\n I Less than 1.5 0% 1.00% .25%
\n II Greater than 1.5 but Less than 2.0 .10% 1.35% .30%
\n III Greater than 2.0 but Less than 2.5 .50% 1.75% .375%
\n IV Greater than 2.5 .75% 2.00% .425%<\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
The Applicable Percentage shall be determined and adjusted quarterly on
\n the date (each a “Rate Determination Date”) five (5) Business Days after
\n the date by which the annual and quarterly compliance certificates and
\n related financial statements and information are <\/p>\n
2<\/p>\n
required in accordance with the provisions of Sections 7.1(a) and (b) and
\n Section 7.2(b), as applicable; provided that:<\/p>\n
(i) the initial Applicable Percentages shall be
\n 1.50% in the case of the Eurodollar Margin and Letter of Credit Fee,
\n 0.25% in the case of the Base Rate Margin, and 0.375% in the case of
\n the Commitment Fee and shall remain in effect until the first Rate
\n Determination Date to occur after the date six months from the Closing
\n Date; and<\/p>\n
(ii) in the event an annual or quarterly compliance
\n certificate and related financial statements and information are not
\n delivered timely to the Agency Services Address by the date required by
\n Sections 7.1(a) and (b) and Section 7.2(b), as applicable, the
\n Applicable Percentages shall be based on Pricing Level IV until such
\n time as an appropriate compliance certificate and related financial
\n statements and information are delivered, whereupon the applicable
\n Pricing Level shall be adjusted based on the information contained in
\n such compliance certificate and related financial statements and
\n information.<\/p>\n
Each Applicable Percentage shall be effective from a Rate Determination
\n Date until the next such Rate Determination Date. The Administrative
\n Agent shall determine the appropriate Applicable Percentages in the
\n pricing matrix promptly upon receipt of the quarterly or annual compliance
\n certificate and related financial information and shall promptly notify
\n the Borrower and the Lenders of any change thereof. Such determinations
\n by the Administrative Agent shall be conclusive absent manifest error.
\n Adjustments in the Applicable Percentages shall be effective as to
\n existing Extensions of Credit as well as new Extensions of Credit made
\n thereafter.<\/p>\n
“Approved Bank” shall have the meaning given such term in the
\n definition of “Cash Equivalents”.<\/p>\n
“Asset Disposition” means, other than a Securitization
\n Transaction, (i) the sale, lease or other disposition of any property or
\n asset by any member of the Consolidated Group, other than any such sale
\n permitted by Sections 8.4(b) and other than to the extent permitted by
\n Section 8.5, and (ii) receipt by any member of the Consolidated Group of
\n any cash insurance proceeds or condemnation award payable by reason of
\n theft, loss, physical destruction or damage, taking or similar event with
\n respect to any of their property or assets.<\/p>\n
“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the
\n United States Code, as amended, modified, succeeded or replaced from time
\n to time.<\/p>\n
3<\/p>\n
“Bankruptcy Event” means, with respect to any Person, the
\n occurrence of any of the following with respect to such Person: (i) a
\n court or governmental agency having jurisdiction in the premises shall
\n enter a decree or order for relief in respect of such Person in an
\n involuntary case under any applicable bankruptcy, insolvency or other
\n similar law now or hereafter in effect, or appointing a receiver,
\n liquidator, assignee, custodian, trustee, sequestrator (or similar
\n official) of such Person or for any substantial part of its Property or
\n ordering the winding up or liquidation of its affairs; or (ii) there shall
\n be commenced against such Person an involuntary case under any applicable
\n bankruptcy, insolvency or other similar law now or hereafter 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) of such Person or for any substantial part of its Property or
\n for the winding up or liquidation of its affairs, and such involuntary
\n case or other case, proceeding or other action shall remain undismissed,
\n undischarged or unbonded for a period of sixty (60) consecutive days; or
\n (iii) such Person shall commence a voluntary case under any applicable
\n bankruptcy, insolvency or other similar law now or hereafter in effect, or
\n consent to the entry of an order for relief in an involuntary case under
\n any such law, or consent to the appointment or taking possession by a
\n receiver, liquidator, assignee, custodian, trustee, sequestrator (or
\n similar official) of such Person or for any substantial part of its
\n Property or make any general assignment for the benefit of creditors; or
\n (iv) such Person shall be unable to, or shall admit in writing its
\n inability to, pay its debts generally as they become due.<\/p>\n
“Base Rate” means, for any day, the rate per annum (rounded
\n upwards, if necessary, to the nearest whole multiple of 1\/100 of 1%) equal
\n to the greater of (a) the Federal Funds Rate in effect on such day plus
\n 1\/2 of 1% or (b) the Prime Rate in effect on such day. If for any reason
\n the Administrative Agent shall have determined (which determination shall
\n be conclusive absent manifest error) that it is unable after due inquiry
\n to ascertain the Federal Funds Rate for any reason, including the
\n inability or failure of the Administrative Agent to obtain sufficient
\n quotations in accordance with the terms hereof, the Base Rate shall be
\n determined without regard to clause (a) of the first sentence of this
\n definition until the circumstances giving rise to such inability no longer
\n exist. Any change in the Base Rate due to a change in the Prime Rate or
\n the Federal Funds Rate shall be effective on the effective date of such
\n change in the Prime Rate or the Federal Funds Rate, respectively.<\/p>\n
“Base Rate Loan” means any Loan bearing interest at a rate determined
\n by reference to the Base Rate.<\/p>\n
“Borrower” means Navigant International, Inc., a Delaware
\n corporation, as referenced in the opening paragraph, its successors and
\n permitted assigns.<\/p>\n
4<\/p>\n
“Business Day” means a day other than a Saturday, Sunday or other
\n day on which commercial banks in Charlotte, North Carolina or New York,
\n New York are authorized or required by law to close, except that, when
\n used in connection with a Eurodollar Loan, such day shall also be a day on
\n which dealings between banks are carried on in U.S. dollar deposits in
\n London, England.<\/p>\n
“Capital Expenditures” means, for any period, without
\n duplication, all expenditures (whether paid in cash or other
\n consideration) during such period that, in accordance with GAAP, are or
\n should be included in additions to property, plant and equipment or
\n similar items reflected in the consolidated statement of cash flows for
\n such period; provided, that Capital Expenditures shall not include, for
\n purposes hereof, (i) expenditures of proceeds of insurance settlements,
\n condemnation awards and other settlements in respect of lost, destroyed,
\n damaged or condemned assets, equipment or other property to the extent
\n such expenditures are made to replace or repair such lost, destroyed,
\n damaged or condemned assets, equipment or other property or other
\n otherwise to acquire assets or properties useful in the business of the
\n members of the Consolidated Group within 12 months of receipt of such
\n proceeds.<\/p>\n
“Capital Lease” means, as applied to any Person, any lease of any
\n Property (whether real, personal or mixed) by that Person as lessee which,
\n in accordance with GAAP, is or should be accounted for as a capital lease
\n on the balance sheet of that Person.<\/p>\n
“Capital Lease Obligation” means the capital lease obligations relating
\n to a Capital Lease determined in accordance with GAAP.<\/p>\n
“Cash Equivalents” means (a) securities issued or directly and
\n fully guaranteed or insured by the United States of America or any agency
\n or instrumentality thereof (provided that the full faith and credit of the
\n United States of America is pledged in support thereof) having maturities
\n of not more than twelve months from the date of acquisition, (b) U.S.
\n dollar denominated time deposits and certificates of deposit of (i) any
\n Lender, or (ii) any domestic commercial bank of recognized standing (y)
\n having capital and surplus in excess of $500,000,000 and (z) whose
\n short-term commercial paper rating from S&P is at least A-1 or the
\n equivalent thereof or from Moody’s is at least P-1 or the equivalent
\n thereof (any such bank being an “Approved Bank”), in each case with
\n maturities of not more than 270 days from the date of acquisition, (c)
\n commercial paper and variable or fixed rate notes issued by any Approved
\n Bank (or by the parent company thereof) or any variable rate notes issued
\n by, or guaranteed by, any domestic corporation rated A-1 (or the
\n equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
\n better by Moody’s and maturing within six months of the date of
\n acquisition, (d) repurchase agreements entered into by a Person with a
\n bank or trust company (including any of the Lenders) or recognized
\n securities dealer having capital <\/p>\n
5<\/p>\n
and surplus in excess of $500,000,000 for direct obligations issued by or
\n fully guaranteed by the United States of America in which such Person
\n shall have a perfected first priority security interest (subject to no
\n other Liens) and having, on the date of purchase thereof, a fair market
\n value of at least 100% of the amount of the repurchase obligations, (e)
\n obligations of any State of the United States or any political subdivision
\n thereof, the interest with respect to which is exempt from federal income
\n taxation under Section 103 of the Code, having a long term rating of at
\n least AA- or Aa-3 by S&P or Moody’s, respectively, and maturing within
\n three years from the date of acquisition thereof, (f) Investments in
\n municipal auction preferred stock (i) rated AAA (or the equivalent
\n thereof) or better by S&P or Aaa (or the equivalent thereof) or better by
\n Moody’s and (ii) with dividends that reset at least once every 365 days
\n and (g) Investments, classified in accordance with GAAP as current assets,
\n in money market investment programs registered under the Investment
\n Company Act of 1940, as amended, which are administered by reputable
\n financial institutions having capital of at least $100,000,000 and the
\n portfolios of which are limited to Investments of the character described
\n in the foregoing subdivisions (a) through (f).<\/p>\n
“Change of Control” means the occurrence of any of the following
\n events: (i) any Person or two or more Persons acting in concert shall
\n have acquired beneficial ownership, directly or indirectly, of, or shall
\n have acquired by contract or otherwise, or shall have entered into a
\n contract or arrangement that, upon consummation, will result in its or
\n their acquisition of or control over, Voting Stock of the Borrower (or
\n other securities convertible into such Voting Stock) representing 35% or
\n more of the combined voting power of all Voting Stock of the Borrower, or
\n (ii) during any period of up to 24 consecutive months, commencing after
\n the Closing Date, individuals who at the beginning of such 24 month period
\n were directors of the Borrower (together with any new director whose
\n election by the Borrower’s Board of Directors or whose nomination for
\n election by the Borrower’s shareholders was approved by a vote of at least
\n two-thirds of the directors then still in office who either were directors
\n at the beginning of such period or whose election or nomination for
\n election was previously so approved) cease for any reason to constitute a
\n majority of the directors of the Borrower then in office. As used herein,
\n “beneficial ownership” shall have the meaning provided in Rule 13d-3 of
\n the Securities and Exchange Commission under the Securities Exchange Act
\n of 1934.<\/p>\n
“Closing Date” means the date hereof.<\/p>\n
“Code” means the Internal Revenue Code of 1986, as amended, and
\n any successor statute thereto, as interpreted by the rules and regulations
\n issued thereunder, in each case as in effect from time to time.
\n References to sections of the Code shall be construed also to refer to any
\n successor sections.<\/p>\n
6<\/p>\n
“Commitment” means the Revolving Commitment, the LOC Commitment
\n and the Swingline Commitment.<\/p>\n
“Commitment Fee” shall have the meaning given such term in Section
\n 3.5(a).<\/p>\n
“Commitment Percentage” means the Revolving Commitment Percentage.<\/p>\n
“Commitment Period” means the period from and including the
\n Closing Date to but not including the earlier of (i) the Termination Date,
\n or (ii) the date on which the Commitments terminate in accordance with the
\n provisions of this Credit Agreement. <\/p>\n
“Consolidated EBITDA” means for any period for the Consolidated
\n Group, the sum of Consolidated Net Income plus Consolidated Interest
\n Expense plus all provisions for any Federal, state or other domestic and
\n foreign income taxes plus depreciation and amortization plus one-time
\n non-recurring restructuring charges deducted in calculating Consolidated
\n Net Income, in each case on a consolidated basis determined in accordance
\n with GAAP, but including pro forma historical EBITDA from acquisitions
\n adjusted for salaries, owners’ perks and other items reasonably eliminated
\n pursuant to contractual provisions and excluding for purposes hereof
\n extraordinary gains and losses and related tax effects thereon. Except as
\n otherwise expressly provided, the applicable period shall be for the four
\n consecutive fiscal quarters ending as of the date of determination.<\/p>\n
“Consolidated Fixed Charge Coverage Ratio” means for any period,
\n the ratio of Consolidated Adjusted EBITDA to Consolidated Fixed Charges.<\/p>\n
“Consolidated Fixed Charges” means for any period for the
\n Consolidated Group, the sum of Consolidated Interest Expense, in each case
\n on a consolidated basis determined in accordance with GAAP. Except as
\n otherwise expressly provided, the applicable period shall be for the four
\n consecutive fiscal quarters ending as of the date of determination.<\/p>\n
“Consolidated Funded Debt” means Funded Debt of the Consolidated
\n Group determined on a consolidated basis in accordance with GAAP.<\/p>\n
“Consolidated Group” means the Borrower and its consolidated
\n subsidiaries, as determined in accordance with GAAP.<\/p>\n
“Consolidated Interest Expense” means for any period for the
\n Consolidated Group, all interest expense, including the amortization of debt
\n discount and premium, the interest component under <\/p>\n
7<\/p>\n
Capital Leases and the implied interest component under Securitization
\n Transactions, in each case on a consolidated basis determined in
\n accordance with GAAP. Except as expressly provided otherwise, the
\n applicable period shall be for the four consecutive quarters ending as of
\n the date of determination.<\/p>\n
“Consolidated Leverage Ratio” means, as of the last day of any
\n fiscal quarter, the ratio of Consolidated Funded Debt on such day to
\n Consolidated EBITDA for the period of four consecutive fiscal quarters
\n ending as of such day.<\/p>\n
“Consolidated Net Income” means for any period for the
\n Consolidated Group, net income on a consolidated basis determined in
\n accordance with GAAP. Except as expressly provided otherwise, the
\n applicable period shall be for the four consecutive quarters ending as of
\n the date of determination.<\/p>\n
“Consolidated Net Worth” means, as for any date for the
\n Consolidated Group, shareholders’ equity or net worth as determined in
\n accordance with GAAP.<\/p>\n
“Contractual Obligation” means, as to any Person, any provision
\n of any security issued by such Person or of any material agreement,
\n instrument or undertaking to which such Person is a party or by which it
\n or any of its property is bound.<\/p>\n
“Credit Documents” means a collective reference to this Credit
\n Agreement, the Notes, the LOC Documents, the Pledge Agreement, the
\n Security Agreement, each Joinder Agreement, the Administrative Agent’s Fee
\n Letter, and all other related agreements and documents issued or delivered
\n hereunder or thereunder or pursuant hereto or thereto.<\/p>\n
“Credit Party” means any of the Borrower and the Guarantors.<\/p>\n
“Default” means any event, act or condition which with notice or
\n lapse of time, or both, would constitute an Event of Default.<\/p>\n
“Defaulting Lender” means, at any time, any Lender that, at such
\n time, (i) has failed to make an Extension of Credit required pursuant to
\n the terms of this Credit Agreement, (ii) has failed to pay to the
\n Administrative Agent or any Lender an amount owed by such Lender pursuant
\n to the terms of the Credit Agreement or any other of the Credit Documents,
\n or (iii) has been deemed insolvent or has become subject to a bankruptcy
\n or insolvency proceeding or to a receiver, trustee or similar proceeding.<\/p>\n
“Dollars” and “$” means dollars in lawful currency of the United
\n States of America.<\/p>\n
8<\/p>\n
“Domestic Credit Party” means any Credit Party which is incorporated
\n or organized under the laws of any State of the United States or the District
\n of Columbia.<\/p>\n
“Domestic Subsidiary” means any Subsidiary which is incorporated or
\n organized under the laws of any State of the United States or the District of
\n Columbia.<\/p>\n
“Environmental Laws” means any and all lawful and applicable
\n Federal, state, local and foreign statutes, laws, regulations, ordinances,
\n rules, judgments, orders, decrees, permits, concessions, grants,
\n franchises, licenses, agreements or other governmental restrictions
\n relating to the environment or to emissions, discharges, releases or
\n threatened releases of pollutants, contaminants, chemicals, or industrial,
\n toxic or hazardous substances or wastes into the environment including,
\n without limitation, ambient air, surface water, ground water, or land, or
\n otherwise relating to the manufacture, processing, distribution, use,
\n treatment, storage, disposal, transport, or handling of pollutants,
\n contaminants, chemicals, or industrial, toxic or hazardous substances or
\n wastes.<\/p>\n
“Equity Transaction” means, with respect to any member of the
\n Consolidated Group, any issuance of shares of its capital stock or other
\n equity interest, other than an issuance (i) to a member of the
\n Consolidated Group, (ii) in connection with a conversion of debt
\n securities to equity or (iii) in connection with exercise by a present or
\n former employee, officer or director under a stock incentive plan, stock
\n option plan or other equity-based compensation plan or arrangement.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of
\n 1974, as amended, and any successor statute thereto, as interpreted by the
\n rules and regulations thereunder, all as the same may be in effect from
\n time to time. References to sections of ERISA shall be construed also to
\n refer to any successor sections.<\/p>\n
“ERISA Affiliate” means an entity which is under common control
\n with any Credit Party within the meaning of Section 4001(a)(14) of ERISA,
\n or is a member of a group which includes the Borrower and which is treated
\n as a single employer under Sections 414(b) or (c) of the Code.<\/p>\n
“ERISA Event” means (i) with respect to any Plan, the occurrence of
\n a Reportable Event or the substantial cessation of operations (within the
\n meaning of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower,
\n any Subsidiary of the Borrower or any ERISA Affiliate from a Multiple
\n Employer Plan during a plan year in which it was a substantial employer (as
\n such term is defined in Section 4001(a)(2) of ERISA), or the termination of
\n a Multiple Employer Plan; (iii) the distribution of a notice of intent to
\n terminate or the actual termination of a Plan pursuant to Section 4041(a)(2)
\n or 4041A of ERISA; (iv) the institution <\/p>\n
9<\/p>\n
of proceedings to terminate or the actual termination of a Plan by the PBGC
\n under Section 4042 of ERISA; (v) any event or condition which would
\n reasonably be expected to constitute grounds under Section 4042 of ERISA
\n for the termination of, or the appointment of a trustee to administer, any
\n Plan; (vi) the complete or partial withdrawal of the Borrower, any
\n Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer
\n Plan; (vii) the conditions for imposition of a lien under Section 302(f) of
\n ERISA exist with respect to any Plan; or (vii) the adoption of an amendment
\n to any Plan requiring the provision of security to such Plan pursuant to
\n Section 307 of ERISA.<\/p>\n
“Eurodollar Loan” means any Loan bearing interest at a rate
\n determined by reference to the Eurodollar Rate.<\/p>\n
“Eurodollar Rate” means, for the Interest Period for each
\n Eurodollar Loan comprising part of the same borrowing (including
\n conversions, extensions and renewals), a per annum interest rate determined
\n pursuant to the following formula:<\/p>\n
Eurodollar Rate = Interbank Offered Rate
\n —————————-
\n 1 – Eurodollar Reserve Percentage<\/p>\n
“Eurodollar Reserve Percentage” means for any day, that percentage
\n (expressed as a decimal) which is in effect from time to time under
\n Regulation D of the Board of Governors of the Federal Reserve System (or
\n any successor), as such regulation may be amended from time to time or any
\n successor regulation, as the maximum reserve requirement (including,
\n without limitation, any basic, supplemental, emergency, special, or
\n marginal reserves) applicable with respect to Eurocurrency liabilities as
\n that term is defined in Regulation D (or against any other category of
\n liabilities that includes deposits by reference to which the interest rate
\n of Eurodollar Loans is determined), whether or not Lender has any
\n Eurocurrency liabilities subject to such reserve requirement at that time.
\n Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
\n as such shall be deemed subject to reserve requirements without benefits of
\n credits for proration, exceptions or offsets that may be available from
\n time to time to a Lender. The Eurodollar Rate shall be adjusted
\n automatically on and as of the effective date of any change in the
\n Eurodollar Reserve Percentage.<\/p>\n
“Event of Default” means such term as defined in Section 9.1.<\/p>\n
“Excess Funding Guarantor” shall have the meaning given such term
\n in Section 4.6.<\/p>\n
“Excess Payment” shall have the meaning given such term in Section
\n 4.6.<\/p>\n
10<\/p>\n
“Existing Letters of Credit” means those Letters of Credit
\n outstanding on the Closing Date and identified on Schedule 2.2(b)-1.<\/p>\n
“Extension of Credit” means, as to any Lender, the making of, or
\n participation in, a Loan by such Lender or the issuance or extension of, or
\n participation in, a Letter of Credit.<\/p>\n
“Fees” means all fees payable pursuant to Section 3.5.<\/p>\n
“Federal Funds Rate” means, for any day, the rate of interest per
\n annum (rounded upwards, if necessary, to the nearest whole multiple of
\n 1\/100 of 1%) equal to the weighted average of the rates on overnight
\n Federal funds transactions with members of the Federal Reserve System
\n arranged by Federal funds brokers on such day, as published by the Federal
\n Reserve Bank of New York on the Business Day next succeeding such day,
\n provided that (A) if such day is not a Business Day, the Federal Funds Rate
\n for such day shall be such rate on such transactions on the next preceding
\n Business Day and (B) if no such rate is so published on such next preceding
\n Business Day, the Federal Funds Rate for such day shall be the average rate
\n quoted to the Administrative Agent on such day on such transactions as
\n determined by the Administrative Agent.<\/p>\n
“Foreign Credit Party” means a Credit Party which is not a
\n Domestic Credit Party.<\/p>\n
“Foreign Subsidiary” means a Subsidiary which is not a Domestic
\n Subsidiary.<\/p>\n
“Funded Debt” means, with respect to any Person, without
\n duplication, (i) all Indebtedness of such Person for borrowed money, (ii)
\n all obligations of such Person evidenced by bonds, debentures, notes or
\n similar instruments, or upon which interest payments are customarily made,
\n (iii) 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 Debt shall be limited to the greater of (A) the amount of such Funded Debt
\n as to which there is recourse to such Person and (B) the fair market value
\n of the property which is subject to the Lien, (vii) the outstanding
\n attributed principal amount under any Securitization Transaction, and (viii)
\n the principal balance outstanding under any synthetic lease, tax retention
\n operating lease, off-balance <\/p>\n
11<\/p>\n
sheet loan or similar off-balance sheet financing product to which such
\n Person is a party, where such transaction is considered borrowed money
\n indebtedness for tax purposes but is classified as an operating lease in
\n accordance with GAAP. The Funded Debt of any Person shall include the
\n Funded Debt of any partnership or joint venture in which such Person is a
\n general partner or joint venturer, but only to the extent to which there is
\n recourse to such Person for the payment of such Funded Debt.<\/p>\n
“GAAP” means generally accepted accounting principles in the
\n United States applied on a consistent basis and subject to the terms of
\n Section 1.3 hereof.<\/p>\n
“Governmental Authority” means any Federal, state, local or
\n foreign court or governmental agency, authority, instrumentality or
\n regulatory body.<\/p>\n
“Guarantor” means each of those Persons identified as a
\n “Guarantor” on the signature pages hereto, and each other Person which may
\n hereafter become a Guarantor by execution of a Joinder Agreement, together
\n with their successors and permitted assigns.<\/p>\n
“Guaranteed Obligations” means, as to each Guarantor, without
\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 Credit Documents, and (ii) all liabilities and obligations,
\n whenever arising, owing from the Borrower to any Lender, or any Affiliate
\n of a Lender, arising under any Hedging Agreement relating to Obligations
\n hereunder.<\/p>\n
“Hedging Agreements” means any interest rate protection agreement
\n or foreign currency exchange agreement between the Borrower and any Lender,
\n or any Affiliate of a Lender.<\/p>\n
“Indebtedness” of any Person means (i) all obligations of such
\n Person for borrowed money, (ii) all obligations of such Person evidenced by
\n bonds, debentures, notes or similar instruments, or upon which interest
\n payments are customarily made, (iii) all obligations of such Person under
\n conditional sale or other title retention agreements relating to Property
\n purchased by such Person (other than customary reservations or retentions
\n of title under agreements with suppliers entered into in the ordinary
\n course of business), (iv) all obligations of such Person issued or assumed
\n as the deferred purchase price of Property or services purchased by such
\n Person (other than trade debt incurred in the ordinary course of business
\n and due within six months of the incurrence thereof) which would appear as
\n liabilities on a balance sheet of such Person, (v) all obligations of such
\n Person under take-or-pay or similar arrangements or under commodities
\n agreements, (vi) all Indebtedness of others secured by (or <\/p>\n
12<\/p>\n
for which the holder of such Indebtedness has an existing right, contingent
\n or otherwise, to be secured by) any Lien on, or payable out of the proceeds
\n of production from, Property owned or acquired by such Person, whether or
\n not the obligations secured thereby have been assumed, provided that for
\n purposes hereof the amount of such Indebtedness shall be limited to the
\n greater of (A) the amount of such Indebtedness as to which there is
\n recourse to such Person and (B) the fair market value of the property which
\n is subject to the Lien, (vii) all Support Obligations of such Person,
\n (viii) the principal portion of all obligations of such Person under
\n Capital Leases, (ix) all obligations of such Person in respect of interest
\n rate protection agreements, foreign currency exchange agreements, commodity
\n purchase or option agreements or other interest or exchange rate or
\n commodity price hedging agreements (including, but not limited to, the
\n Hedging Agreements), (x) the maximum amount of all standby letters of
\n credit issued or bankers’ acceptances facilities created for the account of
\n such Person and, without duplication, all drafts drawn thereunder (to the
\n extent unreimbursed), (xi) all preferred stock issued by such Person and
\n required by the terms thereof to be redeemed, or for which mandatory
\n sinking fund payments are due, by a fixed date, (xii) the outstanding
\n attributed principal amount under any Securitization Transaction and (xiii)
\n the principal balance outstanding under any synthetic lease, tax retention
\n operating lease, off-balance sheet loan or similar off-balance sheet
\n financing product to which such Person is a party, where such transaction
\n is considered borrowed money indebtedness for tax purposes but is
\n classified as an operating lease in accordance with GAAP. The Indebtedness
\n of any Person shall include the Indebtedness of any partnership or joint
\n venture in which such Person is a general partner or a joint venturer, but
\n only to the extent to which there is recourse to such Person for payment of
\n such Indebtedness.<\/p>\n
“Intellectual Property” shall have the meaning given such term in
\n Section 6.9.<\/p>\n
“Interbank Offered Rate” means, for the Interest Period for each
\n Eurodollar Loan comprising part of the same borrowing (including
\n conversions, extensions and renewals), a per annum interest rate (rounded
\n upwards, if necessary, to the nearest whole multiple of 1\/100 of 1%) equal
\n to the rate of interest, determined by the Administrative Agent on the
\n basis of the offered rates for deposits in dollars for a period of time
\n corresponding to such Interest Period (and commencing on the first day of
\n such Interest Period), appearing on Telerate Page 3750 (or, if, for any
\n reason, Telerate Page 3750 is not available, the Reuters Screen LIBO Page)
\n as of approximately 11:00 A.M. (London time) two (2) Business Days before
\n the first day of such Interest Period. As used herein, “Telerate Page
\n 3750” means the display designated as page 3750 by Dow Jones Markets, Inc.
\n (or such other page as may <\/p>\n
13<\/p>\n
replace such page on that service for the purpose of displaying the British
\n Bankers Association London interbank offered rates) and “Reuters Screen
\n LIBO Page” means the display designated as page “LIBO” on the Reuters
\n Monitor Money Rates Service (or such other page as may replace the LIBO
\n page on that service for the purpose of displaying London interbank offered
\n rates of major banks). <\/p>\n
“Interest Payment Date” means (i) as to any Base Rate Loan, the
\n last day of each March, June, September and December, the date of repayment
\n of principal of such Loan and the Termination Date and (ii) as to any
\n Eurodollar Loan and Swingline Loan, the last day of each Interest Period
\n for such Loan, the date of repayment of principal of such Loan and the
\n Termination Date, and in addition where the applicable Interest Period is
\n more than three months, then also on the date three months from the
\n beginning of the Interest Period, and each three months thereafter. If an
\n Interest Payment Date falls on a date which is not a Business Day, such
\n Interest Payment Date shall be deemed to be the next succeeding Business
\n Day.<\/p>\n
“Interest Period” means (i) as to any Eurodollar Loan, a period of
\n one, two, three or six month’s duration, as the Borrower may elect,
\n commencing in each case, on the date of the borrowing (including
\n conversions, extensions and renewals), and (ii) as to any Swingline Loan, a
\n period of such duration, not to exceed 30 days, as the Borrower may request
\n and the Swingline Lender may agree in accordance with the provisions of
\n Section 2.2(b)(i), commencing in each case, on the date of borrowing,;
\n provided, however, (A) if any Interest Period would end on a day which is
\n not a Business Day, such Interest Period shall be extended to the next
\n succeeding Business Day (except that in the case of Eurodollar Loans where
\n the next succeeding Business Day falls in the next succeeding calendar
\n month, then on the next preceding Business Day), (B) no Interest Period
\n shall extend beyond the Termination Date, and (C) in the case of Eurodollar
\n Loans, where an Interest Period begins on a day for which there is no
\n numerically corresponding day in the calendar month in which the Interest
\n Period is to end, such Interest Period shall end on the last day of such
\n calendar month.<\/p>\n
“Investment”, in any Person, means any loan or advance to such
\n Person, any purchase or other acquisition of any capital stock, warrants,
\n rights, options, obligations or other securities of, or equity interest in,
\n such Person, any capital contribution to such Person or any other
\n investment in such Person, including, without limitation, any Support
\n Obligation incurred for the benefit of such Person.<\/p>\n
“IPO” means the completion of the initial public offering of
\n common stock, par value $.001 per share, of the Borrower.<\/p>\n
“Issuing Lender” means, initially, NationsBank and, hereafter, any
\n Lender which the Borrower may request and such Lender may agree.<\/p>\n
“Issuing Lender Fees” shall have the meaning assigned to such term
\n in Section 3.5(b)(ii).<\/p>\n
14<\/p>\n
“Joinder Agreement” means a Joinder Agreement substantially in the
\n form of Schedule 7.11-1 hereto, executed and delivered by an Additional
\n Credit Party in accordance with the provisions of Section 7.11.<\/p>\n
“Lenders” means each of the Persons identified as a “Lender” on
\n the signature pages hereto, and their successors and assigns.<\/p>\n
“Letter of Credit” means the Existing Letters of Credit and any
\n letter of credit issued by the Issuing Lender for the account of the
\n Borrower in accordance with the terms of Section 2.2.<\/p>\n
“Letter of Credit Fee” shall have the meaning given such term in
\n Section 3.5(b)(i).<\/p>\n
“Lien” means any mortgage, pledge, hypothecation, assignment,
\n deposit arrangement, security interest, encumbrance, lien (statutory or
\n otherwise), preference, priority or charge of any kind (including any
\n agreement to give any of the foregoing, any conditional sale or other title
\n retention agreement, any financing or similar statement or notice filed
\n under the Uniform Commercial Code as adopted and in effect in the relevant
\n jurisdiction or other similar recording or notice statute, and any lease in
\n the nature thereof).<\/p>\n
“Loan” or “Loans” means the Revolving Loans and\/or Swingline Loans.<\/p>\n
“LOC Commitment” means the commitment of the Issuing Lender to
\n issue, and to honor payment obligations under, Letters of Credit hereunder
\n and with respect to each Lender, the commitment of each Lender to purchase
\n participation interests in the Letters of Credit up to such Lender’s LOC
\n Committed Amount as specified in Schedule 2.1(a), as such amount may be
\n reduced from time to time in accordance with the provisions hereof.<\/p>\n
“LOC Committed Amount” means, collectively, the aggregate amount of
\n all of the LOC Commitments of the Lenders to issue and participate in
\n Letters of Credit as referenced in Section 2.2(a) and, individually, the
\n amount of each Lender’s LOC Commitment as specified in Schedule 2.1(a).<\/p>\n
“LOC Documents” means, with respect to any Letter of Credit, such
\n Letter of Credit, any amendments thereto, any documents delivered in
\n connection therewith, any application therefor, and any agreements,
\n instruments, guarantees or other documents (whether general in application
\n or applicable only to such Letter of Credit) governing or providing for (i)
\n the rights and obligations of the parties concerned or at risk or (ii) any
\n collateral security for such obligations.<\/p>\n
15<\/p>\n
“LOC Obligations” means, at any time, the sum of (i) the maximum
\n amount which is, or at any time thereafter may become, available to be
\n drawn under Letters of Credit then outstanding, assuming compliance with
\n all requirements for drawings referred to in such Letters of Credit plus
\n (ii) the aggregate amount of all drawings under Letters of Credit honored
\n by the Issuing Lender but not theretofore reimbursed.<\/p>\n
“Material Adverse Effect” means a material adverse effect on (i)
\n the condition (financial or otherwise), operations, business, assets,
\n liabilities or prospects of the Consolidated Group taken as a whole, (ii)
\n the ability of the Credit Parties taken as a whole to perform any material
\n obligation under the Credit Documents to which it is a party or (iii) the
\n rights and remedies of the Lenders under the Credit Documents.<\/p>\n
“Materials of Environmental Concern” means any gasoline or
\n petroleum (including crude oil or any fraction thereof) or petroleum
\n products or any hazardous or toxic substances, materials or wastes, defined
\n or regulated as such in or under any Environmental Laws, including, without
\n limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
\n insulation.<\/p>\n
“Moody’s” means Moody’s Investors Service, Inc., or any successor
\n or assignee of the business of such company in the business of rating
\n securities.<\/p>\n
“Multiemployer Plan” means a Plan which is a multiemployer plan as
\n defined in Sections 3(37) or 4001(a)(3) of ERISA.<\/p>\n
“Multiple Employer Plan” means a Plan which the Borrower, any
\n Subsidiary of the Borrower or any ERISA Affiliate and at least one employer
\n other than the Borrower, any Subsidiary of the Borrower or any ERISA
\n Affiliate are contributing sponsors.<\/p>\n
“NationsBank” means NationsBank, N.A. and its successors.<\/p>\n
“Net Proceeds” means gross cash proceeds (including any cash
\n received by way of deferred payment pursuant to a promissory note,
\n receivable or otherwise, but only as and when received) received in
\n connection with an Asset Disposition or Equity Transaction, net of (i)
\n reasonable transaction costs, including in the case of an Equity
\n Transaction, underwriting discounts and commissions and in the case of an
\n Asset Disposition occurring in connection with a claim under an insurance
\n policy, costs incurred in connection with adjustment and settlement of the
\n claim, (ii) estimated taxes payable in connection therewith, and (iii) in
\n the case of an Asset Disposition, any amounts payable in respect of Funded
\n Debt, including without limitation principal, interest, premiums and
\n penalties, which is secured by, or otherwise related to, any <\/p>\n
16<\/p>\n
property or asset which is the subject thereof to the extent that such
\n Funded Debt and any payments in respect thereof are paid with a portion of
\n the proceeds therefrom.<\/p>\n
“Non-Excluded Taxes” means such term as is defined in Section
\n 3.10(a).<\/p>\n
“Non-Guarantor Subsidiaries” shall have the meaning given such
\n term in Section 7.11(a).<\/p>\n
“Note” or “Notes” means the promissory notes of the Borrower in
\n favor of each of the Lenders evidencing the Revolving Loans and Swingline
\n Loans in substantially the form attached as Schedule 2.1(e), individually
\n or collectively, as appropriate, as such promissory notes may be amended,
\n modified, supplemented, extended, renewed or replaced from time to time.<\/p>\n
“Notice of Borrowing” means a written notice of borrowing in
\n substantially the form of Schedule 2.1(b)(i), as required by Section
\n 2.1(b)(i).<\/p>\n
“Notice of Extension\/Conversion” means the written notice of
\n extension or conversion in substantially the form of Schedule 3.2, as
\n required by Section 3.2.<\/p>\n
“Obligations” means, collectively, the Revolving Loans, Swingline
\n Loans and the LOC Obligations.<\/p>\n
“Operating Lease” means, as applied to any Person, any lease
\n (including, without limitation, leases which may be terminated by the
\n lessee at any time) of any Property (whether real, personal or mixed) which
\n is not a Capital Lease other than any such lease in which that Person is
\n the lessor.<\/p>\n
“Participation Interest” means the purchase by a Lender of a
\n participation in Swingline Loans as provided in Section 2.2(b)(iii) and in
\n Loans as provided in Section 3.13.<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation established
\n pursuant to Subtitle A of Title IV of ERISA and any successor thereof.<\/p>\n
“Permitted Investments” means Investments which are either (i)
\n cash and Cash Equivalents; (ii) accounts receivable created, acquired or
\n made in the ordinary course of business and payable or dischargeable in
\n accordance with customary trade terms; (iii) Investments consisting of
\n stock, obligations, securities or other property received in settlement of
\n accounts receivable (created in the ordinary course of business) from
\n bankrupt obligors; (iv) Investments existing as of the Closing Date and set
\n forth in Schedule 8.5, (v) Support <\/p>\n
17<\/p>\n
Obligations permitted by Section 8.1(h); (vi) acquisitions permitted by
\n Section 8.4(c); (vii) transactions permitted by Section 8.6, (viii)
\n advances or loans to employees, directors, officers or agents not to exceed
\n [$_________ ] in the aggregate at any time outstanding; (ix) advances or
\n loans to customers or suppliers that do not exceed [$_________ ] in the
\n aggregate at any one time outstanding, (x) Investments by a member of the
\n Consolidated Group or an Affiliate of a member of the Consolidated Group in
\n connection with a Permitted Securitization Transaction, (xi) Investments by
\n members of the Consolidated Group in their Subsidiaries and Affiliates
\n existing on the Closing Date, (xii) Investments by members of the
\n Consolidated Group in and to a Credit Party and (xiii) other loans,
\n advances and investments of a nature not contemplated in the foregoing
\n subsections in an amount not to exceed [$_________ ]in the aggregate at any
\n time outstanding.<\/p>\n
“Permitted Liens” means:<\/p>\n
(i) Liens in favor of the Administrative Agent on behalf
\n of the Lenders;<\/p>\n
(ii) Liens in favor of a Lender or an Affiliate of a
\n Lender pursuant to a Hedging Agreement permitted hereunder, but only
\n (A) to the extent such Liens secure obligations under such agreements
\n or indebtedness permitted under Section 8.1, (B) to the extent such
\n Liens are on the same collateral as to which the Lenders also have a
\n Lien and (C) if such provider and the Lender shall share pari passu in
\n the collateral subject to such Liens;<\/p>\n
(iii) Liens (other than Liens created or imposed under
\n ERISA) for taxes, assessments or governmental charges or levies not yet
\n due or Liens for taxes being contested in good faith by appropriate
\n proceedings for which adequate reserves determined in accordance with
\n GAAP have been established (and as to which the Property subject to any
\n such Lien is not yet subject to foreclosure, sale or loss on account
\n thereof);<\/p>\n
(iv) statutory Liens of landlords and Liens of
\n carriers, warehousemen, mechanics, materialmen and suppliers and other
\n Liens imposed by law or pursuant to customary reservations or
\n retentions of title arising in the ordinary course of business,
\n provided that such Liens secure only amounts not yet due and payable
\n or, if due and payable, are unfiled and no other action has been taken
\n to enforce the same or are being contested in good faith by appropriate
\n proceedings for which adequate reserves determined in accordance with
\n GAAP have been established (and as to which the Property subject to any
\n such Lien is not yet subject to foreclosure, sale or loss on account
\n thereof);<\/p>\n
18<\/p>\n
(v) Liens (other than Liens created or imposed under
\n ERISA) incurred or deposits made by the Borrower and its Subsidiaries
\n in the ordinary course of business in connection with workers’
\n compensation, unemployment insurance and other types of social
\n security, or to secure the performance of tenders, statutory
\n obligations, bids, leases, government contracts, performance and
\n return-of-money bonds and other similar obligations (exclusive of
\n obligations for the payment of borrowed money);<\/p>\n
(vi) Liens in connection with attachments or
\n judgments (including judgment or appeal bonds) provided that the
\n judgments secured shall, within 30 days after the entry thereof, have
\n been discharged or execution thereof stayed pending appeal, or shall
\n have been discharged within 30 days after the expiration of any such
\n stay;<\/p>\n
(vii) easements, rights-of-way, restrictions
\n (including zoning restrictions), minor defects or irregularities in
\n title and other similar charges or encumbrances not, in any material
\n respect, impairing the use of the encumbered Property for its intended
\n purposes;<\/p>\n
(viii) Liens securing purchase money and sale\/leaseback
\n Indebtedness (including Capital Leases) to the extent permitted under
\n Section 8.1(c), provided that any such Lien attaches only to the
\n Property financed or leased and such Lien attaches thereto concurrently
\n with or within 90 days after the acquisition thereof in connection with
\n the purchase money transactions and within 30 days after the closing of
\n any sale\/leaseback transaction;<\/p>\n
(ix) leases or subleases granted to others not
\n interfering in any material respect with the business of any member of
\n the Consolidated Group;<\/p>\n
(x) any interest of title of a lessor under, and
\n Liens arising from UCC financing statements (or equivalent filings,
\n registrations or agreements in foreign jurisdictions) relating to,
\n leases permitted by this Credit Agreement;<\/p>\n
(xi) Liens in favor of customs and revenue
\n authorities arising as a matter of law to secure payment of customs
\n duties in connection with the importation of goods;<\/p>\n
(xii) Liens created or deemed to exist in connection
\n with a Permitted Securitization Transaction (including any related
\n filings of any financing statements), but only to the extent that any
\n such Lien relates to the applicable receivables and <\/p>\n
19<\/p>\n
related property actually sold, contributed or otherwise
\n conveyed pursuant to such transaction;<\/p>\n
(xiii) Liens deemed to exist in connection with
\n Investments in repurchase agreements permitted under Section 8.5;<\/p>\n
(xiv) normal and customary rights of setoff upon
\n deposits of cash in favor of banks or other depository institutions;<\/p>\n
(xv) Liens granted to holders of Seller Subordinated
\n Debt so long as (a) such Liens relate solely to the assets purchased
\n from such holder(s), (b) such Liens are subordinate to the Liens
\n granted to the Lenders, and (c) the holders of such Seller Subordinated
\n Debt agree to stand still provisions and provisions not to contest the
\n validity of the Lenders’ Liens satisfactory to the Required Lenders;
\n and<\/p>\n
(xvi) Liens existing as of the Closing Date and set
\n forth on Schedule 6.8; provided that (a) no such Lien shall at any time
\n be extended to or cover any Property other than the Property subject
\n thereto on the Closing Date and (b) the principal amount of the
\n Indebtedness secured by such Liens shall not be extended, renewed,
\n refunded or refinanced.<\/p>\n
“Permitted Securitization Transaction” means any Securitization
\n Transaction; provided that (i) the Administrative Agent and the Required
\n Lenders shall be reasonably satisfied with the structure and documentation
\n for any such transaction and that the terms of such transaction entered
\n into after the Closing Date, including the discount applicable to the
\n receivables which are subject of such financing and any termination events,
\n shall be (in the good faith understanding of the Administrative Agent and
\n the Required Lenders) consistent with those prevailing in the market at the
\n time of commitment thereto for similar transactions involving a receivables
\n originator\/servicer of similar credit quality and a receivables pool or
\n other similar characteristics and (ii) the documentation for such
\n transaction shall not be amended or modified in a way which is materially
\n detrimental to the Lenders without the prior written approval of the
\n Administrative Agent and the Required Lenders.<\/p>\n
“Person” means any individual, partnership, joint venture, firm,
\n corporation, limited liability company, association, trust or other
\n enterprise (whether or not incorporated) or any Governmental Authority.<\/p>\n
“Plan” means any employee benefit plan (as defined in Section 3(3)
\n of ERISA) which is covered by ERISA and with respect to which the Borrower,
\n any Subsidiary of the Borrower <\/p>\n
20<\/p>\n
or any ERISA Affiliate is (or, if such plan were terminated at such time,
\n would under Section 4069 of ERISA be deemed to be) an “employer” within the
\n meaning of Section 3(5) of ERISA.<\/p>\n
“Pledge Agreement” means the Pledge Agreement dated as of the
\n Closing Date given by the Borrower and the other pledgors identified
\n therein to NationsBank, N.A., as Administrative Agent, to secure the
\n obligations hereunder, as amended and modified.<\/p>\n
“Prime Rate” means the rate of interest per annum publicly
\n announced from time to time by NationsBank as its prime rate in effect at
\n its principal office in Charlotte, North Carolina, with each change in the
\n Prime Rate being effective on the date such change is publicly announced as
\n effective (it being understood and agreed that the Prime Rate is a
\n reference rate used by NationsBank in determining interest rates on certain
\n loans and is not intended to be the lowest rate of interest charged on any
\n extension of credit by NationsBank to any debtor).<\/p>\n
“Pro Forma Basis” means, with respect to any Transaction, that
\n such Transaction shall be deemed to have occurred as of the first day of
\n the four fiscal-quarter period ending as of the most recent fiscal quarter
\n end preceding the date of such Transaction with respect to which the
\n Administrative Agent and the Lenders have received the officer’s
\n certificate in accordance with the provisions of Section 7.2(b). As used
\n herein, “Transaction” means (i), any corporate merger or consolidation as
\n referred to in Section 8.4(a), (ii) any sale or other disposition of assets
\n as referred to in Section 8.4(b), (iii) any acquisition of capital stock or
\n securities or any purchase, lease or other acquisition of property as
\n referred to in Section 8.4(c) or (iv) the making of any Restricted Payment
\n as referred to in Section 8.10.<\/p>\n
“Pro Rata Share” shall have the meaning given such term in Section
\n 4.6.<\/p>\n
“Property” means any interest in any kind of property or asset,
\n whether real, personal or mixed, or tangible or intangible.<\/p>\n
“Rate Determination Date” shall have the meaning given such term
\n in the definition of “Applicable Percentage”.<\/p>\n
“Register” shall have the meaning given such term in Section
\n 11.3(c).<\/p>\n
“Regulation T, U or X” means Regulation T, U or X, respectively,
\n of the Board of Governors of the Federal Reserve System as from time to
\n time in effect and any successor to all or a portion thereof.<\/p>\n
21<\/p>\n
“Release” means any spilling, leaking, pumping, pouring, emitting,
\n emptying, discharging, injecting, escaping, leaching, dumping or disposing
\n into the environment (including the abandonment or discarding of barrels,
\n containers and other closed receptacles containing any Materials of
\n Environmental Concern).<\/p>\n
“Reportable Event” means any of the events set forth in Section
\n 4043(c) of ERISA, other than those events as to which the notice requirement
\n has been waived by regulation.<\/p>\n
“Required Lenders” means, at any time, Lenders having more than
\n fifty percent (50%) of the Commitments, or if the Commitments have been
\n terminated, Lenders having more than fifty percent (50%) of the aggregate
\n principal amount of the Obligations outstanding (taking into account in each
\n case Participation Interests or obligation to participate therein); provided
\n that the Commitments of, and outstanding principal amount of Obligations
\n (taking into account Participation Interests therein) owing to, a Defaulting
\n Lender shall be excluded for purposes hereof in making a determination of
\n Required Lenders.<\/p>\n
“Requirement of Law” means, as to any Person, the certificate of
\n incorporation and by-laws or other organizational or governing documents of
\n such Person, and any law, treaty, rule or regulation or determination of an
\n arbitrator or a court or other Governmental Authority, in each case
\n applicable to or binding upon such Person or any of its material property is
\n subject.<\/p>\n
“Responsible Officer” means the Chief Financial Officer, the
\n Controller, any Vice President and _______________.<\/p>\n
“Restricted Payment” means (i) any dividend or other distribution,
\n direct or indirect, on account of any shares of any class of stock now or
\n hereafter outstanding, except (A) a dividend payable solely in shares of
\n that class to the holders of that class and (B) dividends and other
\n distributions payable to a Credit Party, (ii) any redemption, retirement,
\n sinking fund or similar payment, purchase or other acquisition for value,
\n direct or indirect, of any shares of any class of stock now or hereafter
\n outstanding, and (iii) any payment made to retire, or to obtain the
\n surrender of, any outstanding warrants, options or other rights to acquire
\n shares of any class of stock now or hereafter outstanding.<\/p>\n
“Revolving Commitment” means, with respect to each Lender, the
\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 Commitment Percentage
\n of the Aggregate Revolving Committed Amount as specified in Schedule 2.1(a),
\n as such amount may be reduced from time to time in accordance with the
\n provisions hereof.<\/p>\n
22<\/p>\n
“Revolving Commitment Percentage” means, for each Lender, a
\n fraction (expressed as a decimal) the numerator of which is the Revolving
\n Commitment of such Lender at such time and the denominator of which is the
\n Aggregate Revolving Committed Amount at such time. The initial Revolving
\n Commitment Percentages are set out on Schedule 2.1(a).<\/p>\n
“Revolving Committed Amount” means, collectively, the aggregate
\n amount of all of the Revolving Commitments and, individually, the amount of
\n each Lender’s Revolving Commitment as specified in Schedule 2.1(a).<\/p>\n
“Revolving Loans” shall have the meaning assigned to such term in
\n Section 2.1(a).<\/p>\n
“S&P” means Standard & Poor’s Ratings Group, a division of McGraw
\n Hill, Inc., or any successor or assignee of the business of such division in
\n the business of rating securities.<\/p>\n
“Securitization Transaction” means any financing transaction or
\n series of financing transactions that have been or may be entered into by a
\n member of the Consolidated Group pursuant to which such member of the
\n Consolidated Group may sell, convey or otherwise transfer to (i) a
\n Subsidiary or affiliate (a “Securitization Subsidiary”), or (ii) any other
\n Person, or may grant a security interest in, any receivables or interests
\n therein secured by merchandise or services financed thereby (whether such
\n receivables are then existing or arising in the future) of such member of
\n the Consolidated Group, and any assets related thereto, including without
\n limitation, all security interests in merchandise or services financed
\n thereby, the proceeds of such receivables, and other assets which are
\n customarily sold or in respect of which security interests are customarily
\n granted in connection with securitization transactions involving such assets.<\/p>\n
“Security Agreement” means the Security Agreement dated as of the
\n Closing Date given by the Borrower and the other grantors identified therein
\n to NationsBank, N.A., as Administrative Agent, to secure the obligations
\n hereunder, as amended and modified.<\/p>\n
“Seller Subordinated Debt” means Subordindated Debt issued to a
\n seller in connection with an acquisition permitted under Section 8.4 of the
\n Credit Agreement.<\/p>\n
“Single Employer Plan” means any Plan which is covered by Title IV
\n of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.<\/p>\n
“Spin-Off Transaction” shall mean the spin-off of the Borrower from
\n U.S. Office Products, Inc.<\/p>\n
23<\/p>\n
“Subordinated Debt” means any Indebtedness of a member of the
\n Consolidated Group which by its terms is expressly subordinated in right of
\n payment to the prior payment of the obligations under the Credit Agreement
\n and the other Credit Documents on terms and conditions satisfactory to the
\n Required Lenders.<\/p>\n
“Subsidiary” means, as to any Person, (a) any corporation more than
\n 50% of whose stock of any class or classes having by the terms thereof
\n ordinary voting power to elect a majority of the directors of such
\n corporation (irrespective of whether or not at the time, any class or
\n classes of such corporation shall have or might have voting power by reason
\n of the happening of any contingency) is at the time owned by such Person
\n directly or indirectly through Subsidiaries, and (b) any partnership,
\n association, joint venture or other entity in which such Person directly or
\n indirectly through Subsidiaries has more than 50% of the voting interests at
\n any time. Unless otherwise identified, “Subsidiary” or “Subsidiaries” shall
\n mean Subsidiaries of the Borrower.<\/p>\n
“Support Obligations” means, with respect to any Person, without
\n duplication, any obligations of such Person (other than endorsements in the
\n ordinary course of business of negotiable instruments for deposit or
\n collection) guaranteeing or intended to guarantee any Indebtedness of any
\n other Person in any manner, whether direct or indirect, and including
\n without limitation any obligation, whether or not contingent, (i) to
\n purchase any such Indebtedness or any Property constituting security
\n therefor, (ii) to advance or provide funds or other support for the payment
\n or purchase of any such Indebtedness or to maintain working capital,
\n solvency or other balance sheet condition of such other Person (including
\n without limitation keep well agreements, maintenance agreements, comfort
\n letters or similar agreements or arrangements) for the benefit of any holder
\n of Indebtedness of such other Person, (iii) to lease or purchase Property,
\n securities or services primarily for the purpose of assuring the holder of
\n such Indebtedness, or (iv) to otherwise assure or hold harmless the holder
\n of such Indebtedness against loss in respect thereof. The amount of any
\n Support Obligation hereunder shall (subject to any limitations set forth
\n therein) be deemed to be an amount equal to the outstanding principal amount
\n (or maximum principal amount, if larger) of the Indebtedness in respect of
\n which such Support Obligation is made.<\/p>\n
“Swingline Commitment” means the commitment of the Swingline Lender
\n to make Swingline Loans in an aggregate principal amount at any time
\n outstanding up to the Swingline Committed Amount and the commitment of the
\n Lenders to purchase participation interests in the Swingline Loans up to
\n their respective Revolving Commitment Percentage as provided in Section
\n 2.3(b)(iii), as such amounts may be reduced from time to time in accordance
\n with the provisions hereof.<\/p>\n
24<\/p>\n
“Swingline Committed Amount” means the amount of the Swingline
\n Lender’s Commitment as specified in Section 2.3(a).<\/p>\n
“Swingline Lender” means NationsBank or its successor.<\/p>\n
“Swingline Loan” means a swingline revolving loan made by the
\n Swingline Lender pursuant to the provisions of Section 2.3.<\/p>\n
“Termination Date” means June __, 2003 (five years from the Closing
\n Date), or if extended with the written consent of each of the Lenders, such
\n later date as to which the Termination Date may be extended.<\/p>\n
“Threshold Requirement” shall have the meaning given such term in
\n Section 7.11(a).<\/p>\n
“Transaction” shall have the meaning given such term in the
\n definition of “Pro Forma Basis”.<\/p>\n
“Voting Stock” means, with respect to any Person, capital stock
\n issued by such Person the holders of which are ordinarily, in the absence of
\n contingencies, entitled to vote for the election of directors (or persons
\n performing similar functions) of such Person, even though the right so to
\n vote has been suspended by the happening of such a contingency.<\/p>\n
“Wholly Owned Subsidiary” of any Person means any Subsidiary 100%
\n of whose Voting Stock or other equity interests is at the time owned by such
\n Person directly or indirectly through other Wholly Owned Subsidiaries.<\/p>\n
1.2 Computation of Time Periods.<\/p>\n
For purposes of computation of periods of time hereunder, the word
\n“from” means “from and including” and the words “to” and “until” each mean
\n“to but excluding.”<\/p>\n
1.3 Accounting Terms.<\/p>\n
Except as otherwise expressly provided herein, all accounting terms
\nused herein shall be interpreted, and all financial statements and
\ncertificates and reports as to financial matters required to be delivered to
\nthe Lenders hereunder shall be prepared, in accordance with GAAP. All
\ncalculations made for the purposes of determining compliance with this Credit
\nAgreement shall (except as otherwise expressly provided herein) be made by
\napplication of GAAP applied on a basis consistent with the most recent annual
\nor quarterly financial statements delivered pursuant to Section 7.1 hereof <\/p>\n
25<\/p>\n
(or, prior to the delivery of the first financial statements pursuant to
\nSection 7.1 hereof, consistent with the annual audited financial statements
\nreferenced in Section 6.1(i) hereof); provided, however, if (a) the Borrower
\nshall object to determining such compliance on such basis at the time of
\ndelivery of such financial statements due to any change in GAAP or the rules
\npromulgated with respect thereto or (b) the Administrative Agent or the
\nRequired Lenders shall so object in writing within 30 days after delivery of
\nsuch financial statements, then such calculations shall be made on a basis
\nconsistent with the most recent financial statements delivered by the
\nBorrower to the Lenders as to which no such objection 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
\ncompliance with the financial covenants in Section 7.9 (and compliance
\ntherewith on a Pro Forma Basis), in the case of acquisitions and dispositions
\nwhich have occurred during the applicable period to the extent permitted
\nhereunder, 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
\nof such acquisition or disposition, and the effect of any Indebtedness paid
\nwith proceeds from a disposition, provided that coverage items (relating to
\ninterest and rental expense and other such items, under Consolidated EBITDA,
\nConsolidated Fixed Charges or the like) shall be determined by annualization
\nfrom the date of acquisition of disposition rather than by reference to
\nhistorical performance relating prior the date of acquisition or disposition.<\/p>\n
SECTION 2
\nCREDIT FACILITIES<\/p>\n
2.1 Revolving Loans.<\/p>\n
(a) Revolving Commitment. During the Commitment Period, subject to
\nthe terms and conditions hereof, each Lender severally agrees to make
\nrevolving credit loans (the “Revolving Loans”) to the Borrower from time to
\ntime in the amount of such Lender’s Revolving Commitment Percentage of such
\nRevolving Loans for the purposes hereinafter set forth; provided that (i)
\nwith regard to the Lenders collectively, the aggregate principal amount of
\nObligations outstanding at any time shall not exceed the Aggregate Revolving
\nCommitted Amount, and (ii) with regard to each Lender individually, such
\nLender’s Revolving Commitment Percentage of Obligations outstanding at any
\ntime shall not exceed such Lender’s Revolving Committed Amount. Revolving
\nLoans may consist of Base Rate Loans or Eurodollar Loans, or a combination
\nthereof, as the Borrower may request, and may be repaid and reborrowed in
\naccordance with the provisions hereof.<\/p>\n
26<\/p>\n
(b) Revolving Loan Borrowings.<\/p>\n
(i) Notice of Borrowing. The Borrower shall request a
\n Revolving Loan borrowing by written notice (or telephone notice promptly
\n confirmed in writing) to the Administrative Agent not later than 11:00 A.M.
\n (Charlotte, North Carolina time) on the Business Day prior to the date of
\n the requested borrowing in the case of Base Rate Loans, and on the third
\n Business Day prior to the date of the requested borrowing in the case of
\n Eurodollar Loans. Each such request for borrowing shall be irrevocable and
\n shall 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, and
\n if Eurodollar Loans are requested, the Interest Period(s) therefor. If the
\n 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 aggregate principal amount of $5,000,000, in the case of Eurodollar Loans,
\n or $1,000,000 (or the remaining Revolving Committed Amount, if less), in the
\n case of Base Rate Loans, and integral multiples of $1,000,000 in excess
\n thereof.<\/p>\n
(iii) Advances. Each Lender will make its Revolving Commitment
\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
\nand payable in full on the Termination Date.<\/p>\n
(d) Interest. Subject to the provisions of Section 3.1,<\/p>\n
27<\/p>\n
(i) Base Rate Loans. During such periods as Revolving Loans
\n shall be comprised in whole or in part of Base Rate Loans, such Base Rate
\n Loans shall bear interest at a per annum rate equal to the Base Rate plus
\n the Applicable Percentage;<\/p>\n
(ii) Eurodollar Loans. During such periods as Revolving Loans
\n shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar
\n Loans shall bear interest at a per annum rate equal to the Eurodollar Rate
\n plus the Applicable Percentage.<\/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
\nduly executed Note in favor of each Lender.<\/p>\n
(f) Maximum Number of Eurodollar Loans. The Borrower will be
\nlimited to a maximum number of five (5) Eurodollar Loans outstanding at any
\ntime. For purposes hereof, Eurodollar Loans with separate or different
\nInterest Periods will be considered as separate Eurodollar Loans even if
\ntheir Interest Periods expire on the same date.<\/p>\n
2.2 Letter of Credit Subfacility.<\/p>\n
(a) Issuance. During the Commitment Period, subject to the terms
\nand conditions hereof and of the LOC Documents, if any, and such other terms
\nand conditions which the Issuing Lender may reasonably require, the Issuing
\nLender shall issue, and the Lenders shall participate in, such Letters of
\nCredit as the Borrower may request for its own account or for the account of
\nany Subsidiary as provided herein, in a form acceptable to the Issuing
\nLender, for the purposes hereinafter set forth; provided that (i) the
\naggregate amount of LOC Obligations shall not exceed TWO MILLION DOLLARS
\n($2,000,000) at any time (the “LOC Committed Amount”), (ii) with regard to
\nthe Lenders collectively, the aggregate principal amount of Obligations
\noutstanding at any time shall not exceed the Aggregate Revolving Committed
\nAmount and (iii) with regard to each Lender individually, such Lender’s
\nRevolving Commitment Percentage of Obligations outstanding at any time shall
\nnot exceed such Lender’s Revolving Committed Amount. Letters of Credit
\nissued hereunder shall not have an original expiry date more than one year
\nfrom the date of issuance or extension, nor an expiry date, whether as
\noriginally issued or by extension, extending beyond the Termination Date.
\nEach Letter of Credit shall comply with the related LOC Documents. The
\nissuance date of each Letter of Credit shall be a Business Day.<\/p>\n
(b) Notice and Reports. Except for those Letters of Credit
\ndescribed on Schedule 2.2(b)-1 which shall be issued on the Closing Date, the
\nrequest for the issuance of a Letter of Credit shall be submitted by the
\nBorrower to the Issuing Lender at least three (3) Business Days prior to the <\/p>\n
28<\/p>\n
requested date of issuance (or such shorter period as may be agreed by the
\nIssuing Lender). A form of Notice of Request for Letter of Credit is
\nattached as Schedule 2.2(b)-2. The Issuing Lender will provide to the
\nAdministrative Agent at least monthly, and more frequently upon request, a
\ndetailed summary report on its Letters of Credit and the activity thereon, in
\nform and substance acceptable to the Administrative Agent. In addition, the
\nIssuing Lender will provide to the Administrative Agent for dissemination to
\nthe Lenders at least quarterly, and more frequently upon request, a detailed
\nsummary report on its Letters of Credit and the activity thereon, including,
\namong other things, the Credit Party for whose account the Letter of Credit
\nis issued, the beneficiary, the face amount, and the expiry date. The
\nIssuing Lender will provide copies of the Letters of Credit to the
\nAdministrative Agent and the Lenders promptly upon request.<\/p>\n
(c) Participation. Each Lender, with respect to the Existing
\nLetters of Credit, hereby purchases a participation interest in such Existing
\nLetters of Credit, and with respect to Letters of Credit issued after the
\nClosing Date, upon issuance of a Letter of Credit, shall be deemed to have
\npurchased without recourse a risk participation from the applicable Issuing
\nLender in such Letter of Credit and the obligations arising thereunder, in
\neach case in an amount equal to its pro rata share of the obligations under
\nsuch Letter of Credit (based on the respective Revolving Commitment
\nPercentages of the Lenders) and shall absolutely, unconditionally and
\nirrevocably assume, as primary obligor and not as surety, and be obligated to
\npay to the Issuing Lender therefor and discharge when due, its pro rata share
\nof the obligations arising under such Letter of Credit. Without limiting the
\nscope and nature of each Lender’s participation in any Letter of Credit, to
\nthe extent that the Issuing Lender has not been reimbursed as required
\nhereunder or under any such Letter of Credit, each such Lender shall pay to
\nthe Issuing Lender its pro rata share of such unreimbursed drawing in same
\nday funds on the day of notification by the Issuing Lender of an unreimbursed
\ndrawing pursuant to the provisions of subsection (d) hereof. The obligation
\nof each Lender to so reimburse the Issuing Lender shall be absolute and
\nunconditional and shall not be affected by the occurrence of a Default, an
\nEvent of Default or any other occurrence or event. Any such reimbursement
\nshall not relieve or otherwise impair the obligation of the Borrower to
\nreimburse the Issuing Lender under any Letter of Credit, together with
\ninterest as hereinafter provided.<\/p>\n
(d) Reimbursement. In the event of any drawing under any Letter of
\nCredit, the Issuing Lender will promptly notify the Borrower. Unless the
\nBorrower shall immediately notify the Issuing Lender that the Borrower
\nintends to otherwise reimburse the Issuing Lender for such drawing, the
\nBorrower shall be deemed to have requested that the Lenders make a Revolving
\nLoan in the amount of the drawing as provided in subsection (e) hereof on the
\nrelated Letter of Credit, the proceeds of which will be used to satisfy the
\nrelated reimbursement obligations. The Borrower promises to reimburse the
\nIssuing Lender on the day of drawing under any Letter of Credit (either with
\nthe proceeds of a Revolving Loan obtained hereunder or otherwise) in same day
\nfunds. If the Borrower shall fail to reimburse the Issuing Lender as
\nprovided hereinabove, the unreimbursed amount of such drawing shall bear
\ninterest at a per annum rate equal to the Base Rate plus the sum of (i) the <\/p>\n
29<\/p>\n
Applicable Percentage and (ii) two percent (2%). The Borrower’s
\nreimbursement obligations hereunder shall be absolute and unconditional under
\nall circumstances irrespective of any rights of setoff, counterclaim or
\ndefense to payment the Borrower may claim or have against the Issuing Lender,
\nthe Administrative Agent, the Lenders, the beneficiary of the Letter of
\nCredit drawn upon or any other Person, including without limitation any
\ndefense based on any failure of the Borrower or any other Credit Party to
\nreceive consideration or the legality, validity, regularity or
\nunenforceability of the Letter of Credit. The Issuing Lender will promptly
\nnotify the other Lenders of the amount of any unreimbursed drawing and each
\nLender shall promptly pay to the Administrative Agent for the account of the
\nIssuing Lender in Dollars and in immediately available funds, the amount of
\nsuch Lender’s pro rata share of such unreimbursed drawing. Such payment
\nshall be made on the day such notice is received by such Lender from the
\nIssuing Lender if such notice is received at or before 2:00 P.M. (Charlotte,
\nNorth Carolina time) otherwise such payment shall be made at or before 12:00
\nNoon (Charlotte, North Carolina time) on the Business Day next succeeding the
\nday such notice is received. If such Lender does not pay such amount to the
\nIssuing Lender in full upon such request, such Lender shall, on demand, pay
\nto the Administrative Agent for the account of the Issuing Lender interest on
\nthe unpaid amount during the period from the date of such drawing until such
\nLender pays such amount to the Issuing Lender in full at a rate per annum
\nequal to, if paid within two (2) Business Days of the date that such Lender
\nis required to make payments of such amount pursuant to the preceding
\nsentence, the Federal Funds Rate and thereafter at a rate equal to the Base
\nRate. Each Lender’s obligation to make such payment to the Issuing Lender,
\nand the right of the Issuing Lender to receive the same, shall be absolute
\nand unconditional, shall not be affected by any circumstance whatsoever and
\nwithout regard to the termination of this Credit Agreement or the Commitments
\nhereunder, the existence of a Default or Event of Default or the acceleration
\nof the obligations of the Borrower hereunder and shall be made without any
\noffset, abatement, withholding or reduction whatsoever. Simultaneously with
\nthe making of each such payment by a Lender to the Issuing Lender, such
\nLender shall, automatically and without any further action on the part of the
\nIssuing Lender or such Lender, acquire a participation in an amount equal to
\nsuch payment (excluding the portion of such payment constituting interest
\nowing to the Issuing Lender) in the related unreimbursed drawing portion of
\nthe LOC Obligation and in the interest thereon and in the related LOC
\nDocuments, and shall have a claim against the Borrower with respect thereto.<\/p>\n
(e) Repayment with Revolving Loans. On any day on which the
\nBorrower shall have requested, or been deemed to have requested, a Revolving
\nLoan advance to reimburse a drawing under a Letter of Credit, the
\nAdministrative Agent shall give notice to the Lenders that a Revolving Loan
\nhas been requested or deemed requested by the Borrower to be made in
\nconnection with a drawing under a Letter of Credit, in which case a Revolving
\nLoan advance comprised of Base Rate Loans (or Eurodollar Loans to the extent
\nthe Borrower has complied with the procedures of Section 2.1(b)(i) with
\nrespect thereto) shall be immediately made to the Borrower by all Lenders
\n(notwithstanding any termination of the Commitments pursuant to Section 9.2)
\npro rata based on the respective Revolving Commitment Percentages of the
\nLenders (determined before giving effect to <\/p>\n
30<\/p>\n
any termination of the Commitments pursuant to Section 9.2) and the proceeds
\nthereof shall be paid directly to the Issuing Lender for application to the
\nrespective LOC Obligations. Each such Lender hereby irrevocably agrees to
\nmake its pro rata share of each such Revolving Loan immediately upon any such
\nrequest or deemed request in the amount, in the manner and on the date
\nspecified in the preceding sentence notwithstanding (i) the amount of such
\nborrowing may not comply with the minimum amount for advances of Revolving
\nLoans otherwise required hereunder, (ii) whether any conditions specified in
\nSection 5.2 are then satisfied, (iii) whether a Default or an Event of
\nDefault then exists, (iv) failure for any such request or deemed request for
\nRevolving Loan to be made by the time otherwise required hereunder, (v)
\nwhether the date of such borrowing is a date on which Revolving Loans are
\notherwise permitted to be made hereunder or (vi) any termination of the
\nCommitments relating thereto immediately prior to or contemporaneously with
\nsuch borrowing. In the event that any Revolving Loan cannot for any reason
\nbe made on the date otherwise required above (including, without limitation,
\nas a result of the commencement of a proceeding under the Bankruptcy Code
\nwith respect to the Borrower or any Credit Party), then each such Lender
\nhereby agrees that it shall forthwith purchase (as of the date such borrowing
\nwould otherwise have occurred, but adjusted for any payments received from
\nthe Borrower on or after such date and prior to such purchase) from the
\nIssuing Lender such participation in the outstanding LOC Obligations as shall
\nbe necessary to cause each such Lender to share in such LOC Obligations
\nratably (based upon the respective Revolving Commitment Percentages of the
\nLenders (determined before giving effect to any termination of the
\nCommitments pursuant to Section 9.2)), provided that in the event such
\npayment is not made on the day of drawing, such Lender shall pay in addition
\nto the Issuing Lender interest on the amount of its unfunded Participation
\nInterest at a rate equal to, if paid within two (2) Business Days of the date
\nof drawing, the Federal Funds Rate, and thereafter at the Base Rate.<\/p>\n
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
\nanything to the contrary set forth in this Credit Agreement, including
\nwithout limitation Section 2.2(a) hereof, a Letter of Credit issued hereunder
\nmay contain a statement to the effect that such Letter of Credit is issued
\nfor the account of a Subsidiary, provided that notwithstanding such
\nstatement, the Borrower shall be the actual account party for all purposes of
\nthis Credit Agreement for such Letter of Credit and such statement shall not
\naffect the Borrower’s reimbursement obligations hereunder with respect to
\nsuch Letter of Credit.<\/p>\n
(g) Renewal, Extension. The renewal or extension of any Letter of
\nCredit shall, for purposes hereof, be treated in all respects the same as the
\nissuance of a new Letter of Credit hereunder. <\/p>\n
(h) Uniform Customs and Practices. The Letters of Credit shall be
\nsubject to The Uniform Customs and Practice for Documentary Credits, as
\npublished as of the date of issue by the International Chamber of Commerce
\n(the “UCP”), in which case the UCP may be incorporated therein and deemed in
\nall respects to be a part thereof.<\/p>\n
31<\/p>\n
(i) Indemnification; Nature of Issuing Lender’s Duties.<\/p>\n
(i) In addition to its other obligations under this Section
\n 2.2, the Borrower hereby agrees to protect, indemnify, pay and save the
\n Issuing Lender harmless from and against any and all claims, demands,
\n liabilities, damages, losses, costs, charges and expenses (including
\n reasonable attorneys’ fees) that the Issuing Lender may incur or be subject
\n to as a consequence, direct or indirect, of (A) the issuance of any Letter
\n of Credit or (B) the failure of the Issuing Lender to honor a drawing under
\n a Letter of Credit as a result of any act or omission, whether rightful or
\n wrongful, of any present or future de jure or de facto government or
\n governmental authority (all such acts or omissions, herein called
\n “Government Acts”), except to the extent any such claims, demands,
\n liabilities, damages, costs, charges and expenses arise out of or relate to
\n disputes solely between or among the Administrative Lender and\/or the
\n Lenders.<\/p>\n
(ii) As between the Borrower and the Issuing Lender, the
\n Borrower shall assume all risks of the acts, omissions or misuse of any
\n Letter of Credit by the beneficiary thereof. The Issuing Lender shall not
\n be responsible: (A) for the form, validity, sufficiency, accuracy,
\n genuineness or legal effect of any document submitted by any party (other
\n than the Issuing Lender) in connection with the application for and issuance
\n of any Letter of Credit, even if it should in fact prove to be in any or all
\n respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for
\n the validity or sufficiency of any instrument transferring or assigning or
\n purporting to transfer or assign any Letter of Credit or the rights or
\n benefits thereunder or proceeds thereof, in whole or in part, that may prove
\n to be invalid or ineffective for any reason; (C) for errors, omissions,
\n interruptions or delays (other than by the Issuing Lender) in transmission
\n or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
\n whether or not they be in cipher; (D) for any loss or delay (other than by
\n the Issuing Lender) in the transmission or otherwise of any document
\n required in order to make a drawing under a Letter of Credit or of the
\n proceeds thereof; and (E) for any consequences arising from causes beyond
\n the control of the Issuing Lender, including, without limitation, any
\n Government Acts. None of the above shall affect, impair, or prevent the
\n vesting of the Issuing Lender’s rights or powers hereunder.<\/p>\n
(iii) In furtherance and extension and not in limitation of the
\n specific provisions hereinabove set forth, any action taken or omitted by
\n the Issuing Lender, under or in connection with any Letter of Credit or the
\n related certificates, if taken or omitted in good faith and not constituting
\n gross negligence, shall not put such Issuing Lender under any resulting
\n liability to the Borrower or any other Credit Party. It is the intention of
\n the parties that this Credit Agreement shall be construed and applied to
\n protect and indemnify the Issuing Lender against any and all risks involved
\n in the issuance of the Letters of Credit, all of which risks (except as set
\n forth herein) are hereby assumed by the Borrower (on behalf of itself and <\/p>\n
32<\/p>\n
each of the other Credit Parties), including, without limitation, any and
\n all Government Acts. The Issuing Lender shall not, in any way, be liable
\n for any failure by the Issuing Lender or anyone else to pay any drawing
\n under any Letter of Credit as a result of any Government Acts or any other
\n cause beyond the control of the Issuing Lender.<\/p>\n
(iv) Nothing in this subsection (i) is intended to limit the
\n reimbursement obligations of the Borrower contained in subsection (d) above.
\n The obligations of the Borrower under this subsection (i) shall survive the
\n termination of this Credit Agreement. No act or omissions of any current or
\n prior beneficiary of a Letter of Credit shall in any way affect or impair
\n the rights of the Issuing Lender to enforce any right, power or benefit
\n under this Credit Agreement.<\/p>\n
(v) Notwithstanding anything to the contrary contained in this
\n subsection (i), the Borrower shall have no obligation to indemnify the
\n Issuing Lender in respect of any liability incurred by the Issuing Lender
\n (A) arising out of the negligence or willful misconduct of the Issuing
\n Lender, as determined by a court of competent jurisdiction, or (B) caused by
\n the Issuing Lender’s failure to pay under any Letter of Credit after
\n presentation to it of a request strictly complying with the terms and
\n conditions of such Letter of Credit, as determined by a court of competent
\n jurisdiction, unless such payment is prohibited, as determined by a court of
\n competent jurisdiction.<\/p>\n
(j) Responsibility of Issuing Lender. It is expressly understood and
\nagreed that the obligations of the Issuing Lender hereunder to the Lenders
\nare only those expressly set forth in this Credit Agreement and that the
\nIssuing Lender shall be entitled to assume that the conditions precedent set
\nforth in Section 5.2 have been satisfied unless it shall have acquired actual
\nknowledge that any such condition precedent has not been satisfied; provided,
\nhowever, that nothing set forth in this Section 2.2 shall be deemed to
\nprejudice the right of any Lender to recover from the Issuing Lender any
\namounts made available by such Lender to the Issuing Lender pursuant to this
\nSection 2.2 in the event that it is determined by a court of competent
\njurisdiction that the payment with respect to a Letter of Credit constituted
\ngross negligence or willful misconduct on the part of the Issuing Lender.<\/p>\n
(k) Conflict with LOC Documents. In the event of any conflict
\nbetween this Credit Agreement and any LOC Document (including any letter of
\ncredit application), this Credit Agreement shall control.<\/p>\n
2.3 Swingline Loan Subfacility.<\/p>\n
(a) Swingline Commitment. Subject to the terms and conditions
\nhereof and in reliance upon the representations and warranties set forth
\nherein, the Swingline Lender, in its individual capacity, agrees to make
\ncertain revolving credit loans requested by the Borrower in Dollars to the <\/p>\n
33<\/p>\n
Borrower (each a “Swingline Loan” and, collectively, the “Swingline Loans”)
\n from time to time from the Closing Date until the Termination Date for the
\n purposes hereinafter set forth; provided, however, (i) the aggregate
\n principal amount of Swingline Loans outstanding at any time shall not exceed
\n FIVE MILLION DOLLARS ($5,000,000) (the “Swingline Committed Amount”), and
\n (ii) with regard to the Lenders collectively, the aggregate principal amount
\n of Obligations outstanding at any time shall not exceed the Aggregate
\n Revolving Committed. Swingline Loans hereunder shall be made as Base Rate
\n Loans, and may be repaid or reborrowed in accordance with the provisions
\n hereof.<\/p>\n
(b) Swingline Loan Advances.<\/p>\n
(i) Notices; Disbursement. Whenever the Borrower desires a Swingline
\n Loan advance hereunder it shall give written notice (or telephonic notice
\n promptly confirmed in writing) to the Swingline Lender not later than
\n 11:00 A.M. (Charlotte, North Carolina time) on the Business Day of the
\n requested Swingline Loan advance. Each such notice shall be irrevocable
\n and shall specify (A) that a Swingline Loan advance is requested, (B) the
\n date of the requested Swingline Loan advance (which shall be a Business
\n Day) and (C) the principal amount of and Interest Period for the Swingline
\n Loan advance requested. Each Swingline Loan shall have such maturity date
\n as the Swingline Lender and the Borrower shall agree upon receipt by the
\n Swingline Lender of any such notice from the Borrower. The Swingline
\n Lender shall initiate the transfer of funds representing the Swingline
\n Loan advance to the Borrower by 3:00 P.M. (Charlotte, North Carolina time)
\n on the Business Day of the requested borrowing.<\/p>\n
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a minimum
\n principal amount of $500,000 and in integral multiples of $100,000 in
\n excess thereof (or the remaining amount of the Swingline Committed Amount,
\n if less).<\/p>\n
(iii) Repayment of Swingline Loans. The principal amount of all
\n Swingline Loans shall be due and payable on the earlier of (A) the
\n maturity date agreed to by the Swingline Lender and the Borrower with
\n respect to such Loan (which maturity date shall not be a date more than
\n thirty (30) Business Days from the date of advance thereof) or (B) the
\n Termination Date. The Swingline Lender may, at any time, in its sole
\n discretion, by written notice to the Borrower and the Lenders, demand
\n repayment of its Swingline Loans by way of a Revolving Loan advance, in
\n which case the Borrower shall be deemed to have requested a Revolving Loan
\n advance comprised solely of Base Rate Loans in the amount of such
\n Swingline Loans; provided, however, that any such demand shall be deemed
\n to have been given one Business Day prior to the Termination Date and on
\n the date of the occurrence of any Event of Default described in Section
\n 9.1 and upon acceleration of the indebtedness hereunder and the exercise
\n of remedies in accordance with the provisions of Section 9.2. Each Lender
\n hereby irrevocably agrees to make its pro rata share of each such
\n Revolving Loan in the amount, in <\/p>\n
34<\/p>\n
the manner and on the date specified in the preceding sentence
\n notwithstanding (I) the amount of such borrowing may not comply with the
\n minimum amount for advances of Revolving Loans otherwise required
\n hereunder, (II) whether any conditions specified in Section 5.2 are then
\n satisfied, (III) whether a Default or an Event of Default then exists,
\n (IV) failure of any such request or deemed request for Revolving Loan to
\n be made by the time otherwise required hereunder, (V) whether the date of
\n such borrowing is a date on which Revolving Loans are otherwise permitted
\n to be made hereunder or (VI) any termination of the Commitments relating
\n thereto immediately prior to or contemporaneously with such borrowing. In
\n the event that any Revolving Loan cannot for any reason be made on the
\n date otherwise required above (including, without limitation, as a result
\n of the commencement of a proceeding under the Bankruptcy Code with respect
\n to the Borrower or any other Credit Party), then each Lender hereby agrees
\n that it shall forthwith purchase (as of the date such borrowing would
\n otherwise have occurred, but adjusted for any payments received from the
\n Borrower on or after such date and prior to such purchase) from the
\n Swingline Lender such Participation Interests in the outstanding Swingline
\n Loans as shall be necessary to cause each such Lender to share in such
\n Swingline Loans ratably based upon its Commitment Percentage of the
\n Revolving Committed Amount (determined before giving effect to any
\n termination of the Commitments pursuant to Section 3.4), provided that (A)
\n all interest payable on the Swingline Loans shall be for the account of
\n the Swingline Lender until the date as of which the respective
\n Participation Interest is purchased and (B) at the time any purchase of
\n Participation Interests pursuant to this sentence is actually made, the
\n purchasing Lender shall be required to pay to the Swingline Lender, to the
\n extent not paid to the Swingline Lender by the Borrower in accordance with
\n the terms of subsection (c)(ii) below, interest on the principal amount of
\n Participation Interests purchased for each day from and including the day
\n upon which such borrowing would otherwise have occurred to but excluding
\n the date of payment for such Participation Interests, at the rate equal to
\n the Federal Funds Rate.<\/p>\n
(c) Interest on Swingline Loans.<\/p>\n
Subject to the provisions of Section 3.1, each Swingline Loan shall bear
\ninterest at a per annum rate (computed on the basis of the actual number of
\ndays elapsed over a year of 365 days) equal to the Base Rate. Interest on
\nSwingline Loans shall be payable in arrears on each applicable Interest
\nPayment Date (or at such other times as may be specified herein), unless
\naccelerated sooner pursuant to Section 9.2.<\/p>\n
(d) Swingline Note. The Swingline Loans shall be evidenced by the
\nNote.<\/p>\n
SECTION 3
\nOTHER PROVISIONS RELATING TO CREDIT FACILITIES<\/p>\n
35<\/p>\n
3.1 Default Rate.<\/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
\nand any other amounts owing hereunder or under the other Credit Documents
\nshall bear interest, payable on demand, at a per annum rate 2% greater than
\nthe rate which would otherwise be applicable (or if no rate is applicable,
\nwhether in respect of interest, fees or other amounts, then 2% greater than
\nthe Base Rate).<\/p>\n
3.2 Extension and Conversion.<\/p>\n
Subject to the terms of Section 5.2, the Borrower shall have the option,
\non any 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
\nLoans may be converted into Base Rate Loans only on the last day of the
\nInterest Period applicable thereto, (ii) Eurodollar Loans may be extended,
\nand Base Rate Loans may be converted into Eurodollar Loans, only if no
\nDefault or Event of Default is in existence on the date of extension or
\nconversion, (iii) Loans extended as, or converted into, Eurodollar Loans
\nshall be subject to the terms of the definition of “Interest Period” set
\nforth in Section 1.1 and shall be in such minimum amounts as provided in
\nSection 2.1(b)(ii) , and (iv) any request for extension or conversion of a
\nEurodollar Loan which shall fail to specify an Interest Period shall be
\ndeemed to be a request for an Interest Period of one month. Each such
\nextension or conversion shall be effected by the Borrower by giving a Notice
\nof Extension\/Conversion (or telephone notice promptly confirmed in writing)
\nto the Administrative Agent prior to 11:00 A.M. (Charlotte, North Carolina
\ntime) on the Business Day of, in the case of the conversion of a Eurodollar
\nLoan into a Base Rate Loan, and on the third Business Day prior to, in the
\ncase of the extension of a Eurodollar Loan as, or conversion of a Base Rate
\nLoan 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
\nLoans are to be converted and, if appropriate, the applicable Interest
\nPeriods with respect thereto. Each request for extension or conversion shall
\nbe irrevocable and shall constitute a representation and warranty by the
\nBorrower of the matters specified in subsections (a) through (e) of Section
\n5.2. In the event the Borrower fails to request extension or conversion of
\nany Eurodollar Loan in accordance with this Section, or any such conversion
\nor extension is not permitted or required by this Section, then such
\nEurodollar Loan shall be automatically converted into a Base Rate Loan at the
\nend of the Interest Period applicable thereto. The Administrative Agent
\nshall give each Lender notice as promptly as practicable of any such proposed
\nextension or conversion affecting any Loan.<\/p>\n
3.3 Prepayments.<\/p>\n
36<\/p>\n
(a) Voluntary Prepayments. Revolving Loans may be repaid in whole
\nor in part without premium or penalty; provided that (i) Eurodollar Loans may
\nbe prepaid 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
\nthe case of Base Rate Loans, and in integral multiples of $1,000,000 in
\nexcess thereof.<\/p>\n
(b) Mandatory Prepayments. If at any time, (A) the aggregate
\nprincipal amount of Obligations shall exceed the Aggregate Revolving
\nCommitted Amount, (B) the aggregate amount of LOC Obligations shall exceed
\nthe LOC Committed Amount, or (C) the aggregate amount of Swingline Loans
\nshall exceed the Swingline Committed Amount, the Borrower shall immediately
\nmake payment on the Revolving Loans and\/or Swingline Loans and\/or to a cash
\ncollateral account in respect of the LOC Obligations, in an amount sufficient
\nto eliminate the deficiency.<\/p>\n
(c) Application. Unless otherwise specified by the Borrower,
\nprepayments made hereunder shall be applied first to Swingline Loans, then to
\nRevolving Loans which are Base Rate Loans, then to Revolving Loans which are
\nEurodollar Loans in direct order of Interest Period maturities. Amounts
\nprepaid hereunder may be reborrowed in accordance with the provisions hereof.<\/p>\n
3.4 Termination and Reduction of Commitments<\/p>\n
(a) Voluntary Reductions. The Revolving Commitments may be
\nterminated or permanently reduced in whole or in part upon three (3) Business
\nDays’ prior written notice to the Administrative Agent, provided that (i)
\nafter giving effect to any voluntary reduction the aggregate amount of
\nObligations shall not exceed the Aggregate Revolving Committed Amount, as
\nreduced, and (ii) partial reductions shall be minimum principal amount of
\n$5,000,000, and in integral multiples of $1,000,000 in excess thereof.<\/p>\n
(b) Mandatory Reduction. The Revolving Commitments shall be
\npermanently reduced in an amount equal to one hundred percent (100%) of the
\nNet Proceeds received from Asset Dispositions in any fiscal year; but only to
\nthe extent that (i) such Net Proceeds are not reinvested in other property or
\nassets within six (6) months of the date of sale, lease, disposition,
\ncasualty, theft or loss giving rise thereto, and (ii) the aggregate amount of
\nsuch Net Proceeds not reinvested in accordance with the foregoing subsection
\n(i) in any fiscal year shall exceed [$__________ ].<\/p>\n
(c) Termination. The Commitments hereunder shall terminate on the
\nTermination Date.<\/p>\n
37<\/p>\n
3.5 Fees.<\/p>\n
(a) Commitment Fee. In consideration of the Revolving Commitments
\nhereunder, the Borrower agrees to pay to the Administrative Agent for the
\nratable benefit of the Lenders a commitment fee (the “Commitment Fee”) equal
\nto the Applicable Percentage per annum on the average daily unused amount of
\nthe Revolving Committed Amount for the applicable period. The Commitment Fee
\nshall be payable quarterly in arrears on the 15th day following the last day
\nof each calendar quarter for the immediately preceding quarter (or portion
\nthereof) beginning with the first such date to occur after the Closing Date.
\nFor purposes of computation of the Commitment Fee, Swingline Loans shall not
\nbe counted toward or considered usage under the Revolving Loan facility.<\/p>\n
(b) Letter of Credit Fees.<\/p>\n
(i) Letter of Credit Fee. In consideration of the LOC Commitment
\n hereunder, the Borrower agrees to pay to the Administrative Agent for the
\n ratable benefit of the Lenders a fee (the “Letter of Credit Fee”) equal to
\n the Applicable Percentage per annum on the average daily maximum amount
\n available to be drawn under Letters of Credit from the date of issuance to
\n the date of expiration. The Letter of Credit Fee shall be payable
\n quarterly in arrears on the 15th day following the last day of each
\n calendar quarter for the immediately preceding quarter (or portion
\n thereof) beginning with the first such date to occur after the Closing
\n Date.<\/p>\n
(ii) Issuing Lender Fee. In addition to the Letter of Credit Fee,
\n the Borrower agrees to pay to the Issuing Lender for its own account
\n without sharing by the other Lenders (A) a fronting and negotiation fee of
\n .125% per annum on the average daily maximum amount available to be drawn
\n under Letters of Credit issued by it from the date of issuance to the date
\n of expiration, and (B) customary charges of the Issuing Lender with
\n respect to the issuance, amendment, transfer, administration, cancellation
\n and conversion of, and drawings under, such Letters of Credit
\n (collectively, the “Issuing Lender Fees”).<\/p>\n
(c) Administrative Agent’s Fees. The Borrower agrees to pay to the
\nAdministrative Agent, for its own account, an annual administrative fee and
\nsuch other fees, if any, referred to in the Administrative Agent’s Fee Letter
\n(collectively, the “Administrative Agent’s Fees”).<\/p>\n
3.6 Capital Adequacy.<\/p>\n
38<\/p>\n
If any Lender has determined, after the date hereof, that the adoption
\nor the becoming effective of, or any change in, or any change by any
\nGovernmental Authority, central bank or comparable agency charged with the
\ninterpretation or administration thereof in the interpretation or
\nadministration of, any applicable law, rule or regulation regarding capital
\nadequacy, or compliance by such Lender with any request or directive
\nregarding capital adequacy (whether or not having the force of law) of any
\nsuch authority, central bank or comparable agency, has or would have the
\neffect of reducing the rate of return on such Lender’s capital or assets as a
\nconsequence of its commitments or obligations hereunder to a level below that
\nwhich such Lender could have achieved but for such adoption, effectiveness,
\nchange or compliance (taking into consideration such Lender’s policies with
\nrespect to capital adequacy), then, upon notice from such Lender to the
\nBorrower, the Borrower shall be obligated to pay to such Lender such
\nadditional 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
\nparties hereto.<\/p>\n
3.7 Inability To Determine Interest Rate.<\/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
\nupon the Borrower) that, by reason of circumstances affecting the relevant
\nmarket, adequate and reasonable means do not exist for ascertaining the
\nEurodollar Rate for such Interest Period, the Administrative Agent shall give
\ntelecopy or telephonic notice thereof to the Borrower and the Lenders as soon
\nas practicable thereafter. If such notice is given (a) any Eurodollar Loans
\nrequested to be made on the first day of such Interest Period shall be made
\nas Base Rate Loans and (b) any Loans that were to have been converted on the
\nfirst day of such Interest Period to or continued as Eurodollar Loans shall
\nbe converted to or continued as Base Rate Loans. Until such notice has been
\nwithdrawn by the Administrative Agent, no further Eurodollar Loans shall be
\nmade or continued as such, nor shall the Borrower have the right to convert
\nBase Rate Loans to Eurodollar Loans.<\/p>\n
3.8 Illegality.<\/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
\nthereof occurring after the Closing Date shall make it unlawful for any
\nLender to make or maintain Eurodollar Loans as contemplated by this Credit
\nAgreement, (a) such Lender shall promptly give written notice of such
\ncircumstances to the Borrower and the Administrative Agent (which notice
\nshall be withdrawn whenever such circumstances no longer exist), (b) the
\ncommitment of such Lender hereunder to make Eurodollar Loans, continue
\nEurodollar Loans as such and convert a Base Rate Loan to Eurodollar Loans
\nshall forthwith be canceled and, until such time as it shall no longer be
\nunlawful for such Lender to make or maintain Eurodollar Loans, such Lender
\nshall then have a commitment only to make a Base Rate Loan when a Eurodollar
\nLoan is requested and (c) such Lender’s Loans then outstanding as Eurodollar
\nLoans, if <\/p>\n
39<\/p>\n
any, shall be converted automatically to Base Rate Loans on the respective
\nlast days of the then current Interest Periods with respect to such Loans or
\nwithin such earlier period as required by law. If any such conversion of a
\nEurodollar Loan occurs on a day which is not the last day of the then current
\nInterest Period with respect thereto, the Borrower shall pay to such Lender
\nsuch amounts, if any, as may be required pursuant to Section 3.11.<\/p>\n
3.9 Requirements of Law.<\/p>\n
If, after the date hereof, the adoption of or any change in any
\nRequirement of Law or in the interpretation or application thereof applicable
\nto any Lender, or compliance by any Lender with any request or directive
\n(whether or not having the force of law) from any central bank or other
\nGovernmental Authority, in each case made subsequent to the Closing Date (or,
\nif later, the date on which such Lender becomes a Lender):<\/p>\n
(a) shall subject such Lender to any tax of any kind whatsoever
\n with respect to any Letter of Credit, any Eurodollar Loans made by it or
\n its obligation to make Eurodollar Loans, or change the basis of taxation
\n of payments to such Lender in respect thereof (except for (i) Non-Excluded
\n Taxes covered by Section 3.10 (including Non-Excluded Taxes imposed solely
\n by reason of any failure of such Lender to comply with its obligations
\n under Section 3.10(b)) and (ii) changes in taxes measured by or imposed
\n upon the overall net income, or franchise tax (imposed in lieu of such net
\n income tax), of such Lender or its applicable lending office, branch, or
\n any affiliate thereof));<\/p>\n
(b) shall impose, modify or hold applicable any reserve, special
\n deposit, compulsory loan or similar requirement against assets held by,
\n deposits or other liabilities in or for the account of, advances, loans or
\n other extensions of credit by, or any other acquisition of funds by, any
\n office of such Lender which is not otherwise included in the determination
\n of the Eurodollar Rate hereunder; or<\/p>\n
(c) shall impose on such Lender any other condition (excluding any
\n tax of any kind whatsoever);<\/p>\n
and the result of any of the foregoing is to increase the cost to such
\nLender, by a material amount, of making, converting into, continuing or
\nmaintaining Eurodollar Loans or issuing or participating in Letters of Credit
\nor to reduce any amount receivable hereunder in respect thereof, then, in any
\nsuch case, upon notice to the Borrower from such Lender, through the
\nAdministrative Agent, in accordance herewith, the Borrower shall be obligated
\nto 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
\nconvert the Eurodollar Loans made by such Lender hereunder to Base Rate Loans
\nby giving the Administrative Agent at least one <\/p>\n
40<\/p>\n
Business Day’s notice of such election, in which case the Borrower shall
\npromptly pay to such Lender, upon demand, without duplication, such amounts,
\nif any, as may be required pursuant to Section 3.11. If any Lender becomes
\nentitled to claim any additional amounts pursuant to this subsection, it
\nshall 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
\nsuch event and (z) as to the additional amount demanded by such Lender and a
\nreasonably detailed explanation of the calculation thereof. Such a
\ncertificate as to any additional amounts payable pursuant to this subsection
\nsubmitted by such Lender, through the Administrative Agent, to the Borrower
\nshall be conclusive and binding on the parties hereto in the absence of
\nmanifest error. This covenant shall survive the termination of this Credit
\nAgreement and the payment of the Loans and all other amounts payable
\nhereunder.<\/p>\n
3.10 Taxes.<\/p>\n
(a) Except as provided below in this subsection, all payments made
\nby the Borrower under this Credit Agreement and any Notes shall be made free
\nand clear of, and without deduction or withholding for or on account of, any
\npresent or future income, stamp or other taxes, levies, imposts, duties,
\ncharges, fees, deductions or withholdings, now or hereafter imposed, levied,
\ncollected, withheld or assessed by any court, or governmental body, agency or
\nother official, excluding taxes measured by or imposed upon the overall net
\nincome of any Lender or its applicable lending office, or any branch or
\naffiliate thereof, and all franchise taxes, branch taxes, taxes on doing
\nbusiness or taxes on the overall capital or net worth of any Lender or its
\napplicable lending office, or any branch or affiliate thereof, in each case
\nimposed in lieu of net income taxes, imposed: (i) by the jurisdiction under
\nthe laws of which such Lender, applicable lending office, branch or affiliate
\nis organized or is located, or in which its principal executive office is
\nlocated, or any nation within which such jurisdiction is located or any
\npolitical subdivision thereof; or (ii) by reason of any connection between
\nthe jurisdiction imposing such tax and such Lender, applicable lending
\noffice, branch or affiliate other than a connection arising solely from such
\nLender having executed, delivered or performed its obligations, or received
\npayment under or enforced, this Credit Agreement or any Notes. If any such
\nnon-excluded taxes, levies, imposts, duties, charges, fees, deductions or
\nwithholdings (“Non-Excluded Taxes”) are required to be withheld from any
\namounts payable to the Administrative Agent or any Lender hereunder or under
\nany Notes, (A) the amounts so payable to the Administrative Agent or such
\nLender shall be increased to the extent necessary to yield to the
\nAdministrative Agent or such Lender (after payment of all Non-Excluded Taxes)
\ninterest or any such other amounts payable hereunder at the rates or in the
\namounts specified in this Credit Agreement and any Notes, provided, however,
\nthat the Borrower shall be entitled to deduct and withhold any Non-Excluded
\nTaxes and shall not be required to increase any such amounts payable to any
\nLender that is not organized under the laws of the United States of America
\nor a state thereof if such Lender fails to comply with the requirements of
\nparagraph (b) of this subsection whenever any Non-Excluded Taxes are payable
\nby <\/p>\n
41<\/p>\n
the Borrower, and (B) as promptly as possible thereafter the Borrower shall
\nsend to the Administrative Agent for its own account or for the account of
\nsuch Lender, as the case may be, a certified copy of an original official
\nreceipt received by the Borrower showing payment thereof. If the Borrower
\nfails to pay any Non-Excluded Taxes when due to the appropriate taxing
\nauthority or fails to remit to the Administrative Agent the required receipts
\nor other required documentary evidence, the Borrower shall indemnify the
\nAdministrative Agent and the Lenders for any incremental taxes, interest or
\npenalties that may become payable by the Administrative Agent or any Lender
\nas 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
(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
\n that any such form or certification expires or becomes obsolete and after
\n the 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 forms
\n or certifications as may reasonably be requested by the Borrower or the
\n 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)
\n represent to the Borrower (for the benefit of the Borrower and the
\n Administrative Agent) that it is not a bank within the meaning of Section
\n 881(c)(3)(A) of the Internal Revenue Code, (ii) agree to furnish to the
\n Borrower on or before the date of any payment by the Borrower, with a copy
\n to the Administrative Agent two (2) accurate and complete original signed
\n copies 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 <\/p>\n
42<\/p>\n
(2) further copies of such form on or before the date it expires or
\n becomes obsolete and after the occurrence of any event requiring a change
\n in the most recently provided form and, if necessary, obtain any
\n extensions of time reasonably requested by the Borrower or the
\n Administrative Agent for filing and completing such forms), and (iii)
\n agree, to the extent legally entitled to do so, upon reasonable request by
\n the Borrower, to provide to the Borrower (for the benefit of the Borrower
\n and the Administrative Agent) such other forms as may be reasonably
\n required in order to establish the legal entitlement of such Lender to an
\n exemption from withholding with respect to payments under this Credit
\n 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
\nand delivering any such form with respect to it and such Lender so advises
\nthe Borrower and the Administrative Agent. Each Person that shall become a
\nLender or a participant of a Lender pursuant to subsection 11.3 shall, upon
\nthe effectiveness of the related transfer, be required to provide all of the
\nforms, certifications and statements required pursuant to this subsection,
\nprovided that in the case of a participant of a Lender the obligations of
\nsuch participant of a Lender pursuant to this subsection (b) shall be
\ndetermined as if the participant of a Lender were a Lender except that such
\nparticipant of a Lender shall furnish all such required forms, certifications
\nand statements to the Lender from which the related participation shall have
\nbeen purchased.<\/p>\n
3.11 Indemnity.<\/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
\n(other than through such Lender’s gross negligence or willful misconduct) as
\na consequence of (a) default by the Borrower in making a borrowing of,
\nconversion into or continuation of Eurodollar Loans after the Borrower has
\ngiven a notice requesting the same in accordance with the provisions of this
\nCredit Agreement, (b) default by the Borrower in making any prepayment of a
\nEurodollar Loan after the Borrower has given a notice thereof in accordance
\nwith the provisions of this Credit Agreement or (c) the making of a
\nprepayment of Eurodollar Loans on a day which is not the last day of an
\nInterest Period with respect thereto. With respect to Eurodollar Loans, such
\nindemnification may include an amount equal to the excess, if any, of (i) the
\namount of interest which would have accrued on the amount so prepaid, or not
\nso borrowed, converted or continued, for the period from the date of such
\nprepayment or of such failure to borrow, convert or continue to the last day
\nof the applicable Interest Period (or, in the case of a failure to borrow,
\nconvert or continue, the Interest Period that would have commenced on the
\ndate of such failure) in each case at the applicable rate of interest for
\nsuch Loans provided for herein (excluding, however, the Applicable Percentage
\nincluded therein, if any) over (ii) the amount of interest (as reasonably
\ndetermined by such Lender) which would have accrued to such Lender on such
\namount by placing such amount on deposit for a comparable period with leading
\nbanks in the interbank Eurodollar market. The covenants of the Borrower set
\nforth in this Section 3.11 shall survive <\/p>\n
43<\/p>\n
the termination of this Credit Agreement and the payment of the Loans and all
\nother amounts payable hereunder.<\/p>\n
3.12 Pro Rata Treatment.<\/p>\n
Except to the extent otherwise provided herein:<\/p>\n
(a) Loans. Each Loan, each payment or prepayment of principal of
\nany Loan (other than Swingline Loans), each payment of interest on the Loans,
\neach payment of Commitment Fees, each reduction of the Revolving Committed
\nAmount and each conversion or extension of any Loan (other than Swingline
\nLoans), shall be allocated pro rata among the Lenders in accordance with the
\nrespective principal amounts of their outstanding Loans and Participation
\nInterests.<\/p>\n
(b) Advances. No Lender shall be responsible for the failure or
\ndelay by any other Lender in its obligation to make its ratable share of a
\nborrowing hereunder; provided, however, that the failure of any Lender to
\nfulfill its obligations hereunder shall not relieve any other Lender of its
\nobligations hereunder. Unless the Administrative Agent shall have been
\nnotified in writing by any Lender prior to a borrowing that such Lender will
\nnot make the amount that would constitute its ratable share of such borrowing
\navailable to the Administrative Agent, the Administrative Agent may assume
\nthat such Lender is making such amount available to the Administrative Agent,
\nand the Administrative Agent may, in reliance upon such assumption, make
\navailable to the Borrower a corresponding amount. If such amount is not made
\navailable to the Administrative Agent by such Lender within the time period
\nspecified therefor hereunder, such Lender shall pay to the Administrative
\nAgent, on demand, such amount with interest thereon at a rate equal to the
\nFederal Funds Rate for a period of two (2) Business Days, and thereafter at
\nthe Base Rate, for the period until such Lender makes such amount immediately
\navailable to the Administrative Agent. If such Lender does not pay such
\namounts to the Administrative Agent forthwith upon demand, the Administrative
\nAgent may notify the Borrower and request the Borrower to immediately pay
\nsuch amount to the Administrative Agent with interest at the Base Rate. A
\ncertificate of the Administrative Agent submitted to any Lender with respect
\nto any amounts owing under this subsection shall be conclusive in the absence
\nof manifest error.<\/p>\n
3.13 Sharing of Payments.<\/p>\n
The Lenders agree among themselves that, in the event that any Lender
\nshall obtain payment in respect of any Loan, LOC Obligation or any other
\nobligation owing to such Lender under this Credit Agreement through the
\nexercise of a right of setoff, banker’s lien or counterclaim, or pursuant to
\na secured claim under Section 506 of Title 11 of the United States Code or
\nother security or interest arising from, or in lieu of, such secured claim,
\nreceived by such Lender under any applicable bankruptcy, insolvency or other
\nsimilar law or otherwise, or by any other means, in excess of its pro <\/p>\n
44<\/p>\n
rata share of such payment as provided for in this Credit Agreement, such
\nLender shall promptly purchase from the other Lenders a participation in such
\nLoans, LOC Obligations and other obligations in such amounts, and make such
\nother adjustments from time to time, as shall be equitable to the end that
\nall Lenders share such payment in accordance with their respective ratable
\nshares as provided for in this Credit Agreement. The Lenders further agree
\namong themselves that if payment to a Lender obtained by such Lender through
\nthe exercise of a right of setoff, banker’s lien, counterclaim or other event
\nas aforesaid shall be rescinded or must otherwise be restored, each Lender
\nwhich shall have shared the benefit of such payment shall, by repurchase of a
\nparticipation theretofore sold, return its share of that benefit (together
\nwith its share of any accrued interest payable with respect thereto) to each
\nLender whose payment shall have been rescinded or otherwise restored. The
\nBorrower agrees that any Lender so purchasing such a participation may, to
\nthe fullest extent permitted by law, exercise all rights of payment,
\nincluding setoff, banker’s lien or counterclaim, with respect to such
\nparticipation as fully as if such Lender were a holder of such Loan, LOC
\nObligation or other obligation in the amount of such participation. Except
\nas otherwise expressly provided in this Credit Agreement, if any Lender or
\nthe Administrative Agent shall fail to remit to the Administrative Agent or
\nany other Lender an amount payable by such Lender or the Administrative Agent
\nto the Administrative Agent or such other Lender pursuant to this Credit
\nAgreement on the date when such amount is due, such payments shall be made
\ntogether with interest thereon for each date from the date such amount is due
\nuntil the date such amount is paid to the Administrative Agent or such other
\nLender at a rate per annum equal to the Federal Funds Rate. If under any
\napplicable bankruptcy, insolvency or other similar law, any Lender receives a
\nsecured 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
\nsuch secured claim in a manner consistent with the rights of the Lenders
\nunder this Section 3.13 to share in the benefits of any recovery on such
\nsecured claim.<\/p>\n
3.14 Payments, Computations, Etc. <\/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
\nany kind, at the Administrative Agent’s office specified in Section 11.1 not
\nlater than 2:00 P.M. (Charlotte, North Carolina time) on the date when due.
\nPayments received after such time shall be deemed to have been received on
\nthe next succeeding Business Day. The Administrative Agent may (but shall not
\nbe obligated to) debit the amount of any such payment which is not made by
\nsuch time to any ordinary deposit account of the Borrower maintained with the
\nAdministrative Agent (with notice to the Borrower). The Borrower shall, at
\nthe time it makes any payment under this Credit Agreement, specify to the
\nAdministrative Agent the Loans, LOC Obligations, Fees, interest or other
\namounts payable by the Borrower hereunder to which such payment is to be
\napplied (and in the event that it fails so to specify, or if such application
\nwould be inconsistent with the terms hereof, the Administrative Agent shall
\ndistribute such payment to the Lenders in such manner as the Administrative
\nAgent may determine to be appropriate in respect of <\/p>\n
45<\/p>\n
obligations owing by the Borrower hereunder, subject to the terms of Section
\n3.12(a)). The Administrative Agent will distribute such payments to such
\nLenders, if any such payment is received prior to 12:00 Noon (Charlotte,
\nNorth Carolina time) on a Business Day in like funds as received prior to the
\nend of such Business Day and otherwise the Administrative Agent will
\ndistribute such payment to such Lenders on the next succeeding Business Day.
\nWhenever 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
\nperiod of such extension), except that in the case of Eurodollar Loans, if
\nthe extension would cause the payment to be made in the next following
\ncalendar month, then such payment shall instead be made on the next preceding
\nBusiness Day. Except as expressly provided otherwise herein, all
\ncomputations of interest and fees shall be made on the basis of actual number
\nof days elapsed over a year of 360 days, except with respect to computation
\nof interest on Base Rate Loans which (unless the Base Rate is determined by
\nreference to the Federal Funds Rate) shall be calculated based on a year of
\n365 or 366 days, as appropriate. Interest shall accrue from and include the
\ndate of borrowing, but exclude the date of payment.<\/p>\n
(b) Allocation of Payments After Event of Default. Notwithstanding
\nany other provisions of this Credit Agreement to the contrary, after the
\noccurrence and during the continuance of an Event of Default, all amounts
\ncollected or received by the Administrative Agent or any Lender on account of
\nthe Guaranteed Obligations or any other amounts outstanding under any of the
\nCredit Documents shall be paid over or delivered as follows:<\/p>\n
FIRST, to the payment of all reasonable and documented out-of-pocket costs
\n and expenses (including without limitation reasonable attorneys’ fees) of
\n the Administrative Agent in connection with enforcing the rights of the
\n Lenders under the Credit Documents, except to the extent any such costs
\n 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 respect
\n of the Obligations;<\/p>\n
46<\/p>\n
FIFTH, to the payment of the outstanding principal amount of the
\n Guaranteed Obligations (including the payment or cash collateralization of
\n outstanding LOC 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
\nequal to its pro rata share (based on the proportion that the then
\noutstanding Obligations held by such Lender bears to the aggregate then
\noutstanding Obligations) of amounts available to be applied pursuant to
\nclauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent
\nthat any amounts available for distribution pursuant to clause “FIFTH” above
\nare attributable to the issued but undrawn amount of outstanding letters of
\ncredit, such amounts shall be held by the Administrative Agent in a cash
\ncollateral account and applied (A) first, to reimburse the issuing lender for
\nany drawings under such letters of credit and (B) then, following the
\nexpiration of all letters of credit, to all other obligations of the types
\ndescribed in clauses “FIFTH” and “SIXTH” above in the manner provided in this
\nSection 3.14(b).<\/p>\n
3.15 Evidence of Debt.<\/p>\n
(a) Each Lender shall maintain an account or accounts evidencing
\neach Loan made by such Lender to the Borrower from time to time, including
\nthe amounts of principal and interest payable and paid to such Lender from
\ntime to time under this Credit Agreement. Each Lender will make reasonable
\nefforts to maintain the accuracy of its account or accounts and to promptly
\nupdate its account or accounts from time to time, as necessary.<\/p>\n
(b) The Administrative Agent shall maintain the Register pursuant to
\nSection 11.3(c) hereof, and a subaccount for each Lender, in which Register
\nand subaccounts (taken together) shall be recorded (i) the amount, type and
\nInterest Period of each such Loan hereunder, (ii) the amount of any principal
\nor interest due and payable or to become due and payable to each Lender
\nhereunder and (iii) the amount of any sum received by the Administrative
\nAgent hereunder from or for the account of the Borrower and each Lender’s
\nshare thereof. The Administrative Agent will make reasonable efforts to
\nmaintain the accuracy of the subaccounts referred to in the preceding
\nsentence and to promptly update such subaccounts from time to time, as
\nnecessary.<\/p>\n
47<\/p>\n
(c) The entries made in the accounts, Register and subaccounts
\nmaintained pursuant to subsection (b) of this Section 3.15 (and, if
\nconsistent with the entries of the Administrative Agent, subsection (a))
\nshall be prima facie evidence of the existence and amounts of the obligations
\nof the Borrower therein recorded; provided, however, that the failure of any
\nLender or the Administrative Agent to maintain any such account, such
\nRegister or such subaccount, as applicable, or any error therein, shall not
\nin any manner affect the obligation of the Borrower to repay the Loans made
\nby such Lender in accordance with the terms hereof.<\/p>\n
SECTION 4
\nGUARANTY<\/p>\n
4.1 The Guarantee.<\/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
\nand to the Administrative Agent as hereinafter provided the prompt payment of
\nthe Guaranteed 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
\nhereby further agree that if any of the Guaranteed Obligations are not paid
\nin full when due (whether at stated maturity, as a mandatory prepayment, by
\nacceleration, as mandatory cash collateralization or otherwise), the
\nGuarantors will, jointly and severally, promptly pay the same, without any
\ndemand or notice whatsoever, and that in the case of any extension of time of
\npayment or renewal of any of the Guaranteed Obligations, the same will be
\npromptly paid in full when due (whether at extended maturity, as a mandatory
\nprepayment, by acceleration or otherwise) in accordance with the terms of
\nsuch extension or renewal.<\/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
\nunenforceable for any reason (including, without limitation, because of any
\napplicable state or federal law relating to fraudulent conveyances or
\ntransfers) then the obligations of each Guarantor hereunder shall be limited
\nto the maximum amount that is permissible under applicable law (whether
\nfederal or state and including, without limitation, the Bankruptcy Code).<\/p>\n
4.2 Obligations Unconditional.<\/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
\nHedging Agreements, or any other agreement or instrument referred to therein,
\nor any substitution, release or exchange of any other guarantee of or
\nsecurity for any of the <\/p>\n
48<\/p>\n
Guaranteed Obligations, and, to the fullest extent permitted by applicable
\nlaw, irrespective of any other circumstance whatsoever which might otherwise
\nconstitute 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
\nthe Guarantors hereunder shall be absolute and unconditional under any and
\nall circumstances. Each Guarantor agrees that such Guarantor shall have no
\nright of subrogation, indemnity, reimbursement or contribution against the
\nBorrower or any other Guarantor of the Guaranteed Obligations for amounts
\npaid under this Guaranty until such time as the Lenders (and any Affiliates
\nof Lenders entering into Hedging Agreements) have been paid in full, all
\nCommitments under the Credit Agreement have been terminated and no Person or
\nGovernmental Authority shall have any right to request any return or
\nreimbursement of funds from the Lenders in connection with monies received
\nunder the Credit Documents or Hedging Agreements. Without limiting the
\ngenerality of the foregoing, it is agreed that, to the fullest extent
\npermitted by law, the occurrence of any one or more of the following shall
\nnot alter or impair the liability of any Guarantor hereunder which shall
\nremain absolute and unconditional as described above:<\/p>\n
(i) at any time or from time to time, without notice to any Guarantor,
\n the time for any performance of or compliance with any of the Guaranteed
\n Obligations shall be extended, or such performance or compliance shall be
\n 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
\n or 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 or
\n 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
49<\/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
\ninstrument referred to in the Credit Documents or Hedging Agreements, or
\nagainst any other Person under any other guarantee of, or security for, any
\nof the Guaranteed Obligations.<\/p>\n
4.3 Reinstatement.<\/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
\nby or on behalf of any Person in respect of the Guaranteed Obligations is
\nrescinded or must be otherwise restored by any holder of any of the
\nGuaranteed Obligations, whether as a result of any proceedings in bankruptcy
\nor reorganization or otherwise, and each Guarantor agrees that it will
\nindemnify the Administrative Agent and each Lender on demand for all
\nreasonable costs and expenses (including, without limitation, fees and
\nexpenses of counsel) incurred by the Administrative Agent or such Lender in
\nconnection with such rescission or restoration, including any such costs and
\nexpenses incurred in defending against any claim alleging that such payment
\nconstituted a preference, fraudulent transfer or similar payment under any
\nbankruptcy, insolvency or similar law.<\/p>\n
4.4 Certain Additional Waivers.<\/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. Sections
\n26-7 through 26-9, inclusive. Each Guarantor further agrees that such
\nGuarantor shall have no right of recourse to security for the Guaranteed
\nObligations, except through the exercise of the rights of subrogation
\npursuant to Section 4.2.<\/p>\n
4.5 Remedies.<\/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 9.2 hereof (and shall be
\ndeemed to have become automatically due and payable in the circumstances
\nprovided in said Section 9.2) for purposes of Section 4.1 hereof
\nnotwithstanding any stay, injunction or other prohibition preventing such
\ndeclaration (or preventing the Guaranteed Obligations from becoming
\nautomatically due and payable) as against any other Person and that, in the
\nevent of such declaration (or the Guaranteed Obligations being deemed to have
\nbecome automatically due and payable), the Guaranteed Obligations (whether or
\nnot due and payable by any other Person) shall forthwith become due and
\npayable by the Guarantors for purposes of said Section 4.1.<\/p>\n
50<\/p>\n
4.6 Rights of Contribution.<\/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
\nthe succeeding provisions of this Section 4.6), pay to such Excess Funding
\nGuarantor an amount equal to such Guarantor’s Pro Rata Share (as defined
\nbelow and determined, for this purpose, without reference to the properties,
\nassets, liabilities and debts of such Excess Funding Guarantor) of such
\nExcess Payment (as defined below). The payment obligation of any Guarantor
\nto any Excess Funding Guarantor under this Section 4.6 shall be subordinate
\nand subject in right of payment to the prior payment in full of the
\nobligations of such Guarantor under the other provisions of this Section 4,
\nand such Excess Funding Guarantor shall not exercise any right or remedy with
\nrespect to such excess until payment and satisfaction in full of all of such
\nobligations. For purposes hereof, (i) “Excess Funding Guarantor” shall mean,
\nin respect of any obligations arising under the other provisions of this
\nSection 4 (hereafter, the “Guarantied Obligations”), a Guarantor that has
\npaid an amount in excess of its Pro Rata Share of the Guarantied Obligations;
\n(ii) “Excess Payment” shall mean, in respect of any Guarantied Obligations,
\nthe amount paid by an Excess Funding Guarantor in excess of its Pro Rata
\nShare of such Guarantied Obligations; and (iii) “Pro Rata Share”, for the
\npurposes of this Section 4.6, shall mean, for any Guarantor, the ratio
\n(expressed as a percentage) of (a) the amount by which the aggregate present
\nfair saleable value of all of its assets and properties exceeds the amount of
\nall debts and liabilities of such Guarantor (including contingent,
\nsubordinated, unmatured, and unliquidated liabilities, but excluding the
\nobligations of such Guarantor hereunder) to (b) the amount by which the
\naggregate present fair saleable value of all assets and other properties of
\nthe Borrower and all of the Guarantors exceeds the amount of all of the debts
\nand liabilities (including contingent, subordinated, unmatured, and
\nunliquidated liabilities, but excluding the obligations of the Borrower and
\nthe Guarantors hereunder) of the Borrower and all of the Guarantors, all as
\nof the Closing Date (if any Guarantor becomes a party hereto subsequent to
\nthe Closing Date, then for the purposes of this Section 4.6 such subsequent
\nGuarantor shall be deemed to have been a Guarantor as of the Closing Date and
\nthe information pertaining to, and only pertaining to, such Guarantor as of
\nthe date such Guarantor became a Guarantor shall be deemed true as of the
\nClosing Date).<\/p>\n
4.7 Continuing Guarantee.<\/p>\n
The guarantee in this Section 4 is a continuing guarantee, and shall apply
\nto all Guaranteed Obligations whenever arising.<\/p>\n
SECTION 5
\nCONDITIONS<\/p>\n
51<\/p>\n
5.1 Conditions to Closing.<\/p>\n
This Credit Agreement shall become effective, and the initial Extensions
\nof Credit may be made, upon the satisfaction of the following conditions
\nprecedent:<\/p>\n
(a) Execution of Credit Agreement and Credit Documents. Receipt of
\n(i) multiple counterparts of this Credit Agreement, (ii) a Note for each
\nLender, (iii) multiple counterparts of the Pledge Agreement, the Security
\nAgreement and the UCC financing statements relating thereto, if any, in each
\ncase executed by a duly authorized officer of each party thereto and in each
\ncase conforming to the requirements of this Credit Agreement.<\/p>\n
(b) Consummation of Spin-off. Evidence of consummation of the
\nSpin-Off Transaction, and receipt of all shareholder, governmental and other
\nnecessary consents, approvals and authorizations (including the passage of
\nall waiting periods).<\/p>\n
(c) Pro Forma Balance Sheet. Receipt of a pro forma balance sheet
\nfor the Borrower and its Subsidiaries upon consummation of the Spin-Off
\nTransaction after giving effect to the initial Extensions of Credit hereunder.<\/p>\n
(d) Legal Opinions. Receipt of multiple counterparts of opinions of
\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 Required Lenders.<\/p>\n
(e) Stock Certificates. Receipt of original stock certificates
\nevidencing the ownership interests of the Credit Parties pledged pursuant to
\nthe Pledge Agreement, together in each case with original undated stock
\npowers executed in blank.<\/p>\n
(f) Financial Information. Receipt of financial information
\nregarding the Borrower and its subsidiaries, as may be requested by, and in
\neach case in form and substance satisfactory to the Administrative Agent and
\nthe Lenders.<\/p>\n
(g) Evidence of Insurance. Receipt of insurance certificates or
\npolicies evidencing flood hazard insurance (for improvements located in areas
\nhaving “special flood hazards”), casualty insurance (including builders’ risk
\nand all-risk permanent policies) and liability insurance conforming to the
\nrequirements of this Credit Agreement and the other Credit Documents, showing
\nthe Administrative Agent as loss payee with respect to the flood hazard and
\ncasualty insurance, together with evidence of payment of premiums thereon.<\/p>\n
52<\/p>\n
(h) Absence of Legal Proceedings. The absence of any action , suit,
\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
(i) Corporate Documents. Receipt of the following (or their
\nequivalent) for each of the Credit Parties:<\/p>\n
(i) Articles of Incorporation. Copies of the articles
\n of incorporation or charter documents certified to be true and complete as
\n of a recent date by the appropriate governmental authority of the state of
\n its incorporation.<\/p>\n
(ii) Resolutions. Copies of resolutions of the Board of
\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
(iii) Bylaws. Copies of the bylaws certified by a
\n secretary or assistant secretary as of the Closing Date to be true and
\n correct and in force and effect as of such date.<\/p>\n
(iv) Good Standing. Copies, where applicable, of (A)
\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) a certificate indicating payment of all corporate franchise taxes
\n certified as of a recent date by the appropriate governmental taxing
\n authorities.<\/p>\n
(v) Officer’s Certificate. An officer’s certificate for
\n each of the Credit Parties dated as of the Closing Date substantially in
\n the form of Schedule 5.1(i)(v) with appropriate insertions and attachments.<\/p>\n
(j) Fees. Receipt of all fees, if any, owing pursuant to the
\nAdministrative Agent’s Fee Letter, Section 3.5 or otherwise.<\/p>\n
(k) Subsection 5.2 Conditions. The conditions specified in Section
\n5.2 shall be satisfied.<\/p>\n
(l) Additional Matters. All other documents and legal matters in
\nconnection with the transactions contemplated by this Credit Agreement shall
\nbe reasonably satisfactory in form and substance to the Agents and the
\nRequired Lenders.<\/p>\n
53<\/p>\n
5.2 Conditions to All Extensions of Credit.<\/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
\nto the satisfaction of the following conditions precedent on the date of
\nmaking such Extension of Credit:<\/p>\n
(a) Representations and Warranties. The representations and
\nwarranties made by the Credit Parties herein or in any other Credit Documents
\nor which are contained in any certificate furnished at any time under or in
\nconnection herewith shall be true and correct in all material respects on and
\nas of the date of such Extension of Credit as if made on and as of such date
\n(except for those which expressly relate to an earlier date).<\/p>\n
(b) No Default or Event of Default. No Default or Event of Default
\nshall have occurred and be continuing on such date or after giving effect to
\nthe Extension of Credit to be made on such date unless such Default or Event
\nof Default shall have been waived in accordance with this Credit Agreement.<\/p>\n
(c) No Bankruptcy Event. No Bankruptcy Event shall have occurred
\nand be continuing with respect to any of the Credit Parties.<\/p>\n
(d) No Material Adverse Effect. No circumstances, events or
\nconditions shall have occurred since the date of the audited financial
\nstatements referenced in Section 6.1 which would have a Material Adverse
\nEffect.<\/p>\n
(e) Additional Conditions to Revolving Loans. If a Revolving Loan
\nis made pursuant to Section 2.1, all conditions set forth therein shall have
\nbeen satisfied.<\/p>\n
(f) Additional Conditions to Swingline Loans. If a Swingline Loan
\nis made pursuant to Section 2.2, all conditions set forth therein shall have
\nbeen satisfied.<\/p>\n
Each request for Extension of Credit (including extensions and
\nconversions) and each acceptance by the Borrower of an Extension of Credit
\n(including extensions and conversions) shall be deemed to constitute a
\nrepresentation and warranty by the Borrower as of the date of such Extension
\nof Credit that the applicable conditions in paragraphs (a), (b), (c) and (d),
\nand in (e) or (f) of this subsection have been satisfied.<\/p>\n
SECTION 6
\nREPRESENTATIONS AND WARRANTIES<\/p>\n
54<\/p>\n
To induce the Lenders to enter into this Credit Agreement and to make
\nExtensions of Credit herein provided for, each of the members of the
\nConsolidated Group parties hereto hereby represents and warrants to the
\nAdministrative Agent and to each Lender that:<\/p>\n
6.1 Financial Condition.<\/p>\n
Each of the financial statements described below (copies of which have
\nheretofore been provided to the Administrative Agent for distribution to the
\nLenders), have been prepared in accordance with GAAP consistently applied
\nthroughout the periods covered thereby, are complete and correct in all
\nmaterial respects and present fairly the financial condition and results from
\noperations of the entities and for the periods specified, subject in the case
\nof interim company-prepared statements to normal year-end adjustments and the
\nabsence of footnotes:<\/p>\n
(i) a consolidated and consolidating balance sheet of the Borrower
\n and its consolidated subsidiaries dated as of April 26, 1997, together
\n with related statements income and cash flows certified by Price
\n Waterhouse LLP, certified public accountants; and<\/p>\n
(ii) a consolidated and consolidating balance sheet of the Borrower
\n and its consolidated subsidiaries dated as of January 24, 1998 certified
\n by Price Waterhouse LLP, certified public accountants.<\/p>\n
6.2 No Changes or Restricted Payments.<\/p>\n
Since the date of the financial statements referenced in Section 6.1(i),
\n(a) there has been no circumstance, development or event relating to or
\naffecting the members of the Consolidated Group which has had or would be
\nreasonably expected to have a Material Adverse Effect, and (b) except as
\npermitted herein, no Restricted Payments have been made or declared or are
\ncontemplated by any members of the Consolidated Group.<\/p>\n
6.3 Organization; Existence; Compliance with Law.<\/p>\n
Each of the members of the Consolidated Group (a) is duly organized,
\nvalidly existing in good standing under the laws of the jurisdiction of its
\nincorporation or organization, (b) has the corporate or other necessary power
\nand authority, and the legal right to own and operate its property, to lease
\nthe property it operates as lessee and to conduct the business in which it is
\ncurrently engaged, (c) is duly qualified as a foreign entity and in good
\nstanding under the laws of each jurisdiction where its ownership, lease or
\noperation of property or the conduct of its business requires such
\nqualification, other than in such jurisdictions where the failure to be so
\nqualified and in good standing would not, in the aggregate, have a Material
\nAdverse Effect, and (d) is in compliance with all Requirements of <\/p>\n
55<\/p>\n
Law, except to the extent that the failure to comply therewith would not, in
\nthe aggregate, be reasonably expected to have a Material Adverse Effect.<\/p>\n
6.4 Power; Authorization; Enforceable Obligations.<\/p>\n
Each of the Credit Parties has the corporate or other necessary power and
\nauthority, and the legal right, to make, deliver and perform the Credit
\nDocuments to which it is a party and has taken all necessary corporate or
\nother action to authorize the execution, delivery and performance by it of
\nthe Credit Documents to which it is a party. No consent or authorization of,
\nfiling with, notice to or other act by or in respect of, any Governmental
\nAuthority or any other Person is required in connection with acceptance of
\nextensions of credit or the making of the guaranties hereunder or with the
\nexecution, delivery or performance of any Credit Documents by the Credit
\nParties (other than those which have been obtained, such filings as are
\nrequired by the Securities and Exchange Commission and to fulfill other
\nreporting requirements with Governmental Authorities) or with the validity or
\nenforceability of any Credit Document against the Credit parties (except such
\nfilings as are necessary in connection with the perfection of the Liens
\ncreated by such Credit Documents). Each Credit Document to which it is a
\nparty constitutes a legal, valid and binding obligation of such Credit Party
\nenforceable against such Credit Party in accordance with their respective
\nterms, except as enforceability may be limited by applicable bankruptcy,
\ninsolvency, reorganization, moratorium or similar laws affecting the
\nenforcement of creditors’ rights generally and by general equitable
\nprinciples (whether enforcement is sought by proceedings in equity or at law.<\/p>\n
6.5 No Legal Bar.<\/p>\n
The execution, delivery and performance of the Credit Documents, the
\nborrowings hereunder and the use of the Extensions of Credit will not violate
\nany Requirement of Law or any Contractual Obligation of any member of the
\nConsolidated Group (except those as to which waivers or consents have been
\nobtained), and will not result in, or require, the creation or imposition of
\nany Lien on any of their respective properties or revenues pursuant to any
\nRequirement of Law or Contractual Obligation other than the Liens arising
\nunder or contemplated in connection with the Credit Documents. No member of
\nthe Consolidated Group is in default under or with respect to any of its
\nContractual Obligations in any respect which would reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
6.6 No Material Litigation.<\/p>\n
No claim, litigation, investigation or proceeding of or before any
\narbitrator or Governmental Authority is pending or, to the best knowledge of
\nthe Credit Parties, threatened by or against, any members of the Consolidated
\nGroup or against any of their respective properties or revenues <\/p>\n
56<\/p>\n
which (a) relate to the Credit Documents or any of the transactions
\ncontemplated hereby or thereby, (b) if adversely determined, would reasonably
\nbe expected to have a Material Adverse Effect. Set forth on Schedule 6.6 is
\na summary of all material claims, litigation, investigations and proceedings
\npending or, to the best knowledge of the Credit Parties, threatened by or
\nagainst the members of the Consolidated Group or against any of their
\nrespective properties or revenues, and none of such actions, individually or
\nin the aggregate, is reasonably expected to have a Material Adverse Effect.<\/p>\n
6.7 No Default.<\/p>\n
No Default or Event of Default has occurred and is continuing.<\/p>\n
6.8 Ownership of Property; Liens.<\/p>\n
Each of members of the Consolidated Group has good record and marketable
\ntitle in fee simple to, or a valid leasehold interest in, all its material
\nreal property, and good title to, or a valid leasehold interest in, all its
\nother material property, and none of such property is subject to any Lien,
\nexcept for Permitted Liens.<\/p>\n
6.9 Intellectual Property.<\/p>\n
Each of the members of the Consolidated Group owns, or has the legal right
\nto use, all United States trademarks, tradenames, copyrights, technology,
\nknow-how and processes, if any, necessary for each of them to conduct its
\nbusiness as currently conducted (the “Intellectual Property”) except for
\nthose the failure to own or have such legal right to use would be subject to
\nindemnification in favor of a member of the Consolidated Group or would not
\nbe reasonably expected to have a Material Adverse Effect. No claim has been
\nasserted and is pending by any Person challenging or questioning the use of
\nany such Intellectual Property or the validity or effectiveness of any such
\nIntellectual Property, nor does any Credit Party know of any such claim, and
\nthe use of such Intellectual Property by the members of the Consolidated
\nGroup does not infringe on the rights of any Person, except for such claims
\nand infringements that in the aggregate, would not be reasonably expected to
\nhave a Material Adverse Effect.<\/p>\n
6.10 No Burdensome Restrictions.<\/p>\n
No Requirement of Law or Contractual Obligation of the members of the
\nConsolidated Group would be reasonably expected to have a Material Adverse
\nEffect.<\/p>\n
6.11 Taxes.<\/p>\n
57<\/p>\n
Each of the members of the Consolidated Group has filed or caused to be
\nfiled all United States federal income tax returns and all other material tax
\nreturns which, to the best knowledge of the Credit Parties, are required to
\nbe filed and has paid (a) all taxes shown to be due and payable on said
\nreturns or (b) all taxes shown to be due and payable on any assessments of
\nwhich it has received notice made against it or any of its property and all
\nother taxes, fees or other charges imposed on it or any of its property by
\nany Governmental Authority (other than any (i) taxes, fees or other charges
\nwhich would be subject to indemnification in favor of a member of the
\nConsolidated Group or with respect to which the failure to pay, in the
\naggregate, would not have a Material Adverse Effect or (ii) taxes, fees or
\nother charges the amount or validity of which are currently being contested
\nand with respect to which reserves in conformity with GAAP have been provided
\non the books of such Person), and no tax Lien has been filed, and, to the
\nbest knowledge of the Credit Parties, no claim is being asserted, with
\nrespect to any such tax, fee or other charge.<\/p>\n
6.12 ERISA<\/p>\n
Except as would be subject to indemnification in favor of a member of the
\nConsolidated Group or would not reasonably be expected to have a Material
\nAdverse Effect, to the knowledge of the Credit Parties:<\/p>\n
(a) During the five-year period prior to the date on which this
\nrepresentation is made or deemed made: (i) no ERISA Event has occurred, and,
\nto the best knowledge of the Credit Parties, no event or condition has
\noccurred or exists as a result of which any ERISA Event could reasonably be
\nexpected to occur, with respect to any Plan; (ii) no “accumulated funding
\ndeficiency,” as such term is defined in Section 302 of ERISA and Section 412
\nof the Code, whether or not waived, has occurred with respect to any Plan;
\n(iii) each Plan has been maintained, operated, and funded in compliance with
\nits own terms and in material compliance with the provisions of ERISA, the
\nCode, and any other applicable federal or state laws; and (iv) no lien in
\nfavor of the PBGC or a Plan has arisen or is reasonably likely to arise on
\naccount of any Plan.<\/p>\n
(b) The actuarial present value of all “benefit liabilities” (as
\ndefined in Section 4001(a)(16) of ERISA), whether or not vested, under each
\nSingle Employer Plan, as of the last annual valuation date prior to the date
\non which this representation is made or deemed made (determined, in each
\ncase, in accordance with Financial Accounting Standards Board Statement 87,
\nutilizing the actuarial assumptions used in such Plan’s most recent actuarial
\nvaluation report), did not exceed as of such valuation date the fair market
\nvalue of the assets of such Plan.<\/p>\n
(c) No member of the Consolidated Group nor any ERISA Affiliate has
\nincurred, or, to the best knowledge of the Credit Parties, could be
\nreasonably expected to incur, any withdrawal liability under ERISA to any
\nMultiemployer Plan or Multiple Employer Plan. No member of the Consolidated
\nGroup nor any ERISA Affiliate would become subject to any withdrawal
\nliability under <\/p>\n
58<\/p>\n
ERISA if any member of the Consolidated Group or any ERISA Affiliate were to
\nwithdraw completely from all Multiemployer Plans and Multiple Employer Plans
\nas of the valuation date most closely preceding the date on which this
\nrepresentation is made or deemed made. No member of the Consolidated Group
\nnor any ERISA Affiliate has received any notification that any Multiemployer
\nPlan is in reorganization (within the meaning of Section 4241 of ERISA), is
\ninsolvent (within the meaning of Section 4245 of ERISA), or has been
\nterminated (within the meaning of Title IV of ERISA), and no Multiemployer
\nPlan is, to the best knowledge of the Credit Parties, reasonably expected to
\nbe in reorganization, insolvent, or terminated.<\/p>\n
(d) No prohibited transaction (within the meaning of Section 406 of
\nERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
\noccurred with respect to a Plan which has subjected or may subject any member
\nof the Consolidated Group or any ERISA Affiliate to any liability under
\nSections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
\nunder any agreement or other instrument pursuant to which any member of the
\nConsolidated Group or any ERISA Affiliate has agreed or is required to
\nindemnify any person against any such liability.<\/p>\n
(e) To the knowledge of the Borrower, no member of the Consolidated
\nGroup nor any ERISA Affiliates has any material liability with respect to
\n“expected post-retirement benefit obligations” within the meaning of the
\nFinancial Accounting Standards Board Statement 106. Each Plan which is a
\nwelfare plan (as defined in Section 3(1) of ERISA) to which Sections 601-609
\nof ERISA and Section 4980B of the Code apply has been administered in
\ncompliance in all material respects of such sections.<\/p>\n
6.13 Governmental Regulations, Etc.<\/p>\n
(a) No part of the proceeds of the Extensions of Credit hereunder
\nwill be used, directly or indirectly, for the purpose of purchasing or
\ncarrying any “margin stock” within the meaning of Regulation U, or for the
\npurpose of purchasing or carrying or trading in any securities. If requested
\nby any Lender or the Administrative Agent, the Borrower will furnish to the
\nAdministrative Agent and each Lender a statement to the foregoing effect in
\nconformity with the requirements of FR Form U-1 referred to in said
\nRegulation U. No indebtedness being reduced or retired out of the proceeds
\nof the Extensions of Credit hereunder was or will be incurred for the purpose
\nof purchasing or carrying any margin stock within the meaning of Regulation U
\nor any “margin security” within the meaning of Regulation T. “Margin stock”
\nwithin the meanings of Regulation U does not constitute more than 25% of the
\nvalue of the consolidated assets of the Borrower and its Subsidiaries. None
\nof the transactions contemplated by this Credit Agreement (including, without
\nlimitation, the direct or indirect use of the proceeds of the Loans) will
\nviolate or result in a violation of the Securities Act of 1933, as amended,
\nor the Securities Exchange Act of 1934, as amended, or regulations issued
\npursuant thereto, or Regulation T, U or X. <\/p>\n
59<\/p>\n
(b) None of the members of the Consolidated Group is subject to
\nregulation under the Public Utility Holding Company Act of 1935, the Federal
\nPower Act or the Investment Company Act of 1940, each as amended. In
\naddition, none of the members of the Consolidated Group is (i) an “investment
\ncompany” registered or required to be registered under the Investment Company
\nAct of 1940, as amended, and is not controlled by such a company, or (ii) a
\n“holding company”, or a “subsidiary company” of a “holding company”, or an
\n“affiliate” of a “holding company” or of a “subsidiary” of a “holding
\ncompany”, within the meaning of the Public Utility Holding Company Act of
\n1935, as amended.<\/p>\n
(c) No director, executive officer or principal shareholder of any
\nmember of the Consolidated Group is a director, executive officer or
\nprincipal shareholder of any Lender. For the purposes hereof the terms
\n“director”, “executive officer” and “principal shareholder” (when used with
\nreference to any Lender) have the respective meanings assigned thereto in
\nRegulation O issued by the Board of Governors of the Federal Reserve System.<\/p>\n
6.14 Subsidiaries.<\/p>\n
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower at the
\nClosing Date, the jurisdiction of their incorporation and the direct or
\nindirect ownership interest of the Borrower therein.<\/p>\n
6.15 Purpose of Extensions of Credit.<\/p>\n
Extensions of Credit hereunder may be used to refinance existing
\nindebtedness (including intercompany indebtedness owing to U.S. Office
\nProducts, Inc.), to finance working capital, capital expenditures and other
\nlawful corporate purposes, including acquisitions permitted hereunder.<\/p>\n
6.16 Environmental Matters.<\/p>\n
Except as would be subject to indemnification in favor of a member of the
\nConsolidated Group or would not reasonably be expected to have a Material
\nAdverse Effect, and to the knowledge of the Credit Parties:<\/p>\n
(a) Each of the facilities and properties owned, leased or operated
\nby the members of the Consolidated Group (the “Properties”) and all
\noperations at the Properties are in compliance with all applicable
\nEnvironmental Laws, and there is no violation of any Environmental Law with
\nrespect to the Properties or the businesses operated by the members of the
\nConsolidated Group (the “Businesses”), and there are no conditions relating
\nto the Businesses or Properties that could give rise to liability under any
\napplicable Environmental Laws.<\/p>\n
60<\/p>\n
(b) None of the Properties contains, or has previously contained,
\nany Materials of Environmental Concern at, on or under the Properties in
\namounts or concentrations that constitute or constituted a violation of, or
\ncould give rise to liability under, Environmental Laws.<\/p>\n
(c) None of the members of the Consolidated Group has received any
\nwritten or verbal notice of, or inquiry from any Governmental Authority
\nregarding, any violation, alleged violation, non-compliance, liability or
\npotential liability regarding environmental matters or compliance with
\nEnvironmental Laws with regard to any of the Properties or the Businesses,
\nnor does any member of the Consolidated Group have knowledge or reason to
\nbelieve that any such notice will be received or is being threatened.<\/p>\n
(d) Materials of Environmental Concern have not been transported or
\ndisposed of from the Properties, or generated, treated, stored or disposed of
\nat, on or under any of the Properties or any other location, in each case by
\nor on behalf any members of the Consolidated Group in violation of, or in a
\nmanner that would be reasonably likely to give rise to liability under, any
\napplicable Environmental Law.<\/p>\n
(e) No judicial proceeding or governmental or administrative action
\nis pending or, to the best knowledge of any Credit Party, threatened, under
\nany Environmental Law to which any member of the Consolidated Group is or
\nwill be named as a party, nor are there any consent decrees or other decrees,
\nconsent orders, administrative orders or other orders, or other
\nadministrative or judicial requirements outstanding under any Environmental
\nLaw with respect to any member of the Consolidated Group, the Properties or
\nthe Businesses.<\/p>\n
(f) There has been no release or, threat of release of Materials of
\nEnvironmental Concern at or from the Properties, or arising from or related
\nto the operations (including, without limitation, disposal) of any member of
\nthe Consolidated Group in connection with the Properties or otherwise in
\nconnection with the Businesses, in violation of or in amounts or in a manner
\nthat could give rise to liability under Environmental Laws.<\/p>\n
SECTION 7
\nAFFIRMATIVE COVENANTS<\/p>\n
Each of the Credit Parties covenants and agrees that on the Closing Date,
\nand so long as this Credit Agreement is in effect and until the Commitments
\nhave been terminated, no Obligations remain outstanding and all amounts owing
\nhereunder or in connection herewith have been paid in full, each of the
\nmembers of the Consolidated Group party hereto shall:<\/p>\n
7.1 Financial Statements.<\/p>\n
61<\/p>\n
Furnish, or cause to be furnished, to the Administrative Agent for
\ndistribution to the Lenders:<\/p>\n
(a) Audited Financial Statements. As soon as available, but in any
\n event within 90 days after the end of each fiscal year, an audited
\n consolidated balance sheet of the Borrower and its subsidiaries as of the
\n end of the fiscal year and the related consolidated statements of income,
\n retained earnings, shareholders’ equity and cash flows for the year,
\n audited by Price Waterhouse LLP, or other firm of independent certified
\n public accountants of nationally recognized standing reasonably acceptable
\n to the Required Lenders, setting forth in each case in comparative form
\n the figures for the previous year, reported without a “going concern” or
\n like qualification or exception, or qualification indicating that the
\n scope of the audit was inadequate to permit such independent certified
\n public accountants to certify such financial statements without such
\n qualification.<\/p>\n
(b) Company-Prepared Financial Statements. As soon as available,
\n but in any event<\/p>\n
(i) within 45 days after the end of each of the first three
\n fiscal quarters, a company-prepared consolidated balance sheet of the
\n Borrower and its subsidiaries as of the end of the quarter and related
\n company-prepared consolidated statements of income, retained earnings,
\n shareholders’ equity and cash flows for such quarterly period and for
\n the fiscal year to date;<\/p>\n
(ii) within 60 days after the end of the fourth fiscal
\n quarter, a company-prepared consolidated balance sheet of the Borrower
\n and its subsidiaries as of the end of the quarter and related
\n company-prepared consolidated statements of income, retained earnings,
\n shareholders’ equity and cash flows for such quarterly period and for
\n the fiscal year to date;<\/p>\n
(iii) prior to the end of each fiscal year, an annual
\n business plan and budget for the members of the Consolidated Group,
\n containing, among other things, pro forma financial statements for the
\n next fiscal year,<\/p>\n
in each case setting forth in comparative form the consolidated figures
\n for the corresponding period or periods of the preceding fiscal year or
\n the portion of the fiscal year ending with such period, as applicable, in
\n each case subject to normal recurring year-end audit adjustments.<\/p>\n
62<\/p>\n
All such financial statements shall be complete and correct in all material
\nrespects (subject, in the case of interim statements, to normal recurring
\nyear-end audit adjustments) and shall be prepared in reasonable detail and,
\nin the case of the annual and quarterly financial statements provided in
\naccordance with subsections (a) and (b) above, in accordance with GAAP
\napplied consistently throughout the periods reflected therein and further
\naccompanied by a description of, and an estimation of the effect on the
\nfinancial statements on account of, a change in the application of accounting
\nprinciples as provided in Section 1.3.<\/p>\n
7.2 Certificates; Other Information.<\/p>\n
Furnish, or cause to be furnished, to the Administrative Agent for
\ndistribution to the Lenders:<\/p>\n
(a) Accountant’s Certificate and Reports. Concurrently with the
\n delivery of the financial statements referred to in subsection 7.1(a)
\n above, a certificate of the independent certified public accountants
\n reporting on such financial statements stating that in making the
\n examination necessary therefor no knowledge was obtained of any Default or
\n Event of Default, except as specified in such certificate.<\/p>\n
(b) Officer’s Compliance Certificate. Concurrently with the
\n delivery of the financial statements referred to in Sections 7.1(a) and
\n 7.1(b) above, a certificate of a Responsible Officer stating that, to the
\n best of such Responsible Officer’s knowledge and belief, (i) the financial
\n statements fairly present in all material respects the financial condition
\n of the parties covered by such financial statements, (ii) during such
\n period the members of the Consolidated Group have observed or performed in
\n all material respects the covenants and other agreements hereunder and
\n under the other Credit Documents relating to them, and satisfied in all
\n material respects the conditions, contained in this Credit Agreement to be
\n observed, performed or satisfied by them, and (iii) such Responsible
\n Officer has obtained no knowledge of any Default or Event of Default
\n except as specified in such certificate. Such certificate shall include
\n the calculations required to indicate compliance with Section 7.9. A form
\n of Officer’s Certificate is attached as Schedule 7.2(b).<\/p>\n
(c) Accountants’ Reports. Promptly upon receipt, a copy of any
\n final (as distinguished from a preliminary or discussion draft)
\n “management letter” or other similar report submitted by independent
\n accountants or financial consultants to the members of the Consolidated
\n Group in connection with any annual, interim or special audit.<\/p>\n
(d) Public Information. Within thirty days after the same are sent,
\n copies of all reports (other than those otherwise provided pursuant to
\n subsection 7.1) and other financial information which any member of the
\n Consolidated Group sends to its public stockholders, and within thirty
\n days after the same are filed, copies of all financial statements and
\n non-<\/p>\n
63<\/p>\n
confidential reports which any member of the Consolidated Group may
\n make to, or file with, the Securities and Exchange Commission or any
\n successor or analogous Governmental Authority.<\/p>\n
(e) Other Information. Promptly, such additional financial and
\n other information as the Administrative Agent, at the request of any
\n Lender, may from time to time reasonably request.<\/p>\n
7.3 Notices.<\/p>\n
Give notice to the Administrative Agent (which shall promptly transmit
\nsuch notice to each Lender) of:<\/p>\n
(a) Defaults. Immediately (and in any event within two (2) Business
\n Days) after a responsible officer of a Credit Party has knowledge of the
\n occurrence of an Event of Default.<\/p>\n
(b) Contractual Obligations. Promptly, the occurrence of any
\n default or event of default under any Contractual Obligation of any member
\n of the Consolidated Group which would reasonably be expected to have a
\n Material Adverse Effect.<\/p>\n
(c) Legal Proceedings. Promptly, any litigation, or any
\n investigation or proceeding (including without limitation, any
\n environmental proceeding) known to any member of the Consolidated Group,
\n or any material development in respect thereof, affecting any member of
\n the Consolidated Group which, if adversely determined, would reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
(d) ERISA. Promptly, after any Responsible Officer of the Borrower
\n knows or has reason to know of (i) any event or condition, including, but
\n not limited to, any Reportable Event, that constitutes, or might
\n reasonably lead to, an ERISA Event; (ii) with respect to any Multiemployer
\n Plan, the receipt of notice as prescribed in ERISA or otherwise of any
\n withdrawal liability assessed against any of their ERISA Affiliates, or of
\n a determination that any Multiemployer Plan is in reorganization or
\n insolvent (both within the meaning of Title IV of ERISA); (iii) the
\n failure to make full payment on or before the due date (including
\n extensions) thereof of all amounts which the members of the Consolidated
\n Group or any ERISA Affiliate are required to contribute to each Plan
\n pursuant to its terms and as required to meet the minimum funding standard
\n set forth in ERISA and the Code with respect; or (iv) any change in the
\n funding status of any Plan that reasonably could be expected to have a
\n Material Adverse Effect; together with a description of any such event or
\n condition or a copy of any such notice and a statement by the chief
\n financial officer of the Borrower briefly <\/p>\n
64<\/p>\n
setting forth the details regarding such event, condition, or notice, and
\n the action, if any, which has been or is being taken or is proposed to be
\n taken by the Credit Parties with respect thereto. Promptly upon request,
\n the members of the Consolidated Group shall furnish the Administrative
\n Agent and the Lenders with such additional information concerning any Plan
\n as may be reasonably requested, including, but not limited to, copies of
\n each annual report\/return (Form 5500 series), as well as all schedules and
\n attachments thereto required to be filed with the Department of Labor
\n and\/or the Internal Revenue Service pursuant to ERISA and the Code,
\n respectively, for each “plan year” (within the meaning of Section 3(39) of
\n ERISA).<\/p>\n
(e) Other. Promptly, any other development or event which a
\n Responsible Officer of the Borrower determines could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
Each notice pursuant to this subsection shall be accompanied by a statement
\nof a Responsible Officer of the Borrower setting forth details of the
\noccurrence referred to therein and stating what action the relevant Credit
\nParties propose to take with respect thereto.<\/p>\n
7.4 Payment of Obligations.<\/p>\n
Pay, discharge or otherwise satisfy at or before maturity or before they
\nbecome delinquent, as the case may be, in accordance with prudent business
\npractice (subject, where applicable, to specified grace periods) all material
\nobligations of each member of the Consolidated Group of whatever nature and
\nany additional costs that are imposed as a result of any failure to so pay,
\ndischarge or otherwise satisfy such obligations, except when the amount or
\nvalidity of such obligations and costs is currently being contested in good
\nfaith by appropriate proceedings and reserves, if applicable, in conformity
\nwith GAAP with respect thereto have been provided on the books of the
\nConsolidated Group, as the case may be.<\/p>\n
7.5 Conduct of Business and Maintenance of Existence.<\/p>\n
Continue to engage in business of the same general type as now conducted
\nby it on the date hereof and similar or related businesses with, and
\npreserve, renew and keep in full force and effect its corporate existence and
\ntake all reasonable action to maintain all rights, privileges, licenses and
\nfranchises necessary or desirable in the normal conduct of its business;
\ncomply with all Contractual Obligations and Requirements of Law applicable to
\nit except to the extent that failure to comply therewith would not, in the
\naggregate, have a Material Adverse Effect.<\/p>\n
7.6 Maintenance of Property; Insurance.<\/p>\n
65<\/p>\n
Keep all material property useful and necessary in its business in
\nreasonably good working order and condition (ordinary wear and tear
\nexcepted); maintain with financially sound and reputable insurance companies
\ncasualty, liability and such other insurance (which may include plans of
\nself-insurance) with such coverage and deductibles, and in such amounts as
\nmay be consistent with prudent business practice and in any event consistent
\nwith normal industry practice (except to any greater extent as may be
\nrequired by the terms of any of the other Credit Documents); and furnish to
\nthe Administrative Agent, upon written request, full information as to the
\ninsurance carried.<\/p>\n
7.7 Inspection of Property; Books and Records; Discussions.<\/p>\n
Keep proper books of records and account in which full, true and correct
\nentries in conformity with GAAP and all Requirements of Law shall be made of
\nall dealings and transactions in relation to its businesses and activities;
\nand permit, during regular business hours and upon reasonable notice by the
\nAdministrative Agent, the Administrative Agent to visit and inspect any of
\nits properties and examine and make abstracts (including photocopies) from
\nany of its books and records (other than materials protected by the
\nattorney-client privilege and materials which the Credit Parties may not
\ndisclose without violation of a confidentiality obligation binding upon them)
\nat any reasonable time, and to discuss the business, operations, properties
\nand financial and other condition of the members of the Consolidated Group
\nwith officers and employees of the members of the Consolidated Group and with
\ntheir independent certified public accountants. The cost of the inspection
\nreferred to in the preceding sentence shall be for the account of the Lenders
\nunless an Event of Default has occurred and is continuing, in which case the
\ncost of such inspection shall be for the account of the Credit Parties.<\/p>\n
7.8 Environmental Laws.<\/p>\n
(a) Comply in all material respects with, and take reasonable
\nactions to ensure compliance in all material respects by all tenants and
\nsubtenants, if any, with, all applicable Environmental Laws and obtain and
\ncomply in all material respects with and maintain, and take reasonable
\nactions to ensure that all tenants and subtenants obtain and comply in all
\nmaterial respects with and maintain, any and all licenses, approvals,
\nnotifications, registrations or permits required by applicable Environmental
\nLaws except to the extent that failure to do so would not reasonably be
\nexpected to have a Material Adverse Effect;<\/p>\n
(b) Conduct and complete all investigations, studies, sampling and
\ntesting, and all remedial, removal and other actions actually and lawfully
\nrequired under Environmental Laws and promptly comply in all material
\nrespects with all lawful orders and directives of all Governmental
\nAuthorities regarding Environmental Laws except to the extent that the same
\nare being contested in good faith by appropriate proceedings and the failure
\nto do or the pendency of such proceedings would not reasonably be expected to
\nhave a Material Adverse Effect; and<\/p>\n
66<\/p>\n
(c) Defend, indemnify and hold harmless the Administrative Agent and
\nthe Lenders, and their respective employees, agents, officers and directors,
\nfrom and against any and all claims, demands, penalties, fines, liabilities,
\nsettlements, damages, costs and expenses of whatever kind or nature known or
\nunknown, contingent or otherwise, arising out of, or in any way relating to
\nthe violation of, noncompliance with or liability under, any Environmental
\nLaw applicable to the operations of the members of the Consolidated Group or
\nthe Properties, or any orders, requirements or demands of Governmental
\nAuthorities related thereto, including, without limitation, reasonable
\nattorney’s and consultant’s fees, investigation and laboratory fees, response
\ncosts, court costs and litigation expenses, except to the extent that any of
\nthe foregoing arise out of the gross negligence or willful misconduct of the
\nparty seeking indemnification therefor. The agreements in this paragraph
\nshall survive repayment of the Loans and all other amounts payable hereunder,
\nand termination of the Commitments.<\/p>\n
7.9 Financial Covenants.<\/p>\n
(a) Consolidated Leverage Ratio. As of the end of each fiscal
\nquarter, the Consolidated Leverage Ratio shall be not greater than 3.0:1.0.<\/p>\n
(b) Consolidated Fixed Charge Coverage Ratio. As of the end of each
\nfiscal quarter, the Consolidated Fixed Charge Coverage Ratio shall be not
\nless than 3.0:1.0.<\/p>\n
(c) Consolidated Net Worth. As of the end of each fiscal quarter,
\nConsolidated Net Worth shall be not less than the sum of
\n[85% of Consolidated Net Worth as of the Closing Date] plus the net cash
\nproceeds from the IPO plus on the last day of each fiscal quarter to occur
\nafter the Closing Date, 75% of Consolidated Net Income for the fiscal quarter
\nthen ended, such increases to be cumulative, plus 100% of the net proceeds
\nfrom Equity Transactions occurring after the Closing Date.<\/p>\n
(d) Capital Expenditures. Members of the Consolidated Group will
\nnot make Capital Expenditures in any fiscal year which in the aggregate shall
\nexceed:<\/p>\n
(i) for the period from the Closing Date through April 30, 1999, $5
\n million; and<\/p>\n
(ii) for each fiscal year ending after April 30, 1999, an amount
\n equal to five percent (5%) of Consolidated Net Worth as of the last day of
\n the immediately preceding fiscal year.<\/p>\n
(e) Rent Expense. As of each fiscal quarter, members of the
\nConsolidated Group will not have rent expense in excess of [$________ ] for
\nthe period of the four consecutive fiscal quarters ending as of such date.<\/p>\n
67<\/p>\n
7.10 Administrative Fees.<\/p>\n
Pay to the Administrative Agent the annual agency fee and comply with the
\nother agreements provided for in the Administrative Agent’s Fee Letter.<\/p>\n
7.11 Additional Guaranties and Stock Pledges.<\/p>\n
(a) Domestic Subsidiaries. Where Domestic Subsidiaries of the
\nBorrower which are not Credit Parties hereunder (the “Non-Guarantor
\nSubsidiaries”) shall at any time constitute more than (the “Threshold
\nRequirement”):<\/p>\n
(i) in any instance for any such Non-Guarantor Subsidiary, five
\n percent (5%) of consolidated assets for the Consolidated Group or five
\n percent (5%) of consolidated revenues for the Consolidated Group, or <\/p>\n
(ii) in the aggregate for all such Non-Guarantor Subsidiaries, ten
\n percent (10%) of consolidated assets for the Consolidated Group or ten
\n percent (10%) of consolidated revenues for the Consolidated Group,<\/p>\n
then the Borrower shall (i) promptly notify the Administrative Agent thereof,
\nand promptly cause such Domestic Subsidiary or Subsidiaries to become a
\nGuarantor by execution of a Joinder Agreement, such that immediately after
\njoinder as a Guarantor, the remaining Non-Guarantor Subsidiaries shall not in
\nany instance, or collectively, exceed the Threshold Requirement, (ii) deliver
\nwith the Joinder Agreement, supporting resolutions, incumbency certificates,
\ncorporate formation and organizational documentation and opinions of counsel
\nas the Administrative Agent may reasonably request, and (iii) deliver stock
\ncertificates and related pledge agreements or pledge joinder agreements
\nevidencing the pledge of 100% of the Voting Stock of all such Domestic
\nSubsidiaries (whether or not they are Guarantors) and 65% of the Voting Stock
\nof all Foreign Subsidiaries, together with undated stock transfer powers
\nexecuted in blank.<\/p>\n
(b) Foreign Subsidiaries. At any time any Person becomes a Foreign
\nSubsidiary, the Borrower will promptly notify the Administrative Agent
\nthereof and cause (i) delivery of supporting resolutions, incumbency
\ncertificates, corporation formation and organizational documentation and
\nopinions of counsel as the Administrative Agent may reasonably request, and
\n(ii) delivery of stock certificates (where required for perfection under
\nlocal law) and a related pledge agreement or pledge joinder agreement
\nevidencing the pledge of 65% of the Voting Stock of such Foreign Subsidiary
\nand of 65% of the Voting Stock of each of its Domestic Subsidiaries and 65%
\nof the Voting Stock of each of its Foreign Subsidiaries, together in each
\ncase with undated stock transfer powers executed in blank.<\/p>\n
68<\/p>\n
7.12 Ownership of Subsidiaries.<\/p>\n
Except to the extent otherwise permitted in Section 8.4(b) and Section 8.7
\nand to the extent as would not cause a Change of Control and except as set
\nforth on Schedule 6.14, the Borrower shall, directly or indirectly, own at
\nall times 100% of the Voting Stock of each of its Subsidiaries.<\/p>\n
7.13 Use of Proceeds.<\/p>\n
Extensions of Credit will be used solely for the purposes provided in
\nSection 6.15.<\/p>\n
7.14 Year 2000 Compatibility.<\/p>\n
Take all action reasonably necessary to assure that its computer based
\nsystems are able to operate and effectively process data including dates on
\nand after January 1, 2000, and, at the reasonable request of the
\nAdministrative Agent or the Required Lenders, provide evidence to the Lenders
\nof such year 2000 compatibility.<\/p>\n
SECTION 8
\nNEGATIVE COVENANTS<\/p>\n
Each of the Credit Parties covenants and agrees that on the Closing Date,
\nand so long as this Credit Agreement is in effect and until the Commitments
\nhave been terminated, no Obligations remain outstanding and all amounts owing
\nhereunder or in connection herewith, have been paid in full, no member of the
\nConsolidated Group shall:<\/p>\n
8.1 Indebtedness.<\/p>\n
Contract, create, incur, assume or permit to exist any Indebtedness,
\nexcept:<\/p>\n
(a) Indebtedness arising or existing under this Credit Agreement and
\n the other Credit Documents;<\/p>\n
(b) Indebtedness set forth in Schedule 8.1, and renewals,
\n refinancings and extensions thereof on terms and conditions not less
\n favorable in any material respect than for such existing Indebtedness;<\/p>\n
(c) Capital Lease Obligations and Indebtedness incurred, in each
\n case, to provide all or a portion of the purchase price or costs of
\n construction of an asset or, in the case of a sale\/leaseback transaction
\n as described in Section 8.11, to finance the value of such asset <\/p>\n
69<\/p>\n
owned by a member of the Consolidated Group, provided that (i) such
\n Indebtedness when incurred shall not exceed the purchase price or cost of
\n construction of such asset or, in the case of a sale\/leaseback
\n transaction, the fair market value of such asset, (ii) no such
\n Indebtedness shall be refinanced for a principal amount in excess of the
\n principal balance outstanding thereon at the time of such refinancing, and
\n (iii) the total amount of all such Indebtedness shall not exceed
\n [$________ ] at any time outstanding;<\/p>\n
(d) Indebtedness and obligations owing under interest rate
\n protection agreements relating to the Obligations hereunder and under
\n interest rate, commodities and foreign currency exchange protection
\n agreements entered into in the ordinary course of business to manage
\n existing or anticipated risks and not for speculative purposes;<\/p>\n
(e) unsecured intercompany Indebtedness owing by a member of the
\n Consolidated Group to another member of the Consolidated Group (subject,
\n however, to the limitations of Section 8.5 in the case of the member of
\n the Consolidated Group extending the intercompany loan, advance or credit);<\/p>\n
(f) Subordinated Debt of the Borrower;<\/p>\n
(g) other unsecured Indebtedness of the Borrower of up to
\n [$_________ ] in the aggregate at any time outstanding; and<\/p>\n
(h) Support Obligations of Indebtedness permitted under this Section
\n 8.1.<\/p>\n
8.2 Liens.<\/p>\n
Contract, create, incur, assume or permit to exist any Lien with respect
\nto any of their respective property or assets of any kind (whether real or
\npersonal, tangible or intangible), whether now owned or hereafter acquired,
\nexcept for Permitted Liens.<\/p>\n
8.3 Nature of Business.<\/p>\n
Alter the character of their business in any material respect from that
\nconducted as of the Closing Date and similar or related businesses.<\/p>\n
8.4 Consolidation, Merger, Sale or Purchase of Assets, Capital
\nExpenditures, etc.<\/p>\n
(a) Enter into a transaction of merger or consolidation, except <\/p>\n
70<\/p>\n
(i) a member of the Consolidated Group may be a party to
\n a transaction of merger or consolidation with another member of the
\n Consolidated Group, provided that (A) if the Borrower is a party thereto,
\n it shall be the surviving corporation, and (B) if a Guarantor is a party
\n thereto and the Borrower is not a party thereto, a Guarantor shall be the
\n surviving corporation or the surviving corporation shall be a Domestic
\n Subsidiary and shall become a Guarantor hereunder as an Additional Credit
\n Party pursuant to Section 7.11 concurrently therewith, and (C) no Default
\n or Event of Default shall exist either immediately prior to or immediately
\n after giving effect thereto; and<\/p>\n
(ii) a member of the Consolidated Group (other than the
\n Borrower) may be a party to a transaction of merger or consolidation with
\n any other Person, provided that (A) the provisions of Section 7.11
\n regarding joinder of certain Subsidiaries as Additional Credit Parties
\n hereunder shall be complied with, (B) no Default or Event of Default shall
\n exist either immediately prior to or immediately after giving effect
\n thereto, and (C) the provisions of subsection (c) of this Section shall be
\n complied with.<\/p>\n
(b) Sell, lease, transfer or otherwise dispose of assets, property
\nand\/or operations (including any sale-leaseback transaction, but excluding
\nand not subject to clauses (i) and (ii) below, the sale of inventory in the
\nordinary course of business, the sale or disposition of plant, property and
\nequipment which is no longer useful in the business or as to which the
\nproceeds therefrom are reinvested in plant, property and equipment within six
\nmonths thereof), other than to another Credit Party, which <\/p>\n
(i) in the aggregate in any fiscal year shall constitute
\n more than ten percent (10%) of total assets for the Consolidated Group at
\n the end of the immediately preceding fiscal year or ten percent (10%)
\n Consolidated Net Income for the immediately preceding fiscal year, and<\/p>\n
(ii) no Default of Event of Default would exist after
\n giving effect thereto on a Pro Forma Basis,<\/p>\n
without the prior written consent of the Required Lenders (which consent
\nshall not be unreasonably withheld or delayed).<\/p>\n
(c) Acquire, including in connection with an Equity Transaction, all
\nor any portion of the capital stock or other ownership interest in any Person
\nwhich is not a Subsidiary or all or any substantial portion of the assets,
\nproperty and\/or operations of a Person which is not a Subsidiary, without the
\nprior written consent of the Required Lenders (which consent shall not be
\nunreasonably withheld or delayed), unless<\/p>\n
71<\/p>\n
(i) in the case of an acquisition of capital stock or
\n other ownership interest after giving effect thereto, such Person will not
\n be a Subsidiary, then such acquisition will not cause a violation of
\n Section 8.5;<\/p>\n
(ii) in the case of an acquisition of capital stock or
\n other ownership interest after giving effect thereto, such Person will be a
\n Subsidiary, or in the case of an acquisition of assets, property and\/or
\n operations then<\/p>\n
(A) the cost of any such acquisition (or series
\n of related transactions) shall not exceed $25 million in any instance;<\/p>\n
(B) the acquisition is in the same or a similar
\n or related line of business as that of the Credit Parties;<\/p>\n
(C) the Board of Directors of the Person which
\n is the subject of the acquisition shall have approved the acquisition; and <\/p>\n
(D) no Default or Event of Default would exist
\n after giving effect thereto on a Pro Forma Basis.<\/p>\n
(d) In the case of the Borrower, liquidate, wind-up or dissolve,
\nwhether voluntarily or involuntarily (or suffer to permit any such
\nliquidation or dissolution).<\/p>\n
8.5 Advances, Investments and Loans.<\/p>\n
Lend money or extend credit or make advances to any Person, or purchase or
\nacquire any stock, obligations or securities of, or any other interest in, or
\nmake any capital contribution to, or otherwise make an Investment in, any
\nPerson except as permitted by Section 8.4 or as may be Permitted Investments.<\/p>\n
8.6 Transactions with Affiliates.<\/p>\n
Enter into or permit to exist any transaction or series of transactions,
\nwhether or not in the ordinary course of business, with any officer,
\ndirector, shareholder or Affiliate other than (i) transactions permitted by
\nSection 8.1, Section 8.4(b), Section 8.5 or Section 8.10, (ii) customary fees
\nand expenses paid to directors and (iii) where such transactions are on terms
\nand conditions substantially as favorable as would be obtainable in a
\ncomparable arm’s-length transaction with a Person other than an officer,
\ndirector, shareholder or Affiliate.<\/p>\n
8.7 Ownership of Equity Interests.<\/p>\n
72<\/p>\n
Issue, sell, transfer, pledge or otherwise dispose of any partnership
\ninterests, shares of capital stock or other equity or ownership interests
\n(“Equity Interests”) in any member of the Consolidated Group, except (i)
\nissuance, sale or transfer of Equity Interests to a Credit Party by a
\nSubsidiary of such Credit Party, (ii) in connection with a transaction
\npermitted by Section 8.4, and (iii) as needed to qualify directors under
\napplicable law.<\/p>\n
8.8 Fiscal Year.<\/p>\n
Change its fiscal year from an April 30 fiscal year end to any year-end
\nother than December 31 (and only then upon prior notice to the Administrative
\nAgent and adjustment of the financial covenants to reflect any partial year
\nperiods).<\/p>\n
8.9 Prepayments of Indebtedness, etc.<\/p>\n
(a) After the issuance thereof, amend or modify (or permit the
\namendment or modification of), the terms of any other Indebtedness in a
\nmanner adverse to the interests of the Lenders (including specifically
\nshortening any maturity or average life to maturity or requiring any payment
\nsooner than previously scheduled or increasing the interest rate or fees
\napplicable thereto);<\/p>\n
(b) Make any prepayment, redemption, defeasance or acquisition for
\nvalue of (including without limitation, by way of depositing money or
\nsecurities with the trustee with respect thereto before due for the purpose
\nof paying when due), or refund, refinance or exchange of any Funded Debt
\n(other than intercompany Indebtedness permitted hereunder) other than
\nregularly scheduled payments of principal and interest on such Funded Debt.<\/p>\n
8.10 Restricted Payments.<\/p>\n
Make or permit any Restricted Payments, unless and to the extent that no
\nDefault or Event of Default shall exist immediately prior or after giving
\neffect thereto on a Pro Forma Basis.<\/p>\n
8.11 Sale Leasebacks.<\/p>\n
Except as permitted pursuant to Section 8.1(c) hereof, directly or
\nindirectly, become or remain liable as lessee or as guarantor or other surety
\nwith respect to any lease, whether an Operating Lease or a Capital Lease, of
\nany Property (whether real or personal or mixed), whether now owned or
\nhereafter acquired, (i) which such Person has sold or transferred or is to
\nsell or transfer to any other Person other than a Credit Party or (ii) which
\nsuch Person intends to use for substantially the same purpose as any other
\nProperty which has been sold or is to be sold or transferred by such Person
\nto any other Person in connection with such lease.<\/p>\n
73<\/p>\n
8.12 No Further Negative Pledges.<\/p>\n
Except with respect to prohibitions against other encumbrances on specific
\nProperty encumbered to secure payment of particular Indebtedness (which
\nIndebtedness relates solely to such specific Property, and improvements and
\naccretions thereto, and is otherwise permitted hereby), no member of the
\nConsolidated Group will enter into, assume or become subject to any agreement
\nprohibiting or otherwise restricting the creation or assumption of any Lien
\nupon its properties or assets, whether now owned or hereafter acquired, or
\nrequiring the grant of any security for such obligation if security is given
\nfor some other obligation.<\/p>\n
SECTION 9
\nEVENTS OF DEFAULT<\/p>\n
9.1 Events of Default.<\/p>\n
An Event of Default shall exist upon the occurrence of any of the
\nfollowing specified events (each an “Event of Default”):<\/p>\n
(a) Payment. Any Credit Party shall<\/p>\n
(i) default in the payment when due of any principal of
\n any of the Loans, or<\/p>\n
(ii) default, and such defaults shall continue for three (3)
\n or more Business Days, in the payment when due of any interest on the
\n Loans or of any Fees or other amounts owing hereunder, under any of the
\n other Credit Documents or in connection herewith or therewith; or<\/p>\n
(b) Representations. Any representation, warranty or statement
\nmade or deemed to be made herein, in any of the other Credit Documents, or in
\nany statement or certificate delivered or required to be delivered pursuant
\nhereto or thereto shall prove untrue in any material respect on the date as
\nof which it was deemed to have been made; or<\/p>\n
74<\/p>\n
(c) Covenants.<\/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
\n through 8.12 (except in the case of the negative covenants contained in
\n Sections 8.1 through 8.12, those Defaults which may occur or arise other
\n than on account of or by affirmative or intentional act of a Credit Party
\n or 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
\n term, covenant or agreement (other than those referred to in subsections
\n (a), (b) or (c)(i) of this Section 9.1) contained in this Credit Agreement
\n and such default shall continue unremedied for a period of at least 30
\n days after the earlier of a responsible officer of a Credit Party becoming
\n aware of such default or notice thereof by the Administrative Agent; or<\/p>\n
(d) Other Credit Documents. (i) Any Credit Party shall default in
\nthe due performance or observance of any material term, covenant or agreement
\nin any of the other Credit Documents (subject to applicable grace or cure
\nperiods, if any), or (ii) except as to the Credit Party which is dissolved,
\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), any Credit Document shall fail to
\nbe in full force and effect or to give the Administrative Agent and\/or the
\nLenders any material part of the Liens, rights, powers and privileges
\npurported to be created thereby; or<\/p>\n
(e) Guaranties. Except as to the Credit Party which is dissolved,
\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), the guaranty given by any Guarantor
\nhereunder or any material provision thereof shall cease to be in full force
\nand effect, or any Guarantor hereunder or any Person acting by or on behalf
\nof such Guarantor shall deny or disaffirm such Guarantor’s obligations under
\nsuch guaranty, or any Guarantor shall default in the due performance or
\nobservance of any term, covenant or agreement on its part to be performed or
\nobserved pursuant to any guaranty; or<\/p>\n
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
\nto any Credit Party; or<\/p>\n
(g) Defaults under Other Agreements. With respect to any
\nIndebtedness (other than Indebtedness outstanding under this Credit
\nAgreement) in excess of $5,000,000 in the aggregate for the Consolidated
\nGroup taken as a whole, (A) (1) any member of the Consolidated Group shall
\ndefault in any payment (beyond the applicable grace period with respect
\nthereto, if any) with respect to any <\/p>\n
75<\/p>\n
such Indebtedness, 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
\nother event or condition shall occur or condition exist, the effect of which
\ndefault or other event or condition is to cause, or permit, the holder or
\nholders of such Indebtedness (or trustee or agent on behalf of such holders)
\nto cause (determined without regard to whether any notice or lapse of time is
\nrequired), any such Indebtedness to become due prior to its stated maturity;
\nor (B) any such Indebtedness shall be declared due and payable, or required
\nto be prepaid other than by a regularly scheduled required prepayment, prior
\nto the stated maturity thereof; or<\/p>\n
(h) Judgments. Any member of the Consolidated Group shall fail
\nwithin 30 days of the date due and payable to pay, bond or otherwise
\ndischarge any judgment, settlement or order for the payment of money which
\njudgment, settlement or order, when aggregated with all other such judgments,
\nsettlements or orders due and unpaid at such time, exceeds $5,000,000, and
\nwhich is not stayed on appeal (or for which no motion for stay is pending) or
\nis not otherwise being executed; or<\/p>\n
(i) ERISA. Any of the following events or conditions, if such event
\nor condition could reasonably be expected to have a Material Adverse Effect
\nand is not subject to indemnification in favor of the Consolidated Group: (1)
\nany “accumulated funding deficiency,” as such term is defined in Section 302
\nof ERISA 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)
\nan ERISA Event shall occur with respect to a Single Employer Plan, which is,
\nin the reasonable opinion of the Administrative Agent, likely to result in
\nthe termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA
\nEvent shall occur with respect to a Multiemployer Plan or Multiple Employer
\nPlan, which is, in the reasonable opinion of the Administrative Agent, likely
\nto result in (i) the termination of such Plan for purposes of Title IV of
\nERISA, or (ii) a member of the Consolidated Group or any ERISA Affiliate
\nincurring any liability in connection with a withdrawal from, reorganization
\nof (within the meaning of Section 4241 of ERISA), or insolvency of (within
\nthe meaning of Section 4245 of ERISA) such Plan; or (4) any prohibited
\ntransaction (within the meaning of Section 406 of ERISA or Section 4975 of
\nthe Code) or breach of fiduciary responsibility shall occur which may subject
\na member of the Consolidated Group or any ERISA Affiliate to any liability
\nunder Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
\nCode, or under any agreement or other instrument pursuant to which a member
\nof the Consolidated Group or any ERISA Affiliate has agreed or is required to
\nindemnify any person against any such liability; or<\/p>\n
76<\/p>\n
(j) Ownership. There shall occur a Change of Control.<\/p>\n
9.2 Acceleration; Remedies.<\/p>\n
Upon the occurrence of an Event of Default, and at any time thereafter,
\nthe Administrative Agent shall, upon the request and direction of the
\nRequired Lenders, by written notice to the Credit Parties take any of the
\nfollowing actions:<\/p>\n
(i) Termination of Commitments. Declare the
\n Commitments terminated whereupon the Commitments shall be immediately
\n terminated.<\/p>\n
(ii) Acceleration. Declare the unpaid principal
\n of and any accrued interest in respect of all Loans and any and all other
\n indebtedness or obligations of any and every kind owing by the Credit Parties
\n to the Administrative Agent and\/or any of the Lenders hereunder to be due
\n whereupon the same shall be immediately due and payable without presentment,
\n demand, protest or other notice of any kind, all of which are hereby waived
\n by each of the Credit Parties.<\/p>\n
(iii) Enforcement of Rights. Enforce any and all
\n rights and interests created and existing under the Credit Documents and all
\n rights of set-off.<\/p>\n
Notwithstanding the foregoing, if an Event of Default specified in Section
\n9.1(f) shall occur, then the Commitments shall automatically terminate and
\nall Loans, all accrued interest in respect thereof, all accrued and unpaid
\nFees and other indebtedness or obligations owing to the Administrative Agent
\nand\/or any of the Lenders hereunder automatically shall immediately become
\ndue and payable without presentment, demand, protest or the giving of any
\nnotice or other action by the Administrative Agent or the Lenders, all of
\nwhich are hereby waived by the Credit Parties.<\/p>\n
SECTION 10
\nAGENCY PROVISIONS<\/p>\n
10.1 Appointment.<\/p>\n
Each Lender hereby designates and appoints NationsBank, N.A. as
\nadministrative agent (in such capacity, the “Administrative Agent”) of such
\nLender to act as specified herein and the other Credit Documents, and each
\nsuch Lender hereby authorizes the Administrative Agent as the Administrative
\nAgent for such Lender, to take such action on its behalf under the provisions
\nof this Credit Agreement and the other Credit Documents and to exercise such
\npowers and perform such duties as are expressly delegated by the terms hereof
\nand of the other Credit Documents, together with such other powers as <\/p>\n
77<\/p>\n
are reasonably incidental thereto. Each Lenders further directs and
\nauthorizes the Administrative Agent to execute releases (or similar
\nagreements) to give effect to the provisions of this Credit Agreement and the
\nother Credit Documents, including specifically without limitation the
\nprovisions of Section 8.4 hereof. Notwithstanding any provision to the
\ncontrary 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
\nread into this Credit Agreement or any of the other Credit Documents, or
\nshall otherwise exist against the Administrative Agent. The provisions of
\nthis Section are solely for the benefit of the Administrative Agent and the
\nLenders and none of the Credit Parties shall (i) have any rights as a third
\nparty beneficiary of the provisions hereof or (ii) have any other rights
\notherwise and elsewhere given them limited by the provisions hereof. In
\nperforming its functions and duties under this Credit Agreement and the other
\nCredit Documents, the Administrative Agent shall act solely as Administrative
\nAgent of the Lenders and does not assume and shall not be deemed to have
\nassumed any obligation or relationship of agency or trust with or for any
\nCredit Party or any of their respective Affiliates.<\/p>\n
10.2 Delegation of Duties.<\/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
\nshall be entitled to advice of counsel concerning all matters pertaining to
\nsuch duties. The Administrative Agent shall not be responsible for the
\nnegligence or misconduct of any agents or attorneys-in-fact selected by it
\nwith reasonable care.<\/p>\n
10.3 Exculpatory Provisions.<\/p>\n
The Administrative Agent and its officers, directors, employees, agents,
\nattorneys-in-fact or affiliates shall not be (i) liable for any action
\nlawfully taken or omitted to be taken by it or such Person under or in
\nconnection herewith or in connection with any of the other Credit Documents
\n(except for its or such Person’s own gross negligence or willful misconduct),
\nor (ii) responsible in any manner to any of the Lenders for any recitals,
\nstatements, representations or warranties made by any of the Credit Parties
\ncontained herein or in any of the other Credit Documents or in any
\ncertificate, report, document, financial statement or other written or oral
\nstatement referred to or provided for in, or received by the Administrative
\nAgent under or in connection herewith or in connection with the other Credit
\nDocuments, or enforceability or sufficiency therefor of any of the other
\nCredit Documents, or for any failure of any Credit Party to perform its
\nobligations hereunder or thereunder. The Administrative Agent shall not be
\nresponsible to any Lender for the effectiveness, genuineness, validity,
\nenforceability, collectability or sufficiency of this Credit Agreement, or
\nany of the other Credit Documents or for any representations, warranties,
\nrecitals or statements made herein or therein or made by the Borrower or any
\nCredit Party in any written or oral statement or in any financial or <\/p>\n
78<\/p>\n
other statements, instruments, reports, certificates or any other documents
\nin connection herewith or therewith furnished or made by the Administrative
\nAgent to the Lenders or by or on behalf of the Credit Parties to the
\nAdministrative Agent or any Lender or be required to ascertain or inquire as
\nto the performance or observance of any of the terms, conditions, provisions,
\ncovenants or agreements contained herein or therein or as to the use of the
\nproceeds of the Loans or of the existence or possible existence of any
\nDefault or Event of Default or to inspect the properties, books or records of
\nthe Credit Parties or any of their respective Affiliates.<\/p>\n
10.4 Reliance on Communications.<\/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
\nteletype message, statement, order or other document or conversation believed
\nby it to be genuine and correct and to have been signed, sent or made by the
\nproper Person or Persons and upon advice and statements of legal counsel
\n(including, without limitation, counsel to any of the Credit Parties,
\nindependent accountants and other experts selected by the Administrative
\nAgent with reasonable care). The Administrative Agent may deem and treat the
\nLenders as the owners of their respective interests hereunder for all
\npurposes unless a written notice of assignment, negotiation or transfer
\nthereof shall have been filed with the Administrative Agent in accordance
\nwith Section 11.3(b) hereof. The Administrative Agent shall be fully
\njustified in failing or refusing to take any action under this Credit
\nAgreement or under any of the other Credit Documents unless it shall first
\nreceive such advice or concurrence of the Required Lenders as it deems
\nappropriate or it shall first be indemnified to its satisfaction by the
\nLenders against any and all liability and expense which may be incurred by it
\nby 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
\nin accordance with a request of the Required Lenders (or to the extent
\nspecifically provided in Section 11.6, all the Lenders) and such request and
\nany action taken or failure to act pursuant thereto shall be binding upon all
\nthe Lenders (including their successors and assigns).<\/p>\n
10.5 Notice of Default.<\/p>\n
The Administrative Agent shall not be deemed to have knowledge or notice
\nof the 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
\ngive prompt notice thereof to the Lenders. The Administrative Agent shall
\ntake such action with respect to such Default or Event of Default as shall be
\nreasonably directed by the Required Lenders.<\/p>\n
10.6 Non-Reliance on Administrative Agent and Other Lenders.<\/p>\n
79<\/p>\n
Each Lender expressly acknowledges that each of the Administrative Agent
\nand its officers, directors, employees, Administrative Agents,
\nattorneys-in-fact or affiliates has not made any representations or
\nwarranties to it and that no act by the Administrative Agent or any affiliate
\nthereof hereinafter taken, including any review of the affairs of any Credit
\nParty or any of their respective Affiliates, shall be deemed to constitute
\nany representation or warranty by the Administrative Agent to any Lender.
\nEach Lender represents to the Administrative Agent that it has, independently
\nand without reliance upon the Administrative Agent or any other Lender, and
\nbased on such documents and information as it has deemed appropriate, made
\nits own appraisal of and investigation into the business, assets, operations,
\nproperty, financial and other conditions, prospects and creditworthiness of
\nthe Borrower, the other Credit Parties or their respective Affiliates and
\nmade its own decision to make its Loans hereunder and enter into this Credit
\nAgreement. Each Lender also represents that it will, independently and
\nwithout reliance upon the Administrative Agent or any other Lender, and based
\non such documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit analysis, appraisals and decisions in taking
\nor not taking action under this Credit Agreement, and to make such
\ninvestigation as it deems necessary to inform itself as to the business,
\nassets, operations, property, financial and other conditions, prospects and
\ncreditworthiness of the Borrower, the other Credit Parties and their
\nrespective Affiliates. Except for notices, reports and other documents
\nexpressly required to be furnished to the Lenders by the Administrative Agent
\nhereunder, the Administrative Agent shall not have any duty or responsibility
\nto provide any Lender with any credit or other information concerning the
\nbusiness, operations, assets, property, financial or other conditions,
\nprospects or creditworthiness of the Borrower, the other Credit Parties or
\nany of their respective Affiliates which may come into the possession of the
\nAdministrative Agent or any of its officers, directors, employees,
\nAdministrative Agents, attorneys-in-fact or affiliates. <\/p>\n
10.7 Indemnification.<\/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, <\/p>\n
80<\/p>\n
damages, penalties, actions, judgments, suits, costs, expenses or
\ndisbursements of any kind whatsoever which may at any time (including without
\nlimitation at any time following the final payment of all of the obligations
\nof the Borrower hereunder and under the other Credit Documents) be imposed
\non, incurred by or asserted against the Administrative Agent in its capacity
\nas such in any way relating to or arising out of this Credit Agreement or the
\nother Credit Documents or any documents contemplated by or referred to herein
\nor therein or the transactions contemplated hereby or thereby or any action
\ntaken or omitted by the Administrative Agent under or in connection with any
\nof the foregoing; provided that no Lender shall be liable for the payment of
\nany portion of such liabilities, obligations, losses, damages, penalties,
\nactions, judgments, suits, costs, expenses or disbursements resulting from
\nthe gross negligence or willful misconduct of the Administrative Agent. If
\nany indemnity furnished to the Administrative Agent for any purpose shall, in
\nthe opinion of the Administrative Agent, be insufficient or become impaired,
\nthe Administrative Agent may call for additional indemnity and cease, or not
\ncommence, to do the acts indemnified against until such additional indemnity
\nis furnished. The agreements in this Section shall survive the repayment of
\nthe Loans and other obligations under the Credit Documents and the
\ntermination of the Commitments hereunder.<\/p>\n
10.8 Administrative Agent in its Individual Capacity.<\/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
\nCredit Documents, the Administrative Agent shall have the same rights and
\npowers under this Credit Agreement as any Lender and may exercise the same as
\nthough it were not the Administrative Agent, and the terms “Lender” and
\n“Lenders” shall include the Administrative Agent in its individual capacity.<\/p>\n
10.9 Successor Administrative Agent.<\/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
\nRequired Lenders upon 30 days’ written notice to the Administrative Agent.
\nUpon any such resignation or removal, the Required Lenders shall have the
\nright to appoint a successor Administrative Agent. If no successor
\nAdministrative Agent shall have been so appointed by the Required Lenders,
\nand shall have accepted such appointment, within 30 days after the notice of
\nresignation or notice of removal, as appropriate, then the retiring
\nAdministrative Agent shall select a successor Administrative Agent provided
\nsuch successor is a Lender hereunder or a commercial bank organized under the
\nlaws of the United States of America or of any State thereof and has a
\ncombined capital and surplus of at least $500,000,000. Upon the acceptance
\nof any appointment as Administrative Agent hereunder by a successor, such
\nsuccessor Administrative Agent shall thereupon succeed to and become vested
\nwith all the rights, powers, privileges and duties of the retiring
\nAdministrative Agent, and the retiring Administrative Agent shall be
\ndischarged from its duties and obligations as Administrative Agent, as
\nappropriate, under this Credit Agreement and the other Credit Documents and
\nthe provisions of this Section 10.9 shall inure to its benefit as to any
\nactions taken or omitted to be taken by it while it was Administrative Agent
\nunder this Credit Agreement.<\/p>\n
SECTION 11
\nMISCELLANEOUS<\/p>\n
81<\/p>\n
11.1 Notices.<\/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
\nthe number set out below, (iii) the day following the day on which the same
\nhas been delivered prepaid to a reputable national overnight air courier
\nservice, or (iv) the third Business Day following the day on which the same
\nis sent by certified or registered mail, postage prepaid, in each case to the
\nrespective parties at the address, in the case of the Borrower, Guarantors
\nand the Administrative Agent, set forth below, and, in the case of the
\nLenders, set forth on Schedule 11.1, or at such other address as such party
\nmay specify by written notice to the other parties hereto:<\/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
82<\/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
11.2 Right of Set-Off.<\/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
\noccurrence of an Event of Default, each Lender is authorized at any time and
\nfrom time to time, without presentment, demand, protest or other notice of
\nany kind (all of which rights being hereby expressly waived), to set-off and
\nto appropriate and apply any and all deposits (general or special) and any
\nother indebtedness at any time held or owing by such Lender (including,
\nwithout limitation branches, agencies or Affiliates of such Lender wherever
\nlocated) to or for the credit or the account of any Credit Party against
\nobligations and liabilities of such Person to such Lender hereunder, under
\nthe Notes, the other Credit Documents or otherwise, irrespective of whether
\nsuch Lender shall have made any demand hereunder and although such
\nobligations, liabilities or claims, or any of them, may be contingent or
\nunmatured, and any such set-off shall be deemed to have been made immediately
\nupon the occurrence of an Event of Default even though such charge is made or
\nentered on the books of such Lender subsequent thereto. Any Person
\npurchasing a participation in the Loans and Commitments hereunder pursuant to
\nSection 3.13 or Section 11.3(d) may exercise all rights of set-off with
\nrespect to its participation interest as fully as if such Person were a
\nLender hereunder.<\/p>\n
11.3 Benefit of Agreement.<\/p>\n
(a) Generally. This Credit Agreement shall be binding upon and
\ninure to the benefit of and be enforceable by the respective successors and
\nassigns of the parties hereto; provided that none of the Credit Parties may
\nassign or transfer any of its interests without prior written consent of the
\nLenders; provided further that the rights of each Lender to transfer, assign
\nor grant participations in its rights and\/or obligations hereunder shall be
\nlimited as set forth in this Section 11.3, provided however that nothing
\nherein shall prevent or prohibit any Lender from (i) pledging its Loans
\nhereunder to a Federal Reserve Bank in support of borrowings made by such
\nLender from such Federal Reserve Bank, or (ii) granting assignments or
\nselling participations in such Lender’s Loans and\/or Commitments hereunder to
\nits parent company and\/or to any Affiliate or Subsidiary of such Lender.<\/p>\n
83<\/p>\n
(b) Assignments. Each Lender may assign all or a portion of its
\nrights and obligations hereunder (including, without limitation, all or a
\nportion of its Commitments or its Loans), pursuant to an assignment agreement
\nsubstantially in the form of Schedule 11.3(b), to (i) a Lender, (ii) an
\naffiliate of a Lender or (iii) any other Person (other than the Borrower or
\nan Affiliate of the Borrower) reasonably acceptable to the Administrative
\nAgent and, so long as no Default or Event of Default has occurred and is
\ncontinuing, the Borrower (the consent of the Borrower shall not be
\nunreasonably withheld or delayed and such consent shall be deemed given if
\nthe Borrower does not notify the assigning Lender and the Administrative
\nAgent of any objection within two Business Days after the Borrower has been
\nprovided notice of the proposed assignment by the assigning Lender or the
\nAdministrative Agent); provided that (i) any such assignment (other than any
\nassignment to an existing Lender) shall be in a minimum aggregate amount of
\n$5,000,000 (or, if less, the remaining amount of the Commitment being
\nassigned by such Lender) of the Commitments and in integral multiples of
\n$1,000,000 above such amount and (ii) each such assignment shall be of a
\nconstant, not varying, percentage of all such Lender’s rights and obligations
\nunder this Credit Agreement. Any assignment hereunder shall be effective
\nupon delivery to the Administrative Agent of written notice of the assignment
\ntogether with a transfer fee of $3,500 payable to the Administrative Agent
\nfor its own account from and after the later of (i) the effective date
\nspecified in the applicable assignment agreement and (ii) the date of
\nrecording of such assignment in the Register pursuant to the terms of
\nsubsection (c) below. The assigning Lender will give prompt notice to the
\nAdministrative Agent and the Borrower of any such assignment. Upon the
\neffectiveness of any such assignment (and after notice to, and (to the extent
\nrequired pursuant to the terms hereof), with the consent of, the Borrower as
\nprovided herein), the assignee shall become a “Lender” for all purposes of
\nthis Credit Agreement and the other Credit Documents and, to the extent of
\nsuch assignment, the assigning Lender shall be relieved of its obligations
\nhereunder to the extent of the Loans and Commitment components being
\nassigned. Along such lines the Borrower agrees that upon notice of any such
\nassignment and surrender of the appropriate Note or Notes, it will promptly
\nprovide to the assigning Lender and to the assignee separate promissory notes
\nin the amount of their respective interests substantially in the form of the
\noriginal Note (but with notation thereon that it is given in substitution for
\nand replacement of the original Note or any replacement notes thereof). By
\nexecuting and delivering an assignment agreement in accordance with this
\nSection 11.3(b), the assigning Lender thereunder and the assignee thereunder
\nshall be deemed to confirm to and agree with each other and the other parties
\nhereto as follows: (i) such assigning Lender warrants that it is the legal
\nand beneficial owner of the interest being assigned thereby free and clear of
\nany adverse claim; (ii) except as set forth in clause (i) above, such
\nassigning 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
\nDocuments or any other instrument or document furnished pursuant hereto or
\nthereto or the financial condition of any Credit Party or any of their
\nrespective Affiliates or the performance or observance by any Credit Party or
\nany of its <\/p>\n
84<\/p>\n
obligations under this Credit Agreement, any of the other Credit Documents or
\nany other instrument or document furnished pursuant hereto or thereto; (iii)
\nsuch assignee represents and warrants that it is legally authorized to enter
\ninto such assignment agreement; (iv) such assignee confirms that it has
\nreceived a copy of this Credit Agreement, the other Credit Documents and such
\nother documents and information as it has deemed appropriate to make its own
\ncredit analysis and decision to enter into such assignment agreement; (v)
\nsuch assignee will independently and without reliance upon the Administrative
\nAgent, such assigning Lender or any other Lender, and based on such documents
\nand information as it shall deem appropriate at the time, continue to make
\nits own credit decisions in taking or not taking action under this Credit
\nAgreement and the other Credit Documents; (vi) such assignee appoints and
\nauthorizes the Administrative Agent to take such action on its behalf and to
\nexercise such powers under this Credit Agreement or any other Credit Document
\nas are delegated to the Administrative Agent by the terms hereof or thereof,
\ntogether with such powers as are reasonably incidental thereto; and (vii)
\nsuch assignee agrees that it will perform in accordance with their terms all
\nthe 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
\nmaintain at one of its offices in Charlotte, North Carolina a copy of each
\nLender assignment agreement delivered to it in accordance with the terms of
\nsubsection (b) above and a register for the recordation of the identity of
\nthe principal amount, type and Interest Period of each Loan outstanding
\nhereunder, the names, addresses and the Commitments of the Lenders pursuant
\nto the terms hereof from time to time (the “Register”). The Administrative
\nAgent will make reasonable efforts to maintain the accuracy of the Register
\nand to promptly update the Register from time to time, as necessary. The
\nentries in the Register shall be conclusive in the absence of manifest error
\nand the Borrower, the Administrative Agent and the Lenders may treat each
\nPerson whose name is recorded in the Register pursuant to the terms hereof as
\na Lender hereunder for all purposes of this Credit Agreement. The Register
\nshall be available for inspection by the Borrower and each Lender, at any
\nreasonable time and from time to time upon reasonable prior notice.<\/p>\n
(d) Participations. Each Lender may sell, transfer, grant or assign
\nparticipations in all or a portion of such Lender’s rights, obligations or
\nrights and obligations hereunder (including all or a portion of its
\nCommitments or its Loans); provided that (i) such selling Lender shall remain
\na “Lender” for all purposes under this Credit Agreement (such selling
\nLender’s obligations under the Credit Documents remaining unchanged) and the
\nparticipant shall not constitute a Lender hereunder, (ii) no such participant
\nshall have, or be granted, rights to approve any amendment or waiver relating
\nto this Credit Agreement or the other Credit Documents except to the extent
\nany such amendment or waiver would (A) reduce the principal of or rate of
\ninterest on or Fees in respect of any Loans in which the participant is
\nparticipating, (B) postpone the date fixed for any payment of principal
\n(including extension of the Termination Date or the date of any mandatory
\nprepayment), interest or Fees in which the participant is participating, (C)
\nexcept as expressly provided in the Credit <\/p>\n
85<\/p>\n
Documents, release any Guarantor from its guaranty obligations hereunder, or
\n(D) except as the result of or in connection with a disposition permitted
\nunder Section 8.4(b), release all or substantially all of the collateral, and
\n(iii) sub-participations by the participant (except to an affiliate, parent
\ncompany or affiliate of a parent company of the participant) shall be
\nprohibited. In the case of any such participation, the participant shall not
\nhave any rights under this Credit Agreement or the other Credit Documents
\n(the participant’s rights against the selling Lender in respect of such
\nparticipation to be those set forth in the participation agreement with such
\nLender creating such participation) and all amounts payable by the Borrower
\nhereunder shall be determined as if such Lender had not sold such
\nparticipation, provided, however, that such participant shall be entitled to
\nreceive additional amounts under Sections 3.6, 3.9, 3.10, 3.11 and 11.2 on
\nthe same basis as if it were a Lender.<\/p>\n
11.4 No Waiver; Remedies Cumulative.<\/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
\nCredit Document and no course of dealing between the Administrative Agent or
\nany Lender and any of the Credit Parties shall operate as a waiver thereof;
\nnor shall any single or partial exercise of any right, power or privilege
\nhereunder or under any other Credit Document preclude any other or further
\nexercise thereof or the exercise of any other right, power or privilege
\nhereunder or thereunder. The rights and remedies provided herein are
\ncumulative and not exclusive of any rights or remedies which the
\nAdministrative Agent or any Lender would otherwise have. No notice to or
\ndemand on any Credit Party in any case shall entitle the Borrower or any
\nother Credit Party to any other or further notice or demand in similar or
\nother 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
11.5 Payment of Expenses, etc.<\/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
\nAgreement and the other Credit Documents and the documents and instruments
\nreferred to therein (including, without limitation, the reasonable and
\ndocumented fees and expenses of Moore & Van Allen, PLLC, special counsel to
\nthe Administrative Agent) and any amendment, waiver or consent relating
\nhereto and thereto including, but not limited to, any such amendments,
\nwaivers or consents resulting from or related to any work-out, renegotiation
\nor restructure relating to the performance by the Credit Parties under this
\nCredit Agreement and (B) of the Administrative Agent and the Lenders in
\nconnection with enforcement of the Credit Documents and the documents and
\ninstruments referred to therein (including, without limitation, in connection
\nwith any such enforcement, the reasonable and documented fees and
\ndisbursements of counsel for the Administrative Agent and each of the Lenders
\nand documented); (ii) pay and hold each of the Lenders harmless from and
\nagainst any and all present and future stamp and other similar taxes with <\/p>\n
86<\/p>\n
respect to the foregoing matters and save each of the Lenders harmless from
\nand against any and all liabilities with respect to or resulting from any
\ndelay or omission (other than to the extent attributable to such Lender) to
\npay such taxes; and (iii) indemnify each Lender, its officers, directors,
\nemployees, representatives and Administrative Agents from and hold each of
\nthem harmless against any and all losses, liabilities, claims, damages or
\nexpenses incurred by any of them as a result of, or arising out of, or in any
\nway related to, or by reason of (A) any investigation, litigation or other
\nproceeding (whether or not any Lender is a party thereto) related to the
\nentering into and\/or performance of any Credit Document or the use of
\nproceeds of any Loans (including other extensions of credit) hereunder or the
\nconsummation 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
\nof or relate to disputes solely between or among the Administrative Agent
\nand\/or the Lenders or (B) the presence or Release of any Materials of
\nEnvironmental Concern at, under or from any Property owned, operated or
\nleased by the Borrower or any of its Subsidiaries, or the failure by the
\nBorrower or any of its Subsidiaries to comply with any Environmental Law (but
\nexcluding, in the case of either of clause (A) or (B) above, any such losses,
\nliabilities, claims, damages or expenses to the extent incurred by reason of
\ngross negligence or willful misconduct on the part of the Person to be
\nindemnified).<\/p>\n
11.6 Amendments, Waivers and Consents.<\/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
\nin writing entered into by, or approved in writing by, the Required Lenders
\nand the Borrower, provided, however, that:<\/p>\n
(a) without the consent of each Lender affected thereby, neither this
\n Credit Agreement nor any of the other Credit Documents may be amended to<\/p>\n
(i) extend the final maturity of any Loan or extend
\n or waive any principal amortization payment of any Loan, or any
\n portion thereof,<\/p>\n
(ii) reduce the rate or extend the time of payment of
\n interest (other than as a result of waiving the applicability of
\n any increase in interest rates after the occurrence of an Event of
\n Default or on account of a failure to deliver financial statements
\n on a timely basis) thereon or Fees hereunder, <\/p>\n
(iii) reduce or waive the principal amount of any Loan,<\/p>\n
87<\/p>\n
(iv) increase the Commitment of a Lender over the
\n amount thereof in effect (it being understood and agreed that a
\n waiver of any Default or Event of Default or mandatory reduction
\n in the Commitments shall not constitute a change in the terms of
\n any Commitment of any Lender), <\/p>\n
(v) except as the result of or in connection with a
\n dissolution, merger or disposition of a Subsidiary permitted
\n under Section 8.4, release the Borrower or substantially all of
\n the other Credit Parties from its or their obligations under the
\n Credit Documents, <\/p>\n
(vi) except as the result of or in connection with a
\n disposition permitted under Section 8.4(b), release all or
\n substantially all of the collateral,<\/p>\n
(vii) except as a result of or in connection with a
\n dissolution, merger or disposition of a Subsidiary permitted
\n under Section 8.4, release the Borrower or all or substantially
\n all of the Guarantors from their obligations under the Credit
\n Agreement,<\/p>\n
(viii) amend, modify or waive any provision of this
\n Section 11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12,
\n 3.13, 3.14, 9.1(a), 11.2, 11.3, 11.5 or 11.9,<\/p>\n
(ix) reduce any percentage specified in, or otherwise
\n modify, the definition of Required Lenders, or <\/p>\n
(x) consent to the assignment or transfer by the
\n Borrower (or another Credit Party) of any of its rights and
\n obligations under (or in respect of) the Credit Documents except
\n as permitted thereby;<\/p>\n
(b) without the consent of the Agent, no provision of Section 10 may be
\n amended.<\/p>\n
Notwithstanding the fact that the consent of all the Lenders is required
\nin certain circumstances as set forth above, (x) each Lender is entitled to
\nvote as such Lender sees fit on any bankruptcy reorganization plan that
\naffects the Loans, and each Lender acknowledges that the provisions of
\nSection 1126(c) of the Bankruptcy Code supersedes the unanimous consent
\nprovisions set forth herein and (y) the Required Lenders may consent to allow
\na Credit Party to use cash collateral in the context of a bankruptcy or
\ninsolvency proceeding.<\/p>\n
11.7 Counterparts.<\/p>\n
88<\/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
\nwhich shall constitute one and the same instrument. It shall not be
\nnecessary in making proof of this Credit Agreement to produce or account for
\nmore than one such counterpart.<\/p>\n
11.8 Headings.<\/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
\nof any provision of this Credit Agreement.<\/p>\n
11.9 Survival.<\/p>\n
All indemnities set forth herein, including, without limitation, in
\nSection 2.2(i), 3.9, 3.11, 10.7 or 11.5 shall survive the execution and
\ndelivery of this Credit Agreement, the making of the Loans, the repayment of
\nthe Loans and other obligations under the Credit Documents and the
\ntermination of the Commitments hereunder, and all representations and
\nwarranties made by the Credit Parties herein shall survive delivery of the
\nNotes and the making of the Loans hereunder.<\/p>\n
11.10 Governing Law; Submission to Jurisdiction; Venue.<\/p>\n
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
\nRIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
\nGOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
\nSTATE OF NORTH CAROLINA. Any legal action or proceeding with respect to this
\nCredit Agreement or any other Credit Document may be brought in the courts of
\nthe State of North Carolina in Mecklenburg County, or of the United States
\nfor the Western District of North Carolina, and, by execution and delivery of
\nthis Credit Agreement, each of the Credit Parties hereby irrevocably accepts
\nfor itself and in respect of its property, generally and unconditionally, the
\nnonexclusive jurisdiction of such courts. Each of the Credit Parties further
\nirrevocably consents to the service of process out of any of the
\naforementioned courts in any such action or proceeding by the mailing of
\ncopies thereof by registered or certified mail, postage prepaid, to it at the
\naddress set out for notices pursuant to Section 11.1, such service to become
\neffective three (3) days after such mailing. Nothing herein shall affect the
\nright of the Administrative Agent to serve process in any other manner
\npermitted by law or to commence legal proceedings or to otherwise proceed
\nagainst any Credit Party in any other jurisdiction.<\/p>\n
(b) Each of the Credit Parties hereby irrevocably waives any
\nobjection which it may now or hereafter have to the laying of venue of any of
\nthe aforesaid actions or proceedings arising out of or in connection with
\nthis Credit Agreement or any other Credit Document brought in the courts
\nreferred to in subsection (a) hereof and hereby further irrevocably waives
\nand agrees not to plead or claim in any <\/p>\n
89<\/p>\n
such court that any such action or proceeding brought in any such court has
\nbeen brought in an inconvenient forum.<\/p>\n
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE
\nAGENT, THE LENDERS, THE BORROWER AND THE CREDIT PARTIES HEREBY IRREVOCABLY
\nWAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
\nARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT
\nDOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
11.11 Severability.<\/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
\nand the remaining provisions shall remain in full force and effect and shall
\nbe construed without giving effect to the illegal, invalid or unenforceable
\nprovisions.<\/p>\n
11.12 Entirety.<\/p>\n
This Credit Agreement together with the other Credit Documents represent
\nthe entire agreement of the parties hereto and thereto, and supersede all
\nprior agreements and understandings, oral or written, if any, including any
\ncommitment letters or correspondence relating to the Credit Documents or the
\ntransactions contemplated herein and therein.<\/p>\n
11.13 Binding Effect; Termination.<\/p>\n
(a) This Credit Agreement shall become effective at such time on or
\nafter the Closing Date when it shall have been executed by the Borrower, the
\nGuarantors and the Administrative Agent, and the Administrative Agent shall
\nhave received copies hereof (telefaxed or otherwise) which, when taken
\ntogether, bear the signatures of each Lender, and thereafter this Credit
\nAgreement shall be binding upon and inure to the benefit of the Borrower, the
\nGuarantors, the Administrative Agent and each Lender and their respective
\nsuccessors and assigns.<\/p>\n
(b) The term of this Credit Agreement shall be until no Loans or any
\nother amounts payable hereunder or under any of the other Credit Documents
\nshall remain outstanding and until all of the Commitments hereunder shall
\nhave expired or been terminated.<\/p>\n
11.14 Confidentiality.<\/p>\n
90<\/p>\n
The Administrative Agent and the Lenders agree to keep confidential (and
\nto cause their respective affiliates, officers, directors, employees, agents
\nand representatives to keep confidential) all information, materials and
\ndocuments furnished to the Administrative Agent or any such Lender by or on
\nbehalf of any Credit Party (whether before or after the Closing Date) which
\nrelates to the Borrower or any of its Subsidiaries (the “Information”).
\nNotwithstanding the foregoing, the Administrative Agent and each Lender shall
\nbe permitted to disclose Information (i) to its affiliates, officers,
\ndirectors, employees, Administrative Agents and representatives in connection
\nwith its participation in any of the transactions evidenced by this Credit
\nAgreement or any other Credit Documents or the administration of this Credit
\nAgreement or any other Credit Documents; (ii) to the extent required by
\napplicable laws and regulations or by any subpoena or similar legal process,
\nor requested by any Governmental Authority; (iii) to the extent such
\nInformation (A) becomes publicly available other than as a result of a breach
\nof this Credit Agreement or any agreement entered into pursuant to clause
\n(iv) below, (B) becomes available to the Administrative Agent or such Lender
\non a non-confidential basis from a source other than a Credit Party or (C)
\nwas available to the Administrative Agent or such Lender on a
\nnon-confidential basis prior to its disclosure to the Administrative Agent or
\nsuch Lender by a Credit Party; (iv) to any assignee or participant (or
\nprospective assignee or participant) so long as such assignee or participant
\n(or prospective assignee or participant) first specifically agrees in a
\nwriting furnished to and for the benefit of the Credit Parties to be bound by
\nthe terms of this Section 11.14; or (v) to the extent that the Borrower shall
\nhave consented in writing to such disclosure. Nothing set forth in this
\nSection 11.14 shall obligate the Administrative Agent or any Lender to return
\nany materials furnished by the Credit Parties.<\/p>\n
11.15 Source of Funds.<\/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
\n account maintained by such Lender in which any employee benefit plan (or its
\n related trust) has any interest;<\/p>\n
(b) to the extent that any part of such funds constitutes assets
\n allocated to any separate account maintained by such Lender, such Lender has
\n disclosed to the Borrower the name of each employee benefit plan whose assets
\n in such account exceed 10% of the total assets of such account as of the
\n date of such purchase (and, for purposes of this subsection (b), all employee
\n benefit plans maintained by the same employer or employee organization are
\n deemed to be a single plan);<\/p>\n
91<\/p>\n
(c) to the extent that any part of such funds constitutes
\n assets of an insurance company’s general account, such insurance company has
\n complied with all of the requirements of the regulations issued under
\n Section 401(c)(1)(A) of ERISA; or<\/p>\n
(d) such funds constitute assets of one or more specific
\n benefit plans which such Lender has identified in writing to the Borrower.<\/p>\n
As used in this Section 11.15, the terms “employee benefit plan” and
\n“separate account” shall have the respective meanings assigned to such terms
\nin Section 3 of ERISA.<\/p>\n
11.16 Conflict.<\/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,
\non the other hand, this Credit Agreement shall control.<\/p>\n
[Signature Page to Follow]<\/p>\n
92<\/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 a Delaware corporation<\/p>\n
By:
\n —————————–
\n Name:
\n Title:<\/p>\n
GUARANTORS: ,
\n ———————<\/p>\n
a corporation
\n ——————-<\/p>\n
By:
\n Name:
\n Title: <\/p>\n
LENDERS: NATIONSBANK, N.A.,
\n individually in its capacity as a
\n Lender and in its capacity as Administrative Agent<\/p>\n
By:
\n —————————
\n Name:
\n Title: <\/p>\n
Schedule 2.1(a)
\n Schedule of Lenders and Commitments<\/p>\n
\n\n Lender Revolving Revolving LOC
\n —— Committed Amount Commitment Percentage Committed Amount
\n —————- ——————— —————-
\n
\n NationsBank, N.A. $25,000,000 33.33333%<\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Schedule 2.1(b)(i)<\/p>\n
FORM OF NOTICE OF BORROWING<\/p>\n
NationsBank, N.A. NationsBank, N.A.,
\n as Administrative Agent for the Lenders as Swingline Lender
\n101 N. Tryon Street 101 N. Tryon Street
\nIndependence Center, 15th Floor Independence Center, 15th Floor
\nNC1-001-15-04 NC1-001-15-04
\nCharlotte, North Carolina 28255 Charlotte, North Carolina 28255
\nAttention: Agency Services Attention: Agency Services<\/p>\n
RE: Credit Agreement dated as of June __, 1998 (as amended
\n and modified, the “Credit Agreement”) among NAVIGANT INTERNATIONAL,
\n INC., the Guarantors and Lenders identified therein and
\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 undersigned hereby gives notice of a request for Revolving Loan pursuant
\nto Section 2.1(b) of the Credit Agreement or of a request for Swingline Loan
\npursuant to Section 2.2(b) of the Credit Agreement as follows:<\/p>\n
Revolving Loan
\n Swingline Loan<\/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
\nundersigned Borrower hereby certifies that:<\/p>\n
2<\/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
\nas of the date of this request, and will be true and correct after giving
\neffect to the requested Extension of Credit (except for those which expressly
\nrelated to an 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
\nunder applicable bankruptcy, insolvency or other similar law in effect, or
\nany case, proceeding or other action for the appointment of a receiver,
\nliquidator, assignee, custodian, trustee, sequestrator (or similar official)
\nas to any Credit Party or as to any substantial party of the property of any
\nCredit Party or for the winding up or liquidation of its affairs, and remains
\nundismissed, undischarged or unbonded.<\/p>\n
(d) No circumstances, events or conditions have occurred since the date
\nof the audited financial statements referenced in Section 6.1 of the Credit
\nAgreement which would have a Material Adverse Effect.<\/p>\n
(e) All conditions set forth in Section 2.1 as to the making of Revolving
\nLoans or in Section 2.2 as to the making of Swingline Loans, as appropriate,
\nhave been satisfied.<\/p>\n
Very truly yours,<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:
\n Name:
\n Title: <\/p>\n
3<\/p>\n
Schedule 2.1(e)<\/p>\n
FORM OF NOTE<\/p>\n
June __, 1998<\/p>\n
FOR VALUE RECEIVED, the undersigned Borrower, hereby promises to pay to
\nthe order of ______________________, and its successors and assigns, on or
\nbefore the Termination Date to the office of the Administrative Agent in
\nimmediately available funds as provided in the Credit Agreement,<\/p>\n
(i) in the case of Loans, such Lender’s Revolving Committed Amount
\nor, if less, the aggregate unpaid principal amount of all Revolving Loans
\nowing to such Lender;<\/p>\n
(ii) in the case of Swingline Loans, if such lender is the Swingline
\n Lender, the aggregate Swingline Committed Amount or, if less, the aggregate
\n unpaid principal amount of all Swingline Loans owing to such Swingline
\n Lender; and<\/p>\n
together 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 Credit Agreement dated as
\nof June __, 1998 (as amended and modified, the “Credit Agreement”) among
\nNAVIGANT INTERNATIONAL, INC., a Delaware corporation, the Guarantors and
\nLenders identified therein and NationsBank, N.A., as Administrative Agent.
\nTerms used but not otherwise defined herein shall have the meanings provided
\nin 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
\nthat any failure to endorse such information shall not affect the obligation
\nof the undersigned 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
\nCredit Agreement without presentment, demand, protest or notice of any kind,
\nall of which are waived by the undersigned Borrower. In the event payment of
\namounts evidenced by this Note is not made at any stated or accelerated
\nmaturity, the undersigned Borrower agrees to pay, in addition to principal
\nand interest, all costs of collection, including 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
\naccordance with, the law of the State of North Carolina.<\/p>\n
4<\/p>\n
In WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
\nduly executed as of the date first above written.<\/p>\n
NAVIGANT INTERNATIONAL, INC.,
\n a Delaware corporation<\/p>\n
By:
\n Name:
\n Title: <\/p>\n
5<\/p>\n
Schedule 2.2(b)-1<\/p>\n
Existing Letters of Credit <\/p>\n
6<\/p>\n
Schedule 2.2(b)-2<\/p>\n
Form of Notice of Request for Letter of Credit<\/p>\n
[Date]<\/p>\n
NationsBank, N.A. NationsBank, N.A.
\n as Issuing Lender under the as Administrative Agent under the
\n Credit Agreement referred to below Credit Agreement referred to below
\n101 N. Tryon Street 101 N. Tryon Street
\nIndependence Center, 15th Floor Independence Center, 15th Floor
\nNC1-001-15-04 NC1-001-15-04
\nCharlotte, North Carolina 28255 Charlotte, North Carolina 28255<\/p>\n
Attention: Agency Services<\/p>\n
Re: Credit Agreement dated as of June __, 1998 (as amended
\n and modified, the “Credit Agreement”) among Navigant International,
\n Inc., the Guarantors and Lenders identified therein and
\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 undersigned, pursuant to Section 2.2(b) of the Credit Agreement,
\nhereby requests that the following Letters of Credit be made on [date] as
\nfollows:<\/p>\n
(1) Account Party:<\/p>\n
(2) For use by:<\/p>\n
(3) Beneficiary:<\/p>\n
(4) Face Amount of Letter of Credit:<\/p>\n
(5) Date of Issuance:<\/p>\n
Delivery of Letter of Credit should be made as follows:<\/p>\n
7<\/p>\n
In accordance with the requirements of Section 5.2 of the Credit
\nAgreement, the undersigned Borrower hereby certifies that:<\/p>\n
(a) The representations and warranties contained in the Credit
\nAgreement and the other Credit Documents are true and correct in all material
\nrespects as of the date of this request, and will be true and correct after
\ngiving effect to the requested Extension of Credit (except for those which
\nexpressly relate to an earlier date).<\/p>\n
(b) No Default or Event of Default exists, or will exist after
\ngiving effect to the requested Extension of Credit.<\/p>\n
(c) As to any Credit Party, no involuntary action has been commenced
\nunder applicable bankruptcy, insolvency or other similar law in effect, or
\nany case, proceeding or other action for the appointment of a receiver,
\nliquidator, assignee, custodian, trustee, sequestrator (or similar official)
\nas to any Credit Party or as to any substantial part of the property of any
\nCredit Party or for the winding up or liquidation of its affairs, and remains
\nundismissed, undischarged or unbonded.<\/p>\n
(d) No circumstances, events or conditions have occurred since the
\ndate of the audited financial statements referenced in Section 7.1 of the
\nCredit Agreement which could reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n
(e) All conditions set forth in Section 2.2 as to the issuance of a
\nLetter of Credit have been satisfied.<\/p>\n
Very truly yours,<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
8<\/p>\n
Schedule 3.2<\/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: Credit Agreement dated as of June __, 1998 (as amended
\n and modified, the “Credit Agreement”) among NAVIGANT INTERNATIONAL,
\n INC., the Guarantors and Lenders identified therein and
\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 undersigned 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
\nforth below the terms on which such extension or conversion is requested to
\nbe made:<\/p>\n
(A) Date of Extension or Conversion
\n (which is the last day of the
\n applicable Interest Period)
\n ——————————-<\/p>\n
(B) Principal Amount of
\n Extension or Conversion
\n ——————————-<\/p>\n
(C) Interest rate basis
\n ——————————-<\/p>\n
(D) Interest Period and the
\n last day thereof
\n ——————————-<\/p>\n
In accordance with the requirements of Section 5.2 of the Credit
\nAgreement, the undersigned Borrower hereby certifies that:<\/p>\n
9<\/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 for
\n those which expressly relate to an earlier date).<\/p>\n
(b) No Default or Event of Default exists, or will exist after
\n giving effect to the requested Extension of Credit.<\/p>\n
(c) As to any Credit Party, no involuntary action has been
\n commenced under applicable bankruptcy, insolvency or other similar law in
\n effect, or any case, proceeding or other action for the appointment of a
\n receiver, 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
(d) No circumstances, events or conditions have occurred since the
\n date of the audited financial statements referenced in Section 6.1 of the
\n Credit Agreement which would have a Material Adverse Effect.<\/p>\n
Very truly yours,<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:
\n ——————————-
\n Name:
\n Title:<\/p>\n
10<\/p>\n
Schedule 5.1(i)(v)<\/p>\n
Assistant Secretary’s Certificate<\/p>\n
Pursuant to Section 5.1(i)(v) of the Credit Agreement (the “Credit
\nAgreement”), dated as of June __, 1998, among NAVIGANT INTERNATIONAL, INC., a
\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:<\/p>\n
1. Attached hereto as Annex I is a true and complete copy of
\nresolutions duly adopted by the Board of Directors of the Corporation on
\n_______________________, 199_. The attached resolutions have not been
\nrescinded or modified and remain in full force and effect. The attached
\nresolutions are the only corporate proceedings of the Corporation now in
\nforce relating to or affecting the matters referenced to therein.<\/p>\n
2. Attached hereto as Annex II is a true and complete copy of the
\nBy-laws of 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
\nin effect on the date hereof.<\/p>\n
4. The following persons are now duly elected and qualified
\nofficers of the Corporation, holding the offices indicated, and the signature
\nappearing opposite his name below is his true and genuine signature, and such
\nofficer is duly authorized to execute and deliver on behalf of the
\nCorporation, the Credit Agreement, the Notes to be issued pursuant thereto
\nand the other Credit Documents and to act as a Responsible Officer on behalf
\nof the Corporation under the 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: _______________________, 1998<\/p>\n
I, _____________________, ___________________ of
\n_________________________, hereby certify that _____________________, whose
\ngenuine signature appears above, is, and has been at all times since
\n______________________, a duly elected, qualified and acting
\n____________________ of _______________________________________.<\/p>\n
_______________________________ of<\/p>\n
__________________________________<\/p>\n
______________________________, 1998<\/p>\n
12<\/p>\n
Schedule 6.6<\/p>\n
Description of Legal Proceedings<\/p>\n
13<\/p>\n
Schedule 6.8<\/p>\n
Existing Liens<\/p>\n
14<\/p>\n
Schedule 6.14<\/p>\n
Subsidiaries<\/p>\n
15<\/p>\n
Schedule 7.2(b)<\/p>\n
Form of Officer’s Compliance Certificate<\/p>\n
This Certificate is delivered in accordance with the provisions of Section
\n7.2(b) of that Credit Agreement dated as of June __, 1998 (as amended,
\nmodified and supplemented, the “Credit Agreement”) among NAVIGANT
\nINTERNATIONAL, INC., a Delaware corporation, the Guarantors and Lenders
\nidentified therein, and NationsBank, N.A., as Administrative Agent. Terms
\nused but not otherwise defined herein shall have the same meanings provided
\nin the Credit Agreement.<\/p>\n
The undersigned, being a Responsible Officer of NAVIGANT INTERNATIONAL,
\nINC., a Delaware corporation, hereby certifies, in my official capacity and
\nnot in my individual capacity, that to the best of my knowledge and belief:<\/p>\n
(a) the financial statements accompanying this Certificate fairly
\npresent the financial condition of the parties covered by such financial
\nstatements in all material respects;<\/p>\n
(b) during the period the Credit Parties have observed or performed
\nall of their covenants and other agreements in all material respects, and
\nsatisfied in all material respects every material condition, contained in
\nthis Credit Agreement to be observed, performed or satisfied by them;<\/p>\n
(c) the undersigned has no actual knowledge of any Default or Event
\nof Default; and<\/p>\n
(d) detailed calculations demonstrating compliance with the
\nfinancial covenants set out in Section 7.9 of the Credit Agreement
\naccompanying this Certificate.<\/p>\n
This the _______________ day of ________________________, 199_.<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:
\n ———————————-
\n Name:
\n Title:<\/p>\n
16<\/p>\n
Attachment to Officer’s Certificate<\/p>\n
Computation of Financial Covenants<\/p>\n
17<\/p>\n
Schedule 7.11-1<\/p>\n
Form of Joinder Agreement<\/p>\n
THIS JOINDER AGREEMENT (the “Agreement”), dated as of ___________________,
\n199_, is by and between _______________________, a __________________ (the
\n“Applicant Guarantor”), and NATIONSBANK, N.A., in its capacity as
\nAdministrative Agent under that certain Credit Agreement dated as of June __,
\n1998 (as amended and modified, the “Credit Agreement”) by and among NAVIGANT
\nINTERNATIONAL, INC., a Delaware corporation, the Guarantors and Lenders
\nidentified therein and NationsBank, N.A., as Administrative Agent. All of
\nthe defined terms in the Credit Agreement are incorporated herein by
\nreference.<\/p>\n
The Applicant Guarantor has indicated its desire to become a Guarantor or
\nis required by the terms of Section 7.11 of the Credit Agreement to become a
\nGuarantor under the Credit Agreement.<\/p>\n
Accordingly, the Applicant Guarantor hereby agrees as follows with the
\nAdministrative Agent for the benefit of the Lenders:<\/p>\n
1. The Applicant Guarantor hereby acknowledges, agrees and confirms
\nthat, by its execution of this Agreement, the Applicant Guarantor will be
\ndeemed to be a party to the Credit Agreement and a “Guarantor” for all
\npurposes of the Credit Agreement and the other Credit Documents, and shall
\nhave all of the obligations of a Guarantor thereunder as if it had executed
\nthe Credit Agreement and the other Credit Documents. The Applicant Guarantor
\nagrees to be bound by all of the terms, provisions and conditions contained
\nin the Credit Documents, including without limitation (i) all of the
\naffirmative and negative covenants set forth in Sections 7 and 8 of the
\nCredit Agreement and (ii) all of the undertakings and waivers set forth in
\nSection 4 of the Credit Agreement. Without limiting the generality of the
\nforegoing terms of this paragraph 1, the Applicant Guarantor hereby (A)
\njointly and severally together with the other Guarantors, guarantees to each
\nLender and the Administrative Agent as provided in Section 4 of the Credit
\nAgreement, the prompt payment and performance of the Guaranteed Obligations
\nin full when due (whether at stated maturity, as a mandatory prepayment, by
\nacceleration, as a mandatory cash collateralization or otherwise) strictly in
\naccordance with the terms thereof, (B) agrees that if any of the Guaranteed
\nObligations are not paid or performed in full when due (whether at stated
\nmaturity, as a mandatory prepayment, by acceleration, as a mandatory cash
\ncollateralization or otherwise), the Applicant Guarantor will, jointly and
\nseverally together with the other Guarantors, promptly pay and perform the
\nsame, without any demand or notice whatsoever, and that in the case of any
\nextension of time of payment or renewal of any of the Guaranteed Obligations,
\nthe same will be promptly paid in full when due (whether at extended
\nmaturity, as a mandatory prepayment, by acceleration, as a mandatory cash
\ncollateralization or otherwise) in accordance with the terms of such
\nextension or renewal, (C) grants to the Administrative Agent a security
\ninterest in its Collateral as referred in, and pursuant to the terms of, the
\nSecurity Agreement, and (D) pledges and grants a security interest to the
\nAdministrative Agent in <\/p>\n
18<\/p>\n
the Pledged Stock identified in Schedule A attached and the other Collateral
\nas referred in, and pursuant to the terms of, the Pledge Agreement.<\/p>\n
2. The Applicant Guarantor acknowledges and confirms that it has
\nreceived a copy of the Credit Agreement and the Schedules and Exhibits
\nthereto. The information on the Schedules to the Credit Agreement, the
\nSecurity Agreement and the Pledge Agreement are amended to provide the
\ninformation shown on the attached Schedule A.<\/p>\n
3. The Applicant Guarantor hereby waives acceptance by the
\nAdministrative Agent and the Lenders of the guaranty by the Applicant
\nGuarantor under Section 4 of the Credit Agreement upon the execution of this
\nJoinder Agreement by the Applicant Guarantor.<\/p>\n
4. This Agreement may be executed in two or more counterparts, each
\nof which shall constitute an original but all of which when taken together
\nshall constitute one contract.<\/p>\n
5. This Agreement shall be governed by and construed and
\ninterpreted in accordance with the laws of the State of North Carolina.<\/p>\n
IN WITNESS WHEREOF, the Applicant Guarantor has caused this Joinder
\nAgreement to be duly executed by its authorized officers, and the
\nAdministrative Agent, for the benefit of the Lenders, has caused the same to
\nbe accepted by its authorized officer, as of the day and year first above
\nwritten.<\/p>\n
APPLICANT GUARANTOR<\/p>\n
By:
\n —————————–
\n Name:
\n Title:<\/p>\n
Address for Notices:<\/p>\n
Attn:
\n Telephone:
\n Telecopy:<\/p>\n
Acknowledged and accepted:<\/p>\n
NATIONSBANK, N.A., as Administrative Agent<\/p>\n
By:
\n —————————–
\n Name:<\/p>\n
19<\/p>\n
Title:<\/p>\n
20<\/p>\n
Schedule A
\n to
\n Joinder Agreement<\/p>\n
Schedule 1 to Security Agreement<\/p>\n
\n\n Address for Chief Executive Locations of Record
\n Applicant Guarantor Notices Office Collateral Owner
\n ——————- ——- —— ———- —–
\n <\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Schedule 1 to Pledge Agreement<\/p>\n
\n\n Pledgor\/Applicant Guarantor Issuer Class Cert.No. No.Shares Percent
\n ————————— —— —– ——– ——— ——-
\n <\/p>\n<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,8307],"corporate_contracts_industries":[9415,9525],"corporate_contracts_types":[9561,9560],"class_list":["post-40978","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-navigant-international-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-transportation__services","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40978","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40978"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40978"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40978"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40978"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}