AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.19

 

 

AMENDED AND RESTATED

CREDIT AGREEMENT

 

dated as of

 

July 16, 2004

 

among

 

SCANSOURCE, INC., a South Carolina corporation, and

 

NETPOINT INTERNATIONAL, INC., a Florida corporation, as U.S. Borrowers,

 

SCANSOURCE EUROPE SPRL,

 

SCANSOURCE EUROPE LIMITED,

 

and

 

SCANSOURCE UK LIMITED, as Non-U.S. Borrowers,

 

The Initial Guarantors Listed Herein,

 

The Banks Listed Herein,

 

BRANCH BANKING AND TRUST COMPANY OF SOUTH CAROLINA,

 

as Administrative Agent,

 

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent

and an Other Currency Lender

 

 

BB&T CAPITAL MARKETS and

WACHOVIA BANK, NATIONAL ASSOCIATION

 

As Arrangers

AMENDED AND RESTATED

CREDIT AGREEMENT

 

AGREEMENT dated as of July 16, 2004 among SCANSOURCE, INC. a South Carolina corporation, NETPOINT INTERNATIONAL, INC., a Florida corporation, 4100 QUEST, LLC, a South Carolina limited liability company, PARTNER SERVICES, INC., a South Carolina corporation, SCANSOURCE EUROPE SPRL, a company incorporated under the laws of Belgium, SCANSOURCE EUROPE LIMITED, a company incorporated under the laws of the United Kingdom, SCANSOURCE UK LIMITED, a company incorporated under the laws of the United Kingdom, the BANKS listed on the signature pages hereof, WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agent and an Other Currency Lender, and BRANCH BANKING AND TRUST COMPANY OF SOUTH CAROLINA, as Administrative Agent.

 

The Company, the Guarantors, the Banks and the Administrative Agent are parties to the Original Credit Agreement (as defined herein) which provides for the making of loans by the Revolving Advance Lenders to the Company in an aggregate principal amount at any one time outstanding not exceeding $80,000,000.

 

The parties hereto wish to amend the Original Credit Agreement in certain respects and to restate the Original Credit Agreement, to read in its entirety as set forth below. Accordingly, the parties hereto agree that effective on the Restatement Effective Date (as defined herein), the Original Credit Agreement is amended and restated to read in its entirety as follows:

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.01. Definitions . The terms as defined in this Section 1.01 shall, for all purposes of this Agreement and any amendment hereto (except as otherwise expressly provided or unless the context otherwise requires), have the meanings set forth herein:

 

“ACL Agreement” means any credit line sweep services agreement now or hereafter entered into between the Administrative Agent and the Company and all amendments and modifications thereto.

 

“Account Debtor” shall mean the person who is obligated on any of the Accounts Receivable Collateral or otherwise is obligated as a purchaser or lessee of any of the Inventory Collateral.

 

“Accounts” shall have the meaning set forth in the Security Agreement.

 

“Accounts Receivable Collateral” shall mean all obligations of every kind at any time owing to any U.S. Borrower or any Guarantor howsoever evidenced or incurred, including, without limitation, all accounts, instruments, contract rights, chattel paper (whether tangible or electronic) and general intangibles, all returned or repossessed goods and all books, records, computer tapes, programs and ledger books arising therefrom or relating thereto, whether now owned or hereafter acquired or arising and all proceeds of the foregoing.

“Acquisition” means the acquisition of (i) a controlling equity interest in another Person (including the purchase of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable by the holder thereof), whether by purchase of such equity interest or upon exercise of an option or warrant for, or conversion of securities into, such equity interest, or (ii) assets of another Person which constitute all or any material part of the assets of such Person or of a line or lines of business conducted by such Person.

 

“Additional Costs” means, with respect to any Advance the rate per annum calculated by the Administrative Agent (or an Other Currency Lender designated by the Administrative Agent) in accordance with Schedule 1.01 – Additional Costs hereto.

 

“Adjusted Monthly Libor Index” has the meaning set forth in Section 2.06(c).

 

“Administrative Agent” means Branch Banking and Trust Company of South Carolina, in its capacity as administrative agent for the Banks, Other Currency Lender and the Issuing Banks hereunder, and its successors and permitted assigns in such capacity.

 

“Administrative Agent’s Letter Agreement” means that certain letter agreement, dated as of May 20, 2004, between the Company and the Administrative Agent relating to the structure of the credit facility provided by this Agreement, and certain fees from time to time payable by the Company to the Administrative Agent, together with all amendments and modifications thereto. If there is any conflict between the provisions of this Agreement and the provisions of the Administrative Agent’s Letter Agreement, the provisions of this Agreement will control.

 

“Advances” means, collectively the Revolving Advances, the Swing Line Advances and Other Currency Advances and “Advance” means any one of such Advances.

 

“Affiliate” of any Person means (i) any other Person which directly, or indirectly through one or more intermediaries, controls such Person, (ii) any other Person which directly, or indirectly through one or more intermediaries, is controlled by or is under common control with such Person, or (iii) any other Person of which such Person owns, directly or indirectly, 20% or more of the common stock or equivalent equity interests. As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Aggregate Unused Commitments” means at any date an amount equal to the aggregate amount of each Bank’s Facility Commitment less the sum of: (1) the aggregate outstanding principal amount of all Advances (excluding Swing Line Advances); (2) the aggregate outstanding principal amount of all Letter of Credit Advances and Undrawn Amounts; and (3) the aggregate outstanding principal amount of the Dollar Equivalent of all Other Currency Advances. It is agreed that the aggregate outstanding principal amount of all Swing Line Advances shall not be considered used amounts of the Facility Commitment for purposes of calculating the fee payable under Section 2.07.

 

“Agreement” means this Credit Agreement, together with all amendments and supplements hereto.

 

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“Applicable Margin” has the meaning set forth in Section 2.06(a).

 

“Assignee” has the meaning set forth in Section 9.07(c).

 

“Assignment and Acceptance” means an Assignment and Acceptance executed in accordance with Section 9.07(c) in the form attached hereto as Exhibit J.

 

“Australian Dollars” means the lawful currency of the Commonwealth of Australia, as in effect from time to time.

 

“Authority” has the meaning set forth in Section 8.02.

 

“Bank” means each bank listed on the signature pages hereof as having a Revolving Advance Commitment or Other Currency Commitment (including, without limitation, the Revolving Advance Lenders, the Other Currency Lenders and the Swing Line Lender), and their respective successors and assigns; provided, that unless the context otherwise requires, each reference herein to the Banks shall be deemed to include any Conduit Lender.

 

“BB&T” means Branch Banking and Trust Company of South Carolina, and its successors and assigns.

 

“Borrowers” means collectively the U.S. Borrowers and the Non-U.S. Borrowers and “Borrower” means any one of such Borrowers.

 

“Borrowing” means Advances of the same type made by the applicable Banks required to make such Advances on the same Domestic Business Day and Euro-Dollar Business Day, as the case may be, and pursuant to Article II.

 

“Canadian Dollars” means the lawful currency of Canada, as in effect from time to time.

 

“Capital Expenditures” means for any period the sum of all capital expenditures incurred during such period by the Company and its Consolidated Subsidiaries, as determined in accordance with GAAP; provided, however, that Capital Expenditures shall not include any capital expenditure that is included within the definition of “Costs of Acquisition” and made to consummate an Acquisition.

 

“Capital Securities” means, with respect to any Person, any and all shares, interests (including membership interests and partnership interests), participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital (including any instruments convertible into equity), whether now outstanding or issued after the Restatement Effective Date.

 

“CERCLA” means the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. and its implementing regulations and amendments.

 

“CERCLIS” means the Comprehensive Environmental Response Compensation and Liability Information System established pursuant to CERCLA.

 

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“Change of Law” shall have the meaning set forth in Section 8.02.

 

“Closing Certificate” has the meaning set forth in Section 3.01(e).

 

“Closing Date” means July 26, 2001.

 

“Code” means the Internal Revenue Code of 1986, as amended, or any successor Federal tax code. Any reference to any provision of the Code shall also be deemed to be a reference to any successor provision or provisions thereof.

 

“Collateral” shall have the meaning set forth in the Security Agreement.

 

“Collateral Documents” means, collectively, the Pledge Agreement and the Security Agreement.

 

“Collateral Locations” shall mean the Executive Offices and those additional locations set forth and described on Schedule 1.01 - Collateral Locations, under the heading “Collateral Locations.”

 

“Commitments” means, with respect to each Bank, collectively such Bank’s Facility Commitment, Revolving Advance Commitment and Other Currency Commitment and “Commitment” means, with respect to each Bank, any of such Commitments.

 

“Company” means ScanSource, Inc., a South Carolina corporation, and its successors and permitted assigns.

 

“Compliance Certificate” has the meaning set forth in Section 5.01(c).

 

“Conduit Lender” shall mean any special purpose corporation organized and administered by any Bank for the purpose of making Revolving Advances otherwise required to be made by such Bank and designated by such Bank in a written instrument provided to the Administrative Agent; provided , that the designation by any Bank of a Conduit Lender shall not relieve the designating Bank of any of its obligations to fund a Revolving Advance under this Agreement if, for any reason, its Conduit Lender fails to fund any such Revolving Advance, and the designating Bank (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents, approvals and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided , further , that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Article VIII than the designating Bank would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Revolving Advance Commitment or Other Currency Commitment.

 

“Consolidated Debt” means at any date the sum of all Debt of the Company and its Consolidated Subsidiaries.

 

“Consolidated EBITDA” shall be determined as of the end of each Fiscal Quarter and shall mean EBITDA, of the Company and its Consolidated Subsidiaries, for the Fiscal Quarter then ending and the immediately preceding three Fiscal Quarters, all as determined in accordance with GAAP.

 

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“Consolidated Fixed Charges” for any period means the sum of (i) Consolidated Interest Expense for such period, (ii) all payments of principal in respect of Debt (excluding principal payments made with respect to any revolving line of credit) of the Company or any of its Consolidated Subsidiaries for such period, and (iii) all payment obligations of the Company and its Consolidated Subsidiaries for such period under all operating leases and rental agreements.

 

“Consolidated Funded Debt” shall mean, as of any date of determination, the aggregate (without duplication) of all Funded Debt of the Company and its Consolidated Subsidiaries as of such date.

 

“Consolidated Interest Expense” for any period means interest, whether expensed or capitalized, in respect of Debt of the Company or any of its Consolidated Subsidiaries outstanding during such period.

 

“Consolidated Net Income” means, for any period, the Net Income of the Company and its Consolidated Subsidiaries determined on a consolidated basis, but excluding (i) extraordinary items and (ii) any equity interests of the Company or any Subsidiary of the Company in the unremitted earnings of any Person that is not a Subsidiary of the Company.

 

“Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of which, in accordance with GAAP, would be consolidated with those of the Company in its consolidated and consolidating financial statements as of such date.

 

“Consolidated Tangible Net Worth” means, at any time, Stockholders’ Equity, less the sum of the value, as set forth or reflected on the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries, prepared in accordance with GAAP, of

 

(A) Any surplus resulting from any write-up of assets subsequent to March 31, 2004 (provided that this item (A) shall not preclude the write up of assets in accordance with and as a result of purchase accounting principles at the time such assets are acquired);

 

(B) All assets which would be treated as intangible assets for balance sheet presentation purposes under GAAP, including without limitation goodwill (whether representing the excess of cost over book value of assets acquired, or otherwise), trademarks, tradenames, copyrights, patents and technologies (other than computer software and software under development which is treated as fixed assets for balance sheet presentation purposes), and unamortized debt discount and expense.

 

(C) To the extent not included in (B) of this definition, any amount at which shares of capital stock of the Company appear as an asset on the balance sheet of the Company and its Consolidated Subsidiaries;

 

(D) Loans or advances to stockholders, directors, officers or employees; and

 

(E) To the extent not included in (B) of this definition, deferred expenses.

 

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“Consolidated Total Assets” means, at any time, the total assets of the Company and its Consolidated Subsidiaries, determined on a consolidated basis, as set forth or reflected on the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries, prepared in accordance with GAAP.

 

“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with any Loan Party, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

 

“Costs of Acquisition” means, with respect to any Acquisition, as at the date of entering into any agreement therefor, the sum of the following (without duplication): (i) the value of the capital stock, warrants or options to acquire capital stock of the Company or any Subsidiary to be transferred in connection therewith, (ii) the amount of any cash and fair market value of other property (excluding property described in clause (i) and the unpaid principal amount of any debt instrument) given as consideration, (iii) the amount (determined by using the face amount or the amount payable at maturity, whichever is greater) of any Debt incurred, assumed or acquired by the Company or any Subsidiary in connection with such Acquisition, (iv) all additional purchase price amounts in the form of earnouts and other contingent obligations that should be recorded on the financial statements of the Company and its Subsidiaries in accordance with GAAP, (v) all amounts paid in respect of covenants not to compete, consulting agreements that should be recorded on financial statements of the Company and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with such Acquisition, (vi) the aggregate fair market value of all other consideration given by the Company or any Subsidiary in connection with such Acquisition, and (vii) out of pocket transaction costs for the services and expenses of attorneys, accountants and other consultants incurred in effecting such transaction, and other similar transaction costs so incurred. For purposes of determining the Cost of Acquisition for any transaction, (A) the capital stock of the Company shall be valued (I) in the case of capital stock that is then designated as a national market system security by the National Association of Securities Dealers, Inc. (“NASDAQ”) or is listed on a national securities exchange, the average of the last reported bid and ask quotations or the last prices reported thereon, and (II) with respect to any other shares of capital stock, as determined by the Board of Directors of the Company and, if requested by the Administrative Agent, determined to be a reasonable valuation by the independent public accountants referred to in Section 5.01(a), (B) the capital stock of any Subsidiary shall be valued as determined by the Board of Directors of such Subsidiary and, if requested by the Administrative Agent, determined to be a reasonable valuation by the independent public accountants referred to in Section 5.01(a), and (C) with respect to any Acquisition accomplished pursuant to the exercise of options or warrants or the conversion of securities, the Cost of Acquisition shall include both the cost of acquiring such option, warrant or convertible security as well as the cost of exercise or conversion. For purposes of Section 5.04, “Costs of Acquisition” shall not include any additional purchase amounts in the form of earnouts payable under written agreements in existence on the Restatement Effective Date in connection with the Company’s acquisitions of NetPoint and Outsourcing Unlimited, Inc. that should be recorded on the financial statements of the Company and its Subsidiaries in accordance with GAAP.

 

“Credit Extensions” means, as the context may require,

 

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(a) the making of an Advance by a Bank; or

 

(b) the issuance of any Letter of Credit, or the extension of any expiry date of any existing Letter of Credit, by an Issuing Bank.

 

“Debt” of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (iv) all obligations of such Person as lessee under capital leases, (v) all obligations of such Person to reimburse any bank or other Person in respect of amounts payable under a banker’s acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event such Person is a corporation), (vii) all obligations (absolute or contingent) of such Person to reimburse any bank or other Person in respect of amounts which are available to be drawn or have been drawn under a letter of credit or similar instrument, (viii) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, (ix) all Debt of others Guaranteed by such Person, (x) all obligations of such Person with respect to interest rate protection agreements, foreign currency exchange agreements or other hedging agreements (valued as the termination value thereof computed in accordance with a method approved by the International Swap Dealers Association and agreed to by such Person in the applicable hedging agreement, if any); provided that for the purposes of calculating “Funded Debt,” “Debt” shall not include any Hedging Agreements which are entered into in the ordinary course of business and used solely as a part of the normal business operations of the Company or any of its Subsidiaries as a risk management strategy and/or hedge against changes resulting from interest rate and currency market changes and not as a means to speculate for purposes of investment on trends and shifts in financial or commodities markets; and (xi) the principal portion of all obligations of such Person under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease under GAAP.

 

“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived in writing, become an Event of Default.

 

“Default Rate” means, with respect to the Loan, including without limitation, any Revolving Advance, Other Currency Advance (other than an Other Currency Overdraft Advance) or Swing Line Advance, on any day, the sum of 2% plus the then highest interest rate (including the Applicable Margin determined as if the Ratio of Consolidated Funded Debt to Consolidated EBITDA is greater than 2.00) which may be applicable to any Advance hereunder (irrespective of whether any such type of Advance is actually outstanding hereunder).

 

“Depreciation and Amortization” means for any period an amount equal to the sum of all depreciation and amortization expenses of the Company and its Consolidated Subsidiaries for such period, as determined in accordance with GAAP.

 

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“Dividends” means for any period the sum of all dividends paid or declared during such period in respect of any Capital Securities and Redeemable Preferred Stock (other than dividends paid or payable in the form of additional Capital Securities).

 

“Dollar Borrowing” means a borrowing hereunder consisting of Revolving Advances made in Dollars to the U.S. Borrowers at the same time by the Banks pursuant to Article II.

 

“Dollar Equivalent” means, at any time, (a) as to any amount denominated in Dollars, the amount thereof at such time, and (b) as to any amount denominated in an Other Currency, the equivalent amount in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate for the purchase of Dollars with such Other Currency on the applicable Determination Date.

 

“Dollars” or “$” means dollars in lawful currency of the United States of America.

 

“Domestic Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in South Carolina are authorized or required by law to close.

 

“EBITDA” means and includes, for any Fiscal Quarter for which the amount thereof is to be determined as follows: (A) the sum of (i) Consolidated Net Income for such period; (ii) Consolidated Interest Expense for such period; (iii) franchise taxes (if applicable), income taxes and other taxes measured by income or profits in respect of the Company and its Consolidated Subsidiaries for such period, but only to the extent such taxes were deducted in computing Consolidated Net Income for such period; (iv) Depreciation and Amortization for such period, all determined on a consolidated basis in accordance with GAAP; plus (B) other extraordinary non-cash charges for such period, but only to the extent such other extraordinary non-cash charges are included in computing Consolidated Net Income for such period, minus, (C) other extraordinary non-cash gains for such period, but only to the extent such other extraordinary non-cash gains are included in computing Consolidated Net Income for such period; plus, (D) non-recurring after-tax losses for such period, but only to the extent such non-recurring after-tax losses are included in computing Consolidated Net Income for such period, minus (E) non-recurring after-tax gains for such period, but only to the extent such non-recurring after-tax gains are included in computing Consolidated Net Income for such period, plus (F) non-cash charges in respect of stock options and good will amortization for such period, but only to the extent such non-cash charges in respect of stock options and good will amortization are included in computing Consolidated Net Income for such period.

 

“EDGAR” means the Electronic Data Gathering, Analysis and Retrieval system established and operated by the SEC, or any successor system.

 

“Environmental Authority” means any foreign, federal, state, local or regional government that exercises any form of jurisdiction or authority under any Environmental Requirement.

 

“Environmental Authorizations” means all licenses, permits, orders, approvals, notices, registrations or other legal prerequisites for conducting the business of a Loan Party or any Subsidiary of a Loan Party required by any Environmental Requirement.

 

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“Environmental Judgments and Orders” means all judgments, decrees or orders arising from or in any way associated with any Environmental Requirements, whether or not entered upon consent or written agreements with an Environmental Authority or other entity arising from or in any way associated with any Environmental Requirement, whether or not incorporated in a judgment, decree or order.

 

“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes into the environment, including, without limitation, ambient air, surface water, groundwater or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes or the clean-up or other remediation thereof.

 

“Environmental Liabilities” means any liabilities, whether accrued, contingent or otherwise, arising from and in any way associated with any Environmental Requirements.

 

“Environmental Notices” means notice from any Environmental Authority or by any other person or entity, of possible or alleged noncompliance with or liability under any Environmental Requirement, including without limitation any complaints, citations, demands or requests from any Environmental Authority or from any other person or entity for correction of any violation of any Environmental Requirement or any investigations concerning any violation of any Environmental Requirement.

 

“Environmental Proceedings” means any judicial or administrative proceedings arising from or in any way associated with any Environmental Requirement.

 

“Environmental Releases” means releases as defined in CERCLA or under any applicable state or local environmental law or regulation.

 

“Environmental Requirements” means any legal requirement relating to health, safety or the environment and applicable to a Loan Party, any Subsidiary of a Loan Party or the Properties, including but not limited to any such requirement under CERCLA or similar state legislation and all federal, state and local laws, ordinances, regulations, orders, writs, decrees and common law.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, or any successor law. Any reference to any provision of ERISA shall also be deemed to be a reference to any successor provision or provisions thereof.

 

“Euro” and the sign “ € ” means the single currency of the Member States of the European Union that have adopted such currency as their currency in accordance with the legislations of the European Union relating to the European Economic and Monetary Union.

 

“Euro-Dollar Business Day” means any day:

 

(a) which is a Domestic Business Day on which dealings in Dollar and Other Currency deposits are carried out in the London interbank market;

 

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(b) in relation to a transaction involving an Other Currency (other than Euros), on which banks are open for general interbank business in the principal financial centre of the country of that Other Currency; and

 

(c) in relation to a transaction involving Euros, which is a TARGET Day.

 

“Euro-Dollar Loan” means the Loan during Interest Periods when the Loan bears or is to bear interest at a rate based upon the London Interbank Offered Rate.

 

“Euro-Dollar Reserve Percentage” has the meaning set forth in Section 2.06.

 

“Event of Default” has the meaning set forth in Section 6.01.

 

“Executive Offices” shall mean with respect to the U.S. Borrowers or a Guarantor, the address and location corresponding to such U.S. Borrowers’ or Guarantor’s name set forth on Schedule 1.01 - Collateral Locations under the heading “Executive Offices.”

 

“Facility Commitment” means with respect to any Bank, (i) the amount set forth opposite the name of such Bank on the signature page hereof as its Facility Commitment; or (ii) as to any Bank which enters into an assignment and acceptance (whether as transferor Bank or as assignee thereunder), the amount of such Bank’s Commitment after giving effect to such assignment and acceptance, or (iii) as to any Bank which agrees to increase its Revolving Advance Commitment pursuant to Section 2.01(b) and (c) or increase its Other Currency Commitment pursuant to Section 2.16(a)(2), the amount of the Facility Commitment after giving effect to such increase, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.

 

“Facing Fees” means, collectively the U.S. Dollar Facing Fees and Other Currency Facing Fees.

 

“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day, provided that (i) if the day for which such rate is to be determined is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate charged to BB&T on such day on such transactions as determined by the Administrative Agent.

 

“Financing” shall mean (i) any transaction or series of transactions for the incurrence by a Loan Party of any Debt or for the establishment of a commitment to make advances which would constitute Debt of a Loan Party, which Debt is not by its terms subordinate and junior to other Debt of a Loan Party, (ii) an obligation incurred in a transaction or series of transactions in which assets of a Loan Party are sold and leased back, or (iii) a sale of accounts or other receivables or any interest therein, other than a sale or transfer of accounts or receivables attendant to a sale permitted hereunder of an operating division.

 

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“Fiscal Month” means any fiscal month of the Company.

 

“Fiscal Quarter” means any fiscal quarter of the Company.

 

“Fiscal Year” means any fiscal year of the Company.

 

“Fixed Charge Coverage Ratio” shall be determined as of the end of each Fiscal Quarter and shall mean the ratio of: (A) Consolidated EBITDA for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date, plus all obligations of the Company or any of its Consolidated Subsidiaries as lessee under operating leases, for the period of four consecutive Fiscal Quarters most recently ended on or prior to such date, to (B) (i) Consolidated Fixed Charges for the period of four consecutive fiscal quarters most recently ended on or prior to such date, plus (ii) the sum of the aggregate cash taxes on income (and franchise taxes, if applicable) paid by the Company and its Consolidated Subsidiaries during such period of four consecutive Fiscal Quarters most recently ended on or prior to such date, all Dividends paid or declared by the Company and its Consolidated Subsidiaries during such period, plus Capital Expenditures during such period.

 

“Foreign Employee Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of any Loan Party or any member of the Controlled Group, but which is not covered by ERISA pursuant to ERISA Section 4(b)(4).

 

“Foreign Pension Plan” means any employee benefit plan as defined in Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit of employees of any Loan Party or any member of the Controlled Group, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded through a trust or other funding vehicle.

 

“Funded Debt” shall mean, as of any date of determination with respect to any Person, all Debt for borrowed money of such Person, whether direct or contingent, including without limitation, reimbursement and all other obligations outstanding with respect to surety bonds and letters of credit (but excluding the amount of undrawn letters of credit and surety bonds of such Person), all obligations of such Person as lessee under capitalized leases, the deferred purchase price of any property or asset or Debt evidenced by a promissory note, bond, guaranty or similar written obligations for the payment of money (including, but not limited to, conditional sales or similar title retention agreements but excluding trade accounts payable arising in the ordinary course of business).

 

“GAAP” means generally accepted accounting principles in effect in the United States applied on a basis consistent with those which, in accordance with Section 1.02, are to be used in making the calculations for purposes of determining compliance with the terms of this Agreement.

 

“Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof and any central bank thereof, any municipal, local, city or

 

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county government, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

 

“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to secure, purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to provide collateral security, to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

 

“Guaranteed Obligations” means any and all liabilities, indebtedness and obligations of any and every kind and nature, heretofore, now or hereafter owing, arising, due or payable from the Borrowers to the Banks (including, without limitation, the Other Currency Lender and Swing Line Lender), the Issuing Banks, the Administrative Agent, or any of them, arising under or evidenced by this Agreement, the Other Currency Overdraft Facility Letter, the Notes, the Letter of Credit Agreements, the Collateral Documents or any other Loan Document.

 

“Guarantors” shall mean collectively: (a) the Initial Guarantors; and (b) all Material Subsidiaries acquired, formed or otherwise in existence after the Closing Date.

 

“Hazardous Materials” includes, without limitation, (a) solid or hazardous waste, as defined in the Resource Conservation and Recovery Act of 1980, 42 U.S.C. §6901 et seq. and its implementing regulations and amendments, or in any applicable state or local law or regulation, (b) any “hazardous substance”, “pollutant” or “contaminant”, as defined in CERCLA, or in any applicable state or local law or regulation, (c) gasoline, or any other petroleum product or by-product, including crude oil or any fraction thereof, (d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or in any applicable state or local law or regulation and (e) insecticides, fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state or local law or regulation, as each such Act, statute or regulation may be amended from time to time.

 

“Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest or currency exchange rate or commodity price hedging arrangement.

 

“IBM Intercreditor Agreement” shall mean that certain Intercreditor Agreement dated July 26, 2001 by and between the Administrative Agent and IBM Credit Corporation, either as originally executed or as it may be from time to time supplemented, modified, amended, renewed or extended, as the context shall require.

 

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“Initial Guarantors” shall mean collectively (i) 4100 Quest, LLC, a South Carolina limited liability company; (ii) Partner Services, Inc., a South Carolina corporation; and (iii) with respect to the Obligations of the Non-U.S. Borrowers, the U.S. Borrowers.

 

“Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement of even date herewith by and between the Administrative Agent, the Banks, the Issuing Banks, the Other Currency Lenders and the IR Bank, either as originally executed or as it may be from time to time supplemented, modified, amended, renewed or extended, as the context shall require.

 

“Interest Payment Date” shall mean each Quarterly Payment Date.

 

“Interest Period” means: (1) relative to any Revolving Advance and Swing Line Advance, a calendar month; provided that: (a) the initial Interest Period shall mean the period commencing on the Closing Date and ending on July 31, 2001, provided that the London Interbank Offered Rate shall be determined as if such Interest Period commenced on July 1, 2001; and (b) the last Interest Period under this Agreement shall end on the Termination Date; and (2) relative to any Other Currency Advance (other than an Other Currency Overdraft Advance), the period beginning on (and including) the date on which such Euro-Dollar Loan is made or continued as, or converted into, a Euro-Dollar Loan pursuant to Section 2.16 and shall end on (but exclude) the day which numerically corresponds to such date one, two, three or six months thereafter (or, if such month has no numerically corresponding day, on the last Euro-Dollar Business Day of such month) as the Borrowers may select in their relevant notice pursuant to Section 2.16 provided that (a) the Borrowers shall not be permitted to select Interest Periods to be in effect at any one time which have expiration dates occurring on more than eight different dates; (b) if such Interest Period would otherwise end on a day which is not a Euro-Dollar Business Day, such Interest Period shall end on the next following Euro-Dollar Business Day (unless such next following Euro-Dollar Business Day is the first Euro-Dollar Business Day of a calendar month, in which case such Interest Period shall end on the Euro-Dollar Business Day next preceding such numerically corresponding day); and (c) no Interest Period for any Other Currency Advance may end later than the Termination Date.

 

“Inventory Collateral” shall mean all inventory of U.S. Borrowers and Guarantors, or in which any U.S. Borrower or Guarantor has rights, whether now owned or hereafter acquired, wherever located, including, without limitation, all goods of the U.S. Borrowers and Guarantors held for sale or lease or furnished or to be furnished under contracts of service, all goods held for display or demonstration, goods on lease or consignment, returned and repossessed goods, all raw materials, work-in-process, finished goods and supplies used or consumed in the business of any U.S. Borrower or any Guarantor, together with all documents, documents of title, dock warrants, dock receipts, warehouse receipts, intellectual property, bills of lading or orders for the delivery of all, or any portion, of the foregoing.

 

“Investment” means any investment in any Person, whether by means of purchase or acquisition of obligations or securities of such Person, capital contribution to such Person, loan or advance to such Person, making of a time deposit with such Person, Guarantee or assumption of any obligation of such Person or otherwise, excluding, however, trade credit extended in the ordinary course of business by the Company or any Consolidated Subsidiary to a Person that is not an Affiliate.

 

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“IR Agreement” means that certain ISDA Master Agreement dated as of July 26, 2001, by and between the Borrower and the IR Bank, together with all schedules thereto, as amended from time to time, and all confirmations entered into, as amended, from time to time.

 

“IR Bank” means Branch Banking and Trust Company, in its capacity as a party to the IR Agreement.

 

“Issuing Banks” means collectively the U.S. Dollar Issuing Bank and the Other Currency Issuing Bank and “Issuing Bank” means one of such Issuing Banks.

 

“Japanese Yen” means the lawful currency of Japan, as in effect from time to time.

 

“Judgment Currency” is defined in Section 9.19 .

 

“Lending Office” means, as to each Bank, its office located at its address set forth on the signature pages hereof (or identified on the signature pages hereof as its Lending Office) or such other office as such Bank may hereafter designate as its Lending Office by notice to the Company and the Administrative Agent.

 

“Letter of Credit Advances” means collectively the U.S. Dollar Letter of Credit Advances and the Dollar Equivalent of the Other Currency Letter of Credit Advances and “Letter of Credit Advance” means any one of such Letter of Credit Advances.

 

“Letter of Credit Agreement” means collectively the U.S. Dollar Letter of Credit Agreements and the Other Currency Letter of Credit Agreements and “Letter of Credit Agreement” means any one of such Letter of Credit Agreements.

 

“Letter of Credit Facility Exposure” shall mean, with respect to any Bank at any time, such Bank’s Pro Rata Facility Share of the sum of (i) the aggregate Undrawn Amounts at such time and (ii) the aggregate amount of all Letter of Credit Advances outstanding at such time (being in the case of Other Currency Letters of Credit, the Dollar Equivalent amount of the same).

 

“Letters of Credit” means collectively the U.S. Dollar Letters of Credit and the Other Currency Letters of Credit and “Letter of Credit” means any one of such Letters of Credit, as any of such letters of credit may be extended, renewed, replaced or amended from time to time.

 

“Lien” means, with respect to any asset, any mortgage, deed to secure debt, deed of trust, lien, pledge, charge, security interest, security title, preferential arrangement which has the practical effect of constituting a security interest or encumbrance, servitude or encumbrance of any kind in respect of such asset to secure or assure payment of a Debt or a Guarantee, whether by consensual agreement or by operation of statute or other law, or by any agreement, contingent or otherwise, to provide any of the foregoing. For the purposes of this Agreement, the Company or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

 

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“Loan” means the aggregate outstanding Advances made by the Banks to the Borrowers under this Agreement and the Other Currency Overdraft Facility Letter. The Loan shall at all times be a Euro-Dollar Loan, unless such Loan is to be a Prime Rate Loan pursuant to Article VIII herein.

 

“Loan Documents” means this Agreement, the Other Currency Overdraft Facility Letter, the Notes, the Collateral Documents, the Letter of Credit Agreements, the Letters of Credit, any other document evidencing, relating to or securing the Revolving Advances, the Other Currency Advances, the Swing Line Advances or the Letters of Credit, and any other document or instrument delivered from time to time in connection with this Agreement, the Notes, the Letter of Credit Agreements, the Swing Line Advances, the Letters of Credit, the Collateral Documents, the Other Currency Advances or the Revolving Advances, as such documents and instruments may be amended or supplemented from time to time.

 

“Loan Parties” means collectively the Borrowers and each Guarantor that is now or hereafter a party to any of the Loan Documents.

 

“London Interbank Offered Rate” has the meaning set forth in Section 2.06(c).

 

“Margin Stock” means “margin stock” as defined in Regulations T, U or X of the Board of Governors of the Federal Reserve System, as in effect from time to time, together with all official rulings and interpretations issued thereunder.

 

“Material Adverse Effect” means, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences, whether or not related, a material adverse change in, or a material adverse effect upon, any of (a) the financial condition, operations, business or properties of the Company and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the Administrative Agent or the Banks under the Loan Documents, or the ability of the Borrowers or any other Loan Party to perform its obligations under the Loan Documents to which it is a party, as applicable, or (c) the legality, validity or enforceability of any Loan Document.

 

“Material Subsidiary” means collectively: (i) each U.S. Subsidiary which is a Consolidated Subsidiary and at any date accounts for (or in the case of a recently formed or acquired U.S. Subsidiary would so account for on a pro forma historical basis) at least: (A) 5% of Consolidated Total Assets as measured as at the end of the then most recently ended Fiscal Year, or (B) 5% of Consolidated Net Income (before taxes) for either of the two most recently ended Fiscal Years; and (ii) each U.S. Subsidiary that is a member of the Material Subsidiary Group. As used herein, “Material Subsidiary Group” as at any date means one or more U.S. Subsidiaries (determined in accordance with this definition) which account for (or in the case of a recently formed or acquired U.S. Subsidiary would so account for on a pro forma historical basis), when combined with the Company, at least (A) 90% of Consolidated Total Assets as measured as at the end of the then most recently ended Fiscal Year or (B) 90% of Consolidated Net Income (before taxes) for either of the two most recently ended Fiscal Years. A U.S. Subsidiary shall be a “Material Subsidiary” if such U.S. Subsidiary is included in any of the following groups: (1) the U.S. Subsidiaries (determined in accordance with the terms of the

 

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following sentence) accounting for the Consolidated Total Assets measured under part (A) of the preceding sentence, but not the Consolidated Net Income measured under part (B) of the preceding sentence; or (2) the U.S. Subsidiaries (determined in accordance with the terms of the following sentence) accounting for the Consolidated Net Income measured under part (B) of the preceding sentence, but not the Consolidated Total Assets measured under part (A) of the preceding sentence; or (3) the U.S. Subsidiaries (determined in accordance with the terms of the following sentence) accounting for the Consolidated Net Income measured under part (B) of the preceding sentence and the Consolidated Total Assets measured under part (A) of the preceding sentence. The determination of the U.S. Subsidiaries comprising the Material Subsidiary Group as of any date shall be made on the basis of a group (selected by the Company) consisting of the smallest number of U.S. Subsidiaries necessary to satisfy groups (1), (2) or (3), as the case may be, above.

 

“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.

 

“Net Income” means, as applied to any Person for any period, the aggregate amount of net income of such Person, after taxes, for such period, as determined in accordance with GAAP.

 

“Netpoint” means Netpoint International, Inc., a Florida corporation.

 

“Netpoint Guaranty” means the guaranty by the Company of the indebtedness of Netpoint under Netpoint’s line of credit in a maximum outstanding principal amount of $1,000,000.

 

“New Borrower Joinder Agreement” has the meaning set forth in Section 2.20(a).

 

“Non-U.S. Borrowers” means collectively: (i) ScanSource Europe SPRL; (ii) ScanSource Europe Limited; (iii) ScanSource UK Limited; (iv) each Consolidated Subsidiary that executes and delivers a New Borrower Joinder Agreement, as a Non-U.S. Borrower pursuant to Section 2.20(a); and (v) their respective successors and permitted assigns. “Non-U.S. Borrower” means any one of such Non-U.S. Borrowers.

 

“Non-U.S. Obligations” means all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of the Non-U.S. Borrowers and their Subsidiaries arising under or in connection with a Loan Document, including, without limitation, the principal of, premium, if any, and interest (including interest accruing during, or which would have accrued but for, the pendency of any proceeding of the type described in Sections 6.01(g) , 6.01(h) and 6.01(t) , whether or not allowed in such proceeding) on all Other Currency Advances borrowed by each Non-U.S. Borrower, all Other Currency Letter of Credit Advances made in respect of an Other Currency Letter of Credit in which one or more Non-U.S. Borrowers is the applicant, all Other Currency Letters of Credit in which one or more Non-U.S. Borrowers is the applicant, indemnities on the Other Currency Advances borrowed by each Non-U.S. Borrower and solely for the purposes of calculating the amount of the Non-U.S. Obligations, the amount of all loans or Investments made by the U.S. Borrowers to or in each Non-U.S. Borrower and each of its Subsidiaries made with the proceeds of Other Currency Advances. Notwithstanding anything to the contrary contained herein, the Non-U.S. Borrower Obligations shall not include

 

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any Credit Extensions actually made to any Person that is not a Non-U.S. Borrower and Non-U.S. Borrower Obligations, with respect to any Person, shall exclude any obligations that would constitute unlawful financial assistance prohibited by Section 151 of the English Companies Act 1985.

 

“Non-U.S. Subsidiary” means any Subsidiary which is not a U.S. Subsidiary.

 

“Notes” means the Swing Line Note, the Other Currency Notes and the promissory notes of the U.S. Borrowers, substantially in the form of Exhibit A hereto, evidencing the obligation of the U.S. Borrowers to repay the Revolving Advances, together with all amendments, consolidations, modifications, renewals and supplements thereto and “Note” means any one of such Notes.

 

“Notice of Borrowing” has the meaning set forth in Section 2.02.

 

“Obligations” means the collective reference to all indebtedness, obligations and liabilities to the Administrative Agent, the Issuing Banks, the Other Currency Lenders, the Swing Line Lender and the Banks, existing on the date of this Agreement or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, of the Loan Parties under this Agreement, the Letter of Credit Agreements or any other Loan Document; provided that in no event shall term “Obligations” include (i) the loan evidenced by that certain $7,350,000 promissory note dated July 28, 2000 made by 4100 Quest, LLC and payable to BB&T; (ii) the loan evidenced by that certain $506,000 promissory note dated January 8, 2001 made by ScanSource, Inc. and payable to BB&T; and (iii) the loan evidenced by that certain $1,750,000 promissory note dated October 4, 1996 made by ScanSource, LLC and serviced by Wachovia.

 

“Officer’s Certificate” has the meaning set forth in Section 3.01(f).

 

“Organic Document” means, relative to any Loan Party, as applicable, its articles or certificate of incorporation, by-laws, memorandum of association, articles of association, certificate of change of name, certificate of partnership, partnership agreement, articles or organization, certificate of formation, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar arrangements applicable to any of such Loan Party’s partnership interests, limited liability company interests or authorized shares of Capital Securities.

 

“Original Credit Agreement” means that certain Credit Agreement, dated as of July 26, 2001, between the Company, the Guarantors, the Revolving Advance Lenders and Branch Banking and Trust Company of South Carolina, as Agent, as modified by that certain First Amendment to Credit Agreement, dated June 15, 2002, that certain Second Amendment to Credit Agreement dated October 31, 2002, that certain Third Amendment to Credit Agreement dated August 6, 2003 and that certain Fourth Amendment to Credit Agreement dated October 8, 2003. This Agreement amends, restates and replaces the Original Credit Agreement.

 

“Other Currency” means Sterling, Euros, Canadian Dollars, Swedish Krona, Swiss Francs, Japanese Yen, Australian Dollars or any other immediately available and freely transferable and convertible currency acceptable to the Other Currency Lenders and the Administrative Agent.

 

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“Other Currency Advance” means an advance made to the Borrowers under this Agreement pursuant to Section 2.16 denominated in an Other Currency or an Other Currency Overdraft Advance.

 

“Other Currency Advance Exposure” shall mean with respect to any Bank at any time, such Bank’s Pro Rata Facility Share of the Dollar Equivalent amount of the aggregate amount of all Other Currency Advances outstanding at such time.

 

“Other Currency Borrowing” means a borrowing hereunder consisting of Other Currency Advances (other than Other Currency Overdraft Advances) made in an Other Currency to the Non-U.S. Borrowers by the Other Currency Lenders pursuant to Section 2.16.

 

“Other Currency Commitment” means with respect to an Other Currency Lender, (i) the amount set forth opposite the name of such Other Currency Lender on the signature page hereof as its Other Currency Commitment; or (ii) as to any Other Currency Lender which enters into an Assignment and Acceptance (whether as transferor Other Currency Lender or as assignee thereunder), the amount of such Other Currency Lender’s Other Currency Commitment after giving effect to such Assignment and Acceptance, or (iii) as to any Other Currency Lender which agrees to increase its Other Currency Commitment pursuant to Section 2.16(a)(2), the amount of such Other Currency Commitment after giving effect to such increase, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.

 

“Other Currency Issuing Bank” shall mean Wachovia.

 

“Other Currency Lender” shall mean each Bank listed on the signature pages hereof as having an Other Currency Commitment and their respective successors and assigns.

 

“Other Currency Lender Participation Share” of any amount means, at any time, the product of such amount times a fraction the numerator of which is the amount of the Other Currency Lender’s Facility Commitment at such time and the denominator of which is the aggregate amount of the Facility Commitments of the Other Currency Lender and BB&T at such time; provided that if the Facility Commitments are no longer in effect, the Other Currency Lender Participation Share shall be calculated at the moment immediately prior to such Facility Commitments not being in effect.

 

“Other Currency Letter of Credit” means the letters of credit issued by the Other Currency Issuing Bank pursuant to Section 2.19(a) and “Other Currency Letter of Credit” means any one of such Other Currency Letters of Credit, as any of such letters of credit may be extended, renewed, replaced or amended from time to time.

 

“Other Currency Letter of Credit Advance” means an advance made by the Other Currency Issuing Bank pursuant to Section 2.19(c).

 

“Other Currency Letter of Credit Agreement” means any agreement entered into by the Borrowers and the Other Currency Issuing Bank pursuant to which a Other Currency Letter of Credit is issued, as amended, modified or restated from time to time.

 

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“Other Currency Letter of Credit Commitment” means, with respect to each Bank, (i) the amount designated as the Other Currency Letter of Credit Commitment set forth opposite the name of such Bank on the signature pages hereof, or (ii) as to any Bank which enters into an Assignment and Acceptance (whether as transferor Bank or as Assignee thereunder), the amount of such Bank’s Other Currency Letter of Credit Commitment after giving effect to such Assignment and Acceptance, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.

 

“Other Currency Note” means the promissory note of the Borrowers, substantially in the form of Exhibit E hereto, evidencing the obligation of the Borrowers to repay the Other Currency Advances, together with all amendments, consolidations, modifications, renewals and supplements thereto.

 

“Other Currency Overdraft Advance” means an Advance made to the Company and the Non-U.S. Borrowers pursuant to the terms of the Other Currency Overdraft Facility Letter denominated in an Other Currency.

 

“Other Currency Overdraft Facility Letter” means the other currency overdraft facility letter dated on or about the date hereof and entered into by the Company and the Non-U.S. Borrowers and Wachovia pursuant to which the Other Currency Lender agrees to make available to the Company and the Non-U.S. Borrowers up to a Dollar Equivalent Amount of $500,000 (subject to such amount being altered from time to time pursuant to the terms thereof) provided that such amount shall from time to time be reduced to the extent that there is not at least a Dollar Equivalent Amount of available undrawn Other Currency Commitment to make Other Currency Advances under this Agreement.

 

“Other Currency Quotation Date” means:

 

(a) in relation to any Interest Period or other period for an Other Currency Advance or other sum denominated in euros, the second Euro-Dollar Business Day before the first day of that Interest Period or other such period; and

 

(b) in relation to any Interest Period or other period for an Other Currency or other sum denominated in a currency other than euros, the day on which interest rate quotations are ordinarily given by banks for delivery on the first day of the Interest Period or other such period;

 

“Other Currency Undrawn Amount” means, with respect to any Other Currency Letter of Credit, at any time, the maximum amount available to be drawn under such Other Currency Letter of Credit at such time and “Other Currency Undrawn Amounts” means, at any time, the sum of all Other Currency Undrawn Amounts at such time.

 

“Other Revolving Advance Lenders” means each Revolving Advance Lender other than BB&T.

 

“Participant” has the meaning set forth in Section 9.07(b).

 

“Participation Excess” has the meaning set forth in Section 2.02(e).

 

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“Participation Share” of any Participation Excess means, with respect to any Other Revolving Advance Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Other Revolving Advance Lender’s Facility Commitment at such time and the denominator of which is the aggregate amount of the Facility Commitments of all of the Other Revolving Advance Lenders at such time; provided that if the Facility Commitments are no longer in effect, the Participant Share shall be calculated at the moment immediately prior to such Facility Commitment not being in effect.

 

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

“Permitted Investments” means (a) (i) direct obligations of the Governments of the United States, United Kingdom, Germany, France or Belgium maturing within one year, (ii) certificates of deposit issued by a commercial bank whose credit is satisfactory to the Administrative Agent, (iii) commercial paper rated A-1 or the equivalent thereof by Standard & Poor’s Corporation or P-1 or the equivalent thereof by Moody’s Investors Service, Inc. and in either case maturing within 6 months after the date of acquisition, and (iv) tender bonds the payment of the principal of and interest on which is fully supported by a letter of credit issued by a bank whose long-term certificates of deposit are rated at least AA or the equivalent thereof by Standard & Poor’s Corporation and Aa or the equivalent thereof by Moody’s Investors Service, Inc.; and (b) other investments of equal quality and equivalent maturity available to investors in the European markets.

 

“Person” means an individual, a corporation, a limited liability company, a partnership (including without limitation, a joint venture), an unincorporated association, a trust or any other entity or organization, including, but not limited to, a government or political subdivision or an agency or instrumentality thereof.

 

“Plan” means at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either (i) maintained by a member of the Controlled Group for employees of any member of the Controlled Group or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding 5 plan years made contributions.

 

“Pledge Agreement” means collectively the Pledge Agreement(s), executed by the Pledgors for the benefit of the Administrative Agent, as agent for the Secured Parties, in accordance with Section 5.26.

 

“Pledgors” means the pledgor(s) under the Pledge Agreement, either collectively or individually, as the context shall require.

 

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“Prime Rate” refers to that interest rate so denominated and set by BB&T from time to time as an interest rate basis for borrowings. The Prime Rate is but one of several interest rate bases used by BB&T. BB&T lends at interest rates above and below the Prime Rate.

 

“Prime Rate Loan” means the Loan (or portions thereof) during Interest Periods when the Loan bears or is to bear interest at a rate based upon the Prime Rate.

 

“Pro Rata Facility Share” of any amount means, with respect to any Bank at any time, the product of such amount times a fraction the numerator of which is the amount of such Bank’s Facility Commitment at such time and the denominator of which is the aggregate amount of the Facility Commitments of all of the Banks at such time; provided that if the Facility Commitments are no longer in effect, the Pro Rata Facility Share shall be calculated at the moment immediately prior to such Facility Commitments not being in effect.

 

“Pro Rata Revolving Advance Share” of any amount means, with respect to any Revolving Advance Lender at any time, the product of such amount times a fraction the numerator of which is the amount of such Revolving Advance Lender’s Revolving Advance Commitment at such time and the denominator of which is the aggregate amount of the Revolving Advance Commitments of all of the Revolving Advance Lenders at such time; provided that if the Revolving Advance Commitments are no longer in effect, the Pro Rata Revolving Advance Share shall be calculated at the moment immediately prior to such Facility Commitments not being in effect.

 

“Properties” means all real property owned, leased or otherwise used or occupied by a Loan Party or any Subsidiary of a Loan Party, wherever located.

 

“Quarterly Payment Date” means March 31, June 30, September 30 and December 31 of each year.

 

“Rate Determination Date” has the meaning set forth in Section 2.06(a).

 

“Receivables” shall have the meaning assigned to the term “Accounts” in the Security Agreement.

 

“Redeemable Preferred Stock” of any Person means any preferred stock issued by such Person which is at any time prior to the Termination Date either (i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or (ii) redeemable at the option of the holder thereof.

 

“Required Banks” means at any time Banks having at least 66  ² / 3 % of the aggregate amount of the Facility Commitments or, if the Facility Commitments are no longer in effect, Banks holding at least 66  ² / 3 % of the aggregate outstanding principal amount of the Revolving Advances, Letter of Credit Facility Exposure, Swing Line Exposure and Other Currency Advance Exposure.

 

“Required Revolving Advance Lenders” means at any time Revolving Advance Lenders having at least 66  ² / 3 % of the aggregate amount of the Revolving Advance Commitments or, if the Revolving Advance Commitments are no longer in effect, Revolving Advance Lenders holding at least 66  ² / 3 % of the aggregate outstanding principal amount of the Revolving Advances, Swing Line Exposure, U.S. Dollar Letter of Credit Advances and U.S. Dollar Undrawn Amounts.

 

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“Requirement of Law” shall mean, with respect to any Person, the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person and any statute, law, treaty, rule, regulation, order, decree, writ, injunction or determination of any arbitrator or court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject or otherwise pertaining to any or all of the transactions contemplated by this Agreement and the other Credit Documents.

 

“Restatement Effective Date” means July 16, 2004.

 

“Restricted Payment” means (i) any dividend or other distribution on any shares of the Company’s capital stock (except dividends payable solely in shares of its capital stock) or (ii) any payment on account of the purchase, redemption, retirement or acquisition of (a) any shares of the Company capital stock (except shares acquired upon the conversion thereof into other shares of its capital stock) or (b) any option, warrant or other right to acquire shares of the Company ‘s capital stock.

 

“Revolving Advance” shall mean an advance made to the U.S. Borrowers under this Agreement pursuant to Section 2.01 in Dollars. A Revolving Advance is a “Prime Rate Advance” if such Revolving Advance is part of a Prime Rate Borrowing or a “Euro-Dollar Advance” if such Revolving Advance is part of a Euro-Dollar Borrowing.

 

“Revolving Advance Commitment” means, with respect to each Revolving Advance Lender, (i) the amount set forth opposite the name of such Revolving Advance Lender on the signature pages hereof as its Revolving Advance Commitment, or (ii) as to any Revolving Advance Lender which enters into an Assignment and Acceptance (whether as transferor Revolving Advance Lender or as assignee thereunder), the amount of such Revolving Advance Lender’s Revolving Advance Commitment after giving effect to such Assignment and Acceptance, or (iii) as to any Revolving Advance Lender which agrees to increase its Revolving Advance Commitment pursuant to Section 2.01(b) and (c), the amount of such Revolving Advance Lender’s Revolving Advance Commitment after giving effect to such increase, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.

 

“Revolving Advance Lender” shall mean each Bank listed on the signature pages hereof as having a Revolving Advance Commitment and their respective successors and assigns; provided, that unless the context otherwise requires, each reference herein to a Revolving Advance Lender shall be deemed to include a conduit lender.

 

“Revolving Advance Lender Letter of Credit Exposure” shall mean with respect to any Revolving Advance Lender at any time, such Revolving Advance Lender’s Pro Rata Revolving Advance Share of the sum of (i) the aggregate U.S. Dollar Undrawn Amounts at such time; and (ii) the aggregate amount of all U.S. Dollar Letter of Credit Advances outstanding at such time.

 

“Secured Parties” shall have the meaning set forth in the Security Agreement.

 

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“Security Agreement” means that certain Amended and Restated General Security Agreement dated of even date herewith, by and between the U.S. Borrowers and Guarantors for the benefit of the Administrative Agent, as agent for the Secured Parties.

 

“Spot Rate” for any Other Currency means the rate quoted by an Other Currency Lender selected by the Administrative Agent as the spot rate for the purchase by such Other Currency Lender of such Other Currency with Dollars through its foreign exchange trading office at approximately 11:00 a.m. (London time) on the date two Euro-Dollar Business Days prior to the date as of which the foreign exchange computation is made.

 

“Sterling” and “£” mean the lawful currency of the United Kingdom of Great Britain and Northern Ireland.

 

“Stockholders’ Equity” means, at any time, the shareholders’ equity of the Company and its Consolidated Subsidiaries, as set forth or reflected on the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable Preferred Stock of the Company or any of its Consolidated Subsidiaries. Shareholders’ equity generally would include, but not be limited to (i) the par or stated value of all outstanding Capital Securities, (ii) capital surplus, (iii) retained earnings, and (iv) various deductions such as (A) purchases of treasury stock, (B) receivables due from an employee stock ownership plan, (C) employee stock ownership plan debt guarantees, and (D) translation adjustments for foreign currency transactions.

 

“Subsidiary” means, with respect to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person. Unless otherwise specified a reference herein to a Subsidiary shall mean a Subsidiary of the Company.

 

“Swedish Krona” means the lawful currency of the Kingdom of Sweden as in effect from time to time.

 

“Swing Line Advance” means an advance made by the Swing Line Lender pursuant to Section 2.15 hereof.

 

“Swing Line Exposure” shall mean, with respect to any Revolving Advance Lender at any time, such Revolving Advance Lender’s Pro Rata Revolving Advance Share of the aggregate amount of all Swing Line Advances outstanding at such time.

 

“Swing Line Lender” means BB&T.

 

“Swing Line Note” means the promissory note of the U.S. Borrowers, substantially in the form of Exhibit M hereto, evidencing the obligation of the U.S. Borrowers to repay the Swing Line Advance, together with all amendments, consolidations, modifications, renewals and supplements thereto.

 

“Swiss Francs” means the lawful currency of the Swiss Confederation as in effect from time to time.

 

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“TARGET” means the Trans-European Automated Real-time Gross Settlement Express Transfer System.

 

“TARGET Day” means a day on which TARGET is operating.

 

“Taxes” has the meaning set forth in Section 2.12(c).

 

“Termination Date” means July 31, 2008.

 

“Textron Intercreditor Agreement” shall mean that certain Intercreditor Agreement dated July 26, 2001, by and between the Administrative Agent and Textron Financial Corporation, either as originally executed or as it may be from time to time supplemented, modified, amended, renewed or extended, as the context shall require.

 

“Total Liabilities” means, at any time, the total liabilities of the Company and its Consolidated Subsidiaries, determined on a consolidated basis, as set forth or reflected on the most recent consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared in accordance with GAAP; provided that Total Liabilities shall not include any preferred stock that is not Redeemable Preferred Stock.

 

“Total Unused Commitments” means at any date, an amount equal to: (A) the aggregate amount of the Facility Commitments of all of the Banks at such time, less (B) the sum of: (i) the aggregate outstanding principal amount of the Advances of all of the Banks at such time; (ii) the aggregate outstanding principal amount of all Letter of Credit Advances; (iii) the aggregate outstanding principal amount of all Swing Line Advances; (iv) the aggregate outstanding principal amount of the Dollar Equivalent of all Other Currency Advances; and (v) the aggregate outstanding principal amount of all Undrawn Amounts.

 

“Transferee” has the meaning set forth in Section 9.07(d).

 

“type” means, relative to the Loan, the portion thereof, if any, being maintained as a Euro-Dollar Loan or a Prime Rate Loan.

 

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of South Carolina; provided that if, with respect to any financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Administrative Agent pursuant to the applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than South Carolina, UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Loan Document and any financing statement relating to such perfection or effect of perfection or non-perfection.

 

“UCC Recording Office” means those certain locations and recording offices set forth on Schedule 1.01 - Collateral Locations, under the heading “UCC Recording Office”.

 

“Undrawn Amounts” means collectively the aggregate U.S. Dollar Undrawn Amounts and the aggregate Dollar Equivalent of Other Currency Undrawn Amounts.

 

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“Unused Commitment” means at any date: (1) with respect to any Other Revolving Advance Lender, an amount equal to its Facility Commitment less the sum of: (i) the aggregate outstanding principal amount of its Revolving Advances (excluding Swing Line Advances); (ii) such Revolving Advance Lender’s Pro Rata Facility Share of the aggregate outstanding principal amount of all U.S. Dollar Letter of Credit Advances; (iii) such Revolving Advance Lender’s Pro Rata Facility Share of the U.S. Dollar Undrawn Amounts; and (iv) the aggregate principal amount of the participations in Revolving Advances held by such Revolving Advance Lender pursuant to Section 2.02(e) hereof); (2) with respect to BB&T, an amount equal to its Facility Commitment less the sum of: (i) the aggregate outstanding principal amount of its Revolving Advances (excluding Swing Line Advances) less the aggregate principal amount of the participations in such Revolving Advances sold to other Banks pursuant to Section 2.02(e) hereof; (ii) BB&T’s Pro Rata Facility Share of the aggregate outstanding principal amount of all U.S. Dollar Letter of Credit Advances; and (iii) BB&T’s Pro Rata Facility Share of the U.S. Dollar Undrawn Amounts; and (3) with respect to any Other Currency Lender an amount equal to its Facility Commitment less the sum of: ( i) the aggregate outstanding principal amount of the Dollar Equivalent of all Other Currency Advances; (ii) the aggregate outstanding principal amount of the Dollar Equivalent of all Other Currency Letter of Credit Advances; (iii) the aggregate outstanding principal amount of the Dollar Equivalent of the Other Currency Undrawn Amounts; and (iv) the aggregate principal amount of the participations in Revolving Advances held by such Other Currency Lender pursuant to Section 2.02(e) hereof.

 

“U.S. Borrowers” means collectively: (i) the Company; (ii) Netpoint; (iii) each Consolidated Subsidiary that executes and delivers a New Borrower Joinder Agreement, as a U.S. Borrower pursuant to Section 2.20(a); and (iv) the respective successors and permitted assigns of the foregoing. “U.S. Borrower” means any one of such U.S. Borrowers.

 

“U.S. Dollar Issuing Bank” shall mean BB&T.

 

“U.S. Dollar Letters of Credit” means the letters of credit issued by the U.S. Dollar Issuing Bank pursuant to Section 2.03(a) and “U.S. Dollar Letter of Credit” means any one of such U.S. Dollar Letters of Credit, as any of such letters of credit may be extended, renewed, replaced or amended from time to time.

 

“U.S. Dollar Letter of Credit Advance” means an advance made by the U.S. Dollar Issuing Bank pursuant to Section 2.03(c).

 

“U.S. Dollar Letter of Credit Agreement” means any agreement entered into by the U.S. Borrowers and the U.S. Dollar Issuing Bank pursuant to which a U.S. Dollar Letter of Credit is issued, as amended, modified or restated from time to time.

 

“U.S. Dollar Letter of Credit Commitment” means, with respect to each Bank, (i) the amount designated as the U.S. Dollar Letter of Credit Commitment set forth opposite the name of such Bank on the signature pages hereof, or (ii) as to any Bank which enters into an Assignment and Acceptance (whether as transferor Bank or as assignee thereunder), the amount of such Bank’s U.S. Dollar Letter of Credit Commitment after giving effect to such Assignment and Acceptance, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.

 

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“U.S. Dollar Undrawn Amount” means, with respect to any U.S. Dollar Letter of Credit, at any time, the maximum amount available to be drawn under such U.S. Dollar Letter of Credit at such time and “U.S. Dollar Undrawn Amounts” means, at any time, the sum of all U.S. Dollar Undrawn Amounts at such time.

 

“U.S. Subsidiary” means any Subsidiary which is organized under the laws of any state or territory of the United States of America.

 

“Wachovia” means Wachovia Bank, National Association, and its successors and assigns.

 

“Wholly Owned Subsidiary” means any Subsidiary all of the shares of capital stock or other ownership interests of which (except directors’ qualifying shares) are at the time directly or indirectly owned by the Company.

 

SECTION 1.02. Accounting Terms and Determinations . Unless otherwise specified herein, all terms of an accounting character used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP, applied on a basis consistent (except for changes concurred in by the Company’s independent public accountants or otherwise required by a change in GAAP) with the most recent audited consolidated financial statements of the Company and its Consolidated Subsidiaries delivered to the Banks, unless with respect to any such change concurred in by the Company’s independent public accountants or required by GAAP, in determining compliance with any of the provisions of this Agreement or any of the other Loan Documents: (i) the Company shall have objected to determining such compliance on such basis at the time of delivery of such financial statements, or (ii) the Required Banks shall so object in writing within 30 days after the delivery of such financial statements, in either of which events such calculations shall be made on a basis consistent with those used in the preparation of the latest financial statements as to which such objection shall not have been made (which, if objection is made in respect of the first financial statements delivered under Section 5.01 hereof, shall mean the financial statements referred to in Section 4.04).

 

SECTION 1.03. Use of Defined Terms . All terms defined in this Agreement shall have the same meanings when used in any of the other Loan Documents, unless otherwise defined therein or unless the context shall otherwise require.

 

SECTION 1.04. Terminology . All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural and the plural shall include the singular. Titles of Articles and Sections in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.

 

SECTION 1.05. References . Unless otherwise indicated, references in this Agreement to “Articles”, “Exhibits”, “Schedules”, and “Sections” are references to articles, exhibits, schedules and sections hereof.

 

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ARTICLE II

 

THE CREDITS

 

SECTION 2.01. Commitments to Make Revolving Advances . (a) Each Revolving Advance Lender severally agrees, on the terms and conditions set forth herein, to make Revolving Advances to the U.S. Borrowers from time to time before the Termination Date; provided that, immediately after each such Revolving Advance is made: (1) the aggregate outstanding principal amount of Revolving Advances by each Other Revolving Advance Lender together with: (i) such Other Revolving Advance Lender’s Pro Rata Revolving Advance Share of the aggregate outstanding principal amount of all U.S. Dollar Letter of Credit Advances, Swing Line Advances and U.S. Dollar Undrawn Amounts, and (ii) the aggregate principal amount of the participations in Revolving Advances and U.S. Dollar Letter of Credit Advances held by such Other Revolving Advance Lender pursuant to Section 2.02(e) hereof shall not exceed the amount of its Revolving Advance Commitment; (2) the aggregate principal amount of all Revolving Advances, together with the aggregate principal amount of all Letter of Credit Advances, Swing Line Advances, the Dollar Equivalent of Other Currency Advances and Undrawn Amounts, shall not exceed the aggregate amount of the Facility Commitments of all of the Banks at such time; (3) the aggregate outstanding principal amount of all Revolving Advances by BB&T together with BB&T’s Pro Rata Revolving Advance Share of the aggregate outstanding principal amount of all U.S. Dollar Letter of Credit Advances, Swing Line Advances, and U.S. Dollar Undrawn Amounts shall not exceed the amount of BB&T’s Revolving Advance Commitment; and (4) the aggregate outstanding principal amount of all Revolving Advances by BB&T (less the aggregate principal amount of the participations in such amounts held by (or which can be sold upon BB&T’s request to) other Banks pursuant to Section 2.02(e) hereof) together with BB&T’s Pro Rata Revolving Advance Share of the aggregate outstanding principal amount of all U.S. Dollar Letter of Credit Advances, Swing Line Advances and U.S. Dollar Undrawn Amounts (less the aggregate principal amount of the participations in such amounts held by (or which can be sold upon BB&T’s request to) other Banks pursuant to Section 2.02(e) hereof) shall not exceed the amount of BB&T’s Facility Commitment. Except as otherwise provided in an ACL Agreement, each Dollar Borrowing under this Section shall be in an aggregate principal amount of $500,000 or any larger multiple of $500,000 (except that any such Dollar Borrowing may be in the aggregate amount of the Total Unused Commitments) and shall be made from the several Revolving Advance Lenders ratably in proportion to their respective Revolving Advance Commitments. Within the foregoing limits, the U.S. Borrowers may borrow under this Section, repay or, to the extent permitted by Section 2.10, prepay Revolving Advances and reborrow under this Section at any time before the Termination Date.

 

(b) Subject to the terms and conditions set forth herein, the Borrowers shall have the right, at any time and from time to time from the Restatement Effective Date until the Termination Date, to increase the total Revolving Advance Commitments (together with a corresponding increase in the Facility Commitment) in an amount of at least $5,000,000 (or any larger multiple of $1,000,000) but not to exceed $30,000,000 (for a total maximum Revolving Advance Commitment (and Facility Commitment), assuming no reductions, of $130,000,000) in the aggregate. The following terms and conditions shall apply to any such increase: (i) any such increase shall be obtained from existing Revolving Advance Lenders or from other banks or other financial institutions, in each case in accordance with the terms set forth below, (ii) the Revolving Advance Commitment of any Revolving Advance Lender may not be increased

 

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without the prior written consent of such Revolving Advance Lender, (iii) any increase in the aggregate Revolving Advance Commitments shall be in a minimum principal amount of $5,000,000, (iv) the Loan Parties and Banks shall execute an acknowledgement in form and content satisfactory to the Administrative Agent to reflect the revised Revolving Advance Commitments (the Banks do hereby agree to execute such acknowledgement unless the acknowledgement purports to increase the Commitment of a Bank without such Bank’s consent), (v) the Borrowers shall execute such Notes as are necessary to reflect the increase in the Revolving Advance Commitments, (vi) if any Revolving Advances are outstanding at the time of any such increase, the Borrowers shall make such payments and adjustments on the Revolving Advances as necessary to give effect to the revised commitment percentages and outstandings of the Revolving Advance Lenders, and (vii) the conditions set forth in Section 3.02 shall be true and correct. The amount of any increase in the Revolving Advance Commitments hereunder may be offered by the Borrowers first to banks and financial institutions that are not a party to this Agreement as a Revolving Advance Lender (a “New Revolving Advance Financial Institution”) so long as such New Revolving Advance Financial Institution is approved by the Administrative Agent (such approval not to be unreasonably withheld) and the Revolving Advance Commitment of any such New Revolving Advance Financial Institution (and the amount of the additional commitments requested by the Borrowers which are allocated to the Revolving Advance Lenders then party to this Agreement) shall be acceptable to the Borrowers and the Administrative Agent. Any such New Financial Institution shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrowers may reasonably request.

 

(c) Upon written request of the Borrowers, which shall be made in writing and delivered to the Administrative Agent on a Domestic Business Day after the Borrowers’ exercise of the rights provided in Section 2.01(b) and no fewer than 45 days prior to the proposed effective date, the Revolving Advance Lenders and the Administrative Agent in their sole and absolute discretion may (but shall not be obligated to) increase the total Revolving Advance Commitments (together with a corresponding increase in the Facility Commitment) in an aggregate amount not to exceed $20,000,000. The terms of any increase in the total Revolving Advance Commitments shall be independently negotiated among the Borrowers, the Revolving Advance Lenders and the Administrative Agent at the time of the Borrowers’ request, provided that the terms of the extension may be the same as those in effect prior to any increase should the Borrowers, the Revolving Advance Lenders and the Administrative Agent so agree; provided , further , that should the terms of the increase be other than those in effect prior to the increase, then the Loan Documents shall be amended to the extent necessary to incorporate any such different terms. In the event that a Revolving Advance Lender chooses to increase its Revolving Advance Commitment, notice shall be given by such Revolving Advance Lender to the Borrowers and the Administrative Agent at least 15 days prior to the effective date proposed by the Borrowers; provided that the Revolving Advance Commitments shall not be increased with respect to any of the Revolving Advance Lenders (regardless of whether any relevant Revolving Advance Lender has delivered a favorable increase notice) unless the Required Revolving Advance Lenders have delivered favorable increase notices and are willing to increase the total Revolving Advance Commitments (together with a corresponding increase in the Facility Commitment) or have delivered written consents to such increase in the total Revolving Advance Commitments (together with a corresponding increase in the Facility Commitment).

 

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SECTION 2.02. Method of Borrowing Advances . (a) Except as otherwise provided in an ACL Agreement, Section 2.15 in the case of Swing Line Advances and Section 2.16 in the case of Other Currency Advances (other than Other Currency Overdraft Advances), the U.S. Borrowers shall give the Administrative Agent notice in the form attached hereto as Exhibit B (a “Notice of Borrowing”) prior to 11:00 A.M. (Greenville, South Carolina time) on the Domestic Business Day of each Dollar Borrowing, specifying:

 

(i) the date of such Dollar Borrowing; and

 

(ii) the aggregate amount of such Dollar Borrowing.

 

(b) Except as provided in Section 2.02(d) of this Agreement, upon receipt of a Notice of Dollar Borrowing, the Administrative Agent shall promptly notify each Revolving Advance Lender of the contents thereof and of such Revolving Advance Lender’s ratable share of such Dollar Borrowing and such Notice of Dollar Borrowing shall not thereafter be revocable by the U.S. Borrowers.

 

(c) Except as provided in Section 2.02(d) of this Agreement, not later than 1:00 P.M. (Winston-Salem, North Carolina time) on the date of each Dollar Borrowing, each Revolving Advance Lender shall (except as provided in subsection (d) of this Section) make available its ratable share of such Dollar Borrowing, in Federal or other funds immediately available in Winston-Salem, North Carolina, to the Administrative Agent at its address referred to in or specified pursuant to Section 9.01. Unless the Administrative Agent determines that any applicable condition specified in Article III has not been satisfied, the Administrative Agent will make the funds so received from the Revolving Advance Lenders available to the U.S. Borrowers at the Administrative Agent’s address in Greenville, South Carolina not later than 2:00 p.m. (Greenville, South Carolina time). Unless the Administrative Agent receives notice from a Revolving Advance Lender, at the Administrative Agent’s address referred to in Section 9.01, no later than 4:00 P.M. (local time at such address) on the Domestic Business Day before the date of a Dollar Borrowing stating that such Revolving Advance Lender will not make a Revolving Advance in connection with such Dollar Borrowing, the Administrative Agent shall be entitled to assume that such Revolving Advance Lender will make a Revolving Advance in connection with such Dollar Borrowing and, in reliance on such assumption, the Administrative Agent may (but shall not be obligated to) make available such Revolving Advance Lender’s ratable share of such Dollar Borrowing to the U.S. Borrowers for the account of such Revolving Advance Lender. If the Administrative Agent makes such Revolving Advance Lender’s ratable share available to the U.S. Borrowers and such Revolving Advance Lender does not in fact make its ratable share of such Dollar Borrowing available on such date, the Administrative Agent shall be entitled to recover such Revolving Advance Lender’s ratable share from such Revolving Advance Lender or the U.S. Borrowers (and for such purpose shall be entitled to charge such amount to any account of any U.S. Borrower maintained with the Administrative Agent), together with interest thereon for each day during the period from the date of such Dollar Borrowing until such sum shall be paid in full at a rate per annum equal to the rate set forth in Section 2.06 for each such day during such period, provided that any such payment by the U.S. Borrowers of such Revolving Advance Lender’s ratable share and interest thereon shall be without prejudice to any rights that the U.S. Borrowers may have against such Revolving Advance Lender. If such Revolving Advance Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Revolving Advance Lender’s Revolving Advance included in such Dollar Borrowing for purposes of this Agreement.

 

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(d) At the Administrative Agent’s option and to facilitate the efficient administration of this Agreement, the Administrative Agent shall be entitled to make settlements and adjustments on a weekly basis provided that: (1) all Dollar Borrowings, Revolving Advances and all payments of principal with respect to such Dollar Borrowings and Revolving Advances shall be shared by the Revolving Advance Lenders ratably in proportion to their Revolving Advance Commitments and in accordance with this Agreement; and (2) all funds advanced by the Administrative Agent under this Agreement and all funds received by the Administrative Agent under this Agreement shall be made or received, as the case may be, by the Administrative Agent, as agent on behalf of the Revolving Advance Lenders and shall not constitute separate loans or advances made by the Administrative Agent. Unless the Administrative Agent receives notice from a Revolving Advance Lender, at the Administrative Agent’s address referred to in Section 9.01, no later than 4:00 P.M. (local time at such address) on the Domestic Business Day before the date of a Dollar Borrowing stating that such Revolving Advance Lender will not make a Revolving Advance in connection with such Dollar Borrowing, the Administrative Agent may assume that each Revolving Advance Lender will make a Revolving Advance in connection with each Dollar Borrowing and, in reliance on such assumption, the Administrative Agent may make available such Revolving Advance Lender’s ratable share of such Dollar Borrowing to the U.S. Borrowers for the account of such Revolving Advance Lender. No later than 11:00 A.M. (Winston-Salem, North Carolina time) on Friday of each week the Administrative Agent shall advise each Revolving Advance Lender of its ratable share of the Dollar Borrowings and payments made or received by the Administrative Agent for the period ending on the immediately preceding Wednesday. No later than 2:00 P.M. (Winston-Salem, North Carolina time) on such Friday the Administrative Agent and Revolving Advance Lenders shall effect payments (and credits) so that all Dollar Borrowings, Revolving Advances and payments with respect to the Dollar Borrowings and U.S. Dollar Letters of Credit are shared by the Revolving Advance Lenders ratably; provided, however, at any time, upon the request of the Administrative Agent, each Revolving Advance Lender shall, make its ratable share of any Dollar Borrowing available to the Administrative Agent on demand but in no event later than one Domestic Business Day following the Administrative Agent’s demand; and (2) the Administrative Agent shall be entitled to recover such Revolving Advance Lender’s ratable share of each Dollar Borrowing from such Revolving Advance Lender, together with interest thereon for each day during the period from the date of any such demand until such sum shall be paid in full at a rate per annum equal to the rate set forth in Section 2.06. Each Revolving Advance Lender’s obligation under this Section 2.02(d) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Advance Lender or any other Person may have against the Administrative Agent requesting such adjustment or payment or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the termination of any Commitment (including, without limitation, any Facility Commitment, Revolving Advance Commitment or Other Currency Commitment) (whether by a Borrower pursuant to Section 2.08 or by the Administrative Agent pursuant to Section 6.01 or otherwise); (iii) any adverse change in the condition (financial or otherwise) of any Borrower, any Guarantor or any other Person; (iv) the failure to satisfy any condition set forth in Section 3.01, 3.02, 3.03 or 3.04; (v) any breach of this Agreement or any of the other Loan Documents by any Borrower, any Guarantor or any other Bank; or (vi) any other circumstance, happening or event whatsoever whether or not similar to any of the foregoing.

 

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(e) Participations in Revolving Advances Made by BB&T . (1) Subject to clause (2) below, at any time and from time to time, upon written demand by BB&T, with a copy to the Administrative Agent, the Other Currency Lender shall purchase from BB&T and BB&T shall sell to the Other Currency Lender, a participation interest in each Revolving Advance and each U.S. Dollar Letter of Credit Advance (after giving effect to the sale by BB&T of participations in such U.S. Dollar Letter of Credit Advance pursuant to Section 2.03(c)) equal to the Other Currency Lender Participation Share of each Revolving Advance and U.S. Dollar Letter of Credit Advance as of the date of such purchase.

 

(2) If any participation required to be purchased by the Other Currency Lender pursuant to clause (1) above would result in the sum of (A) the Other Currency Advances made by such Other Currency Lender plus (B) the Other Currency Lender’s Pro Rata Other Currency Share of the Other Currency Letters of Credit Advances and the Other Currency Undrawn Amounts to exceed the Other Currency Commitment of such Other Currency Lender (the amount of any such excess being hereinafter referred to as the “Participation Excess”), then (x) such Other Currency Lender shall not be required to purchase such participations to the extent of the Participation Excess and (y) each Other Revolving Advance Lender shall purchase from BB&T and BB&T shall sell to each Other Revolving Advance Lender, a participation interest in each Revolving Advance and each U.S. Dollar Letter of Credit Advance (after giving effect to the sale by BB&T of participations in such U.S. Dollar Letter of Credit Advance pursuant to Section 2.03(c)) equal to such Other Revolving Advance Lender’s Participation Share of the Participation Excess.

 

(3) In the event that any Other Currency Lender has purchased any participation pursuant to this Section 2.02(e) and thereafter any Borrower makes a request for a Other Currency Advance or for the issuance of an Other Currency Letter of Credit at a time when the making of such Other Currency Advance or the issuance of such Other Currency Letter of Credit would result in the creation of a Participation Excess, then upon written demand by such Other Currency Lender, with a copy to BB&T and the Administrative Agent, each Other Revolving Advance Lender shall purchase from such Other Currency Lender and such Other Currency Lender shall sell to each Other Revolving Advance Lender participations held by the Other Currency Lender in the Revolving Advances and the U.S. Dollar Letter of Credit Advance equal to such Other Revolving Advance Lender’s Participation Share of the Participation Excess; provided that: (1) the Administrative Agent may allocate among the Revolving Advance Lenders such participations in the Participation Excess as the Administrative Agent determines; and (2) BB&T shall have the option, but not an obligation, to purchase such portion of the Participation Excess as BB&T may elect.

 

(4) Any Bank required to purchase a participation pursuant to this Section 2.02(e), shall make available to the Administrative Agent for the account of BB&T or the Other Currency Lender, as the case may be, in Federal or other funds immediately available an amount equal to the Participation Share of the outstanding principal amount of such Revolving Advances and U.S. Dollar Letter of Credit Advances. Promptly after receipt thereof, the Administrative Agent shall transfer such funds to BB&T or the Other Currency Lender, as appropriate. The Borrowers hereby agree to each such sale and purchase of participation interests in Revolving

 

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Advances and U.S. Dollar Letter of Credit Advances outstanding from time to time. Each Bank agrees to purchase its participation interest in each outstanding Revolving Advance and U.S. Dollar Letter of Credit Advance on (i) the Domestic Business Day on which demand therefor is made by BB&T or the Other Currency Lender, as applicable, provided notice of such demand is given not later than 1:00 P.M. (Greenville, South Carolina time) on such Domestic Business Day or (ii) the first Domestic Business Day next succeeding the date of such demand if notice of such demand is given after 1:00 P.M. (Greenville, South Carolina time) on any Domestic Business Day. BB&T and the Other Currency Lender makes no representation or warranty and assumes no responsibility with respect to any sale and purchase of a participation interest by it in any Revolving Advance or U.S. Dollar Letter of Credit Advance. If and to the extent that any Bank required to purchase a participation pursuant to this Section 2.02(e) shall not have so made the amount available to the Administrative Agent in connection with its purchase of a participation interest in any Revolving Advance or U.S. Dollar Letter of Credit Advance, such Bank agrees to pay to BB&T or the Other Currency Lender, as the case may be, forthwith on demand such amount together with interest thereon, for each day from the date of demand by BB&T or the Other Currency Lender, until the date such amount is paid to BB&T or the Other Currency Lender, as the case may be, at the Federal Funds Rate for their own account.

 

(5) The obligation of the Other Revolving Advance Lenders and the Other Currency Lender to purchase a participation interest in each Revolving Advance and U.S. Dollar Letter of Credit Advance pursuant to this Section 2.02(e) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation: (i) any set off, counterclaim, recoupment, defense or other right which any Bank or any other Person may have against BB&T or the Other Currency Lender requesting such purchase or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the termination of any Commitment (including, without limitation, any Facility Commitment, Revolving Advance Commitment or Other Currency Commitment) (whether by a Borrower pursuant to Section 2.08 or by the Administrative Agent pursuant to Section 6.01 or otherwise); (iii) any adverse change in the condition (financial or otherwise) of any Borrower, any Guarantor or any other Person; (iv) the failure to satisfy any condition set forth in Section 3.01, 3.02, 3.03 or 3.04; (v) any breach of this Agreement or any other Loan Document by any Borrower, any Guarantor or any other Bank; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

(6) The failure of any Bank to purchase a participation interest required of it in any U.S. Dollar Letter of Credit Advance shall not relieve any other Bank of its obligation under Section 2.03(c) to purchase its participation interest in any U.S. Dollar Letter of Credit Advance on such date, but no Bank shall be responsible for the failure of any other Bank to so purchase a participation interest on such date.

 

(7) The Administrative Agent will promptly distribute to each Other Revolving Advance Lender and Other Currency Lender its ratable share of any payment of principal of or interest on any Revolving Advance and U.S. Dollar Letter of Credit Advance received by the Administrative Agent; provided, however, that in the event that such payment received by the Administrative Agent is required to be returned, the Other Revolving Advance Lender and Other Currency Lender will return to the Administrative Agent any portion thereof previously distributed by the Administrative Agent to it.

 

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SECTION 2.03. U.S. Dollar Letters of Credit .

 

(a) The U.S. Dollar Issuing Bank may, from time to time upon request of the U.S. Borrowers, in its sole discretion issue Letters of Credit denominated in Dollars for the account of the U.S. Borrowers, subject to satisfaction of the conditions referenced in Section 3.03.

 

(b) Each U.S. Dollar Letter of Credit shall be subject to the provisions of this Agreement and to the provisions set forth in the U.S. Dollar Letter of Credit Agreement executed by the U.S. Borrowers in connection with the issuance of such U.S. Dollar Letter of Credit. The U.S. Borrowers agree to promptly perform and comply with the terms and conditions of each Letter of Credit Agreement.

 

(c) The payment by the U.S. Dollar Issuing Bank of a draft drawn under any U.S. Dollar Letter of Credit shall constitute for all purposes of this Agreement a U.S. Dollar Letter of Credit Advance in the amount of such draft. Upon written demand by the U.S. Dollar Issuing Bank, with a copy to the Administrative Agent, each Revolving Advance Lender shall purchase from the U.S. Dollar Issuing Bank, and the U.S. Dollar Issuing Bank shall sell to each Revolving Advance Lender, a participation interest in such U.S. Dollar Letter of Credit Advance equal to such Revolving Advance Lender’s Pro Rata Revolving Advance Share of such U.S. Dollar Letter of Credit Advance as of the date of such purchase, by making available to the Administrative Agent for the account of the U.S. Dollar Issuing Bank, in Federal or other funds immediately available an amount equal to such Revolving Advance Lender’s Pro Rata Revolving Advance Share of the outstanding principal amount of such U.S. Dollar Letter of Credit Advance. Promptly after receipt thereof, the Administrative Agent shall transfer such funds to the U.S. Dollar Issuing Bank. The U.S. Borrowers hereby agree to each such sale and purchase of participation interests in U.S. Dollar Letter of Credit Advances outstanding from time to time. Each Revolving Advance Lender agrees to purchase its participation interest in an outstanding U.S. Dollar Letter of Credit Advance on (i) the Domestic Business Day on which demand therefor is made by the U.S. Dollar Issuing Bank, provided notice of such demand is given not later than 1:00 P.M. (Winston-Salem, North Carolina time) on such Domestic Business Day or (ii) the first Domestic Business Day next succeeding the date of such demand if notice of such demand is given after 1:00 P.M. (Winston-Salem, North Carolina time) on any Domestic Business Day. The U.S. Dollar Issuing Bank makes no representation or warranty and assumes no responsibility with respect to any sale and purchase of a participation interest in any U.S. Dollar Letter of Credit Advance. If and to the extent that any Revolving Advance Lender shall not have so made the amount available to the Administrative Agent in connection with its purchase of a participation interest in any U.S. Dollar Letter of Credit Advance, such Revolving Advance Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by the Issuing Bank, until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate for the account of the U.S. Dollar Issuing Bank.

 

(d) The obligation of each Revolving Advance Lender to purchase a participation interest in any U.S. Dollar Letter of Credit Advance pursuant to Section 2.03(c) shall be unconditional and absolute and shall not be affected by any circumstance, including, without limitation: (i) any setoff, counterclaim, recoupment, defense or other right which the Revolving Advance Lender or any other Person may have against BB&T requesting such

 

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purchase or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the termination of any Commitment (including, without limitation, any Facility Commitment, Revolving Advance Commitment or Other Currency Commitment) (whether by a Borrower pursuant to Section 2.08 or by the Administrative Agent pursuant to Section 6.01 or otherwise); (iii) any adverse change in the condition (financial or otherwise) of any Borrower, any Guarantor or any other Person; (iv) the failure to satisfy any condition set forth in Section 3.01, 3.02, 3.03 or 3.04; (v) any breach of this Agreement or any other Loan Document by any Borrower, any Guarantor or any other Bank; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

(e) The U.S. Dollar Issuing Bank shall furnish (A) to the Administrative Agent and each Bank on the tenth Domestic Business Day of each April, July, October and January, a written report summarizing the issuance and expiration dates of U.S. Dollar Letters of Credit issued during the preceding calendar quarter and (B) to the Administrative Agent and each Bank upon request a written report setting forth the aggregate U.S. Dollar Undrawn Amounts.

 

(f) The failure of any Revolving Advance Lender to purchase a participation interest in any U.S. Dollar Letter of Credit Advance shall not relieve any other Revolving Advance Lender of its obligation hereunder to purchase its participation interest in any U.S. Dollar Letter of Credit Advance on such date, but no Revolving Advance Lender shall be responsible for the failure of any other Revolving Advance Lender to so purchase a participation interest on such date.

 

(g) The U.S. Borrowers shall pay to the Administrative Agent for the account of each Revolving Advance Lender that has purchased a participation interest in a U.S. Dollar Letter of Credit Advance on the earlier of demand and the Termination Date the outstanding principal amount of such U.S. Dollar Letter of Credit Advance. The Administrative Agent will promptly distribute to each Revolving Advance Lender its ratable share of any payment of principal of or interest on any U.S. Dollar Letter of Credit Advance received by the Administrative Agent; provided, however, that in the event that such payment received by the Administrative Agent is required to be returned, such Revolving Advance Lender will return to the Administrative Agent any portion thereof previously distributed by the Administrative Agent to it.

 

(h) The U.S. Dollar Issuing Bank will notify the Borrower and the Administrative Agent promptly of the presentment for payment of any U.S. Dollar Letter of Credit, together with notice of the date such payment shall be made, and the Administrative Agent promptly will notify the Revolving Advance Lenders of such matters.

 

(i) In the event that the U.S. Dollar Issuing Bank makes any payment under any U.S. Dollar Letter of Credit, unless otherwise instructed by the U.S. Borrowers in writing on or before the date of such payment under the U.S. Dollar Letter of Credit, the U.S. Borrowers shall be deemed to have delivered a Notice of Borrowing to the Administrative Agent requesting a Dollar Borrowing pursuant to Section 2.02 on the date (and time) of such U.S. Dollar Letter of Credit Advance. The U.S. Borrowers hereby authorize each Revolving Advance Lender to make such Revolving Advance.

 

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SECTION 2.04. Notes . (a) The Revolving Advances of each Revolving Advance Lender shall be evidenced by a single Note payable to the order of such Revolving Advance Lender for the account of its Lending Office in an amount equal to the original principal amount of such Revolving Advance Lender’s Revolving Advance Commitment.

 

(b) (1) The Swing Line Advances made by the Swing Line Lender to the U.S. Borrowers shall be evidenced by a single Swing Line Note payable to the order of the Swing Line Lender; and (2) the Other Currency Advances made by the Other Currency Lender to the Borrowers (other than Other Currency Overdraft Advances) shall be evidenced by a single Other Currency Note payable to the order of the Other Currency Lender.

 

(c) Upon receipt of each Bank’s Note pursuant to Section 3.01, the Administrative Agent shall deliver such Note to such Bank. Each Bank shall record, and prior to any transfer of its Note shall endorse on the schedule forming a part thereof appropriate notations to evidence, the date, amount and maturity of, and effective interest rate for, each Advance made by it, the date and amount of each payment of principal made by the Borrowers with respect thereto and such schedule shall constitute rebuttable presumptive evidence of the principal amount owing and unpaid on such Bank’s Note; provided that the failure of any Bank to make, or any error in making, any such recordation or endorsement shall not affect the obligation of any Borrower hereunder or under the Note or the ability of any Bank to assign its Note. Each Bank is hereby irrevocably authorized by the Borrowers so to endorse its Note and to attach to and make a part of any Note a continuation of any such schedule as and when required.

 

SECTION 2.05. Maturity of Loans . (a) Each Revolving Advance included in any Dollar Borrowing and each Swing Line Advance shall mature, and the principal amount thereof shall be due and payable, subject to Section 6.01, on the Termination Date.

 

(b) Each Other Currency Advance shall mature, and the principal amount thereof shall be due and payable, subject to Section 6.01 , on the Termination Date.

 

SECTION 2.06. Interest Rates . (a) “Applicable Margin” shall be determined quarterly based upon the ratio of Consolidated Funded Debt (calculated as of the last day of each Fiscal Quarter) to Consolidated EBITDA (calculated as of the last day of each Fiscal Quarter for the Fiscal Quarter then ended and the immediately preceding three Fiscal Quarters), as follows:

 

 

The Applicable Margin shall be effective as of the date (herein, the “Rate Determination Date”) which is 45 days after the last day of the Fiscal Quarter as of the end of

 

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which the Ratio of Consolidated Funded Debt to Consolidated EBITDA is being determined, based on the quarterly financial statements for such Fiscal Quarter, and the Applicable Margin so determined shall remain effective from such Rate Determination Date until the date which is 45 days after the last day of the Fiscal Quarter in which such Rate Determination Date falls (which latter date shall be a new Rate Determination Date); provided that (i) for the period from and including the Restatement Effective Date to but excluding the Rate Determination Date next following the Restatement Effective Date, the Applicable Margin shall be .75% for a Euro-Dollar Loan and Letters of Credit, (ii) in the case of any Applicable Margin determined on the basis of the Ratio of Consolidated Funded Debt to Consolidated EBITDA for the fourth and final Fiscal Quarter of a Fiscal Year, the Applicable Margin for the period beginning on the Rate Determination Date immediately after the last day of such fourth and final Fiscal Quarter and continuing until the date which is 90 days after the last day of such final Fiscal Quarter (the “Adjustment Date”) shall be the Applicable Margin in effect on the last day of such final Fiscal Quarter but such Applicable Margin shall be adjusted on such Adjustment Date and thereafter until the next Rate Determination Date such Applicable Margin shall be determined based upon the annual audited financial statements for the Fiscal Year ended on the last day of such final Fiscal Quarter, (iii) if the Applicable Margin for the fourth and final Fiscal Quarter as determined on the Adjustment Date shall be different from the Applicable Margin for such date determined on the Rate Determination Date for such fourth Fiscal Quarter, such redetermined Applicable Margin shall be effective retroactive to the Rate Determination Date, and the Borrowers, the Administrative Agent and the Banks, as applicable, shall within 10 days of such redetermination, make a payment (in the case of amounts owing by the Borrowers to the Banks) or provide a credit applicable to future amounts payable by the Borrowers hereunder (in the case of amounts owing by the Banks to the Borrowers) equal to the difference between the interest and letter of credit fees actually paid under this Agreement and the interest and fees that would have been paid under this Agreement had the Applicable Margin as originally determined been equal to the Applicable Margin as redetermined; and (iv) if on any Rate Determination Date (or in the case of the fourth Fiscal Quarter, the Adjustment Date) the Company shall have failed to deliver to the Bank the financial statements required to be delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to such Rate Determination Date (or in the case of the fourth Fiscal Quarter, the Adjustment Date), then for the period beginning on such Rate Determination Date (and in the case of the fourth Fiscal Quarter, the Rate Determination Date immediately preceding the Adjustment Date) and ending on the earlier of (A) the date on which the Company shall deliver to the Banks the financial statements to be delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any subsequent Fiscal Quarter, or (B) the date on which the Company shall deliver to the Banks annual financial statements required to be delivered pursuant to Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal Quarter or any subsequent Fiscal Year, the Advances shall bear interest at a rate per annum determined as if the ratio of Consolidated Funded Debt to Consolidated EBITDA was more than 2.00 at all times during such period; provided that at the election of the Required Banks, the principal amount of the Advances shall bear interest at the Default Rate. Any change in the Applicable Margin on any Rate Determination Date shall result in a corresponding change, effective on and as of such Rate Determination Date, in the interest rate applicable to the Advances and in the fees applicable to each Letter of Credit outstanding on such Rate Determination Date; provided, that no Applicable Margin shall be decreased pursuant to this Section 2.06 if a Default is in existence on the Rate Determination Date.

 

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(b) During each Interest Period in which the Advances are a Prime Rate Loan, such Prime Rate Loan shall bear interest on the outstanding principal amount thereof, for each day during the applicable Interest Period, at a rate per annum equal to the Prime Rate for such day plus the Applicable Margin for Prime Rate Loans. Any overdue principal of and, to the extent permitted by applicable law, overdue interest on any Prime Rate Loan shall bear interest, payable on demand, for each day until paid in full at a rate per annum equal to the Default Rate.

 

(c) During each Interest Period in which the Advances are a Euro-Dollar Loan, such Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum of: (1) the Applicable Margin for Euro-Dollar Loans, plus (2) the applicable Adjusted Monthly Libor Index for such Interest Period. Any overdue principal of and, to the extent permitted by applicable law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on demand, for each day until paid in full at a rate per annum equal to the Default Rate.

 

The “Adjusted Monthly Libor Index” applicable to any Interest Period means a rate per annum equal to (A) in the case of a Euro-Dollar Loan denominated in Dollars: the quotient obtained (rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage; and (B) in the case of a Euro-Dollar Loan denominated in an Other Currency, the sum (rounded upward, if necessary to the next higher 1/100 ^th of 1%) of (i) the applicable London Interbank Offered Rate for such Interest Period, plus (ii) the Additional Costs.

 

The “London Interbank Offered Rate” applicable to any Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan the rate per annum determined on the basis of the rate for deposits in Dollars (of amounts selected by the Administrative Agent in its reasonable discretion) offered for a term comparable to such Interest Period, which rate appears, in the case of Dollars, on the display designated as Page “3750” of the Telerate Service and, in the case of Other Currency, the appropriate page of the Telerate screen which displays British Bankers Association Interest Settlement Rates for deposits in the relevant Other Currency (or in each case such other page or service as may replace such page on such service or system for the purpose of displaying rates) (or, in each case, if more than one rate appears on such screen, the arithmetic mean for all such rates rounded upward to the next higher 1/100 ^th of 1%) as the London interbank offered rate for deposits in the applicable currency at approximately 11:00 A.M. London time on: (i) in the case of a Revolving Advance or Swing Line Advance, the first day of such Interest Period or on the immediately preceding Euro-Dollar Business Day if the first day of such Interest Period is not a Euro-Dollar Business Day; and (ii) in the case of an Other Currency Advance (other than an Other Currency Overdraft Advance) two Euro-Dollar Business Days prior to the beginning of the Interest Period. If, for any reason, such rate does not appear on Telerate Page 3750, or the appropriate page of the Telerate screen which displays British Bankers Association Interest Settlement Rates for deposits in the relevant Other Currency, then the “London Interbank Offered Rate” shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in the relevant currency in which the applicable Euro-Dollar Loan is denominated would be offered by HSBC Bank plc, Barclays Bank plc, and Lloyds Bank Limited in the London interbank market to the Administrative Agent (or such Other Currency Lender as the Administrative Agent may specify) at approximately 11.00 AM London time (i) in the case of a Revolving Advance or Swing Line Advance, the first

 

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day of such Interest Period or on the immediately preceding Euro-Dollar Business Day if the first day of such Interest Period is not a Euro-Dollar Business Day; and (ii) in the case of an Other Currency Advance (other than an Other Currency Overdraft Advance) two Euro-Dollar Business Days prior to the beginning of the Interest Period.

 

“Euro-Dollar Reserve Percentage” means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on such Euro-Dollar Loan is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to United States residents). The Adjusted Monthly Libor Index shall be adjusted automatically on and as of the effective date of any change in the Euro-Dollar Reserve Percentage.

 

(d) The Advances shall at all times be a Euro-Dollar Loan unless the Advances are to be a Prime Rate Loan pursuant to Article VIII herein. Interest that accrues on Revolving Advances shall be payable on each Interest Payment Date; provided that: (1) all accrued unpaid interest on the Revolving Advances shall be paid in full on the Termination Date; and (2) should any of the Commitments (including, without limitation, the Revolving Commitment, the Other Currency Commitment or the Facility Commitment) be terminated at any time prior to the Termination Date for any reason, any and all accrued unpaid interest (together with any amounts due under Section 8.05(a)) shall be paid on the date of such termination.

 

(e) Each Letter of Credit Advance shall bear interest on the outstanding principal amount thereof, payable on demand, for each day from the date such Letter of Credit Advance is made until paid in full at a rate per annum equal to the Default Rate.

 

(f) The Administrative Agent shall determine each interest rate applicable to the Advances hereunder. The Administrative Agent shall give prompt notice to the Borrowers and the Banks by telecopy of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error.

 

(g) After the occurrence and during the continuance of a Default, the principal amount of the Advances (excluding the Swing Line Advances) (and, to the extent permitted by applicable law, all accrued interest thereon) may, at the election of the Required Banks, bear interest at the Default Rate; provided, however, that automatically whether or not the Required Banks elect to do so, any overdue principal of and, to the extent permitted by law, overdue interest on the Advances (excluding the Swing Line Advances) shall bear interest payable on demand, for each day until paid at a rate per annum equal to the Default Rate.

 

(h) Except as otherwise agreed upon by the Swing Line Lender and the U.S. Borrowers, such interest that accrues on Swing Line Advances shall be payable on each Interest Payment Date; provided that: (1) all accrued unpaid interest on the Swing Line Advances shall be paid in full on the Termination Date; and (2) should any of the Commitments be terminated at any time prior to the Termination Date for any reason, any and all accrued unpaid interest (together with any amounts due under Section 8.05(a) ) shall be paid on the date of such

 

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termination. Any overdue principal of and, to the extent permitted by applicable law, overdue interest on the Swing Line Advances may, at the election of the Swing Line Lender, bear interest, payable on demand, for each day until paid at a rate per annum equal to the Default Rate.

 

(i) Interest that accrues on Other Currency Advances (other than Other Currency Overdraft Advances) shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than 3 months, at intervals of 3 months after the first day thereof; provided that: (1) all accrued unpaid interest on such Other Currency Advances shall be paid in full on the Termination Date; and (2) should any of the Commitments (including, without limitation, the Revolving Commitment, the Other Currency Commitment or the Facility Commitment) be terminated at any time prior to the Termination Date for any reason, any and all accrued unpaid interest (together with any amounts due under Section 8.05(a) ) shall be paid on the date of such termination.

 

SECTION 2.07. Fees . (a) The Borrower shall pay to the Administrative Agent for the account of the Banks a non-utilization fee equal to the product of: (i) the aggregate of the daily average amounts of the Aggregate Unused Commitments, times (ii) a per annum percentage equal to the Applicable Non-Utilization Fee Rate. Such non-utilization fee shall accrue from and including the Restatement Effective Date to and including the Termination Date. Non-Utilization fees shall be payable quarterly in arrears on the first Quarterly Payment Date following each Non-Utilization Fee Determination Date and on the Termination Date; provided that should any of the Commitments (including, without limitation, the Revolving Commitment, the Other Currency Commitment or the Facility Commitment) be terminated at any time prior to the Termination Date for any reason, the entire accrued and unpaid fee shall be paid on the date of such termination. The Administrative Agent will promptly distribute to each Bank a share of the Non-Utilization Fee received by the Administrative Agent in an amount equal to the Non-Utilization Fee received by the Administrative Agent multiplied by a fraction the numerator of which shall be such Bank’s daily average Unused Commitment for the applicable period and the denominator of which shall be the aggregate of the daily average amounts of the Unused Commitments of all Banks for the applicable period. The “Applicable Non-Utilization Fee Rate” shall be determined quarterly based upon the ratio of Consolidated Funded Debt (calculated as of the last day of each Fiscal Quarter) to Consolidated EBITDA (calculated as of the last day of each Fiscal Quarter for the Fiscal Quarter then ended and the immediately preceding three Fiscal Quarters) as follows:

 

 

The Applicable Non-Utilization Fee Rate shall be determined effective as of the date (herein, the “Non-Utilization Fee Determination Date”) which is 45 days after the last day of the Fiscal Quarter as of the end of which the Ratio of Consolidated Funded Debt to Consolidated EBITDA is being determined, based on the quarterly financial statements for such Fiscal Quarter, and the

 

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Applicable Non-Utilization Fee Rate so determined shall remain effective from such Non-Utilization Fee Determination Date until the date which is 45 days after the last day of the Fiscal Quarter in which such Non-Utilization Fee Determination Date falls (which latter date shall be a new Non-Utilization Fee Determination Date); provided that (i) for the period from and including the Restatement Effective Date to but excluding the Non-Utilization Fee Determination Date next following the Restatement Effective Date, the Applicable Non-Utilization Fee Rate shall be 0.20%; (ii) in the case of any Applicable Non-Utilization Fee Rate determined on the basis of the Ratio of Consolidated Funded Debt to Consolidated EBITDA for the fourth and final Fiscal Quarter of a Fiscal Year, the Applicable Non-Utilization Fee Rate for the period beginning on the Non-Utilization Fee Determination Date immediately after the last day of such fourth and final Fiscal Quarter and continuing until the date which is 90 days after the last day of such final Fiscal Quarter (the “Fee Adjustment Date”) shall be the Applicable Non-Utilization Fee Rate in effect on the last day of such final Fiscal Quarter but such Applicable Non-Utilization Fee Rate shall be adjusted on such Fee Adjustment Date and thereafter until the next Rate Determination Date. Such Applicable Non-Utilization Fee Rate shall be determined based upon the annual audited financial statements for the Fiscal Year ended on the last day of such final Fiscal Quarter, (iii) if the Applicable Non-Utilization Fee Rate for the fourth and final Fiscal Quarter as determined on the Fee Adjustment Date shall be different from the applicable Non-Utilization Fee Rate for such date determined on the Non-Utilization Fee Determination Date for such fourth Fiscal Quarter, such redetermined Applicable Non-Utilization Fee Rate shall be effective retroactive to the Non-Utilization Fee Determination Date, and the Borrowers, the Administrative Agent and the Banks, as applicable, shall within 10 days of such redetermination, make a payment (in the case of amounts owing by the Borrowers to the Banks) or provide a credit applicable to future amounts payable by the Borrowers hereunder (in the case of amounts owing by the Banks to the Borrowers) equal to the difference between the Non-Utilization Fees actually paid under this Agreement and the Non-Utilization Fees that would have been paid under this Agreement had the Applicable Non-Utilization Fee Rate as originally determined been equal to the Applicable Non-Utilization Fee Rate as redetermined; and (iv) if on any Non-Utilization Fee Determination Date (or in the case of the fourth Fiscal Quarter, the Adjustment Date) the Company shall have failed to deliver to the Banks the financial statements required to be delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to such Non-Utilization Fee Determination Date (or in the case of the fourth Fiscal Quarter, the Adjustment Date), then for the period beginning on such Non-Utilization Fee Determination Date (and in the case of the fourth Fiscal Quarter, the Non-Utilization Fee Determination Date immediately preceding the Adjustment Date) and ending on the earlier of (A) the date on which the Company shall deliver to the Banks the financial statements to be delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any subsequent Fiscal Quarter, and (B) the date on which the Company shall deliver to the Banks annual financial statements required to be delivered pursuant to Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal Quarter or any subsequent Fiscal Year, the Applicable Non-Utilization Fee Rate shall be determined as if the ratio of Consolidated Funded Debt to Consolidated EBITDA was more than 2.00 at all times during such period. Any change in the Applicable Non-Utilization Fee Rate on any Non-Utilization Fee Determination Date shall result in a corresponding change, effective on and as of such Non-Utilization Fee Determination Date, in the fees payable hereunder; provided, that no Applicable Non-Utilization Fee Rate shall be decreased pursuant to this Section 2.07 if a Default is in existence on the Non-Utilization Fee Determination Date.

 

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(b) (1) The U.S. Borrowers shall pay to the Administrative Agent for the ratable account of each Revolving Advance Lender, with respect to each U.S. Dollar Letter of Credit, a per annum letter of credit fee (the “U.S. Dollar Letter of Credit Fee”) equal to the product of: (i) the aggregate average daily U.S. Dollar Undrawn Amounts, times (ii) a per annum percentage equal to the Applicable Margin for Letters of Credit (determined in accordance with Sections 2.06 and 2.13 hereof). Such U.S. Dollar Letter of Credit Fees shall be payable in arrears for each U.S. Dollar Letter of Credit on each Quarterly Payment Date during the term of each respective U.S. Dollar Letter of Credit and on the termination thereof (whether at its stated expiry date or earlier). The “Applicable Margin” for Letters of Credit shall be as determined in Section 2.06(a). No Other Currency Lender shall be entitled to any portion of the U.S. Dollar Letter of Credit Fee.

 

(2) The Non-U.S. Borrowers shall pay to Wachovia, in its capacity as Other Currency Issuing Bank (and in the event there is more than one Other Currency Issuing Bank, such payment shall be made to the Other Currency Sub-Agent for the ratable account of each Other Currency Lender), for the ratable account of each Other Currency Lender, with respect to each Other Currency Letter of Credit, a per annum letter of credit fee (the “Other Currency Letter of Credit Fee”) equal to the product of: (i) the aggregate average daily Other Currency Undrawn Amounts, times (ii) a per annum percentage equal to the Applicable Margin for Letters of Credit (determined in accordance with Sections 2.06 and 2.13 hereof). Such Other Currency Letter of Credit Fees shall be payable in arrears for each Other Currency Letter of Credit on each Quarterly Payment Date during the term of each respective Other Currency Letter of Credit and on the termination thereof (whether at its stated expiry date or earlier). The “Applicable Margin” for Letters of Credit shall be as determined in Section 2.06(a). No Revolving Advance Lender shall be entitled to any portion of the Other Currency Letter of Credit Fee.

 

(c) (1) The U.S. Borrowers shall pay to the Administrative Agent for the account of the U.S. Dollar Issuing Bank a facing fee (the “U.S. Dollar Facing Fee”) with respect to each U.S. Dollar Letter of Credit equal to the product of: (i) the face amount of such U.S. Dollar Letter of Credit, times (ii) one-eighth (1/8th) of one percent (0.125%). Such U.S. Dollar Facing Fee shall be due and payable on such date as may be agreed upon by the U.S. Dollar Issuing Bank and the U.S. Borrowers. The U.S. Borrowers shall pay to the U.S. Dollar Issuing Bank, for its own account, transfer fees, drawing fees, modification fees, extension fees and such other fees and charges as may be provided for in any U.S. Dollar Letter of Credit Agreement or otherwise charged by the U.S. Dollar Issuing Bank. No Bank shall be entitled to any portion of the U.S. Dollar Facing Fees or any other fees payable by the U.S. Borrowers to the U.S. Dollar Issuing Bank pursuant to this Section 2.07(c)(1).

 

(2) The Non-U.S. Borrowers shall pay to Wachovia, in its capacity as Other Currency Issuing Bank (and in the event there is more than one Other Currency Issuing Bank, such payment shall be made to the Other Currency Sub-Agent for the ratable account of each Other Currency Issuing Bank), for the account of the Other Currency Issuing Bank a facing fee (the “Other Currency Facing Fee”) with respect to each Other Currency Letter of Credit issued by such Other Currency Issuing Bank equal to the product of: (i) the face amount of such Other Currency Letter of Credit, times (ii) one-eighth (1/8th) of one percent (0.125%). Such Other Currency Facing Fee shall be due and payable on such date as may be agreed upon by the Other Currency Issuing Bank and the Non-U.S. Borrowers. The Non-U.S. Borrowers shall pay to the

 

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Other Currency Issuing Bank, for its own account, transfer fees, drawing fees, modification fees, extension fees and such other fees and charges as may be provided for in any Other Currency Letter of Credit Agreement or otherwise charged by the Other Currency Issuing Bank. No Bank shall be entitled to any portion of the Other Currency Facing Fees or any other fees payable by the Non-U.S. Borrowers to the Other Currency Issuing Bank pursuant to this Section 2.07(c)(2).

 

(d) The Borrower shall pay to the Administrative Agent, for the account and sole benefit of the Administrative Agent, such fees and other amounts at such times as set forth in the Administrative Agent’s Letter Agreement.

 

SECTION 2.08. Optional Termination or Reduction of Commitments . The Company may, upon at least 3 Domestic Business Days’ irrevocable notice to the Administrative Agent, terminate at any time, or proportionately reduce from time to time by an aggregate amount of at least $1,000,000 or any larger multiple of $1,000,000, the Commitments; provided, however: (1) each termination or reduction, as the case may be, shall be permanent and irrevocable; (2) no such termination or reduction shall be in an amount greater than the Total Unused Commitments on the date of such termination or reduction (giving effect to any repayment of the Loans contemplated to be made in connection therewith); and (3) no such reduction pursuant to this Section 2.08 shall result in the aggregate Facility Commitments of all of the Banks to be reduced to an amount less than $65,000,000, unless the Commitments are terminated in their entirety, in which case all accrued fees (as provided under Section 2.07) with respect to the amount of the Facility Commitments being reduced shall be payable on the effective date of such termination. Any reduction in the Commitments shall result in (1) a proportionate reduction in each of the Facility Commitments, Other Currency Commitments and the Revolving Advance Commitments of each Bank; and (2) a termination of the Borrowers’ rights under Sections 2.01(b) , 2.01(c) and 2.16 (a)(2) .

 

SECTION 2.09. Mandatory Reduction and Termination of Commitments . The Commitments (including, without limitation, the Revolving Advance Commitments, the Facility Commitments and Other Currency Commitments) shall terminate on the Termination Date and any Revolving Advances, Other Currency Advances, Swing Line Advances and if demand had not been earlier made Letter of Credit Advances then outstanding (together with accrued interest thereon) shall be due and payable on such date.

 

SECTION 2.10. Optional Prepayments . (a) The Borrowers may prepay the Advances in whole at any time, or from time to time in part in amounts aggregating at least $500,000, or any larger multiple of $100,000, by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment (together with any amounts due under Section 8.05(a) ); provided, however: (1) during any period that an ACL Agreement shall be applicable, prepayments by the Borrower respecting Revolving Advances shall be made in accordance with the terms of the ACL Agreement; (2) in the case of a voluntary prepayment, in whole or in part, of an Other Currency Advance (other than an Other Currency Overdraft Advance): (A) such voluntary prepayment shall require at least one but no more than five Euro-Dollar Business Days prior notice to the Administrative Agent and the Other Currency Lender; and (B) such voluntary partial prepayment shall be in an aggregate minimum Dollar Equivalent amount of $500,000 or any larger multiple of $500,000; and (3) in the case of Other Currency Overdraft Advances prepayment shall be made in accordance with the terms of the Other Currency Overdraft Facility Letter. Other than in respect of Other Currency Overdraft Advances,

 

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each such optional prepayment shall be applied first to repay or prepay Swing Line Advances outstanding on the date of such prepayment, second, to repay or prepay outstanding Other Currency Advances or Revolving Advances as the Company may specify in writing; provided that in the absence of such written instruction from the Company, such optional prepayment shall be applied, to repay or prepay ratably Other Currency Advances outstanding on the date of such prepayment and then to prepay ratably the Revolving Advances of the several Banks.

 

(b) Upon receipt of a notice of prepayment pursuant to this Section, the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share of such prepayment.

 

SECTION 2.11. Mandatory Prepayments . (a) On each date on which the Commitments are reduced or terminated pursuant to Section 2.08 or Section 2.09, the Borrowers shall repay or prepay such principal amount of the outstanding Revolving Advances, the Dollar Equivalent of Other Currency Advances and Swing Line Advances, if any (together with interest accrued thereon and any amounts due under Section 8.05(a)) or the Other Currency Overdraft Facility Letter, as may be necessary so that after such payment the aggregate unpaid principal amount of the Revolving Advances, together with the aggregate principal amount of all Swing Line Advances, the Dollar Equivalent of Other Currency Advances, the Dollar Equivalent of Other Currency Letter of Credit Advances, the Dollar Equivalent of Other Currency Undrawn Amounts, U.S. Dollar Letter of Credit Advances and U.S. Dollar Undrawn Amounts does not exceed the aggregate amount of the Facility Commitments as then reduced. Other than in respect of Other Currency Overdraft Advances, each such payment or prepayment shall be applied to repay or prepay first to Swing Line Advances outstanding on the date of such prepayment and second, to repay or prepay outstanding Other Currency Advances or Revolving Advances as the Company may specify in writing; provided that in the absence of such written instruction from the Company, such optional prepayment shall be applied to repay or prepay ratably Other Currency Advances outstanding on the date of such prepayment and then, ratably to the Revolving Advances of the several Banks.

 

(b) In the event that the aggregate principal amount of all Revolving Advances, together with the aggregate principal amount of the Swing Line Advances, the Dollar Equivalent of Other Currency Advances, the Dollar Equivalent of Other Currency Letter of Credit Advances, the Dollar Equivalent of Other Currency Undrawn Amounts, U.S. Dollar Letter of Credit Advances and U.S. Dollar Undrawn Amounts at any one time outstanding shall at any time exceed the aggregate amount of the Facility Commitments of all of the Banks at such time, the Borrowers shall immediately repay so much of the Revolving Advances, the Dollar Equivalent of Other Currency Advances and Swing Line Advances as is necessary in order that the aggregate principal amount of the Revolving Advances thereafter outstanding, together with the aggregate principal amount of the Swing Line Advances, the Dollar Equivalent of Other Currency Advances, the Dollar Equivalent of Other Currency Advances, the Dollar Equivalent of Other Currency Letter of Credit Advances, the Dollar Equivalent of Other Currency Undrawn Amounts, U.S. Dollar Letter of Credit Advances and U.S. Dollar Undrawn Amounts shall not exceed the aggregate amount of the Facility Commitments of all of the Banks at such time.

 

SECTION 2.12. General Provisions as to Payments . (a) The Borrowers shall make each payment of principal of, and interest on, the Advances and of fees hereunder, not later than 11:00 A.M. (Greenville, South Carolina time, except in the case of payments in respect of

 

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Other Currency Advances and Other Currency Letter of Credit Advances such time shall be London time) on the date when due, in Federal or other funds immediately available: (i) in the case of all Obligations (except payments in respect of Other Currency Advances and Other Currency Letter of Credit Advances), in Greenville, South Carolina, to the Administrative Agent at its address referred to in Section 9.01; and (ii) in the case of payments in respect of Other Currency Advances and Other Currency Letter of Credit Advances, in London, England, to the Other Currency Lender, at its address referred to in Section 9.01 (or as set out in the Other Currency Overdraft Facility Letter in respect of Other Currency Overdraft Advances). Subject to the terms of Section 2.02(d), the Administrative Agent will promptly distribute to each Bank its ratable share of each such payment in respect of a Revolving Advance received by the Administrative Agent for the account of the Banks; provided that payments of interest in respect of a Revolving Advance shall be distributed by the Administrative Agent within three Domestic Business Days of the date such payment is received by the Administrative Agent for the account of the Banks.

 

(b) Whenever any payment of principal of, or interest on, the Revolving Advances, Swing Line Advances or of fees shall be due on a day which is not a Domestic Business Day (including, without limitation, any payments pursuant to Section