Exhibit 10.2


 


REVOLVING CREDIT AGREEMENT


 


dated as of March 28, 2008


 


among


 


ROLLINS, INC.,


as Borrower,


 


 


THE LENDERS FROM TIME TO TIME PARTY HERETO,


 


 


SUNTRUST BANK,


as Administrative Agent


 


and


 


 


BANK OF AMERICA, N.A.,


as Syndication Agent




 


 





 


 


SUNTRUST ROBINSON HUMPHREY, INC.,


as
Joint Lead Arranger and Book Manager


 


 


and


 


 


BANC OF AMERICA SECURITIES LLC,


as
Joint Lead Arranger


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I            DEFINITIONS; CONSTRUCTION

  	
  1

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
  Section 1.2.

  	
  Classifications of Loans and Borrowings

  	
  19

  
	
  Section 1.3.

  	
  Accounting Terms and Determination

  	
  19

  
	
  Section 1.4.

  	
  Terms Generally

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE II           AMOUNT AND TERMS OF THE REVOLVING
  COMMITMENTS

  	
  20

  
	
  Section 2.1.

  	
  General Description of Facilities

  	
  20

  
	
  Section 2.2.

  	
  Revolving Loans

  	
  20

  
	
  Section 2.3.

  	
  Procedure for Revolving Borrowings

  	
  20

  
	
  Section 2.4.

  	
  Swingline Commitment

  	
  21

  
	
  Section 2.5.

  	
  Funding of Borrowings

  	
  22

  
	
  Section 2.6.

  	
  Interest Elections

  	
  23

  
	
  Section 2.7.

  	
  Optional Reduction and Termination of Revolving Commitments

  	
  24

  
	
  Section 2.8.

  	
  Repayment of Loans

  	
  25

  
	
  Section 2.9.

  	
  Evidence of Indebtedness

  	
  25

  
	
  Section 2.10.

  	
  Optional Prepayments

  	
  25

  
	
  Section 2.11.

  	
  Interest on Loans

  	
  26

  
	
  Section 2.12.

  	
  Fees

  	
  26

  
	
  Section 2.13.

  	
  Computation of Interest and Fees

  	
  27

  
	
  Section 2.14.

  	
  Inability to Determine Interest Rates

  	
  27

  
	
  Section 2.15.

  	
  Illegality

  	
  28

  
	
  Section 2.16.

  	
  Increased Costs

  	
  28

  
	
  Section 2.17.

  	
  Funding Indemnity

  	
  30

  
	
  Section 2.18.

  	
  Taxes

  	
  30

  
	
  Section 2.19.

  	
  Payments Generally; Pro Rata Treatment; Sharing of Set-offs

  	
  32

  
	
  Section 2.20.

  	
  Letters of Credit

  	
  33

  
	
  Section 2.21.

  	
  Increase of Revolving Commitments; Additional Lenders

  	
  37

  
	
  Section 2.22.

  	
  Mitigation of Obligations

  	
  38

  
	
  Section 2.23.

  	
  Replacement of Lenders

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE III          CONDITIONS PRECEDENT TO LOANS AND
  LETTERS OF CREDIT

  	
  39

  
	
  Section 3.1.

  	
  Conditions To Effectiveness

  	
  39

  
	
  Section 3.2.

  	
  Each Credit Event

  	
  41

  
	
  Section 3.3.

  	
  Delivery of Documents

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV          REPRESENTATIONS AND WARRANTIES

  	
  42

  
	
  Section 4.1.

  	
  Existence; Power

  	
  42

  
	
  Section 4.2.

  	
  Organizational Power; Authorization

  	
  42

  
	
  Section 4.3.

  	
  Governmental Approvals; No Conflicts

  	
  43

  
	
  Section 4.4.

  	
  Financial Statements

  	
  43

  
	
  Section 4.5.

  	
  Litigation and Environmental Matters

  	
  43

  



 

















 


	
  Section 4.6.

  	
  Compliance with Laws and Agreements

  	
  43

  
	
  Section 4.7.

  	
  Investment Company Act, Etc.

  	
  44

  
	
  Section 4.8.

  	
  Taxes

  	
  44

  
	
  Section 4.9.

  	
  Margin Regulations

  	
  44

  
	
  Section 4.10.

  	
  ERISA

  	
  44

  
	
  Section 4.11.

  	
  Ownership of Property

  	
  44

  
	
  Section 4.12.

  	
  Disclosure

  	
  45

  
	
  Section 4.13.

  	
  Labor Relations

  	
  45

  
	
  Section 4.14.

  	
  Subsidiaries

  	
  45

  
	
  Section 4.15.

  	
  Insolvency

  	
  46

  
	
  Section 4.16.

  	
  OFAC

  	
  46

  
	
  Section 4.17.

  	
  Patriot Act

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE V           AFFIRMATIVE COVENANTS

  	
  46

  
	
  Section 5.1.

  	
  Financial Statements and Other Information

  	
  46

  
	
  Section 5.2.

  	
  Notices of Material Events

  	
  48

  
	
  Section 5.3.

  	
  Existence; Conduct of Business

  	
  48

  
	
  Section 5.4.

  	
  Compliance with Laws, Etc.

  	
  49

  
	
  Section 5.5.

  	
  Payment of Obligations

  	
  49

  
	
  Section 5.6.

  	
  Books and Records

  	
  49

  
	
  Section 5.7.

  	
  Visitation, Inspection, Etc.

  	
  49

  
	
  Section 5.8.

  	
  Maintenance of Properties; Insurance

  	
  49

  
	
  Section 5.9.

  	
  Use of Proceeds and Letters of Credit

  	
  49

  
	
  Section 5.10.

  	
  Additional Subsidiaries

  	
  50

  
	
  Section 5.11.

  	
  Further Assurances

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI          FINANCIAL COVENANTS

  	
  51

  
	
  Section 6.1.

  	
  Leverage Ratio

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII        NEGATIVE COVENANTS

  	
  51

  
	
  Section 7.1.

  	
  Indebtedness and Preferred Equity

  	
  51

  
	
  Section 7.2.

  	
  Negative Pledge

  	
  52

  
	
  Section 7.3.

  	
  Fundamental Changes

  	
  53

  
	
  Section 7.4.

  	
  Investments, Loans, Etc.

  	
  53

  
	
  Section 7.5.

  	
  Restricted Payments

  	
  55

  
	
  Section 7.6.

  	
  Sale of Assets

  	
  55

  
	
  Section 7.7.

  	
  Transactions with Affiliates

  	
  56

  
	
  Section 7.8.

  	
  Restrictive Agreements

  	
  56

  
	
  Section 7.9.

  	
  Sale and Leaseback Transactions

  	
  56

  
	
  Section 7.10.

  	
  Hedging Transactions

  	
  57

  
	
  Section 7.11.

  	
  Permitted Subordinated Indebtedness

  	
  57

  
	
  Section 7.12.

  	
  Accounting Changes

  	
  57

  
	
  Section 7.13.

  	
  Lease Obligations

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII       EVENTS OF DEFAULT

  	
  58

  
	
  Section 8.1.

  	
  Events of Default

  	
  58

  



 


ii

















 


	
  ARTICLE IX         THE ADMINISTRATIVE AGENT

  	
  61

  
	
  Section 9.1.

  	
  Appointment of Administrative Agent

  	
  61

  
	
  Section 9.2.

  	
  Nature of Duties of Administrative Agent

  	
  61

  
	
  Section 9.3.

  	
  Lack of Reliance on the Administrative Agent

  	
  62

  
	
  Section 9.4.

  	
  Certain Rights of the Administrative Agent

  	
  62

  
	
  Section 9.5.

  	
  Reliance by Administrative Agent

  	
  62

  
	
  Section 9.6.

  	
  The Administrative Agent in its Individual Capacity

  	
  62

  
	
  Section 9.7.

  	
  Successor Administrative Agent

  	
  63

  
	
  Section 9.8.

  	
  Authorization to Execute other Loan Documents

  	
  63

  
	
  Section 9.9.

  	
  Syndication Agent

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE X           MISCELLANEOUS

  	
  64

  
	
  Section 10.1.

  	
  Notices

  	
  64

  
	
  Section 10.2.

  	
  Waiver; Amendments

  	
  65

  
	
  Section 10.3.

  	
  Expenses; Indemnification

  	
  67

  
	
  Section 10.4.

  	
  Successors and Assigns

  	
  68

  
	
  Section 10.5.

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
  72

  
	
  Section 10.6.

  	
  Waiver Of Jury Trial

  	
  73

  
	
  Section 10.7.

  	
  Right of Setoff

  	
  73

  
	
  Section 10.8.

  	
  Counterparts; Integration

  	
  73

  
	
  Section 10.9.

  	
  Survival

  	
  73

  
	
  Section 10.10.

  	
  Severability

  	
  74

  
	
  Section 10.11.

  	
  Confidentiality

  	
  74

  
	
  Section 10.12.

  	
  Interest Rate Limitation

  	
  74

  
	
  Section 10.13.

  	
  Waiver of Effect of Corporate Seal

  	
  75

  
	
  Section 10.14.

  	
  Patriot Act

  	
  75

  



 


iii

















 


	
  Schedules

  	
   

  	
   

  	
   

  
	
  Schedule
  I

  	
  -

  	
  Applicable
  Margin and Applicable Percentage

  	
   

  
	
  Schedule
  II

  	
   

  	
  Revolving
  Commitment Amounts

  	
   

  
	
  Schedule
  2.20

  	
  -

  	
  Existing
  Letters of Credit

  	
   

  
	
  Schedule
  4.5

  	
  -

  	
  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
  Revolving Credit Note

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of
  Swingline Note

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of
  Assignment and Acceptance

  	
   

  
	
  Exhibit D

  	
  -

  	
  Form of
  Subsidiary Guaranty Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit 2.3

  	
  -

  	
  Form of
  Notice of Revolving Borrowing

  	
   

  
	
  Exhibit 2.4

  	
  -

  	
  Form of
  Notice of Swingline Borrowing

  	
   

  
	
  Exhibit 2.6

  	
  -

  	
  Form of
  Notice of Continuation/Conversion

  	
   

  
	
  Exhibit 3.1(b)(v)

  	
  -

  	
  Form of
  Secretary’s Certificate

  	
   

  
	
  Exhibit 3.1(b)(viii)

  	
  -

  	
  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 March 28, 2008, by and
among Rollins, Inc., a Delaware corporation (the “Borrower”), the
several banks and other financial institutions and lenders from time to time
party hereto (the “Lenders”), and SUNTRUST BANK, in its capacity as
administrative agent for the Lenders (the “Administrative Agent”), as
issuing bank (the “Issuing Bank”) and as swingline lender (the “Swingline
Lender”).


 


W I T N E S S E T H:


 


WHEREAS, the Borrower has requested that the Lenders
establish a $175,000,000  revolving
credit facility in favor of the Borrower;


 


WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders, the Issuing Bank and the Swingline Lender to the extent
of their respective Revolving Commitments as defined herein, are willing
severally to establish the requested revolving credit facility, letter of
credit subfacility and the swingline subfacility in favor of the Borrower.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders, the
Administrative Agent, the Issuing Bank and the Swingline Lender 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):


 


“Additional
Lender” shall have the meaning given to such term in Section 2.21.


 


“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
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
the purposes of this definition, “Control” shall mean the power, directly or
indirectly, either to (i) vote 10% or more of the 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 control or otherwise.  The terms “Controlling”, “Controlled by”, and
“under common Control with” have the meanings correlative thereto.


 


“Aggregate
Revolving Commitment Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time.  On the Closing Date, the Aggregate Revolving
Commitment Amount equals $175,000,000.


 


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


 


“Aggregate
Subsidiary Threshold” shall mean an amount equal to ninety percent (90%) of
the total consolidated revenue and ninety (90%) of the total consolidated
assets, in each case of the Borrower and its Subsidiaries (excluding Foreign
Subsidiaries) for the most recent Fiscal Quarter as shown on the financial
statements most recently delivered or required to be delivered pursuant to Section 5.1(a) or
(b), as the case may be.


 


“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.


 


“Applicable
Margin” shall mean, as of any date, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit fee, as the
case may be, a percentage per annum determined by reference to the applicable
Leverage Ratio from time to time in effect as set forth on Schedule I; provided,
that a change in the Applicable Margin resulting from a change in the Leverage
Ratio shall be effective on the second Business Day after which the Borrower
delivers 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 Compliance Certificate when so
required, the Applicable Margin shall be at Level I as set forth on Schedule
I until such time as such financial statements and Compliance 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
statements and Compliance Certificate for the Fiscal Quarter ending March 31,
2008 are required to be delivered shall be at Level III as set forth on Schedule
I.


 


“Applicable
Percentage” shall mean, as of any date, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the
applicable Leverage Ratio in effect on such date as set forth on Schedule I;
provided, that a change in the Applicable Percentage resulting from a
change in the Leverage Ratio shall be effective on the second Business Day
after which the Borrower delivers 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 Compliance Certificate, the
Applicable Percentage shall be at Level I as set forth on Schedule I
until such time as such financial statements and Compliance Certificate are 


 


2

















 


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 statements and Compliance Certificate for the Fiscal Quarter
ending March 31, 2008 are required to be delivered shall be at Level III
as set forth on Schedule I.


 


“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 C 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-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.


 


“Borrowing”  shall mean a borrowing consisting of (i) Revolving
Loans of the same Type, made, converted or continued on the same date and in
the 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) of 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.


 


3

















 


“Capital
Stock” shall mean any non-redeemable capital stock (or in the case of a
partnership or limited liability company, the partners’ or members’ equivalent
equity interest) of the Borrower or any of its Subsidiaries (to the extent
issued to a Person other than the Borrower), whether common or preferred.


 


“Change in Control” shall mean the occurrence of one or more of
the following events: (i) 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), (ii) 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) of 30% or more
of the outstanding shares of the voting stock of the Borrower, or (iii) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (a) nominated by the current
board of directors nor (b) 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 2.16(b), by such
Lender’s or the Issuing Bank’s parent corporation, 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.


 


“Charter
Documents” shall mean, with respect to each Loan Party, the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the
case may be, and other organizational and governing documents of such Person.


 


“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.


 


“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,
which date is March 28, 2008.


 


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


 


“Compliance
Certificate” shall mean a certificate from the chief executive officer and
the chief financial officer or treasurer 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 (i) Consolidated Net Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated 


 


4

















 


Interest
Expense, (B) income tax expense determined on a consolidated basis in
accordance with GAAP, (C) depreciation and amortization determined on a
consolidated basis in accordance with GAAP, and (D) all other non-cash
charges acceptable to the Administrative Agent, determined on a consolidated
basis in accordance with GAAP, in each case 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, the sum of (i) total
interest expense, including without limitation the interest component of any
payments in respect of Capital Lease Obligations capitalized or expensed during
such period  (whether or not actually paid
during such period)  plus (ii) the net amount payable (or minus the net amount receivable) under Hedging Agreements
during such period (whether or not actually paid or received during such
period).


 


“Consolidated
Net Income” shall mean, for the Borrower and its Subsidiaries 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, (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; provided, however, that to the extent that the term “Consolidated
Net Income” is used in calculating Consolidated EBITDA, Consolidated Net Income
shall (x) include, on a pro forma basis, 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, subject to the approval
thereof by the Administrative Agent, such approval not to be unreasonably
withheld and (y) exclude, on a pro forma basis, any income (or loss) of
any Subsidiary accrued prior to the date such Subsidiary was sold, otherwise
disposed of or ceased for any reason to be a Subsidiary of the Borrower and any
income derived from income producing assets or a division or line of business
of any Subsidiary or Subsidiaries accrued prior to the date such assets were
sold, transferred or otherwise disposed of.


 


“Consolidated
Total Debt” shall mean, as of any date, all Indebtedness of the Borrower
and its Subsidiaries measured on a consolidated basis as of such date, but
excluding Indebtedness of the type described in subsection (xi) of the
definition thereto.


 


“Contractual
Obligation” of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such
Person is obligated or by which it or any of the property in which it has an
interest is bound.


 


“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 2.11(c).


 


5

















 


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


 


“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.


 


“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 (i) any actual violation of any Environmental
Law, (ii) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (iii) any actual
exposure to any Hazardous Materials, (iv) the Release of any Hazardous
Materials or (v) 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 (i) 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); (ii) 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; (iii) 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; (iv) 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; (v) 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; (vi) 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 (vii) 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 Revolving 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.


 


6

















 


“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 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;
provided, that any requirement for the giving of notice, the lapse of time or
both, has been satisfied.


 


“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 2.18(e).


 


“Existing
Lenders” shall mean SunTrust Bank and Wachovia Bank, N.A.


 


“Existing
Letters of Credit” means the letters of credit issued and outstanding under
the Existing Credit Agreement as set forth on Schedule 2.20.


 


“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.


 


“Fee
Letters” shall mean, collectively, those certain fee letters, each dated as
of March 11, 2008, executed by: (i) SunTrust Robinson Humphrey, Inc.
and SunTrust Bank and 


 


7

















 


accepted
by Borrower; and (ii) Banc of America Securities LLC and Bank of America,
N.A and accepted by the Borrower.


 


“Fiscal
Quarter” shall mean any fiscal quarter of the Borrower.


 


“Fiscal
Year” shall mean any fiscal year of the Borrower.


 


“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 organized under the laws of a
jurisdiction other than one of the fifty states of the United States or the
District of Columbia.


 


“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 (i) 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, (ii) 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, (iii) 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 (iv) 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” shall mean 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.


 


8

















 


“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, (x) Off-Balance
Sheet Liabilities and (xi) for purposes of Sections  7.1 and 8.1(g) only
all Hedging Obligations.  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, to
the extent such Person is liable therefor as a result of such Person’s
ownership interest or other relationship with such entity, except to the extent
that the terms of such Indebtedness provide that such Person is not liable
therefor.  For the avoidance of doubt, “Indebtedness”
shall not include the unearned revenue of such Person occurring in the
ordinary course of business.


 


9

















 


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


 


“Interest
Period” shall mean with respect to (i) any
Swingline Borrowing, such period as the Swingline Lender and the Borrower shall
mutually agree and (ii) any Eurodollar Borrowing, a period of one, two,
three, six or twelve 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.


 


“Investments”
shall have the meaning as set forth in Section 7.4.


 


“Issuing
Bank” shall mean SunTrust Bank or any other Lender, each in its capacity as
an issuer of Letters of Credit pursuant to Section 2.20.


 


“LC
Commitment” shall mean that portion of the Aggregate Revolving Commitment
Amount that may be used by the Borrower for the issuance of Letters of Credit
in an aggregate face amount not to exceed $75,000,000.


 


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


 


“LC
Documents” shall mean all applications, agreements and instruments relating
to the Letters of Credit (but excluding 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 2.21.


 


10
















 


“Letter
of Credit” shall mean any stand-by letter of credit issued pursuant to Section 2.20
by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment and the Existing Letters of Credit.


 


“Leverage
Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total
Debt as of such date to (ii) Consolidated EBITDA for the four consecutive
Fiscal Quarters ending on or immediately prior to such date.


 


“LIBOR”
shall mean, for any Interest Period with respect to a Eurodollar Loan, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
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 time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If for any reason such rate is
not available, LIBOR shall be, for any Interest Period, the rate per annum
reasonably determined by the Agent as the rate of interest at which Dollar
deposits in the approximate amount of the Eurodollar Loan comprising part of
such borrowing would be offered by the Agent to major banks in the London
interbank Eurodollar market at their request at or about 10:00 a.m.
(Atlanta, Georgia time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period.


 


“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).


 


“Loan
Documents” shall mean, collectively, this Agreement, the Notes (if any),
the LC Documents, the Subsidiary Guaranty Agreement, all Notices of Borrowing,
all Notices of Conversion/Continuation, all Compliance Certificates and any and
all other instruments, agreements, documents and writings executed by and among
any Loan Party and Administrative Agent or any Lender, the Swingline Lender or
the Issuing Bank in connection with any of the foregoing.


 


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


 


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


 


“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, condition (financial or otherwise), assets,
operations, liabilities (contingent or otherwise), properties or prospects of
the Borrower or of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Loan Parties to pay any of their respective
obligations under the 


 


11

















 


Loan
Documents or perform any of their respective material obligations under the
Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, 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) and Hedging Obligations of the Borrower or any of its Subsidiaries,
individually or in an aggregate principal amount exceeding $10,000,000.  For purposes of determining the amount of
attributed Indebtedness from Hedging Obligations, the “principal amount” of any
Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of
such Hedging Obligations.


 


“Material
Subsidiary” shall mean at any time any direct or indirect Subsidiary of the
Borrower having: (a) assets in an amount equal to at least 10% of the
total assets of the Borrower and its Subsidiaries determined on a consolidated
basis as of the last day of the most recent Fiscal Quarter at such time; or (b) revenues
or net income in an amount equal to at least 10% of the total revenues or net
income of the Borrower and its Subsidiaries on a consolidated basis for the
12-month period ending on the last day of the most recent Fiscal Quarter at
such time.


 


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


 


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


 


“Net
Mark-to-Market Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized profits of such Person arising from
such Hedging Obligation.  “Unrealized
losses” shall mean the fair market value of the cost to such Person of
replacing the Hedging Transaction giving rise to such Hedging Obligation as of
the date of determination (assuming the Hedging Transaction were to be
terminated as of that date), and “unrealized profits” means the fair market
value of the gain to such Person of replacing such Hedging Transaction as of
the date of determination (assuming such Hedging Transaction were to be
terminated as of that date).


 


“Notes”
shall mean, collectively, the Revolving Credit Notes and the Swingline Note.


 


“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 2.6(b).


 


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


 


12

















 


“Notice
of Swingline Borrowing”  shall have
the meaning as set forth in Section 2.4.


 


“Obligations”
shall mean (a) all amounts owing by the Borrower to the Administrative
Agent, the Issuing Bank or any Lender (including the Swingline Lender) 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 reasonable fees and expenses of counsel to the
Administrative Agent, the Issuing Bank and any Lender (including the Swingline
Lender) actually 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, (b) all
Hedging Obligations owed by any Loan Party to any Lender or Affiliate of any
Lender, and (c) all Treasury Management Obligations, 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, (ii) any liability of such Person under
any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation 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(d).


 


“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
Encumbrances” shall mean:


 


13

















 


(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, carriers, warehousemen,
mechanics, materialmen and similar Liens arising by operation of law in the
ordinary course of business for amounts that are not overdue for a period of
more than 30 days 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)           Liens in connection with the ordinary course of business
in compliance with workers’ compensation, unemployment insurance and other
social security laws or regulations;


 


(iv)           Liens 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;


 


(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, in the aggregate, are not substantial in amount, 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)          Liens securing the Obligations;


 


(viii)         any
interest or title of a lessor or licensor under any lease or license entered
into by the Borrower or any other Subsidiary in the ordinary course of business
and covering only the assets so leased or licensed;


 


(ix)           the
filing of UCC financing statements solely as a precautionary measure in
connection with operating leases and consignment arrangements;


 


(x)            Liens
of sellers of goods to Borrower and the Subsidiaries arising under Article 2
of the UCC or similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid purchase
price for such goods and related expenses;


 


(xi)           any
Lien existing on any asset prior to the acquisition thereof by the Borrower or
any Subsidiary or existing on any asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a Subsidiary, as
the case may be, provided that (i) such Lien is not created in
contemplation of or in 


 


14

















 


connection
with such acquisition or such Person becoming a Subsidiary, (ii) such Lien
does not apply to any other asset of the Borrower or any Subsidiary and (iii) such
Lien secures only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
other than the proceeds and products thereof an accessions thereto; and


 


(xii)          Liens
not otherwise permitted by this definition so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed (as to the
Borrower and all Subsidiaries) $5,000,000 at any one time;


 


provided, that, except
as expressly permitted in clauses (x), (xi) and (xii) of this
definition, the term “Permitted Encumbrances” shall not include any Lien
securing Indebtedness (other than the Obligations); provided, further,
that the Indebtedness secured thereby is expressly permitted in Section 7.1
hereof.


 


“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 the highest rating, at the time of
acquisition thereof, of S&P or Moody’s and in either case maturing within
six months  from the date of acquisition thereof;


 


(iii)          certificates of deposit,
bankers’ acceptances and time deposits maturing within 180 days 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;


 


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


 


(vi)           Capital Stock, obligations, securities or other property
received by Borrower or any Subsidiary in settlement of accounts receivable
created in the ordinary course of business from bankrupt obligors.


 


“Permitted
Subordinated Debt” shall mean any Indebtedness of the Borrower or any
Subsidiary (i) that is expressly subordinated to the Obligations on terms
satisfactory to the Administrative Agent and the Required Lenders in their sole
discretion, (ii) that matures by its terms no earlier than six months
after the Revolving Commitment Termination Date with no 


 


15

















 


scheduled
principal payments permitted prior to such maturity, and (iii) that is
evidenced by an indenture or other similar agreement that is in a form
satisfactory to the Administrative Agent and the Required Lenders.


 


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


 


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


 


“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.


 


“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”
shall mean 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 more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have
no Revolving Commitments outstanding, then Lenders holding more than 50% of the
Revolving Credit Exposure; provided, that if only two (2) Lenders
exist hereunder, Required Lenders shall mean both such Lenders.


 


“Requirement
of Law” for any Person shall mean any law, treaty, rule or regulation,
or determination of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.


 


“Responsible
Officer” shall mean any of the president, the chief executive officer, the
chief operating officer, the chief financial officer, the treasurer or a vice
president of the Borrower or such other representative of the Borrower as may
be designated in writing by any 


 


16

















 


one
of the foregoing with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld, conditioned or delayed); and, with respect
to the financial covenants only, the chief financial officer or the treasurer
of the Borrower.


 


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


 


“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 II, as such
schedule may be amended pursuant to Section 2.21, 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) March 27,
2013, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.7 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 Exposure” shall mean, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Revolving Loans, LC
Exposure and Swingline Exposure.


 


“Revolving
Credit Note” shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such Lender’s Revolving
Commitment, in substantially the form of Exhibit A.


 


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


 


“S&P”
shall mean Standard & Poor’s, a Division of the McGraw-Hill Companies.


 


“Subordinated
Debt Documents” shall mean any indenture, agreement or similar instrument
governing any Permitted Subordinated Debt.


 


“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 (i) 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, or (ii) that
is, as of such date, otherwise controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.


 


17

















 


Unless
otherwise indicated, all references to “Subsidiary” hereunder shall mean a
Subsidiary of the Borrower.


 


“Subsidiary
Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof and substantially in the form of Exhibit D, made
by certain Subsidiaries of the Borrower in favor of the Administrative Agent
for the benefit of the Lenders.


 


“Subsidiary
Guaranty Supplement” shall mean each supplement substantially in the form
of Schedule II to the Subsidiary Guaranty Agreement executed and
delivered by a Subsidiary of the Borrower pursuant to Section 5.10.


 


“Subsidiary
Loan Party” shall mean any Subsidiary that executes or becomes a party to
the Subsidiary Guaranty Agreement.


 


“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  $10,000,000.


 


“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 2.4,
which shall equal such Lender’s Pro Rata Share of all outstanding Swingline
Loans.


 


“Swingline
Lender” shall mean SunTrust Bank.


 


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


 


“Swingline
Note” shall mean the promissory note of the Borrower payable to the order
of the Swingline Lender in the principal amount of the Swingline Commitment,
substantially the form of Exhibit B.


 


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


 


“Synthetic
Lease” shall mean a lease transaction under which the parties intend that (i) the
lease will be treated as an “operating lease” by the lessee pursuant to
Statement of Financial Accounting Standards No. 13, as amended and (ii) the
lessee will be entitled to various tax and other benefits ordinarily available
to owners (as opposed to lessees) of like property.


 


“Synthetic
Lease Obligations” shall mean, with respect to any Person, the sum of (i) all
remaining rental obligations of such Person as lessee under Synthetic Leases
which are attributable to principal and, without duplication, (ii) all
rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the
lease property at the end of the lease term.


 


18

















 


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


 


“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.


 


“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 a “Swingline Loan”) or by Type (e.g. a “Eurodollar Loan”
or a “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 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, restated, supplemented or 


 


19

















 


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.  To the extent that any of the
representations and warranties contained in Article IV under this
Agreement is qualified by “Material Adverse Effect”, “material”, “all material
respects” or words of similar import, then the qualifier “in any material
respect” contained in Section 8.1 shall not apply.


 


ARTICLE II


 


AMOUNT AND TERMS OF THE REVOLVING
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 each Lender severally
agrees (to the extent of such Lender’s Revolving Commitment) to make Revolving
Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.20,
(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 Exposure exceed at any time the Aggregate Revolving
Commitment Amount 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, ratably in
proportion to its Pro Rata Share, to the Borrower, from time to time during the  Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (b) the
sum of the aggregate Revolving Credit Exposures of all Lenders exceeding the
Aggregate Revolving Commitment Amount. 
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
(a “Notice of Revolving Borrowing”) (x) prior to 11:00 a.m.
(Atlanta, Georgia time) one (1) Business Day prior to the requested date
of each Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta,
Georgia time) 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


 


20
















 


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 (or the remaining amount of the Aggregate Revolving
Commitment Amount, if less), and the aggregate principal amount of each Base
Rate Borrowing shall not be less than $1,000,000 or a larger multiple of
$500,000 (or the remaining amount of the Aggregate Revolving Commitment Amount,
if less); provided, that Base Rate Loans made pursuant to Section 2.4
or Section 2.20 (d) 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.


 


(a)           Subject to the terms and conditions
set forth herein, the Swingline Lender shall make Swingline Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment and (ii) the difference between the Aggregate Revolving
Commitment Amount and 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.


 


(b)           The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of each Swingline Borrowing substantially in the form of Exhibit 2.4
attached hereto (“Notice of Swingline Borrowing”) prior to 10:00 a.m.
(Atlanta, Georgia time) 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 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 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. (Atlanta, Georgia
time) on the requested date of such Swingline Loan.


 


(c)           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 


 


21

















 


Administrative Agent for the
account of the Swingline Lender in accordance with Section 2.5,
which will be used solely for the repayment of such Swingline Loan.


 


(d)           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.


 


(e)           Each Lender’s obligation to make a
Base Rate Loan pursuant to Section 2.4(c) or to purchase the
participating interests pursuant to Section 2.4(d) shall be absolute
and unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right 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 recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date of demand
thereof (i) at the Federal Funds Rate until the second Business Day after
such demand and (ii) at the Base Rate at all times thereafter.  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 2.4, until such amount has been purchased
in full.


 


Section 2.5.           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. (Atlanta, Georgia time) to
the Administrative Agent at the Payment Office; provided, that the
Swingline Loans will be made as set forth in Section 2.4.  The Administrative Agent will make such Loans
available to the Borrower 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 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.


 


22

















 


(b)           Unless the Administrative Agent shall
have been notified by any Lender prior to 5:00 p.m. (Atlanta, Georgia
time) one (1) Business Day prior to the date of a Borrowing in which such
Lender is to participate 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 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 until the second Business Day
after such demand and thereafter at the Base Rate.  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.


 


Section 2.6.           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 2.6.  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 2.6,
the Borrower shall give the Administrative Agent prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing
substantially in the form of Exhibit 2.6 attached hereto (a “Notice
of Conversion/Continuation”) that is to be converted or continued, as the
case may be, (x) prior to 10:00 a.m. (Atlanta, Georgia time) 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. (Atlanta, Georgia time) 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 Conversion/Continuation applies and if different options are being
elected with respect to different portions thereof, the portions thereof that
are to be allocated to each 


 


23

















 


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 Conversion/Continuation, 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 Conversion/Continuation
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.


 


(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 2.7.           Optional Reduction and Termination
of Revolving Commitments.


 


(a)           Unless previously terminated, all
Revolving Commitments, Swingline Commitments and LC Commitments 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 2.7 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 Commitment Amount to an
amount less than the outstanding Revolving Credit Exposures of all
Lenders.  Any such reduction in the
Aggregate Revolving Commitment Amount below the sum of the principal amount of
the Swingline Commitment and the LC Commitment shall result in a proportionate
reduction (rounded to the next lowest integral multiple of $100,000) in the
Swingline Commitment and the LC Commitment.


 


24

















 


Section 2.8.           Repayment of Loans.


 


(a)           The outstanding principal amount of
all Revolving Loans shall be due and payable (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 and unpaid
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 2.9.           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 2.6, (iv) the date of
each conversion of all or a portion thereof to another Type pursuant to Section 2.6,
(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 the
Administrative Agent hereunder from the Borrower in respect of the Loans and
each Lender’s Pro Rata Share thereof. 
Absent manifest error, 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.


 


(a)           At the request of any Lender
(including the Swingline Lender) at any time, the Borrower agrees that it will
execute and deliver to such Lender a Revolving Credit Note and, in the case of
the Swingline Lender only, a Swingline Note, payable to the order of such
Lender.


 


Section 2.10.        Optional Prepayments.  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. (Atlanta,
Georgia time) 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. (Atlanta, Georgia
time) 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 2.11(e); provided,
that if a Eurodollar Borrowing is prepaid on a date other than the last day of
an Interest Period 


 


25

















 


applicable thereto, the Borrower shall also pay all
amounts required pursuant to Section 2.17.  Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2
or in the case of a Swingline Loan pursuant to Section 2.4.  Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing.


 


Section 2.11.        Interest on Loans.


 


(a)           The Borrower shall pay interest on
each Base Rate Loan at the Base Rate in effect from time to time and on each
Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest Period in
effect for such Loan, plus, in each
case, 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.


 


(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 2.12.        Fees.


 


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


 


26

















 


(b)           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 per annum (determined daily in accordance with Schedule
I) 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, but not
Swingline Exposure, of such Lender.


 


(c)           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 a rate per annum equal to the Applicable Margin for Eurodollar Loans
then in effect on the average daily amount of such Lender’s LC Exposure
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 of Credit 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 0.10% 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.  Notwithstanding the
foregoing, if the Required Lenders elect to increase the interest rate on the
Loans to the Default Interest pursuant to Section 2.11(d), the rate
per annum used to calculate the letter of credit fee pursuant to clause (i) above
shall automatically be increased by an additional 2% per annum.


 


(d)           The Borrower shall pay to the
Administrative Agent, for the ratable benefit of each Lender, the upfront fee
previously agreed upon by the Borrower and the Administrative Agent, which
shall be due and payable on the Closing Date.


 


(e)           Accrued fees under paragraphs (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); provided  further,
that any such fees accruing after the Revolving Commitment Termination Date
shall be payable on demand.


 


Section 2.13.        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 fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.


 


Section 2.14.        Inability to Determine Interest Rates.  If prior to the commencement of any Interest
Period for any Eurodollar Borrowing,


 


27

















 


(i)             the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) 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 of making, funding or maintaining their
Eurodollar Loans for such Interest Period,


 


the
Administrative Agent shall give prompt written notice thereafter (or telephonic
notice, promptly confirmed in writing) to the Borrower and to the Lenders.  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 2.15.        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 would avoid the need for giving
such notice and if such designation would not otherwise be materially
disadvantageous to such Lender in the good faith exercise of its discretion.


 


Section 2.16.        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 


 


28

















 


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 either 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
fifteen (15) 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 Section 2.19 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
15 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 2.16
shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to
demand such compensation;  provided, that the Borrower shall not be required
to compensate Lenders or Issuing Bank under this Section for any increased
costs or reductions incurred more than nine (9) months prior to the date
that the any Lender, the Issuing Bank or the Administrative Agent notifies
Borrower of such increased costs or reductions and of the intention to claim
compensation therefor; provided, further, that
if the Change in Law giving 


 


29

















 


rise to such increased costs
or reductions is retroactive, then such nine-month period shall be extended to
include the period of such retroactive effect.


 


Section 2.17.        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 (for a reason other
than the failure of a Lender to make a 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
fifteen (15) 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 2.17 submitted to the Borrower by any
Lender (with a copy to the Administrative Agent) shall be conclusive, absent
manifest error.


 


Section 2.18.        Taxes.


 


(a)           Except as provided in this Section 2.18,
any and all payments by or on account of any obligation of the Borrower to any
Lender or the Issuing Bank 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 2.18) 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.


 


(c)           The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within fifteen (15)
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 2.18) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such


 


30

















 


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, promptly,
if 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 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).


 


31
















 


Section 2.19.        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 Sections 2.16,
2.17 or 2.18, or otherwise) prior to 12:00 noon (Atlanta, Georgia
time) on the date when due, in immediately available funds, free and clear of
any defenses, rights of set-off, counterclaim, or withholding or deduction of
taxes.  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 2.16,
2.17 and 2.18 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
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 


 


32

















 


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 2.4(b), 2.5(b),
2.19(d), 2.20(d) or (e) 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 2.20.        Letters of Credit.


 


(a)           During the Availability Period, the
Issuing Bank, in reliance upon the agreements of the other Lenders pursuant to Section 2.20(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 $50,000; 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
Revolving Credit Exposure of all Lenders would exceed the Aggregate Revolving
Commitment Amount.  Each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Bank without recourse a participation in each Letter of Credit equal to such
Lender’s Pro Rata Share of the aggregate amount available to be drawn under
such Letter of Credit (i) on the Closing Date with respect to all Existing
Letters of Credit and (ii) on the date of issuance with respect to all
other Letters 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 


 


33

















 


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 2.20(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. (Atlanta,
Georgia time) 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 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 precedent set forth in Section 3.2
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 2.5.  The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.


 


34

















 


(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 paragraphs (d) or (e) below
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 rate
set forth in Section 2.11(d).


 


(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 the
LC Exposure as of such date plus any accrued and unpaid fees thereon; provided,
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (g) or (h) 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.  Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this paragraph.  Other than any interest earned on the investment
of such deposits, which investments 


 


35

















 


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 be 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 and the other
Loan Documents.  If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence and continuance of an Event of Default, such amount (to the extent not
so applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.


 


(h)           Promptly following the end of each
calendar 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 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 2.20, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower’s obligations hereunder; or


 


36

















 


(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 actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive 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 due 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 due 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.


 


Section 2.21.        Increase of Revolving Commitments;
Additional Lenders.


 


(a)           So long as no Default or 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 $75,000,000 (the amount of any such
increase, the “Additional Revolving 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 Revolving
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.


 


37

















 


(b)           If any Lender shall not elect to increase its Revolving
Commitment pursuant to subsection (a) of this Section 2.21, 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 Revolving Commitment Amount.


 


(c)           An increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 shall become effective upon the
receipt by the Administrative Agent of an supplement or joinder in form and
substance satisfactory to the Administrative Agent executed by the Borrower and
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 Notes evidencing such increase in the Revolving Commitments, and 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
agreement by the Administrative Agent, the Aggregate Revolving Commitment
Amount shall automatically be increased by the amount of the Revolving
Commitments added through such agreement 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.


 


(e)           Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 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 Revolving 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.


 


Section 2.22.        Mitigation of Obligations.  If any Lender requests compensation
under Section 2.16, 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 2.18, then such Lender 


 


38

















 


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 2.16
or Section 2.18, 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 Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.


 


Section 2.23.        Replacement of Lenders.  If any Lender requests compensation under Section 2.16,
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 2.18,
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 2.16 or payments required to be made
pursuant to Section 2.18, 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.


 


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 actually incurred) 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. and Banc
of America Securities LLC, as Joint Lead Arrangers.


 


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


 


39

















 


(i)             a counterpart of this Agreement signed by or on behalf
of each party hereto 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)            duly executed Revolving Credit Notes payable to such
Lender and the Swingline Note payable to the Swingline Lender;


 


(iii)           the Subsidiary Guaranty Agreement duly executed by each
Material Subsidiary that is not a Foreign Subsidiary;


 


(iv)           copies of duly executed payoff letters, in form and
substance satisfactory to Administrative Agent, executed by each of the
Existing Lenders (other than Wachovia Bank, N.A.) or the agent thereof,
together with all releases, terminations or other documents reasonably required
by the Administrative Agent to evidence the payoff of Indebtedness owed to the
Existing Lenders;


 


(v)            a certificate of the Secretary or Assistant Secretary of
each Loan Party in the form of Exhibit 3.1(b)(v), attaching and
certifying copies of its Charter Documents and of the resolutions of its boards
of directors and authorizations, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the
name, title and true signature of each officer of such Loan Party executing the
Loan Documents to which it is a party;


 


(vi)           certified copies of the Charter Documents, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of organization of such Loan Party;


 


(vii)          a favorable written opinion of Arnall Golden Gregory 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;


 


(viii)         a certificate in the form of Exhibit 3.1(b)(viii),
dated the Closing Date and signed by a Responsible Officer, certifying that (x) no
Default or Event of Default exists, (y) all representations and warranties
of each Loan Party set forth in the Loan Documents are true and correct and (z) 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;


 


(ix)            a duly executed Notice of Revolving Borrowing;


 


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


 


(xi)            certified copies of all consents, approvals,
authorizations, registrations and filings and orders required to be made or
obtained under any Requirement of Law, or any 


 


40

















 


Charter Document or by any
material Contractual Obligation of each Loan Party, in connection with the
execution, delivery, performance, validity and enforceability of the Loan
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 no
investigation or inquiry by any Governmental Authority regarding this Agreement
or any transaction being financed with the proceeds hereof shall be ongoing;


 


(xii)           copies of the audited consolidated financial statements
for Borrower and its Subsidiaries for the Fiscal Years ending 2004, 2005, 2006
and 2007 including balance sheets, statements of income, stockholders’ equity
and cash flows, all in reasonable detail and reported on by independent public
accountants of nationally recognized standing and in accordance with GAAP;


 


(xiii)          a duly completed and executed
certificate of the type described in Section 5.1(c) including
calculations of the financial covenants set forth in Article VI
hereof as of December 31, 2007;


 


(xiv)         certified copies of all agreements, indentures or notes
governing the terms of any Material Indebtedness (and for purposes of this
clause (xiv) only, Material Indebtedness shall be determined on an
individual and not an aggregate basis) and all other material agreements,
documents and instruments to which any Loan Party or any of its assets are
bound;


 


(xv)          certificates of insurance issued on behalf of insurers of
the Borrower and all Guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower and
all Guarantors; and


 


(xvi)         the absence of any litigation, investigation or proceeding
of or before any arbitrators or Governmental Authorities pending against or, to
the knowledge of the Borrower, threatened in writing against the Borrower or
any of its Subsidiaries that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.


 


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;


 


(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 on and as of the date of such Borrowing or the date of issuance,
amendment, extension or renewal of such Letter of Credit, in each case before
and after giving effect thereto (except for 


 


41

















 


those which expressly relate
to an earlier date which shall be true and correct in all material respects as
of such earlier date);


 


(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;


 


(d)           the Borrower shall have delivered the
required Notice of Borrowing; and


 


(e)           the Administrative Agent shall have
received such other documents, certificates or information as the
Administrative Agent or the Required Lenders may reasonably request, all in
form and substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.


 


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, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory in all respects to the Administrative Agent.


 


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,
partnership or limited liability company under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to carry on
its business 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 Loan 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,
shareholder, partner or member, action. This Agreement has been duly executed
and delivered by the Borrower, and  constitutes,
and each other Loan 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.


 


42
















 


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 Loan 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, (b) will not violate any Charter
Document, (c) except as could not reasonably be expected to have a
Material Adverse Effect, will not violate any Requirements of Law applicable to
the Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (d) will not violate or result in a default under
any material 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 (e) 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 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 audited by Grant Thornton
LLP.  Such financial statements fairly
present, in all material respects, the consolidated financial condition of the
Borrower and its Subsidiaries as of such dates and the consolidated results of
operations for such period in conformity with GAAP consistently applied. 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.


 


Section 4.5.           Litigation and Environmental
Matters.


 


(a)           Except for the matters set forth on Schedule
4.5(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 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 Loan Document.


 


(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 with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law
except as could not reasonably be expected to have a Material Adverse Effect, (ii) has
become subject to any material Environmental Liability, (iii) has received
written notice of any claim with respect to any material Environmental
Liability or (iv) has actual knowledge of any basis for any material
Environmental Liability.


 


Section 4.6.           Compliance with Laws and
Agreements.  The
Borrower and each Subsidiary is in compliance with (a) all Charter
Documents, Requirements of Law and all judgments, decrees 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.


 


43

















 


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, (b) a “holding company” as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt or requiring any approval or consent
from or registration or filing with, any Governmental Authority in connection
therewith.


 


Section 4.8.           Taxes.  The Borrower and its Subsidiaries 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 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 in accordance with GAAP.  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 stock” with the respective meanings of each of such terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the Regulation U.  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 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
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, including
all such properties reflected in the most recent audited consolidated balance
sheet of the Borrower referred to in Section 4.4 or purported to
have been acquired by the Borrower or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement.  All leases that 


 


44

















 


individually or in the
aggregate are material to the business or operations of the Borrower and its
Subsidiaries are valid and subsisting and are in full force.


 


(b)           Each of the Borrower and its
Subsidiaries owns, or is licensed, or otherwise has the right, to use, all
patents, trademarks, service marks, trade names, copyrights and other
intellectual property owned or used by them, and the use thereof by the
Borrower and its Subsidiaries does not infringe on the rights of any other
Person, except for those the failure to own or have such legal right could not
reasonably be expected to have a Material Adverse Effect.


 


(c)           The properties of the Borrower and
its Subsidiaries are insured with financially sound and reputable insurance
companies which are not Affiliates of the Borrower, in such amounts with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or any applicable Subsidiary operates.


 


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
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. 
All projections delivered prior to, at, or after the Closing Date are
based upon estimates and assumptions, all of which Borrower believes to be in
good faith in light of conditions and facts known to Borrower as of the date of
delivery of such projections and, as of the Closing Date, reflect Borrower’s
good faith estimates of the future financial performance of Borrower and of the
other information projected therein for the period set forth therein.  The projections are not a guaranty of future
performance.  Actual results may differ
substantially from those projected.


 


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 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 or
organization 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.


 


45

















 


Section 4.15.        Insolvency.  After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
and the repayment of the refinanced Indebtedness, neither the Borrower nor its
Subsidiaries will be “insolvent,” within the meaning of such term as defined in
§ 101 of Title 11 of the United States Code, as amended from time to time, or
be unable to pay its debts generally as such debts become due, or have an
unreasonably small capital to engage in any business or transaction, whether
current or contemplated.


 


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.


 


ARTICLE V


 


AFFIRMATIVE COVENANTS


 


The
Borrower covenants and agrees that so long as any Lender has a Revolving
Commitment hereunder or any Obligation remains unpaid or outstanding (other
than obligations for indemnification, expense reimbursement, tax gross-up or
yield protection as to which no claim has been made):


 


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 balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and the related consolidated
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 


 


46

















 


Year, all in reasonable detail
and reported on by Grant Thornton LLP or other independent public accountants
of regionally 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 of the first three Fiscal Quarters of the
Borrower, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and the related unaudited
consolidated 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;


 


(c)           concurrently with the delivery of the
financial statements referred to in clauses (a) and (b) above, a
Compliance Certificate signed by the principal executive officer and the chief
financial officer or treasurer of the Borrower;


 


(d)           concurrently with the delivery of the
financial statements referred to in clause (a) above, a certificate
(whether contained in the annual audit or otherwise) 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 Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines); provided, however, that such accountants shall not be liable
by reason of any failure to obtain knowledge of any such Event of Default that
would not be disclosed during the course of their audit examination;


 


(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.


 


In
the event that any financial statement delivered pursuant to Section 5.1(a) or
(b) or any Compliance Certificate is shown to be inaccurate (regardless of
whether this Agreement or any Revolving Commitment is in effect when such
inaccuracy is discovered), and such inaccuracy, if corrected, would have led to
the application of a higher Applicable Margin for any period (an “Applicable
Period”) than the Applicable Margin applied for such Applicable Period,
then (i) the Borrower shall immediately deliver to the Administrative
Agent a correct Compliance Certificate for such Applicable Period, (ii) the
Applicable Margin shall be 


 


47

















 


determined
as if Level I of Schedule I was applicable for such Applicable Period, and (iii) the
Borrower shall immediately pay to the Administrative Agent the accrued
additional interest owing as a result of such increased Applicable Margin for
such Applicable Period, which payment shall be promptly applied by the Administrative
Agent to the Obligations.  This Section 5.1
shall not limit the rights of the Administrative Agent or the Lenders with
respect to Section 2.11(c) and ARTICLE VIII; provided, however, that
the obligations of the Borrower under this paragraph shall cease to be
effective after the date that is one year following the termination of this
Agreement unless the Administrative Agent notifies the Borrower prior to the
end of such one year period that the Borrower is obligated to pay additional
amounts under clause (iii) immediately above.


 


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 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, (iii) receives notice of any claim
with respect to any Environmental Liability, or (iv) becomes aware of any
basis for any Environmental Liability 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 $5,000,000;


 


(e)           the occurrence of any default (after
any cure period, if any, has lapsed) or event of default, or the receipt by
Borrower or any of its Subsidiaries of any written notice of an alleged default
(after any cure period, if any, has lapsed) or event of default, respect of any
Material Indebtedness of the Borrower or any of its Subsidiaries; and


 


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


 


Each notice delivered under this Section 5.2
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
Material 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, 


 


48

















 


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 5.3 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 written notice to the Borrower; provided, however,
if an Event of Default has occurred and is continuing, no prior notice shall be
required.


 


Section 5.8.           Maintenance of Properties;  Insurance.  The Borrower will, and will cause each of its
Subsidiaries to, (a) except with respect to property no longer used or no
longer useful in the business of Borrower or its Subsidiaries keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted 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.


 


Section 5.9.           Use of Proceeds and Letters of
Credit.  The
Borrower will use the proceeds of all Loans to refinance existing Indebtedness
and pay related closing costs on the Closing Date, and thereafter to finance
working capital needs and Capital Expenditures and for other general corporate
purposes of the Borrower and its Subsidiaries, specifically including, but not 


 


49

















 


limited to, the financing of the acquisition of
inventory to be sold or leased by Borrower and its Subsidiaries in the ordinary
course of their business.  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)           If any Subsidiary (other than a
Foreign Subsidiary) becomes a Material Subsidiary after the Closing Date, or
any Material Subsidiary (other than a Foreign Subsidiary) is acquired or formed
after the Closing Date, the Borrower will promptly notify the Administrative
Agent and the Lenders thereof and, within thirty (30) Business Days after any
such Subsidiary becomes a Material Subsidiary, or such Material Subsidiary is
acquired or formed, will cause such Material Subsidiary to become a Subsidiary
Loan Party.


 


(b)           If, at any time, the aggregate
revenue or assets (on a non-consolidated basis) of the Borrower and those
Subsidiaries that are then Subsidiary Loan Parties are less than the Aggregate
Subsidiary Threshold, then the Borrower shall cause one or more other
Subsidiaries (other than a Foreign Subsidiary) to become additional Subsidiary
Loan Parties, as provided in clause (d) below, within thirty (30) Business
Days after such revenues or assets become less than the Aggregate Subsidiary
Threshold so that after including the revenue and assets of any such additional
Subsidiary Loan Parties, the aggregate revenue and assets (on a
non-consolidated basis) of the Borrower and all such Subsidiary Loan Parties
would equal or exceed the Aggregate Subsidiary Threshold.


 


(c)           The Borrower may elect at any time to
have any Subsidiary become an additional Subsidiary Loan Party as provided in
clause (d) below.  Upon the
occurrence and during the continuation of any Event of Default, if the Required
Lenders so direct, the Borrower shall (i) cause all of its Subsidiaries to
become additional Subsidiary Loan Parties, as provided in clause (d) below,
within thirty (30) Business Days after the Borrower’s receipt of written
confirmation of such direction from the Administrative Agent.


 


(d)           A Subsidiary shall become an
additional Subsidiary Loan Party by executing and delivering to the
Administrative Agent a Subsidiary Guaranty Supplement, accompanied by
(i) all other Loan Documents related thereto, (ii) certified copies
of Charter Documents, appropriate authorizing resolutions of the board of
directors of such Subsidiaries, and opinions of counsel comparable to those
delivered pursuant to Section 3.1(b), and (iii) such other
documents as the Administrative Agent may reasonably request.  No Subsidiary that becomes a Subsidiary Loan
Party shall thereafter cease to be a Subsidiary Loan Party or be entitled to be
released or discharged from its obligations under the Subsidiary Guaranty
Agreement unless otherwise expressly permitted pursuant to the terms of the
Loan Documents.


 


Section 5.11.        Further Assurances..  The Borrower will, and will cause each
Subsidiary to, execute any and all further documents, agreements and instruments,
and take all such further actions which may be required under any applicable
law, or which the Administrative Agent or any Lender may reasonably request, to
effectuate the transactions contemplated by the Loan Documents.


 


50

















 


ARTICLE VI


 


FINANCIAL COVENANTS


 


The
Borrower covenants and agrees that so long as any Lender has a Revolving
Commitment hereunder or any Obligation remains unpaid or outstanding:


 


Section 6.1.           Leverage Ratio.  The Borrower will maintain at all times a
Leverage  Ratio of not greater than 2.50 to
1.00.


 


ARTICLE VII


 


NEGATIVE COVENANTS


 


The
Borrower covenants and agrees that so long as any Lender has a Revolving
Commitment hereunder or any Obligation remains outstanding (other than
obligations for indemnification, expense reimbursement, tax gross-up or yield
protection as to which no claim has been made):


 


Section 7.1.           Indebtedness and Preferred Equity.  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 of the Borrower and its
Subsidiaries 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 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 $20,000,000 at any time
outstanding;


 


(d)           Indebtedness of the Borrower owing to
any Subsidiary and of any Subsidiary owing to the Borrower or any other
Subsidiary; provided, that any such Indebtedness that is owed to a
Subsidiary that is not a Subsidiary Loan Party shall be subject to Section 7.4;


 


51

















 


(e)           Guarantees by the Borrower of
Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary; provided, that Guarantees by any Loan
Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
shall be subject to Section 7.4;


 


(f)            Indebtedness of any Person which
becomes a Subsidiary after the date of this Agreement; provided, that
such Indebtedness exists at the time that such Person becomes a Subsidiary and
is not created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of such Indebtedness
permitted hereunder shall not exceed $20,000,000 outstanding at any time;


 


(g)           Permitted Subordinated Debt;


 


(h)           Indebtedness in respect of Hedging
Obligations permitted by Section 7.10; and


 


(i)            other unsecured Indebtedness of the
Borrower or its Subsidiaries in an aggregate principal amount not to exceed
$20,000,000 at any time outstanding; provided, that the aggregate
principal amount of Indebtedness of all Subsidiaries permitted by this clause (i) shall
not exceed $20,000,000.


 


Borrower
will not, and will not permit any Subsidiary to, issue any preferred stock or
other preferred equity interests that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or
may become redeemable or repurchaseable by Borrower or such Subsidiary at the
option of the holder thereof, in whole or in part or (iii) is convertible
or exchangeable at the option of the holder thereof for Indebtedness or
preferred stock or any other preferred equity interests described in this
paragraph, on or prior to, in the case of clause (i), (ii) or (iii), the
first anniversary of the Revolving Commitment Termination Date.


 


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 or, 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, constructing or improving such
fixed or capital assets;


 


52
















 


(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 7.2;
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.


 


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; provided, that if any
party 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 and (iv) any Subsidiary (other than
a Subsidiary Loan Party) may liquidate or dissolve if the Borrower determines
in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders; 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.


 


(b)           Except for ancillary or complementary
lines of business, or other lines of business added through growth or
development of Borrower’s current line of business, 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, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person 


 


53

















 


that constitute a business unit, or create or form
any Subsidiary (all of the foregoing being collectively called “Investments”),
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)           Guarantees constituting Indebtedness
permitted by Section 7.1; provided, that the aggregate
principal amount of Indebtedness of Subsidiaries that are not Subsidiary Loan
Parties that is Guaranteed by any Loan Party shall be subject to the limitation
set forth in clause (d) hereof;


 


(d)           Investments made by the Borrower in
or to any Subsidiary and by any Subsidiary to the Borrower or in or to another
Subsidiary; provided, that the aggregate amount of Investments by Loan
Parties in or to, and Guarantees by Loan Parties of Indebtedness of any
Subsidiary that is not a Subsidiary Loan Party (including all such Investments
and Guarantees existing on the Closing Date) shall not exceed $10,000,000 at
any time outstanding;


 


(e)           loans or advances to employees,
officers or directors of the Borrower or any Subsidiary in the ordinary course
of business for travel, relocation and related expenses; provided,
however, that the aggregate amount of all such loans and advances
does not exceed $10,000,000 at any time;


 


(f)            Hedging Transactions permitted by Section 7.10;


 


(g)           the acquisition of the pest control
business operations, commonly known as HomeTeam Pest Defense, of HomeTeam Pest
Defense, LLC, HomeTeam Pest Defense, Inc. and their respective
subsidiaries in accordance with the terms of that certain Asset Purchase
Agreement by and between Rollins HT, Inc., Centex Home Services, LLC,
HomeTeam Pest Defense Inc. and HomeTeam Pest Defense, LLC, dated on or about March 28,
2008;


 


(h)           Other Investments which in the
aggregate do not exceed $30,000,000 in any Fiscal Year;


 


(i)            to the extent permitted by Section 7.5,
the Borrower’s redemption or purchase of the Borrower’s common stock pursuant
to any open-market stock repurchase program implemented by the Borrower from
time-to-time;


 


(j)            to the extent permitted by Section 7.5,
the Borrower’s redemption or purchase of the Borrower’s common stock from
employees in connection with any equity compensation plan implemented by the
Borrower from time-to-time;


 


(k)           Investments made in or to any Person
to finance the purchase by such Person of a franchise from the Borrower or any
Subsidiary which in the aggregate do not exceed $10,000,000 in any Fiscal Year;


 


54

















 


(l)            Investments made in or to any
customer of the Borrower or any Subsidiary to finance any such customer’s
purchase of termite or similar bonds which in the aggregate do not exceed
$25,000,000 in any Fiscal Year;


 


(m)          the purchase of customer contracts; provided, that such purchases are limited solely to customer
contracts and the aggregate purchase price paid for such customer contracts
does not to exceed $15,000,000 in any Fiscal Year; and


 


(n)           Investments comprised of obligations
of the Borrower or any Subsidiary to pay deferred employment compensation, provided, that any such obligations are, at all times, fully
funded.


 


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 Guarantee thereof or any
options, warrants, or other rights to purchase such common stock or such
Indebtedness, whether now or hereafter outstanding (each, a “Restricted
Payment”), except for:


 


(a)           dividends payable by the Borrower
solely in shares of any class of its common stock;


 


(b)           Restricted Payments made by any
Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata
basis with any other shareholders if such Subsidiary is not wholly owned by the
Borrower and other wholly owned Subsidiaries;


 


(c)           Restricted Payments made without
limitation as to amount so long as (i) no Default or Event of Default has
occurred and is continuing at the time such Restricted Payment is made and (ii) the
Leverage Ratio as of the last day of the fiscal quarter most recently ended for
which a Compliance Certificate under Section 5.1(c) was
delivered prior to the proposed making of such Restricted Payment is less than
1.50 to 1.00; provided, however,
that for purposes of calculating the Leverage Ratio under this clause (c), the
Consolidated Total Debt shall equal the amount thereof outstanding at the time
of (and after giving effect to) the making of such Restricted Payment; and


 


(d)           if and to the extent the Borrower
shall not be permitted to make a Restricted Payment under clause (c) immediately
above, the Borrower may nonetheless make Restricted Payments so long as (i) no
Default or Event of Default has occurred and is continuing at the time such
Restricted Payment is made and (ii) the aggregate amount of all such
Restricted Payments made or to be made under this clause (d), together with all
Restricted Payments made pursuant to clause (c) immediately above, in each
case, made by the Borrower in any Fiscal Year does not exceed 50% of Net Income
(if greater than $0) earned during the immediately preceding 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, 


 


55

















 


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 no longer
used or useful in the conduct of its business;


 


(b)           the sale of inventory and Permitted
Investments in the ordinary course of business;


 


(c)           the sale or other disposition of such
assets in an aggregate amount not to exceed $40,000,000 in any Fiscal Year; and


 


(d)           any loss of, damage to or destruction
of, or any condemnation or other taking for public use of, any assets of the
Borrower or any of its Subsidiaries.


 


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 any Subsidiary Loan Party not involving any
other Affiliates and (c) any Restricted Payment permitted by Section 7.5.


 


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 or any other Loan Document, (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 and other contracts
restricting the assignment thereof.


 


Section 7.9.           Sale and Leaseback Transactions.  The Borrower will not, and will not permit
any of the 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  (each, a “Sale/Leaseback
Transaction”), unless at the time such Sale/Leaseback Transaction is 


 


56

















 


entered into (a) no Default or Event of Default
has occurred and is continuing, (b) after giving pro forma effect to such
Sale/ Leaseback Transaction, the Borrower is in compliance with the financial
covenants set forth in Article VI and (c) the Borrower has
delivered a certificate to the Lenders certifying the conditions set forth in
clauses (a) and (b) and setting forth in reasonable detail
calculations demonstrating pro forma compliance with the financial covenants
set forth in Article VI.


 


Section 7.10.        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 (which shall be deemed to include any
Hedging Transaction under which the Borrower or any of the Subsidiaries is or
may become obliged to make any payment (i) in connection with the purchase
by any third party of any common stock or any Indebtedness or (ii) as a
result of changes in the market value of any common stock or any Indebtedness)
is not a Hedging Transaction entered into in the ordinary course of business to
hedge or mitigate risks.


 


Section 7.11.        Permitted Subordinated Indebtedness.


 


(a)           The Borrower will not, and will not
permit any of its Subsidiaries to (i) prepay, redeem, repurchase or
otherwise acquire for value any Permitted Subordinated Debt, or (ii) make
any principal, interest or other payments on any Permitted Subordinated Debt
that is not expressly permitted by the subordination provisions of the
Subordinated Debt Documents.


 


(b)           The Borrower will not, and will not
permit any of its Subsidiaries to, agree to or permit any amendment,
modification or waiver of any provision of any Subordinated Debt Document if
the effect of such amendment, modification or waiver is to (i) increase
the interest rate on such Permitted Subordinated Debt or change (to earlier
dates) the dates upon which principal and interest are due thereon; (ii) alter
the redemption, prepayment or subordination provisions thereof; (iii) alter
the covenants and events of default in a manner that would make such provisions
more onerous or restrictive to the Borrower or any such Subsidiary; or (iv) otherwise
increase the obligations of the Borrower or any Subsidiary in respect of such
Permitted Subordinated Debt or confer additional rights upon the holders
thereof which individually or in the aggregate would be adverse to the Borrower
and its Subsidiaries, taken as a whole, or to the Agent or the Lenders.


 


Section 7.12.        Accounting Changes.  The Borrower will not, and will not permit
any of its Subsidiaries 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 of its Subsidiaries, except to change the fiscal year
of a Subsidiary to conform its fiscal year to that of the Borrower.


 


Section 7.13.        Lease Obligations.  The Borrower will not, and
will not permit any Subsidiary to, create or suffer to exist any obligations
for the payment under operating leases or agreements to lease (but excluding
any Capital Lease Obligations) which would cause the present value of the
direct or contingent liabilities of the Borrower and its Subsidiaries under
such leases or 


 


57

















 


agreements to lease, on a consolidated basis, to
exceed $90,000,000 in the aggregate in any Fiscal Year.


 


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 Section 8.1) 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 (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) or any other
Loan Document, and such failure shall remain unremedied for 30 days after
the earlier of (i) any Responsible 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


 


(f)            [intentionally omitted]; or


 


(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 or governing such Material
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Material Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement
or 


 


58

















 


instrument, if the effect of
such event or condition is to accelerate, or permit the acceleration of, the
maturity of such Material Indebtedness; or any such Material 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 Material
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 8.1,
(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 Material
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


 


(k)           an ERISA Event shall have occurred
that, in the reasonable opinion of the Required Lenders, 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 $10,000,000; or


 


(l)            any  judgment
or order for the payment of money in excess of $25,000,000, individually, or
$50,000,000, in the aggregate over the term of this Agreement (except to the
extent covered by insurance with a financially sound insurance carrier rated at
least A- by A.M. Best, that has acknowledged coverage of the relevant
claim), 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, 


 


59

















 


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
Guaranty 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 Guaranty Agreement; or


 


(p)           (i) any Loan Party shall be
enjoined, restrained or in any way prevented by the order of any Governmental
Authority from conducting any material part of the business of such Loan Party
and such order shall continue in effect for more than thirty (30) days or (ii) any
strike, lockout, labor dispute, embargo, condemnation, act of God or public
enemy or terrorism, or other casualty, which in any such case causes, for more
than fifteen (15) consecutive days, the cessation or substantial curtailment of
revenue producing activities of a Loan Party if such event or circumstance is
not covered by business interruption insurance and would have a Material
Adverse Effect; or


 


(q)           the loss, suspension or revocation
of, or failure to renew, any license, permit or authorization now held or hereafter
acquired by any Loan Party, or any other action shall be taken by any
Governmental Authority in response to any alleged failure by any Loan Party to
be in compliance with applicable law if such loss, suspension, revocation or
failure to renew or other action, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;


 


then,
and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section 8.1) 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
written notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate the Revolving Commitments,
whereupon the Revolving 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, (iii) exercise
all remedies contained in any other Loan Document, and (iv) exercise any
other remedies available at law or in equity; and that, if an Event of Default
specified in either clause (g) or (h) shall occur, the Revolving
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 or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent.  The Administrative
Agent and any such sub-agent or attorney-in-fact 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 or
attorney-in-fact and the Related Parties of the Administrative Agent, any such
sub-agent and any such attorney-in-fact 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 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 if the
term “Administrative Agent” as used in this Article 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, its sub-agents or attorneys-in-fact
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 responsible for the negligence or
misconduct of any sub-agents or attorneys-in-fact selected by it with
reasonable care.  The Administrative
Agent shall not be deemed to have knowledge of any Default or Event of Default
unless and until written notice thereof (which notice shall include an express
reference to such event being a “Default” or “Event of Default” hereunder) 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, 


 


61

















 


(ii) 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. 
The Administrative Agent may consult with legal counsel (including
counsel for the Borrower) concerning all matters pertaining to such duties.


 


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.  The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money
to, and generally 


 


62

















 


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 provided that 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 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.           Syndication Agent.  Each Lender hereby designates Bank of
America, N.A. as Syndication Agent and agrees that the Syndication Agent shall
have no duties or obligations under any Loan Documents to any Lender or any
Loan Party.


 


63
















 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.1.        Notices.


 


(a)           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:

  	
  Rollins, Inc.

  
	
   

  	
  2170
  Piedmont Road, N.E.

  
	
   

  	
  Atlanta,
  Georgia 30324

  
	
   

  	
  Attention:
  Chief Financial Officer

  
	
   

  	
  Telecopy
  Number: (404) 888-2662

  
	
   

  	
   

  
	
  With a copy to:

  	
  Ronald
  A. Weiner, Esq.

  
	
   

  	
  Arnall
  Golden Gregory, LLP

  
	
   

  	
  171
  17th Street, Suite 2100

  
	
   

  	
  Atlanta,
  Georgia 30363

  
	
   

  	
  Telecopy
  Number: 404-873-8193

  
	
   

  	
   

  
	
  To the Administrative Agent

  	
   

  
	
  or Swingline Lender:

  	
  SunTrust
  Bank

  
	
   

  	
  303
  Peachtree Street, N. E.

  
	
   

  	
  Atlanta,
  Georgia 30308

  
	
   

  	
  Attention:
  B.J. Green

  
	
   

  	
  Telecopy
  Number: (404) 230-5528

  
	
   

  	
  Telephone
  Number: (404) 813-5012

  
	
   

  	
   

  
	
  With a copy to:

  	
  SunTrust
  Bank

  
	
   

  	
  Agency
  Services

  
	
   

  	
  303
  Peachtree Street, N. E./ 25th Floor

  
	
   

  	
  Atlanta,
  Georgia 30308

  
	
   

  	
  Attention:
  Ms. Tecla Hurley

  
	
   

  	
  Telecopy
  Number: (404) 221-2001

  
	
   

  	
  Telephone
  Number: (404) 230-1935

  
	
   

  	
   

  
	
  To the Issuing Bank:

  	
  SunTrust
  Bank

  
	
   

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

  
	
   

  	
  Atlanta,
  Georgia 30303

  
	
   

  	
  Attention:
  Andy Lee

  
	
   

  	
  Telecopy
  Number: (407) 237-4076

  
	
   

  	
  Telephone
  Number: (407) 237-5250

  



 


64

















 


	
  To the Swingline Lender:

  	
  SunTrust
  Bank

  
	
   

  	
  Agency
  Services

  
	
   

  	
  303
  Peachtree Street, N.E./25th Floor

  
	
   

  	
  Atlanta,
  Georgia 30308

  
	
   

  	
  Attention:
  Ms. Tecla Hurley

  
	
   

  	
  Telecopy
  Number: (404) 221-2001

  
	
   

  	
  Telephone
  Number: (404) 230-1935

  
	
   

  	
   

  
	
  To any other Lender:

  	
  the
  address set forth in the Administrative Questionnaire or the Assignment and
  Acceptance Agreement executed by such Lender

  



 


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 mail or if delivered, upon delivery;
provided, that notices delivered to the Administrative Agent, the Issuing Bank
or the Swingline Bank shall not be effective until actually received by such
Person at its address specified in this Section 10.1.


 


(b)           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.


 


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 


 


65

















 


same shall be permitted by
paragraph (b) of this Section 10.2, 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 Revolving 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 Revolving
Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.19(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 10.2
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 written consent of each Lender; or (vi) release
any guarantor or limit the liability of any such guarantor under any guaranty
agreement, 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 Bank 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 Revolving
Commitments of such Lender shall have terminated (but such Lender shall
continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18
and 10.3), such Lender shall 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.  Notwithstanding anything herein or otherwise
to the contrary, any Event of Default occurring hereunder shall continue to
exist (and shall be deemed to be continuing) until such time as such Event of
Default is waived in writing in accordance with the terms of this Section notwithstanding
(i) any attempted cure or other action taken by the Borrower or any other
Person subsequent to the occurrence of such Event of Default or (ii) any
action taken or omitted to be taken by the Administrative Agent or any Lender
prior to or subsequent to the occurrence of such Event of Default (other than
the granting of a waiver in writing in accordance with the terms of this
Section).


 


66

















 


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 actually incurred
without regard to statutory presumption 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
reasonable out-of-pocket costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel) actually
incurred without regard to statutory presumption 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 reasonable out-of-pocket
expenses actually incurred without regard to statutory presumption 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 reasonable fees and time charges and
disbursements for attorneys actually incurred without regard to statutory
presumption who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any 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) any
actual 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 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, if the Borrower or such Loan Party has
obtained a 


 


67

















 


final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.


 


(c)           The Borrower shall pay, and hold the Administrative Agent 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 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.


 


(e)           NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO THE BORROWER OR ANY OTHER
PERSON FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE
ALLEGED AS A RESULT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT
OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED THEREIN, ANY
LOAN OR ANY LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.  THE BORROWER SHALL NOT BE RESPONSIBLE OR
LIABLE TO ANY INDEMNITEE OR ANY OTHER PERSON FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE
TRANSACTIONS CONTEMPLATED THEREIN, ANY LOAN OR ANY LETTER OF CREDIT OR THE USE
OF THE PROCEEDS THEREOF; PROVIDED, THAT, THE FOREGOING SHALL NOT IN ANY WAY
LIMIT THE BORROWER’S OR THE GUARANTORS’ OBLIGATIONS TO PAY (X) ALL
PRINCIPAL AND/OR INTEREST AS PROVIDED IN THE LOAN DOCUMENTS AND (Y) ALL
INDEMNIFICATION OBLIGATIONS AS PROVIDED HEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS TO THE EXTENT SUCH INDEMNIFICATION OBLIGATIONS DO NOT CONSTITUTE
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES.


 


(f)            Except as is otherwise expressly set forth in this Section 10.3,
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 


 


68

















 


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 Revolving Commitment and the Loans 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 Revolving Commitment
and the Loans 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 Revolving Commitment (which for this purpose includes Loans and Revolving
Credit Exposure outstanding thereunder) or, if the applicable Revolving
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
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 (each such consent not to be unreasonably withheld or
delayed).


 


(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,
Revolving Credit Exposure or the Revolving Commitment assigned.


 


(iii)  Required
Consents.  No consent shall be
required for any assignment except to the extent required by paragraph (b)(i)(B) of
this Section and, in addition:


 


(A) the 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;


 


69

















 


(B) the 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
Revolving Commitment; and


 


(C) the 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 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 Commitments.


 


(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 10.4
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.


 


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 2.16, 2.17, 2.18 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 comply with this paragraph 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 five 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 fifth 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 


 


70

















 


Lenders, and the Revolving
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”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Any Lender may at any time, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank 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 Revolving 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, Issuing
Bank and Swingline Lender shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.


 


(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
Revolving 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 Revolving Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.19 (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 the Guaranty Agreement; or (vii) release all or substantially all
collateral (if any) securing any of the Obligations.  Subject to paragraph (e) of this Section 10.4,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17, and 2.18 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 2.16 as though it were a Lender.


 


71

















 


(f)            A Participant shall not be entitled to receive any greater payment under Section 2.16
and Section 2.18 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 2.18  unless
the Borrower is notified in writing of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.18(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.


 


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)           Each of the parties hereto 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 Borrower,
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 other parties (including 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 10.5
and brought in any court referred to in paragraph (b) of this Section 10.5.  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.


 


72
















 


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 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.  Each Lender and the Issuing Bank agrees to
apply all amounts collected from any such set-off to the Obligations before
applying such amounts to any other Indebtedness or other obligations owed by
the Borrower and any of its Subsidiaries to such Lender or Issuing Bank.


 


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 Fee Letter, 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 


 


73

















 


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 Revolving
Commitments have not expired or terminated. 
The provisions of Sections 2.16, 2.17, 2.18, 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 Revolving 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.


 


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 10.11,
or which becomes available to the Administrative Agent, the Issuing Bank, any
Lender or any Related Party of any of the foregoing on a non-confidential 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 (vi) subject to
provisions substantially similar to this Section 10.11, to any
actual or prospective assignee or Participant, or (vii) with the consent
of the Borrower.  Any Person required to
maintain the confidentiality of any information as provided for in this Section 10.11
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 10.12
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 


 


74

















 


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.      Waiver of Effect of Corporate
Seal.  The Borrower represents and warrants that
neither it nor any other Loan Party is required to affix its corporate seal to
this Agreement or any other Loan Document pursuant to any Charter Document,
Requirement of Law or regulation, agrees that this Agreement is delivered by
Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.


 


Section 10.14.      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 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.  Each
Loan Party shall, and shall cause each of its Subsidiaries to, provide to the
extent commercially reasonable, such information and take such other actions as
are reasonably requested by the Administrative Agent or any Lender in order to
assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act.


 


(remainder of page left
intentionally blank)


 


75

















 


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.


 


	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Harry J. Cynkus

  
	
   

  	
   

  	
  Name:

  	
  Harry
  J. Cynkus

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [SEAL]

  
	
   

  	
   

  
	
   

  	
  SUNTRUST
  BANK

  
	
   

  	
  as
  Administrative Agent, as Issuing Bank, as

  Swingline Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Andrew Lee

  
	
   

  	
   

  	
  Name:

  	
  Andrew
  Lee

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  BANK
  OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ R. Shawn Janko

  
	
   

  	
   

  	
  Name:

  	
  R.
  Shawn Janko

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


 


SIGNATURE PAGE TO


REVOLVING CREDIT AGREEMENT


 

















 


Schedule I


 


APPLICABLE MARGIN AND APPLICABLE PERCENTAGE


 


	
  Pricing

  Level

  	
   

  	
  Leverage

  Ratio

  	
   

  	
  Applicable

  Margin for

  Eurodollar

  Loans/Applicable

  Percentage for

  Letter of Credit

  Fees

  	
   

  	
  Applicable

  Margin for

  Base Rate

  Loans

  	
   

  	
  Applicable

  Percentage for

  commitment

  fee

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Greater
  than or equal to 2.00:1.00

  	
   

  	
  0.750% per annum

  	
   

  	
  0.000% per annum

  	
   

  	
  0.150% per annum

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  Less
  than 2.00:1.00 but greater than or equal to 1.00:1.00

  	
   

  	
  0.625% per annum

  	
   

  	
  0.000% per annum

  	
   

  	
  0.125% per annum

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Less
  than 1.00:1.00

  	
   

  	
  0.500% per annum

  	
   

  	
  0.000% per annum

  	
   

  	
  0.100% per annum

  



 

















 


Schedule II


 


REVOLVING COMMITMENT AMOUNTS


 


	
  Lender

  	
   

  	
  Revolving Commitment

  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SunTrust Bank

  	
   

  	
  $

  	
  87,500,000

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  87,500,000

  	
   

  



 

















 


SCHEDULE 2.20


 


EXISTING LETTERS OF CREDIT


 


	
  Loan Party

  	
   

  	
  LC Ref

  	
   

  	
  LC Face Amount

  	
   

  	
  Beneficiary

  	
   

  	
  Issue Date

  	
   

  	
  Expiry Date

  
	
  ROLLINS, INC.

  	
   

  	
  F500948

  	
   

  	
  950,000.00

  	
   

  	
  NATIONAL
  UNION FIRE INSURANCE CO

  	
   

  	
  1/19/1995

  	
   

  	
  10/1/2008

  
	
  ROLLINS, INC.

  	
   

  	
  F502833

  	
   

  	
  2,500,000.00

  	
   

  	
  OLD
  REPUBLIC INSURANCE COMPANY

  	
   

  	
  2/5/2001

  	
   

  	
  2/1/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F503250

  	
   

  	
  3,500,000.00

  	
   

  	
  OLD
  REPUBLIC INSURANCE COMPANY

  	
   

  	
  3/29/2002

  	
   

  	
  4/1/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F503251

  	
   

  	
  200,000.00

  	
   

  	
  NATIONAL
  UNION FIRE INSURANCE CO

  	
   

  	
  3/29/2002

  	
   

  	
  7/15/2008

  
	
  ROLLINS, INC.

  	
   

  	
  F503252

  	
   

  	
  3,000,000.00

  	
   

  	
  NATIONAL
  UNION FIRE INSURANCE CO

  	
   

  	
  3/29/2002

  	
   

  	
  4/3/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F840337

  	
   

  	
  7,960,125.00

  	
   

  	
  ZURICH
  AMERICAN INSURANCE COMPANY

  	
   

  	
  12/31/2002

  	
   

  	
  1/3/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F840836

  	
   

  	
  6,645,000.00

  	
   

  	
  OLD
  REPUBLIC INSURANCE COMPANY

  	
   

  	
  3/18/2003

  	
   

  	
  3/20/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F840840

  	
   

  	
  2,500,000.00

  	
   

  	
  OLD
  REPUBLIC INSURANCE COMPANY

  	
   

  	
  3/18/2003

  	
   

  	
  3/20/2009

  
	
  ROLLINS, INC.

  	
   

  	
  F845649

  	
   

  	
  9,000,000.00

  	
   

  	
  UNITED
  STATES FIDELITY & GUARANTY

  	
   

  	
  2/3/2005

  	
   

  	
  1/1/2009

  



 

















 


SCHEDULE 4.5(a)


 


LITIGATION


 


Orkin,
one of the Borrower’s subsidiaries, is a named defendant in Mark and
Christine Butland et al. v. Orkin Exterminating Company, Inc. et al.
pending in the Circuit Court of Hillsborough County, Tampa, Florida. The
plaintiffs filed suit in March of 1999 and are seeking monetary damages
and injunctive relief. The Court ruled in early April 2002, certifying the
class action lawsuit against Orkin. Orkin appealed this ruling to the Florida Second
District Court of Appeals, which remanded the case back to the trial court for
further findings. In December 2004 the Court issued a new ruling
certifying the class action. Orkin appealed this new ruling to the Florida
Second District Court of Appeals. In June 2006, the Florida Second
District Court of Appeals issued a ruling denying certification of the
class.  Following the Plaintiffs’ motion for rehearing, the court upheld
its prior decision that class certification was improper but also ruled that
the Plaintiffs can return to the trial court and attempt to certify a narrower
class.


 


Additionally,
in the normal course of business, Orkin is a defendant in a number of lawsuits
or arbitrations, which allege that plaintiffs have been damaged as a result of
the rendering of services by Orkin.  Orkin is actively contesting these
actions.  Some lawsuits have been filed (Ernest W. Warren and Dolores
G. Warren et al. v. Orkin Exterminating Company, Inc., et al.;  John
Maciel v. Orkin, Inc., et al.; Ronald and  Ileana
Krzyzanowsky et al.  v.  Orkin Exterminating Company, Inc. and
Rollins, Inc.; Adam Stauber v. Rollins, Inc. et al.; and Roy
Sheppard et al.  v.  Orkin Exterminating Company, Inc. and
Rollins, Inc.) in which the Plaintiffs are seeking certification of a
class.  The cases originate in Georgia, California, and Arkansas,
respectively.  In Warren, the Superior Court of Cobb County,
Marietta, Georgia, ruled in August 2006, certifying the class action
against Orkin.  Orkin appealed this ruling to the Georgia Court of
Appeals, which in November 2007 denied certification of the class.
Plaintiff appealed this ruling to the Supreme Court of Georgia, which in February 2008
denied Plaintiff’s petition for review.  The Maciel lawsuit, a wage
and hour related matter, was filed in the Superior Court of Los Angeles County,
California and has not been scheduled for a class certification hearing. 
The Krzyzanowsky lawsuit, a termite service related matter, was filed in
the United States District Court for the Northern District of California and
has not been scheduled for a class certification hearing.  The Stauber
lawsuit, a Fair Debt Collection Practices Act related matter, was filed in the
United States District Court for the Central District of California and a date
has not been scheduled for a hearing on class certification.  The Sheppard
lawsuit, a termite related matter, was recently filed in the United States
District Court for the Eastern District of Arkansas and a date has not been
scheduled for a hearing on class certification.


 


Orkin
is involved in certain environmental matters primarily arising in the normal
course of business.


 

















 


SCHEDULE 4.5(b)


 


ENVIRONMENTAL MATTERS


 


None.


 
















 


SCHEDULE 4.14


 


SUBSIDIARIES


 


	
  Name

  	
   

  	
  Borrower’s Ownership

  Interest

  	
   

  	
  Jurisdiction

  	
   

  	
  Type of Subsidiary

  
	
  Orkin, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Rollins
  Supply, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Rollins
  Continental, Inc.

  	
   

  	
  100%

  	
   

  	
  New
  York

  	
   

  	
  Corporation

  
	
  Kinro
  Investments, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Orkin
  Expansion, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Orkin S.A. de C.V.

  	
   

  	
  100%

  	
   

  	
  Mexico

  	
   

  	
  A
  Mexican Company

  
	
  Orkin
  Systems, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Orkin
  International, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  PCO
  Services Corporation

  	
   

  	
  100%

  	
   

  	
  Nova
  Scotia

  	
   

  	
  A
  Nova Scotia Company

  
	
  Western
  Industries — North, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Western
  Industries — South, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  Rollins
  — Western Real EstateHoldings LLC

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Limited
  Liability Company

  
	
  PCO
  Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  
	
  615345
  NB, Inc.

  	
   

  	
  100%

  	
   

  	
  New
  Brunswick

  	
   

  	
  A
  New Brunswick Company

  
	
  3094488
  Nova Scotia Company

  	
   

  	
  100%

  	
   

  	
  Nova
  Scotia

  	
   

  	
  A
  Nova Scotia Company

  
	
  Orkin
  Canada Limited Partnership

  	
   

  	
  100%

  	
   

  	
  Ontario

  	
   

  	
  An
  Ontario Partnership

  
	
  Orkin
  — IFC Properties LLC

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Limited
  Liability Company

  
	
  IFC
  Company Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  Kansas

  	
   

  	
  Corporation

  
	
  The
  Industrial Fumigant Co.

  	
   

  	
  100%

  	
   

  	
  Illinois

  	
   

  	
  Corporation

  
	
  IFC
  Properties LLC

  	
   

  	
  100%

  	
   

  	
  Kansas

  	
   

  	
  Limited
  Liability Company

  
	
  International
  Food Consultants, LLC

  	
   

  	
  40%

  	
   

  	
  Kansas

  	
   

  	
  Limited
  Liability Company

  
	
  PCO
  Real Estate Holdings, Inc.

  	
   

  	
  100%

  	
   

  	
  Ontario

  	
   

  	
  An
  Ontario Company

  
	
  PEI
  Pest Control, Inc.

  	
   

  	
  100%

  	
   

  	
  Prince
  Edward Island

  	
   

  	
  A
  Prince Edward Island Company

  
	
  Rollins
  HT, Inc.

  	
   

  	
  100%

  	
   

  	
  Delaware

  	
   

  	
  Corporation

  



 


The
Subsidiary Loan Parties with respect to this agreement are Orkin, Inc.,
Western Industries-North, Inc., Western Industries-South, Inc., Orkin
Expansion, Inc., and The Industrial Fumigant Co.


 

















 


SCHEDULE 7.1


 


OUTSTANDING INDEBTEDNESS


 


Credit
Agreement dated April 28, 2004 in favor of Wachovia Bank, National
Association, as amended.


 

















 


SCHEDULE 7.2


 


EXISTING LIENS


 


	
  Debtor

  	
   

  	
  Secured Party

  	
   

  	
  Jurisdiction

  	
   

  	
  File #

  	
   

  	
  File Date

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit Corporation

  	
   

  	
  Delaware

  	
   

  	
  21375033

  	
   

  	
  05/10/2002

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit Corporation

  	
   

  	
  Delaware

  	
   

  	
  22448763

  	
   

  	
  09/23/2002

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit Corporation

  	
   

  	
  Delaware

  	
   

  	
  22464125

  	
   

  	
  09/24/2002

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  30282114

  	
   

  	
  01/15/2003

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  30734072

  	
   

  	
  03/11/2003

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  31132854

  	
   

  	
  05/01/2003

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  32016197

  	
   

  	
  07/15/2003

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  42074211

  	
   

  	
  07/23/2004

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  50025263

  	
   

  	
  01/04/2005

  
	
  Rollins, Inc.

  	
   

  	
  Xerox
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  51065078

  	
   

  	
  04/07/2005

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  61850866

  	
   

  	
  06/01/2006

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  62157667

  	
   

  	
  06/23/2006

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  63813946

  	
   

  	
  11/01/2006

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  70006188

  	
   

  	
  01/02/2007

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  70512599

  	
   

  	
  02/08/2007

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  70980861

  	
   

  	
  03/15/2007

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  71767507

  	
   

  	
  05/10/2007

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  74495973

  	
   

  	
  11/28/2007

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  80030187

  	
   

  	
  01/03/2008

  
	
  Rollins, Inc.

  	
   

  	
  Xerox
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  80657484

  	
   

  	
  02/22/2008

  
	
  Rollins, Inc.

  	
   

  	
  IBM
  Credit LLC

  	
   

  	
  Delaware

  	
   

  	
  80970788

  	
   

  	
  03/19/2008

  
	
  Rollins, Inc.

  	
   

  	
  IOS
  Capital

  	
   

  	
  Georgia

  	
   

  	
  008-2004-000833

  	
   

  	
  05/12/2004

  
	
  Rollins, Inc.

  	
   

  	
  IOS
  Capital

  	
   

  	
  Georgia

  	
   

  	
  008-2004-000834

  	
   

  	
  05/12/2004

  



 

















 


SCHEDULE 7.4


 


EXISTING INVESTMENTS


 


None.


 

















 


EXHIBIT A


 


FORM OF REVOLVING CREDIT NOTE


 


	
   

  	
  $

  	
   

  	
  Atlanta, Georgia

  
	
   

  	
   

  	
   

  	
  [Date]

  



 


FOR
VALUE RECEIVED, the undersigned, ROLLINS, INC., a Delaware corporation
(the “Borrower”), hereby promises to pay to [NAME OF
LENDER] (the “Lender”) or its registered assigns, at the
office of SunTrust Bank (“SunTrust”) at 303 Peachtree St., N.E.,
Atlanta, Georgia 30308, on the Revolving Commitment Termination Date (as
defined in that certain Revolving Credit Agreement dated as of March 28,
2008, as the same may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among the Borrower, the
lenders from time to time party thereto and SunTrust, as Administrative Agent
for the lenders, the lesser of the principal sum of
                                                        
AND NO/100 DOLLARS
($                                        )
and the aggregate unpaid principal amount of all Revolving Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, in lawful money of the
United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement.  In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further promises to pay all costs of collection, including the reasonable
attorneys’ fees actually incurred without regard to statutory presumption, in
accordance with the terms of Section 10.3 of the Credit Agreement.


 


Upon
the occurrence of an Event of Default, at the option of the Required Lenders,
the Borrower promises to pay interest, on demand, at a rate or rates provided
in the Credit Agreement.


 


All
borrowings evidenced by this Revolving Credit Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on
a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the failure of the holder hereof to make such
a notation or any error in such notation shall not affect the obligations of
the Borrower to make the payments of principal and interest in accordance with
the terms of this Revolving Credit Note and the Credit Agreement.


 


This
Revolving Credit Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified.


 


1

















 


THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.


 


 


	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2

















 


LOANS AND PAYMENTS


 


	
  Date

  	
   

  	
  Amount and

  Type of Revolving

  Loan

  	
   

  	
  Payments of

  Principal

  	
   

  	
  Unpaid

  Principal

  Balance of

  Revolving

  Credit Note

  	
   

  	
  Name of Person

  Making Notation

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3

















 


EXHIBIT B


 


FORM OF SWINGLINE NOTE


 


	
   

  	
  $10,000,000

  	
  Atlanta, Georgia

  
	
   

  	
   

  	
  March 28, 2008

  



 


FOR
VALUE RECEIVED, the undersigned, ROLLINS, INC., a Delaware corporation
(the “Borrower”), hereby promises to pay to SUNTRUST BANK (the “Swingline
Lender”) or its registered assigns, at the office of SunTrust Bank (“SunTrust”)
at 303 Peachtree St., N.E., Atlanta, Georgia 30308, on the Revolving Commitment
Termination Date (as defined in that certain Revolving Credit Agreement dated
as of March 28, 2008, as the same may be amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among
the Borrower, the lenders from time to time party thereto and SunTrust, as
Administrative Agent for the lenders, the lesser of the principal sum of TEN
MILLION AND NO/100 DOLLARS ($10,000,000) and the aggregate unpaid principal
amount of all Swingline Loans made by the Swingline Lender to the Borrower
pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like funds,
at said office, at the rate or rates per annum and payable on such dates as
provided in the Credit Agreement.  In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys’ fees actually incurred without
regard to statutory presumption, in accordance with the terms of
Section 10.3 of the Credit Agreement.


 


Upon
the occurrence of an Event of Default, at the option of the Required Lenders,
the Borrower promises to pay interest, on demand, at a rate or rates provided
in the Credit Agreement.


 


All
borrowings evidenced by this Swingline Note and all payments and prepayments of
the principal hereof and the date thereof shall be endorsed by the holder
hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided,
that the failure of the holder hereof to make such a notation or any error in
such notation shall not affect the obligations of the Borrower to make the
payments of principal and interest in accordance with the terms of this
Swingline Note and the Credit Agreement.


 


This
Swingline Note is issued in connection with, and is entitled to the benefits
of, the Credit Agreement which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified.


 


1

















 


THIS
SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.


 


 


	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2

















 


LOANS AND PAYMENTS


 


	
  Date

  	
   

  	
  Amount and

  Type of Swingline Loan

  	
   

  	
  Payments of

  Principal

  	
   

  	
  Unpaid

  Principal

  Balance of

  Swingline Note

  	
   

  	
  Name of Person

  Making Notation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3
















 


EXHIBIT C


 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


[date to be
supplied]


 


Reference
is made to the Revolving Credit
Agreement dated as of March 28, 2008 (as amended and in effect on the date
hereof, the “Credit Agreement”), among Rollins, Inc., a Delaware
corporation, the lenders from time to time parties thereto and SunTrust Bank,
as Administrative Agent for such lenders. Terms defined in the Credit Agreement
are used herein with the same meanings.


 


[name of
assignor]  (the “Assignor”)
hereby sells and assigns, without recourse, to [name of assignee] (the “Assignee”), and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth below, the interests set forth below (the “Assigned
Interest”) in the Assignor’s rights and obligations under the Credit
Agreement, including, without limitation, the interests set forth below in the
Revolving Commitment of the Assignor on the Assignment Date and Loans owing to
the Assignor which are outstanding on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement.  From and after the Assignment Date, [(i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii)](1) the Assignor shall, to the
extent of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.


 


This
Assignment and Acceptance is being delivered to the Administrative Agent
together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.18(e) of
the Credit Agreement, duly completed and executed by the Assignee, and (ii) if
the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
and any documentation required to be delivered pursuant to Section 10.4 of
the Credit Agreement, duly completed by the Assignee.  The Assignee shall pay the fee payable to the
Administrative Agent pursuant to Section 10.4(b) of the Credit
Agreement.


 


The
Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim created by the
Assignor and (ii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby, and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its



 






(1)  Bracketed language may be omitted
if Assignee is an existing Lender at the time of the assignment.


 


1

















 


Subsidiaries
or Affiliates or any other Person of any of their respective obligations under
any Loan Document.


 


The
Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Acceptance and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets
all requirements of Section 10.4 of the Credit Agreement (subject to
receipt of such consents as may be required under the Credit Agreement), (iii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder with respect to the Assigned Interest and, to
the extent of the Assigned Interest, shall have the rights and obligations of a
Lender thereunder (in addition to any rights and obligations it may theretofore
hold as a Lender), (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 5.1 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other
Lender, and (v) if it is a Foreign Lender, attached to the Assignment and
Acceptance is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


Choose in the alternative [Alternative A: From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.] [Alternative B: From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor and the Assignee shall make
all appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.]


 


This
Assignment and Acceptance shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns. This Assignment
and Acceptance may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Acceptance by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Acceptance. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of Georgia.


 


2

















 


Assignment
Date:


 


Legal
Name of Assignor:


 


Legal
Name of Assignee:


Assignee’s
Address for Notices:


Effective
Date of Assignment:


(“Effective
Date”):


 


	
   

  	
   

  	
   

  	
   

  	
  Percentage Assigned of

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Revolving Commitment (set

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  forth, to at least 8 decimals, as

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  a percentage of the aggregate

  	
   

  
	
   

  	
   

  	
  Principal Amount

  	
   

  	
  Revolving Commitments of all

  	
   

  
	
  Facility

  	
   

  	
  Assigned

  	
   

  	
  Lenders thereunder)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Loans:

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
							



 


The
terms set forth above are hereby agreed to:


 


	
   

  	
  [Name of Assignor], as Assignor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [Name of Assignee], as Assignee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3

















 


The
undersigned hereby consents to the within assignment(2):


 


	
  Rollins, Inc.

  	
   

  	
  SunTrust
  Bank, as Administrative Agent:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SunTrust
  Bank, as Issuing Bank:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SunTrust
  Bank, as Swingline Lender:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 






(2)  Consents to be included to the
extent required by Section 10.4(b) of the Credit Agreement.


 


4

















 


EXHIBIT D


 


FORM OF SUBSIDIARY GUARANTY AGREEMENT


 


THIS
SUBSIDIARY GUARANTY AGREEMENT dated as of March 28, 2008 (this “Guaranty”),
by each of the Subsidiaries a signatory hereto and the other Persons from time
to time party hereto pursuant to the execution and delivery of a Supplement to
this Guaranty in the form of Annex 1 hereto (each of such Subsidiary and each
other such Person referred to herein as a “Guarantor” and collectively,
the “Guarantors”) of ROLLINS, INC., a Delaware corporation (the “Borrower”),
in favor of the Administrative Agent (as defined below) and each of the Lenders
(as defined below).


 


Reference is made
to that certain Credit Agreement dated as of March 28, 2008 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Borrower, the lenders from time to time party thereto (the “Lenders”)
and SunTrust Bank, as administrative agent for the Lenders (in such capacity,
the “Administrative Agent”). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.


 


The Lenders have
agreed to make Loans to the Borrower, pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement. Each of the
Guarantors is a direct or indirect domestic Subsidiary of the Borrower and
acknowledges that it will derive substantial benefit from the making of the
Loans by the Lenders. The obligations of the Lenders to make Loans and are conditioned
on, among other things, the execution and delivery by the Guarantors of this
Subsidiary Guaranty Agreement. As consideration therefor and in order to induce
the Lenders to make Loans, the Guarantors are willing to execute this
Subsidiary Guaranty Agreement.


 


Accordingly, the
parties hereto agree as follows:


 


SECTION 1.  Guarantee.  Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all
other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Loan Parties to the
Administrative Agent and the Lenders under the Credit Agreement and the other
Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant
to the Credit Agreement and the other Loan Documents; and (c) the due and
punctual payment and performance of all obligations of the Borrower, monetary
or otherwise, under each Hedging Agreement entered into with a counterparty
that was a Lender or an Affiliate of a Lender at the time such Hedging Agreement
was entered into (all the monetary and other obligations referred to in the
preceding clauses (a) 


 


1

















 


through (c) being
collectively called the “Obligations”). Each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligation.


 


SECTION 2.  Obligations Not Waived.  To the fullest extent permitted by applicable
law, each Guarantor waives presentment to, demand of payment from and protest
to the Borrower of any of the Obligations, and also waives notice of acceptance
of its guarantee and notice of protest for nonpayment. To the fullest extent
permitted by applicable law, the obligations of each Guarantor hereunder shall
not be affected by (a) the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce or exercise any right or
remedy against the Borrower or any other Guarantor under the provisions of the
Credit Agreement, any other Loan Document or otherwise, (b) any
rescission, waiver, amendment or modification of, or any release from any of
the terms or provisions of, this Agreement, any other Loan Document, any
Guaranty or any other agreement, including with respect to any other Guarantor
under this Agreement, or (c) the failure to perfect any security interest
in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.


 


SECTION 3.  [Intentionally Deleted]


 


SECTION 4.  Guarantee of Payment.  Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any of the security held for payment of the Obligations
or to any balance of any deposit account or credit on the books of the
Administrative Agent or any Lender in favor of the Borrower or any other
person.


 


SECTION 5.  No Discharge or Diminishment of Guarantee.  The obligations of each Guarantor hereunder
shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than the indefeasible payment in full in cash of the
Obligations), including any claim of waiver, release, surrender, alteration or
compromise of any of the Obligations, and shall not be subject to any defense
or setoff, counterclaim (other than a defense of indefeasible payment in full in
cash or performance), recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise affected
by the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce any remedy under the Credit Agreement, any other Loan
Document or any other agreement, by any waiver or modification of any provision
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or, to the maximum extent permitted by
applicable law, by any other act or omission that may or might in any manner or
to the extent vary the risk of any Guarantor or that would otherwise operate as
a discharge of each Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations).


 


SECTION 6.  Defenses of Borrower Waived.  To the fullest extent permitted by applicable
law, each Guarantor waives any defense based on or arising out of any defense
of the Borrower (other than a defense of indefeasible payment in full in cash
or performance) or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any 


 


2

















 


cause of the
liability of the Borrower, other than the final and indefeasible payment in
full in cash of the Obligations.  The Administrative
Agent and the Lenders may, at their election, compromise or adjust any part of
the Obligations, make any other accommodation with the Borrower or any other
guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Obligations have been fully,
finally and indefeasibly paid in cash. 
Pursuant to applicable law, each Guarantor waives any defense arising
out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
subrogation or other right or remedy of such Guarantor against the Borrower or
any other Guarantor or guarantor, as the case may be, or any security.


 


SECTION 7.  Agreement to Pay; Subordination.  In furtherance of the foregoing and not in
limitation of any other right that the Administrative Agent or any Lender has
at law or in equity against any Guarantor by virtue hereof, upon the failure of
the Borrower or any other Loan Party to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Administrative Agent for the benefit of the Lenders
in cash the amount of such unpaid Obligations. 
Upon payment by any Guarantor of any sums to the Administrative Agent,
all rights of such Guarantor against the Borrower arising as a result thereof
by way of right of subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in right of payment
to the prior indefeasible payment in full in cash of all the Obligations (other
than Obligations comprised of indemnification, expense reimbursement, tax gross-up
or yield protection as to which no claim has been made).  In addition, any indebtedness of the Borrower
now or hereafter held by any Guarantor is hereby subordinated in right of
payment to the prior payment in full in cash of the Obligations. If any amount
shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Administrative Agent and the Lenders and shall forthwith be paid
to the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.


 


SECTION 8.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.


 


SECTION 9.  Representations and Warranties.  Each Guarantor represents and warrants as to
itself that all representations and warranties relating to it (as a Subsidiary
of the Borrower) contained in the Credit Agreement are true and correct all as
if such representations and warranties are set forth herein in full.


 


SECTION 10.  Termination.  The guarantees made hereunder (a) shall
automatically terminate when all the Obligations have been paid in full in cash
(other than Obligations comprised of indemnification, expense reimbursement,
tax gross-up or yield protection as to 


 


3

















 


which no claim has
been made) and the Lenders have no further commitment to lend under the Credit
Agreement, and (b) shall continue to be effective or be reinstated, as the
case may be, if and to the extent that (x) any payment, or any part
thereof, of any Obligation is rescinded or must otherwise be restored by any
Lender or any Guarantor upon the bankruptcy or reorganization of the Borrower,
any Guarantor or otherwise and/or (y) any claim is made with respect to
any Obligations comprised of indemnification, expense reimbursement, tax
gross-up or yield protection.  In
connection with the foregoing, the Administrative Agent shall execute and deliver
to such Guarantor or Guarantor’s designee, at such Guarantor’s expense, any
documents or instruments which such Guarantor shall reasonably request from
time to time to evidence such termination and release.


 


SECTION 11.  Binding Effect; Several Agreement; Assignments.  Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party; and all covenants, promises and agreements by or on
behalf of any of the parties hereto that are contained in this Agreement shall
bind and inure to the benefit of each party hereto and their respective
successors and assigns. This Agreement shall become effective as to any
Guarantor when a counterpart hereof executed on behalf of such Guarantor shall
have been delivered to the Administrative Agent, and a counterpart hereof shall
have been executed on behalf of the Administrative Agent, and thereafter shall
be binding upon such Guarantor and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Administrative Agent and the Lenders, and their respective
successors and assigns, except that no Guarantor shall have the right to assign
its rights or obligations hereunder or any interest herein (and any such
attempted assignment shall be void). If all of the capital stock of a Guarantor
is sold, transferred or otherwise disposed of pursuant to a transaction
permitted by the Credit Agreement, such Guarantor shall be released from its obligations
under this Agreement without further action. This Agreement shall be construed
as a separate agreement with respect to each Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Guarantor
without the approval of any other Guarantor and without affecting the
obligations of any other Guarantor hereunder.


 


SECTION 12.  Waivers; Amendment.  (a) No failure or delay of the
Administrative Agent of any in exercising any power or right hereunder 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 a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and of the Administrative
Agent hereunder and of the Lenders under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver and
consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any Guarantor in any case shall entitle
such Guarantor to any other or further notice in similar or other
circumstances.


 


(b)           Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to a
written agreement entered into between the Guarantors with respect to which
such waiver, amendment or modification relates and the Administrative Agent, 


 


4

















 


with the prior
written consent of the Required Lenders (except as otherwise provided in the
Credit Agreement).


 


SECTION 13.  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.


 


SECTION 14.  Notices.  All communications and notices hereunder shall
be in writing and given as provided in Section 10.1 of the Credit
Agreement.  All communications and
notices hereunder to each Guarantor shall be given to it at the address
specified for the Borrower as set forth in Section 10.1 of the Credit
Agreement.


 


SECTION 15.  Survival of Agreement; Severability.  (a) All covenants, agreements
representations and warranties made by the Guarantors herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or the other Loan Document shall be considered to
have been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans regardless of any investigation
made by any of them or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
other fee or amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and as long as the Commitments have not been terminated.


 


(b)           In the event one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 16.  Counterparts.  This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 11),
and shall become effective as provided in Section 11. Delivery of an
executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually executed counterpart of this
Agreement.


 


SECTION 17.  Rules of Interpretation.  The rules of interpretation specified in
Section 1.3 of the Credit Agreement shall be applicable to this Agreement.


 


SECTION 18.  Jurisdiction; Consent to Service of
Process.  (a) Each Guarantor
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 the other
Loan Documents, 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 


 


5

















 


by law, in 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 shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against any Guarantor or its
properties in the courts of any jurisdiction.


 


Each Guarantor
hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the other Loan Documents in any Georgia State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 14. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.


 


SECTION 19.  Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
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, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 19.


 


SECTION 20.  Additional Guarantors.  Upon execution and delivery after the date
hereof by the Administrative Agent and a Subsidiary of the Borrower of an
instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.


 


SECTION 21.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Lender to or for the
credit or the account of any Guarantor against any or all the obligations of
such Guarantor now or hereafter existing under this Agreement and the other
Loan Documents held by such Lender, irrespective of whether or not such Person
shall have made any demand under this Agreement or any other Loan Document and
although such obligations may be 


 


6

















 


unmatured. Each
Lender agrees to promptly notify the Administrative Agent and the Borrower
after any such set-off and any application made by such Lender; provided,
that the failure to give notice shall not affect the validity of such set-off
and application.  The rights of each
Lender under this Section 21 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may be, may have.


 


7
















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this
Subsidiary Guaranty Agreement as of the day and year first above written.


 


 


	
   

  	
  ORKIN, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTERN
  INDUSTRIES – NORTH, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTERN
  INDUSTRIES – SOUTH, INC.

  



 


8

















 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  INDUSTRIAL FUMIGANT CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ORKIN
  EXPANSION, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


9

















 


ANNEX 1 TO THE


 


SUBSIDIARY GUARANTY AGREEMENT


 


SUPPLEMENT NO.
[      ] dated as of [               ], to the Subsidiary Guaranty
Agreement (the “Guaranty Agreement”) dated as of March 28, 2008
executed by each of the Subsidiaries a party thereto (each such Subsidiary
individually, a “Guarantor” and collectively, the “Guarantors”)
of ROLLINS, INC., a Delaware corporation (the “Borrower”).


 


A.            Reference is made to that certain
Credit Agreement dated as of March 28, 2008 (as amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the lenders from time to time party thereto (the “Lenders”)
and SunTrust Bank, as Administrative Agent.


 


B.            Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Guaranty Agreement and the Credit Agreement.


 


C.            The Guarantors have entered into the
Guaranty Agreement in order to induce the Lenders to make Loans and other
financial accommodations to the Borrower. 
Pursuant to Section 5.10 of the Credit Agreement, certain
Subsidiaries are required to enter into or otherwise become a party to the
Guaranty Agreement as a Guarantor.  Section 20
of the Guaranty Agreement provides that such Subsidiaries of the Borrower may
become Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (“New Guarantor”) is executing this Supplement in accordance
with the requirements of the Credit Agreement to become a Guarantor under the
Guaranty Agreement in order to induce the Lenders to make additional Loans and
as consideration for Loans previously made.


 


Accordingly, the
Administrative Agent and the New Guarantor agree as follows:


 


SECTION 1.  In accordance with Section 20 of the
Guaranty Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Guaranty Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby (a) agrees
to all the terms and provisions of the Guaranty Agreement applicable to it as
Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are true
and correct all as if such representations and warranties were set forth herein
in full on and as of the date hereof. Each reference to a Guarantor in the
Guaranty Agreement shall be deemed to include the New Guarantor. The Guaranty
Agreement is hereby incorporated herein by reference.


 


SECTION 2.  The New Guarantor represents and warrants to
the Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization, 


 


10

















 


moratorium, or
similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).


 


SECTION 3.  This Supplement may be executed in
counterparts each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Supplement shall become
effective when the Administrative Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Guarantor and the Administrative Agent. Delivery of an executed signature page to
this Supplement by facsimile transmission shall be as effective as delivery of
a manually signed counterpart of this Supplement.


 


SECTION 4.  Except as expressly supplemented hereby, the
Guaranty Agreement shall remain in full force and effect.


 


SECTION 5.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.


 


SECTION 6.  In case any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guaranty Agreement shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction). The
parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 7.  All communications and notices hereunder
shall be in writing and given as provided in Section 14 of the Guaranty
Agreement. All communications and notices hereunder to the New Guarantor shall
be given to it at the address set forth under its signature below.


 


SECTION 8. To
the extent the following expenses are not paid by the Borrower under the Credit
Agreement, the New Guarantor agrees to reimburse the Administrative Agent for
its reasonable and documented out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.


 


[Signature Page Follows]


 


11

















 


IN WITNESS WHEREOF, the New Guarantor has duly executed this Supplement
to the Subsidiary Guaranty Agreement as of the day and year first above
written.


 


 


	
   

  	
   

  	
  [Name
  of New Guarantor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy
  Number:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUNTRUST
  BANK, as Administrative Agent

  



 


12

















 


	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


13
















 


EXHIBIT 2.3


 


FORM OF NOTICE OF REVOLVING BORROWING


 


[Date]


 


SunTrust
Bank,


as
Administrative Agent


for
the Lenders referred to below


303
Peachtree Street, N.E.


Atlanta,
GA 30308


 


Ladies
and Gentlemen:


 


Reference
is made to the Revolving Credit Agreement dated as of March 28, 2008 (as
amended and in effect on the date hereof, the “Credit Agreement”), among
the undersigned, as Borrower, the lenders from time to time party thereto, and
SunTrust Bank, as Administrative Agent. 
Terms defined in the Credit Agreement are used herein with the same
meanings.  This notice constitutes a
Notice of Revolving Borrowing, and the Borrower hereby requests a Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Borrowing requested hereby:


 


	
  (A)

  	
  Aggregate
  principal amount of Borrowing(1):

  
	
   

  	
   

  
	
  (B)

  	
  Date
  of Borrowing (which is a Business Day):

  
	
   

  	
   

  
	
  (C)

  	
  Interest
  Rate basis(2):

  
	
   

  	
   

  
	
  (D)

  	
  Interest
  Period(3):

  
	
   

  	
   

  
	
  (E)

  	
  Location
  and number of Borrower’s account to which proceeds of Borrowing are to be
  disbursed:

  



 


[Continued on Following Page]


 


1

















 


The
Borrower hereby represents and warrants that the conditions specified in
paragraphs (a), (b) and (c) of Section 3.2 of the Credit
Agreement are satisfied.  The Borrower
hereby certifies to the Administrative Agent and each Lender that, after giving
pro forma effect to the Borrowing requested herein, the Borrower and its
Subsidiaries are in pro forma compliance with the financial covenants set forth
in Article VI of the Credit Agreement.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 






(1)  Not
less than $1,000,000 and an integral multiple of $500,000 (or the remaining
amount of the Aggregate Revolving Commitment Amount, if less) for Eurodollar
Borrowing, and not less than $1,000,000 and an integral multiple of $500,000
(or the remaining amount of the Aggregate Revolving Commitment Amount, if less)
for Base Rate Borrowing.


 


(2)  Eurodollar
Borrowing or Base Rate Borrowing.


 


(3)  Which
must comply with the definition of “Interest Period” and end not later than the
Revolving Commitment Termination Date.


 


2

















 


EXHIBIT 2.4


 


FORM OF NOTICE OF SWINGLINE BORROWING


 


[Date]


 


SunTrust
Bank,


as
Administrative Agent


for
the Lenders referred to below


303
Peachtree Street, N.E.


Atlanta,
GA 30308


 


Ladies
and Gentlemen:


 


Reference
is made to the Revolving Credit Agreement dated as of March 28, 2008 (as
amended and in effect on the date hereof, the “Credit Agreement”), among
the undersigned, as Borrower, the lenders from time to time party thereto, and
SunTrust Bank, as Administrative Agent. 
Terms defined in the Credit Agreement are used herein with the same
meanings.  This notice constitutes a
Notice of Swingline Borrowing, and the Borrower hereby requests a Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Borrowing requested hereby:


 


	
  (A)

  	
  Principal
  amount of Swingline Loan(1):

  
	
   

  	
   

  
	
  (B)

  	
  Date
  of Swingline Loan (which is a Business Day):

  
	
   

  	
   

  
	
  (C)

  	
  Proposed
  Swingline Rate(2):

  
	
   

  	
   

  
	
  (D)

  	
  Proposed
  Interest Period(2):

  
	
   

  	
   

  
	
  (E)

  	
  Location
  and number of Borrower’s account to which proceeds of Swingline Loan are to be
  disbursed:

  



 


[Continued on Following Page]


 


1

















 


The
Borrower hereby represents and warrants that the conditions specified in
paragraphs (a), (b) and (c) of Section 3.2 of the Credit
Agreement are satisfied.  The Borrower
hereby certifies to the Administrative Agent and each Lender that, after giving
pro forma effect to the Borrowing requested herein, the Borrower and its
Subsidiaries are in pro forma compliance with the financial covenants set forth
in Article VI of the Credit Agreement.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 






(1)  Not
less than $100,000 or a larger multiple of $50,000 (or such other minimum
amounts agreed to by Swingline Lender and Borrower).


(2)  Swingline
Rate and Interest Period must be confirmed by Swingline Lender.


 


2

















 


EXHIBIT 2.6


 


FORM OF NOTICE OF CONTINUATION/CONVERSION


 


[Date]


 


SunTrust
Bank,


as
Administrative Agent


for
the Lenders referred to below


303
Peachtree Street, N.E.


Atlanta,
GA 30308


 


Ladies
and Gentlemen:


 


Reference
is made to the Revolving Credit Agreement dated as of March 28, 2008 (as
amended and in effect on the date hereof, the “Credit Agreement”), among
the undersigned, as Borrower, the lenders named therein, and SunTrust Bank, as
Administrative Agent.  Terms defined in
the Credit Agreement are used herein with the same meanings.  This notice constitutes a Notice of
Continuation/Conversion and the Borrower hereby requests the continuation or
conversion of a Borrowing under the Credit Agreement, and in that connection
the Borrower specifies the following information with respect to the Borrowing
to be converted or continued as requested hereby:


 


	
  (A)

  	
  Borrowing to which this request applies:

  
	
   

  	
   

  
	
  (B)

  	
  Principal amount of Borrowing to be continued/converted:

  
	
   

  	
   

  
	
  (C)

  	
  Effective date of election (which is a Business Day):

  
	
   

  	
   

  
	
  (D)

  	
  Interest rate basis:

  
	
   

  	
   

  
	
  (E)

  	
  Interest Period:

  



 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  ROLLINS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


1
















 


EXHIBIT 3.1(b)(v)


 


FORM OF SECRETARY’S CERTIFICATE OF

[LOAN PARTY]


 


Reference is made to the Revolving Credit Agreement
dated as of March 28, 2008 (the “Credit Agreement”) among Rollins, Inc.
[(the “Borrower”)] the lenders named therein, and SunTrust Bank, as
Administrative Agent.  Capitalized terms
defined in the Credit Agreement are used herein with the same meanings.  This certificate is being delivered pursuant
to Section 3.1 of the Credit Agreement.


 


I,
                                    ,
Secretary of {Loan Party}, DO HEREBY CERTIFY that:


 


a)              annexed hereto as Exhibit A is a true and
correct certified copy of the [articles of incorporation][certificate of
incorporation] of {Loan Party} as in effect on the date hereof;


 


b)              no proceedings have been instituted or are pending or
contemplated with respect to the dissolution, liquidation or sale of all or
substantially all the assets of {Loan Party} or threatening its existence or
the forfeiture or any of its corporate rights;


 


c)              annexed hereto as Exhibit B is a true and
correct copy of the bylaws of {Loan Party} as in effect on the date hereof;


 


d)            annexed hereto as Exhibit C is a true and
correct copy of resolutions duly adopted by the Board of Directors of {Loan
Party} pursuant to a unanimous written consent duly adopted by said [Board of
Directors][Executive Committee] on
March       , 2008, which resolutions are
the only resolutions adopted by the Board of Directors of {Loan Party} or any
committee thereof relating to the Credit Agreement and the other loan documents
to which {Loan Party} is a party and the transactions contemplated therein and
have not been revoked, amended, supplemented or modified and are in full force
and effect on the date hereof; and


 


e)             each of the persons named below is a duly elected and
qualified officer of {Loan Party} holding the respective office set forth
opposite his or her name and the signature set forth opposite of each such
person is his or her genuine signature:


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Specimen Signature

  
	
  [Include
  all officers who are signing the Credit Agreement or any other Loan
  Documents.]

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


1

















 


IN
WITNESS WHEREOF, I have hereunto signed my name as Secretary of {Loan
Party} and not in an individual capacity this
         day of March, 2008.


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Secretary

  



 


I,
                          ,
[Title] of {Loan Party}, do hereby
certify that
                              
has been duly elected, is duly qualified and is the Secretary of {Loan Party},
that the signature set forth above is his/her genuine signature.


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


2

















 


EXHIBIT 3.1(b)(viii)


 


FORM OF OFFICER’S CERTIFICATE


 


Reference
is made to the Revolving Credit Agreement dated as of March 28, 2008 (the “Credit
Agreement”) among Rollins, Inc. (the “Borrower”) the lenders
named therein, and SunTrust Bank, as Administrative Agent.  Terms defined in the Credit Agreement are
used herein with the same meanings.  This
certificate is being delivered pursuant to Section 3.1(b)(viii) of
the Credit Agreement.


 


I,
                        ,
[Title] of the Borrower, DO HEREBY
CERTIFY that:


 


(a)                                       the
representations and warranties of the Borrower set forth in the Credit
Agreement are true and correct on and as of the date hereof (except for those
which expressly relate to an earlier date which shall be true and correct in
all material respects as of such date);


 


(b)                                      no Default or
Event of Default has occurred and is continuing at the date hereof;


 


(c)                                  since                        ,
200    , there has been no change, event or other
circumstance which has had or could reasonably be expected to have a Material
Adverse Effect; and


 


(d)                                 no consents,
approvals, authorizations, registrations and filings and orders are required to
be made or obtained under any Requirement of Law, or any Charter Document or by
any material Contractual Obligation of the Borrower in connection with the
execution, delivery, performance, validity and enforceability of the Loan
Documents or any of the transactions contemplated thereby.


 


IN
WITNESS WHEREOF, I have hereunto signed my name as [Title] of
the Borrower and not in an individual capacity this
         day of March, 2008.


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


1

















 


EXHIBIT 5.1(c)


 


FORM OF COMPLIANCE CERTIFICATE


 


To:                              SunTrust Bank,
as Administrative Agent

303 Peachtree St., N.E.


Atlanta,
GA  30308


Attention:


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Revolving Credit Agreement dated as of March 28,
2008 (as amended and in effect on the date hereof, the “Credit Agreement”),
among Rollins, Inc. (the “Borrower”), the lenders named therein,
and SunTrust Bank, as Administrative Agent. 
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.


 


I,
                            
, being the duly elected and qualified, and acting in my capacity as [Chief Financial Officer][Treasurer] of the Borrower, hereby
certify to the Administrative Agent and each Lender as follows:


 


1.             The consolidated financial statements of the Borrower
and its Subsidiaries attached hereto for the fiscal [quarter][year]
ending
                        
(the “Test Period”) fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries as at the end of such
fiscal [quarter][year] on a consolidated basis,
and the related statements of income cash flows of the Borrower and its
Subsidiaries for such fiscal [quarter][year],
in accordance with generally accepted accounting principles consistently
applied (subject, in the case of such quarterly financial statements, to normal
year-end audit adjustments and the absence of footnotes).


 


2.             The calculations set forth in Attachment 1 are
computations of the Leverage Ratio calculated from the financial statements
referenced in clause 1 above in accordance with the terms of the Credit
Agreement.


 


3.             The Borrower and its Subsidiaries have complied with all
the terms and provisions of Section 3.02(a) of the Sarbanes-Oxley Act
as in effect on the date hereof.


 


4.             Based upon a review of the activities of Borrower and
its Subsidiaries and the financial statements attached hereto during the period
covered thereby, as of the date hereof, there exists no Default or Event of
Default [if such is not the case, specify such Default or
Event of Default and its nature, when it occurred and whether it is continuing
and the steps being taken by the Borrower with respect to such event, condition
or failure].


 


1

















 


IN WITNESS WHEREOF, I have hereunto signed my
name as [Chief Financial Officer][Treasurer] of
the Borrower and not in an individual capacity this
        day of
                            ,
20    .


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:
  [Chief Financial Officer][Treasurer]

  



 


2

















 


Attachment I to Compliance Certificate


 


 


3