Exhibit 4.1


 


EXECUTION COPY


 




 





AMENDED AND RESTATED


CREDIT AGREEMENT


 


 


DATED AS OF MAY 28, 2004


 


AMONG


 


AIRNET SYSTEMS, INC.,


 


 


THE LENDERS


FROM TIME TO TIME PARTY HERETO,


 


and


 


THE HUNTINGTON NATIONAL BANK 


AS ADMINISTRATIVE AGENT


AND LEAD ARRANGER




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I.    DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.    THE
  CREDITS

  	
   

  
	
  SECTION 2.1.

  	
  COMMITMENT

  	
   

  
	
  SECTION 2.2.

  	
  LOANS AND
  ADVANCES

  	
   

  
	
  SECTION 2.3.

  	
  REQUIRED PAYMENTS;
  TERMINATION

  	
   

  
	
  SECTION 2.4.

  	
  COMMITMENT FEE;
  FACILITY FEE; REDUCTIONS IN AGGREGATE COMMITMENT

  	
   

  
	
  SECTION 2.5.

  	
  MINIMUM
  AMOUNT OF EACH ADVANCE; EURODOLLAR ADVANCES

  	
   

  
	
  SECTION 2.6.

  	
  METHOD
  OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES

  	
   

  
	
  SECTION 2.7

  	
  CONVERSION
  AND CONTINUATION OF OUTSTANDING ADVANCES

  	
   

  
	
  SECTION 2.8.

  	
  OPTIONAL PRINCIPAL PAYMENTS

  	
   

  
	
  SECTION 2.9.

  	
  SWINGLINE LOANS

  	
   

  
	
  SECTION 2.10

  	
  CHANGES IN
  INTEREST RATE

  	
   

  
	
  SECTION 2.11

  	
  RATES APPLICABLE
  AFTER DEFAULT

  	
   

  
	
  SECTION 2.12.

  	
  REPAYMENT OF
  LOANS; EVIDENCE OF DEBT

  	
   

  
	
  SECTION 2.13.

  	
  AMORTIZATION OF
  TERM LOANS

  	
   

  
	
  SECTION 2.14

  	
  TELEPHONIC
  NOTICES

  	
   

  
	
  SECTION 2.15

  	
  INTEREST PAYMENT
  DATES, INTEREST AND FEE BASIS

  	
   

  
	
  SECTION 2.16

  	
  NOTIFICATION OF
  ADVANCES, INTEREST RATES, PREPAYMENTS AND COMMITMENT

  	
   

  
	
  SECTION 2.17

  	
  LENDING
  INSTALLATIONS

  	
   

  
	
  SECTION 2.18

  	
  NON-RECEIPT OF
  FUNDS BY THE AGENT

  	
   

  
	
  SECTION 2.19

  	
  FACILITY LCS

  	
   

  
	
  SECTION 2.20

  	
  REPLACEMENT OF
  LENDER

  	
   

  
	
  SECTION 2.21

  	
  AMENDMENT AND
  RESTATEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.    YIELD
  PROTECTION; TAXES

  	
   

  
	
  SECTION 3.1

  	
  YIELD PROTECTION

  	
   

  
	
  SECTION 3.2

  	
  CHANGES IN CAPITAL
  ADEQUACY REGULATIONS

  	
   

  
	
  SECTION 3.3

  	
  AVAILABILITY OF
  TYPES OF ADVANCES

  	
   

  
	
  SECTION 3.4

  	
  FUNDING INDEMNIFICATION

  	
   

  
	
  SECTION 3.5

  	
  TAXES

  	
   

  
	
  SECTION 3.6

  	
  LENDER STATEMENTS;
  SURVIVAL OF INDEMNITY

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.    CONDITIONS
  PRECEDENT

  	
   

  
	
  SECTION 4.1

  	
  INITIAL ADVANCE

  	
   

  
	
  SECTION 4.2.

  	
  EACH CREDIT
  EXTENSION

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.    REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
  SECTION 5.1

  	
  EXISTENCE AND STANDING

  	
   

  
	
  SECTION 5.2

  	
  AUTHORIZATION AND
  VALIDITY

  	
   

  
	
  SECTION 5.3

  	
  NO CONFLICT,
  GOVERNMENT CONSENT

  	
   

  
	
  SECTION 5.4

  	
  FINANCIAL
  STATEMENTS

  	
   

  
	
  SECTION 5.5

  	
  MATERIAL ADVERSE
  CHANGE

  	
   

  
	
  SECTION 5.6

  	
  TAXES

  	
   

  
	
  SECTION 5.7

  	
  LITIGATION AND
  CONTINGENT OBLIGATIONS

  	
   

  
	
  SECTION 5.8

  	
  SUBSIDIARIES

  	
   

  
	
  SECTION 5.9

  	
  ERISA

  	
   

  



 

















 


	
  SECTION 5.10

  	
  ACCURACY OF
  INFORMATION

  	
   

  
	
  SECTION 5.11.

  	
  FEDERAL RESERVE
  REGULATIONS

  	
   

  
	
  SECTION 5.12

  	
  MATERIAL
  AGREEMENTS

  	
   

  
	
  SECTION 5.13

  	
  COMPLIANCE WITH
  LAWS

  	
   

  
	
  SECTION 5.14

  	
  PROPERTIES

  	
   

  
	
  SECTION 5.15

  	
  PLAN ASSETS,
  PROHIBITED TRANSACTIONS

  	
   

  
	
  SECTION 5.16

  	
  ENVIRONMENTAL
  MATTERS

  	
   

  
	
  SECTION 5.17

  	
  INVESTMENT
  COMPANY ACT

  	
   

  
	
  SECTION 5.18

  	
  PUBLIC UTILITY
  HOLDING COMPANY

  	
   

  
	
  SECTION 5.19

  	
  INSURANCE

  	
   

  
	
  SECTION 5.20

  	
  SOLVENCY

  	
   

  
	
  SECTION 5.21

  	
  LABOR MATTERS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.    COVENANTS

  	
   

  
	
  SECTION 6.1

  	
  FINANCIAL REPORTING

  	
   

  
	
  SECTION 6.2

  	
  USE OF PROCEEDS

  	
   

  
	
  SECTION 6.3

  	
  NOTICE OF DEFAULT

  	
   

  
	
  SECTION 6.4

  	
  CONDUCT OF BUSINESS

  	
   

  
	
  SECTION 6.5

  	
  TAXES

  	
   

  
	
  SECTION 6.6

  	
  INSURANCE

  	
   

  
	
  SECTION 6.7

  	
  COMPLIANCE WITH
  LAWS

  	
   

  
	
  SECTION 6.8

  	
  MAINTENANCE OF
  PROPERTIES

  	
   

  
	
  SECTION 6.9

  	
  BOOKS AND RECORDS;
  INSPECTION

  	
   

  
	
  SECTION 6.11.

  	
  INDEBTEDNESS

  	
   

  
	
  SECTION 6.12

  	
  MERGER

  	
   

  
	
  SECTION 6.13

  	
  SALE OF ASSETS

  	
   

  
	
  SECTION 6.14

  	
  INVESTMENTS AND
  ACQUISITIONS

  	
   

  
	
  SECTION 6.15

  	
  LIENS

  	
   

  
	
  SECTION 6.16

  	
  CAPITAL
  EXPENDITURES

  	
   

  
	
  SECTION 6.17

  	
  AFFILIATES

  	
   

  
	
  SECTION 6.18

  	
  LETTERS OF CREDIT

  	
   

  
	
  SECTION 6.19

  	
  SALE OF ACCOUNTS

  	
   

  
	
  SECTION 6.20

  	
  SALE AND
  LEASEBACK TRANSACTIONS AND OTHER OFF-BALANCE SHEET LIABILITIES

  	
   

  
	
  SECTION 6.21

  	
  CONTINGENT
  OBLIGATIONS

  	
   

  
	
  SECTION 6.22

  	
  FINANCIAL
  CONTRACTS

  	
   

  
	
  SECTION 6.23

  	
  NO AMENDMENTS TO
  CERTAIN DOCUMENTS AND AGREEMENTS

  	
   

  
	
  SECTION 6.25

  	
  FINANCIAL
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.    DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.    ACCELERATION,
  WAIVERS, AMENDMENTS AND REMEDIES

  	
   

  
	
  SECTION 8.1.

  	
  ACCELERATION; FACILITY LC COLLATERAL

  	
   

  
	
  SECTION 8.2.

  	
  PRESERVATION OF
  RIGHTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.  THE ADMINISTRATIVE AGENT

  	
   

  
	
  SECTION 9.1

  	
  APPOINTMENT; NATURE
  OF RELATIONSHIP

  	
   

  
	
  SECTION 9.2

  	
  POWERS

  	
   

  
	
  SECTION 9.3

  	
  GENERAL IMMUNITY

  	
   

  
	
  SECTION 9.4

  	
  NO RESPONSIBILITY
  FOR LOANS, RECITALS, ETC.

  	
   

  
	
  SECTION 9.5

  	
  ACTION ON
  INSTRUCTIONS OF LENDERS

  	
   

  
	
  SECTION 9.6

  	
  EMPLOYMENT OF
  AGENTS AND COUNSEL

  	
   

  
	
  SECTION 9.7

  	
  RELIANCE ON
  DOCUMENTS; COUNSEL

  	
   

  
	
  SECTION 9.8

  	
  AGENT’S
  REIMBURSEMENT AND INDEMNIFICATION

  	
   

  
	
  SECTION 9.9

  	
  NOTICE OF DEFAULT

  	
   

  



 


ii

















 


	
  SECTION 9.10

  	
  RIGHTS AS A
  LENDER

  	
   

  
	
  SECTION 9.11

  	
  LENDER CREDIT
  DECISION

  	
   

  
	
  SECTION 9.12

  	
  SUCCESSOR
  ADMINISTRATIVE AGENT

  	
   

  
	
  SECTION 9.14

  	
  DELEGATION
  TO AFFILIATES

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.  SETOFF; RATABLE PAYMENTS

  	
   

  
	
  SECTION 10.1

  	
  SETOFF

  	
   

  
	
  SECTION 10.2

  	
  RATABLE PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI.   BENEFIT OF AGREEMENT; ASSIGNMENTS;
  PARTICIPATIONS

  	
   

  
	
  SECTION 11.1

  	
  SUCCESSORS AND
  ASSIGNS

  	
   

  
	
  SECTION 11.2

  	
  PARTICIPATIONS

  	
   

  
	
  SECTION 11.3.

  	
  ASSIGNMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII.  GENERAL PROVISIONS

  	
   

  
	
  SECTION 12.1.

  	
  SURVIVAL OF
  REPRESENTATIONS

  	
   

  
	
  SECTION 12.2

  	
  GOVERNMENTAL
  REGULATION

  	
   

  
	
  SECTION 12.3

  	
  HEADINGS

  	
   

  
	
  SECTION 12.4

  	
  ENTIRE AGREEMENT

  	
   

  
	
  SECTION 12.5

  	
  SEVERAL
  OBLIGATIONS; BENEFITS OF THIS AGREEMENT

  	
   

  
	
  SECTION 12.6

  	
  EXPENSES;
  INDEMNIFICATION

  	
   

  
	
  SECTION 12.7

  	
  NUMBERS OF
  DOCUMENTS

  	
   

  
	
  SECTION 12.8

  	
  SEVERABILITY OF
  PROVISIONS

  	
   

  
	
  SECTION 12.9

  	
  NONLIABILITY OF
  LENDERS

  	
   

  
	
  SECTION 12.10

  	
  CONFIDENTIALITY

  	
   

  
	
  SECTION 12.11

  	
  NONRELIANCE

  	
   

  
	
  SECTION 12.12

  	
  DISCLOSURE

  	
   

  
	
  SECTION 12.13.

  	
  AMENDMENTS

  	
   

  
	
  SECTION 12.14

  	
  NOTICES

  	
   

  
	
  SECTION 12.15

  	
  CHANGE OF
  ADDRESS

  	
   

  
	
  SECTION 12.16

  	
  COUNTERPARTS

  	
   

  
	
  SECTION 12.17

  	
  CHOICE OF LAW

  	
   

  
	
  SECTION 12.18

  	
  CONSENT TO
  JURISDICTION

  	
   

  
	
  SECTION 12.19

  	
  WAIVER OF JURY
  TRIAL

  	
   

  
	
  SECTION 12.20

  	
  INTEREST RATE
  LIMITATION

  	
   

  
	
  SECTION 12.21

  	
  WARRANT OF
  ATTORNEY

  	
   

  



 


	
  ATTACHMENTS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PRICING
  SCHEDULE

  	
   

  	
   

  
	
  EXHIBIT A –

  	
  INTENTIONALLY OMITTED

  	
   

  
	
  EXHIBIT B –

  	
  COMPLIANCE CERTIFICATE

  	
   

  
	
  EXHIBIT C –

  	
  ASSIGNMENT AGREEMENT

  	
   

  
	
  EXHIBIT D –

  	
  LOAN/CREDIT RELATED MONEY
  TRANSFER INSTRUCTION

  	
   

  
	
  EXHIBIT E –

  	
  NOTE

  	
   

  
	
  EXHIBIT F -

  	
  BORROWING BASE CERTIFICATE

  	
   

  
	
  SCHEDULE 1 –

  	
  SUBSIDIARIES AND
  OTHER INVESTMENTS

  	
   

  
	
  SCHEDULE 2 –

  	
  INDEBTEDNESS AND
  LIENS

  	
   

  
	
  SCHEDULE 5.14
  -

  	
  ADDRESSES OF
  REAL PROPERTY OWNED/LEASED BY BORROWER

  	
   

  
	
  SCHEDULE 5.16
  -

  	
  ENVIRONMENTAL
  MATTERS

  	
   

  
	
  SCHEDULE 5.19
  -

  	
  INSURANCE
  SUMMARY AND CERTIFICATION

  	
   

  



 


iii

















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


This
Amended and Restated Credit Agreement, dated as of May 28, 2004, is among
AirNet Systems, Inc., the Lenders and The Huntington National Bank, as LC
Issuer, as Swingline Lender and as Administrative Agent.  The parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


Section 1.1.                                   Definitions.  As used in this Agreement:


 


“Account Debtor” shall have the meaning
set forth in the definition of Eligible Accounts Receivable.


 


“Accounts Receivable” shall mean, at
any date, the total of all accounts which would be properly classified in
accordance with Agreement Accounting Principles as accounts receivable on the
consolidated balance sheet of the Borrower and its Subsidiaries at such date.


 


“Acquisition” means any transaction, or
any series of related transactions, consummated on or after the date of this
Agreement, by which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm,
corporation or limited liability company, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability company.


 


“Administrative Agent” means HNB in its
capacity as contractual representative of the Lenders pursuant to
Article IX, and not in its individual capacity as a Lender, the LC Issuer
or Swingline Lender, and any successor Administrative Agent appointed pursuant
to Article IX.


 


“Advance” means a borrowing hereunder,
(x) (i) made by the Lenders on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or continuation,
consisting, in either case, of the aggregate amount of the several Loans of the
same Class and Type and, in the case of Eurodollar Loans, for the same Interest
Period, and/or (y) made by the Swingline Lender.


 


“Affiliate” of any Person means any
other Person directly or indirectly controlling, controlled by or under common
control with such Person.  A Person
shall be deemed to control another Person if the controlling Person owns 20% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power


 

















 


to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock or other ownership
interests, by contract or otherwise.


 


“Aggregate Outstanding Revolving Credit Exposure”
means, at any time, the aggregate of the Outstanding Revolving Credit Exposure
of all the Lenders.


 


“Aggregate Revolving Commitment” means
the aggregate of the Revolving Commitments of all the Revolving Lenders, as
increased or reduced from time to time pursuant to the terms hereof.


 


“Agreement” means this Amended and Restated
Credit Agreement, as it may be amended, modified, supplemented, extended,
restated or replaced from time to time.


 


“Agreement Accounting Principles” means
generally accepted accounting principles as in effect from time to time,
applied in a manner consistent with that used in preparing the financial
statements referred to in Section 5.4.


 


“Alternative Base Rate” means the rate
of interest equal to the higher of (i) the Prime Rate, or (ii) the sum of (y)
the Federal Funds Effective Rate, and (z) one half of one percent (.5%).


 


“AMI” means AirNet Management, Inc., an
Ohio corporation.


 


“Amendment and Restatement Fee” shall
be as defined in Section 2.21.


 


“Applicable Fee Rate” means, at any
time, the percentage rate per annum at which commitment
fees and LC Fees are accruing on the unused portion of the Aggregate Revolving
Commitment or undrawn stated amount under the relevant Facility LC, as
applicable, at such time as set forth in the Pricing Schedule.


 


“Applicable Margin” means, with respect to Advances
of any Class and Type (other than Swingline Loans) at any time, the percentage
rate per annum which is applicable at such time with respect to Advances of
such Class and Type as set forth in the Pricing Schedule.


 


“Applicable Percentage” means, with respect
to any Revolving Lender, the percentage of the Aggregate Revolving Commitment
represented by such Lender’s Revolving Commitment. If the Revolving Commitments
have terminated or expired, the Applicable Percentage shall be determined based
upon the Aggregate Revolving Commitment most recently in effect, giving effect
to any assignments.


 


“Arranger” means HNB, and its
successors.


 


“Article” means an article of this
Agreement unless another document is specifically referenced.


 


2

















 


“Authorized Officer” means any of the
Chief Executive Officer, Chief Financial Officer or Controller of the Borrower,
acting singly.


 


“Available Aggregate Revolving Commitment”
means, at any time, the Aggregate Revolving Commitment then in effect minus the
Aggregate Outstanding Revolving Credit Exposure at such time.


 


“Board” means the Board of Governors of
the Federal Reserve System of the United States of America.


 


“Borrower” means AirNet Systems, Inc.,
an Ohio corporation, and its successors and assigns.


 


“Borrowing Base” means, at any date,
that amount which is equal to the lesser of (a)(i) the balance of the Term Loan
outstanding at such date, plus (ii) the Aggregate Revolving Commitment; or (b)
the aggregate of (i) 80% of the Eligible Accounts Receivable of the Borrower
and its Subsidiaries on a consolidated basis as of such date, (ii) 50% of the
Eligible Inventory of the Borrower and its Subsidiaries on a consolidated basis
as of such date, and (iii) 70% of the Market Value of Eligible Fixed Assets of
the Borrower and its Subsidiaries on a consolidated basis as of such date.


 


“Borrowing Base Certificate” means the
certificate substantially in the form of Exhibit F, which shall contain all
supporting documentation, including accounts receivable and aging schedules.


 


“Borrowing Date” means a date on which
an Advance is made hereunder as determined pursuant to Section 2.6.


 


“Borrowing Notice” shall have the
meaning set forth in Section 2.6.


 


“Business Day” means (i) with respect to
any borrowing, payment or rate selection of Eurodollar Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in Columbus, Ohio
and New York, New York for the conduct of substantially all of their commercial
lending activities, interbank wire transfers can be made on the Fedwire system,
and dealings in United States dollars are carried on in the London interbank
market, and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Columbus, Ohio for the conduct of
substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.


 


“Capital Expenditures” means, without
duplication, any expenditures for any purchase or other acquisition of any
asset which would be classified as a fixed or capital asset on a consolidated
balance sheet of the Borrower and its Subsidiaries prepared in accordance with
Agreement Accounting Principles, except (i) expenditures for the purchase of
aircraft held for resale within 90 days, and (i) expenditures of insurance
proceeds for the replacement of any asset with respect to which such insurance
proceeds were paid to Borrower or any Subsidiary as a result of any loss or
damage to such asset.


 


3

















 


“Capitalized Lease” of a Person means
any lease of Property by such Person as lessee which would be capitalized on a
balance sheet of such Person prepared in accordance with Agreement Accounting
Principles.


 


“Capitalized Lease Obligations” of a
Person means the amount of the obligations of such Person under Capitalized
Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.


 


“Charges” shall have the meaning set
forth in Section 12.20.


 


“Cash Equivalent Investments” means (i)
short-term obligations of, or fully guaranteed by, the United States of
America, (ii) commercial paper rated A-1 or better by S&P or P-1 or better
by Moody’s, (iii) demand deposit accounts maintained in the ordinary course of
business, (iv) certificates of deposit issued by and time deposits with any
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000, and (v) money market accounts; provided in each case that the same
provides for payment of both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency regarding the payment of
principal or interest.


 


“Change in Control” means, with respect
to Borrower, an event or series of events by which:


 


(i)                                     any “person” or “group” (within the meaning
of Section 13(d) and 14(d) of the Securities Exchange Act of 1934) has
become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have “beneficial
ownership” of all securities that any such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), by way of merger, consolidation or otherwise, of 30% or more of the
equity interests of Borrower on a fully-diluted basis after giving effect to
the conversion and exercise of all outstanding equity equivalents (whether such
equity equivalents are then currently convertible or exercisable); or


 


(ii)                                  during any period of 12 consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of Borrower cease to be composed of individuals (A) who were members of
that board or equivalent governing body on the first day of such period, (B)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (ii)(A) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body or (C) whose election or nomination to that board or
other governing body was approved by individuals referred to in clauses (ii)(A)
and (B) above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body; provided that the
Required Lenders determine that, for purposes of this Agreement, any such event
or series of events described in this subpart (ii) shall constitute a Change in
Control.  


 


“Class”, when used in reference to any
Loan or Advance, refers to whether such Loan, or the Loans comprising such
Advance, are Revolving Loans, Term Loans or Swingline Loans and,


 


4

















 


when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment or Term Commitment.


 


“Closing Agenda” means the Closing
Agenda prepared by the Administrative Agent’s counsel setting forth the
required closing documentation and other items pursuant to Section 4.1, as
the same may be amended or modified from time to time.


 


“Closing Date” means the date on which
this Agreement is fully executed.


 


“Code” means the Internal Revenue Code
of 1986, as amended, reformed or otherwise modified from time to time.


 


“Commitment” means a Revolving
Commitment or Term Commitment, or any combination thereof (as the context
requires).


 


“Consolidated Capital Expenditures”
means, with reference to any period, the Capital Expenditures of the Borrower
and its Subsidiaries calculated on a consolidated basis for such period.


 


“Consolidated Dividends” means, with
reference to any period, any dividends or distributions on the membership
interests, capital stock or other equity interests of Borrower or any of its
Subsidiaries (other than dividends payable in its own membership interests,
capital stock or other equity interests) or the redemption, repurchase or other
acquisition or retirement of any of the membership interests, capital stock or
other equity interests of Borrower or any of its Subsidiaries at any time
outstanding, all calculated on a consolidated basis for such period, except for
dividends or distributions made by any Subsidiary to the Borrower.


 


“Consolidated EBIT” means, with respect
to any period, Consolidated Net Income plus,
to the extent deducted from revenues in determining Consolidated Net Income,
(i) Consolidated Interest Expense, (ii) income tax expense, calculated for the
Borrower and its Subsidiaries on a consolidated basis, and (iii) extraordinary
losses (determined in accordance with Agreement Accounting Principles) incurred
other than in the ordinary course of business, calculated for the Borrower and
its Subsidiaries on a consolidated basis, minus,
to the extent included in Consolidated Net Income, extraordinary gains
(determined in accordance with Agreement Accounting Principles) realized other
than in the ordinary course of business, calculated for the Borrower and its
Subsidiaries on a consolidated basis.


 


“Consolidated EBITDA” means with
respect to any period, Consolidated Net Income plus,
to the extent deducted from revenues in determining Consolidated Net Income,
(i) Consolidated Interest Expense, (ii) income tax expense, calculated for the
Borrower and its Subsidiaries on a consolidated basis, (iii) depreciation,
calculated for the Borrower and its Subsidiaries on a consolidated basis, (iv)
amortization, calculated for the Borrower and its Subsidiaries on a
consolidated basis; and (v) extraordinary losses (determined in accordance with
Agreement Accounting Principles) incurred other than in the ordinary
course of business, calculated for the Borrower and its Subsidiaries on a
consolidated basis, minus, to the
extent included in Consolidated Net Income, extraordinary gains (determined in
accordance with


 


5

















 


Agreement Accounting Principles) realized other than in the ordinary
course of business, calculated for the Borrower and its Subsidiaries on a
consolidated basis.


 


“Consolidated Funded Indebtedness”
means at any time (a) the aggregate dollar amount of Indebtedness of the
Borrower and its Subsidiaries which has actually been funded and is
outstanding, whether or not such amount is due or payable at such time, and (b)
all reimbursement obligations under outstanding Letters of Credit which (i) may
be presented, or (ii) have been presented and have not yet been paid; all
calculated for the Borrower and its Subsidiaries on a consolidated basis as of
such time.


 


“Consolidated Indebtedness” means at
any time the Indebtedness of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.


 


“Consolidated Interest Expense” means,
with reference to any period, the interest expense of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.


 


“Consolidated Net Income” means, with
reference to any period, the net income (or loss) of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.


 


“Consolidated Net Worth” means at any
time the consolidated shareholders’ equity of the Borrower and its Subsidiaries
calculated on a consolidated basis as of such time.


 


“Consolidated Tangible Net Worth” of
Borrower means, at any date, Consolidated Net Worth, less all related
Intangible Assets, determined at such date. 
For purposes of this definition, “Intangible Assets” means the amount
(to the extent reflected in determining Consolidated Net Worth) of (i) all
write-ups in the book value of any asset owned by the Borrower and its
Subsidiaries, (ii) all Equity Investments of Borrower in its Subsidiaries
and/or Affiliates, and (iii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses and other intangible assets of Borrower
and its Subsidiaries, calculated on a consolidated basis.


 


“Contingent Obligation” of a Person
means any agreement, undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation
or liability of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person, or otherwise
assures any creditor of such other Person against loss, including any comfort
letter, operating agreement, take-or-pay contract or the obligations of any
such Person as general partner of a partnership with respect to the liabilities
of the partnership.


 


“Conversion/Continuation Notice” is
defined in Section 2.7.


 


“Controlled Group” means all members of
a controlled group of corporations or other business entities and all trades or
businesses (whether or not incorporated) under common


 


6

















 


control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.


 


“Credit Extension” means the making of
an Advance or the issuance of a Facility LC hereunder.


 


“Credit Extension Date” means the
Borrowing Date for an Advance or the issuance date for a Facility LC.


 


“Default” is defined in
Article VII.


 


“Dollar” and “Dollars” refer to U.S. currency.


 


“Effective Date” means the date on
which the conditions specified in Section 4.1 are satisfied.


 


“Eligible Accounts Receivable” means,
at any date, the portion of the Accounts Receivable arising in the ordinary
course of business from the sale of goods or services by Borrower and its
Subsidiaries that the Administrative Agent determines in its sole good faith
discretion, based on credit policies, market conditions, the business of
Borrower and its Subsidiaries and other criteria, is eligible, it being
understood and agreed that the Administrative Agent may determine that any
Accounts Receivable are not eligible based upon the criteria set forth below
and any other criteria which the Administrative Agent from time to time
determines, in its reasonable discretion, is appropriate, including, without
limitation, any criteria used from time to time by any Lender in such
determination in connection with credit facilities extended to any Person in a
business similar or reasonably related to that of Borrower and similarly
situated.  An Account Receivable shall
not be deemed an “Eligible Account Receivable” unless such Account Receivable
is subject to a perfected first priority security interest in favor of the
Administrative Agent for itself and for the benefit of the Lenders and is not
subject to any other lien, encumbrance, or security interest, is evidenced by
an invoice or other documentary evidence satisfactory to the Administrative
Agent, is unconditionally due and payable in Dollars to the Borrower or a
Subsidiary of Borrower from a party (the “Account Debtor”) and conforms to the
warranties regarding the accounts contained in this Agreement.  Without limiting the generality of the
foregoing, no Account Receivable shall be an Eligible Account Receivable if:


 


(a)                                  the Account Receivable is due and unpaid more
than 90 days from the original invoice date;


 


(b)                                 the Account Receivable arises from
uncompleted performance on the part of the Borrower or any Subsidiary of
Borrower, constitutes a progress billing or advance billing, is a “bill and
hold,” or, if involving a sale of goods, all such goods have not been lawfully
shipped and invoiced to the Account Debtor (or if requested by the
Administrative Agent, copies of all invoices, together with all shipping
documents and delivery receipts evidencing such shipment have not been
delivered to the Administrative Agent);


 


(c)                                  the Account Receivable arises from a contract
with any Government Authority;


 


7

















 


(d)                                 the Account Receivable is subject to any
prior assignment, claim, lien, subrogation rights or security interest, or
subject to any levy or setoff;


 


(e)                                  the Account Receivable is subject to any
credit, contra account, allowance, adjustment, return of goods, or discount
(collectively a “Contra”), provided, however, that unless the Account Debtor
has asserted a Contra, if the amount of the Account Receivable exceeds the
amount of the Contra, such excess shall be considered for eligibility if such
excess is not otherwise excluded from being an Eligible Account Receivable;


 


(f)                                    the Account Receivable arises from an
Affiliate of Borrower or any Subsidiary of Borrower;


 


(g)                                 the Account Receivable, when added to all
other Accounts Receivable of the Account Debtor, produces an aggregate
indebtedness from the Account Debtor of more than 30% of the total of all the
Eligible Accounts Receivable;


 


(h)                                 the Account Debtor is subject to bankruptcy,
receivership or similar proceedings or is insolvent;


 


(i)                                     the Account Receivable is evidenced by any
chattel paper, promissory note, payment instrument or written agreement or
arises from a consumer which is a natural person;


 


(j)                                     the Account Receivable arises from an Account
Debtor whose mailing address or executive office is located outside the United
States;


 


(k)                                  the Account Receivable arises from an Account
Debtor to whom goods are shipped on a “cash on delivery” or C.O.D. basis;


 


(l)                                     the Account Receivable arises from an Account
Debtor having 25% or more of its Accounts Receivable (in Dollar value or in
number of Accounts Receivable) not considered to be Eligible Accounts
Receivables; the Account Receivable arises from an Account Debtor who has more
than 50% of its Accounts Receivable in Dollar value or in number of accounts with
Borrower or any Subsidiary of Borrower more than 60 days past due; and/or


 


(m)                               the Administrative Agent has notified the
Borrower that the Account Receivable or the Account Debtor is unsatisfactory or
unacceptable (which the Administrative Agent reserves the right to do in its
sole discretion at any time).


 


“Eligible Fixed Assets” means, at any
date, the aircraft and related tangible fixed assets of Borrower and Guarantor
which constitutes Collateral under the Security Agreements and in which the
Administrative Agent for itself and for the benefit of the Lenders has a first
and exclusive perfected security interest, and that the Administrative Agent
determines from time to time, based on credit policies, market conditions, the
business of Borrower and the Subsidiaries and other matters, is eligible for
use in calculating the Borrowing Base.


 


8

















 


“Eligible Inventory” means, at any
date, that portion of the Inventory, determined at such date, in which the
Administrative Agent for itself and for the benefit of the Lenders has a first
and exclusive perfected security interest and that the Administrative Agent
determines from time to time, based on credit policies, market conditions, the
business of Borrower and the Subsidiaries and other matters, is eligible for
use in calculating the Borrowing Base, it being understood and agreed that the
Administrative Agent may determine that any Inventory is not eligible for use
in calculating the Borrowing Base based upon the criteria set forth below and
any other criteria which the Administrative Agent from time to time determines,
in its reasonable discretion, is appropriate, including, without limitation,
any criteria used from time to time by any Lender in such determination in
connection with credit facilities extended to any Person in a business similar
or reasonably related to that of Borrower and similarly situated.  For purposes of determining the Borrowing
Base, Eligible Inventory shall not include:


 


(a)                                  work in process;


 


(b)                                 obsolete or discontinued Inventory;


 


(c)                                  supply items, packaging, or the freight
portion of raw materials;


 


(d)                                 Inventory in the control of a third person
for processing, storage, or otherwise unless a bailee’s waiver or secured party
of bailee’s waiver, as applicable, is delivered to the Administrative Agent in
form satisfactory to the Administrative Agent, together with the original
documents or other instruments evidencing such Inventory, or such other
agreements or other documents as the Administrative Agent shall require in its
sole and absolute discretion;


 


(e)                                  consigned Inventory;


 


(f)                                    Inventory in transit;


 


(g)                                 Inventory associated with any contract if the
Borrower or any Subsidiary of the Borrower has knowledge that the same may be
subject to a material adverse development;


 


(h)                                 Inventory located outside the United States;
and/or


 


(i)                                     Inventory associated with any contract to the
extent that progress or advance payments are received from the Account Debtor
to the extent such Inventory is identified to such contract.


 


All
Inventory shall be valued for the purposes of determining the Borrowing Base,
at the lesser of cost (on a FIFO basis)  or
market.


 


“Environmental Laws” means any and all
federal, state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the environment,
(ii) the effect of the environment on human health, (iii) emissions, discharges
or releases of pollutants, contaminants, hazardous substances


 


9

















 


or wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.


 


“Equity  Investment” of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person, except to the extent any of
the foregoing constitutes, as to the Person receiving such Equity Investment,
Permitted Indebtedness.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended from time to time, and any rule or
regulation issued thereunder.


 


“Eurodollar Advance” means an Advance
which, except as otherwise provided in Section 2.11, bears interest at the
applicable Eurodollar Rate.


 


“Eurodollar Base Rate” means, with
respect to a Eurodollar Advance for the relevant Interest Period, an interest
rate per annum (based on a 360-day year) obtained by dividing (i) the actual or
estimated arithmetic mean of the per annum rates of interest at which deposits
in U.S. dollars, for a period of time equal to the Interest Period in effect
with respect to the relevant Loan, and in an aggregate amount comparable to the
amount of the principal balance of the Loan, are being offered to U.S. banks by
one or more prime banks in the London interbank market on the second Business
Day prior to the first day of each Interest Period, as offered and determined
by Lender in accordance with its standard practices and procedures based upon
reference to information which appears on page LIBOR01 captioned “British
Bankers Assoc. Interest Settlement Rates” of the Reuters America Network, a
service of Reuters America, Inc. (or such other page that may replace that page
on that service for the purpose of displaying London interbank offered rates),
or, if such service ceases to be available or ceases to be used by Lender, such
other reasonably comparable money rate service selected by Lender, for
obtaining rate quotations, or any other reasonable procedure, all as determined
by Lender; by (ii) a percentage equal to 100% minus the Reserve Requirement. 


 


“Eurodollar Loan” means a Loan which,
except as otherwise provided in Section 2.11, bears interest at the
applicable Eurodollar Rate.


 


“Eurodollar Rate” means, with respect
to a Eurodollar Advance for the relevant Interest Period, the sum of (i) the
Eurodollar Base Rate applicable to such Interest Period, plus (ii) the
Applicable Margin.


 


“Excluded Taxes” means, in the case of
each Lender or applicable Lending Installation, the Swingline Lender, the LC
Issuer and the Administrative Agent, taxes imposed on its overall net income or
net worth, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender, the Swingline Lender, the LC Issuer or the
Administrative Agent, as applicable, is incorporated or organized, or (ii) the
jurisdiction in which the Administrative


 


10

















 


Agent’s or such Lender’s or LC Issuer’s or Swingline Lender’s principal
executive office or applicable Lending Installation is located.


 


“Exhibit” refers to an exhibit to this
Agreement, unless another document is specifically referenced.


 


“Facility LC” is defined in
Section 2.19.1.


 


“Facility LC Application” is defined in
Section 2.19.3.


 


“Facility Termination Date” means
September 30, 2005 or any earlier date on which the Aggregate Commitment
is reduced to zero or otherwise terminated pursuant to the terms hereof.


 


“Fast Forward” means Fast Forward
Solutions, LLC, an Ohio limited liability company.


 


“Fast Forward Guaranty” means that
certain Guaranty, dated of even date herewith, executed by Fast Forward in
favor of the Administrative Agent, for the benefit of the Lenders, as the same
may be amended, modified, supplemented, extended, restated and/or replaced from
time to time.


 


“Federal Funds Effective Rate” means,
for any day, an interest rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published for
such day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
at approximately 10:00 a.m. (Columbus, Ohio time) on such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.


 


“Final Judgment” is defined in
Section 12.6(ii).


 


“Financial Contract” of a Person means
any exchange-traded or over-the-counter futures, forward, swap or option
contract or other financial instrument with similar characteristics, to the
extent any of the same are entered into for speculative (rather than risk
management) purposes.


 


“Fixed Charge Coverage Ratio” means, as
of any date of calculation, the ratio of (i) (1) Consolidated EBITDA, minus (2)
the sum of (a) taxes actually paid by the Borrower and its Subsidiaries on a
consolidated basis, and (b) Maintenance Capital Expenditures divided by (ii)
(1) principal and interest payments scheduled with respect to Consolidated
Indebtedness, plus (2) Consolidated Dividends. 
For purposes of clarification, payment by the Borrower of any principal
and/or interest relating to the obligations required to be paid pursuant to
Section 4.1(d) shall not be included in the calculation of Fixed Charge
Coverage Ratio.


 


“Float” means Float Control, Inc., a
Michigan corporation.


 


11

















 


“Floating Rate” means, for any day, a
rate per annum equal to (i) the Alternative Base Rate for such day plus
(ii) the Applicable Margin, in each case changing when and as the Prime Rate or
the Federal Funds Effective Rate, as applicable, changes.


 


“Floating Rate Advance” means an
Advance which, except as otherwise provided in Section 2.11, bears
interest at the Floating Rate.


 


“Floating Rate Loan” means a Loan
which, except as otherwise provided in Section 2.11, bears interest at the
Floating Rate.


 


“Governmental Authority” means any
national government, central bank or comparable agency, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.


 


“Guarantor” means, separately and
collectively, AMI, Float, Jetride, Timexpress and Fast Forward, each of which
is a Wholly-Owned Subsidiary of Borrower. 



 


“HNB” means The Huntington National
Bank, a national banking association, in its individual capacity, and its
successors and assigns.


 


“Indebtedness” of a Person means such
Person’s (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than accounts payable
and accrued expenses arising in the ordinary course of such Person’s business
payable on terms customary in the trade), (iii) obligations, whether or not
assumed, secured by Liens against, or payable out of the proceeds or production
from, Property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other instruments,
(v) obligations of such Person to purchase securities or other Property arising
out of or in connection with the sale of the same or substantially similar
securities or Property, (vi) Capitalized Lease Obligations, (vii) Contingent
Obligations, and (viii) any other obligation for borrowed money which in
accordance with Agreement Accounting Principles would be shown as a liability
on the consolidated balance sheet of such Person.


 


“Interest Period” means, with respect
to a Eurodollar Advance, a period of one, two, three or six months commencing
on a Business Day selected by the Borrower pursuant to this Agreement.  Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however,
that if there is no such numerically corresponding day in such next, second,
third or sixth succeeding month, such Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month.  If an Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however,
that if said next succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business Day. 


 


“Inventory” shall mean at any date the
total of all goods which would be properly classified in accordance with
Agreement Accounting Principles as inventory on the consolidated balance sheet
of the Borrower and its Subsidiaries at such date.


 


12

















 


“Investment” of a Person means any
loan, advance (other than commission, travel and similar advances to officers
and employees made in the ordinary course of business), extension of credit
(other than accounts receivable arising in the ordinary course of business on
terms customary in the trade) or contribution of capital by such Person;
stocks, bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person which do not constitute Cash Equivalents; and
Financial Contracts, derivative financial instruments and other similar
instruments or contracts owned by such Person.


 


“Jetride” means Jetride, Inc., an Ohio
corporation.


 


“LC Disbursement” means a payment made
by the LC Issuer pursuant to a Facility LC.


 


“LC Fee” is defined in
Section 2.19.4.


 


“LC Issuer” means HNB (or any
subsidiaries or affiliates of HNB designated by HNB) in its capacity as issuer
of Facility LCs hereunder.


 


“LC Obligations” means, at any time,
the sum, without duplication, of (i) the aggregate undrawn stated amount under
all Facility LCs outstanding at such time plus (ii) the aggregate unpaid
amount at such time of all Reimbursement Obligations.


 


“LC Payment Date” is defined in
Section 2.19.5.


 


“Lenders” means the lending
institutions listed on the signature pages of this Agreement and their
respective successors and assigns. Unless the context otherwise requires, the
term “Lenders” includes the Swingline Lender.


 


“Lending Installation” means, with
respect to a Lender, the Swingline Lender or the Administrative Agent, the
office, branch, subsidiary or affiliate of such Lender, the Swingline Lender or
the Administrative Agent listed on the signature pages hereof or on a
Schedule or otherwise selected by such Lender, the Swingline Lender or the
Administrative Agent pursuant to Section 2.17.  


 


“Letter of Credit” of a Person means a
letter of credit which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any way
liable.


 


“Leverage Ratio” means, as of any date
of calculation, the ratio of (i) Consolidated Funded Indebtedness outstanding
on such date divided by (ii) Consolidated EBITDA for the Borrower’s then
most-recently ended four fiscal quarters.


 


“Lien” means any lien (statutory or
other), mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or


 


13

















 


preferential arrangement of any kind or nature whatsoever (including
the interest of a vendor or lessor under any conditional sale, Capitalized
Lease or other title retention agreement).


 


“Loan Documents” means this Agreement,
the Facility LC Applications, the Security Agreements, the Pledge, the Notes,
the Subsidiary Guaranty, the Fast Forward Guaranty, the Timexpress Guaranty and
any other documents and/or instruments given pursuant hereto or thereto or
otherwise in connection herewith or therewith.


 


“Loans” means the loans made by the
Lenders to the Borrower pursuant to this Agreement (or any conversion or
continuation thereof).


 


“Maintenance Capital Expenditures”
means capital expenditures which maintain or extend the useful life of
aircraft, exclusive of costs associated with the purchase and installation of
Required Vertical Separate Minimum modules, Global Positioning Systems and
Shadin Digital Fuel Management Systems on aircraft operated by the Borrower or
any Subsidiary.


 


“Margin Stock” has the meaning assigned
to such term in Regulation U.


 


“Market Value” means the “Market Value”
as set forth in the most recent quarterly Price Digest Report published by
Primedia which is reviewed and accepted by HNB’s Equipment Finance Division.


 


“Material Adverse Effect” means a
material adverse effect on (i) the business, Property, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries taken
as a whole, (ii) the ability of the Borrower to perform its obligations under
the Loan Documents to which it is a party, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent, the LC Issuer, the Swingline Lender or the Lenders
thereunder.


 


“Material Indebtedness” shall have the
meaning set forth in Section 7.5.


 


“Maturity Date” means
September 30, 2007.


 


“Maximum Rate” shall have the meaning
set forth in Section 12.20.


 


“Modify” and “Modification” are defined in
Section 2.19.1.


 


“Moody’s” means Moody’s Investors
Service, Inc.


 


“Multiemployer Plan” means a Plan
maintained pursuant to a collective bargaining agreement or any other
arrangement to which the Borrower or any member of the Controlled Group is a
party to which more than one employer is obligated to make contributions.


 


“Note” means any promissory note issued
at the request of a Lender pursuant to Section 2.12 of the Original Credit
Agreement, or any replacement thereof, which shall be in the form of Exhibit E.


 


14

















 


“Notice of Assignment” is defined in
Section 11.3.2.


 


“Obligations” means all unpaid
principal of and accrued and unpaid interest on the Loans, all Reimbursement
Obligations, all accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or to any Lender,
the Swingline Lender, the Administrative Agent, the LC Issuer or any
indemnified party arising under the Loan Documents or to the Lenders, or to any
Lender or the Administrative Agent, or any Affiliate of any of them in
connection with any Rate Management Transactions.


 


“Off-Balance Sheet Liability” of a
Person means (i) any repurchase obligation or repurchase liability of such
Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability under any Sale and Leaseback Transaction which is not a
Capitalized Lease, (iii) any liability under any so-called “synthetic lease”
transaction entered into by such Person, or (iv) any obligation arising with
respect to any other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on the balance
sheet of such Person, but excluding from this clause (iv) Operating Lease
Obligations.


 


“Operating Lease” of a Person means any
lease of Property (other than a Capitalized Lease) by such Person as lessee
which has an original term (including any required renewals and any renewals
effective at the option of the lessor) of more than one year.


 


“Operating Lease Obligations” means, as
at any date of determination, the amount obtained by aggregating the present
values, determined in the case of each particular Operating Lease by applying a
discount rate (which discount rate shall equal the discount rate which would be
applied under Agreement Accounting Principles if such Operating Lease were a
Capitalized Lease) from the date on which each fixed lease payment is due under
such Operating Lease to such date of determination, of all fixed lease payments
due under all Operating Leases of the Borrower and its Subsidiaries.


 


“Other Taxes” is defined in
Section 3.5(ii).


 


“Outstanding Credit Exposure” means, as
to any Lender at any time, the sum of (i) the aggregate principal amount of its
Revolving Loans outstanding at such time, plus (ii) the aggregate
principal amount of its Term Loans outstanding at such time, plus (iii)
an amount equal to its Applicable Percentage of the LC Obligations at such
time, plus (iv) an amount equal to its Swingline Exposure.


 


“Outstanding Revolving Credit Exposure”
means, as to any Lender at any time, the sum of (i) the aggregate principal
amount of its Revolving Loans outstanding at such time, plus (ii) an
amount equal to its Applicable Percentage of the LC Obligations at such time,
plus (iii) an amount equal to its Swingline Exposure.


 


“Participants” is defined in
Section 11.2.1.


 


15

















 


“Payment Date” means (i) with respect
to all Loans other than Swingline Loans, the last day of June, 2004 and the
last day of each third month thereafter through the Maturity Date, (ii) with
respect to Swingline Loans, the last day of June, 2004 and the last day of each
month thereafter through the Maturity Date.


 


“PBGC” means the Pension Benefit
Guaranty Corporation, or any successor thereto.


 


“Permitted Indebtedness” is defined in
Section 6.11.


 


“Permitted Liens” is defined in
Section 6.15.


 


“Person” means any natural person,
corporation, firm, joint venture, partnership, limited liability company,
association, enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or
instrumentality thereof.


 


“Plan” means an employee pension
benefit plan which is covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code as to which the Borrower or
any member of the Controlled Group may have any liability.


 


“Pledge” means, separately and
collectively, that certain Stock Pledge Agreement and that certain Security
Agreement, Pledge and Assignment of Membership Interest, each dated of even
date herewith, given by Borrower in favor of the Administrative Agent, for the
benefit of the Lenders, as the same may be amended, modified, supplemented,
extended, restated and/or replaced from time to time.


 


“Pricing Schedule” means the
Schedule attached hereto identified as such.


 


“Prime Rate” means the “prime rate”
established by HNB from time to time based on its consideration of economic,
money market, business and competitive factors, and it is not necessarily HNB’s
most favored rate.  In the event HNB
shall abolish or abandon the practice of establishing its Prime Rate or should
the same be unascertainable, HNB shall designate a comparable reference rate
which shall be deemed to be the Prime Rate under this Agreement and the other
Loan Documents.


 


“Property” of a Person means any and
all property, whether real, personal, tangible, intangible, or mixed, of such
Person, or other assets owned or leased.


 


“Purchasers” is defined in
Section 11.3.1.


 


“Rate Management Transaction” means any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into between the Borrower and any Lender or Affiliate thereof
which is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of these


 


16

















 


transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.


 


“Rate Management Obligations” of a
Person means any and all obligations of such Person, whether absolute or
contingent and howsoever and whenever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii) any and
all cancellations, buy backs, reversals, terminations or assignments of any
Rate Management Transactions.


 


“Regulation D” means Regulation D of
the Board as from time to time in effect and any successor thereto or other
regulation or official interpretation of the Board relating to reserve
requirements applicable to member banks of the Federal Reserve System.


 


“Regulation T” means Regulation T of
the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.


 


“Regulation U” means Regulation U of
the Board as from time to time in effect and any successor or other regulation
or official interpretation of the Board relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System.


 


“Regulation X” means Regulation X of
the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof.


 


“Reimbursement Obligations” means, at
any time, the aggregate of all obligations of the Borrower then outstanding
under Section 2.19 to reimburse the LC Issuer for amounts paid by the LC
Issuer in respect of any one or more drawings under Facility LCs.


 


“Reportable Event” means a reportable
event as defined in Section 4043 of ERISA and the regulations issued under
such section, with respect to a Plan, excluding, however, such events as to
which the PBGC has by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of such event, provided, however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.


 


“Reports” has the meaning set forth in
Section 12.6.


 


“Required Lenders” means, at any time,
Lenders in the aggregate having at least 51% of the (i) Term Loans and (ii)
Aggregate Revolving Commitment or, if the Aggregate Revolving Commitment has
been terminated, the Aggregate Outstanding Revolving Credit Exposure.


 


“Required Property Insurance Coverage”
means at any time insurance insuring all Property of the Borrower and its
Subsidiaries against loss or damage by fire, lightning, vandalism and malicious
mischief and all other perils covered by standard “extended coverage” or
“all-risk” insurance and such other risks and losses as is consistent with
sound business practices and is 


 


17

















 


customarily
maintained from time to time by similar businesses similarly situated and
owning, leasing or operating similar properties, including, without limitation,
war and terrorism coverage with respect to all jet aircraft; all in such
amounts, and having such deductibles from the loss payable for any casualty, as
is customary from time to time for similar businesses similarly situated and
owning, leasing or operating similar properties.  If any insurance policies with respect to Required Property
Insurance Coverage is written on a co-insurance basis, such policy must contain
an agreed amount endorsement as evidence that the coverage is in an amount
sufficient to insure the full amount of such Property.


 


“Required Public Liability Insurance Coverage”
means comprehensive general accident and public liability insurance (including,
without limitation, coverage for product liability, and elevators and
escalators, if any, on property owned or leased by the Borrower and its
Subsidiaries) against injury, loss and/or damage to persons and property and
such other risks and losses as is consistent with sound business practices and
is customarily maintained from time to time by similar businesses similarly
situated and owning, leasing or operating similar properties; all in such
amounts as is customary from time to time for similar businesses similarly
situated and owning, leasing or operating similar properties.


 


“Reserve Requirement” means, with
respect to an Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on Eurocurrency liabilities.


 


“Revolving Commitment” means, for each
Lender, the obligation of such Lender to make Revolving Loans to, and to make
or participate in Swingline Loans and Facility LCs issued upon the application
of, the Borrower in an aggregate amount not exceeding the amount set forth on
the signature pages below or as set forth in any Notice of Assignment relating
to any assignment that has become effective pursuant to Section 11.3.2, as
such amount may be modified from time to time pursuant to the terms hereof.


 


“Revolving Lender” means a Lender with
a Revolving Commitment or, if the Revolving Commitments have terminated or
expired, a Lender with Outstanding Revolving Credit Exposure. 


 


“Revolving Loan” and “Revolving Loans” means a Loan or the
Loans, respectively, made pursuant to clause (b) of Section 2.1.


 


“Rickenbacker Facility” means the
corporate and operational headquarters to be constructed, owned and operated by
the Borrower on an eight acre leased portion of the real property known as
Rickenbacker International Airport, located in Franklin and Pickaway Counties,
Ohio and leased to Borrower.


 


“S&P” means Standard and Poor’s
Ratings Services, a division of The McGraw Hill Companies, Inc.


 


18

















 


“Sale and Leaseback Transaction” means
any sale or other transfer of Property by any Person with the intent to lease
such Property as lessee.


 


“Schedule” refers to a specific
schedule to this Agreement, unless another document is specifically
referenced.


 


“Section” means a numbered
section of this Agreement, unless another document is specifically
referenced.


 


“Security Agreements” means, separately
and collectively, each of the (i) Continuing Security Agreement dated of even
date herewith, executed by Borrower and each Guarantor in favor of the
Administrative Agent, for the benefit of the Lenders, and (ii) Mortgage,
Security Agreement and Assignment given by Borrower in favor of the
Administrative Agent, for the benefit of the Lenders, as the same may be
amended, modified, supplemented, extended, restated and/or replaced from time
to time.


 


“Security Documents” means, separately
and collectively, the Security Agreements and the Pledge.


 


“Single Employer Plan” means a Plan
maintained by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.


 


“Subsidiary” of a Person means (i) any
corporation more than 50% of the outstanding securities having ordinary voting
power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, or (ii) any partnership, limited
liability company, association, joint venture or similar business organization
more than 50% of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. 
Unless otherwise expressly provided, all references herein to a
“Subsidiary” means a Subsidiary of the Borrower.


 


“Subsidiary Guaranty” means that
certain Replacement Subsidiary Guaranty, dated of even date herewith, executed
by the AMI, Float and Jetride in favor of the Administrative Agent, for the
benefit of the Lenders, as the same may be amended, modified, supplemented,
extended, restated and/or replaced from time to time.


 


“Substantial Portion” means, with
respect to the Property of the Borrower and its Subsidiaries, Property which
(i) represents more than 10% of the consolidated assets of the Borrower and its
Subsidiaries as would be shown in the consolidated financial statements of the
Borrower and its Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Borrower and its Subsidiaries as reflected in
the financial statements referred to in clause (i) above; provided,
however, that “10%”, as it appears in subparts (i) and (ii) above, shall be
changed to and shall mean, for all purposes of this definition, 20% provided
that the net proceeds (after payment of reasonable costs and expenses
associated with any such sale, including reasonable attorneys’ fees) upon sale
or other disposition by the Borrower or any Subsidiary of the consolidated
assets referenced in (i)


 


19

















 


and
(ii) above are within 90 days of such sale or other disposition, (a) reinvested
in assets of the Borrower and its Subsidiaries which are of similar type and
substantially equivalent value as such consolidated assets so sold or otherwise
disposed of, and/or (b) paid to Administrative Agent for application in
accordance herewith to the amounts owing under the Term Loan.


 


“Swingline Exposure” means, at any
time, the aggregate principal amount of all Swingline Loans outstanding at such
time.  The Applicable Percentage of any
Lender of the total Swingline Exposure at any time shall be the same as such
Lender’s Applicable Percentage of the total Aggregate Revolving Commitment at
such time.


 


“Swingline Lender” means HNB or any of
its Affiliates, in its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” means a Loan made
pursuant to Section 2.9.


 


“Taxes” means any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
any and all liabilities with respect to the foregoing, but excluding Excluded Taxes.


 


“Term Commitment” means, with respect
to each Lender, the commitment, if any, of such Lender to make a Term Loan
hereunder on the Effective Date, expressed as an amount representing the
maximum principal amount of the Term Loan to be made by such Lender hereunder.  The amount of each Lender’s Term Commitment
is set forth on the signature pages below, or in the assignment substantially
in the form of Exhibit C pursuant to which such Lender shall have assumed its
Term Commitment, as applicable. The aggregate amount of the Lenders’ Term
Commitments is $14,000,000.00. 


 


“Term Lender” means a Lender with a
Term Commitment or an outstanding Term Loan.


 


“Term Loan” and “Term Loans” mean each Loan and the
Loans made pursuant to clause (a) of Section 2.1.


 


“Timexpress” means timexpress.com,
inc., an Ohio corporation.


 


“Timexpress Guaranty” means that
certain Guaranty, dated of even date herewith, executed by Timexpress in favor
of the Administrative Agent, for the benefit of the Lenders, as the same may be
amended, modified, supplemented, extended, restated and/or replaced from time
to time.


 


“Transferee” is defined in
Section 11.4.


 


“Type” means, with respect to any
Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.  


 


“Unfunded Liabilities” means the amount
(if any) by which the present value of all vested and unvested accrued benefits
under all Single Employer Plans exceeds the fair market value of


 


20

















 


all
such Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans using PBGC actuarial assumptions for
single employer plan terminations.


 


“Unmatured Default” means an event
which but for the lapse of time or the giving of notice, or both, would
constitute a Default.


 


“U.S.” means the United States of
America.


 


“Wholly-Owned Subsidiary” of a Person
means (i) any Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled by such Person or, (ii) any
partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.


 


Section 1.2.                                   Classification of Loans and Advances. For purposes of this Agreement, Loans may
be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”).  Advances also may be classified
and referred to by Class (e.g., a “Revolving Advance”) or by Type (e.g., a
“Eurodollar Advance”) or by Class and Type (e.g., a “Eurodollar Revolving
Advance”).


 


Section 1.3.                                   Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, and (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement.


 


Section 1.4.                                   Accounting Terms. 
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with Agreement
Accounting Principles, as in effect from time to time, provided that, if the Borrower notifies
the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in Agreement Accounting Principles or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in Agreement Accounting Principles or in the application
thereof, then such provision shall be interpreted on the basis of Agreement
Accounting Principles as in effect and applied immediately before such change
shall have become effective until such notice shall have


 


21

















 


been
withdrawn or such provision amended in accordance herewith.  Whenever under this Agreement any financial
information, data and the like is calculated on a consolidated basis for the
Borrower and its Subsidiaries, such financial information, data and the like of
such Subsidiary shall be included only to the extent of the Borrower’s percentage
of ownership of such Subsidiary.  Any
reference in this Agreement to the terms “extraordinary losses” and
“extraordinary gains” shall mean such losses and gains, respectively,
categorized by the Company’s external auditors as extraordinary in the
financial statements of the Company prepared in accordance with Agreement
Accounting Principles in effect at the date of such financial statements.  Notwithstanding anything contained or
implied herein to the contrary, no change in Agreement Accounting Principles
shall require the restatement of any financial statements dated prior to such
change and provided to any Lender, the Administrative Agent, the Swingline
Lender or the LC Issuer.  Further, no
retroactive change shall be made (as a result of any change in Agreement
Accounting Principles which occurs after the date of any such financial
statements) in any of the calculations made hereunder based upon the
information contained in said financial statements including, without
limitation, the calculation of the Applicable Margin.


 


ARTICLE II


 


The Credits


 


Section 2.1                                      Commitments. Subject to the terms and conditions set forth herein, (a) each Lender
severally agrees to make a Term Loan to the Borrower on the Effective Date in a
principal amount not exceeding its Term Commitment, and (b) from and including
the Effective Date and prior to the Facility Termination Date, each Lender
severally agrees to (i) make Revolving Loans to the Borrower, and (ii)
participate in Facility LCs issued upon the request of the Borrower, provided that, after giving effect to the
making of each such Revolving Loan or the issuance of each such Facility LC,
(i) such Lender’s Outstanding Revolving Credit Exposure shall not exceed its
Revolving Commitment, and (ii) the maximum amount of all Loans (including all
Revolving Loans, the Term Loan and the LC Obligations) shall at no time exceed
the Borrowing Base.  Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans at any time prior to the Facility Termination Date. Amounts repaid in
respect of Term Loans may not be reborrowed. The Revolving Commitments to
extend Revolving Loans hereunder shall expire on the Facility Termination
Date.  The LC Issuer will issue Facility
LCs hereunder on the terms and conditions set forth in Section 2.19.  The Swingline Lender will make Swingline
Loans hereunder on the terms and conditions set forth in Section 2.9.


 


22

















 


Section 2.2.                                   Loans and
Advances.  


 


(i)                                     Each Loan (other than a Swingline Loan) shall
be made as part of an Advance consisting of Loans of the same Class and Type
made by the Lenders ratably in accordance with their respective Commitments of
the applicable Class.  Advances of more
than one Class and Type may be outstanding at the same time.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder, provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required hereunder.


 


(ii)                                  Each Advance of Revolving Loans and each
Advance of Term Loans shall be comprised entirely of Floating Rate Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each
Swingline Loan shall accrue interest at the rate offered with respect thereto
(not to exceed the Prime Rate) by the Swingline Lender.  Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.


 


Section 2.3.                                   Required Payments; Termination.  The
Revolving Commitment of each Lender shall terminate, and the Aggregate
Outstanding Revolving Credit Exposure and all other unpaid Obligations (other
than Obligations with respect to the Term Loans) shall be paid in full by the
Borrower, on the Facility Termination Date.


 


Section 2.4.                                   Commitment Fee; Facility Fee; Increases and
Reductions in Aggregate Commitment.  The Borrower agrees to pay to
the Administrative Agent for the account of each Lender according to its
Applicable Percentage, a commitment fee at a per annum rate equal to the
Applicable Fee Rate on the average daily Available Aggregate Revolving
Commitment (which shall be determined, notwithstanding anything contained
herein to the contrary or the definition of the term ‘Available Aggregate
Revolving Commitment’ as though no Swingline Loans are outstanding, whether or
not that is in fact the case) from the date hereof to and including the
Facility Termination Date, payable (in arrears) on each Payment Date hereafter
and on the Facility Termination Date. The Borrower may permanently reduce the
Aggregate Revolving Commitment in whole, or in part ratably among the Lenders,
in integral multiples of $5,000,000, upon at least five Business Days written
notice to the Administrative Agent, which notice shall specify the amount of
any such reduction, provided, however,
that the amount of the Aggregate Revolving Commitment may not be reduced below
the Aggregate Outstanding Revolving Credit Exposure.  All accrued commitment fees shall be payable on the effective date
of any termination of the obligations of the Lenders to make Credit Extensions
hereunder.  Upon the request by the
Borrower, with the consent of the Administrative Agent (which shall not be
unreasonably withheld or conditioned), Borrower may increase the Aggregate
Revolving Commitment by up to $10,000,000 provided that one or more Lenders or
other financial institutions selected by the Administrative Agent in
consultation with the Borrower are willing to increase its or their Revolving
Commitments by an aggregate amount equal to such increase.


 


23

















 


Section 2.5.                                   Minimum Amount of Each Advance; Eurodollar Advances.  


 


(i)                                     Each Eurodollar Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof).


 


(ii)                                  Each Floating Rate Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $100,000  in excess thereof), provided, however, that any Floating Rate
Advance may be in the lesser amount of the Available Aggregate Revolving
Commitment or the amount that is required to refinance the reimbursement of an
LC Disbursement as contemplated by Section 2.19.6.


 


(iii)                               There shall not at any time be more than a
total of five (5) Eurodollar Revolving Advances outstanding.


 


(iv)                              There shall not at any time be more than a
total of three (3) Eurodollar Term Advances outstanding.


 


Section 2.6.                                   Method of Selecting Types and Interest Periods for New Advances.  The
Borrower shall from time to time select the Class and Type of Advance and, in
the case of each Eurodollar Advance, the Interest Period applicable
thereto.  The Borrower shall give the
Administrative Agent irrevocable notice (a “Borrowing Notice”) not later than
noon (Columbus, Ohio time) at least one (1) Business Day before the date on
which Borrower desires that such Advance be made (the “Borrowing Date”) of each
Floating Rate Advance and three (3) Business Days before the Borrowing Date for
each Eurodollar Advance, specifying:


 


(i)                                     the Borrowing Date, which shall be a Business
Day, of such Advance,


 


(ii)                                  the aggregate amount of such Advance,


 


(iii)                               the Class and Type of Advance selected, and


 


(iv)                              in the case of each Eurodollar Advance, the
Interest Period applicable thereto.


 


If
no election as to Type of Advance is specified in the Borrowing Notice, the
requested Advance shall be a Floating Rate Advance.  If no Interest Period is specified with respect to the requested
Eurodollar Advance, then the Borrower shall be deemed to have selected an
Interest Period of one (1) month’s duration.


 


Not
later than noon (Columbus, Ohio time) one (1) Business Day after the notice
provided by Administrative Agent pursuant to Section 2.16, each Lender
shall make available its Floating Rate Loan or Floating Rate Loans, and, not
later than noon (Columbus, Ohio time) two (2) Business Days after the notice
provided by Administrative Agent pursuant to Section 2.16, each Lender
shall make available its Eurodollar Rate Loan or Eurodollar Rate Loans, in each
case by wire transfer of immediately available funds to the Administrative
Agent at its address specified pursuant to Section 12.14, provided that Swingline Loans shall be
made as provided in Section 2.9. 
The Administrative Agent will make the funds so received from the
Lenders available to the Borrower by 3:00 p.m. (Columbus, Ohio time) on the
Borrowing Date at the Administrative Agent’s aforesaid address.


 


24

















 


Section 2.7.                                   Conversion and Continuation of Outstanding Advances.  (i) Floating Rate Advances
shall continue as Floating Rate Advances unless and until such Floating Rate
Advances are converted into Eurodollar Advances pursuant to this
Section 2.7 or are repaid in accordance with the terms of this Agreement.  Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with the terms of this Agreement or (y) the Borrower
shall have given the Administrative Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period.  Subject to the terms
of Section 2.5, the Borrower may elect from time to time to convert all or
any part of a Floating Rate Advance into a Eurodollar Advance.  The Borrower shall give the Administrative
Agent irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of a Floating Rate Advance into a Eurodollar Advance or continuation
of a Eurodollar Advance not later than noon (Columbus, Ohio time) at least
three Business Days prior to the date of the requested conversion or
continuation, specifying:


 


(a)                                  the requested date, which shall be a Business
Day, of such conversion or continuation,


 


(b)                                 the aggregate amount and Class and Type of
the Advance which is to be converted or continued, and the interest rate and
expiration date of the Interest Period currently in effect with respect
thereto, if any, and


 


(c)                                  the amount of such Advance which is to be
converted into or continued as a Eurodollar Advance and the duration of the
Interest Period to be applicable thereto.


 


(ii)                                  This Section 2.7 shall not apply to
Swingline Loans, which may not be converted or continued.


 


Section 2.8.                                   Optional
Principal Payments.  The
Borrower may from time to time pay, without penalty or premium, all outstanding
Floating Rate Advances, or, in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, any portion of the outstanding
Floating Rate Advances upon two Business Days’ prior notice to the
Administrative Agent (and, in the case of prepayment of a Swingline Loan, upon
one Business Day’s prior notice to the Swingline Lender).  The Borrower may from time to time pay,
subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar
Advances, or, in a minimum aggregate amount of $1,000,000 or any integral
multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Advances upon three Business Days prior notice to the Administrative
Agent.  Unless specifically designated
in the applicable prepayment notice as an optional prepayment of principal of
the Term Loan, all prepayments of principal shall be applied to the Revolving
Loan (without any corresponding reduction in the Aggregate Revolving Commitment
unless done so in accordance with Section 2.4).  Any payment of Term Loan Advances prior to the maturity thereof
shall be applied to the principal installments thereof in reverse order of
maturity.


 


25

















 


Section 2.9.                                   Swingline Loans.  


 


(i)                                     Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower
from the Effective Date and prior to the Facility Termination Date in an aggregate
principal amount at any time outstanding that will not result in (x) the
Swingline Exposure exceeding $5,000,000, or (y) the Swingline Exposure
exceeding the difference between the Aggregate Revolving Commitment and the
Aggregate Outstanding Revolving Credit Exposure, provided that the Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.


 


(ii)                                  To request a Swingline Loan, the Borrower
shall give the Administrative Agent and the Swingline Lender irrevocable notice
of such request not later than noon (Columbus, Ohio time) on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date of disbursement (which shall be a Business Day) and
amount of the requested Swingline Loan. The Swingline Lender shall make each
Swingline Loan available to the Borrower at the Administrative Agent’s address
specified pursuant to Section 12.14 (or, in the case of a Swingline Loan
made to finance the reimbursement of an LC Disbursement, by remittance to the
LC Issuer) on the requested date of such Swingline Loan.


 


(iii)                               The Swingline Lender may by written notice
given to the Administrative Agent not later than noon (Columbus, Ohio time) on
any Business Day, require the Revolving Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Revolving Lender’s Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or Unmatured Default or the reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.6 with respect to Loans made by such Lender (and Section 2.6
shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Lenders. The Administrative Agent shall notify the Borrower
of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the


 


26

















 


Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.


 


Section 2.10.                             Changes in Interest Rate, etc.   Each
Floating Rate Advance shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is made or is
converted from a Eurodollar Advance into a Floating Rate Advance pursuant to
Section 2.7, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.7 hereof, at a rate per annum
equal to the Floating Rate for such day. 
Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Prime Rate or Federal Funds Effective Rate, as applicable.  Each Eurodollar Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined by the Administrative
Agent as applicable to such Eurodollar Advance based upon the Borrower’s
selections under Sections 2.6 and 2.7 and otherwise in accordance with the
terms hereof.  No Interest Period may
end after the Facility Termination Date.


 


Section 2.11.                             Rates Applicable After Default. 
Notwithstanding anything to the contrary contained in Section 2.6
or 2.7, during the continuance of a Default or Unmatured Default, no Advance
may be made as or converted into a Eurodollar Advance and each existing
Eurodollar Loan shall, upon the expiration of the Interest Period in effect
with respect to each such Eurodollar Loan, be automatically converted to a
Floating Rate Loan.  In addition, during
the continuance of a Default (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise applicable
to such Interest Period plus 2% per annum, (ii) each Floating Rate Advance
shall bear interest at a rate per annum equal to the Floating Rate in effect
from time to time plus 2%, and (iii) the LC Fee shall be increased by 2% per
annum.


 


Section 2.12.                             Repayment of Loans; Evidence of Debt.


 


(i)                                     The Borrower hereby unconditionally promises
to pay (a) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan of such Lender on the Facility
Termination Date, (b) to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Term Loan of such Lender as
provided in Section 2.13, and (c) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of (x) the Facility Termination
Date and (y) ten days after the date on which each such Swingline Loan is
advanced.


 


(ii)                                  All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent’s
address specified pursuant to Section 12.14, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the


 


27

















 


Borrower,
by noon (Columbus, Ohio time) on the date when due and shall (except in the
case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder,
including the payment of Obligations relating to Swingline Loans which are
required to be paid to the Swingline Lender) be applied ratably by the
Administrative Agent among the Lenders. 
Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at its
address specified pursuant to Section 12.14 or at any Lending Installation
specified in a notice received by the Administrative Agent from such
Lender.  The Administrative Agent is
hereby authorized to charge the account of the Borrower maintained with HNB for
each payment of principal and/or interest, Reimbursement Obligations and fees,
as any of the same becomes due hereunder. 
Each reference to the Administrative Agent in this Section 2.12
shall also be deemed to refer, and shall apply equally, to the LC Issuer in the
case of payments required to be made by the Borrower to the LC Issuer pursuant
to Section 2.19.6.


 


(iii)                               Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender from time
to time, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.


 


(iv)                              The Administrative Agent shall also maintain
accounts in which it will record (a) the amount of each Loan made hereunder,
the Class and Type thereof, and, as applicable, the Interest Period with
respect thereto, (b) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder, (c) the
original stated amount of each Facility LC and the amount of LC Obligations
outstanding at any time, and (d) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.  The Administrative Agent or
any Lender may, if the Administrative Agent or any Lender so elects in
connection with any transfer of its Loans or enforcement of this Agreement or
any Note, endorse on a schedule forming a part hereof or a Note
appropriate notation to evidence the foregoing information with respect to the
principal and interest then outstanding.


 


(v)                                 The entries maintained in the accounts
maintained pursuant to paragraphs (iii) and (iv) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided,
however, that the failure of the Administrative Agent or any Lender
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with the
terms and provisions hereof.


 


(vi)                              Loans of each Class shall continue to be
evidenced by the Notes, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such
Loans once again be evidenced as described in paragraphs (iii) and (iv) above.


 


Section 2.13.                             Amortization of Term Loans.  


 


(i)                                     Subject to adjustment pursuant to paragraph
(iii) of this Section, the Borrower shall repay Term Advances in fourteen (14)
consecutive quarterly installments, each in the


 


28

















 


amount
of $1,000,000, commencing on the last day of June, 2004, and continuing on each
Payment Date thereafter through the Maturity Date.


 


(ii)                                  To the extent not previously paid, all Term
Advances shall be due and payable on the Maturity Date.


 


(iii)                               If the initial aggregate amount of the
Lenders’ Term Commitments exceeds the aggregate principal amount of Term Loans
that are made on the Effective Date, then the scheduled repayments of Term
Advances to be made pursuant to this Section shall be reduced ratably by
an aggregate amount equal to such excess. Any prepayment of a Term Advance
shall be applied to reduce the scheduled repayments (in inverse order of
maturity) of the Term Advances to be made pursuant to this Section.


 


(iv)                              Prior to any repayment of any Term Advances
hereunder, the Borrower shall select the Term Advance or Term Advances to be
repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 10:00 a.m. (Columbus, Ohio time),
two (2) Business Days before the scheduled date of such repayment, provided that each repayment of Term
Advances shall be applied to repay any outstanding Floating Rate Advances
before any Eurodollar Advances. Each repayment of a Term Advance shall be
applied ratably to the Term Loans included in the repaid Term Advance.
Repayments of Term Advances shall be accompanied by accrued interest on the
amount repaid.


 


Section 2.14.                             Telephonic Notices.  The
Borrower hereby authorizes the Lenders and the Administrative Agent to extend,
convert or continue Advances, effect selections of Classes and Types of
Advances and to transfer funds based on telephonic notices made by any person
or persons the Administrative Agent or any Lender in good faith believes to be
acting on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically.  The Borrower agrees to deliver promptly to
the Administrative Agent a written confirmation signed by an Authorized Officer
if such confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders, the
records of the Administrative Agent and the Lenders shall govern absent
manifest error.


 


Section 2.15.                             Interest Payment Dates; Interest and Fee
Basis.  Interest accrued on each Floating Rate
Advance (other than Swingline Loans) shall be payable on each Payment Date and
at maturity.  Interest accrued on each
Swingline Loan shall be payable on the day that such Swingline Loan is required
to be repaid.  Interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable Interest
Period, on any date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. 
Interest accrued on each Eurodollar Advance having an Interest Period
longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period.  Commitment fees, LC Fees and interest with respect to each
Eurodollar Loan and shall be calculated for actual days elapsed on the basis of
a 360-day year.  Interest with respect
to each Floating Rate Loan shall be calculated for actual days elapsed on the
basis of a 365-day year.  Interest shall
be payable for the day an Advance is made but not for the day of any payment on
the amount paid if


 


29

















 


payment
is received prior to noon (Columbus, Ohio time).  If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.


 


Section 2.16.                             Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions or Increases. 
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Revolving Commitment reduction or
increase notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. 
Promptly after notice from the LC Issuer, the Administrative Agent will
notify each Lender of the contents of each request for issuance of a Facility
LC hereunder.  The Administrative Agent
will notify each Lender of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Prime Rate or the Federal Funds
Effective Rate, as applicable.


 


Section 2.17.                             Lending Installations. 
Each Lender and the Swingline Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender, the Swingline Lender or
the LC Issuer, as the case may be, and may change its Lending Installation from
time to time.  All terms of this
Agreement shall apply to any such Lending Installation and the Loans and any
Notes issued hereunder shall be deemed held by each Lender, the Swingline
Lender, and the LC issuer, as the case may be, for the benefit of any such Lending
Installation.  Each Lender, the
Swingline Lender and the LC Issuer may, by written notice to the Administrative
Agent and the Borrower in accordance with Section 12.14, designate
replacement or additional Lending Installations through which Loans will be
made by it or Facility LCs will be issued by it and for whose account Loan
payments or payments with respect to Facility LCs are to be made.  Notwithstanding anything contained herein to
the contrary, none of the Lenders, the Swingline Lender or the LC Issuer shall
designate a non-U.S. Lending Installation unless it is determined in the
reasonable discretion by such Lender, Swingline Lender or LC Issuer that the
extension or continuation of any Eurodollar Loan cannot be made at a U.S.
Lending Installation.


 


Section 2.18.                             Non-Receipt of Funds by the Administrative
Agent.  Unless the Borrower or a Lender, as the case
may be, notifies the Administrative Agent prior to the date on which it is
scheduled to make payment to the Administrative Agent of (i) in the case of a
Lender, the proceeds of a Loan, or (ii) in the case of the Borrower, a payment
of principal, interest or fees to the Administrative Agent for the account of
the Lenders, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made.  The Administrative Agent may, but shall not be obligated to, make
the amount of such payment available to the intended ultimate recipient in
reliance upon such assumption.  If such
Lender or the Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the ultimate recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to


 


30

















 


the
relevant Loan, or (y) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.


 


31

















 


Section 2.19.                             Facility LCs.


 


Section 2.19.1.  Issuance  The LC Issuer hereby agrees, on the terms and conditions set
forth in this Agreement, to issue standby letters of credit (each, a “Facility
LC”) and to renew, extend, increase, decrease or otherwise modify each Facility
LC (“Modify,” and each such action a “Modification”), from time to time from
and including the date of this Agreement and prior to the Facility Termination
Date upon the request of the Borrower; provided
that immediately after each such Facility LC is issued or Modified, (i) the
aggregate amount of the outstanding LC Obligations shall not exceed $5,000,000,
and (ii) the Aggregate Outstanding Revolving Credit Exposure shall not exceed
the Aggregate Revolving Commitment.  No
Facility LC shall have an expiry date later than the earlier of (x) the fifth
Business Day prior to the Facility Termination Date and (y) one year after its
issuance.


 


Section 2.19.2.  Participations  Upon the issuance or Modification by the LC
Issuer of a Facility LC in accordance with this Section 2.19, the LC
Issuer shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Lender, and each Lender shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Applicable Percentage.


 


Section 2.19.3.  Notice.  Subject to Section 2.19.1, the Borrower shall give the LC
Issuer notice prior to 10:00 a.m. (Columbus, Ohio time) at least three (3)
Business Days prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing the
proposed terms of such Facility LC and the nature of the transactions proposed
to be supported thereby.  Upon receipt
of such notice, the LC Issuer shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Lender, of the contents
thereof and of the amount of such Lender’s participation in such proposed
Facility LC.  The issuance or
Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which
the LC Issuer shall have no duty to ascertain), be subject to the conditions
precedent that such Facility LC shall be satisfactory to the LC Issuer and that
the Borrower shall have executed and delivered such application agreement
and/or such other instruments and agreements relating to such Facility LC as
the LC Issuer shall have reasonably requested (each, a “Facility LC
Application”).  In the event of any
conflict between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.  Further, notwithstanding any grant of
collateral security under any Facility LC Application for the obligations of
Borrower thereunder, the LC Issuer agrees and acknowledges that the
Reimbursement Obligations and all other amounts owing by Borrower under any
Facility LC Application shall at all times be unsecured.


 


Section 2.19.4.  LC Fees.  The Borrower shall pay to the Administrative Agent (i) for the
account of the Lenders ratably in accordance with their respective Applicable
Percentages, a letter of credit fee at a per annum rate equal to the Applicable
Fee Rate on the average daily undrawn stated amount of each Facility LC, such
fee to be payable in arrears on each Payment Date, and (ii) for the
Administrative Agent for its own account, a one-time letter of credit fee in an
amount equal to 15 basis points of the stated amount of each Facility LC, such
fee to be 


 


32

















 


payable
on the date of such issuance or increase (each such fee described in this
sentence an “LC Fee”).  The Borrower
shall also pay to the LC Issuer for its own account, such reasonable and
customary documentary and processing charges in connection with the issuance or
Modification of and draws under Facility LCs in accordance with the LC Issuer’s
standard schedule for such charges as in effect from time to time. 


 


Section 2.19.5.  Administration; Reimbursement.  Upon receipt from the beneficiary of any
Facility LC of any demand for payment under such Facility LC, the LC Issuer
shall notify the Administrative Agent and the Administrative Agent shall
promptly notify the Borrower and each other Lender as to the amount to be paid
by the LC Issuer as a result of such demand and the proposed payment date (the
“LC Payment Date”).  The responsibility
of the LC Issuer to the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in conformity in all
material respects with such Facility LC. 
The LC Issuer shall endeavor to exercise the same care in the issuance
and administration of the Facility LCs as it does with respect to letters of
credit in which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the LC Issuer, each
Lender shall be unconditionally and irrevocably liable without regard to the
occurrence of any Default or any condition precedent whatsoever, to reimburse
the LC Issuer on demand for (i) such Lender’s Applicable Percentage of the
amount of each payment made by the LC Issuer under each Facility LC to the
extent such amount is not reimbursed by the Borrower pursuant to
Section 2.19.6 below, plus (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the LC Issuer’s demand
for such reimbursement (or, if such demand is made after 11:00 a.m. (Columbus,
Ohio time) on such date, from the next succeeding Business Day) to the date on
which such Lender pays the amount to be reimbursed by it, at a rate of interest
per annum equal to the Federal Funds Effective Rate for the first three days
and, thereafter, at a rate of interest equal to the rate applicable to Floating
Rate Advances.  


 


Section 2.19.6.  Reimbursement by Borrower.  The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the
applicable LC Payment Date for any amounts paid by the LC Issuer upon any
drawing under any Facility LC, without presentment, demand, protest or other
formalities of any kind; provided
that neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused by (i)
the willful misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC issued by it complied with
the terms of such Facility LC or (ii) the LC Issuer’s failure to pay under any
Facility LC issued by it after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC.  All such amounts paid by the LC Issuer and
remaining unpaid by the Borrower shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to (x) the rate applicable to
Floating Rate Advances for such day if such day falls on or before the
applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC Payment
Date.  The LC Issuer will pay to each
Lender ratably in accordance with its Applicable Percentage all amounts
received by it from the Borrower for application in payment, in whole or in
part, of the Reimbursement Obligation in respect of any Facility LC issued by
the LC Issuer, but only to the extent such Lender has made


 


33

















 


payment
to the LC Issuer in respect of such Facility LC pursuant to
Section 2.19.5.  Subject to the
terms and conditions of this Agreement (including the submission of a Borrowing
Notice in compliance with Section 2.6 and the satisfaction of the
applicable conditions precedent set forth in Article IV), unless directed
otherwise by the Borrower, the Lenders shall make a Floating Rate Revolving
Advance hereunder for the purpose of satisfying any Reimbursement Obligation
and, to the extent so satisfied, the Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting Floating Rate Revolving Advance.



 


Section 2.19.7.  Obligations Absolute.  The Borrower’s obligations under this
Section 2.19 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the LC Issuer, any
Lender or any beneficiary of a Facility LC. 
The Borrower further agrees with the LC Issuer and the Lenders that the
LC Issuer and the Lenders shall not be responsible for, and the Borrower’s
Reimbursement Obligation in respect of any Facility LC shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, any of its Affiliates, the beneficiary of any Facility LC or any
financing institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee.  The LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Facility LC, except for its gross negligence or willful misconduct.  The Borrower agrees that any action taken or
omitted by the LC Issuer or any Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall
not put the LC Issuer or any Lender under any liability to the Borrower.  Nothing in this Section 2.19.7 is intended
to limit the right of the Borrower to make a claim against the LC Issuer for
damages as contemplated by the proviso to the first sentence of
Section 2.19.6.


 


Section 2.19.8.  Actions of LC Issuer.  The LC Issuer shall be entitled to rely, and
shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the LC
Issuer.  The LC Issuer shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first have received such advice or concurrence of the Required Lenders
as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Notwithstanding any other provision of this Section 2.19,
the LC Issuer shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and any future holders of a
participation in any Facility LC.


 


34

















 


Section 2.19.9.  Indemnification.  The Borrower hereby agrees to indemnify and
hold harmless each Lender, the LC Issuer and the Administrative Agent, and
their respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, costs or expenses which such
Lender, the LC Issuer or the Administrative Agent may incur (or which may be
claimed against such Lender, the LC Issuer or the Administrative Agent by any
Person whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any Facility LC
or any actual or proposed use of any Facility LC, including any claims,
damages, losses, liabilities, costs or expenses which the LC Issuer may incur
by reason of or in connection with (i) the failure of any other Lender to
fulfill or comply with its obligations to the LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of the LC Issuer issuing
any Facility LC which specifies that the term “Beneficiary” included therein
includes any successor by operation of law of the named Beneficiary, but which
Facility LC does not require that any drawing by any such successor Beneficiary
be accompanied by a copy of a legal document, satisfactory to the LC Issuer,
evidencing the appointment of such successor Beneficiary; provided that the Borrower shall not be
required to indemnify any Lender, the LC Issuer or the Administrative Agent for
any claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (x) the willful misconduct or gross negligence of
the LC Issuer in determining whether a request presented under any Facility LC
complied with the terms of such Facility LC or (y) the LC Issuer’s failure to
pay under any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing in this
Section 2.19.9 is intended to limit the obligations of the Borrower under
any other provision of this Agreement.


 


Section 2.19.10.  Lenders’ Indemnification. Each Lender
shall, ratably in accordance with its Applicable Percentage, indemnify the LC
Issuer, its affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees’ gross
negligence or willful misconduct or the LC Issuer’s failure to pay under any
Facility LC after the presentation to it of a request strictly complying with
the terms and conditions of the Facility LC) that such indemnitees may suffer
or incur in connection with this Section 2.19 or any action taken or
omitted by such indemnitees hereunder.


 


Section 2.19.11.  Rights as a Lender.  In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.


 


Section 2.20.  Replacement
of Lender.  If the Borrower is
required pursuant to Section 3.1, 3.2 or 3.5 to make any additional
payment to any Lender or if any Lender’s obligation to make or continue, or to
convert Floating Rate Advances into, Eurodollar Advances shall be suspended
pursuant to Section 3.3 (any Lender so affected an “Affected Lender”), the
Borrower may elect, if such amounts continue to be charged or such suspension
is still effective, to replace such Affected Lender as a Lender party to this
Agreement, provided that no
Default or Unmatured Default shall have occurred and be continuing at the time
of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or other entity
which is reasonably satisfactory to the Borrower and the Administrative Agent
shall agree, as of such


 


35

















 


date,
to purchase for cash the Advances and other Obligations due to the Affected
Lender pursuant to an assignment substantially in the form of Exhibit C and to
become a Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender as of such date and to comply with the
requirements of Section 11.3 applicable to assignments, and (ii) the
Borrower shall pay to such Affected Lender in same day funds on the day of such
replacement all interest, fees and other amounts then accrued but unpaid to
such Affected Lender by the Borrower hereunder to and including the date of
assumption, including payments due to such Affected Lender under Sections 3.1,
3.2 and 3.5.


 


Section 2.21.  Amendment
and Restatement.  This Agreement is
entered into by the parties hereto in order to, inter  alia,
amend and restate the terms, provisions and agreements of that certain Credit
Agreement dated September 30, 2002 among Borrower, The Huntington National
Bank, as Administrative Agent, Lender, Swingline Lender and LC Issuer, Fifth
Third Bank, as Lender and Bank One, N.A., as Lender (herein, as previously amended,
the “Original Credit Agreement”). 
Pursuant to this Agreement, the other “Loan Documents” (as such term is
used and defined in the Original Credit Agreement; herein, the “Original Loan
Documents”) shall also be amended and restated (except for any Facility LC
Applications). This Agreement, together with the Original Loan Documents, as
amended and restated on this date, the Pledge, the Security Agreements, the
Fast Forward Guaranty, the Timexpress Guaranty, all Facility LC Applications
given under the Original Credit Agreement and/or this Agreement, and all other
documents and or instruments given from time to time in connection with or
pursuant to this Agreement, as each of the same may from time to time be
amended, modified, supplemented, extended, restated or replaced from time to
time, shall constitute the Loan Documents as such term is used and defined in
this Agreement.  Neither this Agreement
nor any of the other Loan Documents shall constitute a satisfaction or
refinance of the indebtedness evidenced by the Original Credit Agreement and
the other Original Loan Documents.  The
Borrower shall pay to Agent such fees (collectively, the “Amendment and
Restatement Fee”) referenced in the letter agreement described in Section 4.1(b),
which Amendment and Restatement Fee shall be due and payable on the Closing
Date and the full payment of which, in immediately available funds, shall be a
condition to the effectiveness of this Agreement.


 


ARTICLE III


 


Yield Protection; Taxes


 


Section 3.1.                                   Yield Protection.  If,
on or after the date of this Agreement, the adoption of any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender, or
the LC Issuer, or applicable Lending Installation, with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:


 


(i)                                     subjects any Lender, the LC Issuer, or any
applicable Lending Installation, to any Taxes, or changes the basis of taxation
of payments (other than with respect to Excluded Taxes)


 


36

















 


to
any Lender, or the LC Issuer in respect of its Eurodollar Loans, Facility LCs
or participations therein, or


 


(ii)                                  imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender, or the LC Issuer, or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or


 


(iii)                               imposes any other condition the result of
which is to increase the cost to any Lender, the LC Issuer, or any applicable
Lending Installation, of making, funding or maintaining its Eurodollar Loans,
or of issuing or participating in Facility LCs, or reduces any amount
receivable by any Lender, the LC Issuer, or any applicable Lending
Installation, in connection with its Eurodollar Loans, Facility LCs or participations
therein, or requires any Lender, the LC Issuer, or any applicable Lending
Installation, to make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participation therein held or interest of LC
Fees received by it, by an amount deemed material by such Lender or the LC
Issuer, as the case may be, 


 


and
the result of any of the foregoing is to increase the cost to such Lender, LC
Issuer, or applicable Lending Installation, as the case may be, of making or
maintaining its Eurodollar Loans or of issuing or participating in Facility
LCs, or to reduce the return received by such Lender, LC Issuer, or applicable
Lending Installation, as the case may be, in connection with such Eurodollar
Loans, the Commitment, Facility LCs or participations therein, then, within 15
days of demand by such Lender, or the LC Issuer, as the case may be, the
Borrower shall pay such Lender, or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender, or the LC Issuer,
as the case may be, for such increased cost or reduction in amount received.


 


Section 3.2.                                   Changes in Capital Adequacy Regulations.  If
a Lender, or the LC Issuer determines the amount of capital required or
expected to be maintained by such Lender, the LC Issuer, or any Lending
Installation, or any corporation controlling such Lender, or the LC Issuer is
increased as a result of a Change (defined below), then, within 15 days of
demand by such Lender, or the LC Issuer, the Borrower shall pay such Lender, or
the LC Issuer the amount necessary (without any premium or penalty thereon or
otherwise with respect thereto) to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender, or the LC
Issuer determines is attributable to this Agreement, its Outstanding Revolving
Credit Exposure, its Term Loans, its Revolving Commitment to make Revolving
Loans and/or issue or participate in Facility LCs, as the case may be (after
taking into account such Lender’s, or LC Issuer’s, policies as to capital
adequacy).  “Change” means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines
(defined below), or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender, or the LC Issuer, or any Lending Installation
or any corporation controlling any Lender, or the LC Issuer.  “Risk-Based Capital Guidelines” means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules,


 


37

















 


and
(ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of
the Basle Committee on Banking Regulation and Supervisory Practices Entitled
“International Convergence of Capital Measurements and Capital Standards,”
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.


 


Section 3.3.                                   Availability of Types of Advances.  If
any Lender, or the LC Issuer determines that maintenance of its Eurodollar
Loans at a suitable Lending Installation would violate any applicable law,
rule, regulation, or directive, whether or not having the force of law, or if
the Required Lenders determine that (i) deposits of a type and maturity
appropriate to match fund Eurodollar Advances are not available or (ii) the
interest rate applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Administrative
Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts
required by Section 3.4 (without any premium or penalty thereon or
otherwise with respect thereto).


 


Section 3.4.                                   Funding Indemnification.  If
any payment of a Eurodollar Advance occurs on a date which is not the last day
of the applicable Interest Period, whether because of acceleration, prepayment
or otherwise, or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any reasonable and properly documented loss or cost
incurred by it resulting therefrom, including any loss or cost in liquidating
or employing deposits acquired to fund or maintain such Eurodollar Advance
(without any premium or penalty thereon or otherwise with respect thereto).


 


Section 3.5.                                   Taxes.  


 


(i)                                     All payments by the Borrower to or for the
account of any Lender, the Swingline Lender, the LC Issuer or the
Administrative Agent hereunder or under any Note or Facility LC Application
shall be made free and clear of and without deduction for any and all
Taxes.  If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, the Swingline Lender, the LC Issuer or the
Administrative Agent, (a) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.5) such Lender, the Swingline
Lender, the LC Issuer or the Administrative Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay
the full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the Administrative Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.


 


(ii)                                  In addition, the Borrower hereby agrees to
pay any present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or under any Note or Facility LC Application or from the


 


38

















 


execution
or delivery of, or otherwise with respect to, this Agreement or any Note or
Facility LC Application (“Other Taxes”).


 


(iii)                               The Borrower hereby agrees to indemnify the
Administrative Agent, the Swingline Lender, the LC Issuer, and each Lender for
the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Administrative Agent, the Swingline Lender, the LC Issuer, or such Lender and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto.  Payments due
under this indemnification shall be made within 30 days of the date the
Administrative Agent, the LC Issuer, or such Lender makes demand therefor
pursuant to Section 3.6.


 


(iv)                              Any Lender that is entitled to an exemption
from or reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.


 


(v)                                 If the U.S. Internal Revenue Service or any
other governmental authority of the U.S. or any other country or any political
subdivision thereof asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative Agent as
tax, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent).  The obligations
of the Lenders under this Section 3.5(v) shall survive the payment of the
Obligations and termination of this Agreement. 


 


Section 3.6.                                   Lender Statements; Survival of Indemnity. To the extent reasonably possible, each
Lender, and the LC Issuer shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender or LC Issuer, as applicable, under Sections 3.1, 3.2 and 3.5 or to avoid
the unavailability of Eurodollar Advances under Section 3.3, so long as
such designation is not, in the reasonable judgment of such Lender, or the LC
Issuer, disadvantageous to such Lender or the LC Issuer.  Each Lender and the LC Issuer shall deliver
a written statement to the Borrower (with a copy to the Administrative Agent)
as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5.  Such written statement shall set forth in
reasonable detail the calculations upon which such Lender or the LC Issuer
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. 
Determination of amounts payable under such Sections in connection with
a Eurodollar Loan shall be calculated as though each Lender or the LC Issuer
funded each Eurodollar Loan or made any disbursement under each Facility LC, as
applicable, through the purchase of a deposit of the type and maturity
corresponding to the


 


39

















 


deposit
used as a reference in determining the Eurodollar Rate applicable to such Loan
or Facility LC, whether or not that is in fact the case, and any amounts owing
by Borrower to any Lender or the LC Issuer under such Sections shall not be
deemed unreasonable or not properly documented as a result of whether or not
any Lender funded any Eurodollar Loan or whether or not the LC Issuer made any
disbursement under any Facility LC in such manner.  Unless otherwise provided herein, the amount specified in the
written statement of any Lender or the LC Issuer shall be payable on demand
after receipt by the Borrower of such written statement.  The obligations of the Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive for 180 days following the later
of (i) the payment of the Obligations and termination of this Agreement, and
(ii) the date that the event giving rise to the obligation occurs (provided
that if the event giving rise to the obligation is retroactive, then such 180
day period shall be extended to include the period of retroactive effect).


 


ARTICLE IV


 


Conditions Precedent


 


Section 4.1.                                   Effective Date; Credit Extensions.


 


(i)                                     The obligations of the Lenders to make
Advances after the Effective Date and of the Swingline Lender to make Swingline
Loans and of the LC Issuer to issue Facility LCs hereunder shall not become
effective until the date on which each of the following conditions is
satisfied:


 


(a)                                  The Borrower shall have furnished to the
Administrative Agent, with sufficient copies for the Lenders:


 


(1)                                  All documents, instruments, agreements and
other items as set forth in the Closing Agenda.


 


(2)                                  Such other documents and items as any Lender
or its counsel may have reasonably requested.


 


(b)                                 The Borrower shall have paid to the
Administrative Agent all fees and other amounts owing pursuant to the letter
agreement dated of even date herewith, or as otherwise agreed from time to
time.


 


(c)                                  The Administrative Agent shall have received
and accepted the executed legal opinion of Vorys, Sater, Seymour & Pease,
legal counsel to the Borrower and Guarantor, in favor of the Lenders, Swingline
Lender, LC Issuer, and Administrative Agent, in form and substance satisfactory
to the Administrative Agent. 


 


(d)                                 Simultaneously with the first Advance made
after the Effective Date, Borrower shall have (i) paid in full all indebtedness
and liabilities outstanding in favor of (1) Bank One, NA (“Bank One”) in
connection with a certain term loan made by Bank One to Borrower on
February 19, 2002 in the original principal amount of $3,000,000,


 


40

















 


and
(2) Key Equipment Finance or any other division of Key Corporate Capital, Inc.
or any affiliate thereof, (ii) obtained terminations of all liens and security
interests granted in connection with any such indebtedness and liabilities, and
(iii) terminated any commitment to extend further credit and/or additional
loans in connection therewith or under any documents, agreements or instruments
evidencing or given in connection with the same.


 


(e)                                  An opening Borrowing Base Certificate,
certified by an Authorized Officer of Borrower as true and correct.


 


(ii)                                  The Administrative Agent shall notify the
Borrower and the Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Swingline Lender to make Swingline Loans and
of the LC Issuer to issue the Facility LCs hereunder shall not become effective
unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 12.13) on the Closing Date.


 


Section 4.2.                                   Each Credit Extension. The obligation of each Lender to make a
Loan on the occasion of any Advance and of the Swingline Lender to make a
Swingline Loan on the occasion of any Swingline Advance and of the LC Issuer to
issue, amend, renew or extend any Facility LC, is subject to the satisfaction
of the following conditions:


 


(i)                                     There exists no Default or Unmatured Default.


 


(ii)                                  The representations and warranties contained
in Article V are true and correct as of such Credit Extension Date except
to the extent any such representation or warranty is stated to relate solely to
an earlier date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.


 


(iii)                               All legal matters incident to the making of
such Credit Extension shall be satisfactory to the Lenders and their counsel.


 


Each
Borrowing Notice or request for issuance of a Facility LC with respect to each
such Credit Extension shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i)-(ii) have been
satisfied.


 


ARTICLE V


 


Representations And Warranties


 


The
Borrower represents and warrants to the Lenders that:


 


Section 5.1.                                   Existence and Standing. 
Each of the Borrower and its Subsidiaries is a corporation, or (in the
case of Subsidiaries only) partnership or limited liability company, duly and
properly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing under the
laws of its jurisdiction of


 


41

















 


incorporation
or organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.


 


Section 5.2.                                   Authorization and Validity.  The
Borrower and each Guarantor has the power and authority and legal right to
execute and deliver the Loan Documents to which it is a party and to perform
its obligations thereunder.  The
execution and delivery by the Borrower and each Guarantor of the Loan Documents
to which it is a party and the performance of its obligations thereunder have
been duly authorized by proper corporate, partnership, or limited liability
company, as the case may be, proceedings, and the Loan Documents constitute
legal, valid and binding obligations of the Borrower and each Guarantor, as
applicable, enforceable against the Borrower and each Guarantor in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally and general principles of equity.


 


Section 5.3.                                   No Conflict; Government Consent. 
Neither the execution and delivery by the Borrower or any Guarantor of
the Loan Documents to which it is a party, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower, any Guarantor, or any of their
respective Subsidiaries or (ii) the Borrower’s, any Guarantor’s, or any of
their respective Subsidiaries’, articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower, any Guarantor, or any of their respective Subsidiaries is a
party or is subject, or by which any of them, or their Property, is bound, or
conflict with or constitute a default thereunder, or result in, or require, the
creation or imposition of any Lien in, of or on the Property of the Borrower,
any Guarantor or any of the respective Subsidiaries of any of them pursuant to
the terms of any such indenture, instrument or agreement.  No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower, any Guarantor, or any of their Subsidiaries, is required to be
obtained in connection with the execution and delivery of the Loan Documents,
the borrowings under this Agreement, the payment and performance by the
Borrower of the Obligations or the legality, validity, binding effect or
enforceability of any of the Loan Documents.


 


Section 5.4.                                   Financial Statements.  The
December 31, 2003 consolidated financial statements of the Borrower and
its Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with Agreement Accounting Principles in effect on the date such
statements were prepared and fairly present the consolidated financial
condition and operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then ended. The
financial projections provided by Borrower and/or its Subsidiaries to the
Lenders in connection with the transactions contemplated hereby shall be
certified by an Authorized Officer as being an accurate summary of the
estimated expected results of operations and cash flow of the Borrower and its
Subsidiaries to the best knowledge of such Authorized Officer as of the date of
said financial projections based upon present circumstances; it being
acknowledged and agreed by the parties hereto that the assumptions contained
therein may not


 


42

















 


materialize,
and unanticipated events and circumstances may occur subsequent to the date of
said financial projections which may result in actual results which vary
(perhaps, materially) from the financial projections.


 


Section 5.5.                                   Material Adverse Change. 
Since December 31, 2003 there has been no change in the business,
Property, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.


 


Section 5.6.                                   Taxes.  The Borrower and its Subsidiaries
have filed all United States federal tax returns and all other tax returns
which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided in accordance with
Agreement Accounting Principles and as to which no Lien exists.  No tax liens have been filed and no claims
are being asserted with respect to any such taxes.  The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of any taxes or other governmental charges are
adequate.  


 


Section 5.7.                                   Litigation and Contingent Obligations. 
There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect or which seeks
to prevent, enjoin or delay the making of any Credit Extensions.  Other than any liability incident to any
litigation, arbitration or proceeding which could not reasonably be expected to
have a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries has any material Contingent Obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.


 


Section 5.8.                                   Subsidiaries. 
Schedule I contains an accurate list of all of the direct and indirect
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries.  All of the issued
and outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect
to such ownership interests) duly authorized and issued and are fully paid and
non-assessable.


 


Section 5.9.                                   ERISA.  The Unfunded Liabilities of
all Single Employer Plans do not in the aggregate exceed $100,000.  Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans in excess of $100,000 in the aggregate.  Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable Event
has occurred with respect to any Plan, neither the Borrower nor any other
member of the Controlled Group has withdrawn from any Plan or initiated steps
to do so, and no steps have been taken to reorganize or terminate any Plan.


 


Section 5.10.                             Accuracy of Information.  No
information, exhibit or report furnished by the Borrower or any of its
Subsidiaries to the Administrative Agent or to any Lender in


 


43

















 


connection
with the negotiation of, or compliance with, the Loan Documents (i) contained
any material misstatement of fact, or (ii) omitted to state any fact necessary
to make the statements contained therein not materially misleading.


 


Section 5.11.                             Federal Reserve Regulations. 
Neither the Borrower nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of buying or carrying Margin Stock.


 


Section 5.12.                             Material Agreements. 
Neither the Borrower nor any of its Subsidiaries is a party to any
agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect.  Neither the Borrower nor any of
its Subsidiaries is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any agreement
(including, without limitation, any agreement or instrument evidencing or
governing Indebtedness) to which it is a party, which default could reasonably
be expected to have a Material Adverse Effect.


 


Section 5.13.                             Compliance With Laws.  The
Borrower and its Subsidiaries have complied with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over
the conduct of their respective businesses or the ownership of their respective
Properties except for any failure to comply with any of the foregoing which
could not reasonably be expected to have a Material Adverse Effect.


 


Section 5.14.                             Properties.  


 


(i)                                     Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all of the Property material to
its business (including its real properties), free and clear of all Liens,
except for (1) minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes, (2) and Permitted Liens.


 


(ii)                                  Each of the Borrower and its Subsidiaries has
complied with all material obligations under all leases to which it is a party
and that are material to the Borrower and its Subsidiaries taken as a whole and
all such leases are in full force and effect. 
Each of the Borrower and its Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases under which a Borrower or
any such Subsidiary is a lessee.


 


(iii)                               Each of the Borrower and its Subsidiaries
owns, or is licensed or otherwise permitted to use, all trademarks, trade
names, copyrights, patents and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.


 


(iv)                              Schedule 5.14 sets forth the address of
each real property that is owned or leased by the Borrower or any of its
Subsidiaries as of the Effective Date.


 


44

















 


(v)                                 As of the Effective Date, neither the
Borrower nor any of its Subsidiaries has received notice of, or has knowledge
of, any pending or contemplated condemnation proceeding affecting any of its
real properties or any sale or disposition thereof, in lieu of condemnation.
Neither any of the Borrower’s or its Subsidiaries’ real properties, nor any
interest therein, is subject to any right of first refusal, option or other
contractual right to purchase such real property or interest therein.


 


Section 5.15.                             Plan Assets; Prohibited Transactions. 
Neither the Borrower nor any of its Subsidiaries is an entity deemed to
hold “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of
Section 4975 of the Code), and neither the execution of this Agreement nor
the making of Credit Extensions hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975
of the Code.


 


Section 5.16.                             Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
and its Subsidiaries due to Environmental Laws.  On the basis of this consideration, the Borrower has concluded
that Environmental Laws cannot reasonably be expected to have a Material
Adverse Effect.  Except as provided on
Schedule 5.16, neither the Borrower nor any of its Subsidiaries has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial
action could reasonably be expected to have a Material Adverse Effect.


 


Section 5.17.                             Investment Company Act. 
Neither the Borrower nor any of its Subsidiaries is an “investment
company” or a company “controlled” by an “investment company”, within the
meaning of the Investment Company Act of 1940, as amended.


 


Section 5.18.                             Public Utility Holding Company Act. 
Neither the Borrower nor any of its Subsidiaries is a “holding company”
or a “subsidiary company” of a “holding company”, or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company”, within
the meaning of the Public Utility Holding Company Act of 1935, as amended.


 


Section 5.19.                             Insurance.  The certificate
(substantially in the form attached as Schedule 5.19) signed by the
President or Chief Financial Officer of the Borrower, that attests to the
existence and adequacy of, and summarizes, the property and casualty insurance
program carried by the Borrower with respect to itself and its Subsidiaries and
that has been furnished by the Borrower to the Administrative Agent and the
Lenders, is complete and accurate.  This
summary includes the insurer’s or insurers’ name(s), policy number(s),
expiration date(s), amount(s) of coverage, type(s) of coverage, exclusion(s),
and deductibles.  This summary also includes
similar information, and describes any reserves, relating to any self-insurance
program that is in effect.


 


45

















 


Section 5.20.                             Solvency.  


 


(i)                                     Immediately after the consummation of the
transactions to occur hereunder and immediately following the making of each
Loan, if any, made on the date hereof and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise,
of the Borrower and its Subsidiaries on a consolidated basis; (b) the present
fair saleable value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
the Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.


 


(ii)                                  The Borrower does not intend to, or to permit
any of its Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as they
mature, taking into account the timing of and amounts of cash to be received by
it or any such Subsidiary and the timing of the amounts of cash to be payable
on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.


 


Section 5.21.                             Labor Matters.  As
of the Effective Date, there are no strikes, lockouts or slowdowns against the
Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened. The hours worked by and payments made to employees of the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, except where any such violations, individually or in
the aggregate, would not be reasonably likely to result in a Material Adverse
Effect. All material payments due from the Borrower or any of its Subsidiaries,
or for which any claim may be made against the Borrower or any such Subsidiary,
on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Borrower
or such Subsidiary, as applicable. The consummation of the transactions
contemplated hereby will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which the Borrower or any of its Subsidiaries is bound.


 


ARTICLE VI


 


Covenants


 


During
the term of this Agreement, unless the Required Lenders shall otherwise consent
in writing:


 


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Section 6.1.                                   Financial Reporting.  The
Borrower will maintain, for itself and each of its Subsidiaries, a system of
accounting established and administered in accordance with Agreement Accounting
Principles, and furnish to the Administrative Agent:


 


(i)                                     Within ninety (90) days after the close of
each fiscal year of Borrower, the annual report of Borrower on form 10K for
each such fiscal year-end, as filed with the Securities and Exchange
Commission.


 


(ii)                                  Within forty-five (45) days after the close
of the each of the first three fiscal quarters of each of Borrower’s fiscal
years, the quarterly report of Borrower on form 10Q for each such fiscal
quarter-end, as filed with the Securities and Exchange Commission.


 


(iii)                               Together with the deliveries required under
Section 6.1(ii), for each fiscal quarter-end, a compliance certificate in
substantially the form of Exhibit B signed by an Authorized Officer showing the
calculations necessary to determine compliance with this Agreement and stating
that no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.


 


(iv)                              On the last day of each March and
September prior to the Maturity Date, a detailed report (1) listing (by
type and registration number) all aircraft in which Borrower or any Subsidiary
of Borrower owns or holds any right, title or interest, (2) showing the Market
Value of said aircraft, and (3) indicating the hours logged with respect to
each aircraft for the period since the date of the last such report. 


 


(v)                                 no later than forty-five (45) days after the
last day of each calendar quarter after the Closing Date hereof, and at such
other times as Lender shall request, a Borrowing Base Certificate, certified by
an Authorized Officer of Borrower as true and correct, setting forth the amount
of Eligible Accounts Receivable, Eligible Inventory and Eligible Fixed Assets
and supporting documentation, in each case as of the last Business Day of said
calendar quarter; 


 


(vi)                              As soon as possible and in any event within
ten (10) days after the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by an Authorized Officer of the
Borrower, describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.


 


(vii)                           As soon as possible and in any event within
ten (10) days after receipt by the Borrower, a copy of (a) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries, which, in either case, could reasonably be
expected to have a Material Adverse Effect.


 


(viii)                        As soon as possible and in any event within
ten (10) days after notice thereof, notice of all actions, suits, audits,
inquiries, proceedings, notices of violations, investigations and/or other
material actions before or by any governmental or public authority or body, or
any


 


47

















 


subdivision
thereof, including, without limitation, the Internal Revenue Service and/or the
Securities Exchange Commission of the U.S., against the Borrower or any
Subsidiary, which could, in the opinion of an Authorized Officer of the
Borrower, if adversely determined, reasonably be expected to result in a
Material Adverse Effect.


 


(ix)                                Such other information (including
non-financial information) as the Administrative Agent or any Lender may from
time to time reasonably request.


 


Section 6.2.                                   Use of Proceeds.  The
Borrower will use the proceeds of the Loans for general corporate and working
capital purposes.  The Borrower will
not, nor will it permit any of its Subsidiaries to, use any of the proceeds of
the Advances or any Facility LC to purchase or carry any Margin Stock or for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation T, U or X.


 


Section 6.3.                                   Notice of Default.  The
Borrower will, and will cause each of its Subsidiaries to, give prompt notice
in writing to the Lenders of the occurrence of any Default or Unmatured Default
and of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect, including, without limitation, any
material casualty or loss.


 


Section 6.4.                                   Conduct of Business.  The
Borrower will, and will cause each of its Subsidiaries to, carry on and conduct
its business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and do all things necessary
to remain duly incorporated or organized, validly existing and (to the extent
such concept applies to such entity) in good standing as a domestic
corporation, partnership or limited liability company in its jurisdiction of
incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in the jurisdiction of its organization and
in each other jurisdiction in which its business is conducted, unless the
failure to be so authorized to conduct business in each such other jurisdiction
would not reasonably be expected to have a Material Adverse Effect.


 


Section 6.5.                                   Taxes.  The Borrower will, and will
cause each of its Subsidiaries to, timely file complete and correct United
States federal and applicable foreign, state and local tax returns required by
law and pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being contested
in good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting
Principles.  At any time that the
Borrower or any of its Subsidiaries is organized as a limited liability
company, each such limited liability company will qualify for partnership tax
treatment under United States federal tax law.


 


Section 6.6.                                   Insurance.  The Borrower will, and will
cause each of its Subsidiaries to, maintain with financially sound and reputable
insurance companies the Required Property Insurance Coverage and Required
Public Liability Insurance Coverage, and the Borrower will furnish to the
Administrative Agent upon request full information as to the insurance carried.


 


48

















 


Section 6.7.                                   Compliance with Laws.  The
Borrower will, and will cause each of its Subsidiaries to, comply in all
material respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including all
Environmental Laws.


 


Section 6.8.                                   Maintenance of Properties.  The
Borrower will, and will cause each of its Subsidiaries to, do all things
necessary to maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times except to the extend the
failure to do so would reasonably be expected to result in a Material Adverse
Effect.


 


Section 6.9.                                   Books and Records; Inspection.  The
Borrower will, and will cause each of its Subsidiaries to, (i) keep proper
books of record and account in which full, true and correct entries in all respects
are made for all dealings and transactions in relation to its business and
activities, and (ii) permit the Administrative Agent and the Lenders, by their
respective representatives and agents, with prior notice to Borrower to inspect
any of the Property, books and financial records of the Borrower and each of
its Subsidiaries, to examine and make copies of the books of accounts and other
financial records of the Borrower and each such Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each such Subsidiary with,
and to be advised as to the same by, their respective officers at such
reasonable times during Borrower’s or such Subsidiary’s normal business hours
and at reasonable intervals as the Administrative Agent or any Lender may
designate.


 


Section 6.10.                             Operating Leases. 
Borrower will not, nor will it permit any of its Subsidiaries, to enter
into any Operating Lease for aircraft (1) having a term greater than five (5)
years and/or (ii) under which the aggregate total amount of rent and lease
expense paid by or to be paid by Borrower and its Subsidiaries on an annual
basis exceeds $2,000,000.00.


 


Section 6.11.                             Indebtedness.  The
Borrower will not, nor will it permit any of its Subsidiaries, as applicable,
to, create, incur or suffer to exist any Indebtedness, except any or all of the
following (collectively “Permitted Indebtedness”):


 


(i)                                     The Loans and the Reimbursement Obligations.


 


(ii)                                  Indebtedness existing on the date hereof and
described in Schedule 2.


 


(iii)                               Indebtedness arising under Rate Management
Transactions related to the Loans.


 


(iv)                              Consolidated Indebtedness, calculated for the
Borrower and/or its Subsidiaries without duplication, not exceeding (1)
$32,000,000.00 in the aggregate incurred at any time during fiscal year 2004,
and (2) an incremental $28,500,000.00 in the aggregate incurred at any time
during fiscal year 2005; provided, that all of such Consolidated Indebtedness
is incurred for the sole purpose of purchasing, leasing or other financings,
including time shares, with respect to aircraft and related tangible fixed
assets in fiscal years 2004 and/or 2005, or refinancing the same in fiscal year
2004, it being understood and agreed that if (a) such covenants, defaults, and
other


 


49

















 


terms
and conditions shall include any financial covenants with respect to Borrower
or any of its Subsidiaries, and (b) any security interest shall be granted in
connection with such Consolidated Indebtedness (as permitted pursuant to
Section 6.15), then the bank, financial institution or other creditor to
which such Consolidated Indebtedness is owing shall have entered into an
Inter-Creditor Agreement with Agent for the benefit of the Lenders and in form
and substance satisfactory to the Lenders.


 


(v)                                 Consolidated Indebtedness not exceeding
$9,000,000.00 in the aggregate which is incurred solely for the purpose of
financing the construction and related costs by Borrower of the Rickenbacker
Facility.


 


(vi)                              Indebtedness of Borrower and Jetride in
connection with the maintenance service plan covering any aircraft, including
related engines, of Borrower or Jetride. 


 


(vii)                           Indebtedness by and among Borrower and any
Guarantor.  


 


Section 6.12.                             Merger.  The Borrower will not, nor
will it permit any of its Subsidiaries to, merge or consolidate with or into
any other Person, except that a Subsidiary may merge into the Borrower or a
Wholly-Owned Subsidiary.


 


Section 6.13.                             Sale of Assets.  The
Borrower will not, nor will it permit any of its Subsidiaries to, in one or any
series of transactions, lease, sell or otherwise dispose of Property to any
other Person (except Property (i) which is purchased or otherwise acquired by
Borrower or any of its Subsidiaries ninety (90) or fewer days prior to such
lease, sale or other disposition, or (ii) which is subject to a Permitted Lien
in favor of a Person other than the Administrative Agent and said Person has
approved or permitted such sale, lease or other disposition, or (iii) by
Borrower or any Subsidiary to any Guarantor, provided, however, that to the
extent any such Property is subject to a Lien in favor of Agent, said transfer
shall be made specifically subject to said Lien and the transferee-Guarantor
shall assume all obligations of the transferor-Borrower or Subsidiary under any
Security Agreement, Pledge or other Loan Document pursuant to which any such
Lien was created) which, in the aggregate, constitutes a Substantial Portion of
the Property of Borrower or any Subsidiary, or which constitutes Collateral
under the Security Documents if said lease, sale or other disposition is
prohibited pursuant to the Security Documents.


 


Section 6.14.                             Investments and Acquisitions.  The
Borrower will not, nor will it permit any of its Subsidiaries to, make or suffer
to exist any Investments (including loans and advances to, and other
Investments in, Subsidiaries, except as explicitly permitted pursuant to
Section 6.11), or commitments therefor, or to create any Subsidiary or to
become or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:


 


(i)                                     Cash Equivalent Investments.


 


(ii)                                  Existing Investments in Subsidiaries and
other Investments in existence on the date hereof and described in
Schedule I, including, without limitation, pursuant to the management and
licensing agreements between AMI, ASI and/or Jetride, substantially on such


 


50

















 


terms
and providing for management and royalty fees to AMI as described in writing to
Administrative Agent.


 


(iii)                               Acquisitions involving aggregate
consideration paid or payable by the Borrower and/or any of its Subsidiaries
which is not in excess of $10,000,000.


 


Section 6.15.                             Liens.  The Borrower will not, nor
will it permit any of its Subsidiaries to, create, incur, or suffer to exist
(i) any Lien in, of or on the Property of the Borrower or any of its
Subsidiaries, or (ii) an agreement with any Person (other than Administrative
Agent for the ratable benefit of the Lenders) which prohibits or restricts the
granting of any such Lien in favor of the Administrative Agent for the ratable
benefit of the Lenders, except any or all of the following (collectively,
“Permitted Liens”):


 


(i)                                     Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside on
its books.


 


(ii)                                  Liens imposed by law, such as carriers’,
warehousemen’s and mechanics’ liens, landlord’s liens, and other similar liens
arising in the ordinary course of business which secure payment of obligations
not more than 60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on its books.


 


(iii)                               Liens arising out of pledges or deposits
under worker’s compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar legislation.


 


(iv)                              Utility easements, building restrictions and
such other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character and which
do not in any material way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower or its Subsidiaries.


 


(v)                                 Liens existing on the date hereof and
described in Schedule II.


 


(vi)                              Liens existing in connection with existing
and future Operating Leases and Capitalized Leases.


 


(vii)                           Liens in favor of the Administrative Agent,
for the benefit of the Lenders.


 


(viii)                        Liens to secure payment of the purchase price
of any aircraft and related tangible fixed assets acquired by the Borrower or
any of its Subsidiaries with the proceeds of any Permitted Indebtedness may be
created or suffered to exist upon such aircraft and related tangible fixed
assets provided that the aggregate principal amount of all Permitted
Indebtedness secured by such Liens does not exceed the amounts set forth in
Section 6.11; provided that no such Lien shall encumber any other asset at
any time owned by the Borrower or such Subsidiary, and,


 


51

















 


provided
further, that not more than one such Lien shall encumber such fixed asset at
any one time.


 


(ix)                                Liens securing Permitted Indebtedness
described in Section 6.11(v).


 


Section 6.16.                             Capital Expenditures.  The
Borrower will not, and will not permit any of its Subsidiaries to, make, or be
committed to make, Capital Expenditures, on a non-cumulative basis in the
aggregate exceeding $44,000,000 for fiscal 2004 and $52,000,000 annually
thereafter; provided, however, that Capital Expenditures not exceeding
$12,500,000 for the construction of Borrower’s Rickenbacker Facility to be
incurred solely in fiscal years 2004 and 2005 shall be excluded from the
calculation of Capital Expenditures. 


 


In
addition, the portion of the aggregate Capital Expenditures attributable to the
purchase of any aircraft and related tangible fixed assets by Borrower or any
Subsidiary of Borrower shall not exceed (1) $25,000,000.00 in fiscal year 2004,
and (2) $35,000,000.00 in each of fiscal years 2005 and 2006.


 


Notwithstanding
the foregoing provisions of this Section 6.16, the difference (up to
$5,000,000) between (i) the maximum aggregate Capital Expenditures permitted in
any year, and (ii) the actual aggregate Capital Expenditures made for such
year, shall be permitted as a carry-over in any subsequent year and shall
increase the maximum Capital Expenditures permitted for any such subsequent
year (including any Capital Expenditures permitted in such subsequent year attributable
to the purchase of aircraft).  


 


Section 6.17.                             Affiliates.  The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction
(including the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of the Borrower’s or such
Subsidiary’s business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary than the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction.


 


Section 6.18.                             Letters of Credit.  The
Borrower will not, nor will it permit any of its Subsidiaries to, apply for or
become liable upon or in respect of any Letter of Credit other than Facility
LCs.


 


Section 6.19.                             Sale of Accounts.  The
Borrower will not, nor will it permit any of its Subsidiaries to, sell or
otherwise dispose of, with or without recourse, any notes receivable or
Accounts Receivable for a purchase price exceeding $100,000 in the aggregate in
any calendar year.


 


Section 6.20.                             Sale and Leaseback Transactions and other
Off-Balance Sheet Liabilities.  The Borrower will not, nor will it permit
any of its Subsidiaries to, enter into or suffer to exist one or more (i) Sale
and Leaseback Transactions of assets having book value in excess of (1)
$10,000,000 in the aggregate during any calendar year, or (2) $25,000,000 in
the aggregate during the term of this Agreement, or (ii) any other transaction
pursuant to which it incurs or has incurred Off-Balance Sheet Liabilities,
except to the extent permitted under (i) above.


 


52

















 


Section 6.21.                             Contingent Obligations.  The
Borrower will not, nor will it permit any of its Subsidiaries to, make or
suffer to exist any Contingent Obligation (including any Contingent Obligation
with respect to the obligations of any of Borrower’s Subsidiaries), except (i)
by endorsement of instruments for deposit or collection in the ordinary course
of business, (ii) the Reimbursement Obligations, and (iii) to the extent such
Contingent Obligation(s) otherwise constitute Permitted Indebtedness hereunder.


 


Section 6.22.                             Financial Contracts.  The
Borrower will not, nor will it permit any of its Subsidiaries to, enter into or
remain liable upon any Financial Contract.


 


Section 6.23.                             No Amendments to Certain Documents and
Agreements.  The Borrower will not, nor will it permit
any material amendment to its Articles of Incorporation, its Code of
Regulations, or any other governing documents, except as required to maintain
compliance with federal, state and local laws and regulations from time to time
applicable to Borrower; provided, however, that Borrower shall provide thirty
(30) days prior written notice to the Administrative Agent of any such
amendment.


 


Section 6.24                                Financial Covenants.


 


Section 6.24.1.  Fixed Charge Coverage Ratio.  The Borrower will not permit the Fixed
Charge Coverage Ratio (determined as of the end of each of its fiscal quarters
for the then most recently ended four fiscal quarters), to be less than (i)
1.10 to 1.0 at any time prior to fiscal year-end 2005, and (ii) 1.20 to 1.0 at
any time on or after December 31, 2005.


 


Section 6.24.2.  Leverage Ratio.  The Borrower will not permit the Leverage
Ratio, (determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters), to be greater than (i) 3.25 to 1.0
at any time on or prior to March 31, 2005, and (ii) 3.00 to 1.0 at any
time on or after April 1, 2005.


 


Section 6.24.3.  Minimum Tangible Net Worth. The
Borrower will at all times maintain Consolidated Tangible Net Worth of not less
than (i) as of Borrower’s fiscal  year-end
2002, $66,901,923, and (ii) as of the last day of each of Borrower’s fiscal
years thereafter, that amount which is equal to the sum of the minimum
Consolidated Tangible Net Worth required to be maintained by Borrower in
accordance with this Section as of the last day of Borrower’s prior fiscal
year, and 50% of Consolidated Net Income for such prior fiscal year; provided
that if such Consolidated Net Income is negative in any fiscal year, the amount
added in the subsequent fiscal year shall be zero.


 


ARTICLE VII


 


Defaults


 


The
occurrence of any one or more of the following events shall constitute a
Default:


 


53

















 


Section 7.1.                                   Any representation or warranty made or deemed
made by or on behalf of the Borrower or any of its Subsidiaries to the Lenders
or the Administrative Agent under or in connection with this Agreement, any
Credit Extension, or any certificate or information delivered in connection
with this Agreement or any other Loan Document shall be false in any material
respect on the date as of which made.


 


Section 7.2.                                   Nonpayment within five (5) days after the
same becomes due of principal of any Loan or interest due upon any Loan, any
Reimbursement Obligation or of any commitment fee, LC Fee or other obligations
under any of the Loan Documents.


 


Section 7.3.                                   The breach by the Borrower of any of the
terms or provisions of Article VI; provided, however, that so long as (i)
no breach by Borrower of any such terms or provisions of Article VI has
occurred previously in the prior twelve (12) consecutive months, and (ii) such
breach is not of the terms or provisions of Sections 6.2, 6.6, 6.8, 6.9, 6.11,
6.12, 6.13, 6.14, 6.15, 6.16, 6.18, 6.19, 6.20, 6.21, 6.22, 6.23, and/or 6.24,
then the same shall not constitute a Default hereunder if cured to the
reasonable satisfaction of Administrative Agent within fifteen (15) days after
the earlier of (i) written notice to Borrower thereof from the Administrative
Agent or any Lender, or (ii) such time as any officer of Borrower has become
aware of said breach.


 


Section 7.4.                                   The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this
Article VII) of any of the terms or provisions of this Agreement or any
other Loan Documents which is not remedied within fifteen (15) days after the
earlier of (i) written notice to Borrower thereof from the Administrative Agent
or any Lender, or (ii) such time as any officer of Borrower has become aware of
said breach.


 


Section 7.5.                                   Failure of the Borrower or any of its
Subsidiaries or any Affiliate of Borrower to pay when due (i) any Indebtedness
or Rate Management Obligation(s) owing to the Lenders and unrelated to this
Agreement, (ii) any Indebtedness owing by any of them in favor of any other
Person which, individually or together with such other Indebtedness as to which
any such failure exists, has an aggregate outstanding principal amount in
excess of $1,000,000 or which is secured by a Substantial Portion of its or
their Property which constitutes Collateral under the Security Agreements
(“Material Indebtedness”), or the default by the Borrower or any of its
Subsidiaries or Affiliates in the performance (beyond the applicable grace or
cure period with respect thereto, if any) of any term, provision or condition
contained in any agreement under which any such Indebtedness, Rate Management
Obligation(s) or Material Indebtedness was created or is governed, including,
without limitation, in any Rate Management Transaction, or any other event
shall occur or condition exist, the effect of which default or event is to
cause, or to permit the holder or holders of such Indebtedness, Rate Management
Obligation(s) or Material Indebtedness to cause, such Indebtedness, Rate
Management Obligation(s) or Material Indebtedness to become due prior to its
stated maturity; or any Indebtedness, Rate Management Obligation(s) or Material
Indebtedness of the Borrower or any of its Subsidiaries or Affiliates shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries or Affiliates shall not pay, or admit
in writing its inability to pay, its debts generally as they become due.


 


54

















 


Section 7.6.                                   The Borrower or any of its Subsidiaries shall
(i) have an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its or their respective Property,
(iv) institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set
forth in this Section 7.6 or (vi) fail to contest in good faith any
appointment or proceeding described in Section 7.7.


 


Section 7.7.                                   Without the application, approval or consent
of the Borrower or any of its Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or any of
its Subsidiaries or any Substantial Portion of its or their respective
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Borrower or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.


 


Section 7.8.                                   Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of a
Substantial Portion of the Property of Borrower and/or any of its Subsidiaries;
or all or any portion of the Property of the Borrower and/or any of its
Subsidiaries which, when taken together with all other Property of the Borrower
and/or any of its Subsidiaries which has been so condemned, seized,
appropriated, or taken into custody or under control, during the twelve-month
period ending with the month in which any such action occurs, constitutes a
Substantial Portion, except pursuant to the legal order of the U.S. government
in time of war.


 


Section 7.9.                                   One or more (i) judgments or orders for the
payment of money in an aggregate amount in excess of $2,000,000 (or the
equivalent thereof in currencies other than U.S. Dollars), or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, are entered against Borrower or
any of its Subsidiaries, which judgment(s), in any such case, is/are not (i)
stayed on appeal, (ii) otherwise being appropriately contested in good faith,
or (iii) paid, bonded or otherwise discharged (including, without limitation,
as a result of any insurance settlement or payment) within forty-five (45) days
after entry thereof.


 


Section 7.10.                             The Unfunded Liabilities of all Single
Employer Plans shall in the aggregate exceed $100,000 or any Reportable Event
shall occur in connection with any Plan.


 


Section 7.11.                             The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group


 


55

















 


as
withdrawal liability (determined as of the date of such notification), exceeds
$100,000 or requires payments exceeding $100,000 per annum.


 


Section 7.12.                             The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result of such reorganization
or termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $100,000.


 


Section 7.13.                             The Borrower or any of its Subsidiaries shall
violate any Environmental Law, which violation could reasonably be expected to
have a Material Adverse Effect.


 


Section 7.14.                             Any Change in Control shall occur.


 


Section 7.15.                             The occurrence of any “default”, as defined in
any Loan Document (other than this Agreement) or the breach of any of the terms
or provisions of any Loan Document (other than this Agreement), which default
or breach continues beyond any period of grace or cure therein provided, and
which could reasonably be expected to have a Material Adverse Effect.


 


Section 7.16.                             Any Guaranty shall fail to remain in full
force or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Guaranty, or any Guarantor shall fail to
comply with any of the terms or provisions of any Guaranty to which it is a
party, or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect.


 


Section 7.17.                             A Substantial Portion of the Property of
Borrower and/or any Subsidiary of Borrower which constitutes Collateral under
the Security Documents shall, for any reason, in the reasonable discretion of
the Required Lenders, materially decline in value, unless, immediately upon
demand, additional security reasonably satisfactory to the Required Lenders is
provided.


 


ARTICLE VIII


 


Acceleration, Waivers And Remedies


 


Section 8.1.                                   Acceleration.  


 


(i)                                     If any Default described in Section 7.6
or 7.7 occurs with respect to the Borrower, the obligations of the Lenders to
make Loans hereunder, and the obligation and power of the LC Issuer to issue
Facility LCs, shall automatically terminate and the Obligations shall
immediately become due and payable and Borrower shall be and become
unconditionally obligated to pay the


 


56

















 


same
without any election or action on the part of the Administrative Agent, the LC
Issuer or any Lender.  If any other
Default occurs, the Required Lenders (or the Administrative Agent with the
consent of the Required Lenders) may terminate or suspend the obligations of
the Lenders to make Loans hereunder and the obligation of the LC Issuer to
issue Facility LCs, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives.


 


(ii)                                  If, within 30 days after acceleration of the
maturity of the Obligations or termination of the obligations of the Lenders to
make Loans, and the obligation and power of the LC Issuer to issue Facility
LCs, as a result of any Default (other than any Default as described in
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment
or decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Borrower, rescind and cancel such
acceleration and/or termination.


 


Section 8.2.                                   Preservation of Rights.  No
delay or omission of the Lenders, the LC Issuer, the Swingline Lender or the
Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver
or acquiescence.  Any single or partial
exercise of any such right shall not preclude any other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 12.13, and then only to the extent in such writing
specifically set forth.  All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent, the LC Issuer, the Swingline
Lender and the Lenders until the Obligations have been paid in full.


 


ARTICLE IX


 


The Administrative Agent


 


Section 9.1.                                   Appointment; Nature of Relationship.  HNB
is hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the “Administrative Agent”) hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents.  The Administrative Agent
agrees to act as such contractual representative upon the express conditions contained
in this Article IX. 
Notwithstanding the use of the defined term “Administrative Agent,” it
is expressly understood and agreed that the Administrative Agent shall not have
any fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents.  In its capacity as the Lenders’ contractual
representative, the Administrative Agent (i) does not


 


57

















 


hereby
assume any fiduciary duties to any of the Lenders, (ii) is a “representative”
of the Lenders within the meaning of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan
Documents.  Each of the Lenders hereby
agrees to assert no claim against the Administrative Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.


 


Section 9.2.                                   Powers.  The Administrative Agent
shall have and may exercise such powers under the Loan Documents as are
specifically delegated to the Administrative Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto.  The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.


 


Section 9.3.                                   General Immunity. 
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith except to the extent such
action or inaction is determined in a final non-appealable judgment by a court
of competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.


 


Section 9.4.                                   No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including any agreement by
an obligor to furnish information directly to each Lender; (c) the satisfaction
of any condition specified in Article IV, except receipt of items required
to be delivered solely to the Administrative Agent; (d) the existence or
possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor, if any, of any of the Obligations or of any of the Borrower’s or any
such guarantor’s respective Subsidiaries. 
The Administrative Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the Administrative
Agent at such time, but is voluntarily furnished by the Borrower to the
Administrative Agent (either in its capacity as Administrative Agent or in its
individual capacity).


 


Section 9.5.                                   Action on Instructions of Lenders.  The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.  The
Lenders hereby acknowledge that the Administrative Agent shall be under no duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the


 


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Required
Lenders.  The Administrative Agent shall
be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.


 


Section 9.6.                                   Employment of Agents and Counsel.  The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents,
and attorneys-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.  The Administrative
Agent shall be entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the Lenders and all matters
pertaining to the Administrative Agent’s duties hereunder and under any other
Loan Document.


 


Section 9.7.                                   Reliance on Documents; Counsel.  The
Administrative Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
Person or Persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Administrative Agent, which counsel may be employees of the
Administrative Agent.


 


Section 9.8.                                   Administrative Agent’s Reimbursement and
Indemnification.  The Lenders agree to reimburse and indemnify
the Administrative Agent ratably in proportion to their respective Commitments
(or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
reasonable and properly documented expenses incurred by the Administrative
Agent on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including for
any reasonable and properly documented expenses incurred by the Administrative
Agent in connection with any dispute between the Administrative Agent and any
Lender or between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Administrative
Agent and (ii) any indemnification required pursuant to Section 3.5(v)
shall, notwithstanding the provisions of this Section 9.8, be paid by the
relevant Lender in accordance with the provisions thereof.  The obligations of the Lenders under this
Section 9.8 shall survive payment of the Obligations and termination of
this Agreement.


 


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Section 9.9.                                   Notice of Default.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Unmatured Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or Unmatured Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the
Lenders.


 


Section 9.10.                             Rights as a Lender.  In
the event the Administrative Agent is a Lender, the Administrative Agent shall
have the same rights and powers hereunder and under any other Loan Document
with respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term “Lender” or
“Lenders” shall, at any time when the Administrative Agent is a Lender, unless
the context otherwise indicates, include the Administrative Agent in its
individual capacity.  The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.


 


Section 9.11.                             Lender Credit Decision. 
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Arranger or any other Lender and based on
the financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents.  Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.


 


Section 9.12.                             Successor Administrative Agent.  The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower, such resignation to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign.  The Administrative Agent may be removed at
any time with or without cause by written notice received by the Administrative
Agent from the Required Lenders, such removal to be effective on the date
specified by the Required Lenders.  Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Administrative
Agent, which appointment shall be subject to the consent of Borrower as long as
no Default has occurred and is continuing at the time of such appointment.  If no successor Administrative Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent’s giving notice of its intention to resign, then
the resigning Administrative Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent. 
Notwithstanding the previous sentence, the Administrative Agent may at
any time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Administrative Agent
hereunder.  If the Administrative Agent
has resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the


 


60

















 


Administrative
Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders.  No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment.  Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$500,000,000.  Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning or removed Administrative Agent. 
Upon the effectiveness of the resignation or removal of the
Administrative Agent, the resigning or removed Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents.  After the effectiveness of
the resignation or removal of an Administrative Agent, the provisions of this
Article IX shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent hereunder and under the other Loan Documents.  In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 9.12, then
the term “Prime Rate” as used in this Agreement shall mean the prime rate, base
rate or other analogous rate of the new Administrative Agent.


 


Section 9.13.                             Delegation to Affiliates.  The
Borrower and the Lenders agree that the Administrative Agent may delegate any
of its duties under this Agreement to any of its Affiliates.  Any such Affiliate (and such Affiliate’s
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and XII.


 


ARTICLE X


 


Setoff; Ratable Payments


 


Section 10.1.                             Setoff.  In addition to, and without
limitation of, any rights of the Lenders under applicable law, if the Borrower
becomes insolvent, however evidenced, or any Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or any Affiliate of any Lender to or for the credit
or account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part
hereof, shall then be due.


 


Section 10.2.                             Ratable Payments.  If
any Lender, whether by setoff or otherwise, has payment made to it upon its
Outstanding Credit Exposure (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Aggregate Outstanding Credit Exposure held by the other Lenders
so that after such purchase each Lender will hold its Applicable Percentage of
the Aggregate Outstanding Credit Exposure. 
If any Lender, whether in connection with setoff or amounts which might
be subject to setoff or otherwise, receives collateral or other protection for
its Obligations or such amounts which may be subject to setoff,


 


61

















 


such
Lender agrees, promptly upon demand, to take such action necessary such that
all Lenders share in the benefits of such collateral ratably in proportion to
their respective Applicable Percentages of the Aggregate Outstanding Credit
Exposure.  In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.


 


ARTICLE XI


 


Benefit Of Agreement; Assignments; Participations


 


Section 11.1.                             Successors and Assigns.  The
terms and provisions of the Loan Documents shall be binding upon and inure to
the benefit of the Borrower and the Lenders and their respective successors and
assigns, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 11.3.  The parties to this Agreement acknowledge
that clause (ii) of this Section 11.1 relates only to absolute assignments
and does not prohibit assignments creating security interests, including any pledge
or assignment by any Lender of all or any portion of its rights under this
Agreement and any Note to a Federal Reserve Bank; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 11.3. 
The Administrative Agent may treat the Person which made any Loan or
which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 11.3; provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Loan or which holds any Note to direct payments relating to such
Loan or Note to another Person.  Any
assignee of the rights to any Loan or any Note agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan Documents.  Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.


 


Section 11.2.                             Participations.


 


11.2.1.  Permitted
Participants; Effect.  Any Lender
may, in the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities (“Participants”)
participating interests in any Outstanding Credit Exposure of such Lender, any
Note held by such Lender, any Commitment of such Lender or any other interest
of such Lender under the Loan Documents. 
In the event of any such sale by a Lender of participating interests to
a Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of its Outstanding Credit Exposure and the holder of any Note issued to
it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the
Administrative


 


62

















 


Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under the Loan Documents.


 


11.2.2.  Voting Rights.  Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which forgives principal, interest,
fees, or any Reimbursement Obligation, or reduces the interest rate or fees
payable with respect to any such Credit Extension or Commitment, extends the
Facility Termination Date, or postpones any date fixed for any
regularly-scheduled payment of principal of or interest on any Loan in which
such Participant has an interest, or any regularly-scheduled payment of fees on
any such Credit Extension or Commitment.


 


11.2.3.  Benefit of Setoff.  The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 10.1 in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 10.1 with respect to the amount of participating
interests sold to each Participant.  The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 10.1, agrees to share
with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 10.2 as if
each Participant were a Lender.


 


Section 11.3.                             Assignments.


 


Section 11.3.1.  Permitted
Assignments.  Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities (“Purchasers”) all or any
part of its rights and obligations under the Loan Documents.  Such assignment shall be substantially in
the form of Exhibit C or in such other form as may be agreed to by the parties
hereto.  The consent of the Borrower and
the Administrative Agent shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof; provided, however, that
if a Default has occurred and is continuing, the consent of the Borrower shall
not be required.  Such consent shall not
be unreasonably withheld or delayed. 
Each such assignment with respect to a Purchaser which is not a Lender
or an Affiliate thereof shall (unless each of the Borrower and the
Administrative Agent otherwise consents) be in an amount not less than the
lesser of (i) $5,000,000 or (ii) the remaining amount of the assigning Lender’s
Revolving Commitment (calculated as at the date of such assignment) or Outstanding
Credit Exposure (as applicable).


 


Section 11.3.2.  Effect;
Effective Date.  Upon (i) delivery
to the Administrative Agent of a notice of assignment, substantially in the
form attached as Exhibit I to Exhibit C (a “Notice of Assignment”), together
with any consents required by Section 11.3.1, and (ii) payment of a $3,500  fee to the Administrative Agent for
processing such assignment,


 


63

















 


such
assignment shall become effective on the effective date specified in such
Notice of Assignment.  The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Lender’s Revolving
Commitment and/or Outstanding Credit Exposure under the applicable assignment
agreement are “plan assets” as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be “plan
assets” under ERISA.  On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender with
respect to the Lender’s Revolving Commitment and/or Outstanding Credit Exposure
assigned to such Purchaser.  Upon the
consummation of any assignment to a Purchaser pursuant to this
Section 11.3.2, the transferor Lender, the Administrative Agent and the
Borrower shall, if the transferor Lender or the Purchaser desires that its
Loans be evidenced by Notes, make appropriate arrangements so that new Notes
or, as appropriate, replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such Purchaser,
in each case in principal amounts reflecting their respective Revolving
Commitment, Outstanding Revolving Credit Exposure, and/or aggregate outstanding
Term Loan, as applicable, as adjusted pursuant to such assignment.


 


Section 11.4.                             Dissemination of Information.  The
Borrower authorizes each Lender to disclose to any Participant or Purchaser or
any other Person acquiring an interest in the Loan Documents by operation of
law (each a “Transferee”) and any prospective Transferee, provided that prior
written notice of any such disclosure from any Lender or the Administrative
Agent to Borrower is made, any and all information in such Lender’s possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by
Section 12.10 of this Agreement. 


 


ARTICLE XII


 


General Provisions


 


Section 12.1.                             Survival of Representations.  All
representations and warranties of the Borrower contained in this Agreement shall
survive the making of the Credit Extensions herein contemplated.


 


Section 12.2.                             Governmental Regulation. 
Anything contained in this Agreement to the contrary notwithstanding,
neither the Swingline Lender, the LC Issuer, nor any Lender shall be obligated
to extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.


 


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Section 12.3.                             Headings.  Section headings in the
Loan Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.


 


Section 12.4.                             Entire Agreement.  The
Loan Documents embody the entire agreement and understanding among the
Borrower, the Administrative Agent, the LC Issuer, the Swingline Lender and the
Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the LC Issuer, the Swingline Lender and the
Lenders relating to the subject matter thereof other than the letter agreement
described in Section 4.1(b).


 


Section 12.5.                             Several Obligations; Benefits of this
Agreement.  The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be the partner or agent
of any other (except to the extent to which the Administrative Agent is
authorized to act as such).  The failure
of any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder.  This Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger
shall enjoy the benefits of the provisions of Sections 9.11, 12.6 and 12.9 to
the extent specifically set forth therein and shall have the right to enforce
such provisions on its own behalf and in its own name to the same extent as if
it were a party to this Agreement.


 


Section 12.6.                             Expenses; Indemnification.  


 


(i)                                     The Borrower shall reimburse the
Administrative Agent and the Arranger for any reasonable and properly
documented costs, internal charges and out-of-pocket expenses (including
reasonable attorneys’ fees and time charges of attorneys for the Administrative
Agent or the Arranger, which attorneys may be employees of the Administrative
Agent or the Arranger) paid or incurred by the Administrative Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents.  The Borrower also agrees to
reimburse the Administrative Agent, the Arranger, the LC Issuer, the Swingline
Lender and the Lenders for any reasonable and properly documented costs,
internal charges and out-of-pocket expenses (including reasonable attorneys’
fees and time charges of attorneys for the Administrative Agent, the Arranger,
the LC Issuer, the Swingline Lender and the Lenders, which attorneys may be
employees of the Administrative Agent, the Arranger, the LC Issuer, the
Swingline Lender or the Lenders) paid or incurred by the Administrative Agent,
the Arranger, the LC Issuer, the Swingline Lender or any Lender in connection
with the collection and enforcement of the Loan Documents.  The Borrower acknowledges that from time to
time HNB may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain audit
reports (the “Reports”) pertaining to the Borrower’s assets for internal use by
Administrative Agent from information furnished to it by or on behalf of the
Borrower, after Administrative Agent has exercised its rights of inspection
pursuant to this Agreement.


 


(ii)                                  The Borrower hereby further agrees to
indemnify the Administrative Agent, the Arranger, the LC Issuer, the Swingline
Lender and each Lender, its directors, officers, employees and agents against
all losses, claims, damages, penalties, judgments, liabilities and expenses


 


65

















 


(including
all expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Arranger, the LC Issuer, the Swingline Lender or any
Lender is a party thereto) which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Credit Extension hereunder except to the
extent that they are determined in a Final Judgment (defined below) to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. “Final Judgment”
means a judgment by a court of competent jurisdiction (i) which is
non-appealable or (ii) with respect to which the defendant-Administrative
Agent, Arranger, LC Issuer, Swingline Lender or Lender, as applicable, does not
commence proceedings to appeal within the applicable period(s) provided for by
law.  The obligations of the Borrower
under this Section 12.6 shall survive the termination of this Agreement.


 


Section 12.7.                             Numbers of Documents.  All
statements, notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.


 


Section 12.8.                             Severability of Provisions.  Any
provision in any Loan Document that is held to be inoperative, unenforceable,
or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.


 


Section 12.9.                             Nonliability of Lenders.  The
relationship between the Borrower on the one hand and the Lenders, the LC
Issuer, the Swingline Lender and the Administrative Agent on the other hand
shall be solely that of borrower and lender. 
Neither the Administrative Agent, the Arranger, the LC Issuer, the
Swingline Lender nor any Lender shall have any fiduciary responsibilities to
the Borrower.  Neither the
Administrative Agent, the Arranger, the LC Issuer,  the Swingline Lender nor any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower’s business or operations.  The Borrower agrees that neither the
Administrative Agent, the Arranger, the LC Issuer, the Swingline Lender nor any
Lender shall have liability to the Borrower (whether sounding in tort, contract
or otherwise) for losses suffered by the Borrower in connection with, arising
out of, or in any way related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined in a Final Judgment
that such losses resulted from the gross negligence or willful misconduct of
the party from which recovery is sought.


 


Section 12.10.                       Confidentiality. 
Each Lender agrees, on behalf of itself and its Affiliates to whom a
disclosure is made, to hold any confidential information which it may receive
from the Borrower pursuant to this Agreement in confidence, except for
disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, (ii) to legal counsel, accountants, and other professional advisors
to such Lender or to a Transferee, (iii) to regulatory officials, (iv) to any
Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which
such Lender is a party, (vi) to such Lender’s direct or indirect contractual counterparties
in swap agreements or to legal counsel,


 


66

















 


accountants
and other professional advisors to such counterparties, and (vii) permitted by
Section 11.4.


 


Section 12.11.                       Nonreliance.  Each Lender hereby represents
that it is not relying on or looking to any Margin Stock for the repayment of
the Credit Extensions provided for herein.


 


Section 12.12.                       Disclosure.    The Borrower and each
Lender hereby acknowledge and agree that HNB and/or its Affiliates from time to
time may hold investments in, make other loans to or have other relationships
with the Borrower and its Affiliates.


 


Section 12.13.                       Amendments.  Subject to the provisions of
this Section 12.13, the Required Lenders (or the Administrative Agent with
the consent in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of all of the Lenders:


 


(i)            Extend
the final maturity of any Loan, or extend the expiration date of any Facility
LC to a date after the Facility Termination Date or postpone any regularly
scheduled payment of principal of any Loan or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation related thereto, or
reduce the rate or extend the time of payment of interest or fees thereon.


 


(ii)           Reduce
the percentage specified in the definition of Required Lenders.


 


(iii)          Extend
the Facility Termination Date or reduce the amount or extend the payment date
for, the mandatory payments required under Section 2.3, or increase
(except as permitted pursuant to Section 2.4) the amount of the Aggregate
Revolving Commitment, the Revolving Commitment or Term Commitment of any Lender
hereunder, or permit the Borrower to assign its rights under this Agreement.


 


(iv)                              Amend this Section 12.13.


 


No
amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to the LC Issuer or Swingline
Lender shall be effective without the written consent of the LC Issuer or
Swingline Lender, as the case may be. 
The Administrative Agent may waive payment of the fee required under
Section 11.3.2 without obtaining the consent of any other party to this
Agreement.


 


Section 12.14.                       Notices.  Except as otherwise permitted
by Section 2.14 with respect to Borrowing Notices, all notices, requests
and other communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and shall
be given to such party: (x) in the case of the Borrower or the Administrative
Agent, at its address or facsimile number set forth on the signature pages
hereof, (y) in the case of any Lender and the Swingline Lender and the LC
Issuer, at its address or facsimile number set forth below its


 


67

















 


signature
hereto or (z) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Administrative Agent and the Borrower in accordance with the provisions of this
Section 12.14.  Each such notice,
request or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this
Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided
that notices to the Administrative Agent under Article II shall not be
effective until received.


 


Section 12.15.                       Change of Address.  The
Borrower, the Administrative Agent, the LC Issuer, the Swingline Lender and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.


 


Section 12.16.                       Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.  This Agreement
shall be effective when it has been executed by the Borrower, the
Administrative Agent, the LC Issuer, the Swingline Lender and the Lenders and
each party has notified the Administrative Agent by facsimile transmission or
telephone that it has taken such action.


 


Section 12.17.                       Choice Of Law.  The
Loan Documents (other than those containing a contrary express choice of law
provision) shall be construed in accordance with the internal laws (but without
regard to the conflict of law principles) of the State of Ohio, but giving
effect to federal laws applicable to national banks.


 


Section 12.18.                       Consent To Jurisdiction.  The
Borrower hereby irrevocably submits to the non-exclusive jurisdiction of any
United States federal or Ohio state court sitting in Columbus, Ohio in any
action or proceeding arising out of or relating to any Loan Documents and the
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in any such court and irrevocably waives
any objection it may now or hereafter have as to the venue of any such suit,
action or proceeding brought in such a court or that such court is an
inconvenient forum.  Nothing herein
shall limit the right of the Administrative Agent, the LC Issuer, the Swingline
Lender or any Lender to bring proceedings against the Borrower in the courts of
any other jurisdiction.  Any judicial
proceeding by the Borrower against the Administrative Agent, the LC Issuer, the
Swingline Lender or any Lender or any affiliate of the Administrative Agent,
the LC Issuer, the Swingline Lender or any Lender involving, directly or
indirectly, any matter in any way arising out of, related to, or connected with
any Loan Document shall be brought only in a court in Columbus, Ohio.


 


Section 12.19.                       WAIVER OF JURY TRIAL.  THE
BORROWER, THE ADMINISTRATIVE AGENT, THE LC ISSUER, THE SWINGLINE LENDER AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,


 


68

















 


OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.


 


Section 12.20.                       Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts that are treated as interest on such
Loan under applicable law (collectively, the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.


 


Section 12.21.                       Warrant of Attorney. The Borrower hereby irrevocably authorizes
any attorney-at-law, including any attorney-at-law employed or retained by the
Administrative Agent, the Swingline Lender, the LC Issuer or any Lender, to
appear for it in any action on this Agreement or any Note at any time after the
same becomes due as herein or therein provided in any court of record situated
in the county where this warrant was signed (being Franklin County, Ohio), or
in the county where the Borrower then resides or can be found, to waive the
issuing and service of process, and confess a judgment in favor of the holder
of this Agreement and any Note against the Borrower, for the amount that may
then be due, with interest at the rate(s) provided for herein, together with
the costs of suit, and to waive and release all errors in said proceedings and
the right to appeal from the judgment rendered.  The Borrower consents to the jurisdiction and venue of such
court.  The Borrower waives any conflict
of interest that any attorney-at-law employed or retained by the Administrative
Agent, the LC Issuer, the Swingline Lender or any Lender may have in confessing
judgment hereunder and consents to the payment of a legal fee to any
attorney-at-law confessing judgment hereunder.


 


69

















 


 


                                                IN WITNESS WHEREOF, the Borrower, the
Lenders, the Administrative Agent and the Swingline Lender the have executed
this Agreement as of the date first above written.


 


WARNING — BY SIGNING THIS PAPER YOU GIVE UP
YOUR RIGHT TO NOTICE AND COURT TRIAL. 
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.


 


 


	
   

  	
  AIRNET SYSTEMS, INC.

  an Ohio corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary W. Qualmann

  	
   

  
	
   

  	
   

  	
  Gary
  W. Qualmann

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  3939
  International Gateway

  
	
   

  	
   

  	
  Columbus,
  Ohio 43219

  
	
   

  	
   

  	
  Attn:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone:

  	
  (614)
  237-2057

  
	
   

  	
  FAX:

  	
  (614)
  237-7876

  
						



 


70

















 


Commitments


 


	
  Revolving
  Loans:

  	
  $15,909,091.00

  	
  THE
  HUNTINGTON NATIONAL BANK,

  
	
  Term
  Loans:

  	
  $  9,090,909.00

  	
  as
  Administrative Agent, Lender

  
	
   

  	
   

  	
  Swingline
  Lender and LC Issuer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John M. Luehmann

  	
   

  
	
   

  	
   

  	
   

  	
  John
  M. Luehmann

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  41
  South High Street

  
	
   

  	
   

  	
   

  	
  Columbus,
  Ohio 43215

  
	
   

  	
   

  	
   

  	
  Attn:  John M. Luehmann, Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
  (614)
  480-4400

  
	
   

  	
   

  	
  FAX:

  	
  (614)
  480-5791

  
							



 


71

















 


Commitments 


 


	
  Revolving
  Loans:

  	
  $9,545,454.50

  	
  BANK
  ONE, N.A., as Lender

  
	
  Term
  Loans:

  	
  $5,454,545.50

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Warren Bebinger

  	
   

  
	
   

  	
   

  	
   

  	
  Warren
  Bebinger

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
  Address:

  	
  100
  East Broad Street, 7th Floor

  
	
   

  	
   

  	
   

  	
  Columbus,
  Ohio 43215

  
	
   

  	
   

  	
   

  	
  Attn:
  Warren Bebinger

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
  (614)
  248-5319

  
	
   

  	
   

  	
  FAX:

  	
  (614)
  248-5518

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Commitments

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Revolving
  Loans:

  	
  $9,545,454.50

  	
  FIFTH
  THIRD BANK

  
	
  Term
  Loans:

  	
  $5,454,545.50

  	
   

  	
   

  
							



 


72

















 


PRICING
SCHEDULE


 


	
  APPLICABLE

  MARGIN*

  	
   

  	
  LEVEL I

  STATUS

  	
   

  	
  LEVEL II

  STATUS

  	
   

  	
  LEVEL III

  STATUS

  	
   

  	
  LEVEL IV

  STATUS

  	
   

  	
  LEVEL V

  STATUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar Rate
  for

  	
   

  	
  275 bps

  	
   

  	
  250 bps

  	
   

  	
  225 bps

  	
   

  	
  200 bps

  	
   

  	
  175 bps

  	
   

  
	
  Term Loans and
  Revolving

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Loans and LC Fee

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Floating Rate for
  Term

  	
   

  	
  75 bps

  	
   

  	
  50 bps

  	
   

  	
  25 bps

  	
   

  	
  0 bps

  	
   

  	
  0 bps

  	
   

  
	
  Loans and Revolving
  Loans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  APPLICABLE FEE
  RATE*

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commitment Fee

  	
   

  	
  50 bps

  	
   

  	
  50 bps

  	
   

  	
  37.5 bps

  	
   

  	
  37.5 bps

  	
   

  	
  30 bps

  	
   

  



 












*In
basis points


 


For
the purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule. “Financials” means the annual
or quarterly financial statements of the Borrower delivered pursuant to
Section 6.1(i) or (ii).


 


“Level
I Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, the Leverage Ratio is
greater than 3.00 to 1.00.


 


“Level
II Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, the Leverage Ratio is
equal to or greater than 2.75 to 1.0 but less than 3.00 to 1.00.


 


“Level
III Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, the Leverage Ratio is
equal to or greater than 2.50 to 1.0 but less than 2.75 to 1.00.


 


“Level
IV Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, the Leverage Ratio is
equal to or greater than 2.25 to 1.00 but less than 2.50 to 1.0.


 


“Level
V Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, the Leverage Ratio is
less than or equal to 2.25 to 1.00.


 


“Status”
means either Level I Status, Level II Status or Level III Status.


 


The
Applicable Margin and Applicable Fee Rate shall be determined in accordance
with the foregoing table based on the Borrower’s Status as reflected in the
then most recent Financials. 
Adjustments, if any, to the Applicable Margin or Applicable Fee Rate
shall be effective five Business Days after the Administrative Agent has
received the applicable Financials.  If
the Borrower fails to deliver the Financials to the Administrative Agent at the
time required pursuant to Section 6.1, then the Applicable Margin and
Applicable Fee Rate shall be the highest Applicable Margin and Applicable Fee
Rate set forth in the foregoing table until five days after such Financials are
so delivered.


 

















 


EXHIBIT A


Intentionally Omitted


 

















 


EXHIBIT B


 


COMPLIANCE CERTIFICATE


 


To:                              The Lenders party to the


Credit
Agreement Described Below


 


This
Compliance Certificate is furnished pursuant to that certain Credit Agreement
dated as of [date] (as amended, modified, renewed or extended from time to
time, the “Agreement”) among AirNet Systems, Inc., an Ohio corporation (the
“Borrower”), the Lenders party thereto and The Huntington National Bank, as
Administrative Agent for the Lenders and as Swingline Lender and as LC Issuer.  Unless otherwise defined herein, capitalized
terms used in this Compliance Certificate have the meanings ascribed thereto in
the Agreement.


 


THE
UNDERSIGNED HEREBY CERTIFIES THAT:


 


1.                                       I am the duly elected
                 
of the Borrower;


 


2.                                       I have reviewed the terms of the Agreement
and I have made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of the Borrower and its Subsidiaries
during the accounting period covered by the attached financial statements;


 


3.                                       The examinations described in paragraph 2 did
not disclose, and I have no knowledge of, the existence of any condition or
event which constitutes a Default or Unmatured Default during or at the end of
the accounting period covered by the attached financial statements or as of the
date of this Certificate, except as set forth below; and


 


4.                                       Schedule I attached hereto sets forth
financial data and computations evidencing the Borrower’s compliance with
certain covenants of the Agreement, all of which data and computations are
true, complete and correct.  


 


5                                          Schedule II hereto sets forth the
determination of the applicable margin on the interest rates to be paid for
Advances, the Applicable Fee Rate and the commitment fee rates commencing on
the fifth day following the delivery hereof.


 


6                                          Schedule III attached hereto sets forth
the various reports and deliveries which are required at this time under the
Credit Agreement and the other Loan Documents and the status of compliance.


 


2

















 


Described
below are the exceptions, if any, to paragraph 3 (list in detail, the nature of
the condition or event, the period during which it has existed and the action
which the Borrower has taken, is taking, or proposes to take with respect to
each such condition or event):


 


 


 


The
foregoing certifications, together with the computations set forth in
Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
     day of 
              ,
          .


 


3

















 


SCHEDULE I TO COMPLIANCE CERTIFICATE


 


Compliance as of
                  ,
         with Provisions of
      and          
of  the Agreement


 

















 


SCHEDULE II TO COMPLIANCE CERTIFICATE


 


Borrower’s Applicable Margin and Applicable Fee Rate Calculation


 

















 


SCHEDULE III TO COMPLIANCE CERTIFICATE


 


Reports and Deliveries Currently Due


 

















 


EXHIBIT C


 


ASSIGNMENT AGREEMENT


 


This
Assignment Agreement (this “Assignment Agreement”)
between                               (the
“Assignor”) and                                (the
“Assignee”) is dated as
of                            ,
200   .  The parties
hereto agree as follows:


 


1.                                       Preliminary Statement.  The
Assignor is a party to a Credit Agreement (which, as it may be amended,
modified, renewed or extended from time to time is herein called the “Credit
Agreement”) described in Item 1 of Schedule 1 attached hereto
(“Schedule 1”).  Capitalized terms
used herein and not otherwise defined herein shall have the meanings attributed
to them in the Credit Agreement.


 


2.                                       Assignment and Assumption.  The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to the Assignor’s
rights and obligations under the Credit Agreement and the other Loan Documents,
such that after giving effect to such assignment the Assignee shall have
purchased pursuant to this Assignment Agreement the percentage interest specified
in Item 3 of Schedule 1 of all outstanding rights and obligations under
the Credit Agreement and the other Loan Documents relating to the facilities
listed in Item 3 of Schedule 1. 
The Revolving Commitment (or Outstanding Credit Exposure, if the applicable
Revolving Commitment has been terminated), Outstanding Revolving Credit
Exposure and/or aggregate outstanding Term Loan purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.


 


3.                                       Effective Date.  The
effective date of this Assignment Agreement (the “Effective Date”) shall be the
later of the date specified in Item 5 of Schedule 1 or two Business Days
(or such shorter period agreed to by the Administrative Agent) after this
Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Administrative Agent. In no event will the
Effective Date occur if the payments required to be made by the Assignee to the
Assignor on the Effective Date are not made on the proposed Effective Date.


 


4.                                       Payment Obligations.  In
consideration for the sale and assignment hereunder, the Assignee shall pay the
Assignor, on the Effective Date, the amount agreed to by the Assignor and the
Assignee.  On and after the Effective
Date, the Assignee shall be entitled to receive all payments of principal,
interest, Reimbursement Obligations and fees with respect to the interest
assigned hereby.  The Assignee will
promptly remit to the Assignor any interest on Loans and fees received from the
Administrative Agent which relate to the portion of the interest assigned to
the Assignee hereunder and not previously paid by the Assignee to the
Assignor.  In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.


 

















 


5.                                       Assignment Fee.  The
Assignor and Assignee each agree to pay one-half of the assignment fee required
to be paid to the Administrative Agent in connection with this Assignment
Agreement unless otherwise specified in Item 6 of Schedule 1.


 


6.                                       Representations of the Assignor; Limitations
on the Assignor’s Liability.  The Assignor represents and warrants that
(i) it is the legal and beneficial owner of the interest being assigned by it
hereunder, (ii) such interest is free and clear of any adverse claim created by
the Assignor and (iii) the execution and delivery of this Assignment Agreement
by the Assignor is duly authorized.  It
is understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee.  Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) the due
execution, legality, validity, enforceability, genuineness, sufficiency or
collectibility of any Loan Document, (ii) any representation, warranty or
statement made in or in connection with any of the Loan Documents, (iii) the
financial condition or creditworthiness of the Borrower or any guarantor, (iv)
the performance of or compliance with any of the terms or provisions of any of
the Loan Documents, (v) inspecting any of the property, books or records of the
Borrower, or (vi) any mistake, error of judgment, or action taken or omitted to
be taken in connection with the Loans or the Loan Documents.


 


7.                                       Representations and Undertakings of the
Assignee.  The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement, (ii) agrees that it will, independently
and without reliance upon the Administrative Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of this
Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender,
(vi) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vii) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are “plan assets” as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be
“plan assets” under ERISA, (viii) agrees to indemnify and hold the Assignor
harmless against all losses, costs and expenses (including reasonable
attorneys’ fees) and liabilities incurred by the Assignor in connection with or
arising in any manner from the Assignee’s non-performance of the obligations
assumed under this Assignment Agreement, and (ix) if applicable, attaches the
forms prescribed by the Internal Revenue Service of the United States
certifying that the Assignee is entitled to receive payments under the Loan
Documents without deduction or withholding of any United States federal income
taxes.


 


2

















 


8.                                       Governing Law. 
This Assignment Agreement shall be governed by the internal law, and not
the law of conflicts, of the State of Ohio.


 


9.                                       Notices.  Notices shall be given under
this Assignment Agreement in the manner set forth in the Credit Agreement.  For the purpose hereof, the addresses of the
parties hereto (until notice of a change is delivered) shall be the address set
forth in the attachment to Schedule 1.


 


10.                                 Counterparts; Delivery by Facsimile. 
This Assignment Agreement may be executed in counterparts.  Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to
be an original counterpart of this Assignment Agreement.


 


IN
WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this Assignment Agreement by executing Schedule 1 hereto as of
the date first above written.


 


3

















 


SCHEDULE 1


to Assignment Agreement


 


	
  1.

  	
  Description
  and Date of Credit Agreement:

  
	
   

  	
   

  
	
  2.

  	
  Date
  of Assignment Agreement:
                ,
  20   

  
	
   

  	
   

  
	
  3.

  	
  Amounts
  (As of Date of Item 2 above):

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Outstanding

  Revolving

  Credit Exposure

  	
   

  	
  Term

  Loans

  	
   

  
	
   

  	
  a.

  	
  Assignee’s
  percentage of each credit facility purchased under the Assignment Agreement**

  	
   

  	
   

  	
  %

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Amount
  of each credit facility purchased under the Assignment Agreement***

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Assignee’s
  Revolving Commitment (or Outstanding Revolving Credit Exposure with respect
  to terminated Revolving Commitments) purchased hereunder:

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Proposed
  Effective Date:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Assignment
  Fee Arrangement

  	
   

  	
  50/50

  	
   

  	
   

  	
   

  
										



 


	
  Accepted
  and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [NAME
  OF ASSIGNOR]

  	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
										



 

















 


	
  ACCEPTED
  AND CONSENTED TO**** BY

  	
   

  	
  ACCEPTED
  AND CONSENTED TO**** BY

  
	
  [NAME
  OF BORROWER]

  	
   

  	
  [NAME
  OF ADMINISTRATIVE AGENT]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 












**                                  Percentage taken to 10 decimal places


***                           If fee is split 50-50, pick N/A as option


****                    Delete if not required by Credit Agreement


 

















 


Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT


 


ADMINISTRATIVE INFORMATION SHEET


 


Attach
Assignor’s Administrative Information Sheet, which must  include notice addresses for the Assignor and
the Assignee
(Sample form shown below)


 


Assignor
Information


 


Contact:


 


	
  Name:

  	
   

  	
  Telephone
  No.:

  
	
  Fax
  No.:

  	
   

  	
  Telex
  No.:

  
	
   

  	
   

  	
  Answerback:

  



 


Payment Information:


 


Name
& ABA # of Destination Bank:


 


 


Account
Name & Number for Wire Transfer:


 


 


Other
Instructions:


 


 


Address
for Notices for Assignor:


 


 


 


Assignee Information


 


Credit
Contact:


 


	
  Name:

  	
   

  	
  Telephone
  No.:

  
	
  Fax
  No.:

  	
   

  	
  Telex
  No.:

  
	
   

  	
   

  	
  Answerback:

  



 


Key
Operations Contacts:


 


	
  Booking
  Installation:

  	
   

  	
  Booking
  Installation:

  
	
  Name:

  	
   

  	
  Name:

  
	
  Telephone
  No.:

  	
   

  	
  Telephone
  No.:

  
	
  Fax
  No.:

  	
   

  	
  Fax
  No.:

  
	
  Telex
  No.:

  	
   

  	
  Telex
  No.:

  
	
  Answerback:

  	
   

  	
  Answerback:

  



 

















 


Payment Information:


 


Name
& ABA # of Destination Bank:


 


 


Account
Name & Number for Wire Transfer:


 


 


Other
Instructions:


 


 


Address
for Notices for Assignee:


 


 

















 


HNB INFORMATION


 


Assignee
will be called promptly upon receipt of the signed agreement.


 


	
  Initial
  Funding Contact:

  	
   

  	
  Subsequent
  Operations Contact:

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Telephone
  No.:  (614)

  	
   

  	
  Telephone
  No.:  (614)

  
	
  Fax
  No.:  (614)

  	
   

  	
  Fax
  No.: (614)

  
	
  Huntington
  Telex No.:

  	
   

  	
  (Answerback:                )

  



 


Initial
Funding Standards:


 


Floating
- Fund 1 day after notice.


Eurodollar
- Fund 2 days notice.


 


	
  Huntington
  Wire Instructions:

  	
   

  	
  The
  Huntington National Bank

  
	
   

  	
   

  	
  ABA
  # xxxxxxx

  
	
   

  	
   

  	
  Account
  GL# xxxxx - xxxxxx

  
	
   

  	
   

  	
  Ref:
  Attn: Special Processing

  
	
   

  	
   

  	
  Ref:
  AirNet Systems, Inc.

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices for Huntington:

  	
   

  	
  The
  Huntington National Bank

  
	
   

  	
   

  	
  7450
  Huntington Park Drive – H20338

  
	
   

  	
   

  	
  Columbus,
  Ohio 43235

  
	
   

  	
   

  	
  Attn:

  
	
   

  	
   

  	
  Fax
  No.: 614-480-2533

  



 

















 


EXHIBIT D


LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION


 


To
The Huntington National Bank

as Administrative Agent (the “Administrative Agent”) under the Credit Agreement

Described Below.


 


Re:                               Credit Agreement, dated May       ,
2004 (as the same may be amended or modified, the “Credit Agreement”), among
AirNet Systems, Inc., an Ohio corporation (the “Borrower”), the Lenders named
therein, the Swingline Lender, the LC Issuer and the Administrative Agent.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Credit
Agreement.


 


The
Administrative Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Administrative Agent of a specific written revocation of such instructions by
the Borrower, provided, however,
that the Administrative Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 12.14 of
the Credit Agreement or based on any telephonic notice made in accordance with
Section 2.14 of the Credit Agreement.


 


Facility
Identification Number(s)


 


Customer/Account
Name


 


Transfer
Funds To


 


 


For
Account No.


 


Reference/Attention
To


 


	
  Authorized
  Officer (Customer Representative)

  	
  Date

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please
  Print)

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  
	
  Bank
  Officer Name

  	
  Date

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Please
  Print)

  	
  Signature

  	
   

  	
   

  
								



 


 


(Deliver Completed Form to Credit Support Staff For Immediate
Processing)


 

















 


EXHIBIT E


NOTE


 


[date]                      


 


AirNet
Systems, Inc., an Ohio corporation (the “Borrower”), promises to pay to the
order of
                                             
(the “Lender”) the aggregate unpaid principal amount of all [Revolving] [Term]
[Swingline] Loans made by the Lender to the Borrower pursuant to
Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of The Huntington National Bank in Columbus,
Ohio, as Administrative Agent, together with interest thereon at the rate or
rates set forth in the Agreement.  The
Borrower shall pay the principal of and accrued and unpaid interest on such
Loans as set forth in the Agreement.


 


The
Lender shall, and is hereby authorized to, record by entries made by the Lender
into its electronic data processing system and/or internal memoranda maintained
by the Lender, or to otherwise record in accordance with its usual practice,
the date and amount of each such Loan and the date and amount of each principal
and interest payment hereunder.  The
Borrower agrees that the sum or sums shown on such schedule, the most recent
printout from the Lender’s electronic data processing system and/or such
memoranda shall be rebuttably presumptive evidence of the amount of the
outstanding principal, interest or any other amount due under this Note; provided, however, that the failure of the
Lender to make any such entry(s) shall not affect the obligation of the
Borrower to repay outstanding principal, interest or any other amount due under
this Note in accordance with the terms hereof.


 


This
Note is one of the Notes issued pursuant to, and is entitled to the benefits of,
the Amended and Restated Credit Agreement dated as of May 28, 2004 (which, as
it may be amended, modified, supplemented, extended, restated and/or replaced
from time to time, is herein called the “Agreement”), among the Borrower, the
Lenders party thereto, including the Lender, the Swingline Lender, the LC
Issuer and The Huntington National Bank, as Administrative Agent, to which
Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note
may be prepaid or its maturity date accelerated.  Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.


 


This
Note is given as a replacement for and as evidence of the indebtedness
originally evidenced by that certain
                              
dated September 30, 2002 given by Borrower in favor of Lender in the face
amount of
$                                  ,
[the outstanding principal balance of which, as of the date hereof, being
$                                    ].


 


The
Borrower hereby irrevocably authorizes any attorney-at-law, including any
attorney-at-law employed or retained by the Administrative Agent and/or the
Lender, to appear for it in any action on this Note at any time after the same
becomes due as herein provided in any court of record situated in the county
where this warrant was signed (being Franklin County, Ohio), or in the county
where the Borrower then resides or can be found, to waive the issuing and
service of


 

















 


process, and confess a judgment in favor of the holder of this Note
against the Borrower, for the amount that may then be due, with interest at the
rate(s) provided for herein, together with the costs of suit, and to waive and
release all errors in said proceedings and the right to appeal from the
judgment rendered.  The Borrower
consents to the jurisdiction and venue of such court.  The Borrower waives any conflict of interest that any
attorney-at-law employed or retained by the Administrative Agent and/or the
Lender may have in confessing judgment hereunder and consents to the payment of
a legal fee to any attorney-at-law confessing judgment hereunder.


 


	
   

  	
  AIRNET
  SYSTEMS, INC.

  
	
   

  	
    an
  Ohio corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Print
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


WARNING — BY SIGNING THIS PAPER YOU GIVE UP
YOUR RIGHT TO NOTICE AND COURT TRIAL. 
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.


 

















 


SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO

NOTE
OF               ,


DATED           ,
200  


 


	
  Date

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Maturity

  of Interest

  Period

  	
   

  	
  Principal

  Amount

  Paid

  	
   

  	
  Unpaid

  Balance

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE 1


 


SUBSIDIARIES AND OTHER INVESTMENTS


(See Sections 6.14)


 


	
  Investment

  In

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Owned

  By

  	
   

  	
  Amount of

  Investment

  	
   

  	
  Percent

  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE 2


 


INDEBTEDNESS AND LIENS


(See Sections 6.11 and 6.15)


 


	
  Indebtedness

  Incurred By

  	
   

  	
  Indebtedness

  Owed To

  	
   

  	
  Property

  Encumbered (If Any)

  	
   

  	
  Maturity

  and Amount

  of Indebtedness

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE 5.14


 


ADDRESSES OF REAL PROPERTY

OWNED OR LEASED BY THE BORROWER


 

















 


SCHEDULE 5.16


 


ENVIRONMENTAL MATTERS


 

















 


SCHEDULE 5.19


 


INSURANCE SUMMARY

AND CERTIFICATION


 


The
undersigned [President/CFO] of AirNet Systems, Inc., an Ohio corporation
(“Borrower”), being first duly cautioned and sworn, deposes and makes the
following statements for the express purpose of inducing The Huntington
National Bank, as Administrative Agent for the benefit of the Lenders under
that certain Credit Agreement among Borrower, Administrative Agent, the Lenders
from time to time party thereto, the Swingline Lender thereunder and the LC
Issuer thereunder to extend credit to Borrower:


 


1.             The Borrower carries the property and
casualty insurance with respect to itself, its Subsidiaries, and their
respective businesses, described and summarized on the attached Exhibit “A”.


 


2.             The insurance described on Exhibit “A”
is adequate in all manner, including, without limitation, in type and amount of
coverage for Borrower and its Subsidiaries.


 


The
undersigned is not now under any legal disability and is properly authorized to
give the foregoing statement, and the Borrower, as well as the undersigned,
shall be bound by this affidavit.


 


	
   

  	
   

  



 


	
  STATE
  OF

  	
  )

  
	
   

  	
  )
  SS:

  
	
  COUNTY
  OF

  	
  )

  



 


BEFORE
ME, a Notary Public in and for said County, personally appeared
                                    ,
the [President/Chief Financial Officer] of the above-named AirNet Systems,
Inc., an Ohio corporation, who acknowledged that he/she did sign the foregoing
instrument and that the same is the free act and deed of said corporation and
the free act and deed of
                      
personally and as such officer.


 


IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal, at
                                          ,
this          day of
                                                          ,
2004.


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  



 

















 


EXHIBIT “F”


 


BORROWING BASE CERTIFICATE

FOR

AIRNET SYSTEMS, INC.

AND ITS SUBSIDIARIES


 


We
submit the following information regarding Eligible Accounts Receivable,
Eligible Inventory and Eligible Fixed Assets, and the following calculations of
the Borrowing Base as defined in that certain Amended and Restated Credit
Agreement (the “Credit Agreement”) by and among AirNet Systems, Inc.
(“AirNet”), The Huntington National Bank, as Lender, LC Issuer, Swingline
Lender and Administrative Agent, and the Lenders from time to time party
thereto, dated May 28, 2004. Capitalized terms used herein and not otherwise
defined herein shall have the meaning given in the Credit Agreement.


 


Completed
for the month ended: 
                                


 


	
  Total accounts receivable per the accounts
  receivable aging report dated as of the date shown above (a copy of which is
  attached hereto)

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: 
  accounts receivable over 90 days from original invoice date

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: other accounts receivable not meeting
  the definition of Eligible Accounts Receivable

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Accounts Receivable

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
   

  	
  X80

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total finished goods inventory

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: 
  any inventory not meeting the definition of Eligible Inventory

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Inventory

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
   

  	
  X 50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Amount
  Available on Eligible Inventory

  	
   

  	
  (b)  

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total fixed assets

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less: 
  any fixed assets not meeting the definition of Eligible Fixed Assets

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eligible Fixed Assets

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  Advance Rate

  	
   

  	
   

  	
   

  	
  X 70

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Amount
  Available on Eligible Fixed Assets

  	
   

  	
  (c)  

  	
   

  	
  $

  	
   

  	
   

  



 

















 


	
  Borrowing Base –
  (a) plus (b) plus (c)

  	
   

  	
  (d)  

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sum of Aggregate
  Revolving Commitment and outstanding balance of Term Loan

  	
   

  	
  (e)  

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount Available
  (lesser of (d) and (e))

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less:  aggregate of Revolving Credit Loans
  Advanced

  	
   

  	
  (f)  

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Availability Excess
  (Shortage)

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  



 


 


If
shortage, AirNet hereby authorizes the Bank to debit AirNet’s account number
                                
for the amount of the shortage.  We
hereby certify that the above information and calculations are true and correct
as of the date shown above and that at no time during the period then ended did
(i) the aggregate outstanding amount of all Revolving Loans exceed the lesser
of the amount of the Commitment or the Borrowing Base, and (ii) the Borrowing
Base fall below zero.


 


 


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