BRIDGE CREDIT AGREEMENT
Dated as of April 26, 1999
among
NAVIGANT INTERNATIONAL, INC.,
as Borrower,
Certain Subsidiaries and Affiliates,
as Guarantors,
THE LENDERS NAMED HEREIN
AND
NATIONSBANK, N.A.,
as Administrative Agent, Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
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Page
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SECTION 1 DEFINITIONS..................................................... 1
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1.1 Definitions.......................................................... 1
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1.2 Computation of Time Periods.......................................... 6
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1.3 Accounting Terms..................................................... 7
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SECTION 2 CREDIT FACILITIES............................................... 7
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2.1 Revolving Loans...................................................... 7
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SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES.................. 9
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3.1 Default Rate......................................................... 9
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3.2 Extension and Conversion............................................. 9
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3.3 Prepayments......................................................... 10
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3.4 Termination and Reduction of Commitments............................ 10
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3.5 Fees................................................................ 10
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3.6 Capital Adequacy.................................................... 11
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3.7 Inability To Determine Interest Rate................................ 11
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3.8 Illegality.......................................................... 11
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3.9 Requirements of Law................................................. 12
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3.10 Taxes.............................................................. 13
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3.11 Indemnity.......................................................... 14
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3.12 Pro Rata Treatment................................................. 15
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3.13 Sharing of Payments................................................ 15
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3.14 Payments, Computations, Etc........................................ 16
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3.15 Evidence of Debt................................................... 17
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SECTION 4 GUARANTY....................................................... 18
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4.1 The Guarantee....................................................... 18
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4.2 Obligations Unconditional........................................... 18
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4.3 Reinstatement....................................................... 20
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4.4 Certain Additional Waivers.......................................... 20
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4.5 Remedies............................................................ 20
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4.6 Rights of Contribution.............................................. 20
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4.7 Continuing Guarantee................................................ 21
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SECTION 5 CONDITIONS..................................................... 21
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5.1 Conditions to Closing............................................... 21
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5.2 Conditions to All Extensions of Credit.............................. 22
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SECTION 6 REPRESENTATIONS AND WARRANTIES; COVENANTS...................... 23
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6.1 Incorporation....................................................... 23
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6.2 Additional Covenants................................................ 24
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(b) Prepayments of Indebtedness, etc.................................... 24
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SECTION 7 EVENTS OF DEFAULT.............................................. 24
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7.1 Events of Default................................................... 25
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7.2 Acceleration; Remedies.............................................. 27
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SECTION 8 AGENCY PROVISIONS.............................................. 27
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8.1 Appointment......................................................... 27
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8.2 Delegation of Duties................................................ 28
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8.3 Exculpatory Provisions.............................................. 28
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8.4 Reliance on Communications.......................................... 29
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8.5 Notice of Default................................................... 29
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8.6 Non-Reliance on Administrative Agent and Other Lenders.............. 29
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8.7 Indemnification..................................................... 30
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8.8 Administrative Agent in its Individual Capacity..................... 30
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8.9 Successor Administrative Agent...................................... 30
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8.10 Intercreditor Agreement............................................ 31
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SECTION 9 MISCELLANEOUS.................................................. 31
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9.1 Notices............................................................. 31
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9.2 Right of Set-Off.................................................... 32
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9.3 Benefit of Agreement................................................ 33
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9.4 No Waiver; Remedies Cumulative...................................... 35
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9.5 Payment of Expenses, etc............................................ 35
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9.6 Amendments, Waivers and Consents.................................... 36
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9.7 Counterparts........................................................ 37
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9.8 Headings............................................................ 37
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9.9 Survival............................................................ 37
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9.10 Governing Law; Submission to Jurisdiction; Venue................... 37
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9.11 Severability....................................................... 38
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9.12 Entirety........................................................... 38
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9.13 Binding Effect; Termination........................................ 38
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9.14 Confidentiality.................................................... 38
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9.15 Source of Funds.................................................... 39
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9.16 Conflict........................................................... 39
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<PAGE>
SCHEDULES
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(f)(v) Form of Officer's Certificate
Schedule 8.10 Form of Intercreditor Agreement
Schedule 9.1 Lenders and Addresses
Schedule 9.3(b) Form of Assignment and Acceptance
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BRIDGE CREDIT AGREEMENT
THIS BRIDGE CREDIT AGREEMENT, dated as of April 26, 1999 (the "Credit
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Agreement"), is by and among NAVIGANT INTERNATIONAL, INC., a Delaware
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corporation (the "Borrower"), the subsidiaries and affiliates of the Borrower
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identified on the signature pages hereto and such other subsidiaries and
affiliates of the Borrower as may from time to time become Guarantors hereunder
in accordance with the provisions hereof (the "Guarantors"), the lenders named
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herein and such other lenders as may become a party hereto (the "Lenders"), and
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NATIONSBANK, N.A., as Administrative Agent (in such capacity, the
"Administrative Agent").
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W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide up to a $15
million bridge credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested bridge credit
facility available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SECTION 1
DEFINITIONS
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2.
A. 1.1 DEFINITIONS.
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Terms used in this Credit Agreement (including the Incorporated
Representations and the Incorporated Covenants) but not otherwise defined in
this Credit Agreement shall have the definitions assigned to such terms in the
Revolving Credit Agreement as in effect on the Closing Date. As used in this
Credit Agreement (including the Incorporated Representations, the Incorporated
Covenants and any definitions incorporated herein from the Revolving Credit
Agreement pursuant to the foregoing sentence), the following terms shall have
the meanings specified below unless the context otherwise requires:
"Administrative Agent" shall have the meaning assigned to such term in
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the heading hereof, together with any successors or assigns.
"Aggregate Revolving Committed Amount" means the aggregate amount of
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Revolving Commitments in effect from time to time under the Credit
Agreement, being initially FIFTEEN MILLION DOLLARS ($15,000,000).
<PAGE>
"Applicable Percentage" means for any day, the rate per annum set
---------------------
forth below opposite the applicable Consolidated Leverage Ratio then in
effect, it being understood that the Applicable Percentage for (i) Base
Rate Loans shall be the percentage set forth under the column "Base Rate
Margin", (ii) Eurodollar Loans shall be the percentage set forth under the
column "Eurodollar Margin", and (iii) the Commitment Fee shall be the
percentage set forth under the column "Commitment Fee":
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Consolidated
Pricing Leverage Base Rate Eurodollar Commitment
Level Ratio Margin Margin Fee
----- ----- ------ ------ ---
<S> <C> <C> <C> <C>
I *1.5 0.25% 1.50% 0.300%
II **1.5 but *2.0 0.50% 1.75% 0.375%
III **2.0 but *2.5 0.75% 2.00% 0.425%
IV **2.5 1.25% 2.50% 0.500%
</TABLE>
* Less than
** Greater than or equal to
The Applicable Percentage shall be determined and adjusted quarterly on the
date (each a "Rate Determination Date") five (5) Business Days after the
-----------------------
date by which the annual and quarterly compliance certificates and related
financial statements and information are required in accordance with the
provisions of Sections 7.1(a) and (b) and Section 7.2(b), of the Incorporated
Covenants, as applicable; provided that in the event an annual or quarterly
--------
compliance certificate and related financial statements and information are not
delivered timely to the Agency Services Address by the date required by Sections
7.1(a) and (b) and Section 7.2(b) of the Incorporated Covenants, as applicable,
the Applicable Percentages shall be based on Pricing Level IV until such time as
an appropriate compliance certificate and related financial statements and
information are delivered, whereupon the applicable Pricing Level shall be
adjusted based on the information contained in such compliance certificate and
related financial statements and information.
Each Applicable Percentage shall be effective from a Rate Determination Date
until the next such Rate Determination Date. The Administrative Agent shall
determine the appropriate Applicable Percentages in the pricing matrix promptly
upon receipt of the quarterly or annual compliance certificate and related
financial information and shall promptly notify the Borrower and the Lenders of
any change thereof. Such determinations by the Administrative Agent shall be
conclusive absent manifest error. Adjustments in the Applicable Percentages
shall be effective as to existing Extensions of Credit as well as new Extensions
of Credit made thereafter.
"Borrower" means Navigant International, Inc., a Delaware corporation,
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as referenced in the opening paragraph, its successors and permitted assigns.
"Closing Date" means the date hereof.
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"Commitment" means the Revolving Commitment.
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"Commitment Fee" shall have the meaning given such term in Section 3.5
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"Commitment Percentage" means the Revolving Commitment Percentage.
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2
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"Commitment Period" means the period from and including the Closing
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Date to but not including the earlier of (i) the Termination Date, or (ii)
the date on which the Commitments terminate in accordance with the
provisions of this Credit Agreement.
"Consolidated Group" means the Borrower and its consolidated
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subsidiaries, as determined in accordance with GAAP.
"Credit Documents" means a collective reference to this Credit
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Agreement, the Notes, the Pledge Agreement, the Security Agreement, the
Intercreditor Agreement, each Joinder Agreement, and all other related
agreements and documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
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"Debt Transaction" means, with respect to any member of the
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Consolidated Group, any sale, issuance or placement of Funded Debt, whether
or not evidenced by promissory note or other written evidence of
indebtedness, except for Funded Debt permitted to be incurred pursuant to
Section 8.1 of the Incorporated Covenants (other than Subordinated Debt
permitted to be incurred pursuant to Section 8.1(f) of the Incorporated
Covenants).
"Equity Transaction" means, with respect to any member of the
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Consolidated Group, any issuance or sale of shares of its capital stock or
other equity interest, other than an issuance (i) to a member of the
Consolidated Group, (ii) in connection with a conversion of debt securities
to equity or (iii) in connection with exercise by a present or former
employee, officer or director under a stock incentive plan, stock option
plan or other equity-based compensation plan or arrangement.
"Event of Default" means such term as defined in Section 7.1.
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"Excess Funding Guarantor" shall have the meaning given such term in
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Section 4.6.
"Excess Payment" shall have the meaning given such term in Section
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4.6.
"Extension of Credit" means, as to any Lender, the making of, or
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participation in, a Loan by such Lender (including extensions and
conversions thereof).
"Fees" means all fees payable pursuant to Section 3.5.
----
"Funded Debt" means, with respect to any Person, without duplication,
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(i) all Indebtedness of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (iii)
all purchase money Indebtedness (including for purposes hereof,
indebtedness and obligations described in clauses (iii) and (iv) of the
definition of "Indebtedness") of such Person, including without limitation
the principal portion of all obligations of such Person under Capital
Leases, (iv) all Support Obligations of such Person with respect to Funded
Indebtedness of another Person, (v) the maximum available amount of all
standby letters of credit or acceptances issued or created for the account
of such Person, (vi) all Funded Debt of another Person secured by a Lien on
any Property of such Person, whether or not such Funded Indebtedness has
been assumed, provided that for purposes hereof the amount of such Funded
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Debt shall be limited to the greater of (A) the
3
<PAGE>
amount of such Funded Debt as to which there is recourse to such Person and
(B) the fair market value of the property which is subject to the Lien,
(vii) the outstanding attributed principal amount under any Securitization
Transaction, and (viii) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product to which such Person is a
party, where such transaction is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease in accordance with
GAAP. The Funded Debt of any Person shall include the Funded Debt of any
partnership or joint venture in which such Person is a general partner or
joint venturer, but only to the extent to which there is recourse to such
Person for the payment of such Funded Debt.
"Guarantor" means each of those Persons identified as a "Guarantor" on
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the signature pages hereto, and each other Person which may hereafter
become a Guarantor by execution of a Joinder Agreement, together with their
successors and permitted assigns.
"Guaranteed Obligations" means, as to each Guarantor, without
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duplication, (i) all obligations of the Borrower (including interest
accruing after a Bankruptcy Event, regardless of whether such interest is
allowed as a claim under the Bankruptcy Code) to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or the other Credit Documents, and (ii) all liabilities and
obligations, whenever arising, owing from the Borrower to any Lender, or
any Affiliate of a Lender, arising under any Hedging Agreement relating to
Obligations hereunder.
"Incorporated Covenants" shall have the meaning assigned to such terms
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in Section 6.1.
"Incorporated Representations" shall have the meaning assigned to such
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terms in Section 6.1.
"Intercreditor Agreement" means that certain Intercreditor Agreement
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dated as of the date hereof by and among NationsBank, N.A., as
Administrative Agent under the Revolving Credit Agreement, NationsBank,
N.A., as Administrative Agent under this Credit Agreement, and the Credit
Parties, as amended or modified from time to time, in substantially the
form of Schedule 8.10 hereto.
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"Interest Payment Date" means (i) as to any Base Rate Loan, the last
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day of each March, June, September and December, the date of repayment of
principal of such Loan and the Termination Date and (ii) as to any
Eurodollar Loan, the last day of each Interest Period for such Loan, the
date of repayment of principal of such Loan and the Termination Date, and
in addition where the applicable Interest Period is more than three months,
then also on the date three months from the beginning of the Interest
Period, and each three months thereafter. If an Interest Payment Date
falls on a date which is not a Business Day, such Interest Payment Date
shall be deemed to be the next succeeding Business Day.
"Interest Period" means, as to any Eurodollar Loan, a period of one,
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two, three or six month's duration, as the Borrower may elect, commencing
in each case, on the date of the borrowing (including conversions,
extensions and renewals); provided, however, (A) if any Interest Period
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would end on a day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day (except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding
4
<PAGE>
Business Day), (B) no Interest Period shall extend beyond the Termination
Date, and (C) where an Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last day
of such calendar month.
"Joinder Agreement" means a Joinder Agreement substantially in the
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form of Schedule 7.11-1 to the Revolving Credit Agreement but relating to
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this Credit Agreement, executed and delivered by an Additional Credit Party
in accordance with the provisions of Section 6.2 hereof.
"Lenders" means each of the Persons identified as a "Lender" on the
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signature pages hereto, and their successors and assigns.
"Loan" or "Loans" means the Revolving Loans (and any Base Rate Loans
---- -----
or Eurodollar Loans comprising such Revolving Loans).
"Net Proceeds" means gross cash proceeds (including any cash received
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by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received in connection with an
Equity Transaction or Debt Transaction, net of (i) reasonable transaction
costs, including underwriting discounts and commissions, (ii) estimated
taxes payable in connection therewith, and (iii) in the case of a Debt
Transaction, any amounts payable in respect of Funded Debt, including
without limitation principal, interest, premiums and penalties, which is
secured by, or otherwise related to, any property or asset which is the
subject thereof to the extent that such Funded Debt and any payments in
respect thereof are paid with a portion of the proceeds therefrom.
"Non-Excluded Taxes" means such term as is defined in Section 3.10(a).
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"Note" or "Notes" means the promissory notes of the Borrower in favor
---- -----
of each of the Lenders evidencing the Revolving Loans in substantially the
form attached as Schedule 2.1(e), individually or collectively, as
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appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"Notice of Borrowing" means a written notice of borrowing in
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substantially the form of Schedule 2.1(b)(i), as required by Section
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2.1(b)(i).
"Notice of Extension/Conversion" means a written notice of extension
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or conversion in substantially the form of Schedule 3.2, as required by
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Section 3.2.
"Obligations" means the Revolving Loans.
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"Participation Interest" means the purchase by a Lender of a
----------------------
participation in Loans as provided in Section 3.13.
"Pledge Agreement" means the Pledge Agreement dated as of the Closing
----------------
Date given by the Borrower and the other pledgors identified therein to
NationsBank, N.A., as Administrative Agent, to secure the obligations
hereunder, as amended and modified.
"Pro Rata Share" shall have the meaning given such term in Section
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4.6.
5
<PAGE>
"Rate Determination Date" shall have the meaning given such term in
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the definition of "Applicable Percentage".
"Register" shall have the meaning given such term in Section 9.3(c).
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"Required Lenders" means, at any time, two or more Lenders having in
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the aggregate more than fifty percent (50%) of the Commitments, or if the
Commitments have been terminated, two or more Lenders having in the
aggregate more than fifty percent (50%) of the aggregate principal amount
of the Obligations outstanding (taking into account in each case
Participation Interests or obligation to participate therein); provided
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that the Commitments of, and outstanding principal amount of Obligations
(taking into account Participation Interests therein) owing to, a
Defaulting Lender shall be excluded for purposes hereof in making a
determination of Required Lenders.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment of such Lender to make Revolving Loans in an aggregate principal
amount at any time outstanding of up to such Lender's Revolving Committed
Amount.
"Revolving Commitment Percentage" means, for each Lender, a fraction
-------------------------------
(expressed as a percentage) the numerator of which is the Revolving
Commitment of such Lender and the denominator of which is the Aggregate
Revolving Committed Amount. The initial Revolving Commitment Percentage of
each Lender is set forth on Schedule 2.1(a).
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"Revolving Committed Amount" means, with respect to each Lender, an
--------------------------
amount equal to such Lender's Revolving Commitment Percentage of the
Aggregate Revolving Committed Amount. The initial Revolving Committed
Amount of each Lender is set forth on Schedule 2.1(a).
"Revolving Credit Agreement" means that certain Credit Agreement dated
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as of June 9, 1998 by and among the Borrower, certain subsidiaries of the
Borrower, as guarantors, the lenders identified therein and NationsBank,
N.A., as Administrative Agent, as amended and modified from time to time.
"Revolving Loans" shall have the meaning assigned to such term in
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Section 2.1(a).
"Security Agreement" means the Security Agreement dated as of the
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Closing Date given by the Borrower and the other grantors identified
therein to NationsBank, N.A., as Administrative Agent, to secure the
obligations hereunder, as amended and modified.
"Termination Date" means August __, 1999 (being the date 120 days from
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the Closing Date).
B. 1.2 COMPUTATION OF TIME PERIODS.
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For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
6
<PAGE>
C. 1.3 ACCOUNTING TERMS.
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Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP. All calculations made for
the purposes of determining compliance with this Credit Agreement shall (except
as otherwise expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 7.1 of the Incorporated Covenants;
provided, however, if (a) the Borrower shall object to determining such
-------- -------
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Administrative Agent or the Required Lenders shall so object in writing
within 30 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by the Borrower to the Lenders as to which no such
objection shall have been made.
It is further acknowledged and agreed that, except as expressly provided
otherwise, for purposes of determining the Applicable Percentage and compliance
with the financial covenants in Section 7.9 of the Incorporated Covenants (and
compliance therewith on a Pro Forma Basis), in the case of acquisitions and
dispositions which have occurred during the applicable period to the extent
permitted hereunder, adjustments shall be made to take into account historical
performance (reflecting adjustments in income for elimination of salaries,
owners' perks and other items reasonably eliminated pursuant to contractual
provisions) relating thereto during such applicable period prior to the date of
such acquisition or disposition, and the effect of any Indebtedness paid with
proceeds from a disposition, provided that coverage items (relating to interest
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and rental expense and other such items, under Consolidated EBITDA, Consolidated
Fixed Charges or the like) shall be determined by annualization from the date of
acquisition of disposition rather than by reference to historical performance
relating prior the date of acquisition or disposition.
3. SECTION 2
CREDIT FACILITIES
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A. 2.1 REVOLVING LOANS.
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(a) Revolving Commitment. During the Commitment Period, subject to the
--------------------
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (the "Revolving Loans") to the Borrower from time to time in the
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amount of such Lender's Revolving Commitment Percentage of such Revolving Loans
for the purposes hereinafter set forth; provided that (i) with regard to the
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Lenders collectively, the aggregate principal amount of Obligations outstanding
at any time shall not exceed the Aggregate Revolving Committed Amount, and (ii)
with regard to each Lender individually, such Lender's Revolving Commitment
Percentage of Obligations outstanding at any time shall not exceed such Lender's
Revolving Committed Amount. Revolving Loans may consist of Base Rate Loans or
7
<PAGE>
Eurodollar Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
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(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
-------------------
borrowing by written notice (or telephone notice promptly confirmed in
writing) to the Administrative Agent not later than 11:00 A.M. (Charlotte,
North Carolina time) on the Business Day prior to the date of the requested
borrowing in the case of Base Rate Loans, and on the third Business Day
prior to the date of the requested borrowing in the case of Eurodollar
Loans. Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a combination thereof,
and if Eurodollar Loans are requested, the Interest Period(s) therefor. If
the Borrower shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month,
or (II) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The Administrative
Agent shall give notice to each Lender promptly upon receipt of each Notice
of Borrowing pursuant to this Section 2.1(b)(i), the contents thereof and
each such Lender's share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
---------------
aggregate principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof in the case of Eurodollar Loans, or $1,000,000
(or the remaining Aggregate Revolving Committed Amount, if less) and
integral multiples of $500,000 in excess thereof in the case of Base Rate
Loans.
(iii) Advances. Each Lender will make its Revolving Commitment
--------
Percentage of each Revolving Loan borrowing available to the Administrative
Agent for the account of the Borrower, or in such other manner as the
Administrative Agent may specify in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable Notice of Borrowing
in Dollars and in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
---------
and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1,
--------
(i) Base Rate Loans. During such periods as Revolving Loans shall be
---------------
comprised in whole or in part of Base Rate Loans, such Base Rate Loans
shall bear interest at a per annum rate equal to the Base Rate plus the
----
Applicable Percentage;
(ii) Eurodollar Loans. During such periods as Revolving Loans shall
----------------
be comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans
shall bear interest at a per annum rate equal to the Eurodollar Rate plus
----
the Applicable Percentage.
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<PAGE>
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans shall be evidenced by a duly
---------------
executed Note in favor of each Lender.
(f) Maximum Number of Eurodollar Loans. The Borrower will be limited to a
----------------------------------
maximum number of five (5) Eurodollar Loans outstanding at any time. For
purposes hereof, Eurodollar Loans with separate or different Interest Periods
will be considered as separate Eurodollar Loans even if their Interest Periods
expire on the same date.
4. SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
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A. 3.1 DEFAULT RATE.
------------
Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then 2% greater than the Base Rate).
B. 3.2 EXTENSION AND CONVERSION.
------------------------
Subject to the terms of Section 5.2, the Borrower shall have the option, on
any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate type;
provided, however, that (i) except as provided in Section 3.8, Eurodollar Loans
-------- -------
may be converted into Base Rate Loans only on the last day of the Interest
Period applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate
Loans may be converted into Eurodollar Loans, only if no Default or Event of
Default is in existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of "Interest Period" set forth in Section 1.1 and shall be in
---------------
such minimum amounts as provided in Section 2.1(b)(ii), and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Administrative Agent prior to 11:00 A.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan, and on the third Business Day prior to,
in the case of the extension of a Eurodollar Loan as, or conversion of a Base
Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the
Loans to be so extended or converted, the types of Loans into which such Loans
are to be converted and, if appropriate, the applicable Interest Periods with
respect thereto. Each request for extension or conversion shall be irrevocable
and shall constitute a representation and warranty by the Borrower of the
matters specified in subsections (a) through (e) of Section 5.2. In the event
the Borrower fails to request extension or conversion of any Eurodollar Loan in
accordance with this
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<PAGE>
Section, or any such conversion or extension is not permitted or required by
this Section, then such Eurodollar Loan shall be automatically converted into a
Base Rate Loan at the end of the Interest Period applicable thereto. The
Administrative Agent shall give each Lender notice as promptly as practicable of
any such proposed extension or conversion affecting any Loan.
C. 3.3 PREPAYMENTS.
-----------
(a) Voluntary Prepayments. Revolving Loans may be repaid in whole or in
---------------------
part without premium or penalty; provided that (i) Eurodollar Loans may be
--------
prepaid only upon three (3) Business Days' prior written notice to the
Administrative Agent and must be accompanied by payment of any amounts owing
under Section 3.11, and (ii) partial prepayments shall be minimum principal
amounts of $5,000,000, in the case of Eurodollar Loans, and $1,000,000, in the
case of Base Rate Loans, and in integral multiples of $1,000,000 in excess
thereof.
(b) Mandatory Prepayments. If at any time the aggregate principal amount
---------------------
of Obligations shall exceed the Aggregate Revolving Committed Amount, Borrower
shall immediately make payment on the Revolving Loans in an amount sufficient to
eliminate the excess.
(c) Application. Unless otherwise specified by the Borrower, prepayments
-----------
made hereunder shall be applied first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities. Amounts prepaid hereunder
may be reborrowed in accordance with the provisions hereof.
D. 3.4 TERMINATION AND REDUCTION OF COMMITMENTS
----------------------------------------
(a) Voluntary Reductions. The Revolving Commitments may be terminated or
--------------------
permanently reduced in whole or in part upon three (3) Business Days' prior
written notice to the Administrative Agent, provided that (i) after giving
--------
effect to any voluntary reduction the aggregate amount of Obligations shall not
exceed the Aggregate Revolving Committed Amount, as reduced, and (ii) partial
reductions shall be minimum principal amount of $5,000,000, and in integral
multiples of $1,000,000 in excess thereof.
(b) Mandatory Reductions. The Revolving Commitments shall be permanently
--------------------
reduced in an amount equal to one hundred percent (100%) of the Net Proceeds
received from any Debt Transaction or Equity Transaction.
(c) Termination. The Commitments hereunder shall terminate on the
-----------
Termination Date.
E. 3.5 FEES.
----
In consideration of the Revolving Commitments hereunder, the Borrower
agrees to pay to the Administrative Agent for the ratable benefit of the Lenders
a commitment fee (the "Commitment Fee") equal to the Applicable Percentage per
--------------
annum on the average daily unused
10
<PAGE>
amount of the Aggregate Revolving Committed Amount for the applicable period.
The Commitment Fee shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the immediately preceding
quarter (or portion thereof) beginning with the first such date to occur after
the Closing Date.
F. 3.6 CAPITAL ADEQUACY.
----------------
If any Lender has determined, after the date hereof, that the adoption or
the becoming effective of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto.
G. 3.7 INABILITY TO DETERMINE INTEREST RATE.
------------------------------------
If prior to the first day of any Interest Period, the Administrative Agent
shall have determined (which determination shall be conclusive and binding upon
the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given (a) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans
and (b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
H. 3.8 ILLEGALITY.
----------
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the
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<PAGE>
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 3.11.
I. 3.9 REQUIREMENTS OF LAW.
-------------------
J.
If, after the date hereof, the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof applicable to any Lender,
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in each
case made subsequent to the Closing Date (or, if later, the date on which such
Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Eurodollar Loans made by it or its obligation to make Eurodollar
Loans, or change the basis of taxation of payments to such Lender in respect
thereof (except for (i) Non-Excluded Taxes covered by Section 3.10 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations under Section 3.10(b)) and (ii) changes in taxes
measured by or imposed upon the overall net income, or franchise tax (imposed in
lieu of such net income tax), of such Lender or its applicable lending office,
branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of such Lender which
is not otherwise included in the determination of the Eurodollar Rate hereunder;
or
(c) shall impose on such Lender any other condition (excluding any tax of
any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by a material amount, of making, converting into, continuing or maintaining
Eurodollar Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
--------
the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Administrative Agent at least one Business Day's notice of such election, in
which case the Borrower shall promptly pay to such Lender, upon demand, without
duplication, such amounts, if any, as may be required pursuant to Section 3.11.
If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the Borrower, through the
Administrative Agent, certifying (x) that one of the events described in this
paragraph (a) has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this subsection submitted by
such Lender, through the Administrative Agent, to the Borrower shall be
conclusive and binding on the parties hereto in the absence of manifest error.
This covenant shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
12
<PAGE>
K. 3.10 TAXES.
-----
(a) Except as provided below in this subsection, all payments made by the
Borrower under this Credit Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net income
taxes, imposed: (i) by the jurisdiction under the laws of which such Lender,
applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
------------------
amounts payable to the Administrative Agent or any Lender hereunder or under any
Notes, (A) the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the Borrower shall be
-------- -------
entitled to deduct and withhold any Non-Excluded Taxes and shall not be required
to increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such Lender fails
to comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Borrower, and (B) as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(X)(i) on or before the date of any payment by the Borrower under this
Credit Agreement or Notes to such Lender, deliver to the Borrower and the
Administrative Agent (A) two (2) duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor applicable form,
as the case may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or withholding
of any United States federal income taxes and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United States backup
withholding tax;
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<PAGE>
(ii) deliver to the Borrower and the Administrative Agent two (2)
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent
to the Borrower (for the benefit of the Borrower and the Administrative
Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (ii) agree to furnish to the Borrower on or
before the date of any payment by the Borrower, with a copy to the
Administrative Agent two (2) accurate and complete original signed copies
of Internal Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the provisions
of Section 881(c) of the Internal Revenue Code with respect to payments to
be made under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Administrative Agent two (2) further copies of such form
on or before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably requested
by the Borrower or the Administrative Agent for filing and completing such
forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the
benefit of the Borrower and the Administrative Agent) such other forms as
may be reasonably required in order to establish the legal entitlement of
such Lender to an exemption from withholding with respect to payments under
this Credit Agreement and any Notes;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender
or a participant of a Lender pursuant to Section 9.3 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection, provided
--------
that in the case of a participant of a Lender the obligations of such
participant of a Lender pursuant to this subsection (b) shall be determined as
if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to
the Lender from which the related participation shall have been purchased.
L. 3.11 INDEMNITY.
---------
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto. With
respect to Eurodollar Loans, such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which
14
<PAGE>
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
covenants of the Borrower set forth in this Section 3.11 shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
M. 3.12 PRO RATA TREATMENT.
------------------
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or prepayment of principal of any
-----
Loan, each payment of interest on the Loans, each payment of Commitment Fees,
each reduction of the Aggregate Revolving Committed Amount and each conversion
or extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding Loans and
Participation Interests.
(b) Advances. No Lender shall be responsible for the failure or delay by
--------
any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
-------- -------
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its ratable share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by such Lender within the time period specified therefor
hereunder, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the Federal Funds Rate for a
period of two (2) Business Days, and thereafter at the Base Rate, for the period
until such Lender makes such amount immediately available to the Administrative
Agent. If such Lender does not pay such amounts to the Administrative Agent
forthwith upon demand, the Administrative Agent may notify the Borrower and
request the Borrower to immediately pay such amount to the Administrative Agent
with interest at the Base Rate. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
N. 3.13 SHARING OF PAYMENTS.
-------------------
The Lenders agree among themselves that, in the event that any Lender shall
obtain payment in respect of any Loan any other obligation owing to such Lender
under this Credit Agreement through the exercise of a right of setoff, banker's
lien or counterclaim, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
in excess of its pro rata share of such payment as provided for in this
15
<PAGE>
Credit Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Lender an amount payable by such Lender or the
Administrative Agent to the Administrative Agent or such other Lender pursuant
to this Credit Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Administrative Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.13 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.13 to share in the benefits of any recovery on such secured claim.
O. 3.14 PAYMENTS, COMPUTATIONS, ETC.
----------------------------
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in Dollars in immediately
available funds, without setoff, deduction, counterclaim or withholding of any
kind, at the Administrative Agent's office specified in Section 9.1 not later
than 2:00 P.M. (Charlotte, North Carolina time) on the date when due. Payments
received after such time shall be deemed to have been received on the next
succeeding Business Day. The Administrative Agent may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any ordinary deposit account of the Borrower maintained with the
Administrative Agent (with notice to the Borrower). The Borrower shall, at the
time it makes any payment under this Credit Agreement, specify to the
Administrative Agent the Loans, Fees, interest or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall distribute such payment to the
Lenders in such manner as the Administrative Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.12(a)). The Administrative Agent will distribute such
payments to such Lenders, if any such payment is received prior to 12:00 Noon
(Charlotte, North Carolina time) on a Business Day in like funds as received
prior to the end of such Business Day and otherwise the Administrative Agent
will distribute such payment to such Lenders on the next succeeding Business
Day. Whenever any payment hereunder shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and Fees for the period
of such extension), except that in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of
interest and fees shall be made on the basis of actual number of days elapsed
over a year of 360 days, except with respect to computation of interest on Base
Rate Loans which (unless the Base Rate
16
<PAGE>
is determined by reference to the Federal Funds Rate) shall be calculated based
on a year of 365 or 366 days, as appropriate. Interest shall accrue from and
include the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding any
---------------------------------------------
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account of the Obligations
or any other amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable and documented out-of-pocket
costs and expenses (including without limitation reasonable attorneys'
fees) of the Administrative Agent in connection with enforcing the rights
of the Lenders under the Credit Documents, except to the extent any such
costs arise out of or relate to disputes solely between or among the
Administrative Lender and/or the Lenders;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable and documented out-of-pocket
costs and expenses (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the Obligations owing to
such Lender, except to the extent any such costs arise out of or relate to
disputes solely between or among the Administrative Lender and/or the
Lenders;
FOURTH, to the payment of all accrued interest and fees on or in
respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of the
Obligations;
SIXTH, to all other Obligations and other obligations which shall have
become due and payable under the Credit Documents or otherwise and not
repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Obligations held by such Lender bears to the aggregate then outstanding
Obligations) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above.
P. 3.15 EVIDENCE OF DEBT.
----------------
(a) Each Lender shall maintain an account or accounts evidencing each Loan
made by such Lender to the Borrower from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Credit Agreement. Each Lender will make reasonable efforts to
17
<PAGE>
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 9.3(c) hereof, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.15 (and, if consistent with the
entries of the Administrative Agent, subsection (a)) shall be prima facie
evidence of the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the
-------- -------
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Lender in
accordance with the terms hereof.
5. SECTION 4
GUARANTY
--------
A. 4.1 THE GUARANTEE.
-------------
Each of the Guarantors hereby jointly and severally guarantees to each
Lender, to each Affiliate of a Lender that enters into a Hedging Agreement and
to the Administrative Agent as hereinafter provided the prompt payment of the
Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Guaranteed Obligations are not paid in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as mandatory cash collateralization or otherwise), the Guarantors
will, jointly and severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, as a mandatory prepayment, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
B. 4.2 OBLIGATIONS UNCONDITIONAL.
-------------------------
18
<PAGE>
The obligations of the Guarantors under Section 4.1 hereof are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed
that, to the fullest extent permitted by law, the occurrence of any one or more
of the following shall not alter or impair the liability of any Guarantor
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under any of the
Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements shall
be waived or any other guarantee of any of the Guaranteed Obligations or
any security therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Administrative Agent or
any Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined to be void
or voidable (including, without limitation, for the benefit of any creditor
of any Guarantor) or shall be subordinated to the claims of any Person
(including, without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement or any other agreement or instrument
referred to in the Credit Documents or Hedging Agreements, or against any other
Person under any other guarantee of, or security for, any of the Guaranteed
Obligations.
19
<PAGE>
C. 4.3 REINSTATEMENT.
-------------
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
D. 4.4 CERTAIN ADDITIONAL WAIVERS.
--------------------------
Without limiting the generality of the provisions of this Section 4, each
Guarantor hereby specifically waives the benefits of N.C. Gen. Stat. (S)(S) 26-7
through 26-9, inclusive. Each Guarantor further agrees that such Guarantor
shall have no right of recourse to security for the Guaranteed Obligations,
except through the exercise of the rights of subrogation pursuant to Section
4.2.
E. 4.5 REMEDIES.
--------
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Guaranteed Obligations may be declared to be
forthwith due and payable as provided in Section 7.2 hereof (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 7.2) for purposes of Section 4.1 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Guaranteed
Obligations being deemed to have become automatically due and payable), the
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of said
Section 4.1.
F. 4.6 RIGHTS OF CONTRIBUTION.
----------------------
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
------------------------
arising under the other provisions of this Section 4 (hereafter, the
20
<PAGE>
"Guarantied Obligations"), a Guarantor that has paid an amount in excess of its
----------------------
Pro Rata Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean,
--------------
in respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
--------------
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of the Closing Date
(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
for the purposes of this Section 4.6 such subsequent Guarantor shall be deemed
to have been a Guarantor as of the Closing Date and the information pertaining
to, and only pertaining to, such Guarantor as of the date such Guarantor became
a Guarantor shall be deemed true as of the Closing Date).
G. 4.7 CONTINUING GUARANTEE.
--------------------
The guarantee in this Section 4 is a continuing guarantee, and shall apply
to all Guaranteed Obligations whenever arising.
6. SECTION 5
CONDITIONS
----------
A. 5.1 CONDITIONS TO CLOSING.
---------------------
This Credit Agreement shall become effective, and the initial Extensions of
Credit may be made, upon the satisfaction (or waiver) of the following
conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt of (i)
--------------------------------------------------
multiple counterparts of this Credit Agreement, (ii) a Note for each Lender,
(iii) multiple counterparts of the Pledge Agreement, (iv) multiple counterparts
of the Security Agreement and (v) UCC financing statements relating to the
Security Agreement and the Pledge Agreement, in each case executed by a duly
authorized officer of each party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt of multiple counterparts of opinions of
--------------
counsel for the Credit Parties relating to the Credit Documents and the
transactions contemplated herein, in form and substance satisfactory to the
Administrative Agent and the Lenders.
(c) Stock Certificates. Acknowledgment from NationsBank, N.A., as
------------------
Administrative Agent under the Revolving Credit Agreement, (i) of its receipt of
original stock certificates evidencing the ownership interests of the Credit
Parties pledged pursuant to the Pledge Agreement, together in each case with
original undated stock powers executed in blank, (ii) of the interests of the
Administrative Agent and the Lenders hereunder therein pursuant to
21
<PAGE>
the Pledge Agreement and (iii) that it holds such stock certificates and stock
powers as bailee for the Administrative Agent hereunder.
(d) Financial Information. Receipt of financial information regarding the
---------------------
Borrower and its subsidiaries, as may be requested by, and in each case in form
and substance satisfactory to the Administrative Agent and the Lenders.
(e) Absence of Legal Proceedings. The absence of any action, suit,
----------------------------
investigation or proceeding pending in any court or before any arbitrator or
governmental instrumentality which could reasonably be expected to have a
Material Adverse Effect.
(f) Corporate Documents. Receipt of the following (or their equivalent)
-------------------
for each of the Credit Parties:
(i) Resolutions. Copies of resolutions of the Board of
-----------
Directors approving and adopting the respective Credit Documents, the
transactions contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary as of the Closing
Date to be true and correct and in force and effect as of such date.
(ii) Good Standing. Copies, where applicable, of (A)
-------------
certificates of good standing, existence or its equivalent certified as of
a recent date by the appropriate governmental authorities of the state of
incorporation and each other state in which the failure to so qualify and
be in good standing would in the aggregate have a Material Adverse Effect
and (B) certificates indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities.
(iii) Officer's Certificate. An officer's certificate for each
---------------------
of the Credit Parties dated as of the Closing Date substantially in the
form of Schedule 5.1(f)(v) with appropriate insertions and attachments.
------------------
(g) Fees. Receipt of all fees, if any, owing pursuant to Section 3.5 or
----
otherwise.
(h) Amendment No. 1 to Revolving Credit Agreement. Receipt by the
---------------------------------------------
Administrative Agent of an executed copy of Amendment No. 1 to the Revolving
Credit Agreement, in form and substance satisfactory to the Lenders hereunder.
(i) Subsection 5.2 Conditions. The conditions specified in Section 5.2
-------------------------
shall be satisfied.
(j) Additional Matters. All other documents and legal matters in
------------------
connection with the transactions contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Agents and the Required
Lenders.
B. 5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
--------------------------------------
22
<PAGE>
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction (or waiver) of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations and warranties
------------------------------
made by the Credit Parties herein or in any other Credit Documents or which are
contained in any certificate furnished at any time under or in connection
herewith shall be true and correct in all material respects on and as of the
date of such Extension of Credit as if made on and as of such date (except for
those which expressly relate to an earlier date).
(b) No Default or Event of Default. No Default or Event of Default shall
------------------------------
have occurred and be continuing on such date or after giving effect to the
Extension of Credit to be made on such date unless such Default or Event of
Default shall have been waived in accordance with this Credit Agreement.
(c) No Bankruptcy Event. No Bankruptcy Event shall have occurred and be
-------------------
continuing with respect to any of the Credit Parties.
(d) No Material Adverse Effect. No circumstances, events or conditions
--------------------------
shall have occurred since the date of the audited financial statements
referenced in Section 6.1 which would have a Material Adverse Effect.
(e) Additional Conditions to Revolving Loans. If a Revolving Loan is made
----------------------------------------
pursuant to Section 2.1, all conditions set forth therein shall have been
satisfied.
Each request for Extension of Credit (including extensions and conversions)
and each acceptance by the Borrower of an Extension of Credit (including
extensions and conversions) shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such Extension of Credit that the
applicable conditions in paragraphs (a), (b), (c), (d) and (e) of this
subsection have been satisfied.
7. SECTION 6
REPRESENTATIONS AND WARRANTIES; COVENANTS
-----------------------------------------
A. 6.1 INCORPORATION.
-------------
The representations and warranties contained in Section 6 of the Revolving
Credit Agreement as in effect on the Closing Date (the "Incorporated
------------
Representations") and the affirmative and negative covenants contained in
---------------
Section 7 and Section 8 (other than Sections 8.9 and 8.12), respectively, of the
Revolving Credit Agreement as in effect on the Closing Date (the "Incorporated
------------
Covenants"), are incorporated herein by reference with the same effect as if
---------
stated at length herein. The Credit Parties affirm and represent and warrant to
the Administrative Agent and the Lenders that the Incorporated Representations
are true and correct in all material respects as of the date hereof (except for
those which expressly relate to an earlier date) and covenant and agree that the
Incorporated Covenants shall be as binding on
23
<PAGE>
the Credit Parties as if set forth fully herein, provided that (i) any amendment
--------
or modification to the Incorporated Representations or to the Incorporated
Covenants under the Revolving Credit Agreement subsequent to the Closing Date
shall not be given effect to hereunder unless consented to in writing by the
Required Lenders hereunder and (ii) in the event that the Revolving Credit
Agreement shall be refinanced or replaced by another credit agreement, then the
Incorporated Representations and Incorporated Covenants shall be, subject to the
foregoing clause(i), as in effect immediately prior to such refinancing or
replacement.
B. 6.2 ADDITIONAL COVENANTS.
--------------------
(a) Additional Credit Party. The Borrower will provide to the
-----------------------
Administrative Agent, for the benefit of the Lenders, a Joinder Agreement and
the other items required by Section 7.11 of the Incorporated Covenants in the
same form and from the same Subsidiaries as required therein, except that such
Joinder Agreement and other items shall reflect that they are delivered to, and
run in favor of, the Administrative Agent and secure the obligations of the
Credit Parties under this Credit Agreement and the other Credit Documents.
(b) Prepayments of Indebtedness, etc. Each of the Credit Parties
---------------------------------
covenants and agrees that no member of the Consolidated Group shall:
(i) After the issuance thereof, amend or modify (or permit the
amendment or modification of), the terms of any other Indebtedness (other
than Indebtedness under the Revolving Credit Agreement) in a manner adverse
to the interests of the Lenders (including specifically shortening any
maturity or average life to maturity or requiring any payment sooner than
previously scheduled or increasing the interest rate or fees applicable
thereto); or
(ii) Make any prepayment, redemption, defeasance or acquisition for
value of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose
of paying when due), or refund, refinance or exchange of any Funded Debt
(other than intercompany Indebtedness permitted hereunder and Indebtedness
under the Revolving Credit Agreement) other than regularly scheduled
payments of principal and interest on such Funded Debt.
(c) No Further Negative Pledges. Each of the Credit Parties covenants and
---------------------------
agrees that, except with respect to (i) prohibitions against other encumbrances
on specific Property encumbered to secure payment of particular Indebtedness
(which Indebtedness relates solely to such specific Property, and improvements
and accretions thereto, and is otherwise permitted hereby) and (ii) the
Revolving Credit Agreement, no member of the Consolidated Group will enter into,
assume or become subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation.
8. SECTION 7
EVENTS OF DEFAULT
-----------------
24
<PAGE>
A. 7.1 EVENTS OF DEFAULT.
-----------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
----------------
(a) Payment. Any Credit Party shall
-------
(i) default in the payment when due of any principal of any of the
Loans, or
(ii) default, and such defaults shall continue for three (3) or more
Business Days, in the payment when due of any interest on the Loans or of
any Fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or
---------------
deemed to be made herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove untrue in any material respect on the date as of which it
was deemed to have been made; or
(c) Covenants.
---------
(i) Default in the due performance or observance of any term,
covenant or agreement contained in Section 7.3(a), 7.9, 7.13 or 8.1 through
8.12, in each case of the Incorporated Covenants (except in the case of the
negative covenants contained in Sections 8.1 through 8.12, in each case of
the Incorporated Covenants, those Defaults which may occur or arise other
than on account of or by affirmative or intentional act of a Credit Party or
event or condition which a Credit Party shall with knowledge permit to
exist, all of which shall be subject to the provisions of clause (ii)
hereof), inclusive, or
(ii) Default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in subsections (a), (b)
or (c)(i) of this Section 7.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30 days after the
earlier of a responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Administrative Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in the due
----------------------
performance or observance of any material term, covenant or agreement in any of
the other Credit Documents (subject to applicable grace or cure periods, if
any), or (ii) except as to the Credit Party which is dissolved, released or
merged or consolidated out of existence as the result of or in connection with a
dissolution, merger or disposition permitted by Section 8.4(a), Section 8.4(b)
or Section 8.4(c), in each case of the Incorporated Covenants, any Credit
Document shall fail to be in full force and effect or to give the Administrative
Agent and/or the Lenders any material part of the Liens, rights, powers and
privileges purported to be created thereby; or
25
<PAGE>
(e) Guaranties. Except as to the Credit Party which is dissolved,
----------
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section
8.4(a), Section 8.4(b) or Section 8.4(c), in each case of the Incorporated
Covenants, the guaranty given by any Guarantor hereunder or any material
provision thereof shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under such guaranty, or any Guarantor
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to any
---------------
Credit Party; or
(g) Defaults under Other Agreements. With respect to any Indebtedness
-------------------------------
(other than Indebtedness outstanding under this Credit Agreement) in excess of
$5,000,000 in the aggregate for the Consolidated Group taken as a whole, (A) (1)
any member of the Consolidated Group shall default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect to any such
Indebtedness, or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event or condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required),
any such Indebtedness to become due prior to its stated maturity; or (B) any
such Indebtedness shall be declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof; or
(h) Judgments. Any member of the Consolidated Group shall fail within 30
---------
days of the date due and payable to pay, bond or otherwise discharge any
judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $5,000,000, and which is not
stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; or
(i) ERISA. Any of the following events or conditions, if such event or
-----
condition could reasonably be expected to have a Material Adverse Effect and is
not subject to indemnification in favor of the Consolidated Group: (1) any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a member of the
Consolidated Group or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an
ERISA Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an ERISA Event
shall occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Administrative Agent, likely to
result in (i) the termination of such Plan for purposes of Title IV of ERISA, or
(ii) a member of the Consolidated Group or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency of (within the meaning of
Section 4245 of ERISA) such Plan; or (4) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or
26
<PAGE>
breach of fiduciary responsibility shall occur which may subject a member of the
Consolidated Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Ownership. There shall occur a Change of Control; or
---------
(k) Revolving Credit Agreement. There shall occur an Event of Default
--------------------------
under the Revolving Credit Agreement.
B. 7.2 ACCELERATION; REMEDIES.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter, the
Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Credit Parties take any of the following
actions:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and any accrued
------------
interest in respect of all Loans and any and all other indebtedness or
obligations of any and every kind owing by the Credit Parties to the
Administrative Agent and/or any of the Lenders hereunder to be due whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
of the Credit Parties.
(iii) Enforcement of Rights. Enforce any and all rights and interests
---------------------
created and existing under the Credit Documents and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
7.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid Fees and
other