EX-10.1 REVOLVING CREDIT AGREEMENT






Exhibit 10.1




Execution Version




REVOLVING CREDIT AGREEMENT




dated as of May 23, 2008




among




AARON RENTS, INC.

as Borrower,




THE LENDERS FROM TIME TO TIME PARTY HERETO




SUNTRUST BANK

as Administrative Agent,





 




SUNTRUST ROBINSON HUMPHREY, INC.

as Arranger and Book Manager




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS; CONSTRUCTION
	 	 	1	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS; CONSTRUCTION
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Classifications of Loans and Borrowings
	 	 	20	 
	Section 1.3. Accounting Terms and Determination
	 	 	20	 
	Section 1.4. Terms Generally
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS
	 	 	21	 
	 
	 	 	 	 
	Section 2.1. General Description of Facilities
	 	 	21	 
	Section 2.2. Revolving Loans
	 	 	21	 
	Section 2.3. Procedure for Revolving Borrowings
	 	 	22	 
	Section 2.4. Swingline Commitment
	 	 	22	 
	Section 2.5. Procedure for Swingline Borrowing; Etc
	 	 	22	 
	Section 2.6. Funding of Borrowings
	 	 	24	 
	Section 2.7. Interest Elections
	 	 	25	 
	Section 2.8. Optional Reduction and Termination of Commitments
	 	 	26	 
	Section 2.9. Repayment of Loans
	 	 	26	 
	Section 2.10. Evidence of Indebtedness
	 	 	26	 
	Section 2.11. Prepayments
	 	 	27	 
	Section 2.12. Interest on Loans
	 	 	28	 
	Section 2.13. Fees
	 	 	29	 
	Section 2.14. Computation of Interest and Fees
	 	 	29	 
	Section 2.15. Inability to Determine Interest Rates
	 	 	30	 
	Section 2.16. Illegality
	 	 	30	 
	Section 2.17. Increased Costs
	 	 	31	 
	Section 2.18. Funding Indemnity
	 	 	32	 
	Section 2.19. Taxes
	 	 	32	 
	Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	34	 
	Section 2.21. Mitigation of Obligations
	 	 	35	 
	Section 2.22. Letters of Credit
	 	 	36	 
	Section 2.23. Increase of Commitments; Additional Lenders
	 	 	41	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
	 	 	42	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
	 	 	42	 
	 
	 	 	 	 
	Section 3.1. Conditions To Effectiveness
	 	 	42	 
	Section 3.2. Each Credit Event
	 	 	43	 
	Section 3.3. Delivery of Documents
	 	 	44	 
	Section 3.4. Termination of Existing Credit Agreement
	 	 	44	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	44	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	44	 
	 
	 	 	 	 
	Section 4.1. Existence; Power
	 	 	44	 
	Section 4.2. Organizational Power; Authorization
	 	 	45	 
	Section 4.3. Governmental Approvals; No Conflicts
	 	 	45	 
	Section 4.4. Financial Statements
	 	 	45	 






 









 






	 	 	 	 	 
	 	 	Page
	Section 4.5. Litigation and Environmental Matters
	 	 	45	 
	Section 4.6. Compliance with Laws and Agreements
	 	 	46	 
	Section 4.7. Investment Company Act, Etc.
	 	 	46	 
	Section 4.8. Taxes
	 	 	46	 
	Section 4.9. Margin Regulations
	 	 	46	 
	Section 4.10. ERISA
	 	 	47	 
	Section 4.11. Ownership of Property
	 	 	47	 
	Section 4.12. Disclosure
	 	 	47	 
	Section 4.13. Labor Relations
	 	 	47	 
	Section 4.14. Subsidiaries
	 	 	48	 
	Section 4.15. Solvency
	 	 	48	 
	Section 4.16. OFAC
	 	 	48	 
	Section 4.17. Patriot Act
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	48	 
	 
	 	 	 	 
	Section 5.1. Financial Statements and Other Information
	 	 	49	 
	Section 5.2. Notices of Material Events
	 	 	50	 
	Section 5.3. Existence; Conduct of Business
	 	 	51	 
	Section 5.4. Compliance with Laws, Etc.
	 	 	51	 
	Section 5.5. Payment of Obligations
	 	 	51	 
	Section 5.6. Books and Records
	 	 	51	 
	Section 5.7. Visitation, Inspection, Etc.
	 	 	51	 
	Section 5.8. Maintenance of Properties; Insurance
	 	 	52	 
	Section 5.9. Use of Proceeds and Letters of Credit
	 	 	52	 
	Section 5.10. Additional Subsidiaries
	 	 	52	 
	Section 5.11. Post-Closing Covenant
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS
	 	 	53	 
	 
	 	 	 	 
	Section 6.1. Total Debt to EBITDA Ratio
	 	 	53	 
	Section 6.2. Total Adjusted Debt to Total Adjusted Capital Ratio
	 	 	53	 
	Section 6.3. Fixed Charge Coverage Ratio
	 	 	53	 
	Section 6.4. Minimum Consolidated Net Worth
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	54	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	54	 
	 
	 	 	 	 
	Section 7.1. Indebtedness
	 	 	54	 
	Section 7.2. Negative Pledge
	 	 	55	 
	Section 7.3. Fundamental Changes
	 	 	56	 
	Section 7.4. Investments, Loans, Etc.
	 	 	57	 
	Section 7.5. Restricted Payments
	 	 	58	 
	Section 7.6. Sale of Assets
	 	 	58	 
	Section 7.7. Transactions with Affiliates
	 	 	58	 
	Section 7.8. Restrictive Agreements
	 	 	59	 
	Section 7.9. Sale and Leaseback Transactions
	 	 	59	 
	Section 7.10. Amendment to Material Documents
	 	 	59	 
	Section 7.11. Accounting Changes
	 	 	59	 
	Section 7.12. Hedging Transactions
	 	 	59	 
	Section 7.13. Activities of Aaron Rents Puerto Rico
	 	 	60	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	60	 






ii









 








	 	 	 	 	 
	 	 	Page
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	60	 
	 
	 	 	 	 
	Section 8.1. Events of Default
	 	 	60	 
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	62	 
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	62	 
	 
	 	 	 	 
	Section 9.1. Appointment of Administrative Agent
	 	 	63	 
	Section 9.2. Nature of Duties of Administrative Agent
	 	 	63	 
	Section 9.3. Lack of Reliance on the Administrative Agent
	 	 	64	 
	Section 9.4. Certain Rights of the Administrative Agent
	 	 	64	 
	Section 9.5. Reliance by Administrative Agent
	 	 	64	 
	Section 9.6. The Administrative Agent in its Individual Capacity
	 	 	64	 
	Section 9.7. Successor Administrative Agent
	 	 	65	 
	Section 9.8. Authorization to Execute other Loan Documents
	 	 	65	 
	Section 9.9. Withholding Tax
	 	 	65	 
	Section 9.10. Administrative Agent May File Proofs of Claim
	 	 	66	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	67	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	67	 
	 
	 	 	 	 
	Section 10.1. Notices
	 	 	67	 
	Section 10.2. Waiver; Amendments
	 	 	69	 
	Section 10.3. Expenses; Indemnification
	 	 	70	 
	Section 10.4. Successors and Assigns
	 	 	72	 
	Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	75	 
	Section 10.6. WAIVER OF JURY TRIAL
	 	 	76	 
	Section 10.7. Right of Setoff
	 	 	77	 
	Section 10.8. Counterparts; Integration
	 	 	77	 
	Section 10.9. Survival
	 	 	77	 
	Section 10.10. Severability
	 	 	78	 
	Section 10.11. Confidentiality
	 	 	78	 
	Section 10.12. Interest Rate Limitation
	 	 	78	 






Schedules




	 	 	 	 	 	 	 
	 

	 	Schedule 1.1(a)
	 	-
	 	Applicable Margin and Applicable Percentage
	 

	 	Schedule 1.1(b)
	 	-
	 	Lender Commitments
	 

	 	Schedule 4.5(a)
	 	-
	 	Litigation
	 

	 	Schedule 4.5(b)
	 	-
	 	Environmental Matters
	 

	 	Schedule 4.14
	 	-
	 	Subsidiaries
	 

	 	Schedule 7.1
	 	-
	 	Outstanding Indebtedness
	 

	 	Schedule 7.2
	 	-
	 	Existing Liens
	 

	 	Schedule 7.4
	 	-
	 	Existing Investments






Exhibits




	 	 	 	 	 	 	 
	 

	 	Exhibit A
	 	-
	 	Form of Assignment and Acceptance

	 

	 	Exhibit B
	 	-
	 	Form of Subsidiary Guarantee Agreement
	 
	 

	 	Exhibit 2.3
	 	-
	 	Notice of Revolving Borrowing






iii









 






	 	 	 	 	 	 	 
	 

	 	Exhibit 2.5
	 	-
	 	Notice of Swingline Borrowing
	 

	 	Exhibit 2.7
	 	-
	 	Form of Continuation/Conversion
	 

	 	Exhibit 3.1(b) (iii)
	 	-
	 	Form of Secretary’s Certificate
	 

	 	Exhibit 3.1(b)(vi)
	 	-
	 	Form of Officer’s Certificate
	 

	 	Exhibit 5.1(c)
	 	-
	 	Form of Compliance Certificate






iv









 






REVOLVING CREDIT AGREEMENT




          THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is made and entered into as of May 23,
2008, by and among AARON RENTS, INC., a Georgia corporation (the “Borrower”), the several banks and
other financial institutions from time to time party hereto (the “Lenders”) and SUNTRUST BANK, in
its capacity as Administrative Agent for the Lenders (the “Administrative Agent”).




W I T N E S S E T H:




          WHEREAS, the Borrower has requested that the Lenders establish a $140,000,000 revolving credit
facility in favor of the Borrower with a $15,000,000 swingline subfacility and a $10,000,000 letter
of credit subfacility in favor of the Borrower;




          WHEREAS, subject to the terms and conditions of this Agreement, the Lenders severally, to the
extent of their respective Commitments as defined herein, are willing to severally establish the
requested revolving credit facility in favor of the Borrower;




          NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders and the Administrative Agent agree as follows:




ARTICLE I




DEFINITIONS; CONSTRUCTION




          Section 1.1. Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):




          “2002 Note Purchase Agreement” shall mean that certain Note Purchase Agreement, dated as of
August 15, 2002, by and among Borrower, the other Loan Parties party thereto, The Prudential
Insurance Company of America and the other purchasers signatory thereto, as such Note Purchase
Agreement may be amended, supplemented, restated, refinanced, replaced or otherwise modified from
time to time in accordance with the terms of this Agreement.




          “2005 Note Agreement” shall mean that certain Note Purchase Agreement, dated as of July 27,
2005, by an among Borrower, the other Loan Parties party thereto, The Prudential Insurance Company
of America and the other purchasers signatory thereto, as such Note Purchase Agreement may be
amended, supplemented, restated, refinanced, replaced or otherwise modified from time to time in
accordance with the terms of this Agreement.




          “Aaron Rents Puerto Rico” shall mean Aaron Rents, Inc. Puerto Rico, a Puerto Rico corporation.




 









 








          “Acquisition” means any transaction in which the Borrower or any of its Subsidiaries directly
or indirectly (i) acquires any ongoing business, (ii) acquires all or substantially all of the
assets of any Person or division thereof, whether through a purchase of assets, merger or
otherwise, (iii) acquires (in one transaction or as the most recent transaction in a series of
transactions) control of at least a majority of the voting stock of a corporation, other than the
acquisition of voting stock of a wholly-owned Subsidiary solely in connection with the organization
and capitalization of that Subsidiary by the Borrower or another Subsidiary Loan Party, or (iv)
acquires control of more than 50% ownership interest in any partnership, joint venture or limited
liability company.




          “Additional Commitment Amount” shall have the meaning given to such term in Section
2.23.




          “Additional Lender” shall have the meaning given to such term in Section 2.23.




          “Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.




          “Administrative Agent” shall have the meaning assigned to such term in the opening paragraph
hereof.




          “Administrative Questionnaire” shall mean, with respect to each Lender, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative
Agent duly completed by such Lender.




          “Affiliate” shall mean, as to any Person, any other Person that directly, or indirectly
through one or more intermediaries, Controls, is Controlled by, or is under common Control with,
such Person. For purposes of this definition “Control” shall mean the power, directly or
indirectly, either to (i) vote 10% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or (ii) direct or cause
the direction of the management and policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. The terms “Controlling”, “Controlled by”, and “under common
Control with” have meanings correlative thereto.




          “Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments of all
Lenders at any time outstanding.




          “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.




2









 








          “Applicable Margin” shall mean with respect to all Eurodollar Revolving Loans outstanding on
any date and all letter of credit fees, as the case may be, a percentage per annum determined by
reference to the applicable Total Debt to EBITDA Ratio in effect on such date as set forth on
Schedule 1.1(a) attached hereto; provided, that a change in the Applicable Margin resulting
from a change in the Total Debt to EBITDA Ratio shall be effective on the second day after which
the Borrower has delivered the financial statements required by Section 5.1(a) or
(b) and the Compliance Certificate required by Section 5.1 (c);
provided further, that if at any time the Borrower shall have failed to deliver such
financial statements and such certificate, the Applicable Margin shall be at Level IV until such
time as such financial statements and certificate are delivered, at which time the Applicable
Margin shall be determined as provided above. Notwithstanding the foregoing, the Applicable Margin
from the Closing Date until the financial statement and Compliance Certificate for the fiscal
quarter ending on June 30, 2008 are delivered shall be at Level II.




          “Applicable Percentage” shall mean, with respect to the commitment fee, as of any date, the
percentage per annum determined by reference to the applicable Total Debt to EBITDA Ratio in effect
on such date as set forth on Schedule 1.1(a) attached hereto; provided, that a change in
the Applicable Percentage resulting from a change in the Total Debt to EBITDA Ratio shall be
effective on the second day after which the Borrower has delivered the financial statements
required by Section 5.1(a) or (b) and the Compliance Certificate required
by Section 5.1 (c); provided, further, that if at any time the Borrower
shall have failed to deliver such financial statements and such certificate, the Applicable
Percentage shall be at Level IV until such time as such financial statements and certificate are
delivered, at which time the Applicable Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from the Closing
Date until the financial statement and Compliance Certificate for the fiscal quarter ending on June
30, 2008 are delivered shall be at Level II.




          “Approved Fund” shall mean any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A attached
hereto or any other form approved by the Administrative Agent.




          “Availability Period” shall mean the period from the Closing Date to the Revolving Commitment
Termination Date.




          “Base Rate” shall mean the higher of (i) the per annum rate which the Administrative Agent
publicly announces from time to time to be its prime lending rate, as in effect from time to time,
and (ii) the Federal Funds Rate, as in effect from time to time, plus one-




3









 







half of one percent (0.50%). The Administrative Agent’s prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of interest at, above or
below the Administrative Agent’s prime lending rate. Each change in the Administrative Agent’s
prime lending rate shall be effective from and including the date such change is publicly announced
as being effective.




          “Borrower” shall have the meaning in the introductory paragraph hereof.




          “Borrowing” shall mean a borrowing consisting of (i) Loans of the same Class and Type, made,
converted or continued on the same date and in case of Eurodollar Loans, as to which a single
Interest Period is in effect, or (ii) a Swingline Loan.




          “Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on which
commercial banks in Atlanta, Georgia are authorized or required by law to close and (ii) if such
day relates to a Borrowing of, a payment or prepayment of principal or interest on, a conversion of
or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London interbank market.




          “Capital Lease Obligations” of any Person shall mean all obligations of such Person to pay
rent or other amounts under any lease (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Change in Control” shall mean the occurrence of one or more of the following events: (a) any
sale, lease, exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower to any Person or “group”
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) other than the Loudermilk
Family of
331⁄3 or more of
the total voting power of shares of stock entitled to vote in the election of directors of the
Borrower; or (c) occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the current board of
directors or (ii) appointed by directors so nominated.




          “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation after
the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of Section 2.17(b), by such Lender’s or the




4









 







Issuing Bank’s holding company, if applicable) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Swingline Loans and when used in reference
to any Commitment, refers to whether such Commitment is a Revolving Commitment or a Swingline
Commitment.




          “Closing Date” shall mean the date on which the conditions precedent set forth in Section
3.1 and Section 3.2 have been satisfied or waived in accordance with Section
10.2.




          “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from time to
time.




          “Commitment” shall mean a Revolving Commitment or a Swingline Commitment or any combination
thereof (as the context shall permit or require).




          “Compliance Certificate” shall mean a certificate from the principal executive officer or the
principal financial officer of the Borrower in the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(c).




          “Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries for any period, an
amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent
deducted in determining Consolidated Net Income for such period, (i) Consolidated Interest Expense,
(ii) income tax expense, (iii) depreciation (excluding depreciation of rental merchandise) and
amortization and (iv) all other non-cash charges, determined on a consolidated basis in accordance
with GAAP in each case for such period.




          “Consolidated EBITDAR” shall mean, for the Borrower and its Subsidiaries for any period, an
amount equal to the sum of (a) Consolidated EBITDA and (b) Consolidated Lease Expense.




          “Consolidated Fixed Charges” shall mean, for the Borrower and its Subsidiaries for any period,
the sum (without duplication) of (a) Consolidated Interest Expense paid or payable for such period
and (b) Consolidated Lease Expense paid or payable for such period.




          “Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for any
period determined on a consolidated basis in accordance with GAAP, total cash interest expense,
including without limitation the interest component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether or not actually paid during such
period).




          “Consolidated Lease Expense” shall mean, for any period, the aggregate amount of fixed and
contingent rentals payable by the Borrower and its Subsidiaries with respect to




5









 







leases of real and personal property (excluding Capital Lease Obligations) determined on a
consolidated basis in accordance with GAAP for such period.




          “Consolidated Net Income” shall mean, for any period, the net income (or loss) of the Borrower
and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP,
but excluding therefrom (to the extent otherwise included therein) (i) any extraordinary gains or
losses, (ii) any gains attributable to write-ups of assets and (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any Person that is not a
Subsidiary and (iv) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary on the date that
such Person’s assets are acquired by the Borrower or any Subsidiary.




          “Consolidated Net Worth” shall mean, as of any date of determination, the Borrower’s total
shareholders’ equity, determined in accordance with GAAP.




          “Consolidated Total Adjusted Capital” shall mean, as of any date of determination, the sum of
(i) Consolidated Total Adjusted Debt as of such date and (ii) Consolidated Net Worth as of such
date.




          “Consolidated Total Adjusted Debt” shall mean, as of any date of determination, (i)
Consolidated Total Debt, plus (ii) to the extent not included in clause (i), all operating lease
obligations of Borrower and its Subsidiaries measured at the present value of such obligations
(using a 10% discount rate).




          “Consolidated Total Debt” shall mean, at any time, all then currently outstanding obligations,
liabilities and indebtedness of the Borrower and its subsidiaries on a consolidated basis of the
types described in the definition of Indebtedness.




          “Default” shall mean any condition or event that, with the giving of notice or the lapse of
time or both, would constitute an Event of Default.




          “Default Interest” shall have the meaning set forth in Section 2.12(c).




          “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.




          “Domestic Subsidiary” means any Subsidiary which is incorporated or organized under the laws
of any State of the United States, the District of Columbia or Puerto Rico.




          “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by or with any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened Release of any Hazardous
Material or to health and safety matters.




6









 








          “Environmental Liability” shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) any actual or
alleged violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) any actual or alleged exposure to
any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time, and any successor statute.




          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated), which,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.




          “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator appointed by the PBGC of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA.




          “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, bears interest at a rate determined by reference to the
Adjusted LIBO Rate.




          “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve percentages
(including, without limitation, any emergency, supplemental, special or other marginal reserves)
expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect on any day
to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant to
regulations issued by the Board of Governors of the Federal Reserve System (or any Governmental
Authority succeeding to any of its principal functions) with respect to




7









 







eurocurrency funding (currently referred to as “eurocurrency liabilities” under Regulation D).
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D. The Eurodollar Reserve Percentage
shall be adjusted automatically on and as of the effective date of any change in any reserve
percentage.




          “Event of Default” shall have the meaning provided in Article VIII.




          “Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any Lender is located and (c)
in the case of a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement, (ii) is imposed
on amounts payable to such Foreign Lender at any time that such Foreign Lender designates a new
lending office, other than taxes that have accrued prior to the designation of such lending office
that are otherwise not Excluded Taxes, and (iii) is attributable to such Foreign Lender’s failure
to comply with Section 2.19(e).




          “Existing Credit Agreement” shall mean that certain Revolving Credit Agreement, dated as of
May 28, 2004 and as heretofore amended, among the Borrower, the lenders from time to time parties
thereto and SunTrust Bank, as administrative agent.




          “Fee Letter” shall mean that certain letter agreement dated as of May 5, 2008, by and between
Borrower and Administrative Agent, setting forth certain fees applicable to the revolving credit
facility described herein, either as originally executed or as hereafter amended or modified.




          “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.




          “Fiscal Year” shall mean a fiscal year of the Borrower; references to a Fiscal Year with a
number corresponding to any calendar year (e.g., the “Fiscal Year 2008”) refers to the
Fiscal Year ending during such calendar year.




8









 








          “Fixed Charge Coverage Ratio” shall mean, at any date, the ratio of (a) Consolidated EBITDAR
for the four consecutive fiscal quarters of the Borrower ending on such date to (b) Consolidated
Fixed Charges for the four consecutive fiscal quarters of the Borrower ending on such date.




          “Foreign Lender” shall mean any Lender that is not a United States person under Section
7701(a)(3) of the Code.




          “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.




          “GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis and subject to the terms of Section 1.3.




          “Governmental Authority” shall mean the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.




          “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term “Guarantee”
shall not include endorsements for collection or deposits in the ordinary course of business. The
amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount
of the primary obligation in respect of which Guarantee is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee”
used as a verb has a corresponding meaning.




          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




9









 








          “Hedging Obligations” of any Person shall mean any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under
(i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.




          “Hedging Transaction” of any Person shall mean (a) any transaction (including an agreement
with respect to any such transaction) now existing or hereafter entered into by such Person that is
a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option, spot transaction, credit
protection transaction, credit swap, credit default swap, credit default option, total return swap,
credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back
transaction, securities lending transaction, or any other similar transaction (including any option
with respect to any of these transactions) or any combination thereof, whether or not any such
transaction is governed by or subject to any master agreement and (b) any and all transactions of
any kind, and the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.




          “Indebtedness” of any Person shall mean, 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 in respect of the deferred
purchase price of property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(g), trade payables
overdue by more than 120 days shall be included in this definition except to the extent that any of
such trade payables are being disputed in good faith and by appropriate measures), (iv) all
obligations of such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease Obligations of such Person,
(vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (vi) above, (viii) all Indebtedness of a third party
secured by any Lien on property owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (ix) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any common stock of such Person, and (x) Off-Balance
Sheet Liabilities. The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a joint venturer, except
to the extent that the terms of such Indebtedness provide that such Person is not liable therefor.




          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.




10









 








          “Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of one, two,
three or six months; provided, that:





     (i) the initial Interest Period for such Borrowing shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of another Type), and each
Interest Period occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;




     (ii) if any Interest Period would otherwise end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;




     (iii) any Interest Period which begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period shall end on the last Business Day of such calendar month; and




     (iv) no Interest Period may extend beyond the Revolving Commitment Termination Date.



          “Issuing Bank” shall mean SunTrust Bank or any other Lender, each in its capacity as an issuer
of Letters of Credit pursuant to Section 2.22.




          “LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that may be
used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not to
exceed $10,000,000.




          “LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Documents” shall mean the Letters of Credit and all applications, agreements and
instruments relating to the Letters of Credit.




          “LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of all
outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC Disbursements
that have not been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender shall be its Pro Rata Share of the total LC Exposure at such time.




          “Lenders” shall have the meaning assigned to such term in the opening paragraph of this
Agreement and shall include, where appropriate, the Swingline Lender and each Additional Lender
that joins this Agreement pursuant to Section 2.23.




          “Letter of Credit” shall mean any stand-by letter of credit issued pursuant to Section
2.22 by the Issuing Bank for the account of the Borrower pursuant to the LC Commitment.




11









 








          “LIBOR” shall mean, for any applicable Interest Period with respect to any Eurodollar Loan,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) for deposits in
Dollars for a period equal to such Interest Period appearing on the display designated on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London, England time) on the day that is two Business Days
prior to the first day of the Interest Period; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant Interest Period,
LIBOR shall mean the rate of interest determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2) Business Days preceding
the first day of such Interest Period by leading banks in the London interbank market as of 10:00
a.m. for delivery on the first day of such Interest Period, for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar Loan of the Administrative
Agent.




          “Lien” shall mean any mortgage, pledge, security interest, lien (statutory or otherwise),
charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having
the practical effect of the foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement and any capital lease having the same economic effect as any of the
foregoing). A covenant not to grant a Lien or a “negative pledge” shall not be determined a Lien
for purposes of this Agreement.




          “Loan Documents” shall mean, collectively, this Agreement, the LC Documents, the Subsidiary
Guarantee Agreement and any and all other instruments, agreements, documents and writings executed
in connection with any of the foregoing.




          “Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.




          “Loan Facility Agreement” shall mean that certain Amended and Restated Loan Facility Agreement
and Guaranty dated as of the date hereof, by and among the Borrower, SunTrust Bank, as Servicer and
the financial institutions from time to time a party thereto, as Participants, as amended,
restated, supplemented or otherwise modified from time to time.




          “Loan Facility Documents” shall mean, collectively, the Loan Facility Agreement and any and
all other instruments, agreements, documents and writings executed in connection with the
foregoing.




          “Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of them, as
the context shall require.




          “Loudermilk Family” shall mean, collectively, Robert Charles Loudermilk, Sr., his spouse, his
children, his grandchildren and any trust which may now be or hereafter established for the sole
benefit of any of the foregoing persons.




12









 








          “Material Adverse Effect” shall mean, 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 singularly 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 on, (i) the business, results
of operations, financial condition, assets, liabilities or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower or the Loan Parties taken as a
whole to perform any of their respective obligations under the Loan Documents (iii) the rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan Documents.




          “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of Credit)
of any one or more of the Borrower and the Subsidiaries in an aggregate principal amount exceeding
$5,000,000.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




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




          “Notes” shall mean any promissory notes issued hereunder at the request of any Lender.




          “Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing and the
Notices of Swingline Borrowing.




          “Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in Section 2.7(b) hereof.




          “Notice of Revolving Borrowing” shall have the meaning as set forth in Section 2.3.




          “Notice of Swingline Borrowing” shall have the meaning as set forth in Section 2.5.




          “Obligations” shall mean (a) all amounts owing by the Loan Parties to the Administrative
Agent, the Issuing Bank, any Lender (including the Swingline Lender) or SunTrust Robinson Humphrey,
Inc. as the Lead Arranger pursuant to or in connection with this Agreement or any other Loan
Document or otherwise with respect to any Loan or Letter of Credit including without limitation,
all principal, interest (including any interest accruing after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the
Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the Administrative
Agent, the Issuing Bank and any Lender (including the




13









 







Swingline Lender) incurred pursuant to this Agreement or any other Loan Document), whether
direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter
arising hereunder or thereunder, and all obligations and liabilities incurred in connection with
collecting and enforcing the foregoing, (b) all Hedging Obligations owed by any Loan Party to any
Lender or Affiliate of any Lender, and (c) all Treasury Management Obligations between any Loan
Party and any Lender or Affiliate of any Lender, together with all renewals, extensions,
modifications or refinancings of any of the foregoing.




          “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, other
than indemnity obligations for any breach of any representation or warranty which are customary in
nonrecourse sales of such assets, (ii) any liability of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet of such Person, (iii) any
liability of such Person under any so-called “synthetic” lease transaction or (iv) any obligation
arising with respect to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the balance sheet of such Person.




          “OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time to
time, and any successor statute.




          “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.




          “Participant” shall have the meaning set forth in Section 10.4(c).




          “Payment Office” shall mean the office of the Administrative Agent located at 303 Peachtree
Street, N.E., Atlanta, Georgia 30308, or such other location as to which the Administrative Agent
shall have given written notice to the Borrower and the other Lenders.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA,
and any successor entity performing similar functions.




          “Permitted Acquisition” shall mean any Acquisition so long as (a) immediately before and after
giving effect to such Acquisition, no Default or Event of Default is in existence, (b) such
Acquisition has been approved by the board of directors of the Person being acquired prior to any
public announcement thereof, (c) the total consideration (including all cash, debt, stock and other
property, and assumption of obligations for borrowed money) of any single Acquisition or series of
related Acquisitions does not exceed $75,000,000, (d) the total consideration (including all cash,
debt, stock and other property, and assumption of obligations for borrowed money) of all
Acquisitions during any fiscal year does not exceed $150,000,000 and (e) immediately after giving
effect to such Acquisition, the Borrower and Subsidiaries will not be engaged in any business other
than businesses of the type conducted by the Borrower and




14









 







its Subsidiaries on the Closing Date and businesses reasonably related thereto. As used
herein, Acquisitions will be considered related Acquisitions if the sellers under such Acquisitions
are the same Person or any Affiliate thereof.




          “Permitted Encumbrances” shall mean





          (i) Liens imposed by law for taxes not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;




          (ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in accordance with GAAP;




          (iii) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




          (iv) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




          (v) judgment and attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP; and




          (vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;




          (vii) other Liens incidental to the conduct of its business or the ownership of its
property and assets which were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the aggregate materially detract from
the value of its property or assets or materially impair the use thereof in the operation of
its business; and




          (viii) Liens on insurance policies owned by the Borrower on the lives of its officers
securing policy loans obtained from the insurers under such policies, provided that (A) the
aggregate amount borrowed on each policy shall not exceed the loan value thereof, and (B)
the Borrower shall not incur any liability to repay any such loan;



15









 






provided, that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.



          “Permitted Investments” shall mean:




          (i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;




          (ii) commercial paper having an A or better rating, at the time of acquisition thereof,
of S&P or Moody’s and in either case maturing within one year from the date of acquisition
thereof;




          (iii) certificates of deposit, bankers’ acceptances and time deposits maturing within
one year of the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;




          (iv) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) above and entered into with a financial institution
satisfying the criteria described in clause (iii) above; and




          (v) mutual funds investing solely in any one or more of the Permitted Investments
described in clauses (i) through (iv) above.




          “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to
the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.




          “Pro Rata Share” shall mean with respect to any Commitment of any Lender at any time, a
percentage, the numerator of which shall be such Lender’s Commitment (or if such Commitments have
been terminated or expired or the Loans have been declared to be due and payable, such Lender’s
Loan funded under such Commitment), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Loans of all Lenders funded under such Commitments).




16









 








          “RBC Loan Facility Agreement” shall mean the credit facility agreement among the Borrower,
Royal Bank of Canada and any other parties thereto dated on or about the date hereof, whereby the
Borrower and any Subsidiary may, among other things, guarantee loans made to Canadian franchise
operators and owners of the Borrower pursuant to the terms thereof as amended, restated,
supplemented, replaced, refinanced or otherwise modified from time to time.




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation T” shall mean Regulation T of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.




          “Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates
and the respective directors, officers, employees, agents and advisors of such Person and such
Person’s Affiliates.




          “Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or within any building, structure,
facility or fixture.




          “Required Lenders” shall mean, at any time, Lenders holding at least 51% of the aggregate
Revolving Commitments at such time or if the Lenders have no Commitments outstanding, then Lenders
holding at least 51% of the Loans.




          “Responsible Officer” shall mean any of the president, the chief executive officer, the chief
operating officer, the chief financial officer, the treasurer, the controller or a vice president
of the Borrower or such other representative of the Borrower as may be designated in writing by any
one of the foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer, the controller or the treasurer of the
Borrower.




          “Restricted Payment” shall have the meaning set forth in Section 7.5.




17









 








          “Revolving Commitment” shall mean, with respect to each Lender, the obligation of such Lender
to make Revolving Loans to the Borrower and to participate in Letters of Credit and Swingline Loans
in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on
Schedule 1.1(b), or in the case of a Person becoming a Lender after the Closing Date
through an assignment of an existing Revolving Commitment, the amount of the assigned “Revolving
Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, as
the same may be increased or deceased pursuant to terms hereof.




          “Revolving Commitment Termination Date” shall mean the earliest of (i) May 23, 2013, (ii) the
date on which the Revolving Commitments are terminated pursuant to Section 2.8(b) or
Section 8.1 and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by acceleration or otherwise).




          “Revolving Credit Availability Period” shall mean the period from the Closing Date to the
Revolving Commitment Termination Date.




          “Revolving Credit Exposure” shall mean, for any Lender, the sum of such Lender’s Revolving
Loans, LC Exposure and Swingline Exposure.




          “Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender) to the
Borrower, which may either be a Base Rate Loan or a Eurodollar Loan.




          “RIMCO Loan Facility Agreement” shall mean that certain Loan Facility Agreement and Guaranty
dated as of May 29, 2007 by and among the Borrower, SunTrust Bank, as Servicer and the financial
institutions from time to time a party thereto, as Participants, as amended, restated, supplemented
or otherwise modified from time to time.




          “RIMCO Loan Facility Documents” shall mean, collectively, the RIMCO Loan Facility Agreement
and any and all other instruments, agreements, documents and writings executed in connection with
the foregoing.




          “Rosey Rentals Loan Facility Agreement” shall mean the Amended and Restated Loan and Security
Agreement dated as of May 5, 2004, by and among Rosey Rentals, L.P. and Wachovia Bank, N.A. (as
successor to SouthTrust Bank) as amended, restated, supplemented, replaced, refinanced or otherwise
modified from time to time.




          “S&P” shall mean Standard & Poor’s.




          “Solvent” shall mean, with respect to any Person on a particular date, that on such date (a)
the fair value of the property of such Person is greater than the total amount of liabilities,
including subordinated and contingent liabilities, of such Person; (b) the present fair saleable
value of the assets of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts and liabilities, including subordinated and
contingent liabilities as they become absolute and matured; (c) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as




18









 







such debts and liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Person’s
property would constitute an unreasonably small capital. The amount of contingent liabilities
(such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at the time, represents the
amount that would reasonably be expected to become an actual or matured liability.




          “Subsidiary” shall mean, with respect to any Person (the “parent”), any corporation,
partnership, joint venture, limited liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability company, association
or other entity of which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned, controlled or held, by the
parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a
Subsidiary of the Borrower.




          “Subsidiary Guarantee Agreement” shall mean the Subsidiary Guarantee Agreement, substantially
in the form of Exhibit B, made by the Subsidiary Loan Parties in favor of the
Administrative Agent for the benefit of the Lenders.




          “Subsidiary Loan Party” shall mean any Subsidiary that is not a Foreign Subsidiary.




          “Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline
Loans in an aggregate principal amount at any time outstanding not to exceed $15,000,000.




          “Swingline Exposure” shall mean, with respect to each Lender, the principal amount of the
Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.5, which shall equal such Lender’s
Pro Rata Share of all outstanding Swingline Loans.




          “Swingline Lender” shall mean SunTrust Bank, or any other Lender that may agree to make
Swingline Loans hereunder.




          “Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under the
Swingline Commitment.




          “Swingline Rate” shall mean, for any Interest Period, the rate as offered by the
Administrative Agent and accepted by the Borrower. The Borrower is under no obligation to accept
this rate and the Administrative Agent is under no obligation to provide it.




19









 








          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.




          “Total Adjusted Debt to Total Adjusted Capital Ratio” shall mean, at any date of
determination, the ratio of (a) Consolidated Total Adjusted Debt as of such date to (b)
Consolidated Total Adjusted Capital as of such date.




          “Total Debt to EBITDA Ratio” shall mean, at any date of determination, the ratio of (a)
Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the four consecutive fiscal
quarters of the Borrower ending on such date.




          “Transaction Documents” shall mean, collectively, the Loan Documents and the Loan Facility
Documents.




          “Treasury Management Obligations” shall mean, collectively, all obligations and other
liabilities of any Loan Parties pursuant to any agreements governing the provision to such Loan
Parties of treasury or cash management services, including deposit accounts, funds transfer,
automated clearing house, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services.




          “Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of interest
on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Base Rate.




          “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to
time in the State of Georgia.




          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.




          Section 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g. a “Revolving Loan”) or by Type (e.g. a
“Eurodollar Loan” or “Base Rate Loan”) or by Class and Type (e.g. “Revolving Eurodollar Loan”).
Borrowings also may be classified and referred to by Class (e.g. “Revolving Borrowing”) or by Type
(e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “ Revolving Eurodollar Borrowing”).




          Section 1.3. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms 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 as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any covenant in
Article VI to eliminate the effect of




20









 







any change in GAAP on the operation of such covenant (or if
the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI
for such purpose), then the Borrower’s compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.




          Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include such Person’s successors and
permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of similar import
shall be construed to refer to this Agreement as a whole and not to any particular provision
hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of the Administrative
Agent’s principal office, unless otherwise indicated.




ARTICLE II




AMOUNT AND TERMS OF THE COMMITMENTS




          Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving
credit facility pursuant to which the Lenders severally agree (to the extent of each Lender’s
Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2(a), (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with
Section 2.22, (iii) the Swingline Lender agrees to make Swingline Loans in
accordance with Section 2.4, and (iv) each Lender agrees to purchase a participation
interest in the Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all outstanding
Revolving Loans, Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect.




          Section 2.2. Revolving Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make Revolving Loans to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time




21









 







that will not result
in (i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment, or
(ii) the sum of the aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitments. During the Availability Period, the Borrower shall be entitled to borrow,
prepay and reborrow Revolving Loans in accordance with the terms and conditions of this Agreement;
provided, that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.




          Section 2.3. Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of Exhibit 2.3 attached hereto (a “Notice of
Revolving Borrowing”) (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing and
(y) prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case
of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject
to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist
entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less than $1,000,000 or a larger
multiple of $500,000, and the aggregate principal amount of each Base Rate Borrowing shall not be
less than $1,000,000 or a larger multiple of $100,000; provided, that Base Rate Loans made
pursuant to Section 2.5 or Section 2.22(c) may be made in lesser amounts as
provided therein. At no time shall the total number of Eurodollar Borrowings outstanding at any
time exceed six. Promptly following the receipt of a Notice of Revolving Borrowing in accordance
herewith, the Administrative Agent shall advise each Lender of the details thereof and the amount
of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.




          Section 2.4. Swingline Commitment. Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower, from time to time from
the Closing Date to the Revolving Commitment Termination Date, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment then in effect and
(ii) the difference between the Aggregate Revolving Commitments and the aggregate Revolving Credit
Exposures of all Lenders; provided, that the Swingline Lender shall not be required to make
a Swingline Loan to refinance an outstanding Swingline Loan. The Borrower
shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the terms
and conditions of this Agreement.




          Section 2.5. Procedure for Swingline Borrowing; Etc.




          (a) The Borrower shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Borrowing (“Notice of Swingline Borrowing”) prior
to 10:00 a.m. on the requested date of each Swingline Borrowing. Each Notice of Swingline
Borrowing shall be irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business




22









 







Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The Administrative Agent
will promptly advise the Swingline Lender of each Notice of Swingline Borrowing. Each Swingline
Loan shall accrue interest at the Swingline Rate or any other interest rate as agreed between the
Borrower and the Swingline Lender and shall have an Interest Period (subject to the definition
thereof) as agreed between the Borrower and the Swingline Lender. The aggregate principal amount of
each Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such other
minimum amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender will make
the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately available
funds at the account specified by the Borrower in the applicable Notice of Swingline Borrowing not
later than 1:00 p.m. on the requested date of such Swingline Loan. The Administrative Agent will
notify the Lenders on a quarterly basis if any Swingline Loans occurred during such quarter.




          (b) The Swingline Lender, at any time and from time to time in its sole discretion, may, on
behalf of the Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act
on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid
principal amount of any Swingline Loan. Each Lender will make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent for the account of the Swingline
Lender in accordance with Section 2.6, which will be used solely for the repayment of such
Swingline Loan.




          (c) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an undivided participating interest in
such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each Lender shall
promptly transfer, in immediately available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall become payable on
demand.




          (d) Each Lender’s obligation to make a Base Rate Loan pursuant to Section
2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) 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 that such Lender or any other Person may have or claim against the Swingline Lender,
the Borrower or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of any Lender’s Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably be expected to have
a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by the
Borrower, the Administrative Agent or any Lender or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to




23









 







recover
such amount on demand from such Lender, together with accrued interest thereon for each day from
the date of demand thereof at the Federal Funds Rate. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan Documents. In
addition, such Lender shall be deemed to have assigned any and all payments made of principal and
interest on its Loans and any other amounts due to it hereunder, to the Swingline Lender to fund
the amount of such Lender’s participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section, until such amount has been purchased in full.




          Section 2.6. Funding of Borrowings.




          (a) Each Lender will make available each Loan to be made by it hereunder on the proposed date
thereof by wire transfer in immediately available funds by 11:00 a.m. to the Administrative Agent
at the Payment Office; provided, that the Swingline Loans will be made as set forth in
Section 2.5. The Administrative Agent will make such Loans available to the Borrower, as
the case may be, by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower, as the case may be, with
the Administrative Agent or at the Borrower’s option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative Agent.




          (b) Unless the Administrative Agent shall have been notified by any Lender prior to 5 p.m. one
(1) Business Day prior to the date of a Borrowing in which such Lender is participating that such
Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption,
may make available to the Borrower, as the case may be, on such date a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative Agent by such Lender
on the date of such Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the Federal Funds Rate
for up to two (2) days and thereafter at the rate specified for such Borrowing. If such Lender
does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such Lender hereunder.




          (c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro
Rata Shares. No Lender shall be responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans hereunder.





24











 





          Section 2.7. Interest Elections.




          (a) Each Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing
into a different Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing, and
the Loans comprising each such portion shall be considered a separate Borrowing. This Section
shall not apply to Swingline Borrowings, which may not be converted or continued.




          (b) To make an election pursuant to this Section, the Borrower shall give the Administrative
Agent prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing
(a “Notice of Conversion/Continuation”) that is to be converted or continued, as the case may be,
(x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of a conversion into a
Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a continuation of
or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different portions thereof, the
portions thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the resulting Borrowing is to
be a Base Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to be a
Eurodollar Borrowing, the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of “Interest Period”. If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does not specify an Interest Period,
the Borrower shall be deemed to have selected an Interest Period of one month. The principal
amount of any resulting Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.




          (c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the
Borrower shall have failed to deliver a Notice of Conversion/ Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent
and each of the Lenders shall have otherwise consented in writing. No conversion of any Eurodollar
Loans shall be permitted except on the last day of the Interest Period in respect thereof.




25









 





          (d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall
promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          Section 2.8. Optional Reduction and Termination of Commitments.




          (a) Unless previously terminated, all Revolving Commitments and the Swingline Commitment shall
terminate on the Revolving Commitment Termination Date.




          (b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the Aggregate Revolving
Commitments in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii) any partial reduction
pursuant to this Section 2.8 shall be in an amount of at least $5,000,000 and any larger
multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitments to an amount less than the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in the Aggregate Revolving Commitments shall result in a
proportionate reduction (rounded to the next lowest integral multiple of $100,000) in the Swingline
Commitment and the LC Commitment.




          Section 2.9. Repayment of Loans.




          (a) The outstanding principal amount of all Revolving Loans made by Borrower pursuant to
Section 2.2(a) shall be due and payable by Borrower (together with accrued and unpaid
interest thereon) on the Revolving Commitment Termination Date.




          (b) The principal amount of each Swingline Borrowing shall be due and payable (together with
accrued interest thereon) on the earlier of (i) the last day of the Interest Period applicable to
such Borrowing and (ii) the Revolving Commitment Termination Date.




          Section 2.10. Evidence of Indebtedness.




          (a) Each Lender shall maintain in accordance with its usual practice appropriate records
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable thereon and paid
to such Lender from time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of each Lender, (ii)
the amount of each Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each
continuation thereof pursuant to Section 2.7, (iv) the date of each conversion of all
or a portion thereof to another Type pursuant to Section 2.7, (v) the date and amount of
any principal or interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by




26









 




the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s Pro
Rata Share thereof. The entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided, that the failure
or delay of any Lender or the Administrative Agent in maintaining or making entries into any such
record or any error therein shall not in any manner affect the obligation of the Borrower to repay
the Loans (both principal and unpaid accrued interest) of such Lender in accordance with the terms
of this Agreement.




          (b) This Agreement evidences the obligation of the Borrower to repay the Loans and is being
executed as a “noteless” credit agreement. However, at the request of any Lender (including the
Swingline Lender) at any time, the Borrower agrees that it will prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender,
to such Lender and its registered assigns) and in a form approved by the Borrower and the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment permitted hereunder) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




          Section 2.11. Prepayments.




          (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing, in whole or in part, without premium or penalty, by giving irrevocable written notice
(or telephonic notice promptly confirmed in writing) to the Administrative Agent no later than (i)
in the case of prepayment of any Eurodollar Borrowing, 11:00 a.m. not less than three (3) Business
Days prior to any such prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing,
not less than one Business Day prior to the date of such prepayment, and (iii) in the case of
Swingline Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the principal amount of each
Borrowing or portion thereof to be prepaid. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each affected Lender of the contents thereof and of such Lender’s Pro
Rata Share of any such prepayment. If such notice is given, the aggregate amount specified in such
notice shall be due and payable on the date designated in such notice, together with accrued
interest to such date on the amount so prepaid in accordance with Section 2.12(d);
provided, that if a Eurodollar Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all amounts required pursuant to
Section 2.18. Each partial prepayment of any Loan (other than a Swingline Loan) shall be
in an amount not less than $1,000,000 and in integral multiples of $500,000. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.




          (b) If at any time the Revolving Credit Exposure of all Lenders exceeds the aggregate
principal amount of the Revolving Credit Commitments at such time, the Borrower shall immediately
repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all
accrued and unpaid interest on such excess amount and any amounts




27









 




due under Section 2.17.
Each prepayment of a Borrowing shall be applied ratably first to the Swingline Loans to the full
extent thereof, then to the Revolving Base Rate Loans to the full extent thereof, and finally to
Revolving Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all
Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the
aggregate principal amount of the Revolving Credit Commitments at such time, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such excess plus
any accrued and unpaid fees thereon to be held as collateral for the LC Exposure. Such account
shall be administered in accordance with Section 2.22(g) hereof.




          Section 2.12. Interest on Loans.




          (a) The Borrower shall pay interest with respect to the Revolving Loans made to the Borrower
pursuant to Section 2.2(i) on each Base Rate Loan at the Base Rate in effect from time to time and
(ii) on each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in effect
for such Loan plus the Applicable Margin in effect from time to time.




          (b) The Borrower shall pay interest on each Swingline Loan at the Swingline Rate in effect
from time to time.




          (c) While an Event of Default exists or after acceleration, at the option of the Required
Lenders, the Borrower shall pay interest (“Default Interest”) with respect to all Eurodollar Loans
at the rate otherwise applicable for the then-current Interest Period plus an additional 2% per
annum until the last day of such Interest Period, and thereafter, and with respect to all Base Rate
Loans (including all Swingline Loans) and all other Obligations hereunder (other than Loans), at an
all-in rate in effect for Base Rate Loans, plus an additional 2% per annum.




          (d) Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all outstanding
Base Rate Loans shall be payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurodollar Loans having an Interest Period in excess of three
months or 90 days, respectively, on each day which occurs every three months or 90 days, as the
case may be, after the initial date of such Interest Period, and on the Revolving Commitment
Termination Date. Interest on each Swingline Loan shall be payable on the maturity date of such
Loan, which shall be the last day of the Interest Period applicable thereto, and on the Revolving
Commitment Termination Date. Interest on any Loan which is converted
into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.




28









 





          (e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding
for all purposes, absent manifest error.




          Section 2.13. Fees.




          (a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts
and at the times agreed upon by the Borrower and the Administrative Agent in the Fee Letter.




          (b) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of
each Lender a commitment fee, which shall accrue at the Applicable Percentage (determined daily in
accordance with Schedule 1.1(a) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed used to the
extent of the outstanding Revolving Loans and LC Exposure of such Lender.




          (c) Letter of Credit Fees. The Borrower agrees to pay (i) to the Administrative Agent, for the
account of each Lender, a letter of credit fee with respect to its participation in each Letter of
Credit, which shall accrue at the Applicable Margin then in effect on the average daily amount of
such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) attributable to such Letter of Credit during the period from and including the date
of issuance of such Letter of Credit to but excluding the date on which such Letter expires or is
drawn in full (including without limitation any LC Exposure that remains outstanding after the
Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own account a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank’s standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.




          (d) Payments. The fees described in clause (b) and (c) above shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing on June 30, 2008
and on the Revolving Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety).




          Section 2.14. Computation of Interest and Fees.




          All computations of interest and fees hereunder shall be made on the basis of a year of 360
days for the actual number of days (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable (to the extent computed on the basis of
days elapsed). Each determination by the Administrative Agent of an interest amount or




29









 




fee
hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive
and binding for all purposes.




          Section 2.15. Inability to Determine Interest Rates. If prior to the commencement of
any Interest Period for any Eurodollar Borrowing,





     (i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower, absent manifest error) that, by reason of
circumstances affecting the relevant interbank market, adequate means do not exist for
ascertaining LIBOR for such Interest Period, or




     (ii) the Administrative Agent shall have received notice from the Required Lenders that
the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders (or
Lender, as the case may be) of making, funding or maintaining their (or its, as the case may
be) Eurodollar Loans for such Interest Period,


the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Borrower and to the Lenders as soon as practicable thereafter. In the case of
Eurodollar Loans, until the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to
make Eurodollar Revolving Loans or to continue or convert outstanding Loans as or into Eurodollar
Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans
on the last day of the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative Agent
at least one Business Day before the date of any Eurodollar Revolving Borrowing for which a Notice
of Revolving Borrowing has previously been given that it elects not to borrow on such date, then
such Revolving Borrowing shall be made as a Base Rate Borrowing.




          Section 2.16. Illegality. If any Change in Law shall make it unlawful or impossible
for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower
and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or
into Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar Revolving
Borrowing, such Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the last day of the
then current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully
continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that
it may not lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation




30









 




would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to such Lender in the
good faith exercise of its discretion.




          Section 2.17. Increased Costs.




          (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any
Letter of Credit or any participation therein;


and the result of the foregoing is to increase the cost to such Lender of making, converting into,
continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender or the Issuing
Bank of participating in or issuing any Letter of Credit or to reduce the amount received or
receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from and demand by such
Lender on the Borrower (with a copy of such notice and demand to the Administrative Agent), to the
Administrative Agent for the account of such Lender, within five Business Days after the date of
such notice and demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of such
Lender’s or the Issuing Bank’s parent corporation) as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such Lender or the Issuing
Bank or such Lender’s or the Issuing Bank’s parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the
policies of such Lender’s or the Issuing Bank’s parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will
compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent
corporation for any such reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation, as the case may be, specified in paragraph (a) or (b) of this




31









 







Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing Bank, as the case may
be, such amount or amounts within 10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation;




          Section 2.18. Funding Indemnity. In the event of (a) the payment of any principal of
a Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrower shall compensate each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount
of interest that would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the
date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.18 submitted to the
Borrower or by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent
manifest error.




          Section 2.19. Taxes.




          (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, any Lender or the Issuing Bank (as the case may be) shall
receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




32









 





          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i) Internal Revenue Service
Form W-8 ECI, or any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lender’s conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any successor form
thereto, certifying that such Foreign Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on payments of
interest; or (iii) Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the payment to the
foreign lender qualifies as “portfolio interest” exempt from U.S. withholding tax under Code
section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is not a bank for purposes of
Code section 881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect to such Foreign
Lender, a loan agreement entered into in the ordinary course of its trade or business, within the
meaning of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower within the
meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be applicable to the Foreign
Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the




33









 




Borrower
and the Administrative Agent such forms on or before the date that it becomes a party to this
Agreement (or in the case of a Participant, on or before the date such Participant purchases the
related participation). In addition, each such Foreign Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such Foreign Lender. Each
such Foreign Lender shall promptly notify the Borrower and the Administrative Agent at any time
that it determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the Internal Revenue
Service for such purpose).




          Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.




          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.17, 2.18 or 2.19, or otherwise) prior to 12:00 noon, on the date
when due, in immediately available funds, without set-off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the Payment Office, except payments
to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.17, 2.18 and 2.19 and 10.3
shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be made payable for the period of
such extension. All payments hereunder shall be made in Dollars.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in




34









 




accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC Disbursements and
Swingline Loans; provided, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.5(b), 2.20(c) or (d) or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.




          Section 2.21. Mitigation of Obligations. (a) If any Lender requests compensation
under Section 2.17, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section
2.19, then such Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable under Section 2.17 or
Section 2.19, as the case may be, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The




35









 




Borrower agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.17, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority of the account of
any Lender pursuant to Section 2.19, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions set forth in Section 10.4(b) all
its interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender); provided, that (i) the Borrower shall
have received the prior written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (in the case of such outstanding
principal and accrued interest) and from the Borrower (in the case of all other amounts) and (iii)
in the case of a claim for compensation under Section 2.17 or payments required to be made
pursuant to Section 2.19, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.




          (c) The Borrower shall not be required to compensate a Lender or the Issuing Bank under
Section 2.17, 2.18 or 2.19 for any taxes, increased costs or reductions
incurred more than six (6) months prior to the date that such Lender or the Issuing Bank notifies
the Borrower of such increased costs or reductions and of such Lender’s or the Issuing Bank’s
intention to claim compensation therefor; provided further, that if any Change in Law
giving rise to such increased costs or reductions is retroactive, then such six-month period shall
be extended to include the period of such retroactive effect.




          Section 2.22. Letters of Credit.




          (a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.22(d), agrees to issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms and conditions
hereinafter set forth; provided, that (i) each Letter of Credit shall expire on the
earlier of (A) the date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or extension) and (B) the
date that is five (5) Business Days prior to the Revolving Commitment Termination Date; (ii) each
Letter of Credit shall be in a stated amount of at least $250,000; and (iii) the Borrower may not
request any Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure, plus the
aggregate outstanding Revolving Loans of all Lenders, would exceed the Aggregate Revolving
Commitments. Upon the issuance of each Letter of Credit each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation




36









 




in such Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit. Each issuance of a Letter of Credit
shall be deemed to utilize the Revolving Commitment of each Lender by an amount equal to the amount
of such participation.




          (b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative
Agent irrevocable written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be
issued (or amended, extended or renewed, as the case may be), the expiration date of such Letter of
Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. In addition to the satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will be
subject to the further conditions that such Letter of Credit shall be in such form and contain such
terms as the Issuing Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of Credit as the
Issuing Bank shall reasonably require; provided, that in the event of any conflict between
such applications, agreements or instruments and this Agreement, the terms of this Agreement shall
control.




          (c) At least two Business Days prior to the issuance of any Letter of Credit, the Issuing Bank
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the Issuing Bank not to issue the Letter of Credit because
such issuance is not then permitted hereunder because of the limitations set forth in Section
2.22(a) or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business
practices.




          (d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The
Issuing Bank shall notify the Borrower and the Administrative Agent of such demand for payment
and whether the Issuing Bank has made or will make a LC Disbursement thereunder; provided,
that any failure to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC Disbursement. The
Borrower shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for any
LC Disbursements paid by the Issuing Bank in respect of such drawing, without presentment, demand
or other formalities of any kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date on which
such drawing is honored that the Borrower intends to reimburse the Issuing Bank for the amount of
such drawing in funds other




37









 




than from the proceeds of Revolving Loans, the Borrower shall be deemed
to have timely given a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders to make a Base Rate Borrowing on the date on which such drawing is honored in an exact
amount due to the Issuing Bank; provided, that for purposes solely of such Borrowing, the
conditions precedents set forth in Section 3.2 hereof and the minimum borrowing limitations
set forth in Section 2.3 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall
make the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative
Agent for the account of the Issuing Bank in accordance with Section 2.6. The proceeds of
such Borrowing shall be applied directly by the Administrative Agent to reimburse the Issuing Bank
for such LC Disbursement.




          (e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such
Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each
Lender’s obligation to fund its participation 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 that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of the Aggregate Revolving Commitments, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv)
any breach of this Agreement by the Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such participation is required to
be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment
on account thereof, the Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to
the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or the Issuing
Bank to it.




          (f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to
paragraph (d) of this Section 2.22 on the due date therefor, such Lender shall pay interest
to the Issuing Bank (through the Administrative Agent) on such amount from such due date to the
date such payment is made at a rate per annum equal to the Federal Funds Rate; provided,
that if such Lender shall fail to make such payment to the Issuing Bank within three (3) Business
Days of such due date, then, retroactively to the due date, such Lender shall be obligated to pay
interest on such amount at the Base Rate plus an additional 2% per annum.




38









 





          (g) If any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to 105% of the LC Exposure as of such date
plus any accrued and unpaid interest thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall become immediately due
and payable, with demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and to the
extent so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated,
with the consent of the Required Lenders, be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not so
applied as aforesaid) shall be returned to the Borrower with three Business Days after all Events
of Default have been cured or waived.




          (h) Promptly following the end of each fiscal quarter, the Issuing Bank shall deliver (through
the Administrative Agent) to each Lender and the Borrower a report describing the aggregate Letters
of Credit outstanding at the end of such fiscal quarter. Upon the request of any Lender from time
to time, the Issuing Bank shall deliver to such Lender any other information reasonably requested
by such Lender with respect to each Letter of Credit then outstanding.




          (i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:





     (i) Any lack of validity or enforceability of any Letter of Credit or this Agreement;




     (ii) The existence of any claim, set-off, defense or other right which the Borrower or
any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the Issuing



39









 






Bank) or any
other Person, whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;




     (iii) Any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;




     (iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit;




     (v) Any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations
hereunder; or




     (vi) The existence of a Default or an Event of Default.


Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to
the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing
Bank’s failure to exercise care when determining whether drafts or other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.




          (j) Each Letter of Credit shall be subject to the Uniform Customs and Practices for
Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, as the
same may be amended from time to time, and, to the extent not inconsistent therewith, the
governing law of this Agreement set forth in Section 10.5.




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          Section 2.23. Increase of Commitments; Additional Lenders.




          (a) So long as no Event of Default has occurred and is continuing, from time to time after the
Closing Date, Borrower may, upon at least 30 days’ written notice to the Administrative Agent (who
shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate
Revolving Commitments by an amount not to exceed $70,000,000 (the amount of any such increase, the
“Additional Commitment Amount”). Each Lender shall have the right for a period of 15 days
following receipt of such notice, to elect by written notice to the Borrower and the Administrative
Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the
Additional Commitment Amount. No Lender (or any successor thereto) shall have any obligation to
increase its Revolving Commitment or its other obligations under this Agreement and the other Loan
Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its
sole discretion independently from any other Lender.




          (b) If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection
(a) of this Section 2.23, the Borrower may designate another bank or other financial
institution (which may be, but need not be, one or more of the existing Lenders) which at the time
agrees to, in the case of any such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an “Additional Lender”), become a
party to this Agreement; provided, however, that any new bank or financial
institution must be acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the
existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional
Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment
Amount.




          (c) An increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.23 shall become effective upon the receipt by the Administrative Agent of a
supplement or joinder in form and substance satisfactory to the Administrative Agent executed by
the Borrower, by each Additional Lender and by each other Lender whose
Revolving Commitment is to be increased, setting forth the new Revolving Commitments of such
Lenders and setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of the Borrower with respect to the increase in the
Revolving Commitments and such opinions of counsel for the Borrower with respect to the increase in
the Revolving Commitments as the Administrative Agent may reasonably request.




          (d) Upon the acceptance of any such supplement or joinder by the Administrative Agent, the
Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the
Revolving Commitments added through such supplement or joinder and Schedule II shall
automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving
effect to the addition of such Revolving Commitments.




41









 





          (e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.23 that is not pro rata among all Lenders, (x) within five Business Days, in the
case of any Base Rate Loans then outstanding, and at the end of the then current Interest Period
with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall
prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to
the conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders
in proportion to their respective Revolving Commitments after giving effect to such increase, until
such time as all outstanding Loans are held by the Lenders in proportion to their respective
Commitments after giving effect to such increase and (y) effective upon such increase, the amount
of the participations held by each Lender in each Letter of Credit then outstanding shall be
adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold
participations in each such Letter of Credit in proportion to their respective Revolving
Commitments.




ARTICLE III




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT




          Section 3.1. Conditions To Effectiveness. The obligations of the Lenders (including
the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.2).




          (a) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any
other Loan Document and under any agreement with the Administrative Agent or SunTrust Robinson
Humphrey, Inc., as Arranger.




          (b) The Administrative Agent (or its counsel) shall have received the following:





     (i) a counterpart of this Agreement signed by or on behalf of each party thereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;




     (ii) a duly executed Subsidiary Guarantee Agreement;




     (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party,
substantially in the form attached hereto as Exhibit 3.1(b)(iii), attaching and
certifying copies of its bylaws and of the resolutions of its boards of directors,
authorizing the execution, delivery and performance of the Loan Documents to which it is a
party and



42









 






certifying the name, title and true signature of each officer of such Loan Party
executing the Loan Documents to which it is a party;




     (iv) certified copies of the articles of incorporation or other charter documents of
each Loan Party, together with certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of incorporation of such Loan
Party and with respect to the Borrower the States of Texas, Ohio, North Carolina and
Virginia where the Borrower is required to be qualified to do business as a foreign
corporation;




     (v) a favorable written opinion of Kilpatrick Stockton, LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each of the Lenders, and covering such
matters relating to the Loan Parties, the Loan Documents and the transactions contemplated
therein as the Administrative Agent or the Required Lenders shall reasonably request;




     (vi) a certificate, dated the Closing Date substantially in the form attached hereto as
Exhibit 3.1(b)(vi) and signed by a Responsible Officer, confirming compliance with
the conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;




     (vii) a duly executed Notice of Borrowing;




     (viii) a duly executed funds disbursement agreement, together with a report setting
forth the sources and uses of the proceeds hereof;




     (ix) certified copies of all consents, approvals, authorizations, registrations and
filings and orders required or advisable to be made or obtained under any Requirement of
Law, or by any Contractual Obligation of each Loan Party, in connection with the execution,
delivery, performance, validity and enforceability of the Transaction
Documents or any of the transactions contemplated thereby, and such consents,
approvals, authorizations, registrations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired; and




     (x) such other documents, certificates, information or legal opinions as the
Administrative Agent or the Lenders may reasonably request, all in form and substance
satisfactory to the Administrative Agent and the Lenders.



          Section 3.2. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:




          (a) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall exist; and




43









 





          (b) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all representations and
warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all
material respects, provided, that, to the extent such representation or warranty
relates to a specific prior date, such representation or warranty shall be true and correct in all
material respects only as of such specific prior date; and




          (c) since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect.



Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a), (b) and (c) of this Section 3.2.




          Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this Article III, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of each of the Lenders
and shall be in form and substance satisfactory in all respects to the Administrative Agent.




          Section 3.4. Termination of Existing Credit Agreement. Upon this Agreement becoming
effective, the Existing Credit Agreement shall automatically terminate (other than those provisions
that by their terms survive termination of the Existing Credit Agreement), all commitments of the
lenders thereunder to fund additional advances shall terminate automatically, and all amounts
outstanding thereunder, together with all accrued and unpaid interest, fees and other amounts shall
be automatically paid in full by the initial
Borrowing hereunder. Upon termination of the Existing Credit Agreement, each Lender agrees to
promptly return all Notes in favor of such Lender executed by Borrower in connection with the
Existing Credit Agreement. Each lender party to the Existing Credit Agreement hereby waives any
obligation of the Borrower to pay any LIBOR breakage fees or costs that may be due and payable as a
result of the prepayment in full of all Indebtedness outstanding under the Existing Credit
Agreement on the date hereof.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and each Lender as follows:



     Section 4.1. Existence; Power. The Borrower and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing as a corporation under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to carry on its
business



44









 




as now conducted, and (iii) is duly qualified to do business, and is in good standing, in
each jurisdiction where such qualification is required, except where a failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect.




          Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Transaction Documents to which it is a party are within such
Loan Party’s organizational powers and have been duly authorized by all necessary organizational,
and if required, stockholder, action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Transaction Document to which any Loan Party is a party,
when executed and delivered by such Loan Party, will constitute, valid and binding obligations of
the Borrower or such Loan Party (as the case may be), enforceable against it in accordance with
their respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights
generally and by general principles of equity.




          Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Transaction
Documents to which it is a party (a) do not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have been obtained or
made and are in full force and effect or where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any judgment or order of any
Governmental Authority binding on the Borrower or any of its Subsidiaries, (c) will not violate or
result in a default under any indenture, material agreement or other material instrument binding on
the Borrower or any of its Subsidiaries or any of its assets or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries and (d) will not result
in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries,
except Liens (if any) created under the Loan Documents.




          Section 4.4. Financial Statements. The Borrower has furnished to each Lender (i) the
audited consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2007,
and the related consolidated statements of income, shareholders’ equity and cash flows for the
fiscal year then ended prepared by Ernst & Young and (ii) the unaudited consolidated balance sheet
of the Borrower and its Subsidiaries as of March 31, 2008, and the related unaudited consolidated
statements of income and cash flows for the fiscal quarter and year-to-date period then ending,
certified by a Responsible Officer. Such financial statements fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as of such dates and the consolidated
results of operations for such periods in conformity with GAAP consistently applied, subject to
year end audit adjustments and the absence of footnotes in the case of the statements referred to
in clause (ii). Since December 31, 2007, there have been no changes with respect to the Borrower
and its Subsidiaries which have had or could reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect.






45









 





          Section 4.5. Litigation and Environmental Matters.



          (a) No litigation, investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination that could reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Transaction Document. Except as set
forth on Schedule 4.5(a), as of the Closing Date, no litigation, investigation or
proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries
that seeks damages in excess of $5,000,000.




          (b) Except for the matters set forth on Schedule 4.5(b), neither the Borrower nor any
of its Subsidiaries (i) has failed to comply in any material respect with any Environmental Law or
to obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability in excess of $5,000,000,
(iii) has received notice of any claim with respect to any Environmental Liability in excess of
$5,000,000 or (iv) knows of any basis for any Environmental Liability in excess of $5,000,000.




          Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a) all applicable laws, rules, regulations and orders of any Governmental
Authority, and (b) all indentures, agreements or other instruments binding upon it or its
properties, except where non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.




          Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is (a) an “investment company” or is “controlled” by an “investment company”, as such
terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, or (b) otherwise subject to any other regulatory scheme limiting its ability to incur
debt.




          Section 4.8. Taxes. The Borrower and its Subsidiaries and each other Person for whose
taxes the Borrower or any Subsidiary could become liable have timely filed or caused to be filed
all Federal income tax returns and all other material tax returns that are required to be filed by
them, and have paid all taxes shown to be due and payable on such returns or on any assessments
made against it or its property and all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority, except (i) to the extent the failure to do so would not
have a Material Adverse Effect or (ii) where the same are currently being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as the case may be, has
set aside on its books adequate reserves. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of such taxes are adequate, and no tax liabilities that
could be materially in excess of the amount so provided are anticipated.




          Section 4.9. Margin Regulations. None of the proceeds of any of the Loans or Letters
of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin




46









 




stock”
with the respective meanings of each of such terms under Regulation U or for any purpose that
violates the provisions of the Regulation T, U or X. Neither the Borrower nor its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying “margin stock.”




          Section 4.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $5,000,000 the fair market
value of the assets of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement of Financial
Standards No. 87) did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of all such underfunded
Plans.




          Section 4.11. Ownership of Property.




          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and personal property material to the operation of its business.




          (b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, tradenames, copyrights and other
intellectual property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material Adverse Effect.




          Section 4.12. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which the Borrower or any of its Subsidiaries
is subject, and all other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. None of the reports
(including without limitation all reports that the Borrower is required to file with the Securities
and Exchange Commission), financial statements, certificates or other written information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the
negotiation or syndication of this Agreement or any other Loan Document or delivered hereunder or
thereunder (as modified or supplemented by any other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, taken as a whole, in light of the circumstances under which they were made, not
misleading; provided, that with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.




          Section 4.13. Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against the Borrower or any of its Subsidiaries, or, to the Borrower’s




47









 




knowledge, threatened against or affecting the Borrower or any of its Subsidiaries, and no
significant unfair labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower’s knowledge, threatened against any of them before any
Governmental Authority. All payments due from the Borrower or any of its Subsidiaries pursuant to
the provisions of any collective bargaining agreement have been paid or accrued as a liability on
the books of the Borrower or any such Subsidiary, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.




          Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation of, and the type of, each
Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of the
Closing Date.




          Section 4.15. Solvency. After giving effect to the execution and delivery of the Loan
Documents (including the provisions of Sections 8, 9 and 23 of the Subsidiary Guarantee Agreement) and the making of the Loans under this
Agreement, (i) each Loan Party is Solvent on the Closing Date and (ii) the Loan Parties on a
consolidated basis are Solvent.




          Section 4.16. OFAC. No Loan Party (i) is a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise associated with any
such person in any manner violative of Section 2, or (iii) is a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any
other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.




          Section 4.17. Patriot Act. Each Loan Party is in compliance, in all material
respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order relating thereto, and (ii) the
Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct
Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans will be used, directly
or indirectly, for any payments to any governmental official or employee, political party, official
of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.





48









 





ARTICLE V




AFFIRMATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the
principal of and interest on any Loan or any fee or any LC Disbursement remains unpaid or any
Letter of Credit remains outstanding:




          Section 5.1. Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:




          (a) as soon as available and in any event within 90 days after the end of each fiscal year of
Borrower, a copy of the annual audited report for such fiscal year for the Borrower and its
Subsidiaries, containing a consolidated and unaudited consolidating balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and the related consolidated and unaudited
consolidating statements of income, stockholders’ equity and cash flows (together
with all footnotes thereto) of the Borrower and its Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal year, all in reasonable
detail and reported on by Ernst & Young or other independent public accountants of nationally
recognized standing (without a “going concern” or like qualification, exception or explanation and
without any qualification or exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and the results of
operations of the Borrower and its Subsidiaries for such fiscal year on a consolidated basis in
accordance with GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally accepted auditing
standards;




          (b) as soon as available and in any event within 45 days after the end of each fiscal quarter
of each fiscal year of the Borrower (other than the last fiscal quarter), an unaudited consolidated
and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal
quarter and the related unaudited consolidated and consolidating statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of
such fiscal year, setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower’s previous fiscal year, all certified by the
chief financial officer, treasurer or controller of the Borrower as presenting fairly in all
material respects the financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;




          (c) concurrently with the delivery of the financial statements referred to in clauses (a) and
(b) above, a certificate of a Responsible Officer, (i) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a Default or an Event of
Default then exists, specifying the details thereof and the action which the Borrower has taken or
proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations
demonstrating compliance with Article VI and (iii) stating whether any change in GAAP or the
application thereof has occurred since the date of the Borrower’s audited financial statements
referred to in Section 4.4 and, if any change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;





49











 





          (d) concurrently with the delivery of the financial statements referred to in clause (a)
above, a certificate of the accounting firm that reported on such financial statements stating
whether they obtained any knowledge during the course of their examination of such financial
statements of any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);




          (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and




          (f) promptly following any request therefor, such other information regarding the results of
operations, business affairs and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request; and




          (g) as soon as available and in any event within 30 days after the end of each fiscal year of
the Borrower, a forecasted income statement, balance sheet, and statement of cash flows for the
following fiscal year.




          Section 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




          (a) the occurrence of any Default or Event of Default;




          (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




          (c) the occurrence of any event or any other development by which the Borrower or any of its
Subsidiaries (i) fails to comply in any material respect with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental
Law, (ii) becomes subject to any Environmental Liability in excess of $2,500,000, (iii) receives
notice of any claim with respect to any Environmental Liability in excess of $2,500,000, or (iv)
becomes aware of any basis for any Environmental Liability in excess of $2,500,000 and in each of
the preceding clauses, which individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;




          (d) the occurrence of any ERISA Event that alone, or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $2,500,000; and




          (e) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.




50









 








          (f) Each notice delivered under this Section shall be accompanied by a written statement of a
Responsible Officer setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.




          Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain
in full force and effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business and will continue to engage in the same business as presently conducted or such other
businesses that are reasonably related thereto; provided, that nothing in this Section
shall prohibit any merger, consolidation, liquidation or dissolution permitted under Section
7.3.




          Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge at or before maturity, all of its obligations and liabilities
(including without limitation all tax liabilities and claims that could result in a statutory Lien)
before the same shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.




          Section 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in conformity with
GAAP.




          Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, to visit
and inspect its properties, to examine its books and records and to make copies and take extracts
therefrom, and to discuss its affairs, finances and accounts with any of its officers and with its
independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, if a Default or an Event of Default has occurred and is continuing, no
prior notice shall be required. All reasonable expenses incurred by the Administrative Agent
and, at any time after the occurrence and during the continuance of a Default or an Event of
Default, any Lenders in connection with any such visit, inspection, audit, examination and
discussions shall be borne by the Borrower.




51









 








          Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, except where the
failure to do so, either individually or it the aggregate, could not reasonably be expected to
result in a Material Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the properties and business
of its Subsidiaries, against loss or damage of the kinds customarily insured against by companies
in the same or similar businesses operating in the same or similar locations. In addition, and not
in limitation of the foregoing, the Borrower shall maintain and keep in force insurance coverage on
its inventory, as is consistent with best industry practices. The Borrower shall at all times
cause the Administrative Agent to be named as additional insured on all of its casualty and
liability policies.




          Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the
proceeds of all Loans to finance working capital needs, to refinance existing debt, to finance
Permitted Acquisitions and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that would violate any rule or regulation of the Board of Governors of the Federal
Reserve System, including Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes.




          Section 5.10. Additional Subsidiaries.




          (a) The Borrower may, after the Closing Date, acquire or form additional Domestic Subsidiaries
so long as the Borrower, within ten (10) business days after any such Domestic Subsidiary is
acquired or formed, (i) notifies the Administrative Agent and the Lenders thereof and (ii) causes
such Domestic Subsidiary to become a Subsidiary Loan Party by executing agreements in the form of
Annex I to the Subsidiary Guaranty Agreement and (iii) causes such Domestic Subsidiary to deliver
simultaneously therewith similar documents applicable to such Domestic Subsidiary described in
Section 3.1 as reasonably requested by the Administrative Agent.




          (b) The Borrower shall not acquire or form any additional Foreign Subsidiaries;
provided, however, that the Borrower may acquire or form additional Subsidiaries
incorporated under the laws of Canada so long as the Borrower, within ten (10) business days after
any such Foreign Subsidiary is acquired or formed, (i) notifies the Administrative Agent and the
Lenders thereof, (ii) delivers stock certificates and related pledge agreements, in form
satisfactory to a collateral agent acceptable to the Required Lenders, evidencing the pledge of
66% (or such greater percentage which would not result in material adverse tax consequences) of the
issued and outstanding capital stock entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding capital stock not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) of each such Subsidiary directly owned by the
Borrower or any Domestic Subsidiary to secure the Obligations, (iii) causes such Subsidiary to
deliver simultaneously therewith similar documents applicable to such Foreign Subsidiary described
in Section 3.1 as reasonably requested by the



52









 






Administrative Agent, and (iv) the
Administrative Agent enters into an intercreditor agreement, in form and substance satisfactory to
the Required Lenders, with all other creditors of the Borrower having a similar covenant with the
Borrower.




          Section 5.11. Post-Closing Covenant. Within 45 days after the Closing Date or such
later date to which the Administrative Agent shall agree in writing, Borrower will deliver a
certificate of good standing or existence, as may be available, with respect to the Borrower from
the Secretary of State of Florida.




ARTICLE VI




FINANCIAL COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the
principal of or interest on or any Loan remains unpaid or any fee or any LC Disbursement remains
unpaid or any Letter of Credit remains outstanding:




          Section 6.1. Total Debt to EBITDA Ratio. The Borrower and its Subsidiaries shall
maintain, as of the last day of each fiscal quarter of the Borrower, commencing with the fiscal
quarter ending June 30, 2008, a Total Debt to EBITDA Ratio of not greater than 3.00:1.00.




          Section 6.2. Total Adjusted Debt to Total Adjusted Capital Ratio. The Borrower and
its Subsidiaries shall maintain, as of the last day of each fiscal quarter of the Borrower,
commencing with the fiscal quarter ending June 30, 2008, a Total Adjusted Debt to Total Adjusted
Capital Ratio of not greater than 0.60:1.00.




          Section 6.3. Fixed Charge Coverage Ratio. The Borrower and its Subsidiaries shall
maintain, as of the last day of each fiscal quarter of the Borrower, commencing with the fiscal
quarter ending June 30, 2008, a Fixed Charge Coverage Ratio of not less than 2:00 to 1:00.




          Section 6.4. Minimum Consolidated Net Worth. The Borrower and its Subsidiaries shall
maintain a Consolidated Net Worth of an amount equal to the sum of (i) $631,391,000, plus (ii) 50%
of cumulative positive Consolidated Net Income accrued during each fiscal quarter ending
thereafter, since the end of such fiscal quarter of the Borrower, commencing with the fiscal
quarter ending June 30, 2008, plus (iii) 100% of the net proceeds from any public or private
offering of common stock of the Borrower after the Closing Date, calculated quarterly on the last
day of each fiscal quarter; provided, that if Consolidated Net Income is negative in any
fiscal quarter the amount added for such fiscal quarter shall be zero
and such negative Consolidated Net Income shall not reduce the amount of Consolidated Net
Income added from any previous fiscal quarter. Promptly upon the consummation of any offering of
common stock of the Borrower, the Borrower shall notify the Administrative Agent in writing of the
amount of the proceeds thereof.




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ARTICLE
VII


NEGATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Commitment hereunder or the
principal of or interest on any Loan remains unpaid or any fee or any LC Disbursement remains
unpaid or any Letter of Credit remains outstanding:




          Section 7.1. Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:




          (a) Indebtedness created pursuant to the Loan Documents;




          (b) Indebtedness existing on the date hereof and set forth on Schedule 7.1 and
extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;




          (c) Indebtedness of the Borrower or any Subsidiary incurred after the Closing Date to finance
the acquisition, construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that
such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvements or extensions, renewals, and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided further, that the aggregate principal amount of such Indebtedness
does not exceed $30,000,000 at any time outstanding;




          (d) Indebtedness of the Borrower owing to any Loan Party and of any Loan Party owing to the
Borrower or any other Loan Party;




          (e) Guarantees by the Borrower of Indebtedness of any Loan Party and by any Loan Party of
Indebtedness of the Borrower or any other Loan Party;




          (f) [Reserved];




          (g) Guarantees by the Borrower of Indebtedness of certain franchise operators of the Borrower,
provided such guarantees are given by the Borrower in connection with (1) loans made pursuant to
the terms of the Loan Facility Agreement, (2) loans made pursuant to the
terms of the RIMCO Loan Facility Agreement in an aggregate principal amount not to exceed
Seven Million Five Hundred Thousand Dollars ($7,500,000), (3) loans made by SunTrust Bank to
finance the purchase of equity interests in certain franchises of the Borrower in an aggregate
principal amount not to exceed Twenty Million Dollars ($20,000,000), (4) loans made pursuant to
terms of the Rosey Rentals Loan Facility Agreement in an aggregate principal amount not to



54









 






exceed
Forty Million Dollars ($40,000,000), and (5) loans made pursuant to the terms of the RBC Loan
Facility Agreement in an aggregate principal amount not to exceed Fifty Million Canadian Dollars
(Cdn. $50,000,000);




          (h) endorsed negotiable instruments for collection in the ordinary course of business;




          (i) Guarantees by Borrower of Indebtedness of Foreign Subsidiaries, provided that the amount
of such Guaranteed Indebtedness, together with the principal amount any loans to Foreign
Subsidiaries permitted to be made under clause (l) below, does not exceed $30,000,000 at any time;




          (j) Loans by Borrower to its Foreign Subsidiaries, provided that the amount of such loans,
together with the amount of Guaranteed Indebtedness permitted to be incurred under clause (i)
above, does not exceed $30,000,000 at any time; and




          (k) Indebtedness as evidenced by (i) the 6.88% Senior Notes of Borrower in the amount of
$50,000,000 issued pursuant to the 2002 Note Agreement and (ii) the 5.03% Senior Notes of Borrower
in the amount of $60,000,000 issued pursuant to the 2005 Note Agreement, together with (x)
extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof above $110,000,000 or shorten the maturity or the weighted average life
thereof and (y) Guarantees of such Indebtedness by any Subsidiaries of Borrower; and




          (l) other unsecured Indebtedness in an aggregate principal amount not to exceed $75,000,000 at
any time outstanding.




          Section 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired (other than any shares of stock of the Borrower that are
repurchased by the Borrower and retired or held by the Borrower), except:




          (a) Permitted Encumbrances;




          (b) any Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to
any other property or asset of the Borrower or any Subsidiary;




          (c) purchase money Liens upon or in any fixed or capital assets to secure the purchase price
or the cost of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by Section
7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the
construction thereof; (iii) such Lien does not extend
to any other asset; and (iv) the Indebtedness secured thereby does not exceed the cost of
acquiring,



55









 






constructing or improving such fixed or capital assets together with all interest, fees
and costs incurred in connection therewith;




          (d) any Lien (i) existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is
merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset
prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date that such Person
becomes a Subsidiary or the date of such merger or the date of such acquisition; and




          (e) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through
(d) of this Section; provided, that the principal amount of the Indebtedness secured
thereby is not increased and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby;




          (f) [Reserved];




          (g) Liens securing the Obligations; and




          (h) Liens on shares of stock of any Foreign Subsidiary to the extent that the Obligations are
secured pari passu with any other Indebtedness or obligations secured thereby.




          Section 7.3. Fundamental Changes.




          (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
into any other Person, or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all
or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii) any
Subsidiary may merge into another Subsidiary or the Borrower; provided, however,
that if the Borrower is a party to such merger, the Borrower shall be the surviving Person,
provided, further, that if any Subsidiary to such merger is a Subsidiary Loan
Party, the Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or
to a Subsidiary Loan Party, (iv) any other Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower, is not materially
disadvantageous to the Lenders, and such Subsidiary dissolves into another Subsidiary Loan Party or
the Borrower; provided, that any such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted unless also permitted by
Section 7.4.




56









 








          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage in any
business other than businesses of the type conducted by the Borrower and its Subsidiaries on the
date hereof and businesses reasonably related thereto.




          Section 7.4. Investments, Loans, Etc. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to, any obligations of, or make or
permit to exist any investment or any other interest in, any other Person (all of the foregoing
being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person that constitute a business unit, or create
or form any Subsidiary, except:




          (a) Investments (other than Permitted Investments) existing on the date hereof and set forth
on Schedule 7.4 (including Investments in Subsidiaries);




          (b) Permitted Investments;




          (c) Permitted Acquisitions;




          (d) Investments made by the Borrower in or to any other Loan Party and by any other Loan Party
to the Borrower or in or to another Loan Party;




          (e) loans or advances to employees, officers, stockholders or directors of the Borrower or any
Subsidiary in the ordinary course of business; provided, however, that the aggregate amount of all
such loans and advances does not exceed $1,000,000 at any time;




          (f) (i) loans to franchise operators and owners of franchises acquired or funded pursuant to
the Loan Facility Agreement, the RIMCO Loan Facility Agreement, the Rosey Rentals Loan Facility
Agreement and the RBC Loan Facility Agreement and (ii) other adequately secured and properly
monitored loans to franchise operators and owners of franchises in an aggregate principal amount
outstanding, together with loans outstanding under clause (i) of this Section 7.4(f), not to exceed
the aggregate facility amounts available for borrowing by franchise operators that the Company is
permitted to guarantee pursuant to Section 7.1;




          (g) acquire and own stock, obligations or securities received in settlement of debts (created
in the ordinary course of business) owing to any Subsidiary Loan Party or any of their
Subsidiaries;




          (h) loans to Foreign Subsidiaries to the extent permitted under Section 7.1;




          (i) loans to franchise operators to extent permitted under Section 7.1; and




          (j) other Investments not to exceed $25,000,000 at any time;





57









 








          Section 7.5. Restricted Payments. The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend on
any class of its stock, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of the Borrower or any
options, warrants, or other rights to purchase such common stock or such subordinated Indebtedness,
whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends
payable by the Borrower solely in shares of any class of its common stock, (ii) Restricted Payments
made by any Subsidiary to the Borrower or to another Subsidiary Loan Party and (iii) so long as no
Default or Event of Default has occurred and is continuing at the time such dividend is paid or
redemption or stock repurchase is made, dividends, distributions, redemptions and stock repurchases
paid in cash which do not exceed fifty percent (50%) of Consolidated Net Income of Borrower (if
greater that $0) for the immediately preceding Fiscal Year; provided, that if the aggregate
amount of all such dividends and distributions paid in cash in any Fiscal Year are less than the
amount permitted by clause (iii) above, the excess permitted amount for such year may be carried
forward once to the next succeeding Fiscal Year.




          Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s common stock to any Person other than the Borrower or
a Subsidiary Loan Party (or to qualify directors if required by applicable law), except (a) the
sale or other disposition for fair market value of obsolete or worn out property or other property
not necessary for operations disposed of in the ordinary course of business; (b) the sale of
inventory and Permitted Investments in the ordinary course of business, (c) sales and dispositions
permitted under Section 7.3(a) and sale leaseback transactions permitted under Section
7.9, (d) sales of assets, business or property identified in writing to Administrative Agent
and approved by Lenders in writing prior to the Closing Date, (e) sales of assets in connection
with the sale of a store owned by Borrower to a franchisee of Borrower and (f) other sales of
assets made on or after the Closing Date not to exceed $30,000,000 in book value in the aggregate;
provided that with respect to sales permitted under clauses (d) and (e), (x) no Event of Default
shall have occurred and be continuing or result from such sale and (y) the net cash proceeds from
such sale shall be used to pay down the outstanding Loans without a permanent reduction in the
Revolving Commitments.




          Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between
or among the Borrower and its wholly-owned Subsidiaries not involving any other Affiliates, (c)
any Restricted Payment permitted by Section 7.5 and (d) transactions permitted under
Section 7.4(e).




58









 








          Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to
transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i) the foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement, any other Transaction Document, the Loan Facility Agreement, the Rosey
Rentals Loan Facility Agreement, the 2002 Note Agreement, or the 2005 Note Agreement, (ii) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only
to the Subsidiary that is sold and such sale is permitted hereunder, (iii) clause (a) shall not
apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness, and (iv) clause (a) shall not apply to customary provisions in
leases restricting the assignment thereof.




          Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property sold or transferred;
provided, however, the Borrower may engage in such sale and leaseback transactions so long as the
aggregate fair market value of all assets sold and leased back does not exceed $300,000,000 during
the term of this Agreement.




          Section 7.10. Amendment to Material Documents. The Borrower will not, and will not
permit any Subsidiary to, amend, modify or waive any of its rights in a manner materially adverse
to the Lenders under its certificate of incorporation, bylaws or other organizational documents.




          Section 7.11. Accounting Changes. The Borrower will not, and will not permit any
Subsidiary to, make any significant change in accounting treatment or reporting practices, except
as required by GAAP, or change the fiscal year of the Borrower or of any Subsidiary, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of the Borrower.




          Section 7.12. Hedging Transactions. The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered
into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its liabilities. Solely
for the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered into for
speculative purposes or of a speculative nature is not a Hedging Transaction entered into in the
ordinary course of business to hedge or mitigate risks.




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          Section 7.13. Activities of Aaron Rents Puerto Rico. Unless Aaron Rents Puerto Rico
has become a Subsidiary Loan Party in accordance with the terms of Section 5.10 of this Agreement,
the Borrower will not permit Aaron Rents Puerto Rico to engage in any business or activity other
than (a) maintaining its existence and/or winding up its affairs and (b) activities related to the
completion of the tax audit ongoing on the Closing Date, and no Loan Party shall make any
additional Investment in Aaron Rents Puerto Rico other than in connection with the business and
activities set forth in clause (a) and (b) above.




ARTICLE VIII




EVENTS OF DEFAULT




          Section 8.1. Events of Default. If any of the following events (each an “Event of
Default”) shall occur:




          (a) the Borrower shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or otherwise; or




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a) of this Article) payable under this Agreement or any
other Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three (3) Business Days; or




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement or any other Loan Document (including the
Schedules attached thereto) and any amendments or modifications hereof or waivers hereunder, or in
any certificate, report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove to be incorrect in any
material respect when made or deemed made or submitted; or




          (d) the Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 5.1, 5.2, or 5.3 (solely with respect to the Borrower’s existence)
or Articles VI or VII; or




          (e) any Loan Party shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those referred to in clauses (a), (b) and (d) above), and such failure
shall remain unremedied for 30 days after the earlier of (i) any officer of the Borrower becomes
aware of such failure, or (ii) notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or




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          (f) any event of default (after giving effect to any grace period) shall have occurred and be
continuing under the Loan Facility Documents or the RIMCO Loan Facility Documents, or all or any
part of the obligations due and owing under the Loan Facility Agreement or the RIMCO Loan Facility
Agreement are accelerated, declared to be due and payable, or required to be prepaid or redeemed,
in each case prior to the stated maturity thereof;




          (g) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of or premium or interest on any Material Indebtedness that
is outstanding, when and as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall exist under any agreement or
instrument relating to such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or condition is to
accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable; or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; or




          (h) the Borrower or any Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i) of this Section,
(iii) apply for or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any
action for the purpose of effecting any of the foregoing; or




          (i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any such case, such
proceeding or petition shall remain undismissed for a period of 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or




          (j) the Borrower or any Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or




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          (k) an ERISA Event shall have occurred that when taken together with other ERISA Events that
have occurred, could reasonably be expected to result in liability to the Borrower and the
Subsidiaries in an aggregate amount exceeding $2,500,000 or otherwise having a Material Adverse
Effect; or




          (l) judgments and orders for the payment of money in excess of $10,000,000 in the aggregate,
to the extent not covered by insurance for which the insurance carrier has acknowledged coverage,
shall be rendered against the Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii) there shall be a
period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or




          (m) any non-monetary judgment or order shall be rendered against the Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be
a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or




          (n) a Change in Control shall occur or exist; or




          (o) any provision of any Subsidiary Guarantee Agreement shall for any reason cease to be valid
and binding on, or enforceable against, any Subsidiary Loan Party, or any Subsidiary Loan Party
shall so state in writing, or any Subsidiary Loan Party shall seek to terminate its Subsidiary
Guarantee Agreement;




          (p) any “Event of Default” occurs under any other Loan Document;



then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Section) and at any time thereafter during the continuance of such event, the
Administrative Agent may, and upon the written request of the Required Lenders shall, by notice to
the Borrower, take any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall terminate immediately;
(ii) declare the principal of and any accrued interest on the Loans, and all other Obligations
owing hereunder, to be, whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower and (iii) exercise all remedies contained in any other Loan Document; and that, if an
Event of Default specified in either clause (h) or (i) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.





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ARTICLE IX




THE ADMINISTRATIVE AGENT




          Section 9.1. Appointment of Administrative Agent. (a) Each Lender irrevocably
appoints SunTrust Bank as the Administrative Agent and authorizes it to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and powers that are
reasonably incidental thereto. The Administrative Agent may perform any of its duties hereunder by
or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent and the Related Parties of the Administrative Agent and
any such sub-agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent.




          (b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i) provided to the Administrative Agent in this Article IX with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as the term “Administrative Agent” as used in this Article IX
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.




          Section 9.2. Nature of Duties of Administrative Agent. The Administrative Agent shall
not have any duties or obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that
is communicated to or obtained by the Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 10.2) or in
the absence of its own gross negligence or willful misconduct. The Administrative Agent shall not
be deemed to have knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)



63









 






the contents of
any certificate, report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the covenants, agreements, or
other terms and conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.




          Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders, the
Swingline Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each of the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, continue to make its own decisions in
taking or not taking of any action under or based on this Agreement, any related agreement or any
document furnished hereunder or thereunder.




          Section 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent
shall request instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.




          Section 9.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative Agent may also rely
upon any statement made to it orally or by telephone and believed by it to be made by the proper
Person and shall not incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any action taken or
not taken by it in accordance with the advice of such counsel, accountants or experts.




          Section 9.6. The Administrative Agent in its Individual Capacity. The bank serving as
the Administrative Agent shall have the same rights and powers under this Agreement and any other
Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity.



64









 






The bank acting
as the Administrative Agent and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.




          Section 9.7. Successor Administrative Agent.




          (a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to the approval by the Borrower if no Default or Event of
Default shall exist at such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.




          (b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent’s resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (i) the retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above. After any retiring
Administrative Agent’s resignation hereunder, the provisions of this Article IX shall continue in
effect for the benefit of such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving as the Administrative
Agent.




          Section 9.8. Authorization to Execute other Loan Documents. Each Lender hereby
authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents other
than this Agreement.




          Section 9.9. Withholding Tax. To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form was not delivered,
was not properly executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstances that rendered the exemption from,



65









 






or reduction of, withholding tax
ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent (to the
extent that the Administrative Agent has not already been reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest,
together with all expenses incurred, including legal expenses, allocated staff costs and any out of
pocket expenses.




          Section 9.10. Administrative Agent May File Proofs of Claim.





          (a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to any Loan Party, the Administrative Agent (irrespective of whether the principal of any
Loan or any Revolving Credit Exposure shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise




          (b) To file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans or Revolving Credit Exposure and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, Issuing Bank and the Administrative Agent and its agents and counsel and all
other amounts due the Lenders, Issuing Bank and the Administrative Agent under Section
10.3) allowed in such judicial proceeding; and




          (c) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same; and




          (d) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Lender and the
Issuing Bank to make such payments to the Administrative Agent and, if the Administrative
Agent shall consent to the making of such payments directly to the Lenders and the Issuing
Bank, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative
Agent and its agents and counsel, and any other amounts due the Administrative Agent under
Section 10.3.




          (e) Nothing contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the Issuing Bank any
plan of reorganization, arrangement, adjustment or composition affecting the Obligations or
the rights of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.



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ARTICLE X




MISCELLANEOUS




          Section 10.1. Notices.





     (a) Written Notices.




     (i) Except in the case of notices and other communications expressly permitted to be
given by telephone, all notices and other communications to any party herein to be effective
shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:



	 	 	 	 	 
	 

	 	To the Borrower:
	 	Aaron Rents, Inc.
	 

	 	 	 	1100 Aaron Building
	 

	 	 	 	309 East Paces Ferry Road, NE
	 

	 	 	 	Atlanta, GA 30305-2377
	 

	 	 	 	Attn: Gil Danielson
	 

	 	 	 	Telecopy Number: 404-240-6520
	 
	 	 	 	 
	 

	 	 	 	with a copy to:
	 
	 	 	 	 
	 

	 	 	 	Aaron Rents, Inc.
	 

	 	 	 	1100 Aaron Building
	 

	 	 	 	309 East Paces Ferry Road, N.E.
	 

	 	 	 	Atlanta, GA 30305-2377
	 

	 	 	 	Attn: General Counsel
	 

	 	 	 	Telecopy Number: (678) 402-3512
	 
	 	 	 	 
	 

	 	To the Administrative Agent:
	 	SunTrust Bank
	 

	 	 	 	303 Peachtree Street NE /3rd Floor/MC 2005
	 

	 	 	 	Atlanta, Georgia 30308
	 

	 	 	 	Attention: Don Besch
	 

	 	 	 	Telecopy Number: (404) 575-2693
	 
	 	 	 	 
	 

	 	To the Issuing Bank:
	 	SunTrust Bank
	 

	 	 	 	25 Park Place, N. E./Mail Code 3706
	 

	 	 	 	Atlanta, Georgia 30303
	 

	 	 	 	Attention: Letter of Credit Department
	 

	 	 	 	Telecopy Number: (404) 588-8129
	 
	 	 	 	 
	 

	 	To the Swingline Lender:
	 	SunTrust Bank
	 

	 	 	 	303 Peachtree Street NE /3rd Floor/MC 2005






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	 	 	 	Atlanta, Georgia 30308
	 

	 	 	 	Attention: Don Besch
	 

	 	 	 	Telecopy Number: (404) 575-2693
	 
	 	 	 	 
	 

	 	To any other Lender:
	 	the address set forth on the signature pages hereto or in the Assignment and Acceptance that such Lender executes






          Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and other
communications shall, when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date deposited
into the mails or if delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Issuing Bank or the Swingline Lender shall not be effective until
actually received by such Person at its address specified in this Section 10.1.




          (ii) Any agreement of the Administrative Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at the request
of the Borrower. The Administrative Agent and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Borrower to give such
notice and the Administrative Agent and Lenders shall not have any liability to the Borrower
or other Person on account of any action taken or not taken by the Administrative Agent or
the Lenders in reliance upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any
way or to any extent by any failure of the Administrative Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with the terms
understood by the Administrative Agent and the Lenders to be contained in any such
telephonic or facsimile notice.




          (b) Electronic Communications.




          (i) Notices and other communications to the Lenders and the Issuing Bank hereunder may
be delivered or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to
Article 2 unless such Lender, the Issuing Bank, as applicable, and Administrative
Agent have agreed to receive notices under such Section by electronic communication and have
agreed to the procedures governing such communications. Administrative Agent or Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.




68









 








          (ii) Unless Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement); provided
that if such notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website
address therefor.




          Section 10.2. Waiver; Amendments.




          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent, or any Lender, shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by
law. No waiver of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as
a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or Event of Default at
the time.




          (b) No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and the Required
Lenders or the Borrower and the Administrative Agent with the consent of the Required Lenders and
then such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.20 (b) or (c) in a
manner that would alter the pro rata sharing of payments required



69









 






thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the consent of each Lender; (vi) release any guarantor or
limit the liability of any such guarantor under any guaranty agreement, without the written consent
of each Lender; or (vii) release all or substantially all collateral (if any) securing any of the
Obligations or agree to subordinate any Lien in such collateral to any other creditor of the
Borrower or any Subsidiary, without the written consent of each Lender; provided further,
that no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of
the Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written
consent of such Person. Notwithstanding anything contained herein to the contrary, this Agreement
may be amended and restated without the consent of any Lender (but with the consent of the Borrower
and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender
shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such
Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of
Sections 2.17, 2.18, 2.19 and 10.3), such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this Agreement.




          Section 10.3. Expenses; Indemnification.




          (a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of the Loan Documents
and any amendments, modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in
connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section 10.3, or in connection with the Loans made or any
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any



70









 






Indemnitee by any third party or
by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i)
the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) the use by any Person of any information or materials obtained
through Syndtrak or any other Internet Web Sites, (iv) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, in
each case so long as the Borrower or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction. No
Indemnitee shall be liable for any damages arising from the use by others of any information or
other materials obtained through Syntrak or any other Internet or intranet website, except as a
result of such Indemnitee’s gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.




          (c) The Borrower shall pay, and hold the Administrative Agent, the Issuing Bank and each of
the Lenders harmless from and against, any and all present and future stamp, documentary, and other
similar taxes with respect to this Agreement and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the
Administrative Agent, the Issuing Bank and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay such taxes.




          (d) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank
or the Swingline Lender in its capacity as such.




71









 








          (e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.




          (f) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor.




          Section 10.4. Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




          (b) Any Lender may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitments, Loans, and
other Revolving Credit Exposure at the time owing to it); provided that any such assignment
shall be subject to the following conditions:




          (i) Minimum Amounts.





     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitments, Loans and other Revolving Credit Exposure at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans and
Revolving Credit Exposure outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Loans and Revolving
Credit Exposure of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with



72









 






respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Acceptance, as of the Trade Date) shall not be less than $1,000,000,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans, other Revolving Credit Exposure or the
Commitments assigned.




     (iii) Required Consents. The following consents (and no others) shall be
required for any assignment:




     (A) the prior written consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an Event of Default
has occurred and is continuing at the time of such assignment or (y) such assignment
is to a Lender, an Affiliate of a Lender or an Approved Fund;




     (B) the prior written consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for assignments to a Person
that is not a Lender with a Commitment;




     (C) the prior written consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or
more Letters of Credit (whether or not then outstanding), and the prior written
consent of the Swingline Lender (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment in respect of the Revolving Credit
Commitments; and




     (D) any consent required pursuant to paragraph (b)(i)(B) of this Section
10.4.




     (iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is
already a Lender and (D) the documents required under Section 2.19 if such assignee
is a Foreign Lender.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.




73












 




Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.17, 2.18, 2.19 and
10.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not fully comply with this paragraph (b) shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section 10.4. If the consent of the Borrower to an assignment is
required hereunder (including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall be deemed to have given its consent ten Business
Days after the date notice thereof has actually been delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is expressly refused by the Borrower
prior to such tenth Business Day.




          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). Information
contained in the Register with respect to any Lender shall be available for inspection by such
Lender at any reasonable time and from time to time upon reasonable prior notice; information
contained in the Register shall also be available for inspection by the Borrower at any reasonable
time and from time to time upon reasonable prior notice. In establishing and maintaining the
Register, Administrative Agent shall serve as Borrower’s agent solely for tax purposes and solely
with respect to the actions described in this Section, and the Borrower hereby agrees that,
to the extent SunTrust Bank serves in such capacity, SunTrust Bank and its officers, directors,
employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”




          (d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Swingline Lender or the Issuing Bank sell participations to any Person
(other than a natural person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders, the Issuing Bank
and the Swingline Lender shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.




74









 








          (e) Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the following to the
extent affecting such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section 10.4 or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders which are required to waive, amend
or modify any rights hereunder or make any determination or grant any consent hereunder, without
the consent of each Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of each Lender except to the extent such
release is expressly provided under the terms of such guaranty agreement; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations. Subject to this Section
10.4, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.17, 2.18, and 2.19 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section 10.4. To the
extent permitted by law, each Participant also shall be entitled to the benefits of
Section 10.7 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.20 as though it were a Lender.




          (f) A Participant shall not be entitled to receive any greater payment under Section
2.17 and Section 2.19 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.19
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.19(e) as though it were a
Lender.




          (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.






75









 






          Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.




          (a) This Agreement and the other Loan Documents shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles thereof) of the State
of Georgia.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of the United States District Court of the Northern District of
Georgia and of any state court of the State of Georgia located in Fulton County and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such Georgia state court or , to the extent permitted by applicable law, such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document against the Borrower
or its properties in the courts of any jurisdiction.




          (c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in paragraph (b) of this Section. Each of
the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.




          Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS




76









 







BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender and the Issuing
Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final) of the Borrower at
any time held or other obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of such
set-off and application.




          Section 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof and supersede all prior
agreements and understandings, oral or written, regarding such subject matters.




          Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long
as the Commitments have not expired or terminated. The provisions of Sections 2.17,
2.18, 2.19, and 10.3 and Article IX shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof. All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of
this Agreement and the other Loan Documents, and the making of the Loans and the issuance of
the Letters of Credit.





77









 








          Section 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.




          Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and each Lender agrees to take normal and reasonable precautions to maintain the confidentiality of
any information designated in writing as confidential and provided to it by the Borrower or any
Subsidiary, except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to the extent requested by any
regulatory agency or authority, (iv) to the extent that such information becomes publicly available
other than as a result of a breach of this Section, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing on
a nonconfidential basis from a source other than the Borrower, (v) in connection with the exercise
of any remedy hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vi) with the
consent of the Borrower. Any Person required to maintain the confidentiality of any information as
provided for in this Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.




          Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which may be treated as interest on such Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by a Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such Lender.




          Section 10.13. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify
and record information that identifies each Loan Party, which information includes the name




78









 







and
address of such Loan Party and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act.




(remainder of page left intentionally blank)




79









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed under
seal in the case of the Borrower by their respective authorized officers as of the day and year
first above written.




	 	 	 	 	 
	 	 	AARON RENTS, INC.
	 
	 	 	 	 
	 

	 	By
	 	/s/ Gilbert L. Danielson
	 

	 	 	 	 
	 

	 	 	 	Gilbert L. Danielson
	 

	 	 	 	Executive Vice President and
	 

	 	 	 	Chief Financial Officer





[SEAL]



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	 	 	SUNTRUST BANK,
	 	 	as Administrative Agent, as Issuing Bank, as Swingline Lender and as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/ Kelly Gunter
	 

	 	 	 	 
	 	 	Name: Kelly Gunter
	 	 	Title: Vice President






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	 	 	REGIONS BANK,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/ Stephen H. Lee
	 

	 	 	 	 
	 	 	Name: Stephen H. Lee
	 	 	Title: Senior Vice President






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	 	 	BRANCH BANKING AND TRUST COMPANY,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/ Paul E. McLaughlin
	 

	 	 	 	 
	 	 	Name: Paul E. McLaughlin
	 	 	Title: Senior Vice President






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	 	 	WACHOVIA BANK, NATIONAL
	 	 	ASSOCIATION, as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/ Martha M. Winters
	 

	 	 	 	 
	 	 	Name: Martha M. Winters
	 	 	Title: Director






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	 	 	BANK OF AMERICA, N.A.,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By
	 	/s/ Ken Bauchle
	 

	 	 	 	 
	 	 	Name: Ken Bauchle
	 	 	Title: Senior Vice President






[SIGNATURE PAGE TO

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SCHEDULE 1.1(a)




APPLICABLE MARGIN AND APPLICABLE PERCENTAGE




	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable Margin	 	Applicable Margin	 	Applicable
	Pricing	 	 	 	for Eurodollar	 	for Base Rate	 	Percentage for
	Level	 	Leverage Ratio	 	Loans	 	Loans	 	Commitment Fee
	I

	 	Less than 1.50:1.00
	 	0.875% per annum
	 	0% per annum
	 	0.15% per annum
	 
	 	 	 	 	 	 	 	 
	II

	 	Less than 2.00:1.00
but greater than or
equal to 1.50:1.00
	 	1.00% per annum
	 	0% per annum
	 	0.20% per annum
	 
	 	 	 	 	 	 	 	 
	III

	 	Less than 2.50:1.00
but greater than or
equal to 2.00:1.00
	 	1.25% per annum
	 	0% per annum
	 	0.25% per annum
	 
	 	 	 	 	 	 	 	 
	IV

	 	Greater than or
equal to 2.50:1.00
	 	1.50% per annum
	 	0% per annum
	 	0.30% per annum







 









 








SCHEDULE 1.1(b)




LENDER COMMITMENTS




	 	 	 	 	 
	                
   Lender	 	Commitment Amount	 
	SunTrust Bank
	 	$	35,000,000	 
	Regions Bank
	 	$	35,000,000	 
	Branch Banking & Trust Company
	 	$	35,000,000	 
	Wachovia Bank, National Association
	 	$	20,000,000	 
	Bank of America, N.A.
	 	$	15,000,000	 
	Total:
	 	$	140,000,000.00	 
	 
	 	 	 





 









 






SCHEDULE 4.5(a)




LITIGATION




[Omitted from SEC filing.]



 









 





SCHEDULE 4.5(b)




ENVIRONMENTAL MATTERS




[Omitted from SEC filing.]



 









 





SCHEDULE 4.14




SUBSIDIARIES




[Omitted from SEC filing.]



 









 





SCHEDULE 7.1




OUTSTANDING INDEBTEDNESS




[Omitted from SEC filing.]



 









 





SCHEDULE 7.2




EXISTING LIENS




[Omitted from SEC filing.]



 









 





SCHEDULE 7.4




EXISTING INVESTMENTS



[Omitted from SEC filing.]