nany applicable bankruptcy, insolvency or other similar law, any Lender receives
\na secured claim in lieu of a setoff to which this Section 3.13 applies, such
\nLender shall, to the extent practicable, exercise its rights in respect of such
\nsecured claim in a manner consistent with the rights of the Lenders under this
\nSection 3.13 to share in the benefits of any recovery on such secured claim.<\/p>\n
O. 3.14 PAYMENTS, COMPUTATIONS, ETC.
\n —————————-<\/p>\n
(a) Except as otherwise specifically provided herein, all payments
\nhereunder shall be made to the Administrative Agent in Dollars in immediately
\navailable funds, without setoff, deduction, counterclaim or withholding of any
\nkind, at the Administrative Agent’s office specified in Section 9.1 not later
\nthan 2:00 P.M. (Charlotte, North Carolina time) on the date when due. Payments
\nreceived after such time shall be deemed to have been received on the next
\nsucceeding Business Day. The Administrative Agent may (but shall not be
\nobligated to) debit the amount of any such payment which is not made by such
\ntime to any ordinary deposit account of the Borrower maintained with the
\nAdministrative Agent (with notice to the Borrower). The Borrower shall, at the
\ntime it makes any payment under this Credit Agreement, specify to the
\nAdministrative Agent the Loans, Fees, interest or other amounts payable by the
\nBorrower hereunder to which such payment is to be applied (and in the event that
\nit fails so to specify, or if such application would be inconsistent with the
\nterms hereof, the Administrative Agent shall distribute such payment to the
\nLenders in such manner as the Administrative Agent may determine to be
\nappropriate in respect of obligations owing by the Borrower hereunder, subject
\nto the terms of Section 3.12(a)). The Administrative Agent will distribute such
\npayments to such Lenders, if any such payment is received prior to 12:00 Noon
\n(Charlotte, North Carolina time) on a Business Day in like funds as received
\nprior to the end of such Business Day and otherwise the Administrative Agent
\nwill distribute such payment to such Lenders on the next succeeding Business
\nDay. Whenever any payment hereunder shall be stated to be due on a day which is
\nnot a Business Day, the due date thereof shall be extended to the next
\nsucceeding Business Day (subject to accrual of interest and Fees for the period
\nof such extension), except that in the case of Eurodollar Loans, if the
\nextension would cause the payment to be made in the next following calendar
\nmonth, then such payment shall instead be made on the next preceding Business
\nDay. Except as expressly provided otherwise herein, all computations of
\ninterest and fees shall be made on the basis of actual number of days elapsed
\nover a year of 360 days, except with respect to computation of interest on Base
\nRate Loans which (unless the Base Rate <\/p>\n
16<\/p>\n
is determined by reference to the Federal Funds Rate) shall be calculated based
\non a year of 365 or 366 days, as appropriate. Interest shall accrue from and
\ninclude the date of borrowing, but exclude the date of payment.<\/p>\n
(b) Allocation of Payments After Event of Default. Notwithstanding any
\n ———————————————
\nother provisions of this Credit Agreement to the contrary, after the occurrence
\nand during the continuance of an Event of Default, all amounts collected or
\nreceived by the Administrative Agent or any Lender on account of the Obligations
\nor any other amounts outstanding under any of the Credit Documents shall be paid
\nover or delivered as follows:<\/p>\n
FIRST, to the payment of all reasonable and documented out-of-pocket
\n costs and expenses (including without limitation reasonable attorneys’
\n fees) of the Administrative Agent in connection with enforcing the rights
\n of the Lenders under the Credit Documents, except to the extent any such
\n costs arise out of or relate to disputes solely between or among the
\n Administrative Lender and\/or the Lenders;<\/p>\n
SECOND, to payment of any fees owed to the Administrative Agent;<\/p>\n
THIRD, to the payment of all reasonable and documented out-of-pocket
\n costs and expenses (including without limitation, reasonable attorneys’
\n fees) of each of the Lenders in connection with enforcing its rights under
\n the Credit Documents or otherwise with respect to the Obligations owing to
\n such Lender, except to the extent any such costs arise out of or relate to
\n disputes solely between or among the Administrative Lender and\/or the
\n Lenders;<\/p>\n
FOURTH, to the payment of all accrued interest and fees on or in
\n respect of the Obligations;<\/p>\n
FIFTH, to the payment of the outstanding principal amount of the
\n Obligations;<\/p>\n
SIXTH, to all other Obligations and other obligations which shall have
\n become due and payable under the Credit Documents or otherwise and not
\n repaid pursuant to clauses “FIRST” through “FIFTH” above; and<\/p>\n
SEVENTH, to the payment of the surplus, if any, to whoever may be
\n lawfully entitled to receive such surplus.<\/p>\n
In carrying out the foregoing, (i) amounts received shall be applied in the
\nnumerical order provided until exhausted prior to application to the next
\nsucceeding category; and (ii) each of the Lenders shall receive an amount equal
\nto its pro rata share (based on the proportion that the then outstanding
\nObligations held by such Lender bears to the aggregate then outstanding
\nObligations) of amounts available to be applied pursuant to clauses “THIRD”,
\n“FOURTH”, “FIFTH” and “SIXTH” above.<\/p>\n
P. 3.15 EVIDENCE OF DEBT.
\n —————- <\/p>\n
(a) Each Lender shall maintain an account or accounts evidencing each Loan
\nmade by such Lender to the Borrower from time to time, including the amounts of
\nprincipal and interest payable and paid to such Lender from time to time under
\nthis Credit Agreement. Each Lender will make reasonable efforts to <\/p>\n
17<\/p>\n
maintain the accuracy of its account or accounts and to promptly update its
\naccount or accounts from time to time, as necessary.<\/p>\n
(b) The Administrative Agent shall maintain the Register pursuant to
\nSection 9.3(c) hereof, and a subaccount for each Lender, in which Register and
\nsubaccounts (taken together) shall be recorded (i) the amount, type and Interest
\nPeriod of each such Loan hereunder, (ii) the amount of any principal or interest
\ndue and payable or to become due and payable to each Lender hereunder and (iii)
\nthe amount of any sum received by the Administrative Agent hereunder from or for
\nthe account of the Borrower and each Lender’s share thereof. The Administrative
\nAgent will make reasonable efforts to maintain the accuracy of the subaccounts
\nreferred to in the preceding sentence and to promptly update such subaccounts
\nfrom time to time, as necessary.<\/p>\n
(c) The entries made in the accounts, Register and subaccounts maintained
\npursuant to subsection (b) of this Section 3.15 (and, if consistent with the
\nentries of the Administrative Agent, subsection (a)) shall be prima facie
\nevidence of the existence and amounts of the obligations of the Borrower therein
\nrecorded; provided, however, that the failure of any Lender or the
\n ——– ——-
\nAdministrative Agent to maintain any such account, such Register or such
\nsubaccount, as applicable, or any error therein, shall not in any manner affect
\nthe obligation of the Borrower to repay the Loans made by such Lender in
\naccordance with the terms hereof.<\/p>\n
5. SECTION 4
\nGUARANTY
\n——–<\/p>\n
A. 4.1 THE GUARANTEE.
\n ————- <\/p>\n
Each of the Guarantors hereby jointly and severally guarantees to each
\nLender, to each Affiliate of a Lender that enters into a Hedging Agreement and
\nto the Administrative Agent as hereinafter provided the prompt payment of the
\nGuaranteed Obligations in full when due (whether at stated maturity, as a
\nmandatory prepayment, by acceleration, a mandatory cash collateralization or
\notherwise) strictly in accordance with the terms thereof. The Guarantors hereby
\nfurther agree that if any of the Guaranteed Obligations are not paid in full
\nwhen due (whether at stated maturity, as a mandatory prepayment, by
\nacceleration, as mandatory cash collateralization or otherwise), the Guarantors
\nwill, jointly and severally, promptly pay the same, without any demand or notice
\nwhatsoever, and that in the case of any extension of time of payment or renewal
\nof any of the Guaranteed Obligations, the same will be promptly paid in full
\nwhen due (whether at extended maturity, as a mandatory prepayment, by
\nacceleration or otherwise) in accordance with the terms of such extension or
\nrenewal.<\/p>\n
Notwithstanding any provision to the contrary contained herein or in any
\nother of the Credit Documents or Hedging Agreements, to the extent the
\nobligations of a Guarantor shall be adjudicated to be invalid or unenforceable
\nfor any reason (including, without limitation, because of any applicable state
\nor federal law relating to fraudulent conveyances or transfers) then the
\nobligations of each Guarantor hereunder shall be limited to the maximum amount
\nthat is permissible under applicable law (whether federal or state and
\nincluding, without limitation, the Bankruptcy Code).<\/p>\n
B. 4.2 OBLIGATIONS UNCONDITIONAL.
\n ————————- <\/p>\n
18<\/p>\n
The obligations of the Guarantors under Section 4.1 hereof are joint and
\nseveral, absolute and unconditional, irrespective of the value, genuineness,
\nvalidity, regularity or enforceability of any of the Credit Documents or Hedging
\nAgreements, or any other agreement or instrument referred to therein, or any
\nsubstitution, release or exchange of any other guarantee of or security for any
\nof the Guaranteed Obligations, and, to the fullest extent permitted by
\napplicable law, irrespective of any other circumstance whatsoever which might
\notherwise constitute a legal or equitable discharge or defense of a surety or
\nguarantor, it being the intent of this Section 4.2 that the obligations of the
\nGuarantors hereunder shall be absolute and unconditional under any and all
\ncircumstances. Each Guarantor agrees that such Guarantor shall have no right of
\nsubrogation, indemnity, reimbursement or contribution against the Borrower or
\nany other Guarantor of the Guaranteed Obligations for amounts paid under this
\nGuaranty until such time as the Lenders (and any Affiliates of Lenders entering
\ninto Hedging Agreements) have been paid in full, all Commitments under the
\nCredit Agreement have been terminated and no Person or Governmental Authority
\nshall have any right to request any return or reimbursement of funds from the
\nLenders in connection with monies received under the Credit Documents or Hedging
\nAgreements. Without limiting the generality of the foregoing, it is agreed
\nthat, to the fullest extent permitted by law, the occurrence of any one or more
\nof the following shall not alter or impair the liability of any Guarantor
\nhereunder which shall remain absolute and unconditional as described above:<\/p>\n
(i) at any time or from time to time, without notice to any
\n Guarantor, the time for any performance of or compliance with any of the
\n Guaranteed Obligations shall be extended, or such performance or compliance
\n shall be waived;<\/p>\n
(ii) any of the acts mentioned in any of the provisions of any of the
\n Credit Documents, any Hedging Agreement or any other agreement or
\n instrument referred to in the Credit Documents or Hedging Agreements shall
\n be done or omitted;<\/p>\n
(iii) the maturity of any of the Guaranteed Obligations shall be
\n accelerated, or any of the Guaranteed Obligations shall be modified,
\n supplemented or amended in any respect, or any right under any of the
\n Credit Documents, any Hedging Agreement or any other agreement or
\n instrument referred to in the Credit Documents or Hedging Agreements shall
\n be waived or any other guarantee of any of the Guaranteed Obligations or
\n any security therefor shall be released or exchanged in whole or in part or
\n otherwise dealt with;<\/p>\n
(iv) any Lien granted to, or in favor of, the Administrative Agent or
\n any Lender or Lenders as security for any of the Guaranteed Obligations
\n shall fail to attach or be perfected; or<\/p>\n
(v) any of the Guaranteed Obligations shall be determined to be void
\n or voidable (including, without limitation, for the benefit of any creditor
\n of any Guarantor) or shall be subordinated to the claims of any Person
\n (including, without limitation, any creditor of any Guarantor).<\/p>\n
With respect to its obligations hereunder, each Guarantor hereby expressly
\nwaives diligence, presentment, demand of payment, protest and all notices
\nwhatsoever, and any requirement that the Administrative Agent or any Lender
\nexhaust any right, power or remedy or proceed against any Person under any of
\nthe Credit Documents, any Hedging Agreement or any other agreement or instrument
\nreferred to in the Credit Documents or Hedging Agreements, or against any other
\nPerson under any other guarantee of, or security for, any of the Guaranteed
\nObligations.<\/p>\n
19<\/p>\n
C. 4.3 REINSTATEMENT.
\n ————- <\/p>\n
The obligations of the Guarantors under this Section 4 shall be
\nautomatically reinstated if and to the extent that for any reason any payment by
\nor on behalf of any Person in respect of the Guaranteed Obligations is rescinded
\nor must be otherwise restored by any holder of any of the Guaranteed
\nObligations, whether as a result of any proceedings in bankruptcy or
\nreorganization or otherwise, and each Guarantor agrees that it will indemnify
\nthe Administrative Agent and each Lender on demand for all reasonable costs and
\nexpenses (including, without limitation, fees and expenses of counsel) incurred
\nby the Administrative Agent or such Lender in connection with such rescission or
\nrestoration, including any such costs and expenses incurred in defending against
\nany claim alleging that such payment constituted a preference, fraudulent
\ntransfer or similar payment under any bankruptcy, insolvency or similar law.<\/p>\n
D. 4.4 CERTAIN ADDITIONAL WAIVERS.
\n ————————– <\/p>\n
Without limiting the generality of the provisions of this Section 4, each
\nGuarantor hereby specifically waives the benefits of N.C. Gen. Stat. (S)(S) 26-7
\nthrough 26-9, inclusive. Each Guarantor further agrees that such Guarantor
\nshall have no right of recourse to security for the Guaranteed Obligations,
\nexcept through the exercise of the rights of subrogation pursuant to Section
\n4.2.<\/p>\n
E. 4.5 REMEDIES.
\n ——– <\/p>\n
The Guarantors agree that, to the fullest extent permitted by law, as
\nbetween the Guarantors, on the one hand, and the Administrative Agent and the
\nLenders, on the other hand, the Guaranteed Obligations may be declared to be
\nforthwith due and payable as provided in Section 7.2 hereof (and shall be deemed
\nto have become automatically due and payable in the circumstances provided in
\nsaid Section 7.2) for purposes of Section 4.1 hereof notwithstanding any stay,
\ninjunction or other prohibition preventing such declaration (or preventing the
\nGuaranteed Obligations from becoming automatically due and payable) as against
\nany other Person and that, in the event of such declaration (or the Guaranteed
\nObligations being deemed to have become automatically due and payable), the
\nGuaranteed Obligations (whether or not due and payable by any other Person)
\nshall forthwith become due and payable by the Guarantors for purposes of said
\nSection 4.1.<\/p>\n
F. 4.6 RIGHTS OF CONTRIBUTION.
\n ———————- <\/p>\n
The Guarantors hereby agree, as among themselves, that if any Guarantor
\nshall become an Excess Funding Guarantor (as defined below), each other
\nGuarantor shall, on demand of such Excess Funding Guarantor (but subject to the
\nsucceeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
\nan amount equal to such Guarantor’s Pro Rata Share (as defined below and
\ndetermined, for this purpose, without reference to the properties, assets,
\nliabilities and debts of such Excess Funding Guarantor) of such Excess Payment
\n(as defined below). The payment obligation of any Guarantor to any Excess
\nFunding Guarantor under this Section 4.6 shall be subordinate and subject in
\nright of payment to the prior payment in full of the obligations of such
\nGuarantor under the other provisions of this Section 4, and such Excess Funding
\nGuarantor shall not exercise any right or remedy with respect to such excess
\nuntil payment and satisfaction in full of all of such obligations. For purposes
\nhereof, (i) “Excess Funding Guarantor” shall mean, in respect of any obligations
\n ————————
\narising under the other provisions of this Section 4 (hereafter, the <\/p>\n
20<\/p>\n
“Guarantied Obligations”), a Guarantor that has paid an amount in excess of its
\n ———————-
\nPro Rata Share of the Guarantied Obligations; (ii) “Excess Payment” shall mean,
\n ————–
\nin respect of any Guarantied Obligations, the amount paid by an Excess Funding
\nGuarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
\n(iii) “Pro Rata Share”, for the purposes of this Section 4.6, shall mean, for
\n ————–
\nany Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
\nthe aggregate present fair saleable value of all of its assets and properties
\nexceeds the amount of all debts and liabilities of such Guarantor (including
\ncontingent, subordinated, unmatured, and unliquidated liabilities, but excluding
\nthe obligations of such Guarantor hereunder) to (b) the amount by which the
\naggregate present fair saleable value of all assets and other properties of the
\nBorrower and all of the Guarantors exceeds the amount of all of the debts and
\nliabilities (including contingent, subordinated, unmatured, and unliquidated
\nliabilities, but excluding the obligations of the Borrower and the Guarantors
\nhereunder) of the Borrower and all of the Guarantors, all as of the Closing Date
\n(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
\nfor the purposes of this Section 4.6 such subsequent Guarantor shall be deemed
\nto have been a Guarantor as of the Closing Date and the information pertaining
\nto, and only pertaining to, such Guarantor as of the date such Guarantor became
\na Guarantor shall be deemed true as of the Closing Date).<\/p>\n
G. 4.7 CONTINUING GUARANTEE.
\n ——————– <\/p>\n
The guarantee in this Section 4 is a continuing guarantee, and shall apply
\nto all Guaranteed Obligations whenever arising.<\/p>\n
6. SECTION 5
\nCONDITIONS
\n———-<\/p>\n
A. 5.1 CONDITIONS TO CLOSING.
\n ——————— <\/p>\n
This Credit Agreement shall become effective, and the initial Extensions of
\nCredit may be made, upon the satisfaction (or waiver) of the following
\nconditions precedent:<\/p>\n
(a) Execution of Credit Agreement and Credit Documents. Receipt of (i)
\n ————————————————–
\nmultiple counterparts of this Credit Agreement, (ii) a Note for each Lender,
\n(iii) multiple counterparts of the Pledge Agreement, (iv) multiple counterparts
\nof the Security Agreement and (v) UCC financing statements relating to the
\nSecurity Agreement and the Pledge Agreement, in each case executed by a duly
\nauthorized officer of each party thereto and in each case conforming to the
\nrequirements of this Credit Agreement.<\/p>\n
(b) Legal Opinions. Receipt of multiple counterparts of opinions of
\n ————–
\ncounsel for the Credit Parties relating to the Credit Documents and the
\ntransactions contemplated herein, in form and substance satisfactory to the
\nAdministrative Agent and the Lenders.<\/p>\n
(c) Stock Certificates. Acknowledgment from NationsBank, N.A., as
\n ——————
\nAdministrative Agent under the Revolving Credit Agreement, (i) of its receipt of
\noriginal stock certificates evidencing the ownership interests of the Credit
\nParties pledged pursuant to the Pledge Agreement, together in each case with
\noriginal undated stock powers executed in blank, (ii) of the interests of the
\nAdministrative Agent and the Lenders hereunder therein pursuant to <\/p>\n
21<\/p>\n
the Pledge Agreement and (iii) that it holds such stock certificates and stock
\npowers as bailee for the Administrative Agent hereunder.<\/p>\n
(d) Financial Information. Receipt of financial information regarding the
\n ———————
\nBorrower and its subsidiaries, as may be requested by, and in each case in form
\nand substance satisfactory to the Administrative Agent and the Lenders.<\/p>\n
(e) Absence of Legal Proceedings. The absence of any action, suit,
\n —————————-
\ninvestigation or proceeding pending in any court or before any arbitrator or
\ngovernmental instrumentality which could reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
(f) Corporate Documents. Receipt of the following (or their equivalent)
\n ——————-
\nfor each of the Credit Parties:<\/p>\n
(i) Resolutions. Copies of resolutions of the Board of
\n ———–
\n Directors approving and adopting the respective Credit Documents, the
\n transactions contemplated therein and authorizing execution and delivery
\n thereof, certified by a secretary or assistant secretary as of the Closing
\n Date to be true and correct and in force and effect as of such date.<\/p>\n
(ii) Good Standing. Copies, where applicable, of (A)
\n ————-
\n certificates of good standing, existence or its equivalent certified as of
\n a recent date by the appropriate governmental authorities of the state of
\n incorporation and each other state in which the failure to so qualify and
\n be in good standing would in the aggregate have a Material Adverse Effect
\n and (B) certificates indicating payment of all corporate franchise taxes
\n certified as of a recent date by the appropriate governmental taxing
\n authorities.<\/p>\n
(iii) Officer’s Certificate. An officer’s certificate for each
\n ———————
\n of the Credit Parties dated as of the Closing Date substantially in the
\n form of Schedule 5.1(f)(v) with appropriate insertions and attachments.
\n —————— <\/p>\n
(g) Fees. Receipt of all fees, if any, owing pursuant to Section 3.5 or
\n —-
\notherwise.<\/p>\n
(h) Amendment No. 1 to Revolving Credit Agreement. Receipt by the
\n ———————————————
\nAdministrative Agent of an executed copy of Amendment No. 1 to the Revolving
\nCredit Agreement, in form and substance satisfactory to the Lenders hereunder.<\/p>\n
(i) Subsection 5.2 Conditions. The conditions specified in Section 5.2
\n ————————-
\nshall be satisfied.<\/p>\n
(j) Additional Matters. All other documents and legal matters in
\n ——————
\nconnection with the transactions contemplated by this Credit Agreement shall be
\nreasonably satisfactory in form and substance to the Agents and the Required
\nLenders.<\/p>\n
B. 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
\n ————————————– <\/p>\n
22<\/p>\n
The obligation of each Lender to make any Extension of Credit hereunder
\n(including the initial Extension of Credit to be made hereunder) is subject to
\nthe satisfaction (or waiver) of the following conditions precedent on the date
\nof making such Extension of Credit:<\/p>\n
(a) Representations and Warranties. The representations and warranties
\n ——————————
\nmade by the Credit Parties herein or in any other Credit Documents or which are
\ncontained in any certificate furnished at any time under or in connection
\nherewith shall be true and correct in all material respects on and as of the
\ndate of such Extension of Credit as if made on and as of such date (except for
\nthose which expressly relate to an earlier date).<\/p>\n
(b) No Default or Event of Default. No Default or Event of Default shall
\n ——————————
\nhave occurred and be continuing on such date or after giving effect to the
\nExtension of Credit to be made on such date unless such Default or Event of
\nDefault shall have been waived in accordance with this Credit Agreement.<\/p>\n
(c) No Bankruptcy Event. No Bankruptcy Event shall have occurred and be
\n ——————-
\ncontinuing with respect to any of the Credit Parties.<\/p>\n
(d) No Material Adverse Effect. No circumstances, events or conditions
\n ————————–
\nshall have occurred since the date of the audited financial statements
\nreferenced in Section 6.1 which would have a Material Adverse Effect.<\/p>\n
(e) Additional Conditions to Revolving Loans. If a Revolving Loan is made
\n —————————————-
\npursuant to Section 2.1, all conditions set forth therein shall have been
\nsatisfied.<\/p>\n
Each request for Extension of Credit (including extensions and conversions)
\nand each acceptance by the Borrower of an Extension of Credit (including
\nextensions and conversions) shall be deemed to constitute a representation and
\nwarranty by the Borrower as of the date of such Extension of Credit that the
\napplicable conditions in paragraphs (a), (b), (c), (d) and (e) of this
\nsubsection have been satisfied.<\/p>\n
7. SECTION 6
\nREPRESENTATIONS AND WARRANTIES; COVENANTS
\n—————————————–<\/p>\n
A. 6.1 INCORPORATION.
\n ————- <\/p>\n
The representations and warranties contained in Section 6 of the Revolving
\nCredit Agreement as in effect on the Closing Date (the “Incorporated
\n ————
\nRepresentations”) and the affirmative and negative covenants contained in
\n—————
\nSection 7 and Section 8 (other than Sections 8.9 and 8.12), respectively, of the
\nRevolving Credit Agreement as in effect on the Closing Date (the “Incorporated
\n ————
\nCovenants”), are incorporated herein by reference with the same effect as if
\n———
\nstated at length herein. The Credit Parties affirm and represent and warrant to
\nthe Administrative Agent and the Lenders that the Incorporated Representations
\nare true and correct in all material respects as of the date hereof (except for
\nthose which expressly relate to an earlier date) and covenant and agree that the
\nIncorporated Covenants shall be as binding on <\/p>\n
23<\/p>\n
the Credit Parties as if set forth fully herein, provided that (i) any amendment
\n ——–
\nor modification to the Incorporated Representations or to the Incorporated
\nCovenants under the Revolving Credit Agreement subsequent to the Closing Date
\nshall not be given effect to hereunder unless consented to in writing by the
\nRequired Lenders hereunder and (ii) in the event that the Revolving Credit
\nAgreement shall be refinanced or replaced by another credit agreement, then the
\nIncorporated Representations and Incorporated Covenants shall be, subject to the
\nforegoing clause(i), as in effect immediately prior to such refinancing or
\nreplacement.<\/p>\n
B. 6.2 ADDITIONAL COVENANTS.
\n ——————– <\/p>\n
(a) Additional Credit Party. The Borrower will provide to the
\n ———————–
\nAdministrative Agent, for the benefit of the Lenders, a Joinder Agreement and
\nthe other items required by Section 7.11 of the Incorporated Covenants in the
\nsame form and from the same Subsidiaries as required therein, except that such
\nJoinder Agreement and other items shall reflect that they are delivered to, and
\nrun in favor of, the Administrative Agent and secure the obligations of the
\nCredit Parties under this Credit Agreement and the other Credit Documents.<\/p>\n
(b) Prepayments of Indebtedness, etc. Each of the Credit Parties
\n ———————————
\ncovenants and agrees that no member of the Consolidated Group shall:<\/p>\n
(i) After the issuance thereof, amend or modify (or permit the
\n amendment or modification of), the terms of any other Indebtedness (other
\n than Indebtedness under the Revolving Credit Agreement) in a manner adverse
\n to the interests of the Lenders (including specifically shortening any
\n maturity or average life to maturity or requiring any payment sooner than
\n previously scheduled or increasing the interest rate or fees applicable
\n thereto); or<\/p>\n
(ii) Make any prepayment, redemption, defeasance or acquisition for
\n value of (including without limitation, by way of depositing money or
\n securities with the trustee with respect thereto before due for the purpose
\n of paying when due), or refund, refinance or exchange of any Funded Debt
\n (other than intercompany Indebtedness permitted hereunder and Indebtedness
\n under the Revolving Credit Agreement) other than regularly scheduled
\n payments of principal and interest on such Funded Debt.<\/p>\n
(c) No Further Negative Pledges. Each of the Credit Parties covenants and
\n —————————
\nagrees that, except with respect to (i) prohibitions against other encumbrances
\non specific Property encumbered to secure payment of particular Indebtedness
\n(which Indebtedness relates solely to such specific Property, and improvements
\nand accretions thereto, and is otherwise permitted hereby) and (ii) the
\nRevolving Credit Agreement, no member of the Consolidated Group will enter into,
\nassume or become subject to any agreement prohibiting or otherwise restricting
\nthe creation or assumption of any Lien upon its properties or assets, whether
\nnow owned or hereafter acquired, or requiring the grant of any security for such
\nobligation if security is given for some other obligation.<\/p>\n
8. SECTION 7
\nEVENTS OF DEFAULT
\n—————–<\/p>\n
24<\/p>\n
A. 7.1 EVENTS OF DEFAULT.
\n —————– <\/p>\n
An Event of Default shall exist upon the occurrence of any of the following
\nspecified events (each an “Event of Default”):
\n —————- <\/p>\n
(a) Payment. Any Credit Party shall
\n ——- <\/p>\n
(i) default in the payment when due of any principal of any of the
\n Loans, or<\/p>\n
(ii) default, and such defaults shall continue for three (3) or more
\n Business Days, in the payment when due of any interest on the Loans or of
\n any Fees or other amounts owing hereunder, under any of the other Credit
\n Documents or in connection herewith or therewith; or<\/p>\n
(b) Representations. Any representation, warranty or statement made or
\n —————
\ndeemed to be made herein, in any of the other Credit Documents, or in any
\nstatement or certificate delivered or required to be delivered pursuant hereto
\nor thereto shall prove untrue in any material respect on the date as of which it
\nwas deemed to have been made; or<\/p>\n
(c) Covenants.
\n ——— <\/p>\n
(i) Default in the due performance or observance of any term,
\n covenant or agreement contained in Section 7.3(a), 7.9, 7.13 or 8.1 through
\n 8.12, in each case of the Incorporated Covenants (except in the case of the
\n negative covenants contained in Sections 8.1 through 8.12, in each case of
\n the Incorporated Covenants, those Defaults which may occur or arise other
\n than on account of or by affirmative or intentional act of a Credit Party or
\n event or condition which a Credit Party shall with knowledge permit to
\n exist, all of which shall be subject to the provisions of clause (ii)
\n hereof), inclusive, or<\/p>\n
(ii) Default in the due performance or observance by it of any term,
\n covenant or agreement (other than those referred to in subsections (a), (b)
\n or (c)(i) of this Section 7.1) contained in this Credit Agreement and such
\n default shall continue unremedied for a period of at least 30 days after the
\n earlier of a responsible officer of a Credit Party becoming aware of such
\n default or notice thereof by the Administrative Agent; or<\/p>\n
(d) Other Credit Documents. (i) Any Credit Party shall default in the due
\n ———————-
\nperformance or observance of any material term, covenant or agreement in any of
\nthe other Credit Documents (subject to applicable grace or cure periods, if
\nany), or (ii) except as to the Credit Party which is dissolved, released or
\nmerged or consolidated out of existence as the result of or in connection with a
\ndissolution, merger or disposition permitted by Section 8.4(a), Section 8.4(b)
\nor Section 8.4(c), in each case of the Incorporated Covenants, any Credit
\nDocument shall fail to be in full force and effect or to give the Administrative
\nAgent and\/or the Lenders any material part of the Liens, rights, powers and
\nprivileges purported to be created thereby; or<\/p>\n
25<\/p>\n
(e) Guaranties. Except as to the Credit Party which is dissolved,
\n ———-
\nreleased or merged or consolidated out of existence as the result of or in
\nconnection with a dissolution, merger or disposition permitted by Section
\n8.4(a), Section 8.4(b) or Section 8.4(c), in each case of the Incorporated
\nCovenants, the guaranty given by any Guarantor hereunder or any material
\nprovision thereof shall cease to be in full force and effect, or any Guarantor
\nhereunder or any Person acting by or on behalf of such Guarantor shall deny or
\ndisaffirm such Guarantor’s obligations under such guaranty, or any Guarantor
\nshall default in the due performance or observance of any term, covenant or
\nagreement on its part to be performed or observed pursuant to any guaranty; or<\/p>\n
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
\n —————
\nCredit Party; or<\/p>\n
(g) Defaults under Other Agreements. With respect to any Indebtedness
\n ——————————-
\n(other than Indebtedness outstanding under this Credit Agreement) in excess of
\n$5,000,000 in the aggregate for the Consolidated Group taken as a whole, (A) (1)
\nany member of the Consolidated Group shall default in any payment (beyond the
\napplicable grace period with respect thereto, if any) with respect to any such
\nIndebtedness, or (2) the occurrence and continuance of a default in the
\nobservance or performance relating to such Indebtedness or contained in any
\ninstrument or agreement evidencing, securing or relating thereto, or any other
\nevent or condition shall occur or condition exist, the effect of which default
\nor other event or condition is to cause, or permit, the holder or holders of
\nsuch Indebtedness (or trustee or agent on behalf of such holders) to cause
\n(determined without regard to whether any notice or lapse of time is required),
\nany such Indebtedness to become due prior to its stated maturity; or (B) any
\nsuch Indebtedness shall be declared due and payable, or required to be prepaid
\nother than by a regularly scheduled required prepayment, prior to the stated
\nmaturity thereof; or<\/p>\n
(h) Judgments. Any member of the Consolidated Group shall fail within 30
\n ———
\ndays of the date due and payable to pay, bond or otherwise discharge any
\njudgment, settlement or order for the payment of money which judgment,
\nsettlement or order, when aggregated with all other such judgments, settlements
\nor orders due and unpaid at such time, exceeds $5,000,000, and which is not
\nstayed on appeal (or for which no motion for stay is pending) or is not
\notherwise being executed; or<\/p>\n
(i) ERISA. Any of the following events or conditions, if such event or
\n —–
\ncondition could reasonably be expected to have a Material Adverse Effect and is
\nnot subject to indemnification in favor of the Consolidated Group: (1) any
\n“accumulated funding deficiency,” as such term is defined in Section 302 of
\nERISA and Section 412 of the Code, whether or not waived, shall exist with
\nrespect to any Plan, or any lien shall arise on the assets of a member of the
\nConsolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an
\nERISA Event shall occur with respect to a Single Employer Plan, which is, in the
\nreasonable opinion of the Administrative Agent, likely to result in the
\ntermination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
\nshall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
\nwhich is, in the reasonable opinion of the Administrative Agent, likely to
\nresult in (i) the termination of such Plan for purposes of Title IV of ERISA, or
\n(ii) a member of the Consolidated Group or any ERISA Affiliate incurring any
\nliability in connection with a withdrawal from, reorganization of (within the
\nmeaning of Section 4241 of ERISA), or insolvency of (within the meaning of
\nSection 4245 of ERISA) such Plan; or (4) any prohibited transaction (within the
\nmeaning of Section 406 of ERISA or Section 4975 of the Code) or <\/p>\n
26<\/p>\n
breach of fiduciary responsibility shall occur which may subject a member of the
\nConsolidated Group or any ERISA Affiliate to any liability under Sections 406,
\n409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
\nagreement or other instrument pursuant to which a member of the Consolidated
\nGroup or any ERISA Affiliate has agreed or is required to indemnify any person
\nagainst any such liability; or<\/p>\n
(j) Ownership. There shall occur a Change of Control; or
\n ——— <\/p>\n
(k) Revolving Credit Agreement. There shall occur an Event of Default
\n ————————–
\nunder the Revolving Credit Agreement.<\/p>\n
B. 7.2 ACCELERATION; REMEDIES.
\n ———————- <\/p>\n
Upon the occurrence of an Event of Default, and at any time thereafter, the
\nAdministrative Agent shall, upon the request and direction of the Required
\nLenders, by written notice to the Credit Parties take any of the following
\nactions:<\/p>\n
(i) Termination of Commitments. Declare the Commitments terminated
\n ————————–
\n whereupon the Commitments shall be immediately terminated.<\/p>\n
(ii) Acceleration. Declare the unpaid principal of and any accrued
\n ————
\n interest in respect of all Loans and any and all other indebtedness or
\n obligations of any and every kind owing by the Credit Parties to the
\n Administrative Agent and\/or any of the Lenders hereunder to be due whereupon
\n the same shall be immediately due and payable without presentment, demand,
\n protest or other notice of any kind, all of which are hereby waived by each
\n of the Credit Parties.<\/p>\n
(iii) Enforcement of Rights. Enforce any and all rights and interests
\n ———————
\n created and existing under the Credit Documents and all rights of set-off.<\/p>\n
Notwithstanding the foregoing, if an Event of Default specified in Section
\n7.1(f) shall occur, then the Commitments shall automatically terminate and all
\nLoans, all accrued interest in respect thereof, all accrued and unpaid Fees and
\nother indebtedness or obligations owing to the Administrative Agent and\/or any
\nof the Lenders hereunder automatically shall immediately become due and payable
\nwithout presentment, demand, protest or the giving of any notice or other action
\nby the Administrative Agent or the Lenders, all of which are hereby waived by
\nthe Credit Parties.<\/p>\n
9. SECTION 8
\nAGENCY PROVISIONS
\n—————–<\/p>\n
A. 8.1 APPOINTMENT.
\n ———– <\/p>\n
Each Lender hereby designates and appoints NationsBank, N.A. as
\nadministrative agent of such Lender to act as specified herein and the other
\nCredit Documents, and each such Lender hereby authorizes <\/p>\n
27<\/p>\n
the Administrative Agent as the Administrative Agent for such Lender, to take
\nsuch action on its behalf under the provisions of this Credit Agreement and the
\nother Credit Documents and to exercise such powers and perform such duties as
\nare expressly delegated by the terms hereof and of the other Credit Documents,
\ntogether with such other powers as are reasonably incidental thereto. Each
\nLenders further directs and authorizes the Administrative Agent to execute
\nreleases (or similar agreements) to give effect to the provisions of this Credit
\nAgreement and the other Credit Documents, including specifically without
\nlimitation the provisions of Section 8.4 hereof. Notwithstanding any provision
\nto the contrary elsewhere herein and in the other Credit Documents, the
\nAdministrative Agent shall not have any duties or responsibilities to any
\nLender, except those expressly set forth herein and therein, or any fiduciary
\nrelationship with any Lender, and no implied covenants, functions,
\nresponsibilities, duties, obligations or liabilities to any Lender shall be read
\ninto this Credit Agreement or any of the other Credit Documents, or shall
\notherwise exist against the Administrative Agent. The provisions of this Section
\nare solely for the benefit of the Administrative Agent and the Lenders and none
\nof the Credit Parties shall (i) have any rights as a third party beneficiary of
\nthe provisions hereof or (ii) have any other rights otherwise and elsewhere
\ngiven them limited by the provisions hereof. In performing its functions and
\nduties under this Credit Agreement and the other Credit Documents, the
\nAdministrative Agent shall act solely as Administrative Agent of the Lenders and
\ndoes not assume and shall not be deemed to have assumed any obligation or
\nrelationship of agency or trust with or for any Credit Party or any of their
\nrespective Affiliates.<\/p>\n
B. 8.2 DELEGATION OF DUTIES.
\n ——————– <\/p>\n
The Administrative Agent may execute any of its duties hereunder or under
\nthe other Credit Documents by or through agents or attorneys-in-fact and shall
\nbe entitled to advice of counsel concerning all matters pertaining to such
\nduties. The Administrative Agent shall not be responsible for the negligence or
\nmisconduct of any agents or attorneys-in-fact selected by it with reasonable
\ncare.<\/p>\n
C. 8.3 EXCULPATORY PROVISIONS.
\n ———————- <\/p>\n
The Administrative Agent and its officers, directors, employees, agents,
\nattorneys-in-fact or affiliates shall not be (i) liable for any action lawfully
\ntaken or omitted to be taken by it or such Person under or in connection
\nherewith or in connection with any of the other Credit Documents (except for its
\nor such Person’s own gross negligence or willful misconduct), or (ii)
\nresponsible in any manner to any of the Lenders for any recitals, statements,
\nrepresentations or warranties made by any of the Credit Parties contained herein
\nor in any of the other Credit Documents or in any certificate, report, document,
\nfinancial statement or other written or oral statement referred to or provided
\nfor in, or received by the Administrative Agent under or in connection herewith
\nor in connection with the other Credit Documents, or enforceability or
\nsufficiency therefor of any of the other Credit Documents, or for any failure of
\nany Credit Party to perform its obligations hereunder or thereunder. The
\nAdministrative Agent shall not be responsible to any Lender for the
\neffectiveness, genuineness, validity, enforceability, collectability or
\nsufficiency of this Credit Agreement, or any of the other Credit Documents or
\nfor any representations, warranties, recitals or statements made herein or
\ntherein or made by the Borrower or any Credit Party in any written or oral
\nstatement or in any financial or other statements, instruments, reports,
\ncertificates or any other documents in connection herewith or therewith
\nfurnished or made by the Administrative Agent to the Lenders or by or on behalf
\nof the Credit Parties to the Administrative Agent or any Lender or be required
\nto ascertain or inquire as to the performance or observance of any of the terms,
\nconditions, provisions, covenants or agreements contained herein or therein or
\nas to the use of the proceeds of the Loans or of the existence or possible<\/p>\n
28<\/p>\n
existence of any Default or Event of Default or to inspect the properties, books
\nor records of the Credit Parties or any of their respective Affiliates.<\/p>\n
D. 8.4 RELIANCE ON COMMUNICATIONS.
\n ————————– <\/p>\n
The Administrative Agent shall be entitled to rely, and shall be fully
\nprotected in relying, upon any note, writing, resolution, notice, consent,
\ncertificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
\nmessage, statement, order or other document or conversation believed by it to be
\ngenuine and correct and to have been signed, sent or made by the proper Person
\nor Persons and upon advice and statements of legal counsel (including, without
\nlimitation, counsel to any of the Credit Parties, independent accountants and
\nother experts selected by the Administrative Agent with reasonable care). The
\nAdministrative Agent may deem and treat the Lenders as the owners of their
\nrespective interests hereunder for all purposes unless a written notice of
\nassignment, negotiation or transfer thereof shall have been filed with the
\nAdministrative Agent in accordance with Section 9.3(b) hereof. The
\nAdministrative Agent shall be fully justified in failing or refusing to take any
\naction under this Credit Agreement or under any of the other Credit Documents
\nunless it shall first receive such advice or concurrence of the Required Lenders
\nas it deems appropriate or it shall first be indemnified to its satisfaction by
\nthe Lenders against any and all liability and expense which may be incurred by
\nit by reason of taking or continuing to take any such action. The
\nAdministrative Agent shall in all cases be fully protected in acting, or in
\nrefraining from acting, hereunder or under any of the other Credit Documents in
\naccordance with a request of the Required Lenders (or to the extent specifically
\nprovided in Section 9.6, all the Lenders) and such request and any action taken
\nor failure to act pursuant thereto shall be binding upon all the Lenders
\n(including their successors and assigns).<\/p>\n
E. 8.5 NOTICE OF DEFAULT.
\n —————– <\/p>\n
The Administrative Agent shall not be deemed to have knowledge or notice of
\nthe occurrence of any Default or Event of Default hereunder unless the
\nAdministrative Agent has received notice from a Lender or a Credit Party
\nreferring to the Credit Document, describing such Default or Event of Default
\nand stating that such notice is a “notice of default.” In the event that the
\nAdministrative Agent receives such a notice, the Administrative Agent shall give
\nprompt notice thereof to the Lenders. The Administrative Agent shall take such
\naction with respect to such Default or Event of Default as shall be reasonably
\ndirected by the Required Lenders.<\/p>\n
F. 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
\n —————————————————— <\/p>\n
Each Lender expressly acknowledges that each of the Administrative Agent
\nand its officers, directors, employees, Administrative Agents, attorneys-in-fact
\nor affiliates has not made any representations or warranties to it and that no
\nact by the Administrative Agent or any affiliate thereof hereinafter taken,
\nincluding any review of the affairs of any Credit Party or any of their
\nrespective Affiliates, shall be deemed to constitute any representation or
\nwarranty by the Administrative Agent to any Lender. Each Lender represents to
\nthe Administrative Agent that it has, independently and without reliance upon
\nthe Administrative Agent or any other Lender, and based on such documents and
\ninformation as it has deemed appropriate, made its own appraisal of and
\ninvestigation into the business, assets, operations, property, financial and
\nother conditions, prospects and creditworthiness of the Borrower, the other
\nCredit Parties or their respective Affiliates and made its own decision to make
\nits Loans hereunder and enter into this Credit <\/p>\n
29<\/p>\n
Agreement. Each Lender also represents that it will, independently and without
\nreliance upon the Administrative Agent or any other Lender, and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit analysis, appraisals and decisions in taking or not taking
\naction under this Credit Agreement, and to make such investigation as it deems
\nnecessary to inform itself as to the business, assets, operations, property,
\nfinancial and other conditions, prospects and creditworthiness of the Borrower,
\nthe other Credit Parties and their respective Affiliates. Except for notices,
\nreports and other documents expressly required to be furnished to the Lenders by
\nthe Administrative Agent hereunder, the Administrative Agent shall not have any
\nduty or responsibility to provide any Lender with any credit or other
\ninformation concerning the business, operations, assets, property, financial or
\nother conditions, prospects or creditworthiness of the Borrower, the other
\nCredit Parties or any of their respective Affiliates which may come into the
\npossession of the Administrative Agent or any of its officers, directors,
\nemployees, Administrative Agents, attorneys-in-fact or affiliates.<\/p>\n
G. 8.7 INDEMNIFICATION.
\n ————— <\/p>\n
The Lenders agree to indemnify the Administrative Agent in its capacity as
\nsuch (to the extent not reimbursed by the Borrower and without limiting the
\nobligation of the Borrower to do so), ratably according to their respective
\nCommitments (or if the Commitments have expired or been terminated, in
\naccordance with the respective principal amounts of outstanding Loans and
\nParticipation Interests of the Lenders), from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements of any kind whatsoever which may at any time
\n(including without limitation at any time following the final payment of all of
\nthe obligations of the Borrower hereunder and under the other Credit Documents)
\nbe imposed on, incurred by or asserted against the Administrative Agent in its
\ncapacity as such in any way relating to or arising out of this Credit Agreement
\nor the other Credit Documents or any documents contemplated by or referred to
\nherein or therein or the transactions contemplated hereby or thereby or any
\naction taken or omitted by the Administrative Agent under or in connection with
\nany of the foregoing; provided that no Lender shall be liable for the payment of
\n ——–
\nany portion of such liabilities, obligations, losses, damages, penalties,
\nactions, judgments, suits, costs, expenses or disbursements resulting from the
\ngross negligence or willful misconduct of the Administrative Agent. If any
\nindemnity furnished to the Administrative Agent for any purpose shall, in the
\nopinion of the Administrative Agent, be insufficient or become impaired, the
\nAdministrative Agent may call for additional indemnity and cease, or not
\ncommence, to do the acts indemnified against until such additional indemnity is
\nfurnished. The agreements in this Section shall survive the repayment of the
\nLoans and other obligations under the Credit Documents and the termination of
\nthe Commitments hereunder.<\/p>\n
H. 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
\n ———————————————– <\/p>\n
The Administrative Agent and its affiliates may make loans to, accept
\ndeposits from and generally engage in any kind of business with the Borrower,
\nits Subsidiaries or their respective Affiliates as though the Administrative
\nAgent were not the Administrative Agent hereunder. With respect to the Loans
\nmade by and all obligations of the Borrower hereunder and under the other Credit
\nDocuments, the Administrative Agent shall have the same rights and powers under
\nthis Credit Agreement as any Lender and may exercise the same as though it were
\nnot the Administrative Agent, and the terms “Lender” and “Lenders” shall include
\nthe Administrative Agent in its individual capacity.<\/p>\n
I. 8.9 SUCCESSOR ADMINISTRATIVE AGENT.
\n —————————— <\/p>\n
30<\/p>\n
The Administrative Agent may, at any time, resign upon 20 days’ written
\nnotice to the Lenders, and may be removed, upon show of cause, by the Required
\nLenders upon 30 days’ written notice to the Administrative Agent. Upon any such
\nresignation or removal, the Required Lenders shall have the right to appoint a
\nsuccessor Administrative Agent. If no successor Administrative Agent shall have
\nbeen so appointed by the Required Lenders, and shall have accepted such
\nappointment, within 30 days after the notice of resignation or notice of
\nremoval, as appropriate, then the retiring Administrative Agent shall select a
\nsuccessor Administrative Agent provided such successor is a Lender hereunder or
\na commercial bank organized under the laws of the United States of America or of
\nany State thereof and has a combined capital and surplus of at least
\n$500,000,000. Upon the acceptance of any appointment as Administrative Agent
\nhereunder by a successor, such successor Administrative Agent shall thereupon
\nsucceed to and become vested with all the rights, powers, privileges and duties
\nof the retiring Administrative Agent, and the retiring Administrative Agent
\nshall be discharged from its duties and obligations as Administrative Agent, as
\nappropriate, under this Credit Agreement and the other Credit Documents and the
\nprovisions of this Section 8.9 shall inure to its benefit as to any actions
\ntaken or omitted to be taken by it while it was Administrative Agent under this
\nCredit Agreement.<\/p>\n
J. 8.10 INTERCREDITOR AGREEMENT.
\n ———————– <\/p>\n
Inasmuch as the obligations under the Revolving Credit Agreement are
\nsecured by the same collateral as that securing the obligations under this
\nCredit Agreement, an intercreditor agreement is required in order that the
\nrespective obligations share in such collateral on a pari passu basis. By
\nexecution hereof, each Lender hereby acknowledges and agrees to be bound by the
\nterms of the Intercreditor Agreement and further authorizes and directs the
\nAdministrative Agent to enter into the Intercreditor Agreement on its behalf.<\/p>\n
10. SECTION 9
\nMISCELLANEOUS
\n————-<\/p>\n
A. 9.1 NOTICES.
\n ——- <\/p>\n
Except as otherwise expressly provided herein, all notices and other
\ncommunications shall have been duly given and shall be effective (i) when
\ndelivered, (ii) when transmitted via telecopy (or other facsimile device) to the
\nnumber set out below, (iii) the day following the day on which the same has been
\ndelivered prepaid to a reputable national overnight air courier service, or (iv)
\nthe third Business Day following the day on which the same is sent by certified
\nor registered mail, postage prepaid, in each case to the respective parties at
\nthe address, in the case of the Borrower, Guarantors and the Administrative
\nAgent, set forth below, and, in the case of the Lenders, set forth on Schedule
\n ——–
\n9.1, or at such other address as such party may specify by written notice to the
\n—
\nother parties hereto:<\/p>\n
31<\/p>\n
if to the Borrower or the Guarantors:<\/p>\n
Navigant International, Inc.
\n 84 Inverness Circle East
\n Englewood, Colorado 80112-5314
\n Attn: General Counsel
\n Telephone: (303) 706-0800
\n Telecopy: (303) 706-0678<\/p>\n
if to the Administrative Agent:<\/p>\n
NationsBank, N.A.
\n 101 N. Tryon Street
\n Independence Center, 15th Floor
\n NC1-001-15-04
\n Charlotte, North Carolina 28255
\n Attn: Agency Services
\n Telephone: (704) 388-9436
\n Telecopy: (704) 388-1108<\/p>\n
with a copy to:<\/p>\n
NationsBank, N.A.
\n Corporate Finance Group
\n 6610 Rockledge Drive, 6th Floor
\n MD2-600-06-13
\n Bethesda, Maryland 20817-1876
\n Attn: Michael R. Heredia
\n Telephone: (301) 571-0724
\n Telecopy: (301) 571-0719<\/p>\n
B. 9.2 RIGHT OF SET-OFF.
\n —————- <\/p>\n
In addition to any rights now or hereafter granted under applicable law or
\notherwise, and not by way of limitation of any such rights, upon the occurrence
\nof an Event of Default, each Lender is authorized at any time and from time to
\ntime, without presentment, demand, protest or other notice of any kind (all of
\nwhich rights being hereby expressly waived), to set-off and to appropriate and
\napply any and all deposits (general or special) and any other indebtedness at
\nany time held or owing by such Lender (including, without limitation branches,
\nagencies or Affiliates of such Lender wherever located) to or for the credit or
\nthe account of any Credit Party against obligations and liabilities of such
\nPerson to such Lender hereunder, under the Notes, the other Credit Documents or
\notherwise, irrespective of whether such Lender shall have made any demand
\nhereunder and although such obligations, liabilities or claims, or any of them,
\nmay be contingent or unmatured, and any such set-off shall be deemed to have
\nbeen made immediately upon the occurrence of an Event of Default even though
\nsuch charge is made or entered on the books of such Lender subsequent thereto.
\nAny Person purchasing a participation in the Loans and Commitments hereunder
\npursuant to Section 3.13 or Section 9.3(d) may exercise all rights of set-off
\nwith respect to its participation interest as fully as if such Person were a
\nLender hereunder.<\/p>\n
32<\/p>\n
C. 9.3 BENEFIT OF AGREEMENT.
\n ——————– <\/p>\n
(a) Generally. This Credit Agreement shall be binding upon and inure to
\n ———
\nthe benefit of and be enforceable by the respective successors and assigns of
\nthe parties hereto; provided that none of the Credit Parties may assign or
\n ——–
\ntransfer any of its interests without prior written consent of the Lenders;
\nprovided further that the rights of each Lender to transfer, assign or grant
\n——– ——-
\nparticipations in its rights and\/or obligations hereunder shall be limited as
\nset forth in this Section 9.3, provided however that nothing herein shall
\n ——–
\nprevent or prohibit any Lender from (i) pledging its Loans hereunder to a
\nFederal Reserve Bank in support of borrowings made by such Lender from such
\nFederal Reserve Bank, or (ii) granting assignments or selling participations in
\nsuch Lender’s Loans and\/or Commitments hereunder to its parent company and\/or to
\nany Affiliate or Subsidiary of such Lender.<\/p>\n
(b) Assignments. Each Lender may assign all or a portion of its rights
\n ———–
\nand obligations hereunder (including, without limitation, all or a portion of
\nits Commitments or its Loans), pursuant to an assignment agreement substantially
\nin the form of Schedule 9.3(b), to (i) a Lender, (ii) an affiliate of a Lender
\n —————
\nor (iii) any other Person (other than the Borrower or an Affiliate of the
\nBorrower) reasonably acceptable to the Administrative Agent and, so long as no
\nDefault or Event of Default has occurred and is continuing, the Borrower (the
\nconsent of the Borrower shall not be unreasonably withheld or delayed and such
\nconsent shall be deemed given if the Borrower does not notify the assigning
\nLender and the Administrative Agent of any objection within two Business Days
\nafter the Borrower has been provided notice of the proposed assignment by the
\nassigning Lender or the Administrative Agent); provided that (i) any such
\n ——–
\nassignment (other than any assignment to an existing Lender) shall be in a
\nminimum aggregate amount of $5,000,000 (or, if less, the remaining amount of the
\nCommitment being assigned by such Lender) of the Commitments and in integral
\nmultiples of $1,000,000 above such amount and (ii) each such assignment shall be
\nof a constant, not varying, percentage of all such Lender’s rights and
\nobligations under this Credit Agreement. Any assignment hereunder shall be
\neffective upon delivery to the Administrative Agent of written notice of the
\nassignment together with a transfer fee of $3,500 payable to the Administrative
\nAgent for its own account from and after the later of (i) the effective date
\nspecified in the applicable assignment agreement and (ii) the date of recording
\nof such assignment in the Register pursuant to the terms of subsection (c)
\nbelow. The assigning Lender will give prompt notice to the Administrative Agent
\nand the Borrower of any such assignment. Upon the effectiveness of any such
\nassignment (and after notice to, and (to the extent required pursuant to the
\nterms hereof), with the consent of, the Borrower as provided herein), the
\nassignee shall become a “Lender” for all purposes of this Credit Agreement and
\nthe other Credit Documents and, to the extent of such assignment, the assigning
\nLender shall be relieved of its obligations hereunder to the extent of the Loans
\nand Commitment components being assigned. Along such lines the Borrower agrees
\nthat upon notice of any such assignment and surrender of the appropriate Note or
\nNotes, it will promptly provide to the assigning Lender and to the assignee
\nseparate promissory notes in the amount of their respective interests
\nsubstantially in the form of the original Note (but with notation thereon that
\nit is given in substitution for and replacement of the original Note or any
\nreplacement notes thereof). By executing and delivering an assignment agreement
\nin accordance with this Section 9.3(b), the assigning Lender thereunder and the
\nassignee thereunder shall be deemed to confirm to and agree with each other and
\nthe other parties hereto as follows: (i) such assigning Lender warrants that it
\nis the legal and beneficial owner of the interest being assigned thereby free
\nand clear of any adverse claim; (ii) except as set forth in clause (i) above,
\nsuch assigning Lender makes no representation or warranty and assumes no
\nresponsibility with respect to any statements, warranties or representations
\nmade in or in connection with this Credit Agreement, any of the other Credit
\nDocuments or any other instrument or document furnished pursuant hereto or
\nthereto, or the execution, legality, validity, enforceability, genuineness,
\nsufficiency or value of this Credit Agreement, any of the other Credit Documents
\nor any other instrument or document furnished<\/p>\n
33<\/p>\n
pursuant hereto or thereto or the financial condition of any Credit Party or any
\nof their respective Affiliates or the performance or observance by any Credit
\nParty of any of its obligations under this Credit Agreement, any of the other
\nCredit Documents or any other instrument or document furnished pursuant hereto
\nor thereto; (iii) such assignee represents and warrants that it is legally
\nauthorized to enter into such assignment agreement; (iv) such assignee confirms
\nthat it has received a copy of this Credit Agreement, the other Credit Documents
\nand such other documents and information as it has deemed appropriate to make
\nits own credit analysis and decision to enter into such assignment agreement;
\n(v) such assignee will independently and without reliance upon the
\nAdministrative Agent, such assigning Lender or any other Lender, and based on
\nsuch documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit decisions in taking or not taking action under
\nthis Credit Agreement and the other Credit Documents; (vi) such assignee
\nappoints and authorizes the Administrative Agent to take such action on its
\nbehalf and to exercise such powers under this Credit Agreement or any other
\nCredit Document as are delegated to the Administrative Agent by the terms hereof
\nor thereof, together with such powers as are reasonably incidental thereto; and
\n(vii) such assignee agrees that it will perform in accordance with their terms
\nall the obligations which by the terms of this Credit Agreement and the other
\nCredit Documents are required to be performed by it as a Lender.<\/p>\n
(c) Maintenance of Register. The Administrative Agent shall maintain at
\n ———————–
\none of its offices in Charlotte, North Carolina a copy of each Lender assignment
\nagreement delivered to it in accordance with the terms of subsection (b) above
\nand a register for the recordation of the identity of the principal amount, type
\nand Interest Period of each Loan outstanding hereunder, the names, addresses and
\nthe Commitments of the Lenders pursuant to the terms hereof from time to time
\n(the “Register”). The Administrative Agent will make reasonable efforts to
\n ——–
\nmaintain the accuracy of the Register and to promptly update the Register from
\ntime to time, as necessary. The entries in the Register shall be conclusive in
\nthe absence of manifest error and the Borrower, the Administrative Agent and the
\nLenders may treat each Person whose name is recorded in the Register pursuant to
\nthe terms hereof as a Lender hereunder for all purposes of this Credit
\nAgreement. The Register shall be available for inspection by the Borrower and
\neach Lender, at any reasonable time and from time to time upon reasonable prior
\nnotice.<\/p>\n
(d) Participations. Each Lender may sell, transfer, grant or assign
\n ————–
\nparticipations in all or a portion of such Lender’s rights, obligations or
\nrights and obligations hereunder (including all or a portion of its Commitments
\nor its Loans); provided that (i) such selling Lender shall remain a “Lender” for
\n ——–
\nall purposes under this Credit Agreement (such selling Lender’s obligations
\nunder the Credit Documents remaining unchanged) and the participant shall not
\nconstitute a Lender hereunder, (ii) no such participant shall have, or be
\ngranted, rights to approve any amendment or waiver relating to this Credit
\nAgreement or the other Credit Documents except to the extent any such amendment
\nor waiver would (A) reduce the principal of or rate of interest on or Fees in
\nrespect of any Loans in which the participant is participating, (B) postpone the
\ndate fixed for any payment of principal (including extension of the Termination
\nDate), interest or Fees in which the participant is participating, (C) except as
\nexpressly provided in the Credit Documents, release any Guarantor from its
\nguaranty obligations hereunder, or (D) except as the result of or in connection
\nwith a disposition permitted under Section 8.4(b), release all or substantially
\nall of the collateral, and (iii) sub-participations by the participant (except
\nto an affiliate, parent company or affiliate of a parent company of the
\nparticipant) shall be prohibited. In the case of any such participation, the
\nparticipant shall not have any rights under this Credit Agreement or the other
\nCredit Documents (the participant’s rights against the selling Lender in respect
\nof such participation to be those set forth in the participation agreement with
\nsuch Lender creating such participation) and all amounts payable by the Borrower
\nhereunder shall be determined as if such Lender had not sold such participation,
\nprovided, however, that such participant shall be entitled to receive additional
\n——–
\namounts under Sections 3.6, 3.9, 3.10, 3.11 and 9.2 on the same basis as if it
\nwere a Lender.<\/p>\n
34<\/p>\n
D. 9.4 NO WAIVER; REMEDIES CUMULATIVE.
\n —————————— <\/p>\n
No failure or delay on the part of the Administrative Agent or any Lender
\nin exercising any right, power or privilege hereunder or under any other Credit
\nDocument and no course of dealing between the Administrative Agent or any Lender
\nand any of the Credit Parties shall operate as a waiver thereof; nor shall any
\nsingle or partial exercise of any right, power or privilege hereunder or under
\nany other Credit Document preclude any other or further exercise thereof or the
\nexercise of any other right, power or privilege hereunder or thereunder. The
\nrights and remedies provided herein are cumulative and not exclusive of any
\nrights or remedies which the Administrative Agent or any Lender would otherwise
\nhave. No notice to or demand on any Credit Party in any case shall entitle the
\nBorrower or any other Credit Party to any other or further notice or demand in
\nsimilar or other circumstances or constitute a waiver of the rights of the
\nAdministrative Agent or the Lenders to any other or further action in any
\ncircumstances without notice or demand.<\/p>\n
E. 9.5 PAYMENT OF EXPENSES, ETC.
\n ———————— <\/p>\n
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
\nexpenses (A) of the Administrative Agent in connection with the negotiation,
\npreparation, execution and delivery and administration of this Credit Agreement
\nand the other Credit Documents and the documents and instruments referred to
\ntherein (including, without limitation, the reasonable and documented fees and
\nexpenses of Moore & Van Allen, PLLC, special counsel to the Administrative
\nAgent) and any amendment, waiver or consent relating hereto and thereto
\nincluding, but not limited to, any such amendments, waivers or consents
\nresulting from or related to any work-out, renegotiation or restructure relating
\nto the performance by the Credit Parties under this Credit Agreement and (B) of
\nthe Administrative Agent and the Lenders in connection with enforcement of the
\nCredit Documents and the documents and instruments referred to therein
\n(including, without limitation, in connection with any such enforcement, the
\nreasonable and documented fees and disbursements of counsel for the
\nAdministrative Agent and each of the Lenders and documented); (ii) pay and hold
\neach of the Lenders harmless from and against any and all present and future
\nstamp and other similar taxes with respect to the foregoing matters and save
\neach of the Lenders harmless from and against any and all liabilities with
\nrespect to or resulting from any delay or omission (other than to the extent
\nattributable to such Lender) to pay such taxes; and (iii) indemnify each Lender,
\nits officers, directors, employees, representatives and Administrative Agents
\nfrom and hold each of them harmless against any and all losses, liabilities,
\nclaims, damages or expenses incurred by any of them as a result of, or arising
\nout of, or in any way related to, or by reason of (A) any investigation,
\nlitigation or other proceeding (whether or not any Lender is a party thereto)
\nrelated to the entering into and\/or performance of any Credit Document or the
\nuse of proceeds of any Loans (including other extensions of credit) hereunder or
\nthe consummation of any other transactions contemplated in any Credit Document,
\nincluding, without limitation, the reasonable and documented fees and
\ndisbursements of counsel incurred in connection with any such investigation,
\nlitigation or other proceeding, except to the extent any such costs arise out of
\nor relate to disputes solely between or among the Administrative Agent and\/or
\nthe Lenders or (B) the presence or Release of any Materials of Environmental
\nConcern at, under or from any Property owned, operated or leased by the Borrower
\nor any of its Subsidiaries, or the failure by the Borrower or any of its
\nSubsidiaries to comply with any Environmental Law (but excluding, in the case of
\neither of clause (A) or (B) above, any such losses, liabilities, claims, damages
\nor expenses to the extent incurred by reason of gross negligence or willful
\nmisconduct on the part of the Person to be indemnified).<\/p>\n
35<\/p>\n
F. 9.6 AMENDMENTS, WAIVERS AND CONSENTS.
\n ——————————– <\/p>\n
Neither this Credit Agreement nor any other Credit Document nor any of the
\nterms hereof or thereof may be amended, changed, waived, discharged or
\nterminated unless such amendment, change, waiver, discharge or termination is in
\nwriting entered into by, or approved in writing by, the Required Lenders and the
\nBorrower, provided, however, that:
\n ——– ——- <\/p>\n
(a) without the consent of each Lender affected thereby, neither this
\nCredit Agreement nor any of the other Credit Documents may be amended to<\/p>\n
(i) extend the final maturity of any Loan or extend or waive
\n any principal amortization payment of any Loan, or any portion
\n thereof,<\/p>\n
(ii) reduce the rate or extend the time of payment of interest
\n (other than as a result of waiving the applicability of any increase
\n in interest rates after the occurrence of an Event of Default or on
\n account of a failure to deliver financial statements on a timely
\n basis) thereon or Fees hereunder,<\/p>\n
(iii) reduce or waive the principal amount of any Loan,<\/p>\n
(iv) increase the Commitment of a Lender over the amount
\n thereof in effect (it being understood and agreed that a waiver of any
\n Default or Event of Default or mandatory reduction in the Commitments
\n shall not constitute a change in the terms of any Commitment of any
\n Lender),<\/p>\n
(v) except as the result of or in connection with a
\n dissolution, merger or disposition of a Subsidiary permitted under
\n Section 8.4 of the Incorporated Covenants, release the Borrower or
\n substantially all of the other Credit Parties from its or their
\n obligations under the Credit Documents,<\/p>\n
(vi) except as the result of or in connection with a
\n disposition permitted under Section 8.4(b) of the Incorporated
\n Covenants, release all or substantially all of the collateral,<\/p>\n
(vii) except as a result of or in connection with a dissolution,
\n merger or disposition of a Subsidiary permitted under Section 8.4 of
\n the Incorporated Covenants, release the Borrower or all or
\n substantially all of the Guarantors from their obligations under the
\n Credit Agreement,<\/p>\n
(viii) amend, modify or waive any provision of this Section 9.6
\n or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 7.1(a),
\n 9.2, 9.3, 9.5 or 9.9,<\/p>\n
(ix) reduce any percentage specified in, or otherwise modify,
\n the definition of Required Lenders, or<\/p>\n
(x) consent to the assignment or transfer by the Borrower (or
\n another Credit Party) of any of its rights and obligations under (or
\n in respect of) the Credit Documents except as permitted thereby;<\/p>\n
36<\/p>\n
(b) without the consent of the Agent, no provision of Section 8 may be
\namended.<\/p>\n
Notwithstanding the fact that the consent of all the Lenders is required in
\ncertain circumstances as set forth above, (x) each Lender is entitled to vote as
\nsuch Lender sees fit on any bankruptcy reorganization plan that affects the
\nLoans, and each Lender acknowledges that the provisions of Section 1126(c) of
\nthe Bankruptcy Code supersedes the unanimous consent provisions set forth herein
\nand (y) the Required Lenders may consent to allow a Credit Party to use cash
\ncollateral in the context of a bankruptcy or insolvency proceeding.<\/p>\n
G. 9.7 COUNTERPARTS.
\n ———— <\/p>\n
This Credit Agreement may be executed in any number of counterparts, each
\nof which when so executed and delivered shall be an original, but all of which
\nshall constitute one and the same instrument. It shall not be necessary in
\nmaking proof of this Credit Agreement to produce or account for more than one
\nsuch counterpart.<\/p>\n
H. 9.8 HEADINGS.
\n ——– <\/p>\n
The headings of the sections and subsections hereof are provided for
\nconvenience only and shall not in any way affect the meaning or construction of
\nany provision of this Credit Agreement.<\/p>\n
I. 9.9 SURVIVAL.
\n ——– <\/p>\n
All indemnities set forth herein, including, without limitation, in Section
\n2.2(i), 3.9, 3.11, 8.7 or 9.5 shall survive the execution and delivery of this
\nCredit Agreement, the making of the Loans, the repayment of the Loans and other
\nobligations under the Credit Documents and the termination of the Commitments
\nhereunder, and all representations and warranties made by the Credit Parties
\nherein shall survive delivery of the Notes and the making of the Loans
\nhereunder.<\/p>\n
J. 9.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
\n ———————————————— <\/p>\n
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
\nAND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
\nCONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
\nCAROLINA. Any legal action or proceeding with respect to this Credit Agreement
\nor any other Credit Document may be brought in the courts of the State of North
\nCarolina in Mecklenburg County, or of the United States for the Western District
\nof North Carolina, and, by execution and delivery of this Credit Agreement, each
\nof the Credit Parties hereby irrevocably accepts for itself and in respect of
\nits property, generally and unconditionally, the nonexclusive jurisdiction of
\nsuch courts. Each of the Credit Parties further irrevocably consents to the
\nservice of process out of any of the aforementioned courts in any such action or
\nproceeding by the mailing of copies thereof by registered or certified mail,
\npostage prepaid, to it at the address set out for notices pursuant to Section
\n9.1, such service to become effective three (3) days after such mailing. Nothing
\nherein shall affect the right of the Administrative Agent <\/p>\n
37<\/p>\n
to serve process in any other manner permitted by law or to commence legal
\nproceedings or to otherwise proceed against any Credit Party in any other
\njurisdiction.<\/p>\n
(b) Each of the Credit Parties hereby irrevocably waives any objection
\nwhich it may now or hereafter have to the laying of venue of any of the
\naforesaid actions or proceedings arising out of or in connection with this
\nCredit Agreement or any other Credit Document brought in the courts referred to
\nin subsection (a) hereof and hereby further irrevocably waives and agrees not to
\nplead or claim in any such court that any such action or proceeding brought in
\nany such court has been brought in an inconvenient forum.<\/p>\n
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE
\nLENDERS, THE BORROWER AND THE CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT
\nTO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
\nRELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
\nTRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
K. 9.11 SEVERABILITY.
\n ———— <\/p>\n
If any provision of any of the Credit Documents is determined to be
\nillegal, invalid or unenforceable, such provision shall be fully severable and
\nthe remaining provisions shall remain in full force and effect and shall be
\nconstrued without giving effect to the illegal, invalid or unenforceable
\nprovisions.<\/p>\n
L. 9.12 ENTIRETY.
\n ——– <\/p>\n
This Credit Agreement together with the other Credit Documents represent
\nthe entire agreement of the parties hereto and thereto, and supersede all prior
\nagreements and understandings, oral or written, if any, including any commitment
\nletters or correspondence relating to the Credit Documents or the transactions
\ncontemplated herein and therein.<\/p>\n
M. 9.13 BINDING EFFECT; TERMINATION.
\n ————————— <\/p>\n
(a) This Credit Agreement shall become effective at such time on or after
\nthe Closing Date when it shall have been executed by the Borrower, the
\nGuarantors and the Administrative Agent, and the Administrative Agent shall have
\nreceived copies hereof (telefaxed or otherwise) which, when taken together, bear
\nthe signatures of each Lender, and thereafter this Credit Agreement shall be
\nbinding upon and inure to the benefit of the Borrower, the Guarantors, the
\nAdministrative Agent and each Lender and their respective successors and
\nassigns.<\/p>\n
(b) The term of this Credit Agreement shall be until no Loans or any other
\namounts payable hereunder or under any of the other Credit Documents shall
\nremain outstanding and until all of the Commitments hereunder shall have expired
\nor been terminated.<\/p>\n
N. 9.14 CONFIDENTIALITY.
\n ————— <\/p>\n
38<\/p>\n
The Administrative Agent and the Lenders agree to keep confidential (and to
\ncause their respective affiliates, officers, directors, employees, agents and
\nrepresentatives to keep confidential) all information, materials and documents
\nfurnished to the Administrative Agent or any such Lender by or on behalf of any
\nCredit Party (whether before or after the Closing Date) which relates to the
\nBorrower or any of its Subsidiaries (the “Information”). Notwithstanding the
\n ———–
\nforegoing, the Administrative Agent and each Lender shall be permitted to
\ndisclose Information (i) to its affiliates, officers, directors, employees,
\nAdministrative Agents and representatives in connection with its participation
\nin any of the transactions evidenced by this Credit Agreement or any other
\nCredit Documents or the administration of this Credit Agreement or any other
\nCredit Documents; (ii) to the extent required by applicable laws and regulations
\nor by any subpoena or similar legal process, or requested by any Governmental
\nAuthority; (iii) to the extent such Information (A) becomes publicly available
\nother than as a result of a breach of this Credit Agreement or any agreement
\nentered into pursuant to clause (iv) below, (B) becomes available to the
\nAdministrative Agent or such Lender on a non-confidential basis from a source
\nother than a Credit Party or (C) was available to the Administrative Agent or
\nsuch Lender on a non-confidential basis prior to its disclosure to the
\nAdministrative Agent or such Lender by a Credit Party; (iv) to any assignee or
\nparticipant (or prospective assignee or participant) so long as such assignee or
\nparticipant (or prospective assignee or participant) first specifically agrees
\nin a writing furnished to and for the benefit of the Credit Parties to be bound
\nby the terms of this Section 9.14; or (v) to the extent that the Borrower shall
\nhave consented in writing to such disclosure. Nothing set forth in this Section
\n9.14 shall obligate the Administrative Agent or any Lender to return any
\nmaterials furnished by the Credit Parties.<\/p>\n
O. 9.15 SOURCE OF FUNDS.
\n ————— <\/p>\n
Each of the Lenders hereby represents and warrants to the Borrower that at
\nleast one of the following statements is an accurate representation as to the
\nsource of funds to be used by such Lender in connection with the financing
\nhereunder:<\/p>\n
(a) no part of such funds constitutes assets allocated to any separate
\naccount maintained by such Lender in which any employee benefit plan (or its
\nrelated trust) has any interest;<\/p>\n
(b) to the extent that any part of such funds constitutes assets allocated
\nto any separate account maintained by such Lender, such Lender has disclosed to
\nthe Borrower the name of each employee benefit plan whose assets in such account
\nexceed 10% of the total assets of such account as of the date of such purchase
\n(and, for purposes of this subsection (b), all employee benefit plans maintained
\nby the same employer or employee organization are deemed to be a single plan);<\/p>\n
(c) to the extent that any part of such funds constitutes assets of an
\ninsurance company’s general account, such insurance company has complied with
\nall of the requirements of the regulations issued under Section 401(c)(1)(A) of
\nERISA; or<\/p>\n
(d) such funds constitute assets of one or more specific benefit plans
\nwhich such Lender has identified in writing to the Borrower.<\/p>\n
As used in this Section 9.15, the terms “employee benefit plan” and “separate
\naccount” shall have the respective meanings assigned to such terms in Section 3
\nof ERISA.<\/p>\n
P. 9.16 CONFLICT.
\n ——– <\/p>\n
39<\/p>\n
To the extent that there is a conflict or inconsistency between any
\nprovision hereof, on the one hand, and any provision of any Credit Document, on
\nthe other hand, this Credit Agreement shall control.<\/p>\n
[Signature Page to Follow]<\/p>\n
40<\/p>\n
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
\nthis Credit Agreement to be duly executed and delivered as of the date first
\nabove written.<\/p>\n
BORROWER: NAVIGANT INTERNATIONAL, INC.
\n——–
\n a Delaware corporation <\/p>\n
By: \/s\/ Eugene A. Over, Jr.
\n ————————
\n Name: Eugene A. Over, Jr.
\n Title: Vice President <\/p>\n
GUARANTORS: PROFESSIONAL TRAVEL CORPORATION,
\n———-
\n a Colorado corporation
\n ASSOCIATED TRAVEL SERVICES, LLC,
\n a Delaware limited liability company
\n MCGREGOR TRAVEL MANAGEMENT, INC.,
\n a Connecticut corporation
\n MTA, INC.,
\n a Washington corporation
\n ENVISION VACATIONS, INC.,
\n a Michigan corporation
\n OMNI TRAVEL SERVICE, INC.,
\n a Massachusetts corporation
\n SIMMONS ASSOCIATES, INC.,
\n a Virginia corporation
\n TRAVEL CONSULTANTS, INC.,
\n a Michigan corporation
\n TRAVELCORP., INC.,
\n a Minnesota corporation
\n WAREHEIM TRAVEL SERVICES, INC.,
\n a Maryland corporation
\n WORLD EXPRESS TRAVEL, INC.,
\n an Alaska corporation
\n BOWERS WORLDWIDE TRAVEL SERVICE, INC.,
\n an Arizona corporation
\n ARRINGTON TRAVEL CENTER, INC.,
\n an Illinois corporation <\/p>\n
By: \/s\/ Eugene A. Over, Jr.
\n ————————
\n Name: Eugene A. Over, Jr.
\n Title: Vice President of each of the foregoing
\n Guarantors
\n [Signature Pages Follow]<\/p>\n
ATLAS TRAVEL SERVICES, LP,
\n a Texas limited partnership<\/p>\n
By: ATLAS TRAVEL GP, INC.,
\n a Texas corporation<\/p>\n
By: \/s\/ Eugene A. Over, Jr.
\n ————————
\n Name: Eugene A. Over, Jr.
\n Title: Vice President<\/p>\n
[Signature Pages Follow]<\/p>\n
LENDERS: NATIONSBANK, N.A.,
\n——-
\n individually in its capacity as a
\n Lender and in its capacity as Administrative Agent<\/p>\n
By: \/s\/ Chittaranjan D. Swamidasan
\n ——————————-
\n Name: Chittaranjan D. Swamidasan
\n Title: Vice President<\/p>\n
U.S. BANK NATIONAL ASSOCIATION<\/p>\n
By: \/s\/ George E. Adams
\n ——————-
\n Name: George E. Adams
\n Title: Vice President<\/p>\n
Schedule 2.1(a)
\n —————
\n Schedule of Lenders and Commitments<\/p>\n
\n\n Revolving Revolving
\n Lender Committed Amount Commitment Percentage
\n——————————————- ——————————- ——————————–
\n
\nNationsBank, N.A. $10,000,000 66.666666667%
\nUS Bank National Association $ 5,000,000 33.333333333%
\n ———– ————–
\nTotal $15,000,000 100.000000000%
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n Schedule 2.1(b)(i)
\n ——————<\/p>\n
FORM OF NOTICE OF BORROWING<\/p>\n
NationsBank, N.A.
\n as Administrative Agent for the Lenders
\n101 N. Tryon Street
\nIndependence Center, 15th Floor
\nNC1-001-15-04
\nCharlotte, North Carolina 28255
\nAttention: Agency Services<\/p>\n
RE: Bridge Credit Agreement dated as of April __, 1999 (as amended and
\n modified, the “Credit Agreement”) among Navigant International, Inc.,
\n —— ———
\n (the “Borrower”) the Guarantors and Lenders identified therein and
\n ——–
\n NationsBank, N.A., as Administrative Agent. Terms used but not
\n otherwise defined herein shall have the meanings provided in the
\n Credit Agreement.<\/p>\n
Ladies and Gentlemen:<\/p>\n
The Borrower hereby gives notice of a request for Revolving Loan pursuant to
\nSection 2.1(b) of the Credit Agreement as follows:<\/p>\n
(A) Date of Borrowing
\n (which is a Business Day) ______________________________<\/p>\n
(B) Principal Amount of
\n Borrowing ______________________________<\/p>\n
(C) Interest rate basis ______________________________<\/p>\n
(D) Interest Period and the
\n last day thereof ______________________________<\/p>\n
In accordance with the requirements of Section 5.2 of the Credit Agreement, the
\nBorrower hereby certifies that:<\/p>\n
(a) The representations and warranties contained in the Credit Agreement
\nand the other Credit Documents are true and correct in all material respects as
\nof the date of this request, and will be true and correct after giving effect to
\nthe requested Extension of Credit (except for those which expressly related to
\nan earlier date).<\/p>\n
(b) No Default or Event of Default exists or will exist after giving
\neffect to the requested Extension of Credit.<\/p>\n
(c) As to any Credit Party, no involuntary action has been commenced under
\napplicable bankruptcy, insolvency or other similar law in effect, or any case,
\nproceeding or other action for the appointment of a receiver, liquidator,
\nassignee, custodian, trustee, sequestrator (or similar official) as to any<\/p>\n
Credit Party or as to any substantial party of the property of any Credit Party
\nor for the winding up or liquidation of its affairs, and remains undismissed,
\nundischarged or unbonded.<\/p>\n
(d) All conditions set forth in Section 2.1 of the Credit Agreement as to
\nthe making of Revolving Loans have been satisfied.<\/p>\n
Very truly yours,<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
Schedule 2.1(e)
\n —————<\/p>\n
FORM OF NOTE<\/p>\n
April __, 1999<\/p>\n
FOR VALUE RECEIVED, Navigant International, Inc., a Delaware corporation
\n(the “Borrower”), hereby promises to pay to the order of ______________________,
\n ——–
\nand its successors and assigns, on or before the Termination Date to the office
\nof the Administrative Agent in immediately available funds as provided in the
\nCredit Agreement, such Lender’s Revolving Committed Amount or, if less, the
\naggregate unpaid principal amount of all Revolving Loans owing to such Lender,
\ntogether with interest thereon at the rates and as provided in the Credit
\nAgreement.<\/p>\n
This Note is one of the Notes referred to in the Bridge Credit Agreement
\ndated as of April __, 1999 (as amended and modified, the “Credit Agreement”)
\n —————-
\namong the Borrowers, the Guarantors and Lenders identified therein and
\nNationsBank, N.A., as Administrative Agent. Terms used but not otherwise
\ndefined herein shall have the meanings provided in the Credit Agreement.<\/p>\n
The holder may endorse and attach a schedule to reflect borrowings
\nevidenced by this Note and all payments and prepayments thereon; provided that
\n ——–
\nany failure to endorse such information shall not affect the obligation of the
\nundersigned Borrower to pay amounts evidenced hereby.<\/p>\n
Upon the occurrence of an Event of Default, all amounts evidenced by this
\nNote may, or shall, become immediately due and payable as provided in the Credit
\nAgreement without presentment, demand, protest or notice of any kind, all of
\nwhich are waived by the Borrower. In the event payment of amounts evidenced by
\nthis Note is not made at any stated or accelerated maturity, the Borrower agrees
\nto pay, in addition to principal and interest, all costs of collection,
\nincluding reasonable attorneys’ fees.<\/p>\n
This Note and the Loans and amounts evidenced hereby may be transferred
\nonly as provided in the Credit Agreement.<\/p>\n
This Note shall be governed by, and construed and interpreted in accordance
\nwith, the law of the State of North Carolina.<\/p>\n
In WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
\nas of the date first above written.<\/p>\n
NAVIGANT INTERNATIONAL, INC.,
\n a Delaware corporation <\/p>\n
By: _______________________________
\n Name:
\n Title: <\/p>\n
Schedule 3.2
\n ————<\/p>\n
Form of Notice of Extension\/Conversion<\/p>\n
NationsBank, N.A.,
\n as Administrative Agent for the Lenders
\n101 N. Tryon Street
\nIndependence Center, 15th Floor
\nNC1-001-15-04
\nCharlotte, North Carolina 28255
\nAttention: Agency Services<\/p>\n
Re: Bridge Credit Agreement dated as of April __, 1999 (as amended and
\n modified, the “Credit Agreement”) among Navigant International, Inc.
\n —————-
\n (the “Borrower”), the Guarantors and Lenders identified therein and
\n ——–
\n NationsBank, N.A., as Administrative Agent. Terms used but not
\n otherwise defined herein shall have the meanings provided in the
\n Credit Agreement.<\/p>\n
Ladies and Gentlemen:<\/p>\n
The Borrower hereby gives notice pursuant to Section 3.2 of the Credit
\nAgreement that it requests an extension or conversion of a Revolving Loan
\noutstanding under the Credit Agreement, and in connection therewith sets forth
\nbelow the terms on which such extension or conversion is requested to be made:<\/p>\n
(A) Date of Extension or Conversion
\n (which is the last day of the
\n applicable Interest Period) _______________________________<\/p>\n
(B) Principal Amount of
\n Extension or Conversion _______________________________<\/p>\n
(C) Interest rate basis _______________________________<\/p>\n
(D) Interest Period and the
\n last day thereof<\/p>\n
_______________________________<\/p>\n
In accordance with the requirements of Section 5.2 of the Credit Agreement,
\nthe undersigned Borrower hereby certifies that:<\/p>\n
(a) The representations and warranties contained in the Credit
\n Agreement and the other Credit Documents are true and correct in all
\n material respects as of the date of this request, and will be true and
\n correct after giving effect to the requested Extension of Credit (except
\n for those which expressly relate to an earlier date).<\/p>\n
(b) No Default or Event of Default exists or will exist after giving
\n effect to the requested Extension of Credit.<\/p>\n
(c) As to any Credit Party, no involuntary action has been commenced
\n under applicable bankruptcy, insolvency or other similar law in effect, or
\n any case, proceeding or other action for the appointment of a receiver,
\n liquidator, assignee, custodian, trustee, sequestrator (or similar
\n official) as to any Credit Party or as to any substantial part of the
\n property of any Credit Party or for the winding up or liquidation of its
\n affairs, and remains undismissed, undischarged or unbonded.<\/p>\n
Very truly yours,<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
Schedule 5.1(f)(iii)
\n ——————–<\/p>\n
Assistant Secretary’s Certificate<\/p>\n
Pursuant to Section 5.1(f)(iii) of the Bridge Credit Agreement (the “Credit
\n ——
\nAgreement”), dated as of April __, 1999, among Navigant International, Inc., a
\n———
\nDelaware corporation, the Guarantors and Lenders identified therein and
\nNationsBank, N.A., as Administrative Agent, the undersigned,
\n___________________________, Assistant Secretary of ____________________ (the
\n“Corporation”), hereby certifies as follows:
\n———— <\/p>\n
1. Attached hereto as Annex I is a true and complete copy of resolutions
\nduly adopted by the Board of Directors of the Corporation on
\n_______________________, 199_. The attached resolutions have not been rescinded
\nor modified and remain in full force and effect. The attached resolutions are
\nthe only corporate proceedings of the Corporation now in force relating to or
\naffecting the matters referenced to therein.<\/p>\n
2. Attached hereto as Annex II is a true and complete copy of the By-laws
\nof the Corporation as in effect on the date hereof.<\/p>\n
3. Attached hereto as Annex III is a true and complete copy of the
\nCertificate of Incorporation of the Corporation and all amendments thereto as in
\neffect on the date hereof.<\/p>\n
4. The following persons are now duly elected and qualified officers of
\nthe Corporation, holding the offices indicated, and the signature appearing
\nopposite his name below is his true and genuine signature, and such officer is
\nduly authorized to execute and deliver on behalf of the Corporation, the Credit
\nAgreement, the Notes to be issued pursuant thereto and the other Credit
\nDocuments and to act as a Responsible Officer on behalf of the Corporation under
\nthe Credit Agreement.<\/p>\n
Name Office Signature
\n—- —— ———<\/p>\n
________________________<\/p>\n
________________________<\/p>\n
IN WITNESS WHEREOF, the undersigned has hereunto set his\/her name and
\naffixed the corporate seal of the Corporation.<\/p>\n
_____________________________
\n Assistant Secretary <\/p>\n
Date: April __, 1999<\/p>\n
I, _____________________, ___________________ of _________________________,
\nhereby certify that _____________________, whose genuine signature appears
\nabove, is, and has been at all times since ______________________, a duly
\nelected, qualified and acting ____________________ of _________________________.<\/p>\n
_______________________________ of
\n __________________________________<\/p>\n
April __, 1999 <\/p>\n
Schedule 9.1
\n ————<\/p>\n
Lenders and Addresses<\/p>\n
Notice Address
\n ————–<\/p>\n
NationsBank, N.A. NationsBank, N.A.
\n 101 N. Tryon Street
\n Independence Center, 15th Floor
\n Agency Services
\n Charlotte, NC 28255
\n ATTN: Ret Taylor <\/p>\n
with a copy to: <\/p>\n
NationsBank, N.A.
\n Corporate Finance Group
\n 6610 Rockledge Drive
\n MD2-600-06-13
\n Bethesda, MD 20817-1876
\n ATTN: Michael R. Heredia<\/p>\n
U.S. Bank National Association U.S. Bank National Association
\n 8401 E. Belleview Avenue
\n Denver, Colorado 80237
\n ATTN: George E. Adams <\/p>\n
Schedule 9.3(b)
\n —————<\/p>\n
Form of Assignment and Acceptance<\/p>\n
THIS ASSIGNMENT AND ACCEPTANCE dated as of ________, 199_ is entered into
\nbetween THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE “ASSIGNOR” (the
\n“Assignor”) and THE PARTY IDENTIFIED ON THE SIGNATURE PAGES AS “ASSIGNEES”
\n ——–
\n(“Assignee”).
\n ——– <\/p>\n
Reference is made to that Bridge Credit Agreement dated as of April __,
\n1999 (as amended and modified, the “Credit Agreement”) among Navigant
\n —————-
\nInternational, Inc., a Delaware corporation (the “Borrower”), the Guarantors and
\n ——–
\nLenders identified therein and NationsBank, N.A., as Administrative Agent.
\nTerms defined in the Credit Agreement are used herein with the same meanings.<\/p>\n
1. The Assignor hereby sells and assigns, without recourse, to the
\nAssignee, and the Assignee hereby purchases and assumes, without recourse, from
\nthe Assignor, effective as of the Effective Date shown below, those rights and
\ninterests of the Assignor under the Credit Agreement identified below (the
\n“Assigned Interests”), including the Obligations and Commitments relating
\n ——————
\nthereto, together with unpaid interest and fees relating thereto accruing from
\nthe Effective Date. The Assignor represents and warrants that it owns the
\ninterests assigned hereby free and clear of liens, encumbrances or other claims.
\nEach of the Assignees represents that it is a permitted Assignee under Section
\n9.3 of the Credit Agreement. The Assignor and the Assignee hereby make and
\nagree to be bound by all the representations, warranties and agreements set
\nforth in Section 9.3 of the Credit Agreement, a copy of which has been received
\nby each such party. From and after the Effective Date (i) the Assignee, if it
\nis not already a Lender under the Credit Agreement, shall be a party to and be
\nbound by the provisions of the Credit Agreement and, to the extent of the
\ninterests assigned by this Assignment and Acceptance, have the rights and
\nobligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
\nthe interests assigned by this Assignment and Acceptance, relinquish its rights
\nand be released from its obligations under the Credit Agreement (other than the
\nrights of indemnification referenced in Section 9.9 of the Credit Agreement).
\nSchedule 2.1(a) is deemed modified and amended to the extent necessary to give
\n—————
\neffect to this Assignment.<\/p>\n
2. This Assignment and Acceptance shall be governed by and construed in
\naccordance with the laws of the State of North Carolina.<\/p>\n
3. Terms of Assignment<\/p>\n
(a) Date of Assignment: ___________, 199__
\n (b) Legal Name of Assignor: SEE SIGNATURE PAGE
\n (c) Legal Name of Assignee: SEE SIGNATURE PAGE
\n (d) Effective Date of Assignment: ___________, 199__<\/p>\n
See Schedule I attached for a description of the Loans, Obligations and
\n ———-
\nCommitments (and the percentage interests therein and relating thereto) which
\nare the subject of this Assignment and Acceptance.<\/p>\n
4. The fee payable to the Administrative Agent in connection with this
\nAssignment is enclosed.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused the execution of this
\ninstrument by their duly authorized officers as of the date first above written.<\/p>\n
ASSIGNOR: ASSIGNEE:
\n——– ——– <\/p>\n
By:___________________________ By:___________________________
\nName:_________________________ Name:_________________________
\nTitle:________________________ Title:________________________<\/p>\n
Address for Notices:
\n ——————- <\/p>\n
ACKNOWLEDGMENT AND CONSENT
\n————————–<\/p>\n
NATIONSBANK, N.A. NAVIGANT INTERNATIONAL, INC.
\nas Administrative Agent<\/p>\n
By:___________________________ By:___________________________
\nName:_________________________ Name:_________________________
\nTitle:________________________ Title:________________________<\/p>\n
SCHEDULE I
\n ———-
\n TO ASSIGNMENT AND ACCEPTANCE
\n NAVIGANT INTERNATIONAL, INC.<\/p>\n
REVOLVING LOANS PRIOR TO ASSIGNMENT<\/p>\n
\n\n Revolving Revolving Revolving
\n Committed Commitment Loans
\n Amount Percentage Outstanding
\n —————– —————– —————–
\n
\nASSIGNOR
\n——–<\/p>\nASSIGNEES
\n———<\/p>\n
——————- ——————- ——————-
\n $ $
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
REVOLVING LOANS SUBJECT TO THIS ASSIGNMENT<\/p>\n
\n\n Revolving Revolving Revolving
\n Committed Commitment Loans
\n Amount Percentage Outstanding
\n —————– —————– —————–
\n
\nASSIGNOR
\n——–<\/p>\nASSIGNEES
\n———<\/p>\n
——————- ——————- ——————-
\n $ $
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE I
\n ———-
\n TO ASSIGNMENT AND ACCEPTANCE
\n NAVIGANT INTERNATIONAL, INC.<\/p>\n
REVOLVING LOANS AFTER ASSIGNMENT<\/p>\n
\n\n Revolving Revolving Revolving
\n Committed Commitment Loans
\n Amount Percentage Outstanding
\n —————– —————– —————–
\n
\nASSIGNOR
\n——–<\/p>\nASSIGNEES
\n———<\/p>\n
——————- ——————- ——————-
\n $ $
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