**EXHIBIT4.1**

 

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| **CREDIT  AGREEMENT**            |
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| DATED AS OF  SEPTEMBER 30, 2002  |
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| AMONG                            |
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|                             |
| AIRNET SYSTEMS,  INC.,           |
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|                             |
| THE LENDERS                      |
| FROM TIME TO  TIME PARTY HERETO, |
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| AND                              |
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|                             |
| THE HUNTINGTON  NATIONAL BANK    |
| AS  ADMINISTRATIVE AGENT         |
| AND LEAD ARRANGER                |
|                             |

 

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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 COMMITTMENT |
| 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 |
|                                                       |   |
| **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 |

 

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| 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 6.10                          | INTENTIONALLY OMITTED                                                    |
| 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 6.24                          | INTENTIONALLY OMITTED                                                    |
| SECTION 6.25                          | FINANCIAL COVENANTS                                                      |

 

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| **ARTICLE  VII.   DEFAULTS**                                         |
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| **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 |
| SECTION 9.10                                                                   | RIGHTS AS A LENDER |
| SECTION 9.11                                                                   | LENDER CREDIT DECISION |
| SECTION 9.12                                                                   | SUCCESSOR ADMINISTRATIVE AGENT |
| SECTION 9.13                                                                   | 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 |

 

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| 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                                  |
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| **ATTACHMENTS:**           |
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| PRICING  SCHEDULE          |
|                       |
| EXHIBIT A –           | FORM OF OPINION                                      |
| EXHIBIT B   –    | COMPLIANCE  CERTIFICATE                              |
| EXHIBIT C   –    | ASSIGNMENT  AGREEMENT                                |
| EXHIBIT D                  | LOAN/CREDIT  RELATED MONEY TRANSFER INSTRUCTION      |
| EXHIBIT E   –    | NOTE                                                 |
| 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                 |
|                            |                                                      |  |

 

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**CREDIT AGREEMENT**

 

This CreditAgreement, dated as of September 30, 2002, is among AirNet Systems, Inc., theLenders and The Huntington National Bank, as LC Issuer, as Swingline Lender andas Administrative Agent.  The partieshereto agree as follows:

 

**ARTICLE I**

 

**Definitions**

 

Section 1.1.            Definitions.  As used in this Agreement:

 

“*Acquisition*”means any transaction, or any series of related transactions, consummated on orafter the date of this Agreement, by which the Borrower or any of itsSubsidiaries (i) acquires any going business or all or substantially all of theassets of any firm, corporation or limited liability company, or divisionthereof, whether through purchase of assets, merger or otherwise or (ii)directly or indirectly acquires (in one transaction or as the most recenttransaction in a series of transactions) at least a majority (in number ofvotes) of the securities of a corporation which have ordinary voting power forthe election of directors (other than securities having such power only byreason of the happening of a contingency) or a majority (by percentage orvoting power) of the outstanding ownership interests of a partnership orlimited liability company.

 

“*AdjustedIndebtedness*” means, as of any date of calculation, ConsolidatedFunded Indebtedness plus an amount equal to three times the annual ConsolidatedRent Expense, for the most-recently ended four (4) fiscal quarters.

 

“*AdministrativeAgent*” means HNB in its capacity as contractual representativeof the Lenders pursuant to Article IX, and not in its individual capacity as aLender or Swingline Lender, and any successor Administrative Agent appointedpursuant to Article IX.

 

“*Advance*”means a borrowing hereunder, (x) (i) made by the Lenders on the same BorrowingDate, or (ii) converted or continued by the Lenders on the same date ofconversion or continuation, consisting, in either case, of the aggregate amountof the several Loans of the same Class and Type and, in the case of EurodollarLoans, 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 anotherPerson if the controlling Person owns 20% or more of any class of votingsecurities (or other ownership interests) of the controlled Person orpossesses, directly or indirectly, the power to direct or cause the directionof the management or policies of the controlled Person, whether throughownership of stock or other ownership interests, by contract or otherwise.

 

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“*AggregateOutstanding Revolving Credit Exposure*” means, at any time, theaggregate of the Outstanding Revolving Credit Exposure of all the Lenders.

 

“*AggregateRevolving Commitment*” means the aggregate of the Revolving Commitmentsof all the Revolving Lenders, as increased or reduced from time to timepursuant to the terms hereof.

 

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

 

“*AgreementAccounting Principles*” means generally accepted accountingprinciples as in effect from time to time, applied in a manner consistent withthat used in preparing the financial statements referred to in Section 5.4.

 

“*AlternativeBase 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.

 

“*ApplicableFee Rate*” means, at any time, the percentage rate per annum atwhich commitment fees and LC Fees are accruing on the unused portion of theAggregate Revolving Commitment or undrawn stated amount under the relevantFacility LC, as applicable, at such time as set forth in the Pricing Schedule.

 

“*ApplicableMargin*” means, with respect to Advances of any Class and Type(other than Swingline Loans) at any time, the percentage rate per annum whichis applicable at such time with respect to Advances of such Class and Type asset forth in the Pricing Schedule.

 

“*ApplicablePercentage*” means, with respect to any Revolving Lender, thepercentage of the Aggregate Revolving Commitment represented by such Lender’sRevolving Commitment. If the Revolving Commitments have terminated or expired,the Applicable Percentage shall be determined based upon the AggregateRevolving 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 specificallyreferenced.

 

“*AuthorizedOfficer*” means any of the Chief Executive Officer, ChiefFinancial Officer or Controller of the Borrower, acting singly.

 

“*AvailableAggregate Revolving Commitment*” means, at any time, theAggregate Revolving Commitment then in effect minus the Aggregate OutstandingRevolving Credit Exposure at such time.

 

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

 

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

 

“*BorrowingDate*” means a date on which an Advance is made hereunder asdetermined pursuant to Section 2.6.

 

“*BorrowingNotice*” shall have the meaning set forth in Section 2.6.

 

“*BusinessDay*” means (i) with respect to any borrowing, payment or rateselection of Eurodollar Advances, a day (other than a Saturday or Sunday) onwhich banks generally are open in Columbus, Ohio and New York, New York for theconduct of substantially all of their commercial lending activities, interbankwire transfers can be made on the Fedwire system, and dealings in United Statesdollars are carried on in the London interbank market, and (ii) for all otherpurposes, a day (other than a Saturday or Sunday) on which banks generally areopen in Columbus, Ohio for the conduct of substantially all of their commerciallending activities and interbank wire transfers can be made on the Fedwiresystem.

 

“*CapitalExpenditures*” means, without duplication, any expenditures forany purchase or other acquisition of any asset which would be classified as afixed or capital asset on a consolidated balance sheet of the Borrower and itsSubsidiaries prepared in accordance with Agreement Accounting Principles.

 

“*CapitalizedLease*” of a Person means any lease of Property by such Person aslessee which would be capitalized on a balance sheet of such Person prepared inaccordance with Agreement Accounting Principles.

 

“*CapitalizedLease Obligations*” of a Person means the amount of theobligations of such Person under Capitalized Leases which would be shown as aliability on a balance sheet of such Person prepared in accordance withAgreement Accounting Principles.

 

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

 

“*CashEquivalent Investments*” means (i) short-term obligations of, orfully guaranteed by, the United States of America, (ii) commercial paper ratedA-1 or better by S&P or P-1 or better by Moody’s, (iii) demand depositaccounts maintained in the ordinary course of business, (iv) certificates ofdeposit issued by and time deposits with any commercial banks (whether domesticor foreign) having capital and surplus in excess of $100,000,000, and (v) moneymarket accounts; *provided* in each case that the same provides for payment ofboth principal and interest (and not principal alone or interest alone) and isnot subject to any contingency regarding the payment of principal or interest.

 

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“*Change inControl*” means, with respectto Borrower, an event or series of events by which:

 

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

 

(ii)           during any period of 12 consecutivemonths, a majority of the members of the board of directors or other equivalentgoverning body of Borrower cease to be composed of individuals (A) who weremembers of that board or equivalent governing body on the first day of suchperiod, (B) whose election or nomination to that board or equivalent governingbody was approved by individuals referred to in clause (ii)(A) aboveconstituting at the time of such election or nomination at least a majority ofthat board or equivalent governing body or (C) whose election or nomination tothat board or other governing body was approved by individuals referred to inclauses (ii)(A) and (B) above constituting at the time of such election or nominationat least a majority of that board or equivalent governing body; provided thatthe Required Lenders determine that, for purposes of this Agreement, any suchevent or series of events described in this subpart (ii) shall constitute aChange in Control.

 

“*Class*”,when used in reference to any Loan or Advance, refers to whether such Loan, orthe Loans comprising such Advance, are Revolving Loans, Term Loans or SwinglineLoans and, when used in reference to any Commitment, refers to whether suchCommitment is a Revolving Commitment or Term Commitment.

 

“*ClosingAgenda*” means the Closing Agenda prepared by the AdministrativeAgent’s counsel setting forth the required closing documentation and otheritems pursuant to Section 4.1, as the same may be amended or modified from timeto time.

 

“*ClosingDate*” means the date on which this Agreement is fully executed.

 

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

 

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

 

“*ConsolidatedCapital Expenditures*” means, with reference to any period, theCapital Expenditures of the Borrower and its Subsidiaries calculated on aconsolidated basis for such period.

 

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“*ConsolidatedDividends*” means, with reference to any period, any dividends ordistributions on the membership interests, capital stock or other equityinterests of Borrower or any of its Subsidiaries (other than dividends payablein its own membership interests, capital stock or other equity interests) orthe redemption, repurchase or other acquisition or retirement of any of themembership interests, capital stock or other equity interests of Borrower orany of its Subsidiaries at any time outstanding, all calculated on aconsolidated basis for such period.

 

“*ConsolidatedEBIT*” 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) taxes paid or accrued, calculated forthe Borrower and its Subsidiaries on a consolidated basis, and (iii)extraordinary losses (determined in accordance with Agreement AccountingPrinciples) incurred other than in the ordinary course of business, calculatedfor 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 otherthan in the ordinary course of business, calculated for the Borrower and itsSubsidiaries on a consolidated basis.

 

“*ConsolidatedEBITDAR*” means, with respect to any period, Consolidated NetIncome *plus*,to the extent deducted from revenues in determining Consolidated Net Income,(i) Consolidated Interest Expense, (ii) taxes paid or accrued, calculated forthe 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 aconsolidated basis; (v) Consolidated Rent Expense, and (vi) extraordinarylosses (determined in accordance with Agreement Accounting Principles) incurredother than in the ordinary course of business, calculated for the Borrower andits Subsidiaries on a consolidated basis, *minus,* to the extent included inConsolidated Net Income, extraordinary gains (determined in accordance withAgreement Accounting Principles) realized other than in the ordinary course ofbusiness, calculated for the Borrower and its Subsidiaries on a consolidatedbasis.

 

“*ConsolidatedFunded Indebtedness*” means at any time (a) the aggregate dollaramount of Indebtedness of the Borrower and its Subsidiaries which has actuallybeen funded and is outstanding, whether or not such amount is due or payable,at such time, and (b) all reimbursement obligations under outstanding Lettersof Credit which (i) may be presented, or (ii) have been presented and have notyet been paid; all calculated for the Borrower and its Subsidiaries on aconsolidated basis as of such time.

 

“*ConsolidatedIndebtedness*” means at any time the Indebtedness of the Borrowerand its Subsidiaries calculated on a consolidated basis as of such time.

 

“*ConsolidatedInterest Expense*” means, with reference to any period, theinterest expense of the Borrower and its Subsidiaries calculated on aconsolidated basis for such period.

 

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

 

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“*ConsolidatedNet Worth*” means at any time the consolidated shareholders’ equityof the Borrower and its Subsidiaries calculated on a consolidated basis as ofsuch time.

 

“*ConsolidatedRent Expense*” means, for any period, the aggregate total amountof rent and lease expense under Operating Leases for aircraft paid by theBorrower and its Subsidiaries during such period which would be reported inaccordance with GAAP and which was deducted in arriving at Consolidated EBITfor such period.

 

“*Consolidated Tangible Net Worth*” of Borrower means, atany date, Consolidated Net Worth, less all related Intangible Assets,determined at such date.  For purposesof this definition, “Intangible Assets” means the amount (to the extentreflected in determining such shareholders’ equity) of (i) all write-ups in thebook value of any asset owned by the Borrower and its Subsidiaries, (ii) allEquity 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 futurebenefit of tax loss carry-forwards, copyrights, organization or developmentalexpenses and other intangible assets of Borrower and its Subsidiaries,calculated on a consolidated basis.

 

“*ContingentObligation*” of a Person means any agreement, undertaking orarrangement by which such Person assumes, guarantees, endorses, contingentlyagrees to purchase or provide funds for the payment of, or otherwise becomes oris contingently liable upon, the obligation or liability of any other Person, oragrees to maintain the net worth or working capital or other financialcondition of any other Person, or otherwise assures any creditor of such otherPerson against loss, including any comfort letter, operating agreement,take-or-pay contract or the obligations of any such Person as general partnerof a partnership with respect to the liabilities of the partnership.

 

“*Conversion/ContinuationNotice*” is defined in Section 2.7.

 

“*ControlledGroup*” means all members of a controlled group of corporationsor other business entities and all trades or businesses (whether or notincorporated) under common control which, together with the Borrower or any ofits Subsidiaries, are treated as a single employer under Section 414 of theCode.

 

“*CreditExtension*” means the making of an Advance or the issuance of aFacility LC hereunder.

 

“*CreditExtension Date*” means the Borrowing Date for an Advance or theissuance date for a Facility LC.

 

“*DebtService Coverage Ratio*” means, as of any date of calculation,the ratio of (i) the difference between (1) Consolidated EBITDAR, and (2) taxesactually paid, calculated for the Borrower and its Subsidiaries on aconsolidated basis, to (ii) the sum of (1) principal and interest paymentsscheduled or actually made with respect to Consolidated Indebtedness, (2)Consolidated Rent Expense, and (3) Consolidated Dividends; provided, however,that any payment or distribution made in satisfaction of Permitted Indebtednessowing among Borrower,

 

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its Subsidiaries and/or Affiliates shall be excluded from calculationof the Debt Service Coverage Ratio, notwithstanding that any such payment ordistribution might otherwise be included in the terms referenced in (ii)(1) and(3) of the above equation.

 

“*Default*”is defined in Article VII.

 

“*EffectiveDate*” means the date on which the conditions specified inSection 4.1 are satisfied.

 

“*EnvironmentalLaws*” means any and all federal, state, local and foreignstatutes, laws, judicial decisions, regulations, ordinances, rules, judgments,orders, decrees, plans, injunctions, permits, concessions, grants, franchises,licenses, agreements and other governmental restrictions relating to (i) theprotection of the environment, (ii) the effect of the environment on humanhealth, (iii) emissions, discharges or releases of pollutants, contaminants,hazardous substances 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, hazardoussubstances or wastes or the clean-up or other remediation thereof.

 

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

 

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

 

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

 

“*EurodollarBase Rate*” means, with respect to a Eurodollar Advance for therelevant Interest Period, aninterest rate per annum (based on a 360-day year) obtained by dividing (i) theactual or estimated arithmetic mean of the per annum rates of interest at whichdeposits in U.S. dollars, for a period of time equal to the Interest Period ineffect with respect to the relevant Loan, and in an aggregate amount comparableto 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 secondBusiness Day prior to the first day of each Interest Period, as offered and determinedby Lender in accordance with its standard practices and procedures based uponreference to information which appears on page LIBOR01 captioned “BritishBankers Assoc. Interest Settlement Rates” of the Reuters America Network, aservice of Reuters America, Inc. (or such other page that may replace that pageon 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, suchother reasonably comparable money rate service selected by Lender, forobtaining rate quotations, or any other reasonable procedure, all as determinedby Lender; by (ii) a percentage equal to 100% minus the Reserve Requirement.

 

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

 

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

 

“*ExcludedTaxes*” means, in the case of each Lender or applicable LendingInstallation, the Swingline Lender, the LC Issuer and the Administrative Agent,taxes imposed on its overall net income or net worth, and franchise taxesimposed on it, by (i) the jurisdiction under the laws of which such Lender, theSwingline Lender, the LC Issuer or the Administrative Agent, as applicable, isincorporated or organized, or (ii) the jurisdiction in which the AdministrativeAgent’s or such Lender’s or LC Issuer’s or Swingline Lender’s principalexecutive office or applicable Lending Installation is located.

 

“*Exhibit*”refers to an exhibit to this Agreement, unless another document is specificallyreferenced.

 

“*FacilityLC*” is defined in Section 2.19.1.

 

“*FacilityLC Application*” is defined in Section 2.19.3.

 

“*FacilityTermination Date*” means September 30, 2005 or any earlier dateon which the Aggregate Commitment is reduced to zero or otherwise terminatedpursuant to the terms hereof.

 

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

 

“*FinalJudgment*” is defined in Section 12.6(ii).

 

“*FinancialContract*” of a Person means any exchange-traded orover-the-counter futures, forward, swap or option contract or other financialinstrument with similar characteristics, to the extent any of the same areentered into for speculative (rather than risk management) purposes.

 

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

 

“*FloatingRate*” means, for any day, a rate per annum equal to (i) theAlternative Base Rate for such day plus (ii) the Applicable Margin, ineach case changing when and as the Prime Rate or the Federal Funds EffectiveRate, as applicable, changes.

 

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“*FloatingRate Advance*” means an Advance which, except as otherwiseprovided in Section 2.11, bears interest at the Floating Rate.

 

“*FloatingRate Loan*” means a Loan which, except as otherwise provided inSection 2.11, bears interest at the Floating Rate.

 

“*Guarantor*”means, collectively, AMI, Float, and Jetride, each of which is a Wholly-OwnedSubsidiary of Borrower.

 

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

 

“*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 ordinarycourse of such Person’s business payable on terms customary in the trade),(iii) obligations, whether or not assumed, secured by Liens against, or payableout of the proceeds or production from, Property now or hereafter owned oracquired by such Person, (iv) obligations which are evidenced by notes,acceptances, or other instruments, (v) obligations of such Person to purchasesecurities or other Property arising out of or in connection with the sale ofthe same or substantially similar securities or Property, (vi) CapitalizedLease Obligations, (vii) Contingent Obligations, and (viii) any otherobligation for borrowed money which in accordance with Agreement AccountingPrinciples would be shown as a liability on the consolidated balance sheet ofsuch Person.

 

“*InterestPeriod*” means, with respect to a Eurodollar Advance, a period ofone, two, three or six months commencing on a Business Day selected by theBorrower pursuant to this Agreement. Such Interest Period shall end on the day which corresponds numericallyto such date one, two, three or six months thereafter, *provided, however,* that if thereis no such numerically corresponding day in such next, second, third or sixthsucceeding month, such Interest Period shall end on the last Business Day ofsuch next, second, third or sixth succeeding month.  If an Interest Period would otherwise end on a day which is not aBusiness Day, such Interest Period shall end on the next succeeding BusinessDay, *provided,however,* that if said next succeeding Business Day falls in a newcalendar month, such Interest Period shall end on the immediately precedingBusiness Day.

 

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

 

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

 

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“*LCDisbursement*” means a payment made by the LC Issuer pursuant toa Facility LC.

 

“*LC Fee*”is defined in Section 2.19.4.

 

“*LC Issuer*”means HNB (or any subsidiaries or affiliate of HNB designated by HNB) in itscapacity as Issuer of Facility LCs hereunder.

 

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

 

“*LCPayment Date*” is defined in Section 2.19.5.

 

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

 

“*LendingInstallation*” means, with respect to a Lender, the SwinglineLender or the Administrative Agent, the office, branch, subsidiary or affiliateof such Lender, the Swingline Lender or the Administrative Agent listed on thesignature 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 ofCredit*” of a Person means a letter of credit which is issuedupon the application of such Person or upon which such Person is an accountparty or for which such Person is in any way liable.

 

“*LeverageRatio*” means, as of any date of calculation, the ratio of (i)Adjusted Indebtedness outstanding on such date to (ii) Consolidated EBITDAR forthe 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 othersecurity agreement or 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).

 

“*LoanDocuments*” means this Agreement, the Facility LC Applications,any Notes issued pursuant to Section 2.12, the Subsidiary Guaranty and anyother documents and/or instruments given pursuant hereto or thereto orotherwise 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).

 

“*MarginStock*” has the meaning assigned to such term in Regulation U.

 

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“*Material Adverse Effect*” means amaterial adverse effect on (i) the business, Property, condition (financial orotherwise) or results of operations of the Borrower and its Subsidiaries takenas a whole, (ii) the ability of the Borrower to perform its obligations underthe Loan Documents to which it is a party, or (iii) the validity orenforceability of any of the Loan Documents or the rights or remedies of theAdministrative Agent, the LC Issuer, the Swingline Lender or the Lendersthereunder.

 

“*Material Indebtedness*” shall have themeaning set forth in Section 7.5.

 

“*Maturity Date*” means September 30,2007.

 

“*Maximum Rate*” shall have the meaningset forth in Section 12.20.

 

“*Modify*” and “*Modification*” aredefined in Section 2.19.1.

 

“*Moody’s*” means Moody’s InvestorsService, Inc.

 

“*Multiemployer Plan*” means a Planmaintained pursuant to a collective bargaining agreement or any otherarrangement to which the Borrower or any member of the Controlled Group is aparty to which more than one employer is obligated to make contributions.

 

“*Net Mark-to-Market Exposure*” of aPerson means, as of any date of determination, the excess (if any) of allunrealized losses over all unrealized profits of such Person arising from RateManagement Transactions.  “Unrealizedlosses” means the fair market value of the cost to such Person of replacingsuch Rate Management Transaction as of the date of determination (assuming theRate Management Transaction were to be terminated as of that date), and“unrealized profits” means the fair market value of the gain to such Person ofreplacing such Rate Management Transaction as of the date of determination(assuming such Rate Management Transaction were to be terminated as of thatdate).

 

“*Note*” means any promissory note issuedat the request of a Lender pursuant to Section 2.12 in the form of Exhibit E.

 

“*Notice of Assignment*” is defined inSection 11.3.2.

 

“*Obligations*” means all unpaidprincipal of and accrued and unpaid interest on the Loans, all ReimbursementObligations, all accrued and unpaid fees and all expenses, reimbursements,indemnities and other obligations of the Borrower to the Lenders or to anyLender, the Swingline Lender, the Administrative Agent, the LC Issuer or anyindemnified party arising under the Loan Documents.

 

“*Off-Balance Sheet Liability*” of aPerson means (i) any repurchase obligation or repurchase liability of suchPerson with respect to accounts or notes receivable sold by such Person, (ii)any liability under any Sale and Leaseback Transaction which is not aCapitalized Lease, (iii) any liability under any so-called “synthetic lease” transactionentered into by such Person, or (iv) any obligation arising with respect to anyother transaction which is the functional

 

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equivalent of ortakes the place of borrowing but which does not constitute a liability on thebalance sheet of such Person, but excluding from this clause (iv) OperatingLeases.

 

“*Operating Lease*” of a Person means anylease of Property (other than a Capitalized Lease) by such Person as lesseewhich has an original term (including any required renewals and any renewalseffective at the option of the lessor) of one year or more.

 

“*Operating Lease Obligations*” means, asat any date of determination, the amount obtained by aggregating the presentvalues, determined in the case of each particular Operating Lease by applying adiscount rate (which discount rate shall equal the discount rate which would beapplied under Agreement Accounting Principles if such Operating Lease were aCapitalized Lease) from the date on which each fixed lease payment is due undersuch Operating Lease to such date of determination, of all fixed lease paymentsdue under all Operating Leases of the Borrower and its Subsidiaries.

 

“*Other Taxes*” is defined in Section3.5(ii).

 

“*Outstanding Credit Exposure*” means, asto any Lender at any time, the sum of (i) the aggregate principal amount of itsRevolving Loans outstanding at such time, plus (ii) the aggregateprincipal amount of its Term Loans outstanding at such time, plus (iii)an amount equal to its Applicable Percentage of the LC Obligations at suchtime, 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 principalamount of its Revolving Loans outstanding at such time, plus (ii) anamount 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 Section11.2.1.

 

“*Payment Date*” means the last day ofDecember, 2002 and the last day of each third month thereafter through theMaturity Date.

 

“*PBGC*” means the Pension BenefitGuaranty Corporation, or any successor thereto.

 

“*Permitted Indebtedness*” is defined inSection 6.11.

 

“*Permitted Liens*” is defined in Section6.15.

 

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

 

“*Plan*” means an employee pensionbenefit plan which is covered by Title IV of ERISA or subject to the minimumfunding standards under Section 412 of the Code as to which the Borrower or anymember of the Controlled Group may have any liability.

 

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“*Pricing Schedule*” means the Scheduleattached hereto identified as such.

 

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

 

“*Property*” of a Person means any andall property, whether real, personal, tangible, intangible, or mixed, of suchPerson, or other assets owned or leased.

 

“*Purchasers*” is defined in Section11.3.1.

 

“*Rate Management Transaction*” means anytransaction (including an agreement with respect thereto) now existing orhereafter entered into between the Borrower and any Lender or Affiliate thereofwhich 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, captransaction, floor transaction, collar transaction, forward transaction,currency swap transaction, cross-currency rate swap transaction, currencyoption or any other similar transaction (including any option with respect toany of these transactions) or any combination thereof, whether linked to one ormore interest rates, foreign currencies, commodity prices, equity prices orother financial measures.

 

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

 

“*Regulation D*” means Regulation D ofthe Board as from time to time in effect and any successor thereto or otherregulation or official interpretation of the Board relating to reserve requirementsapplicable to member banks of the Federal Reserve System.

 

“*Regulation T*” means Regulation T ofthe Board as from time to time in effect and all official rulings andinterpretations thereunder or thereof.

 

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

 

“*Regulation X*” means Regulation X ofthe Board as from time to time in effect and all official rulings andinterpretations thereunder or thereof.

 

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

 

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

 

“*Reports*” has the meaning set forth inSection 12.6.

 

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

 

“*Required Property Insurance Coverage*”means at any time insurance insuring all Property of the Borrower and itsSubsidiaries against loss or damage by fire, lightning, vandalism and maliciousmischief and all other perils covered by standard “extended coverage” or“all-risk” insurance and such other risks and losses as is consistent withsound business practices and is customarily maintained from time to time bysimilar businesses similarly situated and owning, leasing or operating similarproperties, including, without limitation, war and terrorism coverage withrespect to all jet aircraft; all in such amounts, and having such deductiblesfrom the loss payable for any casualty, as is customary from time to time forsimilar businesses similarly situated and owning, leasing or operating similarproperties.  If any insurance policieswith respect to Required Property Insurance Coverage is written on aco-insurance basis, such policy must contain an agreed amount endorsement asevidence that the coverage is in an amount sufficient to insure the full amountof such Property.

 

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

 

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

 

“*Revolving Commitment*” means, for eachLender, the obligation of such Lender to make Revolving Loans to, and to makeor participate in Swingline Loans and Facility LCs issued upon

 

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the applicationof, the Borrower in an aggregate amount not exceeding the amount set forthopposite such Lender’s signature below or as set forth in any Notice ofAssignment relating to any assignment that has become effective pursuant toSection 11.3.2, as such amount may be modified from time to time pursuant tothe terms hereof.

 

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

 

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

 

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

 

“*Sale and Leaseback Transaction*” meansany sale or other transfer of Property by any Person with the intent to leasesuch Property as lessee.

 

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

 

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

 

“*Single Employer Plan*” means a Planmaintained by the Borrower or any member of the Controlled Group for employeesof the Borrower or any member of the Controlled Group.

 

“*Subsidiary*” of a Person means (i) anycorporation more than 50% of the outstanding securities having ordinary votingpower of which shall at the time be owned or controlled, directly orindirectly, by such Person or by one or more of its Subsidiaries or by suchPerson and one or more of its Subsidiaries, or (ii) any partnership, limitedliability company, association, joint venture or similar business organizationmore than 50% of the ownership interests having ordinary voting power of whichshall 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 thatcertain Subsidiary Guaranty, dated of even date herewith, executed by theGuarantor in favor of the Administrative Agent, for the ratable benefit of theLenders and the Swingline Lender, as the same may be amended, modified,supplemented, extended, restated and replaced from time to time.

 

“*Substantial Portion*” means, withrespect to the Property of the Borrower and its Subsidiaries, Property which(i) represents more than 10% of the consolidated assets of the Borrower and itsSubsidiaries as would be shown in the consolidated financial statements of theBorrower and its Subsidiaries as at the beginning of the twelve-month periodending with the month in which such determination is made, or (ii) isresponsible for more than 10% of the

 

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consolidated netsales or of the consolidated net income of the Borrower and its Subsidiaries asreflected in the financial statements referred to in clause (i) above; provided,however, that “10%”, as it appears in subparts (i) and (ii) above, shall bechanged to and shall mean, for all purposes of this definition, 20% providedthat the net proceeds (after payment of reasonable costs and expensesassociated with any such sale, including reasonable attorneys’ fees) upon saleor other disposition by the Borrower or any Subsidiary of the consolidatedassets referenced in (i) and (ii) above are within 90 days of such sale orother disposition, (a) reinvested in assets of the Borrower and its Subsidiarieswhich are of similar type and substantially equivalent value as suchconsolidated assets so sold or otherwise disposed of, and/or (b) paid toAdministrative Agent for application in accordance herewith to the amountsowing under the Term Loan.

 

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

 

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

 

“*Swingline Loan*” means a Loan madepursuant to Section 2.9.

 

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

 

“*Term Commitment*” means, with respectto each Lender, the commitment, if any, of such Lender to make a Term Loanhereunder on the Effective Date, expressed as an amount representing themaximum principal amount of the Term Loan to be made by such Lenderhereunder.  The amount of each Lender’sTerm Commitment is set forth on the page of this Agreement bearing suchLender’s signature, or in the assignment substantially in the form of Exhibit Cpursuant to which such Lender shall have assumed its Term Commitment, asapplicable. The aggregate amount of the Lenders’ Term Commitments is$20,000,000.00.

 

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

 

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

 

“*Transferee*” is defined in Section11.4.

 

“*Type*” means, with respect to anyAdvance, 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 benefitsunder all Single Employer Plans exceeds the fair market value of

 

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all such Planassets allocable to such benefits, all determined as of the then most recentvaluation date for such Plans using PBGC actuarial assumptions for single employerplan terminations.

 

“*Unmatured Default*” means an eventwhich but for the lapse of time or the giving of notice, or both, wouldconstitute a Default.

 

“*U.S.*” means the United States ofAmerica.

 

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

 

Section 1.2. Classificationof Loans and Advances. For purposes of this Agreement, Loans may beclassified 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 RevolvingLoan”).  Advances also may be classifiedand 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 RevolvingAdvance”).

 

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

 

Section 1.4.            Accounting Terms.  Except as otherwise expressly providedherein, all terms of an accounting or financial nature shall be construed inaccordance with Agreement Accounting Principles, as in effect from time totime, *provided*that, if the Borrower notifies the Administrative Agent that the Borrowerrequests an amendment to any provision hereof to eliminate the effect of anychange occurring after the date hereof in Agreement Accounting Principles or inthe application thereof on the operation of such provision (or if theAdministrative Agent notifies the Borrower that the Required Lenders request anamendment to any provision hereof for such purpose), regardless of whether anysuch notice is given before or after such change in Agreement AccountingPrinciples or in the application thereof, then such provision shall beinterpreted on the basis of Agreement Accounting Principles as in effect andapplied immediately before such change shall have become effective until suchnotice shall have 

 

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been withdrawn or suchprovision amended in accordance herewith. Whenever under this Agreement any financial information, data and thelike is calculated on a consolidated basis for the Borrower and itsSubsidiaries, such financial information, data and the like of such Subsidiaryshall be included only to the extent of the Borrower’s percentage of ownershipof such Subsidiary.  Any reference inthis Agreement to the terms “extraordinary losses” and “extraordinary gains”shall mean such losses and gains, respectively, categorized by the Company’sexternal auditors as extraordinary in the financial statements of the Companyprepared in accordance with Agreement Accounting Principles in effect at thedate of such financial statements. Notwithstanding anything contained or implied herein to the contrary, nochange in Agreement Accounting Principles shall require the restatement of anyfinancial statements dated prior to such change and provided to any Lender, theAdministrative 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 occursafter the date of any such financial statements) in any of the calculationsmade hereunder based upon the information contained in said financialstatements including, without limitation, the calculation of the ApplicableMargin.

 

**ARTICLEII**

 

**TheCredits**

 

Section 2.1             Commitments. Subject to theterms and conditions set forth herein, (a) each Lender severally agrees to makea Term Loan to the Borrower on the Effective Date in a principal amount notexceeding its Term Commitment, and (b) from and including the Effective Dateand prior to the Facility Termination Date, each Lender severally agrees to (i)make Revolving Loans to the Borrower, and (ii) participate in Facility LCsissued upon the request of the Borrower, *provided* that, after giving effect to themaking of each such Revolving Loan or the issuance of each such Facility LC,such Lender’s Outstanding Revolving Credit Exposure shall not exceed itsRevolving Commitment.  Subject to theterms of this Agreement, the Borrower may borrow, repay and reborrow RevolvingLoans at any time prior to the Facility Termination Date. Amounts repaid inrespect of Term Loans may not be reborrowed. The Revolving Commitments toextend Revolving Loans hereunder shall expire on the Facility TerminationDate.  The LC Issuer will issue FacilityLCs hereunder on the terms and conditions set forth in Section 2.19.  The Swingline Lender will make SwinglineLoans hereunder on the terms and conditions set forth in Section 2.9.

 

Section 2.2.            Loans and Advances.

 

(i)            Each Loan (other than a SwinglineLoan) shall be made as part of an Advance consisting of Loans of the same Classand Type made by the Lenders ratably in accordance with their respectiveCommitments of the applicable Class. Advances of more than one Class and Type may be outstanding at the sametime.  The failure of any Lender to makeany Loan required to be made by it shall not relieve any other Lender of itsobligations hereunder, *provided* that the Commitments of theLenders are several and no Lender shall be responsible for any other Lender’sfailure to make Loans as required hereunder.

 

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(ii)           Each Advance of Revolving Loans andeach Advance of Term Loans shall be comprised entirely of Floating Rate Loansor Eurodollar Loans as the Borrower may request in accordance herewith. EachSwingline 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 bycausing any domestic or foreign branch or Affiliate of such Lender to make suchLoan, *provided*that any exercise of such option shall not affect the obligation of theBorrower to repay such Loan in accordance with the terms of this Agreement.

 

Section 2.3.            Required Payments; Termination.  The Revolving Commitment of each Lendershall terminate, and the Aggregate Outstanding Revolving Credit Exposure andall other unpaid Obligations (other than Obligations with respect to the TermLoans) 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 theaccount of each Lender according to its Applicable Percentage (x) a commitmentfee at a per annum rate equal to the Applicable Fee Rate on the average dailyAvailable Aggregate Revolving Commitment (which shall be determined,notwithstanding anything contained herein to the contrary or the definition ofthe term ‘Available Aggregate Revolving Commitment’ as though no SwinglineLoans are outstanding, whether or not that is in fact the case) from the datehereof to and including the Facility Termination Date, payable (in arrears) oneach Payment Date hereafter and on the Facility Termination Date. The Borrowermay permanently reduce the Aggregate Revolving Commitment in whole, or in partratably among the Lenders, in integral multiples of $5,000,000, upon at leastfive Business Days written notice to the Administrative Agent, which noticeshall specify the amount of any such reduction, *provided, however,* that theamount of the Aggregate Revolving Commitment may not be reduced below theAggregate Outstanding Revolving Credit Exposure.  All accrued commitment fees shall be payable on the effectivedate of any termination of the obligations of the Lenders to make CreditExtensions hereunder.  Upon the requestby the Borrower, with the consent of the Administrative Agent (which shall notbe unreasonably withheld or conditioned), Borrower may increase the AggregateRevolving Commitment by up to $10,000,000 provided that one or more Lenders orother financial institutions selected by the Administrative Agent inconsultation with the Borrower are willing to increase its or their Revolving Commitmentsby an aggregate amount equal to such increase.

 

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

 

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

 

(ii)           EachFloating Rate Advance shall be in the minimum amount of $1,000,000 (and inmultiples of $100,000****in excess thereof), *provided, however,* that anyFloating Rate Advance may be in the lesser amount of the Available AggregateRevolving Commitment or the amount that is required to refinance thereimbursement of an LC Disbursement as contemplated by Section 2.19.6.

 

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(iii)          EachSwingline Loan shall be in the minimum amount of $250,000****(and in multiples of $50,000****inexcess thereof).

 

(iv)          Thereshall not at any time be more than a total of five (5) Eurodollar RevolvingAdvances outstanding.

 

(v)           Thereshall not at any time be more than a total of three (3) Eurodollar TermAdvances outstanding.

 

Section 2.6.            Method of Selecting Types andInterest Periods for New Advances. The Borrower shall from time to time select the Class and Type ofAdvance and, in the case of each Eurodollar Advance, the Interest Periodapplicable thereto.  The Borrower shallgive the Administrative Agent irrevocable notice (a “Borrowing Notice”) notlater than noon (Columbus, Ohio time) at least one (1) Business Day before thedate on which Borrower desires that such Advance be made (the “Borrowing Date”)of each Floating Rate Advance and three (3) Business Days before the BorrowingDate for each Eurodollar Advance, specifying:

 

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

 

(ii)           theaggregate amount of such Advance,

 

(iii)          theClass and Type of Advance selected, and

 

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

 

If no election as to Type of Advance is specified inthe Borrowing Notice, the requested Advance shall be a Floating RateAdvance.  If no Interest Period isspecified with respect to the requested Eurodollar Advance, then the Borrowershall be deemed to have selected an Interest Period of one (1) month’sduration.

 

Not later than noon (Columbus, Ohio time) one (1)Business Day after the notice provided by Administrative Agent pursuant toSection 2.16, each Lender shall make available its Floating Rate Loan orFloating Rate Loans, and, not later than noon (Columbus, Ohio time) two (2)Business Days after the notice provided by Administrative Agent pursuant toSection 2.16, each Lender shall make available its Eurodollar Rate Loan orEurodollar Rate Loans, in each case by wire transfer of immediately availablefunds to the Administrative Agent at its address specified pursuant to Section12.14, *provided*that Swingline Loans shall be made as provided in Section 2.9.  The Administrative Agent will make the fundsso 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 aforesaidaddress.

 

Section 2.7.            Conversion and Continuation ofOutstanding Advances.  (i) FloatingRate Advances shall continue as Floating Rate Advances unless and until suchFloating Rate Advances are converted into Eurodollar Advances pursuant to thisSection 2.7 or are repaid in accordance with the terms of this Agreement.  Each Eurodollar Advance shall continue as aEurodollar Advance until the end of the then applicable Interest Periodtherefor, at which time

 

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such EurodollarAdvance shall be automatically converted into a Floating Rate Advance unless(x) such Eurodollar Advance is or was repaid in accordance with the terms ofthis Agreement or (y) the Borrower shall have given the Administrative Agent aConversion/Continuation Notice (as defined below) requesting that, at the endof such Interest Period, such Eurodollar Advance continue as a EurodollarAdvance for the same or another Interest Period.  Subject to the terms of Section 2.5, the Borrower may elect fromtime to time to convert all or any part of a Floating Rate Advance into aEurodollar Advance.  The Borrower shallgive the Administrative Agent irrevocable notice (a “Conversion/ContinuationNotice”) of each conversion of a Floating Rate Advance into a EurodollarAdvance or continuation of a Eurodollar Advance not later than noon (Columbus,Ohio time) at least three Business Days prior to the date of the requestedconversion or continuation, specifying:

 

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

 

(b)           the aggregate amount and Class andType of the Advance which is to be converted or continued, and the interestrate and expiration date of the Interest Period currently in effect withrespect thereto, if any, and

 

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

 

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

 

Section 2.8.            OptionalPrincipal Payments.  The Borrowermay from time to time pay, without penalty or premium, all outstanding FloatingRate Advances, or, in a minimum aggregate amount of **$**1,000,000 or any integralmultiple of **$**100,000 in excess thereof, any portion of the outstandingFloating Rate Advances upon two Business Days’ prior notice to theAdministrative Agent (and, in the case of prepayment of a Swingline Loan, uponone 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 bySection 3.4 but without penalty or premium, all outstanding EurodollarAdvances, or, in a minimum aggregate amount of **$**1,000,000 or any integralmultiple of **$**100,000 in excess thereof, any portion of the outstandingEurodollar Advances upon three Business Days prior notice to the AdministrativeAgent.  Any payment of Term Advancesprior to the maturity thereof shall be applied to the principal installmentsthereof in reverse order of maturity.

 

Section 2.9.            SwinglineLoans.

 

(i)            Subject to the terms and conditionsset forth herein, the Swingline Lender agrees to make Swingline Loans to theBorrower from the Effective Date and prior to the Facility Termination Date inan aggregate principal amount at any time outstanding that will not result in(x) the Swingline Exposure exceeding $5,000,000, or (y) the Swingline Exposureexceeding the difference between the Aggregate Revolving Commitment and theAggregate Outstanding Revolving Credit Exposure, *provided* that the SwinglineLender shall not be required to make a

 

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Swingline Loan torefinance an outstanding Swingline Loan. Within the foregoing limits andsubject to the terms and conditions set forth herein, the Borrower may borrow,prepay and reborrow Swingline Loans.

 

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

 

(iii)          The Swingline Lender may by writtennotice given to the Administrative Agent not later than noon (Columbus, Ohiotime) on any Business Day, require the Revolving Lenders to acquireparticipations on such Business Day in all or a portion of the Swingline Loansoutstanding. Such notice shall specify the aggregate amount of Swingline Loansin which Revolving Lenders will participate. Promptly upon receipt of suchnotice, the Administrative Agent will give notice thereof to each RevolvingLender, specifying in such notice such Revolving Lender’s Applicable Percentageof such Swingline Loan or Loans. Each Revolving Lender hereby absolutely andunconditionally agrees, upon receipt of notice as provided above, to pay to theAdministrative Agent, for the account of the Swingline Lender, such Lender’sApplicable Percentage of such Swingline Loan or Loans. Each Revolving Lenderacknowledges and agrees that its obligation to acquire participations inSwingline Loans pursuant to this paragraph is absolute and unconditional andshall not be affected by any circumstance whatsoever, including the occurrenceand continuance of a Default or Unmatured Default or the reduction ortermination of the Commitments, and that each such payment shall be madewithout any offset, abatement, withholding or reduction whatsoever. EachRevolving Lender shall comply with its obligation under this paragraph by wiretransfer of immediately available funds, in the same manner as provided inSection 2.6 with respect to Loans made by such Lender (and Section 2.6 shallapply, *mutatismutandis*, to the payment obligations of the Revolving Lenders), andthe Administrative Agent shall promptly pay to the Swingline Lender the amountsso received by it from the Revolving Lenders. The Administrative Agent shallnotify the Borrower of any participations in any Swingline Loan acquiredpursuant to this paragraph, and thereafter payments in respect of suchSwingline Loan shall be made to the Administrative Agent and not to theSwingline Lender. Any amounts received by the Swingline Lender from theBorrower (or other party on behalf of the Borrower) in respect of a SwinglineLoan after receipt by the Swingline Lender of the proceeds of a sale of participationstherein shall be promptly remitted to the Administrative Agent; any suchamounts received by the Administrative Agent shall be promptly remitted by theAdministrative Agent to the Revolving Lenders that shall have made theirpayments pursuant to this paragraph and to the Swingline Lender, as theirinterests may appear. The purchase of participations in a Swingline Loanpursuant to this paragraph shall not relieve the Borrower of any default in thepayment thereof.

 

Section 2.10.          Changesin Interest Rate, etc.  EachFloating Rate Advance shall bear interest on the outstanding principal amountthereof, for each day from and including the date

 

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such Advance ismade or is converted from a Eurodollar Advance into a Floating Rate Advancepursuant to Section 2.7, to but excluding the date it is paid or is convertedinto a Eurodollar Advance pursuant to Section 2.7 hereof, at a rate per annumequal to the Floating Rate for such day. Changes in the rate of interest on that portion of any Advancemaintained as a Floating Rate Advance will take effect simultaneously with eachchange in the Prime Rate or Federal Funds Effective Rate, as applicable.  Each Eurodollar Advance shall bear intereston the outstanding principal amount thereof from and including the first day ofthe Interest Period applicable thereto to (but not including) the last day ofsuch Interest Period at the interest rate determined by the AdministrativeAgent as applicable to such Eurodollar Advance based upon the Borrower’sselections under Sections 2.6 and 2.7 and otherwise in accordance with theterms hereof.  No Interest Period mayend after the Facility Termination Date.

 

Section 2.11.          RatesApplicable After Default. Notwithstanding anything to the contrary contained in Section 2.6 or2.7, during the continuance of a Default or Unmatured Default, no Advance maybe made as or converted into a Eurodollar Advance and each existing EurodollarLoan shall, upon the expiration of the Interest Period in effect with respectto each such Eurodollar Loan, be automatically converted to a Floating RateLoan.  In addition, during thecontinuance of a Default (i) each Eurodollar Advance shall bear interest forthe remainder of the applicable Interest Period at the rate otherwiseapplicable to such Interest Period plus 2% per annum, (ii) each Floating RateAdvance shall bear interest at a rate per annum equal to the Floating Rate ineffect from time to time plus 2%, and (iii) the LC Fee shall be increased by 2%per annum.

 

Section 2.12.          Repaymentof Loans; Evidence of Debt.

 

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

 

(ii)           All payments of the Obligationshereunder shall be made, without setoff, deduction, or counterclaim, inimmediately available funds to the Administrative Agent at the AdministrativeAgent’s address specified pursuant to Section 12.14, or at any other LendingInstallation of the Administrative Agent specified in writing by theAdministrative Agent to the Borrower, by noon (Columbus, Ohio time) on the datewhen due and shall (except in the case of Reimbursement Obligations for whichthe LC Issuer has not been fully indemnified by the Lenders, or as otherwisespecifically required hereunder, including the payment of Obligations relatingto Swingline Loans which are required to be paid to the Swingline Lender) beapplied ratably by the Administrative Agent among the Lenders.  Each payment delivered to the AdministrativeAgent for the account of any Lender shall be delivered promptly by theAdministrative Agent to such Lender in the same type of funds that theAdministrative Agent received at its address specified pursuant to Section12.14 or at any Lending Installation specified in a notice received by theAdministrative Agent from such Lender. The Administrative Agent is

 

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hereby authorizedto charge the account of the Borrower maintained with HNB for each payment ofprincipal and/or interest, Reimbursement Obligations and fees, as any of thesame becomes due hereunder.  Eachreference to the Administrative Agent in this Section 2.12 shall also be deemedto refer, and shall apply equally, to the LC Issuer in the case of paymentsrequired to be made by the Borrower to the LC Issuer pursuant to Section2.19.6.

 

(iii)          Each Lender shall maintain inaccordance with its usual practice an account or accounts evidencing theindebtedness of the Borrower to such Lender resulting from each Loan made bysuch Lender from time to time, including the amounts of principal and interestpayable and paid to such Lender from time to time hereunder.

 

(iv)          The Administrative Agent shall alsomaintain accounts in which it will record (a) the amount of each Loan madehereunder, the Class and Type thereof, and, as applicable, the Interest Periodwith respect thereto, (b) the amount of any principal or interest due andpayable or to become due and payable from the Borrower to each Lenderhereunder, (c) the original stated amount of each Facility LC and the amount ofLC Obligations outstanding at any time, and (d) the amount of any sum receivedby the Administrative Agent hereunder from the Borrower and each Lender’s sharethereof.  The Administrative Agent or any Lender may, if the AdministrativeAgent or any Lender so elects in connection with any transfer of its Loans orenforcement of this Agreement or any Note, endorse on a schedule forming a parthereof or a Note appropriate notation to evidence the foregoing informationwith respect to the principal and interest then outstanding.

 

(v)           The entries maintained in theaccounts 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 Lenderto maintain such accounts or any error therein shall not in any manner affectthe obligation of the Borrower to repay the Obligations in accordance with theterms and provisions hereof.

 

(vi)          Any Lender may request that its Loansof any Class be evidenced by a promissory note (a “Note”). In such event, theAdministrative Agent shall prepare and the Borrower shall execute and deliverto such Lender a Note payable to the order of such Lender.  Thereafter, the Loans evidenced by such Noteand interest thereon shall at all times (including after any assignmentpursuant to Section 11.3) be represented by one or more Notes payable to theorder of the payee named thereon or any assignee pursuant to Section 11.3,except to the extent that any such Lender or assignee subsequently returns anysuch Note for cancellation and requests that such Loans once again be evidencedas described in paragraphs (iii) and (iv) above.

 

Section 2.13.          Amortizationof Term Loans.

 

(i)            Subject to adjustment pursuant toparagraph (iii) of this Section, the Borrower shall repay Term Advances intwenty consecutive quarterly installments, each in the amount of $1,000,000,commencing on the last day of December, 2002, and continuing on each PaymentDate thereafter through the Maturity Date.

 

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(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 theLenders’ Term Commitments exceeds the aggregate principal amount of Term Loansthat are made on the Effective Date, then the scheduled repayments of TermAdvances to be made pursuant to this Section shall be reduced ratably by anaggregate amount equal to such excess. Any prepayment of a Term Advance shallbe applied to reduce the scheduled repayments (in inverse order of maturity) ofthe Term Advances to be made pursuant to this Section.

 

(iv)          Prior to any repayment of any TermAdvances hereunder, the Borrower shall select the Term Advance or Term Advancesto be repaid and shall notify the Administrative Agent by telephone (confirmedby 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 outstandingFloating Rate Advances before any Eurodollar Advances. Each repayment of a TermAdvance shall be applied ratably to the Term Loans included in the repaid TermAdvance. Repayments of Term Advances shall be accompanied by accrued intereston the amount repaid.

 

Section 2.14.          TelephonicNotices.  The Borrower herebyauthorizes the Lenders and the Administrative Agent to extend, convert orcontinue Advances, effect selections of Classes and Types of Advances and totransfer funds based on telephonic notices made by any person or persons theAdministrative Agent or any Lender in good faith believes to be acting onbehalf of the Borrower, it being understood that the foregoing authorization isspecifically intended to allow Borrowing Notices and Conversion/ContinuationNotices to be given telephonically.  TheBorrower agrees to deliver promptly to the Administrative Agent a writtenconfirmation signed by an Authorized Officer if such confirmation is requestedby the Administrative Agent or any Lender, of each telephonic notice. If thewritten confirmation differs in any material respect from the action taken bythe Administrative Agent and the Lenders, the records of the AdministrativeAgent and the Lenders shall govern absent manifest error.

 

Section 2.15.          InterestPayment Dates; Interest and Fee Basis. Interest accrued on each Floating Rate Advance (other than SwinglineLoans) shall be payable on each Payment Date and at maturity.  Interest accrued on each Swingline Loanshall be payable on the day that such Swingline Loan is required to berepaid.  Interest accrued on eachEurodollar Advance shall be payable on the last day of its applicable InterestPeriod, on any date on which the Eurodollar Advance is prepaid, whether byacceleration or otherwise, and at maturity. Interest accrued on each Eurodollar Advance having an Interest Periodlonger than three months shall also be payable on the last day of eachthree-month interval during such Interest Period.  Commitment fees, LC Fees and interest with respect to eachEurodollar Loan and shall be calculated for actual days elapsed on the basis ofa 360-day year.  Interest with respectto each Floating Rate Loan shall be calculated for actual days elapsed on thebasis of a 365-day year.  Interest shallbe payable for the day an Advance is made but not for the day of any payment onthe amount paid if payment is received prior to noon (Columbus, Ohiotime).  If any payment of principal ofor interest on an Advance shall become due on a day which is not a BusinessDay, such payment

 

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shall be made onthe next succeeding Business Day and, in the case of a principal payment, suchextension of time shall be included in computing interest in connection withsuch payment.

 

Section 2.16.          Notificationof Advances, Interest Rates, Prepayments and Commitment Reductions or Increases.  Promptly after receipt thereof, theAdministrative Agent will notify each Lender of the contents of each AggregateRevolving 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 eachrequest for issuance of a Facility LC hereunder.  The Administrative Agent will notify each Lender of the interestrate applicable to each Eurodollar Advance promptly upon determination of suchinterest rate and will give each Lender prompt notice of each change in thePrime Rate or the Federal Funds Effective Rate, as applicable.

 

Section 2.17.          LendingInstallations.  Each Lender and theSwingline Lender may book its Loans and its participation in any LC Obligationsand the LC Issuer may book the Facility LCs at any Lending Installationselected by such Lender, the Swingline Lender or the LC Issuer, as the case maybe, and may change its Lending Installation from time to time.  All terms of this Agreement shall apply toany such Lending Installation and the Loans and any Notes issued hereundershall 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 LCIssuer may, by written notice to the Administrative Agent and the Borrower inaccordance with Section 12.14, designate replacement or additional LendingInstallations through which Loans will be made by it or Facility LCs will beissued by it and for whose account Loan payments or payments with respect toFacility LCs are to be made. Notwithstanding anything contained herein to the contrary, none of theLenders, the Swingline Lender or the LC Issuer shall designate a non-U.S.Lending Installation unless it is determined in the reasonable discretion bysuch Lender, Swingline Lender or LC Issuer that the extension or continuationof any Eurodollar Loan cannot be made at a U.S. Lending Installation.

 

Section 2.18.          Non-Receiptof Funds by the Administrative Agent. Unless the Borrower or a Lender, as the case may be, notifies theAdministrative Agent prior to the date on which it is scheduled to make paymentto the Administrative Agent of (i) in the case of a Lender, the proceeds of aLoan, or (ii) in the case of the Borrower, a payment of principal, interest orfees to the Administrative Agent for the account of the Lenders, that it doesnot intend to make such payment, the Administrative Agent may assume that suchpayment has been made.  TheAdministrative Agent may, but shall not be obligated to, make the amount ofsuch payment available to the intended ultimate recipient in reliance upon suchassumption.  If such Lender or theBorrower, as the case may be, has not in fact made such payment to theAdministrative Agent, the ultimate recipient of such payment shall, on demandby the Administrative Agent, repay to the Administrative Agent the amount somade available together with interest thereon in respect of each day during theperiod commencing on the date such amount was so made available by theAdministrative Agent until the date the Administrative Agent recovers suchamount at a rate per annum equal to (x) in the case of payment by a Lender, theFederal Funds Effective Rate for such day for the first three days and,thereafter, the interest rate applicable to the relevant Loan, or (y) in thecase of payment by the Borrower, the interest rate applicable to the relevantLoan.

 

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Section 2.19. Facility LCs.

 

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

 

Section 2.19.2. Participations  Upon theissuance or Modification by the LC Issuer of a Facility LC in accordance withthis Section 2.19, the LC Issuer shall be deemed, without further action by anyparty hereto, to have unconditionally and irrevocably sold to each Lender, andeach Lender shall be deemed, without further action by any party hereto, tohave unconditionally and irrevocably purchased from the LC Issuer, aparticipation in such Facility LC (and each Modification thereof) and therelated LC Obligations in proportion to its Applicable Percentage.

 

Section 2.19.3. Notice.  Subject toSection 2.19.1, the Borrower shall give the LC Issuer notice prior to 10:00a.m. (Columbus, Ohio time) at least three (3) Business Days prior to theproposed date of issuance or Modification of each Facility LC, specifying thebeneficiary, the proposed date of issuance (or Modification) and the expirydate of such Facility LC, and describing the proposed terms of such Facility LCand the nature of the transactions proposed to be supported thereby.  Upon receipt of such notice, the LC Issuershall promptly notify the Administrative Agent, and the Administrative Agentshall promptly notify each Lender, of the contents thereof and of the amount ofsuch Lender’s participation in such proposed Facility LC.  The issuance or Modification by the LCIssuer of any Facility LC shall, in addition to the conditions precedent setforth in Article IV (the satisfaction of which the LC Issuer shall have no dutyto ascertain), be subject to the conditions precedent that such Facility LCshall be satisfactory to the LC Issuer and that the Borrower shall haveexecuted and delivered such application agreement and/or such other instrumentsand agreements relating to such Facility LC as the LC Issuer shall havereasonably requested (each, a “Facility LC Application”).  In the event of any conflict between theterms of this Agreement and the terms of any Facility LC Application, the termsof this Agreement shall control.  Further,notwithstanding any grant of collateral security under any Facility LC Applicationfor the obligations of Borrower thereunder, the LC Issuer agrees andacknowledges that the Reimbursement Obligations and all other amounts owing byBorrower under any Facility LC Application shall at all times be unsecured.

 

Section 2.19.4. LC Fees.  The Borrowershall pay to the Administrative Agent (i) for the account of the Lendersratably in accordance with their respective Applicable Percentages, a letter ofcredit fee at a per annum rate equal to the Applicable Fee Rate on the averagedaily undrawn stated amount of each Facility LC, such fee to be payable inarrears on each Payment Date, and (ii) for the Administrative Agent for its ownaccount, a one-time letter of credit fee in

 

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an amount equal to15 basis points of the stated amount of each Facility LC, such fee to bepayable on the date of such issuance or increase (each such fee described inthis sentence an “LC Fee”).  TheBorrower shall also pay to the LC Issuer for its own account, such reasonableand customary documentary and processing charges in connection with theissuance or Modification of and draws under Facility LCs in accordance with theLC Issuer’s standard schedule for such charges as in effect from time to time.

 

Section 2.19.5. Administration; Reimbursement by Lenders.  Upon receipt from the beneficiary of anyFacility LC of any demand for payment under such Facility LC, the LC Issuershall notify the Administrative Agent and the Administrative Agent shallpromptly notify the Borrower and each other Lender as to the amount to be paidby the LC Issuer as a result of such demand and the proposed payment date (the“LC Payment Date”).  The responsibilityof the LC Issuer to the Borrower and each Lender shall be only to determinethat the documents (including each demand for payment) delivered under eachFacility LC in connection with such presentment shall be in conformity in allmaterial respects with such Facility LC. The LC Issuer shall endeavor to exercise the same care in the issuanceand administration of the Facility LCs as it does with respect to letters ofcredit in which no participations are granted, it being understood that in theabsence of any gross negligence or willful misconduct by the LC Issuer, eachLender shall be unconditionally and irrevocably liable without regard to theoccurrence of any Default or any condition precedent whatsoever, to reimbursethe LC Issuer on demand for (i) such Lender’s Applicable Percentage of theamount of each payment made by the LC Issuer under each Facility LC to theextent such amount is not reimbursed by the Borrower pursuant to Section 2.19.6below, plus (ii) interest on the foregoing amount to be reimbursed by suchLender, for each day from the date of the LC Issuer’s demand for suchreimbursement (or, if such demand is made after 11:00 a.m. (Columbus, Ohiotime) on such date, from the next succeeding Business Day) to the date on whichsuch Lender pays the amount to be reimbursed by it, at a rate of interest perannum 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 RateAdvances.

 

Section 2.19.6. Reimbursement by Borrower. The Borrower shall be irrevocably and unconditionally obligated toreimburse the LC Issuer on or before the applicable LC Payment Date for anyamounts paid by the LC Issuer upon any drawing under any Facility LC, withoutpresentment, demand, protest or other formalities of any kind; *provided*that neither the Borrower nor any Lender shall hereby be precluded fromasserting any claim for direct (but not consequential) damages suffered by theBorrower 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 determiningwhether a request presented under any Facility LC issued by it complied withthe terms of such Facility LC or (ii) the LC Issuer’s failure to pay under anyFacility LC issued by it after the presentation to it of a request strictlycomplying with the terms and conditions of such Facility LC.  All such amounts paid by the LC Issuer andremaining unpaid by the Borrower shall bear interest, payable on demand, foreach day until paid at a rate per annum equal to (x) the rate applicable toFloating Rate Advances for such day if such day falls on or before theapplicable LC Payment Date and (y) the sum of 2% plus the rate applicable toFloating Rate Advances for such day if such day falls after such LC PaymentDate.  The LC Issuer will pay to eachLender ratably in accordance with its Applicable Percentage all amountsreceived by it from the Borrower for application in payment, in whole or inpart, of the Reimbursement Obligation in

 

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respect of anyFacility LC issued by the LC Issuer, but only to the extent such Lender hasmade payment to the LC Issuer in respect of such Facility LC pursuant toSection 2.19.5.  Subject to the termsand conditions of this Agreement (including the submission of a BorrowingNotice in compliance with Section 2.6 and the satisfaction of the applicableconditions precedent set forth in Article IV), unless directed otherwise by theBorrower, the Lenders shall make a Floating Rate Revolving Advance hereunder forthe purpose of satisfying any Reimbursement Obligation and, to the extent sosatisfied, the Borrower’s obligation to make such payment shall be dischargedand replaced by the resulting Floating Rate Revolving Advance.

 

Section 2.19.7. Obligations Absolute.  TheBorrower’s obligations under this Section 2.19 shall be absolute andunconditional under any and all circumstances and irrespective of any setoff,counterclaim or defense to payment which the Borrower may have or have hadagainst the LC Issuer, any Lender or any beneficiary of a Facility LC.  The Borrower further agrees with the LCIssuer and the Lenders that the LC Issuer and the Lenders shall not beresponsible for, and the Borrower’s Reimbursement Obligation in respect of anyFacility LC shall not be affected by, among other things, the validity orgenuineness of documents or of any endorsements thereon, even if such documentsshould in fact prove to be in any or all respects invalid, fraudulent orforged, or any dispute between or among the Borrower, any of its Affiliates,the beneficiary of any Facility LC or any financing institution or other partyto whom any Facility LC may be transferred or any claims or defenses whatsoeverof the Borrower or of any of its Affiliates against the beneficiary of anyFacility LC or any such transferee.  TheLC Issuer shall not be liable for any error, omission, interruption or delay intransmission, dispatch or delivery of any message or advice, howevertransmitted, in connection with any Facility LC, except for its grossnegligence or willful misconduct.  TheBorrower agrees that any action taken or omitted by the LC Issuer or any Lenderunder or in connection with each Facility LC and the related drafts anddocuments, if done without gross negligence or willful misconduct, shall bebinding upon the Borrower and shall not put the LC Issuer or any Lender underany liability to the Borrower.  Nothingin this Section 2.19.7 is intended to limit the right of the Borrower to make aclaim against the LC Issuer for damages as contemplated by the proviso to thefirst sentence of Section 2.19.6.

 

Section 2.19.8. Actions of LC Issuer.  TheLC 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 andto have been signed, sent or made by the proper Person or Persons, and upon adviceand statements of legal counsel, independent accountants and other expertsselected by the LC Issuer.  The LCIssuer shall be fully justified in failing or refusing to take any action underthis Agreement unless it shall first have received such advice or concurrenceof the Required Lenders as it reasonably deems appropriate or it shall first beindemnified to its reasonable satisfaction by the Lenders against any and allliability and expense which may be incurred by it by reason of taking or continuingto take any such action. Notwithstanding any other provision of this Section2.19, the LC Issuer shall in all cases be fully protected in acting, or inrefraining from acting, under this Agreement in accordance with a request ofthe Required Lenders, and such request and any action taken or failure to actpursuant thereto shall be binding upon the Lenders and any future holders of aparticipation in any Facility LC.

 

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Section 2.19.9. Indemnification.  TheBorrower hereby agrees to indemnify and hold harmless each Lender, the LCIssuer 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 theAdministrative Agent may incur (or which may be claimed against such Lender,the LC Issuer or the Administrative Agent by any Person whatsoever) by reasonof or in connection with the issuance, execution and delivery or transfer of orpayment or failure to pay under any Facility LC or any actual or proposed useof any Facility LC, including any claims, damages, losses, liabilities, costsor 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 itsobligations to the LC Issuer hereunder (but nothing herein contained shallaffect 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 LCwhich specifies that the term “Beneficiary” included therein includes anysuccessor by operation of law of the named Beneficiary, but which Facility LCdoes not require that any drawing by any such successor Beneficiary beaccompanied by a copy of a legal document, satisfactory to the LC Issuer,evidencing the appointment of such successor Beneficiary; *provided* that the Borrowershall not be required to indemnify any Lender, the LC Issuer or theAdministrative Agent for any claims, damages, losses, liabilities, costs orexpenses to the extent, but only to the extent, caused by (x) the willfulmisconduct or gross negligence of the LC Issuer in determining whether arequest presented under any Facility LC complied with the terms of suchFacility LC or (y) the LC Issuer’s failure to pay under any Facility LC afterthe presentation to it of a request strictly complying with the terms andconditions of such Facility LC. Nothing in this Section 2.19.9 is intended tolimit the obligations of the Borrower under any other provision of thisAgreement.

 

Section 2.19.10. Lenders’ Indemnification. Each Lender shall, ratably inaccordance with its Applicable Percentage, indemnify the LC Issuer, itsaffiliates and their respective directors, officers, agents and employees (tothe extent not reimbursed by the Borrower) against any cost, expense (includingreasonable counsel fees and disbursements), claim, demand, action, loss orliability (except such as result from such indemnitees’ gross negligence orwillful misconduct or the LC Issuer’s failure to pay under any Facility LCafter the presentation to it of a request strictly complying with the terms andconditions of the Facility LC) that such indemnitees may suffer or incur inconnection with this Section 2.19 or any action taken or omitted by suchindemnitees hereunder.

 

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

 

Section 2.20.          Replacementof Lender.  If the Borrower isrequired pursuant to Section 3.1, 3.2 or 3.5 to make any additional payment toany Lender or if any Lender’s obligation to make or continue, or to convertFloating Rate Advances into, Eurodollar Advances shall be suspended pursuant toSection 3.3 (any Lender so affected an “Affected Lender”), the Borrower mayelect, if such amounts continue to be charged or such suspension is stilleffective, 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 atthe time of such replacement, and *provided further* that, concurrently withsuch replacement, (i) another bank or other entity which

 

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is reasonablysatisfactory to the Borrower and the Administrative Agent shall agree, as ofsuch date, to purchase for cash the Advances and other Obligations due to theAffected Lender pursuant to an assignment substantially in the form of ExhibitC and to become a Lender for all purposes under this Agreement and to assumeall obligations of the Affected Lender as of such date and to comply with therequirements of Section 11.3 applicable to assignments, and (ii) the Borrowershall pay to such Affected Lender in same day funds on the day of suchreplacement all interest, fees and other amounts then accrued but unpaid tosuch Affected Lender by the Borrower hereunder to and including the date ofassumption, including payments due to such Affected Lender under Sections 3.1,3.2 and 3.5.

 

**ARTICLEIII**

 

**YieldProtection; Taxes**

 

Section 3.1.            YieldProtection.  If, on or after thedate of this Agreement, the adoption of any law or any governmental orquasi-governmental rule, regulation, policy, guideline or directive (whether ornot having the force of law), or any change in the interpretation oradministration thereof by any governmental or quasi-governmental authority,central bank or comparable agency charged with the interpretation oradministration thereof, or compliance by any Lender, or the LC Issuer, orapplicable Lending Installation, with any request or directive (whether or nothaving the force of law) of any such authority, central bank or comparableagency:

 

(i)            subjects any Lender, the LC Issuer,or any applicable Lending Installation, to any Taxes, or changes the basis oftaxation of payments (other than with respect to Excluded Taxes) to any Lender,or the LC Issuer in respect of its Eurodollar Loans, Facility LCs orparticipations therein, or

 

(ii)           imposes or increases or deemsapplicable any reserve, assessment, insurance charge, special deposit orsimilar requirement against assets of, deposits with or for the account of, orcredit extended by, any Lender, or the LC Issuer, or any applicable LendingInstallation (other than reserves and assessments taken into account indetermining the interest rate applicable to Eurodollar Advances), or

 

(iii)          imposes any other condition the resultof which is to increase the cost to any Lender, the LC Issuer, or anyapplicable Lending Installation, of making, funding or maintaining itsEurodollar Loans, or of issuing or participating in Facility LCs, or reducesany amount receivable by any Lender, the LC Issuer, or any applicable LendingInstallation, in connection with its Eurodollar Loans, Facility LCs orparticipations therein, or requires any Lender, the LC Issuer, or anyapplicable Lending Installation, to make any payment calculated by reference tothe amount of Eurodollar Loans, Facility LCs or participation therein held orinterest of LC Fees received by it, by an amount deemed material by such Lenderor the LC Issuer, as the case may be, and the result of any of the foregoing isto increase the cost to such Lender, LC Issuer, or applicable Lending Installation,as the case may be, of making or maintaining its Eurodollar

 

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Loans or ofissuing or participating in Facility LCs, or to reduce the return received bysuch Lender, LC Issuer, or applicable Lending Installation, as the case may be,in connection with such Eurodollar Loans, the Commitment, Facility LCs orparticipations therein, then, within 15 days of demand by such Lender, or theLC Issuer, as the case may be, the Borrower shall pay such Lender, or the LCIssuer, as the case may be, such additional amount or amounts as willcompensate such Lender, or the LC Issuer, as the case may be, for suchincreased cost or reduction in amount received.

 

Section 3.2.            Changesin Capital Adequacy Regulations.  Ifa Lender, or the LC Issuer determines the amount of capital required orexpected to be maintained by such Lender, the LC Issuer, or any LendingInstallation, or any corporation controlling such Lender, or the LC Issuer isincreased as a result of a Change (defined below), then, within 15 days ofdemand by such Lender, or the LC Issuer, the Borrower shall pay such Lender, orthe LC Issuer the amount necessary (without any premium or penalty thereon orotherwise with respect thereto) to compensate for any shortfall in the rate ofreturn on the portion of such increased capital which such Lender, or the LCIssuer determines is attributable to this Agreement, its Outstanding RevolvingCredit Exposure, its Term Loans, its Revolving Commitment to make Revolving Loansand/or issue or participate in Facility LCs, as the case may be (after takinginto account such Lender’s, or LC Issuer’s, policies as to capitaladequacy).  “Change” means (i) anychange 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 thedate of this Agreement which affects the amount of capital required or expectedto be maintained by any Lender, or the LC Issuer, or any Lending Installationor 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 ofthis Agreement, including transition rules, and (ii) the corresponding capitalregulations promulgated by regulatory authorities outside the United Statesimplementing the July 1988 report of the Basle Committee on Banking Regulationand Supervisory Practices Entitled “International Convergence of CapitalMeasurements and Capital Standards,” including transition rules, and anyamendments to such regulations adopted prior to the date of this Agreement.

 

Section 3.3.            Availabilityof Types of Advances.  If anyLender, or the LC Issuer determines that maintenance of its Eurodollar Loans ata suitable Lending Installation would violate any applicable law, rule,regulation, or directive, whether or not having the force of law, or if theRequired Lenders determine that (i) deposits of a type and maturity appropriateto match fund Eurodollar Advances are not available or (ii) the interest rateapplicable to Eurodollar Advances does not accurately reflect the cost ofmaking or maintaining Eurodollar Advances, then the Administrative Agent shallsuspend the availability of Eurodollar Advances and require any affectedEurodollar Advances to be repaid or converted to Floating Rate Advances,subject to the payment of any funding indemnification amounts required bySection 3.4 (without any premium or penalty thereon or otherwise with respectthereto).

 

Section 3.4.            FundingIndemnification.  If any payment ofa Eurodollar Advance occurs on a date which is not the last day of theapplicable Interest Period, whether because of acceleration, prepayment orotherwise, or a Eurodollar Advance is not made on the date specified

 

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by the Borrowerfor any reason other than default by the Lenders, the Borrower will indemnifyeach Lender for any reasonable and properly documented loss or cost incurred byit resulting therefrom, including any loss or cost in liquidating or employingdeposits acquired to fund or maintain such Eurodollar Advance (without anypremium or penalty thereon or otherwise with respect thereto).

 

Section 3.5.            Taxes.

 

(i)            All payments by the Borrower to orfor the account of any Lender, the Swingline Lender, the LC Issuer or theAdministrative Agent hereunder or under any Note or Facility LC Applicationshall be made free and clear of and without deduction for any and allTaxes.  If the Borrower shall berequired by law to deduct any Taxes from or in respect of any sum payablehereunder to any Lender, the Swingline Lender, the LC Issuer or theAdministrative Agent, (a) the sum payable shall be increased as necessary sothat after making all required deductions (including deductions applicable toadditional sums payable under this Section 3.5) such Lender, the SwinglineLender, the LC Issuer or the Administrative Agent (as the case may be) receivesan amount equal to the sum it would have received had no such deductions beenmade, (b) the Borrower shall make such deductions, (c) the Borrower shall paythe full amount deducted to the relevant authority in accordance withapplicable law and (d) the Borrower shall furnish to the Administrative Agentthe original copy of a receipt evidencing payment thereof within 30 days aftersuch payment is made.

 

(ii)           In addition, the Borrower herebyagrees to pay any present or future stamp or documentary taxes and any otherexcise or property taxes, charges or similar levies which arise from anypayment made hereunder or under any Note or Facility LC Application or from theexecution or delivery of, or otherwise with respect to, this Agreement or anyNote or Facility LC Application (“Other Taxes”).

 

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

 

(iv)          Any Lender that is entitled to anexemption from or reduction of withholding tax with respect to payments underthis Agreement or any Note pursuant to the law of any relevant jurisdiction orany 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 andexecuted documentation prescribed by applicable law as will permit suchpayments to be made without withholding or at a reduced rate.

 

(v)           If the U.S. Internal Revenue Serviceor any other governmental authority of the U.S. or any other country or anypolitical subdivision thereof asserts a claim that the Administrative Agent didnot properly withhold tax from amounts paid to or for the account of

 

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any Lender(because the appropriate form was not delivered or properly completed, becausesuch Lender failed to notify the Administrative Agent of a change incircumstances which rendered its exemption from withholding ineffective, or forany other reason), such Lender shall indemnify the Administrative Agent fullyfor all amounts paid, directly or indirectly, by the Administrative Agent astax, withholding therefor, or otherwise, including penalties and interest, andincluding taxes imposed by any jurisdiction on amounts payable to theAdministrative Agent under this subsection, together with all costs andexpenses related thereto (including attorneys fees and time charges ofattorneys for the Administrative Agent, which attorneys may be employees of theAdministrative Agent).  The obligationsof the Lenders under this Section 3.5(v) shall survive the payment of theObligations and termination of this Agreement.

 

Section 3.6.            LenderStatements; Survival of Indemnity. To the extent reasonably possible, each Lender, and the LC Issuer shalldesignate an alternate Lending Installation with respect to its EurodollarLoans to reduce any liability of the Borrower to such Lender or LC Issuer, asapplicable, under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability ofEurodollar Advances under Section 3.3, so long as such designation is not, inthe reasonable judgment of such Lender, or the LC Issuer, disadvantageous tosuch Lender or the LC Issuer.  EachLender 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, underSection 3.1, 3.2, 3.4 or 3.5.  Suchwritten statement shall set forth in reasonable detail the calculations uponwhich 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 suchSections in connection with a Eurodollar Loan shall be calculated as though eachLender or the LC Issuer funded each Eurodollar Loan or made any disbursementunder each Facility LC, as applicable, through the purchase of a deposit of thetype and maturity corresponding to the deposit used as a reference indetermining the Eurodollar Rate applicable to such Loan or Facility LC, whetheror not that is in fact the case, and any amounts owing by Borrower to anyLender or the LC Issuer under such Sections shall not be deemed unreasonable ornot properly documented as a result of whether or not any Lender funded anyEurodollar Loan or whether or not the LC Issuer made any disbursement under anyFacility LC in such manner.  Unlessotherwise provided herein, the amount specified in the written statement of anyLender or the LC Issuer shall be payable on demand after receipt by theBorrower of such written statement.  Theobligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survivefor 180 days following the later of (i) the payment of the Obligations andtermination of this Agreement, and (ii) the date that the event giving rise tothe obligation occurs (provided that if the event giving rise to the obligationis retroactive, then such 180 day period shall be extended to include theperiod of retroactive effect).

 

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**ARTICLE IV**

 

**ConditionsPrecedent**

 

Section 4.1.            EffectiveDate; Initial Credit Extension.

 

(i)            The obligations of the Lenders tomake Loans and of the Swingline Lender to make Swingline Loans and of the LCIssuer to issue Facility LCs hereunder shall not become effective until thedate on which each of the following conditions is satisfied:

 

(a)           The Borrower shall have furnished tothe 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 anyLender or its counsel may have reasonably requested.

 

(b)           The Borrower shall have paid to theAdministrative Agent, for its own account, all fees and other amounts owingpursuant to the letter agreement dated September 30, 2002, or as otherwiseagreed from time to time.

 

(c)           Simultaneously with the firstAdvance, Borrower shall have (i) paid in full all indebtedness and liabilitiesoutstanding pursuant to the Loan Agreement among Borrower, the banks partythereto and Bank One, as agent, dated August 1, 1998, as the same may have beenamended from time to time (the “Previous Loan Agreement”), except to the extentany of the same constitutes Permitted Indebtedness hereunder, and (ii)terminated any commitment to extend further credit and/or additional loansunder the Previous Loan Agreement.

 

(d)           The Administrative Agent shall have received the executedlegal opinion of Vorys, Sater, Seymour & Pease, legal counsel to theBorrower and Guarantor, in favor of the Lenders, Swingline Lender, LC Issuer,and Administrative Agent, in substantially the form attached hereto as Exhibit“A”.

 

(ii)           The Administrative Agent shall notifythe Borrower and the Lenders of the Effective Date, and such notice shall beconclusive and binding. Notwithstanding the foregoing, the obligations of theLenders to make Loans and of the Swingline Lender to make Swingline Loans andof the LC Issuer to issue the Facility LCs hereunder shall not become effectiveunless each of the foregoing conditions is satisfied (or waived pursuant toSection 12.13) on the Closing Date.

 

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

 

(i)                                     Thereexists no Default or Unmatured Default.

 

(ii)           Therepresentations and warranties contained in Article V are true and correct asof such Credit Extension Date except to the extent any such representation orwarranty is stated

 

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to relate solely to anearlier date, in which case such representation or warranty shall have beentrue and correct on and as of such earlier date.

 

(iii)          Alllegal matters incident to the making of such Credit Extension shall besatisfactory to the Lenders and their counsel.

 

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

 

**ARTICLE V**

 

**Representations And Warranties**

 

The Borrower represents and warrants to the Lendersthat:

 

Section 5.1.            Existence and Standing.  Each of the Borrower and its Subsidiaries isa corporation, or (in the case of Subsidiaries only) partnership or limitedliability company, duly and properly incorporated or organized, as the case maybe, validly existing and (to the extent such concept applies to such entity) ingood standing under the laws of its jurisdiction of incorporation or organizationand has all requisite authority to conduct its business in each jurisdiction inwhich its business is conducted.

 

Section 5.2.            Authorization and Validity.  The Borrower and each Guarantor has thepower and authority and legal right to execute and deliver the Loan Documentsto which it is a party and to perform its obligations thereunder.  The execution and delivery by the Borrowerand each Guarantor of the Loan Documents to which it is a party and the performanceof its obligations thereunder have been duly authorized by proper corporateproceedings, and the Loan Documents constitute legal, valid and bindingobligations of the Borrower and each Guarantor, as applicable, enforceableagainst the Borrower and each Guarantor in accordance with their terms, exceptas enforceability may be limited by bankruptcy, insolvency or similar lawsaffecting the enforcement of creditors’ rights generally and general principlesof equity.

 

Section 5.3.            No Conflict; Government Consent.  Neither the execution and delivery by theBorrower or any Guarantor of the Loan Documents to which it is a party, nor theconsummation of the transactions therein contemplated, nor compliance with theprovisions 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, anyGuarantor’s, or any of their respective Subsidiaries’, articles or certificateof incorporation, partnership agreement, certificate of partnership, articlesor certificate of organization, by-laws, or operating or other managementagreement, as the case may be, or (iii) the provisions of any indenture,instrument or agreement to which the Borrower, any Guarantor, or any of theirrespective Subsidiaries is a party or is subject, or by which any of them, ortheir 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 onthe Property of the Borrower, any Guarantor or any of their respectiveSubsidiaries of any of them pursuant to the terms of any such indenture,

 

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instrument oragreement.  No order, consent,adjudication, approval, license, authorization, or validation of, or filing,recording or registration with, or exemption by, or other action in respect ofany governmental or public body or authority, or any subdivision thereof, whichhas not been obtained by the Borrower, any Guarantor, or any of theirSubsidiaries, is required to be obtained in connection with the execution anddelivery of the Loan Documents, the borrowings under this Agreement, thepayment 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, 2001 and June 30, 2002consolidated financial statements of the Borrower and its Subsidiariesheretofore delivered to the Lenders were prepared in accordance with AgreementAccounting Principles in effect on the date such statements were prepared andfairly present the consolidated financial condition and operations of theBorrower and its Subsidiaries at such date and the consolidated results oftheir operations for the period then ended. The financial projections providedby Borrower and/or its Subsidiaries to the Lenders in connection with thetransactions contemplated hereby shall be certified by an Authorized Officer asbeing an accurate summary of the estimated expected results of operations andcash flow of the Borrower and its Subsidiaries to the best knowledge of suchAuthorized Officer as of the date of said financial projections based uponpresent circumstances; it being acknowledged and agreed by the parties heretothat the assumptions contained therein may not materialize, and unanticipatedevents and circumstances may occur subsequent to the date of said financialprojections which may result in actual results which vary (perhaps, materially)from the financial projections.

 

Section 5.5.            Material Adverse Change.  Since June 30, 2002 there has been no changein the business, Property, condition (financial or otherwise) or results ofoperations of the Borrower and its Subsidiaries which could reasonably beexpected to have a Material Adverse Effect.

 

Section 5.6.            Taxes.  The Borrower and its Subsidiaries have filedall United States federal tax returns and all other tax returns which arerequired to be filed and have paid all taxes due pursuant to said returns orpursuant 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 whichadequate reserves have been provided in accordance with Agreement AccountingPrinciples and as to which no Lien exists. No tax liens have been filed and no claims are being asserted withrespect to any such taxes.  The charges,accruals and reserves on the books of the Borrower and its Subsidiaries inrespect of any taxes or other governmental charges are adequate.  If the Borrower or any of its Subsidiariesis a limited liability company, each such limited liability company qualifiesfor partnership tax treatment under United States federal tax law.

 

Section 5.7.            Litigation and ContingentObligations.  There is nolitigation, arbitration, governmental investigation, proceeding or inquirypending or, to the knowledge of any of their officers, threatened against oraffecting the Borrower or any of its Subsidiaries which could reasonably beexpected to have a Material Adverse Effect or which seeks to prevent, enjoin ordelay the making of any Credit Extensions. Other than any liability incident to any litigation, arbitration or proceedingwhich could not reasonably be expected to have a Material Adverse

 

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Effect, theBorrower has no material Contingent Obligations not provided for or disclosedin the financial statements referred to in Section 5.4.

 

Section 5.8.            Subsidiaries.  Schedule I contains an accurate list of allSubsidiaries of the Borrower as of the date of this Agreement, setting forththeir respective jurisdictions of organization and the percentage of theirrespective capital stock or other ownership interests owned by the Borrower orother Subsidiaries.  All of the issuedand outstanding shares of capital stock or other ownership interests of suchSubsidiaries have been (to the extent such concepts are relevant with respectto such ownership interests) duly authorized and issued and are fully paid andnon-assessable.

 

Section 5.9.            ERISA.  The Unfunded Liabilities of all SingleEmployer Plans do not in the aggregate exceed $100,000.  Neither the Borrower nor any other member ofthe Controlled Group has incurred, or is reasonably expected to incur, anywithdrawal liability to Multiemployer Plans in excess of $100,000 in theaggregate.  Each Plan complies in allmaterial respects with all applicable requirements of law and regulations, noReportable Event has occurred with respect to any Plan, neither the Borrowernor any other member of the Controlled Group has withdrawn from any Plan orinitiated steps to do so, and no steps have been taken to reorganize orterminate any Plan.

 

Section 5.10.          Accuracy of Information.  No information, exhibit or report furnishedby the Borrower or any of its Subsidiaries to the Administrative Agent or toany Lender in connection with the negotiation of, or compliance with, the LoanDocuments (i) contained any material misstatement of fact, or (ii) omitted tostate any fact necessary to make the statements contained therein notmaterially misleading.

 

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

 

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

 

Section 5.13.          Compliance With Laws.  The Borrower and its Subsidiaries havecomplied with all applicable statutes, rules, regulations, orders andrestrictions of any domestic or foreign government or any instrumentality oragency thereof having jurisdiction over the conduct of their respectivebusinesses or the ownership of their respective Properties except for anyfailure to comply with any of the foregoing which could not reasonably beexpected to have a Material Adverse Effect.

 

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Section 5.14.          Properties.

 

(i)            Eachof the Borrower and its Subsidiaries has good title to, or valid leaseholdinterests in, all of the Property material to its business (including its realproperties), free and clear of all Liens, except for minor defects in titlethat do not interfere with its ability to conduct its business as currentlyconducted or to utilize such properties for their intended purposes andPermitted Liens.

 

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

 

(iii)          Eachof the Borrower and its Subsidiaries owns, or is licensed or otherwisepermitted to use, all trademarks, trade names, copyrights, patents and otherintellectual property material to its business, and the use thereof by theBorrower and its Subsidiaries does not infringe upon the rights of any otherPerson, except for any such infringements that, individually or in theaggregate, could not reasonably be expected to result in a Material AdverseEffect.

 

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

 

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

 

Section 5.15.          Plan Assets; ProhibitedTransactions.  The Borrower is notan 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 Section4975 of the Code), and neither the execution of this Agreement nor the makingof Credit Extensions hereunder gives rise to a prohibited transaction withinthe meaning of Section 406 of ERISA or Section 4975 of the Code.

 

Section 5.16.          Environmental Matters.  In the ordinary course of its business, theofficers of the Borrower consider the effect of Environmental Laws on thebusiness of the Borrower and its Subsidiaries, in the course of which theyidentify and evaluate potential risks and liabilities accruing to the Borrowerdue to Environmental Laws.  On the basisof this consideration, the Borrower has concluded that Environmental Lawscannot reasonably be expected to have a Material Adverse Effect.  Except as provided on Schedule 5.16, neitherthe Borrower nor any of its Subsidiaries has received any notice to the effectthat its operations are not in material compliance with any of the requirementsof applicable Environmental Laws or are the subject of any federal or stateinvestigation evaluating whether any remedial action is needed to respond to arelease of any toxic or hazardous waste or substance into the environment,which

 

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non-compliance orremedial action could reasonably be expected to have a Material Adverse Effect.

 

Section 5.17.          Investment Company Act.  Neither the Borrower nor any of itsSubsidiaries 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 “holdingcompany” or of a “subsidiary company” of a “holding company”, within themeaning of the Public Utility Holding Company Act of 1935, as amended.

 

Section 5.19.          Insurance.  The certificate (substantially in the formattached as Schedule 5.19) signed by the President or Chief Financial Officerof the Borrower, that attests to the existence and adequacy of, and summarizes,the property and casualty insurance program carried by the Borrower withrespect to itself and its Subsidiaries and that has been furnished by theBorrower to the Administrative Agent and the Lenders, is complete andaccurate.  This summary includes theinsurer’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 ineffect.

 

Section 5.20.          Solvency.

 

(i)            Immediatelyafter the consummation of the transactions to occur hereunder and immediatelyfollowing the making of each Loan, if any, made on the date hereof and aftergiving effect to the application of the proceeds of such Loans, (a) the fairvalue of the assets of the Borrower and its Subsidiaries on a consolidatedbasis, at a fair valuation, will exceed the debts and liabilities, subordinated,contingent or otherwise, of the Borrower and its Subsidiaries on a consolidatedbasis; (b) the present fair saleable value of the Property of the Borrower andits Subsidiaries on a consolidated basis will be greater than the amount thatwill be required to pay the probable liability of the Borrower and itsSubsidiaries on a consolidated basis on their debts and other liabilities,subordinated, contingent or otherwise, as such debts and other liabilitiesbecome absolute and matured; (c) the Borrower and its Subsidiaries on aconsolidated basis will be able to pay their debts and liabilities,subordinated, contingent or otherwise, as such debts and liabilities becomeabsolute and matured; and (d) the Borrower and its Subsidiaries on aconsolidated basis will not have unreasonably small capital with which toconduct the businesses in which they are engaged as such businesses are nowconducted and are proposed to be conducted after the date hereof.

 

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

 

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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 pendingor, to the knowledge of the Borrower, threatened. The hours worked by andpayments made to employees of the Borrower and its Subsidiaries have not beenin violation of the Fair Labor Standards Act or any other applicable Federal,state, local or foreign law dealing with such matters, except where any suchviolations, individually or in the aggregate, would not be reasonably likely toresult in a Material Adverse Effect. All material payments due from theBorrower or any of its Subsidiaries, or for which any claim may be made againstthe Borrower or any such Subsidiary, on account of wages and employee healthand welfare insurance and other benefits, have been paid or accrued as aliability on the books of the Borrower or such Subsidiary. The consummation ofthe transactions contemplated hereby will not give rise to any right oftermination or right of renegotiation on the part of any union under anycollective bargaining agreement to which the Borrower or any of itsSubsidiaries is bound.

 

**ARTICLEVI**

 

**Covenants**

 

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

 

Section 6.1.            Financial Reporting.  The Borrower will maintain, for itself andeach of its Subsidiaries, a system of accounting established and administeredin accordance with Agreement Accounting Principles, and furnish to theAdministrative Agent:

 

(i)            Withinninety (90) days after the close of each fiscal year of Borrower, the annualreport of Borrower on form 10K for each such fiscal year-end, as filed with theSecurities and Exchange Commission.

 

(ii)           Withinforty-five (45) days after the close of the each fiscal quarter of each ofBorrower’s fiscal years, the quarterly report of Borrower on form 10Q for eachsuch fiscal quarter-end, as filed with the Securities and Exchange Commission.

 

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

 

(iv)          As soon as possible and in any eventwithin ten (10) days after the Borrower knows that any Reportable Event hasoccurred with respect to any Plan, a statement, signed by an Authorized Officerof the Borrower, describing said Reportable Event and the action which theBorrower proposes to take with respect thereto.

 

(v)           As soon as possible and in any eventwithin ten (10) days after receipt by the Borrower, a copy of (a) any notice orclaim to the effect that the Borrower or any of its

 

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Subsidiaries is or may beliable to any Person as a result of the release by the Borrower, any of itsSubsidiaries, or any other Person of any toxic or hazardous waste or substanceinto the environment, and (b) any notice alleging any violation of any federal,state or local environmental, health or safety law or regulation by theBorrower or any of its Subsidiaries, which, in either case, could reasonably beexpected to have a Material Adverse Effect.

 

(vi)          Assoon as possible and in any event within ten (10) days after notice thereof,notice of all actions, suits, audits, inquiries, proceedings, notices ofviolations, investigations and/or other material actions before or by anygovernmental or public authority or body, or any subdivision thereof,including, without limitation, the Internal Revenue Service and/or theSecurities Exchange Commission of the U.S., against the Borrower or anySubsidiary, which could, in the opinion of an Authorized Officer of theBorrower, if adversely determined, reasonably be expected to result in aMaterial Adverse Effect.

 

(vii)         Such other information (includingnon-financial information) as the Administrative Agent or any Lender may fromtime to time reasonably request.

 

Section 6.2.            Use of Proceeds.  The Borrower will use the proceeds of theLoans for general corporate and working capital purposes.  The Borrower will not, nor will it permitany of its Subsidiaries to, use any of the proceeds of the Advances or any FacilityLC to purchase or carry any Margin Stock or for any purpose that entails aviolation of, or that is inconsistent with, the provisions of the Regulationsof the Board, including Regulation T, U or X.

 

Section 6.3.            Notice of Default.  The Borrower will, and will cause each ofits Subsidiaries to, give prompt notice in writing to the Lenders of theoccurrence of any Default or Unmatured Default and of any other development,financial or otherwise, which could reasonably be expected to have a Material AdverseEffect.

 

Section 6.4.            Conduct of Business.  The Borrower will, and will cause each ofits Subsidiaries to, carry on and conduct its business in substantially thesame manner and in substantially the same fields of enterprise as it ispresently conducted and do all things necessary to remain duly incorporated ororganized, validly existing and (to the extent such concept applies to suchentity) in good standing as a domestic corporation, partnership or limitedliability company in its jurisdiction of incorporation or organization, as thecase may be, and maintain all requisite authority to conduct its business inthe jurisdiction of its organization and in each other jurisdiction in whichits business is conducted, unless the failure to be so authorized to conductbusiness in each such other jurisdiction would not reasonably be expected tohave a Material Adverse Effect.

 

Section 6.5.            Taxes.  The Borrower will, and will cause each ofits Subsidiaries to, timely file complete and correct United States federal andapplicable foreign, state and local tax returns required by law and pay whendue all taxes, assessments and governmental charges and levies upon it or itsincome, profits or Property, except those which are being contested in goodfaith by appropriate proceedings and with respect to which adequate reserveshave been set aside in accordance with Agreement Accounting Principles.  At any time that the Borrower or any of

 

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its Subsidiariesis organized as a limited liability company, each such limited liabilitycompany will qualify for partnership tax treatment under United States federaltax law.

 

Section 6.6.            Insurance.  The Borrower will, and will cause each ofits Subsidiaries to, maintain with financially sound and reputable insurancecompanies the Required Property Insurance Coverage and Required PublicLiability Insurance Coverage, and the Borrower will furnish to theAdministrative Agent upon request full information as to the insurance carried.

 

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

 

Section 6.8.            Maintenance of Properties.  The Borrower will, and will cause each ofits Subsidiaries to, do all things necessary to maintain, preserve, protect andkeep its Property in good repair, working order and condition, and make allnecessary and proper repairs, renewals and replacements so that its businesscarried on in connection therewith may be properly conducted at all times,except to the extent the failure to do so would not reasonably be expected tocause a Material Adverse Effect.

 

Section 6.9.            Books and Records; Inspection.  The Borrower will, and will cause each ofits 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 andtransactions in relation to its business and activities, and (ii) permit theAdministrative Agent and the Lenders, by their respective representatives andagents, with prior notice to Borrower to inspect any of the Property, books andfinancial records of the Borrower and each of its Subsidiaries, to examine andmake copies of the books of accounts and other financial records of theBorrower and each such Subsidiary, and to discuss the affairs, finances andaccounts of the Borrower and each such Subsidiary with, and to be advised as tothe same by, their respective officers at such reasonable times duringBorrower’s or such Subsidiary’s normal business hours and at reasonableintervals as the Administrative Agent or any Lender may designate.

 

Section 6.10.          Operating Leases.  Borrower will not, nor will it permit any ofits Subsidiaries, to enter into any Operating Lease for aircraft having a termgreater than five (5) years.

 

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

 

(i)                                     TheLoans and the Reimbursement Obligations.

 

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

 

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

 

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(iv)          ConsolidatedIndebtedness of the Borrower and/or its Subsidiaries not exceeding, at anytime, $10,000,000 in the aggregate, and subject to such covenants, defaults,and other terms and conditions reasonably satisfactory to the AdministrativeAgent; provided that, prior to incurring such Indebtedness, Borrower shalldemonstrate to the satisfaction of the Administrative Agent that it will be incompliance with all covenants and other terms and conditions contained in thisAgreement and that no Default or Unmatured Default exists or would be causedthereby.

 

(v)           ConsolidatedIndebtedness of the Borrower and its Subsidiaries not exceeding, at any time,$2,000,000 in the aggregate.

 

(vi)          Indebtednessbetween Borrower and its Subsidiaries and/or Affiliates not exceeding$100,000,000 in an aggregate on terms from time to time disclosed to theAdministrative Agent in writing.

 

Section 6.12.          Merger.  The Borrower will not, nor will it permitany 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 permitany of its Subsidiaries to, in one or any series of transactions, lease, sellor otherwise dispose of Property (except Property which is purchased orotherwise acquired by Borrower or any of its Subsidiaries ninety (90) or fewerdays prior to such lease, sale or other disposition) which, in the aggregate,constitutes a Substantial Portion of the Property of Borrower or anySubsidiary, to any other Person, except sales of inventory in the ordinarycourse of business upon customary terms.

 

Section 6.14.          Investments and Acquisitions.  The Borrower will not, nor will it permitany of its Subsidiaries to, make or suffer to exist any Investments (includingloans and advances to, and other Investments in, Subsidiaries, except asexplicitly permitted pursuant to Section 6.11), or commitments therefor, or tocreate any Subsidiary or to become or remain a partner in any partnership orjoint venture, or to make any Acquisition of any Person, except:

 

(i)                                     CashEquivalent Investments.

 

(ii)           ExistingInvestments in Subsidiaries and other Investments in existence on the datehereof and described in Schedule I, including, without limitation, pursuant tothe management and licensing agreements between AMI, ASI and/or Jetride,substantially on such terms and providing for management and royalty fees toAMI as described in writing to Administrative Agent.

 

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

 

Section 6.15.          Liens.  The Borrower will not, nor will it permitany 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) anagreement with any Person (other than Administrative Agent for the ratablebenefit of the Lenders) which prohibits or restricts the granting of any suchLien in favor

 

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of the AdministrativeAgent for the ratable benefit of the Lenders, except any or all of thefollowing (collectively, “Permitted Liens”):

 

(i)            Liens for taxes, assessments orgovernmental charges or levies on its Property if the same shall not at thetime be delinquent or thereafter can be paid without penalty, or are beingcontested in good faith and by appropriate proceedings and for which adequatereserves in accordance with Agreement Accounting Principles shall have been setaside on its books.

 

(ii)           Liens imposed by law, such ascarriers’, warehousemen’s and mechanics’ liens, landlord’s liens, and othersimilar liens arising in the ordinary course of business which secure paymentof obligations not more than 60 days past due or which are being contested ingood faith by appropriate proceedings and for which adequate reserves shallhave been set aside on its books.

 

(iii)          Liens arising out of pledges ordeposits under worker’s compensation laws, unemployment insurance, old agepensions, or other social security or retirement benefits, or similarlegislation.

 

(iv)          Utility easements, buildingrestrictions and such other encumbrances or charges against real property asare of a nature generally existing with respect to properties of a similarcharacter and which do not in any material way affect the marketability of thesame or interfere with the use thereof in the business of the Borrower or itsSubsidiaries.

 

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

 

(vi)          Liensexisting in connection with existing and future Operating Leases andCapitalized Leases.

 

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

 

(viii)        Liensto secure payment of a portion of the purchase price of any tangible fixedasset acquired by the Borrower or any of its Subsidiaries may be created orsuffered to exist upon such fixed asset if the outstanding principal amount ofthe Indebtedness secured by such Lien does not at any time exceed the purchaseprice paid by the Borrower or such Subsidiary for such fixed asset and theaggregate principal amount of all Indebtedness secured by such Liens does notexceed $500,000 in the aggregate; provided that no such Lien shall encumber anyother asset at any time owned by the Borrower or such Subsidiary, and, providedfurther, that not more than one such Lien shall encumber such fixed asset atany one time.

 

Section 6.16.          Capital Expenditures.  The Borrower will not, and will not permitany of its Subsidiaries to, make, or be committed to make, Capital Expenditures,on a non-cumulative basis in the aggregate exceeding the amounts set forthbelow:

 

$35,000,000 for Borrower’s fiscal year 2002;

 

$47,000,000 for each of Borrower’s fiscal years 2003and 2004;

 

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provided, however that no more than $30,000,000 of the maximum CapitalExpenditures permitted for each of fiscal years 2003 and 2004 shall beattributable to aircraft purchases; and, provided further that, the difference(up to $5,000,000) between (i) the maximum aggregate Capital Expenditurespermitted in any year, and (ii) the actual aggregate Capital Expenditures madefor such year, shall be permitted as a carry-over in any subsequent year andshall increase the maximum Capital Expenditures permitted for any suchsubsequent year.

 

Section 6.17.          Affiliates.  The Borrower will not, and will not permitany of its Subsidiaries to, enter into any transaction (including the purchaseor 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 thereasonable requirements of the Borrower’s or such Subsidiary’s business andupon fair and reasonable terms no less favorable to the Borrower or suchSubsidiary than the Borrower or such Subsidiary would obtain in a comparablearms-length transaction.

 

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

 

Section 6.19.          Sale of Accounts.  The Borrower will not, nor will it permitany of its Subsidiaries to, sell or otherwise dispose of any notes receivableor Accounts Receivable, with or without recourse.

 

Section 6.20.          Sale and Leaseback Transactions andother 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 Transactionsof assets having book value in excess of (1) $10,000,000 in the aggregateduring any calendar year, or (2) $25,000,000 in the aggregate during the termof this Agreement, or (ii) any other transaction pursuant to which it incurs orhas incurred Off-Balance Sheet Liabilities, except to the extent permittedunder (i) above.

 

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

 

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

 

Section 6.23.          No Amendments to Certain Documentsand Agreements.  The Borrower willnot, nor will it permit any material amendment to its Articles ofIncorporation, its Code of Regulations, or any other governing documents,except as required to maintain compliance with federal, state and local lawsand regulations from time to time applicable to Borrower; provided, however,that Borrower shall provide thirty (30) days prior written notice to theAdministrative Agent of any such amendment.

 

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Section 6.24           Intentionally Omitted.

 

Section 6.25           Financial Covenants.

 

Section 6.25.1.  Debt Service Coverage Ratio.  The Borrower will not permit the DebtService Coverage Ratio, determined as of the end of each of its fiscal quartersfor the then most-recently ended four fiscal quarters, to be less than 1.70 to1.0.

 

Section 6.25.2.  Leverage Ratio.  The Borrower will not permit the LeverageRatio, determined as of the end of each of its fiscal quarters for the thenmost-recently ended four fiscal quarters, to be greater than 2.0 to 1.0.

 

Section 6.25.3.  Minimum Tangible Net Worth. TheBorrower will at all times maintain Consolidated Tangible Net Worth of not lessthan (i) as of Borrower’s fiscal****year-end 2001, $65,000,000, and (ii) as ofthe last day of each of Borrower’s fiscal years thereafter, that amount whichis equal to the sum of the minimum Consolidated Tangible Net Worth required tobe maintained by Borrower in accordance with this Section as of the last day ofBorrower’s prior fiscal year, and 50% of Consolidated Net Income for such priorfiscal year; provided that if such Consolidated Net Income is negative in anyfiscal year, the amount added in the subsequent fiscal year shall be zero.

 

**ARTICLEVII**

 

**Defaults**

 

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

 

Section 7.1.            Anyrepresentation or warranty made or deemed made by or on behalf of the Borroweror any of its Subsidiaries to the Lenders or the Administrative Agent under orin connection with this Agreement, any Credit Extension, or any certificate orinformation delivered in connection with this Agreement or any other LoanDocument shall be false in any material respect on the date as of which made.

 

Section 7.2.            Nonpaymentwithin five (5) days after the same becomes due of principal of any Loan orinterest due upon any Loan, any Reimbursement Obligation or of any commitmentfee, LC Fee or other obligations under any of the Loan Documents.

 

Section 7.3.            Thebreach 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 termsor 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 ofSections 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 6.25, then the same shall not constitute aDefault hereunder if cured to the reasonable satisfaction of AdministrativeAgent within fifteen (15) days after the earlier of (i) written notice toBorrower thereof from the Administrative Agent or any Lender, or (ii) such timeas any officer of Borrower has become aware of said breach.

 

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Section 7.4.            Thebreach by the Borrower (other than a breach which constitutes a Default underanother Section of this Article VII) of any of the terms or provisions of thisAgreement which is not remedied within fifteen (15) days after the earlier of(i) written notice to Borrower thereof from the Administrative Agent or anyLender, or (ii) such time as any officer of Borrower has become aware of saidbreach.

 

Section 7.5.            Failureof the Borrower or any of its Subsidiaries or any Affiliate of Borrower to paywhen due (i) any Indebtedness or Rate Management Obligation(s) owing to theLenders and unrelated to this Agreement, (ii) any Indebtedness owing by any ofthem in favor of any other Party which, individually or together with suchother Indebtedness as to which any such failure exists, has an aggregate outstandingprincipal amount in excess of $1,000,000 (“Material Indebtedness”), or(iii) any Permitted Indebtedness owing to Bank One, N.A. or Key CorporateCapital Inc.; or the default by the Borrower or any of its Subsidiaries orAffiliates in the performance (beyond the applicable grace or cure period withrespect thereto, if any) of any term, provision or condition contained in anyagreement under which any such Indebtedness, Rate Management Obligation(s) orMaterial Indebtedness was created or is governed, including, withoutlimitation, in any Rate Management Transaction, or any other event shall occuror condition exist, the effect of which default or event is to cause, or topermit the holder or holders of such Indebtedness, Rate ManagementObligation(s) or Material Indebtedness to cause, such Indebtedness, RateManagement Obligation(s) or Material Indebtedness to become due prior to itsstated maturity; or any Indebtedness, Rate Management Obligation(s) or MaterialIndebtedness of the Borrower or any of its Subsidiaries or Affiliates shall bedeclared to be due and payable or required to be prepaid or repurchased (otherthan by a regularly scheduled payment) prior to the stated maturity thereof; orthe Borrower or any of its Subsidiaries or Affiliates shall not pay, or admitin writing its inability to pay, its debts generally as they become due.

 

Section 7.6.            TheBorrower or any of its Subsidiaries shall (i) have an order for relief enteredwith respect to it under the Federal bankruptcy laws as now or hereafter ineffect, (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 SubstantialPortion of its Property, (iv) institute any proceeding seeking an order forrelief under the Federal bankruptcy laws as now or hereafter in effect orseeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,winding up, liquidation, reorganization, arrangement, adjustment or compositionof it or its debts under any law relating to bankruptcy, insolvency orreorganization or relief of debtors or fail to file an answer or other pleadingdenying the material allegations of any such proceeding filed against it, (v)take any corporate or partnership action to authorize or effect any of theforegoing actions set forth in this Section 7.6 or (vi) fail to contest in goodfaith any appointment or proceeding described in Section 7.7.

 

Section 7.7.            Withoutthe application, approval or consent of the Borrower or any of itsSubsidiaries, a receiver, trustee, examiner, liquidator or similar officialshall be appointed for the Borrower or any of its Subsidiaries or anySubstantial Portion of its Property, or a proceeding described in Section7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and

 

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such appointmentcontinues undischarged or such proceeding continues undismissed or unstayed fora period of 60 consecutive days.

 

Section 7.8.            Anycourt, government or governmental agency shall condemn, seize or otherwiseappropriate, or take custody or control of, all or any portion of the Propertyof the Borrower or any of its Subsidiaries which, when taken together with allother Property of the Borrower or any of its Subsidiaries which has been socondemned, seized, appropriated, or taken into custody or under control, duringthe twelve-month period ending with the month in which any such action occurs,constitutes a Substantial Portion, except pursuant to the legal order of theU.S. government in time of war.

 

Section 7.9.            Oneor more (i) judgments or orders for the payment of money in an aggregate amountin excess of $2,000,000 (or the equivalent thereof in currencies other thanU.S. Dollars), or (ii) nonmonetary judgments or orders which, individually orin the aggregate, could reasonably be expected to have a Material AdverseEffect, 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 beingappropriately contested in good faith, or (iii) paid, bonded or otherwisedischarged (including, without limitation, as a result of any insurancesettlement or payment) within forty-five (45) days after entry thereof.

 

Section 7.10.          TheUnfunded 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.          TheBorrower or any other member of the Controlled Group shall have been notifiedby the sponsor of a Multiemployer Plan that it has incurred withdrawalliability to such Multiemployer Plan in an amount which, when aggregated withall other amounts required to be paid to Multiemployer Plans by the Borrower orany other member of the Controlled Group as withdrawal liability (determined asof the date of such notification), exceeds $100,000 or requires paymentsexceeding $100,000 per annum.

 

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

 

Section 7.13.          TheBorrower or any of its Subsidiaries shall violate any Environmental Law, whichviolation could reasonably be expected to have a Material Adverse Effect.

 

Section 7.14.          AnyChange in Control shall occur.

 

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

 

Section 7.16.          AnyGuaranty shall fail to remain in full force or effect or any action shall betaken to discontinue or to assert the invalidity or unenforceability of anyGuaranty, or any Guarantor shall fail to comply with any of the terms orprovisions of any Guaranty to which it is a party, or any Guarantor shall denythat it has any further liability under any Guaranty to which it is a party, orshall give notice to such effect.

 

**ARTICLEVIII**

 

**Acceleration,Waivers And Remedies**

 

Section 8.1.            Acceleration.

 

(i)            Ifany Default described in Section 7.6 or 7.7 occurs with respect to theBorrower, the obligations of the Lenders to make Loans hereunder, and theobligation and power of the LC Issuer to issue Facility LCs, shallautomatically terminate and the Obligations shall immediately become due andpayable and Borrower shall be and become unconditionally obligated to pay thesame without any election or action on the part of the Administrative Agent,the LC Issuer or any Lender.  If anyother Default occurs, the Required Lenders (or the Administrative Agent withthe consent of the Required Lenders) may terminate or suspend the obligationsof the Lenders to make Loans hereunder and the obligation of the LC Issuer toissue Facility LCs, or declare the Obligations to be due and payable, or both,whereupon the Obligations shall become immediately due and payable, withoutpresentment, demand, protest or notice of any kind, all of which the Borrowerhereby expressly waives.

 

(ii)           If,within 30 days after acceleration of the maturity of the Obligations ortermination of the obligations of the Lenders to make Loans, and the obligationand 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 theBorrower) and before any judgment or decree for the payment of the Obligationsdue shall have been obtained or entered, the Required Lenders (in their solediscretion) shall so direct, the Administrative Agent shall, by notice to theBorrower, rescind and cancel such acceleration and/or termination.

 

Section 8.2.            Preservation of Rights.  No delay or omission of the Lenders, the LCIssuer, the Swingline Lender or the Administrative Agent to exercise any rightunder the Loan Documents shall impair such right or be construed to be a waiverof any Default or an acquiescence therein, and the making of a Credit Extensionnotwithstanding the existence of a Default or the inability of the Borrower tosatisfy the conditions precedent to such Credit Extension shall not constituteany waiver or acquiescence.  Any singleor partial exercise of any such right shall not preclude any other or furtherexercise thereof or the exercise of any other

 

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right, and nowaiver, amendment or other variation of the terms, conditions or provisions ofthe Loan Documents whatsoever shall be valid unless in writing signed by the Lendersrequired pursuant to Section 12.13, and then only to the extent in such writingspecifically set forth.  All remediescontained in the Loan Documents or by law afforded shall be cumulative and allshall be available to the Administrative Agent, the LC Issuer, the SwinglineLender and the Lenders until the Obligations have been paid in full.

 

### **ARTICLE IX**

 

**TheAdministrative Agent**

 

Section 9.1.            Appointment; Nature ofRelationship.  HNB is herebyappointed by each of the Lenders as its contractual representative (hereinreferred to as the “Administrative Agent”) hereunder and under each other LoanDocument, and each of the Lenders irrevocably authorizes the AdministrativeAgent to act as the contractual representative of such Lender with the rightsand duties expressly set forth herein and in the other Loan Documents.  The Administrative Agent agrees to act assuch contractual representative upon the express conditions contained in thisArticle IX.  Notwithstanding the use ofthe defined term “Administrative Agent,” it is expressly understood and agreedthat the Administrative Agent shall not have any fiduciary responsibilities toany Lender by reason of this Agreement or any other Loan Document and that theAdministrative Agent is merely acting as the contractual representative of theLenders with only those duties as are expressly set forth in this Agreement andthe other Loan Documents.  In itscapacity as the Lenders’ contractual representative, the Administrative Agent(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) isa “representative” of the Lenders within the meaning of the Uniform CommercialCode and (iii) is acting as an independent contractor, the rights and duties ofwhich are limited to those expressly set forth in this Agreement and the otherLoan Documents.  Each of the Lendershereby agrees to assert no claim against the Administrative Agent on any agencytheory or any other theory of liability for breach of fiduciary duty, all ofwhich claims each Lender hereby waives.

 

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

 

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

 

Section 9.4.            No Responsibility for Loans,Recitals, etc.  Neither theAdministrative Agent nor any of its directors, officers, agents or employeesshall be responsible for or have any

 

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duty to ascertain,inquire into, or verify (a) any statement, warranty or representation made inconnection with any Loan Document or any borrowing hereunder; (b) theperformance or observance of any of the covenants or agreements of any obligorunder any Loan Document, including any agreement by an obligor to furnishinformation directly to each Lender; (c) the satisfaction of any conditionspecified in Article IV, except receipt of items required to be deliveredsolely to the Administrative Agent; (d) the existence or possible existence ofany Default or Unmatured Default; (e) the validity, enforceability,effectiveness, sufficiency or genuineness of any Loan Document or any otherinstrument or writing furnished in connection therewith; (f) the value,sufficiency, creation, perfection or priority of any Lien in any collateralsecurity; or (g) the financial condition of the Borrower or any guarantor, ifany, of any of the Obligations or of any of the Borrower’s or any suchguarantor’s respective Subsidiaries. The Administrative Agent shall have no duty to disclose to the Lendersinformation that is not required to be furnished by the Borrower to theAdministrative Agent at such time, but is voluntarily furnished by the Borrowerto the Administrative Agent (either in its capacity as Administrative Agent orin its individual capacity).

 

Section 9.5.            Action on Instructions of Lenders.  The Administrative Agent shall in all casesbe fully protected in acting, or in refraining from acting, hereunder and underany other Loan Document in accordance with written instructions signed by theRequired Lenders, and such instructions and any action taken or failure to actpursuant thereto shall be binding on all of the Lenders.  The Lenders hereby acknowledge that theAdministrative Agent shall be under no duty to take any discretionary actionpermitted to be taken by it pursuant to the provisions of this Agreement or anyother Loan Document unless it shall be requested in writing to do so by theRequired Lenders.  The AdministrativeAgent shall be fully justified in failing or refusing to take any actionhereunder and under any other Loan Document unless it shall first beindemnified to its satisfaction by the Lenders pro rata against any and allliability, cost and expense that it may incur by reason of taking or continuingto take any such action.

 

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

 

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

 

Section 9.8.            Administrative Agent’s Reimbursementand Indemnification.  The Lendersagree to reimburse and indemnify the Administrative Agent ratably in proportionto their respective Commitments (or, if the Commitments have been terminated,in proportion to their

 

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Commitmentsimmediately prior to such termination) (i) for any amounts not reimbursed bythe Borrower for which the Administrative Agent is entitled to reimbursement bythe Borrower under the Loan Documents, (ii) for any other reasonable andproperly documented expenses incurred by the Administrative Agent on behalf ofthe Lenders, in connection with the preparation, execution, delivery,administration and enforcement of the Loan Documents (including for anyreasonable and properly documented expenses incurred by the AdministrativeAgent in connection with any dispute between the Administrative Agent and anyLender 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 beimposed on, incurred by or asserted against the Administrative Agent in any wayrelating to or arising out of the Loan Documents or any other document deliveredin connection therewith or the transactions contemplated thereby (including forany such amounts incurred by or asserted against the Administrative Agent inconnection with any dispute between the Administrative Agent and any Lender orbetween two or more of the Lenders), or the enforcement of any of the terms ofthe Loan Documents or of any such other documents, *provided* that (i) no Lendershall be liable for any of the foregoing to the extent any of the foregoing isfound in a final non-appealable judgment by a court of competent jurisdictionto have resulted from the gross negligence or willful misconduct of theAdministrative Agent and (ii) any indemnification required pursuant to Section3.5(v) shall, notwithstanding the provisions of this Section 9.8, be paid bythe relevant Lender in accordance with the provisions thereof.  The obligations of the Lenders under thisSection 9.8 shall survive payment of the Obligations and termination of thisAgreement.

 

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

 

Section 9.10.          Rights as a Lender.  In the event the Administrative Agent is aLender, the Administrative Agent shall have the same rights and powershereunder and under any other Loan Document with respect to its Commitment andits Loans as any Lender and may exercise the same as though it were not theAdministrative Agent, and the term “Lender” or “Lenders” shall, at any timewhen the Administrative Agent is a Lender, unless the context otherwiseindicates, include the Administrative Agent in its individual capacity.  The Administrative Agent and its Affiliatesmay accept deposits from, lend money to, and generally engage in any kind oftrust, debt, equity or other transaction, in addition to those contemplated bythis Agreement or any other Loan Document, with the Borrower or any of itsSubsidiaries in which the Borrower or such Subsidiary is not restricted herebyfrom 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 Arrangeror any other Lender and based on the financial statements prepared by theBorrower 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 otherLoan Documents.  Each Lender also

 

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acknowledges thatit will, independently and without reliance upon the Administrative Agent, theArranger or any other Lender and based on such documents and information as itshall deem appropriate at the time, continue to make its own credit decisionsin taking or not taking action under this Agreement and the other LoanDocuments.

 

Section 9.12.          Successor Administrative Agent.  The Administrative Agent may resign at anytime by giving written notice thereof to the Lenders and the Borrower, suchresignation to be effective upon the appointment of a successor AdministrativeAgent or, if no successor Administrative Agent has been appointed, forty-fivedays after the retiring Administrative Agent gives notice of its intention toresign.  The Administrative Agent may beremoved at any time with or without cause by written notice received by theAdministrative Agent from the Required Lenders, such removal to be effective onthe date specified by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall havethe right to appoint, on behalf of the Borrower and the Lenders, a successorAdministrative Agent, which appointment shall be subject to the consent ofBorrower as long as no Default has occurred and is continuing at the time ofsuch appointment.  If no successorAdministrative Agent shall have been so appointed by the Required Lenderswithin thirty days after the resigning Administrative Agent’s giving notice ofits intention to resign, then the resigning Administrative Agent may appoint,on behalf of the Borrower and the Lenders, a successor AdministrativeAgent.  Notwithstanding the previoussentence, the Administrative Agent may at any time without the consent of theBorrower or any Lender, appoint any of its Affiliates which is a commercialbank as a successor Administrative Agent hereunder.  If the Administrative Agent has resigned or been removed and nosuccessor Administrative Agent has been appointed, the Lenders may perform allthe duties of the Administrative Agent hereunder and the Borrower shall makeall payments in respect of the Obligations to the applicable Lender and for allother purposes shall deal directly with the Lenders.  No successor Administrative Agent shall be deemed to be appointedhereunder until such successor Administrative Agent has accepted theappointment.  Any such successor AdministrativeAgent shall be a commercial bank having capital and retained earnings of atleast $500,000,000.  Upon the acceptanceof any appointment as Administrative Agent hereunder by a successorAdministrative Agent, such successor Administrative Agent shall thereuponsucceed to and become vested with all the rights, powers, privileges and dutiesof the resigning or removed Administrative Agent.  Upon the effectiveness of the resignation or removal of theAdministrative Agent, the resigning or removed Administrative Agent shall bedischarged from its duties and obligations hereunder and under the LoanDocuments.  After the effectiveness ofthe resignation or removal of an Administrative Agent, the provisions of thisArticle IX shall continue in effect for the benefit of such AdministrativeAgent in respect of any actions taken or omitted to be taken by it while it wasacting as the Administrative Agent hereunder and under the other LoanDocuments.  In the event that there is asuccessor to the Administrative Agent by merger, or the Administrative Agentassigns its duties and obligations to an Affiliate pursuant to this Section9.12, then the term “Prime Rate” as used in this Agreement shall mean the primerate, base rate or other analogous rate of the new Administrative Agent.

 

Section 9.13.          Delegation to Affiliates.  The Borrower and the Lenders agree that theAdministrative Agent may delegate any of its duties under this Agreement to anyof its Affiliates.  Any such Affiliate(and such Affiliate’s directors, officers, agents and employees) which performsduties in connection with this Agreement shall be entitled to the same benefitsof the

 

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indemnification, waiver and other protective provisions to which theAdministrative 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 becomesinsolvent, however evidenced, or any Default occurs, any and all deposits(including all account balances, whether provisional or final and whether ornot collected or available) and any other Indebtedness at any time held orowing by any Lender or any Affiliate of any Lender to or for the credit oraccount of the Borrower may be offset and applied toward the payment of theObligations owing to such Lender, whether or not the Obligations, or any parthereof, shall then be due.

 

Section 10.2.          RatablePayments.  If any Lender, whether bysetoff or otherwise, has payment made to it upon its Outstanding CreditExposure (other than payments received pursuant to Section 3.1, 3.2, 3.4 or3.5) in a greater proportion than that received by any other Lender, suchLender agrees, promptly upon demand, to purchase a portion of the AggregateOutstanding Credit Exposure held by the other Lenders so that after suchpurchase each Lender will hold its Applicable Percentage of the AggregateOutstanding Credit Exposure.  If anyLender, whether in connection with setoff or amounts which might be subject tosetoff or otherwise, receives collateral or other protection for itsObligations or such amounts which may be subject to setoff, such Lender agrees,promptly upon demand, to take such action necessary such that all Lenders sharein the benefits of such collateral ratably in proportion to their respectiveApplicable Percentages of the Aggregate Outstanding Credit Exposure.  In case any such payment is disturbed bylegal process, or otherwise, appropriate further adjustments shall be made.

 

**ARTICLEXI**

 

**BenefitOf Agreement; Assignments; Participations**

 

Section 11.1.          Successorsand Assigns.  The terms andprovisions of the Loan Documents shall be binding upon and inure to the benefitof 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 orobligations under the Loan Documents and (ii) any assignment by any Lender mustbe made in compliance with Section 11.3. The parties to this Agreement acknowledge that clause (ii) of thisSection 11.1 relates only to absolute assignments and does not prohibitassignments creating security interests, including any pledge or assignment byany Lender of all or any portion of its rights under this Agreement and anyNote to a Federal Reserve Bank; *provided, however,*that no such pledge orassignment creating a security interest shall release the transferor Lenderfrom its obligations hereunder unless and until the parties thereto havecomplied with the provisions of Section 11.3. The Administrative Agent may treat the Person which made any Loan orwhich holds any Note as the owner thereof for all purposes hereof unless anduntil such Person complies with Section 11.3; *provided, however,* that theAdministrative Agent may in its discretion (but shall not be required to)follow instructions from

 

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the Person which made any Loan or which holds any Note to directpayments relating to such Loan or Note to another Person.  Any assignee of the rights to any Loan orany Note agrees by acceptance of such assignment to be bound by all the termsand provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time ofmaking such request or giving such authority or consent is the owner of therights 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 therights to such Loan.

 

Section 11.2.          Participations.

 

11.2.1.  Permitted Participants; Effect.  Any Lender may, in the ordinary course ofits business and in accordance with applicable law, at any time sell to one ormore banks or other entities (“Participants”) participating interests in anyOutstanding Credit Exposure of such Lender, any Note held by such Lender, anyCommitment of such Lender or any other interest of such Lender under the LoanDocuments.  In the event of any suchsale by a Lender of participating interests to a Participant, such Lender’s obligationsunder the Loan Documents shall remain unchanged, such Lender shall remainsolely responsible to the other parties hereto for the performance of suchobligations, such Lender shall remain the owner of its Outstanding CreditExposure and the holder of any Note issued to it in evidence thereof for allpurposes under the Loan Documents, all amounts payable by the Borrower underthis Agreement shall be determined as if such Lender had not sold suchparticipating interests, and the Borrower and the Administrative Agent shallcontinue to deal solely and directly with such Lender in connection with suchLender’s rights and obligations under the Loan Documents.

 

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

 

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

 

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Section 11.3.          Assignments

 

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

 

Section 11.3.2.  Effect; Effective Date.  Upon (i) delivery to the AdministrativeAgent of a notice of assignment, substantially in the form attached as ExhibitI to Exhibit C (a “Notice of Assignment”), together with any consents requiredby Section 11.3.1, and (ii) payment of a $3,500****fee to the AdministrativeAgent for processing such assignment, such assignment shall become effective onthe effective date specified in such Notice of Assignment.  The Notice of Assignment shall contain arepresentation by the Purchaser to the effect that none of the considerationused to make the purchase of the Lender’s Revolving Commitment and/orOutstanding Credit Exposure under the applicable assignment agreement are “planassets” as defined under ERISA and that the rights and interests of thePurchaser in and under the Loan Documents will not be “plan assets” underERISA.  On and after the effective dateof such assignment, such Purchaser shall for all purposes be a Lender party tothis Agreement and any other Loan Document executed by or on behalf of the Lendersand shall have all the rights and obligations of a Lender under the LoanDocuments, to the same extent as if it were an original party hereto, and nofurther consent or action by the Borrower, the Lenders or the AdministrativeAgent shall be required to release the transferor Lender with respect to theLender’s Revolving Commitment and/or Outstanding Credit Exposure assigned tosuch Purchaser.  Upon the consummationof any assignment to a Purchaser pursuant to this Section 11.3.2, thetransferor Lender, the Administrative Agent and the Borrower shall, if thetransferor Lender or the Purchaser desires that its Loans be evidenced byNotes, make appropriate arrangements so that new Notes or, as appropriate,replacement Notes are issued to such transferor Lender and new Notes or, asappropriate, replacement Notes, are issued to such Purchaser, in each case inprincipal amounts reflecting their respective Revolving Commitment, OutstandingRevolving Credit Exposure, and/or aggregate outstanding Term Loan, asapplicable, as adjusted pursuant to such assignment.

 

Section 11.4.  Disseminationof Information.  The Borrowerauthorizes each Lender to disclose to any Participant or Purchaser or any otherPerson acquiring an interest in the Loan

 

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Documents by operation of law (each a “Transferee”) and any prospectiveTransferee, provided that prior written notice of any such disclosure from anyLender or the Administrative Agent to Borrower is made, any and all informationin such Lender’s possession concerning the creditworthiness of the Borrower andits Subsidiaries, including any information contained in any Reports; *provided*that each Transferee and prospective Transferee agrees to be bound by Section12.10 of this Agreement.

 

**ARTICLE XII**

 

**General Provisions**

 

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

 

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

 

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

 

Section 12.4.          Entire Agreement.  The Loan Documents embody the entireagreement and understanding among the Borrower, the Administrative Agent, theLC Issuer, the Swingline Lender and the Lenders and supersede all prioragreements and understandings among the Borrower, the Administrative Agent, theLC Issuer, the Swingline Lender and the Lenders relating to the subject matterthereof other than the letter agreement described in Section 4.1(b).

 

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

 

Section 12.6.          Expenses; Indemnification.

 

(i)            TheBorrower shall reimburse the Administrative Agent and the Arranger for anyreasonable and properly documented costs, internal charges and out-of-pocketexpenses (including reasonable attorneys’ fees and time charges of attorneysfor the Administrative Agent or the Arranger, which attorneys may be employeesof the Administrative Agent

 

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or the Arranger) paid or incurred by the Administrative Agent or theArranger in connection with the preparation, negotiation, execution, delivery,syndication, review, amendment, modification, and administration of the LoanDocuments.  The Borrower also agrees toreimburse the Administrative Agent, the Arranger, the LC Issuer, the SwinglineLender 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 beemployees of the Administrative Agent, the Arranger, the LC Issuer, the SwinglineLender or the Lenders) paid or incurred by the Administrative Agent, theArranger, the LC Issuer, the Swingline Lender or any Lender in connection withthe collection and enforcement of the Loan Documents.  The Borrower acknowledges that from time to time HNB may prepareand may distribute to the Lenders (but shall have no obligation or duty toprepare or to distribute to the Lenders) certain audit reports (the “Reports”)pertaining to the Borrower’s assets for internal use by Administrative Agentfrom information furnished to it by or on behalf of the Borrower, afterAdministrative Agent has exercised its rights of inspection pursuant to thisAgreement.

 

(ii)           TheBorrower hereby further agrees to indemnify the Administrative Agent, theArranger, 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 (including all expenses of litigation orpreparation therefor whether or not the Administrative Agent, the Arranger, theLC Issuer, the Swingline Lender or any Lender is a party thereto) which any ofthem may pay or incur arising out of or relating to this Agreement, the otherLoan Documents, the transactions contemplated hereby or the direct or indirectapplication or proposed application of the proceeds of any Credit Extensionhereunder except to the extent that they are determined in a Final Judgment(defined below) to have resulted from the gross negligence or willfulmisconduct of the party seeking indemnification. “*Final Judgment*” means ajudgment by a court of competent jurisdiction (i) which is non-appealable or(ii) with respect to which the defendant-Administrative Agent, Arranger, LCIssuer, Swingline Lender or Lender, as applicable, does not commenceproceedings to appeal within the applicable period(s) provided for by law.  The obligations of the Borrower under thisSection 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 withsufficient counterparts so that the Administrative Agent may furnish one toeach of the Lenders.

 

Section 12.8.          Severability of Provisions.  Any provision in any Loan Document that isheld to be inoperative, unenforceable, or invalid in any jurisdiction shall, asto that jurisdiction, be inoperative, unenforceable, or invalid withoutaffecting the remaining provisions in that jurisdiction or the operation,enforceability, or validity of that provision in any other jurisdiction, and tothis end the provisions of all Loan Documents are declared to be severable.

 

Section 12.9.          Nonliability of Lenders.  The relationship between the Borrower on theone hand and the Lenders, the LC Issuer, the Swingline Lender and theAdministrative Agent on the other hand shall be solely that of borrower andlender.  Neither the AdministrativeAgent, the

 

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Arranger, the LC Issuer, the Swingline Lender nor any Lender shall haveany fiduciary responsibilities to the Borrower.  Neither the Administrative Agent, the Arranger, the LCIssuer,  the Swingline Lender nor anyLender undertakes any responsibility to the Borrower to review or inform theBorrower of any matter in connection with any phase of the Borrower’s businessor operations.  The Borrower agrees thatneither the Administrative Agent, the Arranger, the LC Issuer, the Swingline Lendernor 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 therelationship established by the Loan Documents, or any act, omission or eventoccurring in connection therewith, unless it is determined in a Final Judgmentthat such losses resulted from the gross negligence or willful misconduct ofthe party from which recovery is sought.

 

Section 12.10.        Confidentiality.  Each Lender agrees, on behalf of itself andits Affiliates to whom a disclosure is made, to hold any confidentialinformation which it may receive from the Borrower pursuant to this Agreementin confidence, except for disclosure (i) to its Affiliates and to other Lendersand their respective Affiliates, (ii) to legal counsel, accountants, and otherprofessional advisors to such Lender or to a Transferee, (iii) to regulatoryofficials, (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 legalproceeding to which such Lender is a party, (vi) to such Lender’s direct orindirect contractual counterparties in swap agreements or to legal counsel,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 notrelying on or looking to any Margin Stock for the repayment of the CreditExtensions provided for herein.

 

Section 12.12.        Disclosure.  The Borrower and each Lender herebyacknowledge and agree that HNB and/or its Affiliates from time to time may holdinvestments in, make other loans to or have other relationships with theBorrower and its Affiliates.

 

Section 12.13.        Amendments.  Subject to the provisions of this Section12.13, the Required Lenders (or the Administrative Agent with the consent inwriting of the Required Lenders) and the Borrower may enter into agreementssupplemental hereto for the purpose of adding or modifying any provisions tothe Loan Documents or changing in any manner the rights of the Lenders or theBorrower hereunder or waiving any Default hereunder; *provided, however,* that nosuch supplemental agreement shall, without the consent of all of the Lenders:

 

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

 

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

 

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

 

(iv)          Amend this Section 12.13.

 

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

 

Section 12.14.        Notices.  Except as otherwise permitted by Section2.14 with respect to Borrowing Notices, all notices, requests and othercommunications to any party hereunder shall be in writing (including electronictransmission, facsimile transmission or similar writing) and shall be given tosuch party: (x) in the case of the Borrower or the Administrative Agent, at itsaddress or facsimile number set forth on the signature pages hereof, (y) in thecase of any Lender and the Swingline Lender and the LC Issuer, at its addressor facsimile number set forth below its signature hereto or (z) in the case ofany party, at such other address or facsimile number as such party mayhereafter specify for the purpose by notice to the Administrative Agent and theBorrower in accordance with the provisions of this Section 12.14.  Each such notice, request or othercommunication shall be effective (i) if given by facsimile transmission, whentransmitted to the facsimile number specified in this Section and confirmationof receipt is received, (ii) if given by mail, 72 hours after such communicationis deposited in the mails with first class postage prepaid, addressed asaforesaid, or (iii) if given by any other means, when delivered (or, in thecase of electronic transmission, received) at the address specified in thisSection; *provided*that notices to the Administrative Agent under Article II shall not beeffective until received.

 

Section 12.15.        Change of Address.  The Borrower, the Administrative Agent, theLC Issuer, the Swingline Lender and any Lender may each change the address forservice 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 numberof counterparts, all of which taken together shall constitute one agreement,and any of the parties hereto may execute this Agreement by signing any suchcounterpart.  This Agreement shall beeffective when it has been executed by the Borrower, the Administrative Agent,the LC Issuer, the Swingline Lender and the Lenders and each party has notifiedthe Administrative Agent by facsimile transmission or telephone that it hastaken such action.

 

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

 

Section 12.18.        Consent To Jurisdiction.  The Borrower hereby irrevocably submits tothe non-exclusive jurisdiction of any United States federal or Ohio state courtsitting in Columbus, Ohio in any action or proceeding arising out of orrelating to any Loan Documents and the Borrower hereby irrevocably agrees thatall claims in respect of such action or proceeding may be heard and determinedin any such court and irrevocably waives any objection it may now or hereafterhave as to the venue of any such suit, action or proceeding brought in such acourt 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 againstthe Borrower in the courts of any other jurisdiction.  Any judicial proceeding by the Borrower against theAdministrative Agent, the LC Issuer, the Swingline Lender or any Lender or anyaffiliate of the Administrative Agent, the LC Issuer, the Swingline Lender orany Lender involving, directly or indirectly, any matter in any way arising outof, related to, or connected with any Loan Document shall be brought only in acourt in Columbus, Ohio.

 

Section 12.19.        WAIVER OF JURY TRIAL.  THE BORROWER, THE ADMINISTRATIVE AGENT, THELC ISSUER, THE SWINGLINE LENDER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY INANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHERSOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.

 

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

 

Section 12.21.        Warrant of Attorney.  The Borrower hereby irrevocably authorizesany attorney-at-law, including any attorney-at-law employed or retained by theAdministrative Agent, the Swingline Lender, the LC Issuer or any Lender, toappear for it in any action on this Agreement or any Note at any time after thesame becomes due as herein or therein provided in any court of record situatedin the county where this warrant was signed (being Franklin County,

 

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Ohio), or in the county where the Borrower then resides or can befound, to waive the issuing and service of process, and confess a judgment infavor of the holder of this Agreement and any Note against the Borrower, forthe amount that may then be due, with interest at the rate(s) provided forherein, together with the costs of suit, and to waive and release all errors insaid proceedings and the right to appeal from the judgment rendered.  The Borrower consents to the jurisdictionand venue of such court.  The Borrowerwaives any conflict of interest that any attorney-at-law employed or retainedby the Administrative Agent, the LC Issuer, the Swingline Lender or any Lendermay have in confessing judgment hereunder and consents to the payment of alegal fee to any attorney-at-law confessing judgment hereunder.

 

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

 

**WARNING—  BY SIGNING THIS PAPER YOU GIVE UPYOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOUWITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECTFROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FORRETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,OR ANY OTHER CAUSE.**

 

 
|   | AIRNET SYSTEMS,  INC                   |
|--------|----------------------------------------|
|   |    an  Ohio corporation |
|   |                                   |
|   | By:                                    | /s/ William R.  Sumser |
|   |                                   |
|   | Title:                                 | CFO |
|   |                                   |   |
|   | Address:                               |   3939 International Gateway |
|   |                                   |   |
|   |                                   |   Columbus  OH  43219 |
|   |                                   |   |
|   | Attention:                             |   William R.  Sumser |
|   |                                   |   |
|   | Telephone:                             |   (614)  237-2057  |
|   |                                   |   |
|   | FAX:                                   |   (614)  237-7876 |
|        |                                        |  |  |  |

 

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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/ | Nancy J. Cracolice |
|             |           |                                                 | Nancy J. Cracolice |
|             |           | Title:                                               | Vice President |
|             |           |                                                 | 41 South High Street |
|             |           |                                                 | Columbus, Ohio 43215 |
|             |           |                                                 |
|             |           | Attention:   Nancy J. Cracolice, Vice President |
|             |           |                                                 | telephone: | (614) 480-4401 |
|             |           |                                                 | FAX: | (614) 480-5791 |
|                  |                |                                                      |  |  |  |  |

 

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| Revolving Loans: | $9,545,454.50 | FIFTH THIRD BANK, as Lender |
|------------------|---------------|-----------------------------|
| Term Loans:      | $5,454,545.50 |                        |
|             |          | By:                         | /s/ Kim Dennis |
|             |          |                        |
|             |          | Title:                      | AVP Large Corporate |
|             |          | Address:                    | 21 East State Street |
|             |          |                        | Columbus, OH   43215 |
|             |          |                        |
|             |          | Attention:                  | Kim Dennis |
|             |          |                        | Telephone: | (614) 341-2588 |
|             |          |                        | FAX: | (614) 341-2606 |
|                  |               |                             |  |  |  |  |

 

65

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| Revolving Loans: | $9,545,454.50 | BANK ONE, N.A., as Lender |
|------------------|---------------|---------------------------|
| Term Loans:      | $5,454,545.50 |                      |
|             |          | By:                       | /s/ Warren Bebinger |
|             |          |                      |
|             |          | Title:                    | Vice President |
|             |          | Address:                  | 100 East Broad St. |
|             |          |                      | Columbus, OH   43215 |
|             |          |                      |
|             |          | Attention:                | Warren Bebinger |   |
|             |          |                      | Telephone: | (614) 248-5319 |
|             |          |                      | FAX: | (614) 248-5518 |
|                  |               |                           |  |  |  |  |  |

 

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PRICING SCHEDULE

 
| **APPLICABLE  MARGIN***                                          |   | **LEVEL I STATUS** |   | **LEVEL II  STATUS** |   | **LEVEL III STATUS** |
|------------------------------------------------------------------|--------|--------------------|--------|----------------------|--------|----------------------|
| *Eurodollar  Rate for Term Loans and Revolving Loans and LC Fee* |   | 100 bps            |   | 125 bps              |   | 150 bps              |
|                                                             |   |               |   |                 |   |                 |
| *Floating  Rate for Term Loans and Revolving Loans*              |   | 0 bps              |   | 0 bps                |   | 0 bps                |

 
| **APPLICABLE  FEE  RATE*** |   | **LEVEL I STATUS** |   | **LEVEL II STATUS** |   | **LEVEL III STATUS** |
|----------------------------|--------|--------------------|--------|---------------------|--------|----------------------|
| *Commitment  Fee*          |   | 25 bps             |   | 25 bps              |   | 30 bps               |

 

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*In basis points

 

For the purposes of this Schedule, the following terms have thefollowing meanings, subject to the final paragraph of this Schedule:

 

“Financials” means the annual or quarterly financialstatements of the Borrower delivered pursuant to Section 6.1(i) or (ii).

 

“Level I Status” exists at any date if, as of the lastday of the fiscal quarter of the Borrower referred to in the most recentFinancials, the Leverage Ratio is less than 1.00 to 1.00.

 

“Level II Status” exists at any date if, as of thelast day of the fiscal quarter of the Borrower referred to in the most recentFinancials, (i) the Borrower has not qualified for Level I Status and (ii) theLeverage Ratio is less than to 1.50 to 1.00.

 

“Level III Status” exists at any date if, as of thelast day of the fiscal quarter of the Borrower referred to in the most recentFinancials, (i) the Borrower has not qualified for Level I Status or Level IIStatus and (ii) the Leverage Ratio is equal to or greater than 1.50 to 1.00.

 

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

 

The Applicable Margin and Applicable Fee Rate shall bedetermined in accordance with the foregoing table based on the Borrower’sStatus as reflected in the then most recent Financials.  Adjustments, if any, to the ApplicableMargin or Applicable Fee Rate shall be effective five Business Days after theAdministrative Agent has received the applicable Financials.  If the Borrower fails to deliver theFinancials to the Administrative Agent at the time required pursuant to Section6.1, then the Applicable Margin and Applicable Fee Rate shall be the highestApplicable Margin and Applicable Fee Rate set forth in the foregoing tableuntil five days after such Financials are so delivered.

 

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EXHIBIT A

FORM OF OPINION

 

 

September 30, 2002

 

The Administrative Agent, the LC Issuer,

  The Swingline Lender and theLenders

  Party to the Credit Agreementreferred to below

 

Re:               Credit Agreementamong AirNet Systems, Inc., the Lenders party thereto and The HuntingtonNational Bank, as Administrative Agent, LC Issuer, Swingline Lender and LeadArranger

 

Ladies and Gentlemen:

 

We have acted as counsel to AirNet Systems, Inc. (the“Borrower”), an Ohio corporation, and to AirNet Management, Inc. (“AirNetManagement”), an Ohio corporation, Jetride, Inc. (“Jetride”), anOhio corporation, and Float Control, Inc. (“Float”), a Michigancorporation (AirNet Management, Jetride and Float are referred to herein as the“Guarantors” and, together with the Borrower, the “Obligors”), inconnection with the Credit Agreement of even date herewith (the “CreditAgreement”) among the Borrower, the Lenders party thereto and TheHuntington National Bank, as Administrative Agent (the “Administrative Agent”),and as LC Issuer, Swingline Lender and Lead Arranger.  This opinion is furnished to you pursuant toSection 4.1(i)(d)****of the Credit Agreement.  Capitalized terms used in this opinion thatare defined in the Credit Agreement have the meanings set forth in the CreditAgreement, unless otherwise defined herein. The Borrower, AirNet Management and Jetride are referred to herein asthe “Ohio Obligors”.

 

In connection with this opinion, we have examinedoriginals or certified, conformed or reproduction copies of, and have reliedupon the accuracy of, without independent verification or investigation, thefollowing:

 

(a)                                  theCredit Agreement;

 

(b)                                 theNotes;

 

(c)                                  theSubsidiary Guaranty;

 

(d)                                 theFacility LC Application;

 

(e)                                  theArticles of Incorporation of each of the Ohio Obligors (as to each Obligor, the“Articles of Incorporation” of such Ohio Obligor), each certified by theSecretary of State of the State of Ohio and certified to us

 

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by an officer of such Ohio Obligor as being completeand in full force and effect as of the date of this opinion;

 

(f)                                    theCode of Regulations of each of the Ohio Obligors (as to each Ohio Obligor, the“Code of Regulations” of such Ohio Obligor), each certified to us by anofficer****ofsuch Ohio Obligor as being complete and in full force and effect as of the dateof this opinion;

 

(g)                                 certificatesof Good Standing as to each of the Ohio Obligors (as to each Ohio Obligor, the“Good Standing Certificate” issued with respect to such Ohio Obligor”)each certified by the Secretary of State of the State of Ohio;

 

(h)                                 theagreements and instruments set forth on Annex 1 hereto to which certain of theObligors are party, which agreements and instruments, based solely on the Officer’sCertificates (hereinafter defined), constitute all of the material agreementsof the Obligors (as to each Obligor, such agreements and instruments, the “MaterialAgreements” to which such Obligor is a party); and

 

(i)                                     acertificate of an officer of each of the Obligors as to certain factual matters(as to each Obligor, the “Officers’ Certificate” of such Obligor).

 

We have also examined theoriginals or certified, conformed or reproduction copies of, and have reliedupon the accuracy of, without independent verification or investigation, suchother records, agreements, instruments and documents as we have deemednecessary or relevant as the basis for our opinion.  The documents referenced in clauses (a) through (d) above arereferred to herein as the “Loan Documents”.

 

In our examination, wehave assumed the genuineness of all signatures of parties to the Loan Documentsother than the Obligors, the authenticity of all documents submitted to us asoriginals and the conformity with authentic original documents of all documentssubmitted to us as copies.

 

In rendering the opinionsexpressed below, we have assumed, with respect to all of the documents referredto in this opinion letter (except, to the extent set forth in the opinionsexpressed below, as to the Obligors), that such documents have been dulyauthorized by, have been duly executed and delivered by, and constitute thelegal, valid, binding and enforceable obligations of, all of the parties tosuch documents; all signatories to such documents have been duly authorized;and all of the parties to such documents are duly organized and validlyexisting and have the power and authority (corporate, limited liabilitycompany, partnership or other) to execute, deliver and perform such documents.

 

Whenever our opinion withrespect to the existence or absence of facts is indicated to be based on ourknowledge, we are referring to the actual knowledge of the Vorys, Sater,Seymour and Pease LLP attorneys who have represented the Obligors in connectionwith the transactions

 

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contemplated by the LoanDocuments, and who have represented the Obligors in connection with ongoinglegal matters generally; however, we call to your attention the fact RussellGertmenian, a partner of this firm, is a member of the board of directors ofthe Borrower, and any matters known to him in his capacity as director but nototherwise known to any other attorneys of this firm are not included within thescope of “knowledge” otherwise described herein.  Except for the examinations and inquiries recited herein, we havenot undertaken any independent investigation to determine the existence orabsence of any facts, and no inference as to our knowledge concerning suchfacts should be drawn.  Without limitingthe generality of the foregoing, we have made no examination of the character,organization, activities or authority of any party other than the Obligors toany of the Loan Documents which might have any effect upon our opinions expressedherein, and we have neither examined, nor do we opine upon, any provision ormatter to the extent that the examination or opinion would require a financial,mathematical or accounting calculation or determination.

 

As used herein, thephrases “corporate power and authority” and “duly authorized by all necessarycorporate action” refer and are limited to the Ohio General Corporation Lawand, with respect to each Ohio Obligor, the Articles of Incorporation and theCode of Regulations of such Ohio Obligor.

 

Based upon and subject tothe foregoing and having considered such questions of law as we have deemednecessary, and the further qualifications and limitations set forth below, asof the date hereof (or as of the date of any assumption made herein or anycertificate, schedule, exhibit or inquiry stated to have been examined, made,or otherwise relied upon by us), we are of the opinion that:

 

1.             EachOhio Obligor is a corporation duly incorporated, validly existing and, basedsolely on the Good Standing Certificate issued with respect to such OhioObligor, in good standing under the laws of the State of Ohio.

 

2.             EachOhio Obligor has the corporate power and authority to execute, deliver andperform each of the Loan Documents to which it is a party.

 

3.             Theexecution, delivery and performance by each Ohio Obligor of the Loan Documentsto which it is a party have been duly authorized by all necessary corporateaction of such Ohio Obligor.

 

4.             Theexecution and delivery by each Obligor of, the performance and incurrence byeach Obligor of its obligations and liabilities under, and the consummation byeach Obligor of the other transactions contemplated by, the Loan Documents towhich each such Obligor is a party do not and will not:

 

a.             asto each Ohio Obligor, violate the Articles of Incorporation or Code ofRegulations of such Ohio

                Obligor;

 

b.             violateany Material Agreement to which such Obligor is a party;

 

3

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c.             toour knowledge, violate any order, judgment, writ, injunction, decree, rule, orregulation of any court or other governmental authority or instrumentality ofthe State of Ohio applicable to such Obligor;

 

d.             violateany law, rule or regulation of the State of Ohio applicable to such Obligor;

 

e.             asto each Obligor, require any consent of such Obligor’s shareholders (other thanany such consent as has already been given and remains in full force andeffect); or

 

f.              resultin, or require, the creation or imposition of any lien in, of or on theProperty of the Obligors pursuant to the terms of any Material Agreement.

 

5.             Eachof the Loan Documents has been duly executed and delivered by each Obligorparty thereto, and the Loan Documents to which each is a party, constitutes thelegal, valid and binding obligation of such Obligor party thereto, enforceableagainst such Obligor in accordance with its terms.

 

6.             Toour knowledge, and except as otherwise disclosed in the Credit Agreement, thereare no actions, suits or proceedings at law or in equity or by or before anygovernmental authority or instrumentality now pending or threatened against anyObligor or against any properties or rights of such Obligor which, if adverselydetermined, could reasonably be expected to have a Material Adverse Effect.

 

7.             Noconsent, approval, authorization or order of, and no filing or registrationwith, any court or governmental agency or regulatory body of the State of Ohiois required on the part of any Obligor for the execution or delivery by suchObligor of, or the performance by such Obligor of its obligations under, theLoan Documents to which it is a party.

 

The opinions expressed above are subject to thefollowing additional qualifications:

 

Our opinions expressed herein are based upon ourreview of those laws and regulations that, in our experience, are applicable totransactions of the type provided for in the Loan Documents, but without havingmade any review of any other laws or regulations.

 

All of our opinions are subject to the limitations, ifany, of Title 11 U.S.C., as amended, and of the applicable insolvency,reorganization, moratorium or other laws affecting the enforcement ofcreditors’ rights generally and by principles of equity.  In addition, certain remedial and otherprovisions of  the Loan Documents may belimited by (a) implied covenants of good faith, fair dealing and commerciallyreasonable conduct and (b) judicial discretion, in the instance of multiple orequitable remedies.

 

We have notconducted requisite factual or legal examinations, and accordingly we expressno opinion, with respect to the application, if any, of laws concerning orpromulgated by (a) environmental effects or agencies; (b) industries theoperations, financial affairs or profits of which are regulated by the UnitedStates or the State of Ohio, to wit, banks and thrift institutions,

 

4

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insurance and utilities under Ohio RevisedCode (“R.C.”) Title 49; (c) fraudulent dispositions or obligations (R.C.Chapter 1336 and R.C. Section 1313.56); (d) securities laws; (e) restrictionsattendant to financings of property by public authorities, for example,industrial revenue bond financings; (f) political subdivisions of theState of Ohio; (g) any order of any court or other authority directedspecifically to any party to the Loan Documents of which we do not haveknowledge; or (h) any taxes or tax effects.

 

In addition, we express no opinion as to theenforceability of rights, provisions or interests to the extent, if any,dependent upon the enforceability of (a) waivers of rights or defenses ofdebtors or others which may not be waived or which may be waived only undercertain circum­stances under applicable law; (b) provisions of the Loan Documents to the extent held to (i) requirethe payment of interest on interest, (ii) compensate any party for loss orexpense in excess of actual loss or reasonable expenses or constitute apenalty, (iii) require reimbursement for or indemnity against actions by theAdministrative Agent or the Lenders taken in violation of applicable law orpublic policy, (iv) require indemnity or reimbursement by a person foradditional costs or expenses where the party reimbursed has incurred suchexpense by reason in part of the effect of activities with others not party tothe Loan Documents and has assigned or allocated the burden of reimbursementunreasonably or arbitrarily, (v) purport to waive or negate in favor of theAdministrative Agent or the Lenders the effect of notice of a default or eventof default, if any, which the Administrative Agent or the Lenders may have atthe time of closing, or (vi) include an acceleration clause and a prepaymentpenalty or premium exercised with respect to the same obligation; (c) anyprovision for the award of attorneys’ fees to an opposing party, except thosethat are governed by the provisions of R.C. Section 1301.21, which becameeffective May 1, 2000; (d) provisions which purport to choose venue andjurisdiction; (e) provisions which purport to waive jury trial; (f) provisionswhich purport to effect the alteration or termination of rights currently heldby third parties; (g) provisions which purport to establish evidentiarystandards; (h) disclaimers of liability, or liability limitations, with respectto third parties; (i) releases of legal or equitable rights;(j) provisions which purport to authorize execution of various documentson behalf of another; (k) any remedies for (1) immaterial breaches or (2)material breaches which are the proximate result of actions taken by the AdministrativeAgent or the Lenders or their agents, which actions none of them is entitled totake pursuant to the relevant agreements or instruments or applicable law orwhich otherwise violate applicable laws; (l) powers of attorney; or (m)provisions, if any, that are ambiguous or inconsistent within a Loan Documentor among the Loan Documents.

 

The opinions expressed herein are limited to the lawsof the State of Ohio and the federal laws of the United States of Americahaving effect on the date hereof, and we express no opinion as to the laws ofany other jurisdiction.  The opinionsexpressed herein are furnished specifically in connection with the executionand delivery of the Loan Documents for the benefit of the Administrative Agent,the Swingline Lender, the LC Issuer and the Lenders and their respectivepermitted assignees and participants pursuant to the terms of the CreditAgreement, and may not be relied upon, assigned, quoted or otherwise used inany manner or for any purpose by any other person or entity, without ourspecific prior written consent.

 

Very truly yours,

 

 

VORYS, SATER, SEYMOUR ANDPEASE  LLP

 

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EXHIBIT B

 

COMPLIANCECERTIFICATE

 

To:                              TheLenders party to the

Credit Agreement Described Below

 

This Compliance Certificate is furnished pursuant tothat certain Credit Agreement dated as of [date] (as amended, modified, renewedor extended from time to time, the “Agreement”) among AirNet Systems, Inc., anOhio corporation (the “Borrower”), the Lenders party thereto and The HuntingtonNational Bank, as Administrative Agent for the Lenders and as Swingline Lenderand as LC Issuer.  Unless otherwisedefined herein, capitalized terms used in this Compliance Certificate have themeanings ascribed thereto in the Agreement.

 

THE UNDERSIGNED HEREBY CERTIFIES THAT:

 

1.                                       Iam the duly elected                          of the Borrower;

 

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

 

3.             Theexaminations described in paragraph 2 did not disclose, and I have no knowledgeof, the existence of any condition or event which constitutes a Default orUnmatured Default during or at the end of the accounting period covered by theattached financial statements or as of the date of this Certificate, except asset forth below; and

 

4.             ScheduleI attached hereto sets forth financial data and computations evidencing theBorrower’s compliance with certain covenants of the Agreement, all of whichdata and computations are true, complete and correct.

 

5              ScheduleII hereto sets forth the determination of the applicable margin on the interestrates to be paid for Advances, the Applicable Fee Rate and the commitment feerates commencing on the fifth day following the delivery hereof.

 

6              ScheduleIII attached hereto sets forth the various reports and deliveries which arerequired at this time under the Credit Agreement and the other Loan Documentsand the status of compliance.

 

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

 
|   |
|--------|
|   |
|   |
|   |
|   |
|   |
|   |

 

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

 
|   |   |
|--------|--------|

 

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SCHEDULE I TO COMPLIANCE CERTIFICATE

 

Compliance as of              ,         with Provisions of      and           of the Agreement

 

3

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SCHEDULE II TO COMPLIANCE CERTIFICATE

 

Borrower’s Applicable Margin and Applicable Fee RateCalculation

 

4

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SCHEDULE III TO COMPLIANCE CERTIFICATE

 

Reports and Deliveries Currently Due

 

5

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EXHIBIT C

 

ASSIGNMENTAGREEMENT

 

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

 

1.             PreliminaryStatement.  The Assignor is a partyto a Credit Agreement (which, as it may be amended, modified, renewed orextended from time to time is herein called the “Credit Agreement”) describedin Item 1 of Schedule 1 attached hereto (“Schedule 1”).  Capitalized terms used herein and nototherwise defined herein shall have the meanings attributed to them in theCredit Agreement.

 

2.             Assignment andAssumption.  The Assignor hereby sellsand assigns to the Assignee, and the Assignee hereby purchases and assumes fromthe Assignor, an interest in and to the Assignor’s rights and obligations underthe Credit Agreement and the other Loan Documents, such that after givingeffect to such assignment the Assignee shall have purchased pursuant to thisAssignment Agreement the percentage interest specified in Item 3 of Schedule 1of all outstanding rights and obligations under the Credit Agreement and theother Loan Documents relating to the facilities listed in Item 3 of Schedule1.  The Revolving Commitment (orOutstanding Credit Exposure, if the applicable Revolving Commitment has beenterminated), Outstanding Revolving Credit Exposure and/or aggregate outstandingTerm Loan purchased by the Assignee hereunder is set forth in Item 4 ofSchedule 1.

 

3.             Effective Date.  The effective date of this AssignmentAgreement (the “Effective Date”) shall be the later of the date specified inItem 5 of Schedule 1 or two Business Days (or such shorter period agreed to bythe Administrative Agent) after this Assignment Agreement, together with anyconsents required under the Credit Agreement, are delivered to theAdministrative Agent. In no event will the Effective Date occur if the paymentsrequired to be made by the Assignee to the Assignor on the Effective Date arenot made on the proposed Effective Date.

 

4.             PaymentObligations.  In consideration forthe sale and assignment hereunder, the Assignee shall pay the Assignor, on theEffective Date, the amount agreed to by the Assignor and the Assignee.  On and after the Effective Date, theAssignee shall be entitled to receive all payments of principal, interest,Reimbursement Obligations and fees with respect to the interest assignedhereby.  The Assignee will promptlyremit to the Assignor any interest on Loans and fees received from theAdministrative Agent which relate to the portion of the interest assigned tothe Assignee hereunder and not previously paid by the Assignee to the Assignor.  In the event that either party heretoreceives any payment to which the other party hereto is entitled under thisAssignment Agreement, then the party receiving such amount shall promptly remitit to the other party hereto.

 

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5.             Assignment Fee.  The Assignor and Assignee each agree to payone-half of the assignment fee required to be paid to the Administrative Agentin connection with this Assignment Agreement unless otherwise specified in Item6 of Schedule 1.

 

6.             Representationsof 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 ithereunder, (ii) such interest is free and clear of any adverse claim created bythe Assignor and (iii) the execution and delivery of this Assignment Agreementby the Assignor is duly authorized.  Itis understood and agreed that the assignment and assumption hereunder are madewithout recourse to the Assignor and that the Assignor makes no otherrepresentation or warranty of any kind to the Assignee.  Neither the Assignor nor any of itsofficers, directors, employees, agents or attorneys shall be responsible for(i) the due execution, legality, validity, enforceability, genuineness, sufficiencyor collectibility of any Loan Document, (ii) any representation, warranty orstatement made in or in connection with any of the Loan Documents, (iii) thefinancial condition or creditworthiness of the Borrower or any guarantor, (iv)the performance of or compliance with any of the terms or provisions of any ofthe Loan Documents, (v) inspecting any of the property, books or records of theBorrower, or (vi) any mistake, error of judgment, or action taken or omitted tobe taken in connection with the Loans or the Loan Documents.

 

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

 

2

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

 

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

 

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

 

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

 

3

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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 andAgreed:

 
| [NAME OF  ASSIGNOR] |   | [NAME OF  ASSIGNEE] |
|---------------------|--------|---------------------|
|                |   |                |
| By:                 |   |                |   | By: |   |   |
| Title:              |   |                |   | Title: |   |   |
|                     |        |                     |  |  |  |  |  |  |

 

----

 
| ACCEPTED AND  CONSENTED TO**** BY  [NAME OF BORROWER] |   | ACCEPTED AND  CONSENTED TO**** BY  [NAME OF ADMINISTRATIVE AGENT] |
|-------------------------------------------------------|--------|-------------------------------------------------------------------|
|                                                  |   |                                                              |
| By:                                                   |   |                                                              |   | By: |   |   |
| Title:                                                |   |                                                              |   | Title: |   |   |
|                                                       |        |                                                                   |  |  |  |  |  |  |

 

 

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**           Percentage taken to 10 decimal places

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

****       Delete if not required by CreditAgreement

 

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Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT

 

**ADMINISTRATIVEINFORMATION SHEET**

 

Attach Assignor’sAdministrative Information Sheet, which must include notice addresses for theAssignor 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:            |   |
|                                         |   |
|                                         |   |
|                                              |        |  |  |  |

 

----

 

**HNBINFORMATION**

 

Assignee will be called promptly upon receipt of thesigned 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 # 044000024                           |
|                                 |   | Account GL#  15804-777777                 |
|                                 |   | 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:  Tina Diddle or Jason Roush    |
|                                 |   | Fax No.:  614-480-2533                    |

 

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EXHIBIT D

LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION

 

To The HuntingtonNational Bank

 as Administrative Agent (the “AdministrativeAgent”) under the Credit Agreement Described Below.

 

Re:                               CreditAgreement, dated September 30, 2002 (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 andthe Administrative Agent.  Capitalizedterms used herein and not otherwise defined herein shall have the meaningsassigned thereto in the Credit Agreement.

 

The Administrative Agent is specifically authorized and directed to actupon the following standing money transfer instructions with respect to theproceeds of Advances or other extensions of credit from time to time untilreceipt by the Administrative Agent of a specific written revocation of suchinstructions by the Borrower, *provided, however,* that the AdministrativeAgent may otherwise transfer funds as hereafter directed in writing by theBorrower in accordance with Section 12.14 of the Credit Agreement or based onany telephonic notice made in accordance with Section 2.14 of the CreditAgreement.

 
| 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) |
|                                                                            |        |  |  |  |  |  |  |  |  |  |  |

 

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EXHIBIT E

NOTE

 

[date]

 

AirNet Systems, Inc., an Ohio corporation (the “Borrower”), promises topay 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 ofthe Agreement (as hereinafter defined), in immediately available funds at themain office of The Huntington National Bank in Columbus, Ohio, asAdministrative Agent, together with interest thereon at the rate or rates setforth in the Agreement.  The Borrowershall pay the principal of and accrued and unpaid interest on such Loans as setforth in the Agreement.

 

The Lender shall,and is hereby authorized to, record by entries made by the Lender into itselectronic data processing system and/or internal memoranda maintained by theLender,or tootherwise record in accordance with its usual practice, the date and amount ofeach such Loan and the date and amount of each principal and interest paymenthereunder.  The Borrower agrees that thesum or sums shown on such schedule, the most recent printout from the Lender’selectronic data processing system and/or such memoranda shall be rebuttablypresumptive evidence of the amount of the outstanding principal, interest orany other amount due under this Note; *provided, however*, that the failure of theLender to make any such entry(s) shall not affect the obligation of theBorrower to repay outstanding principal, interest or any other amount due underthis Note in accordance with the terms hereof.

 

This Note is oneof the Notes issued pursuant to, and is entitled to the benefits of, the CreditAgreement dated as of September 30, 2002 (which, as it may be amended,modified, supplemented, extended, restated and replaced from time to time, isherein called the “Agreement”), among the Borrower, the Lenders party thereto,including the Lender, the Swingline Lender, the LC Issuer  and The Huntington National Bank, asAdministrative Agent, to which Agreement reference is hereby made for astatement of the terms and conditions governing this Note, including the termsand conditions under which this Note may be prepaid or its maturity dateaccelerated.  Capitalized terms usedherein and not otherwise defined herein are used with the meanings attributedto them in the Agreement.

 

The Borrowerhereby irrevocably authorizes any attorney-at-law, including anyattorney-at-law employed or retained by the Administrative Agent and/or theLender, to appear for it in any action on this Note at any time after the samebecomes due as herein provided in any court of record situated in the countywhere this warrant was signed (being Franklin County, Ohio), or in the countywhere the Borrower then resides or can be found, to waive the issuing andservice of process, and confess a judgment in favor of the holder of this Noteagainst the Borrower, for the amount that may then be due, with interest at therate(s) provided for herein, together with the costs of suit, and to waive andrelease all errors in said proceedings and the right to appeal from thejudgment rendered.  The Borrowerconsents to the jurisdiction and venue of such court.  The Borrower waives any conflict of interest that any attorney-at-lawemployed or retained by the

 

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Administrative Agentand/or the Lender may have in confessing judgment hereunder and consents to thepayment 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 UPYOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOUWITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECTFROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FORRETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,OR ANY OTHER CAUSE.**

 

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SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO

NOTEOF                    ,

DATED           ,200  

 
| **Date** |   | **Principal  Amount of  Loan** |   | **Maturity  of Interest  Period** |   | **Principal  Amount  Paid** |   | **Unpaid  Balance** |
|----------|--------|--------------------------------|--------|-----------------------------------|--------|-----------------------------|--------|---------------------|
|     |   |                           |   |                              |   |                        |   |                |
|     |   |                           |   |                              |   |                        |   |                |
|     |   |                           |   |                              |   |                        |   |                |
|     |   |                           |   |                              |   |                        |   |                |
|     |   |                           |   |                              |   |                        |   |                |

 

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SCHEDULE 1

 

SUBSIDIARIES AND OTHER INVESTMENTS

(See Sections 6.14)

 
| **Investment  In** |   | **Jurisdiction  of  Organization** |   | **Owned  By** |   | **Amount of  Investment** |   | **Percent  Ownership** |
|--------------------|--------|------------------------------------|--------|---------------|--------|---------------------------|--------|------------------------|
|               |   |                               |   |          |   |                      |   |                   |
|               |   |                               |   |          |   |                      |   |                   |
|               |   |                               |   |          |   |                      |   |                   |
|               |   |                               |   |          |   |                      |   |                   |
|               |   |                               |   |          |   |                      |   |                   |

 

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SCHEDULE2

 

INDEBTEDNESS ANDLIENS

(See Sections 6.11 and 6.15)

 
| **Indebtedness  Incurred By** |   | **Indebtedness  Owed To** |   | **Property  Encumbered (If Any)** |   | **Maturity  and Amount  of Indebtedness** |
|-------------------------------|--------|---------------------------|--------|-----------------------------------|--------|-------------------------------------------|
|                          |   |                      |   |                              |   |                                      |
|                          |   |                      |   |                              |   |                                      |
|                          |   |                      |   |                              |   |                                      |
|                          |   |                      |   |                              |   |                                      |
|                          |   |                      |   |                              |   |                                      |

 

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SCHEDULE 5.14

 

ADDRESSES OF REAL PROPERTY

OWNED OR LEASED BYTHE BORROWER

 

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SCHEDULE 5.16

 

ENVIRONMENTAL MATTERS

 

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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 followingstatements for the express purpose of inducing The Huntington National Bank, asAdministrative Agent for the benefit of the Lenders under that certain CreditAgreement among Borrower, Administrative Agent, the Lenders from time to timeparty thereto, the Swingline Lender thereunder and the LC Issuer thereunder toextend credit to Borrower:

 

1.         The Borrower carries the property andcasualty insurance with respect to itself, its Subsidiaries, and theirrespective 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 ofcoverage for Borrower and its Subsidiaries.

 

The undersigned isnot now under any legal disability and is properly authorized to give theforegoing statement, and the Borrower, as well as the undersigned, shall bebound by this affidavit.

 

 
|      |   |   |
|-----------|--------|--------|
|      |   |
| STATE OF  | )      |
|      | ) SS:  |
| COUNTY OF | )      |

 

BEFORE ME, aNotary 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 foregoinginstrument and that the same is the free act and deed of said corporation andthe free act and deed of                  personally and as such officer.

 

IN TESTIMONYWHEREOF, I have hereunto set my hand and official seal, at                                   ,this       day of                                                          ,2002.

 
|   |          |
|--------|---------------|
|   | Notary Public |

 

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