exv10w1



 





Exhibit 10.1




EXECUTION COPY




 
 





$725,000,000



SECOND AMENDED AND RESTATED CREDIT AGREEMENT



among



RENT-A-CENTER, INC.,



as Borrower,



The Several Lenders from Time to Time Parties Hereto,



UNION BANK OF CALIFORNIA, N.A.,



as Documentation Agent,



LEHMAN COMMERCIAL PAPER INC.,



as Syndication Agent,



and



JPMORGAN CHASE BANK, N.A.,



as Administrative Agent



Dated as of May 28, 2003,



as Amended and Restated as of July 13, 2006



J.P. MORGAN SECURITIES INC. and LEHMAN BROTHERS INC.,



as Co-Lead Arrangers and Joint Bookrunners




 
 






 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	SECTION 1.	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1.	 	Defined Terms	 	 	1	 
	 
	 	1.2.	 	Other Definitional Provisions	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	SECTION 2.	 	AMOUNT AND TERMS OF FACILITIES	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1.	 	Term Commitments; Term Loans; Incremental Term Loans	 	 	27	 
	 
	 	2.2.	 	Revolving Commitments; Revolving Loans; Incremental Revolving Loans	 	 	28	 
	 
	 	2.3.	 	Swingline Commitment	 	 	29	 
	 
	 	2.4.	 	Procedure for Term Loan Borrowing	 	 	29	 
	 
	 	2.5.	 	Procedure for Revolving Loan Borrowing	 	 	29	 
	 
	 	2.6.	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans	 	 	30	 
	 
	 	2.7.	 	Repayment of Loans	 	 	31	 
	 
	 	2.8.	 	Commitment Fees, Etc	 	 	33	 
	 
	 	2.9.	 	Termination or Reduction of Commitments	 	 	33	 
	 
	 	2.10.	 	Optional Prepayments	 	 	33	 
	 
	 	2.11.	 	Mandatory Prepayments	 	 	33	 
	 
	 	2.12.	 	Conversion and Continuation Options	 	 	34	 
	 
	 	2.13.	 	Limitations on Eurodollar Tranches	 	 	35	 
	 
	 	2.14.	 	Interest Rates and Payment Dates	 	 	35	 
	 
	 	2.15.	 	Computation of Interest and Fees	 	 	36	 
	 
	 	2.16.	 	Inability to Determine Interest Rate	 	 	36	 
	 
	 	2.17.	 	Pro Rata Treatment and Payments	 	 	36	 
	 
	 	2.18.	 	Requirements of Law	 	 	38	 
	 
	 	2.19.	 	Taxes	 	 	39	 
	 
	 	2.20.	 	Indemnity	 	 	40	 
	 
	 	2.21.	 	Change of Lending Office	 	 	41	 
	 
	 	2.22.	 	Replacement of Lenders	 	 	41	 
	 
	 	2.23.	 	Illegality	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	SECTION 3.	 	LETTERS OF CREDIT	 	 	42	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1.	 	LC Commitments	 	 	42	 
	 
	 	3.2.	 	Procedure for Issuance of Letter of Credit	 	 	42	 
	 
	 	3.3.	 	Fees and Other Charges	 	 	42	 
	 
	 	3.4.	 	LC Participations	 	 	43	 
	 
	 	3.5.	 	Reimbursement Obligation of the Borrower	 	 	44	 
	 
	 	3.6.	 	Obligations Absolute	 	 	45	 
	 
	 	3.7.	 	Letter of Credit Payments	 	 	45	 
	 
	 	3.8.	 	Applications	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	SECTION 4.	 	REPRESENTATIONS AND WARRANTIES	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1.	 	Financial Condition	 	 	46	 
	 
	 	4.2.	 	No Change	 	 	46	 
	 
	 	4.3.	 	Existence; Compliance with Law	 	 	46	 






i








 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	4.4.	 	Power; Authorization; Enforceable Obligations	 	 	46	 
	 
	 	4.5.	 	No Legal Bar	 	 	47	 
	 
	 	4.6.	 	Litigation	 	 	47	 
	 
	 	4.7.	 	No Default	 	 	47	 
	 
	 	4.8.	 	Ownership of Property; Liens	 	 	47	 
	 
	 	4.9.	 	Intellectual Property	 	 	47	 
	 
	 	4.10.	 	Taxes	 	 	47	 
	 
	 	4.11.	 	Federal Regulations	 	 	47	 
	 
	 	4.12.	 	Labor Matters	 	 	48	 
	 
	 	4.13.	 	ERISA	 	 	48	 
	 
	 	4.14.	 	Investment Company Act; Other Regulations	 	 	48	 
	 
	 	4.15.	 	Subsidiaries	 	 	48	 
	 
	 	4.16.	 	Use of Proceeds	 	 	48	 
	 
	 	4.17.	 	Environmental Matters	 	 	48	 
	 
	 	4.18.	 	Accuracy of Information, etc.	 	 	49	 
	 
	 	4.19.	 	Security Documents	 	 	50	 
	 
	 	4.20.	 	Solvency	 	 	50	 
	 
	 	4.21.	 	Senior Indebtedness	 	 	51	 
	 
	 	4.22.	 	Regulation H	 	 	51	 
	 
	 	4.23.	 	Insurance	 	 	51	 
	 
	 	4.24.	 	Lease Payments	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	SECTION 5.	 	CONDITIONS PRECEDENT	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1.	 	Conditions to Effectiveness	 	 	51	 
	 
	 	5.2.	 	Conditions to Each Extension of Credit	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	SECTION 6.	 	AFFIRMATIVE COVENANTS	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.1.	 	Financial Statements	 	 	52	 
	 
	 	6.2.	 	Certificates; Other Information	 	 	53	 
	 
	 	6.3.	 	Payment of Obligations	 	 	54	 
	 
	 	6.4.	 	Maintenance of Existence; Compliance	 	 	54	 
	 
	 	6.5.	 	Maintenance of Property; Insurance	 	 	54	 
	 
	 	6.6.	 	Inspection of Property; Books and Records; Discussions	 	 	54	 
	 
	 	6.7.	 	Notices	 	 	54	 
	 
	 	6.8.	 	Environmental Laws	 	 	55	 
	 
	 	6.9.	 	Additional Collateral, etc.	 	 	55	 
	 
	 	6.10.	 	Permitted Acquisitions and Permitted Foreign Acquisitions	 	 	57	 
	 
	 	6.11.	 	Further Assurances	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	SECTION 7.	 	NEGATIVE COVENANTS	 	 	57	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1.	 	Financial Condition Covenants	 	 	57	 
	 
	 	7.2.	 	Indebtedness	 	 	58	 
	 
	 	7.3.	 	Liens	 	 	59	 
	 
	 	7.4.	 	Fundamental Changes	 	 	60	 
	 
	 	7.5.	 	Disposition of Property	 	 	61	 
	 
	 	7.6.	 	Restricted Payments	 	 	62	 
	 
	 	7.7.	 	Capital Expenditures	 	 	63	 
	 
	 	7.8.	 	Investments	 	 	63	 






ii








 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 

	 	 	7.9.	 	 	Payments and Modifications of Certain Debt
Instruments and Qualified Preferred Stock
	 	 	64	 
	 

	 	 	7.10.	 	 	Transactions with Affiliates
	 	 	65	 
	 

	 	 	7.11.	 	 	Sales/Leaseback Transactions
	 	 	65	 
	 

	 	 	7.12.	 	 	Changes in Fiscal Periods
	 	 	65	 
	 

	 	 	7.13.	 	 	Negative Pledge Clauses
	 	 	65	 
	 

	 	 	7.14.	 	 	Clauses Restricting Subsidiary Distributions
	 	 	66	 
	 

	 	 	7.15.	 	 	Lines of Business
	 	 	66	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 8.	 	EVENTS OF DEFAULT	 	 	66	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 9.	 	THE AGENTS	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	9.1.	 	 	Appointment
	 	 	69	 
	 

	 	 	9.2.	 	 	Delegation of Duties
	 	 	70	 
	 

	 	 	9.3.	 	 	Exculpatory Provisions
	 	 	70	 
	 

	 	 	9.4.	 	 	Reliance by Administrative Agent
	 	 	70	 
	 

	 	 	9.5.	 	 	Notice of Default
	 	 	70	 
	 

	 	 	9.6.	 	 	Non-Reliance on Agents and Other Lenders
	 	 	71	 
	 

	 	 	9.7.	 	 	Indemnification
	 	 	71	 
	 

	 	 	9.8.	 	 	Agent in Its Individual Capacity
	 	 	71	 
	 

	 	 	9.9.	 	 	Successor Administrative Agent
	 	 	72	 
	 

	 	 	9.10.	 	 	Authorization to Release Guarantees and Liens
	 	 	72	 
	 

	 	 	9.11.	 	 	Documentation Agent and Syndication Agent
	 	 	72	 
	 
	 	 	 	 	 	 	 	 	 	 
	SECTION 10.	 	MISCELLANEOUS	 	 	72	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	10.1.	 	 	Amendments and Waivers
	 	 	72	 
	 

	 	 	10.2.	 	 	Notices
	 	 	74	 
	 

	 	 	10.3.	 	 	No Waiver; Cumulative Remedies
	 	 	75	 
	 

	 	 	10.4.	 	 	Survival of Representations and Warranties
	 	 	75	 
	 

	 	 	10.5.	 	 	Payment of Expenses and Taxes
	 	 	75	 
	 

	 	 	10.6.	 	 	Successors and Assigns; Participations and Assignments
	 	 	76	 
	 

	 	 	10.7.	 	 	Adjustments; Setoff
	 	 	78	 
	 

	 	 	10.8.	 	 	Counterparts
	 	 	79	 
	 

	 	 	10.9.	 	 	Severability
	 	 	79	 
	 

	 	 	10.10.	 	 	Integration
	 	 	79	 
	 

	 	 	10.11.	 	 	GOVERNING LAW
	 	 	79	 
	 

	 	 	10.12.	 	 	Submission To Jurisdiction; Waivers
	 	 	79	 
	 

	 	 	10.13.	 	 	Acknowledgements
	 	 	80	 
	 

	 	 	10.14.	 	 	Confidentiality
	 	 	80	 
	 

	 	 	10.15.	 	 	WAIVERS OF JURY TRIAL
	 	 	81	 
	 

	 	 	10.16.	 	 	USA PATRIOT Act
	 	 	81	 
	 

	 	 	10.17.	 	 	No Novation, etc.
	 	 	81	 
	 

	 	 	10.18.	 	 	Delivery of Addenda
	 	 	81	 






iii




 









 








ANNEX:




	 	 	 
	A

	 	Commitments
	 
	 	 
	SCHEDULES:
	 	 
	 
	 	 
	1.1

	 	Existing Letters of Credit
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.6

	 	Litigation
	4.15

	 	Subsidiaries
	4.19(a)

	 	UCC and Other Filings / Jurisdictions and Offices
	4.19(b)

	 	Mortgaged Properties
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens
	7.14

	 	Existing Restrictions
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	A-1

	 	Guarantee and Collateral Agreement
	A-2

	 	Form of Reaffirmation
	B

	 	Form of Compliance Certificate
	C

	 	Form of Closing Certificate
	D

	 	Form of Assignment and Assumption
	E

	 	Form of Legal Opinion of Fulbright & Jaworski L.L.P.
	F

	 	Form of Exemption Certificate
	G-1

	 	Form of Increased Facility Activation Notice
	G-2

	 	Form of Increased Revolving Facility Activation Notice
	H

	 	Form of New Lender Supplement
	I

	 	Form of Addendum






iv





 









 








          SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 28, 2003, as amended and
restated as of July 13, 2006, among RENT-A-CENTER, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”), UNION BANK OF CALIFORNIA, N.A., as
documentation agent (in such capacity, the “Documentation Agent”), LEHMAN COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the “Syndication Agent”), and JPMORGAN CHASE
BANK, N.A., as administrative agent.




W I T  N  E  S  S  E  T  H :




          WHEREAS, the Borrower entered into the Credit Agreement, dated as of May 28, 2003, as amended
and restated as of July 14, 2004 (the “Existing Credit Agreement”), among the Borrower, the
several banks and other financial institutions or entities party thereto and the agents named
therein;




          WHEREAS, the parties hereto have agreed to amend and restate the Existing Credit Agreement as
provided in this Agreement, which Agreement shall become effective upon the satisfaction of the
conditions precedent set forth in Section 5.1 hereof; and




          WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement or evidence
repayment of any of such obligations and liabilities and that this Agreement amend and restate in
its entirety the Existing Credit Agreement and re-evidence the obligations of the Borrower
outstanding thereunder;




          NOW, THEREFORE, in consideration of the above premises, the parties hereto hereby agree that
on the Restatement Effective Date (as defined below), the Existing Credit Agreement shall be
amended and restated in its entirety as follows:




SECTION 1. DEFINITIONS




          1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1.




          “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.




          “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.




          “Addendum”: an instrument, substantially in the form of Exhibit I, by which a Lender
becomes a party to this Agreement as of the Restatement Effective Date




          “Adjustment Date”: as defined in the Applicable Pricing Grid.




          “Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as
the administrative agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its successors.




 









 








          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.




          “Agents”: the collective reference to the Syndication Agent, the Documentation Agent
and the Administrative Agent.




          “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to,
without duplication, the sum of (a) the aggregate then unpaid principal amount of such Lender’s
Term Loans together with such Lender’s Term Commitments then in effect and (b) the amount of such
Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated,
the amount of such Lender’s Revolving Extensions of Credit then outstanding.




          “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.




          “Agreement”: this Credit Agreement, as amended, supplemented, restated or otherwise
modified from time to time.




          “Alternative Currency”: Canadian dollars and any other currency (other than Dollars)
agreed to by the Issuing Lender and the Borrower.




          “Alternative Currency LC Commitment”: $100,000,000.




          “Alternative Currency LC Exposure”: at any time, the sum of (a) the Dollar Equivalent
of the aggregate undrawn and unexpired amount (that is available for drawing) of all outstanding
Alternative Currency Letters of Credit at such time plus (b) the Dollar Equivalent of the
aggregate principal amount of all LC Disbursements in respect of Alternative Currency Letters of
Credit that have not yet been reimbursed at such time.




          “Alternative Currency Letter of Credit”: a Letter of Credit denominated in an
Alternative Currency.




          “Applicable Margin” (a) with respect to the Revolving Loans, the Swingline Loans, the
Tranche A Term Loans (other than Incremental Tranche A Term Loans) and Tranche B Term Loans (other
than Incremental Tranche B Term Loans), the rate per annum set forth under the relevant column
heading below:




	 	 	 	 	 	 	 	 	 
	 	 	ABR	 	Eurodollar
	 	 	Loans	 	Loans
	Revolving Loans and
Swingline Loans
	 	 	0	%	 	 	1.00	%
	Tranche A Term Loans
	 	 	0	%	 	 	1.00	%
	Tranche B Term Loans
	 	 	0.50	%	 	 	1.50	%






provided, that (i) on and after the first Adjustment Date occurring after the Restatement
Effective Date, the Applicable Margin with respect to such Tranche A Term Loans, Revolving Loans
and Swingline Loans will be determined pursuant to the Applicable Pricing Grid and (ii) if the
all-in pricing of any




2









 







Incremental Term Loan (as calculated by the Administrative Agent upon written notice which shall
provide sufficient detail to support such calculation (it being understood that any such all-in
pricing may take the form of original issue discount (“OID”) or upfront fees (which shall
be deemed to constitute like amounts of OID), with OID being equated to an interest rate based on
an assumed four-year life to maturity)) is greater than the pricing of the relevant Term Loans by
more than 0.25% per annum, the Applicable Margin with respect to the relevant Term Loans (other
than such Incremental Term Loan) shall be increased concurrently with the funding of such
Incremental Term Loan such that such Applicable Margin is equal to the all-in pricing for such
Incremental Term Loan (calculated in the manner provided above) minus 0.25%; and




          (b) with respect to the Incremental Term Loans, such per annum rates as shall be agreed to by
the Borrower and the applicable Incremental Term Lenders as shown in the applicable Increased
Facility Activation Notice.




          “Applicable Pricing Grid”:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin	 	 	 	 
	 	 	for Eurodollar	 	Applicable Margin	 	 
	 	 	Tranche A Term	 	for ABR Tranche A	 	 
	 	 	Loans, Revolving	 	Term Loans,	 	 
	Consolidated	 	Loans and Swingline	 	Revolving Loans and	 	Commitment
	Leverage Ratio	 	Loans	 	Swingline Loans	 	Fee Rate
	32.5 to 1.0
	 	 	1.50	%	 	 	0.50	%	 	 	0.375	%
	<2.5 to 1.0 and
32.0 to 1.0
	 	 	1.25	%	 	 	0.25	%	 	 	0.250	%
	<2.0 to 1.0 and
31.5 to 1.0
	 	 	1.00	%	 	 	0	%	 	 	0.200	%
	<1.5 to 1.0 and
31.0 to 1.0
	 	 	0.875	%	 	 	0	%	 	 	0.175	%
	<1.0 to 1.0
	 	 	0.750	%	 	 	0	%	 	 	0.150	%





Changes in the Applicable Margin or in the Commitment Fee Rate resulting from changes in the
Consolidated Leverage Ratio shall become effective on the date (the “Adjustment Date”) on
which financial statements are delivered to the Lenders pursuant to Section 6.1 (but in any event
not later than the 45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case may be) and shall remain
in effect until the next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Consolidated Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of this definition be
deemed to be greater than 2.5 to 1.0. In addition, at all times while an Event of Default shall
have occurred and be continuing, the Consolidated Leverage Ratio shall for the purposes of this
definition be deemed to be greater than 2.5 to 1.0. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the period of four
consecutive fiscal quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.




          “Application”: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to issue a Letter of Credit.




          “Approved Fund”: as defined in Section 10.6(b).




3









 








          “Asset Sale”: any Disposition of property or series of related Dispositions of
property (excluding any such Disposition permitted by clause (a), (b), (c), (d), (f), (g), (h),
(i), (j) or (k) of Section 7.5 and any Disposition of Cash Equivalents) that yields gross proceeds
to the Borrower or any of its Subsidiaries (valued at the initial principal amount thereof in the
case of non-cash proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) in excess of $1,000,000.




          “Assignee”: as defined in Section 10.6(b).




          “Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit D.




          “Assumed Indebtedness”: Indebtedness assumed in connection with a Permitted
Acquisition or Permitted Foreign Acquisition provided that (a) such Indebtedness is
outstanding at the time of such acquisition and was not incurred in connection therewith or in
contemplation thereof and (b) in the event that such Permitted Acquisition or Permitted Foreign
Acquisition constitutes an acquisition of property other than Capital Stock, such Indebtedness was
incurred in order to acquire or improve such property.




          “Attributable Indebtedness”: in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate implicit in such
transaction determined in accordance with GAAP) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended).




          “Available Revolving Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of determining such
Lender’s Available Revolving Commitment pursuant to Section 2.8(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.




          “Benefitted Lender”: as defined in Section 10.7(a).




          “Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




          “Borrower”: as defined in the preamble hereto.




          “Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.




          “Business”: as defined in Section 4.17(b).




          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.




          “Calculation Date”: two Business Days prior to the last Business Day of each calendar
quarter (or any other day selected by the Administrative Agent in its discretion); provided
that each date




          
4









 








that is on or about the date of any issuance, drawdown, maturity or extension of an
Alternative Currency Letter of Credit shall also be a “Calculation Date” with respect to the
relevant Alternative Currency.




          “Capital Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures (other than those made pursuant to Permitted Acquisitions or Permitted Foreign
Acquisitions) by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period but excluding merchandise inventory
acquired during such period) that should be capitalized under GAAP on a consolidated balance sheet
of such Person and its Subsidiaries.




          “Capital Expenditures (Expansion)”: for any period, with respect to any Person, any
Capital Expenditures made by such Person in connection with the opening of new stores to be
operated by such Person.




          “Capital Expenditures (Maintenance)”: for any period, with respect to any Person, any
Capital Expenditures which do not constitute Capital Expenditures (Expansion) of such Person.




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




          “Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.




          “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition issued by any Lender
or by any commercial bank organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-2 by Standard & Poor’s Ratings Services (“S&P”) or P-2 by Moody’s Investors
Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than 30 days, with respect to securities
issued or fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with
maturities of six months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) short term investments (not exceeding 35 days) in loans made to obligors having an
investment grade rating from each of S&P and Moody’s; (h) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the




5









 







requirements of clauses (a) through (g) of this definition; or (i) investments by Foreign
Subsidiaries in (A) bank accounts and cash management facilities maintained at one of the three
largest banks in the country in which such Foreign Subsidiary maintains its chief executive office
and (B) such investments as are comparable to the cash equivalents described in clauses (a) through
(h) above that are customary investments for entities in such jurisdictions and that are consistent
with the goal of preservation of capital and prudent under the circumstances.




          “Code”: the Internal Revenue Code of 1986, as amended from time to time.




          “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.




          “Commitment”: as to any Lender, the sum of the Term Commitment and the Revolving
Commitment of such Lender.




          “Commitment Fee Rate”: 0.20% per annum; provided, that on and after the first
Adjustment Date occurring after the Restatement Effective Date, the Commitment Fee Rate will be
determined pursuant to the Applicable Pricing Grid.




          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.




          “Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.




          “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund promptly
a Loan under this Agreement if, for any reason, its Conduit Lender fails to fund promptly any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under this Agreement with
respect to its Conduit Lender, and provided, further, that no Conduit Lender shall
(a) be entitled to receive any greater amount pursuant to Section 2.18, 2.19, 2.20 or 10.5 than the
designating Lender would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.




          “Consolidated Current Assets”: at any date, (a) all amounts (other than cash and Cash
Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current
assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries
at such date and (b) without duplication of clause (a) above, the book value of all rental
merchandise inventory of the Borrower and its Subsidiaries at such date.




          “Consolidated Current Liabilities”: at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like
caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but
excluding (a) the current portion of any Funded Debt of the Borrower and its Subsidiaries and (b)
without duplication of clause (a) above, all Indebtedness consisting of Revolving Loans or
Swingline Loans to the extent otherwise included therein.




6









 








          “Consolidated EBITDA”: for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge or reduction in the
statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions
and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation
(excluding depreciation of rental merchandise) and amortization expense, including, without
limitation, amortization of intangibles (including, but not limited to, goodwill) and organization
costs, (d) any extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net
Income for such period, non-cash losses on sales of assets outside of the ordinary course of
business) and (e) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets outside of the ordinary course of business) and (c) any other non-cash
income earned outside the ordinary course of business, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any Reference Period pursuant to any
determination of the Consolidated Leverage Ratio, if during such Reference Period the Borrower or
any Subsidiary shall have made a Material Disposition or Material Acquisition, Consolidated EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto
as if such Material Disposition or Material Acquisition (including any indebtedness incurred or
acquired in connection therewith) occurred on the first day of such Reference Period. As used in
this definition, “Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or substantially all of an
operating unit of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Borrower and its Subsidiaries in excess
of $15,000,000 (or such lesser amount as the Borrower may determine in its discretion); and
“Material Disposition” means any Disposition of property or series of related Dispositions of
property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of
$15,000,000 (or such lesser amount as the Borrower may determine in its discretion).




          “Consolidated Fixed Charge Coverage Ratio”: for any period, the ratio of (a) the sum
of Consolidated EBITDA for such period and, to the extent reducing Consolidated Net Income for such
period, Consolidated Lease Expense for such period, less the aggregate amount actually paid by the
Borrower and its Subsidiaries during such period on account of Capital Expenditures (Maintenance)
to (b) Consolidated Fixed Charges for such period.




          “Consolidated Fixed Charges”: for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period, (b) Consolidated Lease Expense for such period, (c)
regular, scheduled payments made during such period on account of principal of Indebtedness of the
Borrower or any of its Subsidiaries (including scheduled principal payments in respect of the Term
Loans but excluding prepayments thereof) and (d) cash dividend payments made during such period in
respect of any Qualified Preferred Stock.




          “Consolidated Funded Debt”: at any date, the aggregate principal amount of all Funded
Debt (which, for purposes of the calculation of Consolidated Funded Debt, shall be deemed to
exclude any unfunded portion of the Letters of Credit) of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.




          “Consolidated Interest Expense”: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations), net of cash interest income, of the
Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges owed
with respect to letters




7









 







of credit and bankers’ acceptance financing, commitment fees payable pursuant to Section 2.8
and net costs under Hedge Agreements in respect of such Indebtedness to the extent such net costs
are allocable to such period in accordance with GAAP).




          “Consolidated Lease Expense”: for any period, the aggregate amount of fixed and
contingent rentals payable by the Borrower and its Subsidiaries for such period with respect to
leases of real and personal property, determined on a consolidated basis in accordance with GAAP.




          “Consolidated Leverage Ratio”: as at the last day of any period, the ratio of (a)
Consolidated Funded Debt on such day to (b) Consolidated EBITDA for such period.




          “Consolidated Senior Debt”: all Consolidated Funded Debt other than Subordinated
Debt.




          “Consolidated Senior Leverage Ratio”: as at the last day of any period, the ratio of
(a) Consolidated Senior Debt on such day to (b) Consolidated EBITDA for such period.




          “Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to
such Subsidiary.




          “Consolidated Net Income Amount”: at any date of determination, an amount equal to
cumulative Consolidated Net Income from April 1, 2006 through the last day of the most recent
fiscal quarter for which financial statements have been delivered pursuant to Section 6.1.




          “Consolidated Net Worth”: at any date, all amounts that would, in conformity with
GAAP, be included on a consolidated balance sheet of the Borrower and its Subsidiaries under
stockholders’ equity at such date.




          “Consolidated Total Assets”: at any date, (a) all amounts that would, in conformity
with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated
balance sheet of the Borrower and its Subsidiaries at such date and (b) without duplication of
clause (a) above, the book value of all rental merchandise inventory of the Borrower and its
Subsidiaries at such date.




          “Consolidated Working Capital”: at any date, the excess of Consolidated Current
Assets on such date over Consolidated Current Liabilities on such date.




          “Continuing Directors”: the directors of the Borrower on the Restatement Effective
Date, and each other director of the Borrower, if, in each case, such other director’s nomination
for election to the board of directors of the Borrower is recommended by at least 66-2/3% of the
then Continuing Directors.




8









 








          “Contractual Obligation”: as to any Person, any provision of any security issued by
such Person or of any agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.




          “Control Investment Affiliate”: as to any Person, any other Person that (a) directly
or indirectly, is in control of, is controlled by, or is under common control with, such Person and
(b) is organized by such Person primarily for the purpose of making equity or debt investments in
one or more companies. For purposes of this definition, “control” of a Person means the power,
directly or indirectly, to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.




          “Default”: any of the events specified in Section 8, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied (including, in any event,
a “Default” under and as defined in the Senior Subordinated Note Indenture).




          “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and
“Disposed of” shall have correlative meanings; provided, however, that a
“Disposition” shall not include the non-exclusive license of intellectual property by a Subsidiary
to another Subsidiary.




          “Disqualified Stock”: any Capital Stock or other ownership or profit interest of any
Loan Party that any Loan Party is or, upon the passage of time or the occurrence of any event, may
become obligated to redeem, purchase, retire, defease or otherwise make any payment in respect of
in consideration other than Capital Stock (other than Disqualified Stock).




          “Documentation Agent”: as defined in the preamble hereto.




          “Dollar Equivalent”: with respect to the amount of any currency at any date, the
equivalent in Dollars of such amount, calculated on the basis of the arithmetical mean of the buy
and sell spot rates of exchange of the Administrative Agent for such currency on the London market
at 11:00 a.m., London time, on or as of the most recent Calculation Date. Not later than 12:00
Noon, New York City time, on each Calculation Date, the Administrative Agent shall (a) determine
the exchange rate as of such Calculation Date to be used for calculating the Dollar Equivalent
amounts of each currency in which an Alternative Currency Letter of Credit or unreimbursed LC
Disbursement in respect thereof is denominated and (b) give notice thereof to the Borrower. The
exchange rates so determined shall become effective on the relevant Calculation Date and shall
remain effective until the next succeeding Calculation Date.




          “Dollars” and “$”: dollars in lawful currency of the United States.




          “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.




          “Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.




          “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time.




9









 








          “Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.




          “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan (other than any Eurodollar Loan having a seven-day Interest
Period), the rate per annum determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such Interest Period appearing
on Page 3750 of the British Bankers Association Telerate screen as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period, provided that if such rate
does not appear on Page 3750 of the British Bankers Association Telerate screen (or otherwise on
such screen) the “Eurodollar Base Rate” shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be selected by the
Administrative Agent. If no such rate is available or if the Eurodollar Base Rate is being
determined in connection with any Eurodollar Loan having a seven-day Interest Period, such rate
shall be determined by reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency
and exchange operations are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.




          “Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.




          “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):




Eurodollar Base Rate

 1.00 — Eurocurrency Reserve Requirements





          “Eurodollar Tranche”: the collective reference to Eurodollar Loans the then current
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).




          “Event of Default”: any of the events specified in Section 8, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied
(including, in any event, an “Event of Default” under and as defined in the Senior Subordinated
Note Indenture).




          “Excess Cash Flow”: for any fiscal year of the Borrower, the excess, if any, of (a)
the sum, without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) an amount
equal to the amount of all non-cash charges (including depreciation (other than depreciation of
rental merchandise) and amortization) deducted in arriving at such Consolidated Net Income, (iii)
decreases in Consolidated Working Capital for such fiscal year, (iv) an amount equal to the
aggregate net non-cash loss on the Disposition of property by the Borrower and its Subsidiaries
during such fiscal year (other than Dispositions of (x) rental merchandise otherwise included in
changes in Consolidated Working Capital and (y) inventory in the ordinary course of business), to
the extent deducted in arriving at such Consolidated Net Income and (v) amounts paid or invested by
the Insurance Subsidiary in the Borrower




10









 







and its Subsidiaries as permitted by this Agreement (other than reimbursement of insurance
claims to the Borrower or its Subsidiaries), over (b) the sum, without duplication, of (i)
an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net
Income, (ii) the aggregate amount actually paid by the Borrower and its Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the principal amount of Indebtedness
incurred in connection with such expenditures and any such expenditures financed with the proceeds
of any Reinvestment Deferred Amount), (iii) the aggregate amount actually paid by the Borrower and
its Subsidiaries in cash during such fiscal year on account of Permitted Acquisitions or Permitted
Foreign Acquisitions (excluding the principal amount of Indebtedness incurred in connection with
such expenditures and any such expenditures financed with the proceeds of any Reinvestment Deferred
Amount), (iv) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during
such fiscal year to the extent accompanying permanent optional reductions of the Revolving
Commitments and all optional prepayments of the Term Loans during such fiscal year (including
prepayments of the Term Loans required by Section 7.5(e)), (v) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term Loans) of the Borrower
and its Subsidiaries made during such fiscal year (other than any such payment of a facility that
may thereafter be reborrowed), (vi) increases in Consolidated Working Capital for such fiscal year,
(vii) an amount equal to the aggregate net non-cash gain on the Disposition of property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such Consolidated Net Income
and (viii) the aggregate amount of cash paid to the Insurance Subsidiary by the Borrower and its
Subsidiaries as insurance premiums and in additional capital contributions, to the extent the same
are required to meet regulatory capital guidelines, policies or rules.




          “Excess Cash Flow Application Date”: as defined in Section 2.11(c).




          “Excluded Foreign Subsidiary”: any Foreign Subsidiary in respect of which either (a)
the pledge of all of the Capital Stock of such Subsidiary as Collateral or (b) the guaranteeing by
such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower, including any Foreign Subsidiary that would be a
“controlled foreign corporation” as that term is defined under the Code.




          “Existing Credit Agreement”: as defined in the recitals hereto.




          “Existing Letter of Credit”: each letter of credit issued under the Existing Credit
Agreement identified on Schedule 1.1 hereto that is outstanding on the Restatement Effective Date
and each renewal of such letter of credit, each of which shall be deemed, on and after the
Restatement Effective Date, to have been issued hereunder.




          “Existing Senior Subordinated Notes”: the subordinated notes of the Borrower
outstanding on the Restatement Effective Date.




          “Existing Term Loans”: Term Loans outstanding under and as defined in the Existing
Credit Agreement.




          “Facility”: the credit facility consisting of, as applicable, (a) the Tranche A Term
Loans and Tranche A Term Commitments (the “Tranche A Term Facility”), (b) the Tranche B
Term Loans and Tranche B Term Commitments (the “Tranche B Term Facility”) and (c) the
Revolving Commitments and the extensions of credit made thereunder (the “Revolving
Facility”).




          “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal




11









 







funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.




          “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.




          “Funded Debt”: as to any Person, on any date, (a) all Indebtedness of such Person
that matures more than one year from the date of its creation or matures within one year from such
date but is renewable or extendible, at the option of such Person, to a date more than one year
from such date or arises under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans and the Reimbursement Obligations (but excluding, in the case
of the Borrower, any Guarantee Obligations of the Borrower in respect of Indebtedness of
franchisees, to the extent permitted by Section 7.2(h)), minus (b) the aggregate amount of
cash and Cash Equivalents on the consolidated balance sheet of the Borrower and its Subsidiaries on
such date, but in no event exceeding $75,000,000.




          “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.




          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the Restatement Effective Date and consistent with those used in
the preparation of the most recent audited financial statements delivered pursuant to Section
4.1(b). In the event that any “Accounting Change” (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order
to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with
the desired result that the criteria for evaluating the Borrower’s financial condition shall be the
same after such Accounting Change as if such Accounting Change had not been made. Until such time
as such an amendment shall have been executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting Change had not occurred.
“Accounting Change” refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of
the American Institute of Certified Public Accountants or, if applicable, the SEC.




          “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).




          “Guarantee and Collateral Agreement”: the Amended and Restated Guarantee and
Collateral Agreement executed and delivered by the Borrower and each Subsidiary Guarantor,
substantially in the form of Exhibit A, as the same may be amended, supplemented or
otherwise modified from time to time.




12









 








          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including any bank under any
letter of credit) to induce the creation of which the guaranteeing person has issued or incurred a
reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.




          “Hedge Agreements”: all swaps, caps, collars or similar arrangements providing for
protection against fluctuations in interest rates (whether from floating to fixed or from fixed to
floating), currency exchange rates or commodities prices or the exchange of nominal interest
obligations, either generally or under specific contingencies.




          “Increased Facility Activation Date”: any Business Day on which any Lender shall
execute and deliver to the Administrative Agent, as applicable, (i) an Increased Facility
Activation Notice pursuant to Section 2.1(c) or (ii) an Increased Revolving Facility Activation
Notice pursuant to Section 2.2(b).




          “Increased Facility Activation Notice”: a notice substantially in the form of Exhibit
G-1.




          “Increased Facility Closing Date”: any Business Day designated as such in an
Increased Facility Activation Notice.




          “Increased Revolving Facility Activation Notice”: a notice substantially in the form
of Exhibit G-2.




          “Increased Revolving Facility Closing Date”: any Business Day designated as such in
an Increased Revolving Facility Activation Notice.




          “Incremental Lenders”: (a) on any Increased Facility Activation Date, the Lenders
signatory to the applicable Increased Facility Activation Notice and (b) thereafter, each Lender
that is a holder of an Incremental Loan.




          “Incremental Loans”: Incremental Revolving Loans, Incremental Tranche A Term Loans
and Incremental Tranche B Term Loans.




13









 








          “Incremental Revolving Loans”: as defined in Section 2.2(a).




          “Incremental Term Loans”: Incremental Tranche A Term Loans and Incremental Tranche B
Term Loans.




          “Incremental Tranche A Term Loans”: as defined in Section 2.1(c).




          “Incremental Tranche B Term Loans”: as defined in Section 2.1(c).




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party under
acceptance, letter of credit or similar facilities, (g) the liquidation value of all redeemable
preferred Capital Stock of such Person (other than any Qualified Preferred Stock) and all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above; (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation; (j) all Attributable
Indebtedness of such Person and (k) for the purposes of Section 8(e) only, all obligations of such
Person in respect of Hedge Agreements (which, for purposes of such Section 8(e), will be deemed to
have an outstanding principal amount equal to the net amount which would be payable (or would
permit the counterparty thereto to cause to become payable) by the Borrower or Subsidiary party
thereto (including any net termination payment) upon the occurrence of any default, event or
condition specified in such Section 8(e)).




          “Insolvency”: with respect to any Multiemployer Plan, the condition that such
Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.




          “Insolvent”: pertaining to a condition of Insolvency.




          “Insurance Subsidiary”: Legacy Insurance Co., Ltd., a Bermuda company and a Wholly
Owned Subsidiary of the Borrower formed for the sole purpose of writing insurance only for the
risks of the Borrower and its Subsidiaries.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.




          “Intellectual Property Security Agreement”: the Intellectual Property Security
Agreements between certain Loan Parties and the Administrative Agent, substantially in the form of
Exhibit B-1 to the Guarantee and Collateral Agreement.




14









 








          “Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any
Revolving Loan that is an ABR Loan and any Swingline Loan), the date of any repayment or prepayment
made in respect thereof.




          “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending seven days (in the case of Revolving Loans only) or one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar Loan and ending seven days (in
the case of Revolving Loans only) or one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior
to the last day of the then current Interest Period with respect thereto; provided that,
all of the foregoing provisions relating to Interest Periods are subject to the following:





     (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;




     (ii) the Borrower may not select an Interest Period for a particular Facility that
would extend beyond the final maturity date applicable thereto;




     (iii) any Interest Period that 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 a calendar month; and




     (iv) the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Loan.


Notwithstanding the foregoing, clause (iii) above shall not apply to Eurodollar Loans having a
seven-day Interest Period.




          “Investments”: as defined in Section 7.8.




          “Issuing Lender”: JPMorgan Chase Bank, N.A. (or any of its Affiliates), in its
capacity as issuer of any Letter of Credit.




          “LC Disbursement”: as defined in Section 3.5.




          “LC Fee Payment Date”: (a) each date that is three Business Days after the last day
of each March, June, September and December and (b) the last day of the Revolving Commitment
Period.




          “LC Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount available for drawing of the then outstanding Letters of Credit and
(b) the aggregate amount of LC Disbursements that have not then been reimbursed pursuant to Section
3.5. For purposes of computing the amount available to be drawn under any Letter of Credit, the
amount of such




15









 







Letter of Credit shall be determined in accordance with Section 1.2(f). For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the International
Standby Practices, such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.




          “LC Participants”: the collective reference to all Revolving Lenders (including the
Issuing Lender), as participants in each Letter of Credit.




          “Legacy Trust”: Legacy Drive Trust, a trust formed under the laws of the State of
Texas pursuant to, and operating in accordance with, the Trust Agreement.




          “Lenders”: as defined in the preamble hereto.




          “Letters of Credit”: the letters of credit issued pursuant to Section 3.1, which
shall be deemed to include the Existing Letters of Credit.




          “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest 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
substantially the same economic effect as any of the foregoing) or any purchase option, call
option, right of first refusal or similar right.




          “Loan”: any loan made by any Lender pursuant to this Agreement.




          “Loan Documents”: this Agreement, the Security Documents and the Notes.




          “Loan Parties”: the Borrower and each Subsidiary of the Borrower that is a party to a
Loan Document.




          “Majority Facility Lenders”: (a) with respect to each of the Tranche A Term Facility
and the Tranche B Term Facility, the holders of more than 50% of the aggregate unpaid principal
amount of the Term Loans and aggregate Term Commitments outstanding under such Facility and (b)
with respect to the Revolving Facility, the holders of more than 50% of the Total Revolving
Extensions of Credit (or, prior to any termination of the Revolving Commitments, the holders of
more than 50% of the Total Revolving Commitments) outstanding under such Facility.




          “Margin Capital Stock”: Capital Stock issued by the Borrower that (i) constitutes
“margin stock” within the meaning of such term under Regulation U as now or from time to time
hereafter in effect and (ii) would, taking into account all other “margin stock” (within the
meaning of such term under Regulation U as now or from time to time hereafter in effect) held by
the Borrower or any of its Subsidiaries, cause the value of all such “margin stock” to exceed 25%
of the value of all assets of the Borrower and its Subsidiaries that directly or indirectly secure
(within the meaning of Regulation U) the Obligations.




          “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a
whole, (b) the validity or enforceability of this Agreement or any of the other Loan Documents or
the rights or remedies of the Administrative Agent or the Secured Parties hereunder or thereunder
or (c) the validity, enforceability or priority of the Liens intended to be created by the Security
Documents taken as a whole.




16









 








          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.




          “Mortgaged Property”: any real property of any Loan Party as to which the
Administrative Agent for the benefit of the Secured Parties has been granted a Lien pursuant to any
Mortgage.




          “Mortgage”: any mortgage or deed of trust made by any Loan Party in favor of, or for
the benefit of, the Administrative Agent for the benefit of the Secured Parties, in form and
substance reasonably acceptable to the Administrative Agent.




          “Multiemployer Plan”: a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




          “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset Sale or Recovery
Event, net of reasonable attorneys’ fees, accountants’ fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any
Lien pursuant to a Security Document) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable currently as a
result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements) and (b) in connection with any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans, the cash proceeds received from such issuance
or incurrence, net of reasonable attorneys’ fees, investment banking fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses actually incurred in
connection therewith.




          “New Lender Supplement”: a supplement, substantially in the form of Exhibit
H, pursuant to which a New Term Lender or a New Revolving Lender, as applicable, becomes a
Lender hereunder.




          “New Revolving Lender”: as defined in Section 2.2(c).




          “New Term Lender”: as defined in Section 2.1(d).




          “Non-Excluded Taxes”: as defined in Section 2.19(a).




          “Non-U.S. Lender”: as defined in Section 2.19(d).




          “Notes”: the collective reference to any promissory note evidencing Loans.




          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Loan Party, whether or not a claim for post-filing or post-petition
interest is allowed in




17









 







such proceeding) the Loans and all other obligations and liabilities of any Loan Party to the
Administrative Agent or to any Secured Party, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified
Hedge Agreement or any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or
to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided,
that (i) Obligations of the Borrower or any other Loan Party under any Specified Hedge Agreement
shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for
so long as, the other Obligations are so secured and guaranteed, (ii) any release of Collateral or
Guarantors effected in the manner permitted by this Agreement shall not require the consent of
holders of obligations under Specified Hedge Agreements and (iii) the amount of secured Obligations
under any Specified Hedge Agreements shall not exceed the net amount, including any net termination
payments, that would be required to be paid to the counterparty to such Specified Hedge Agreement
on the date of termination of such Specified Hedge Agreement.




          “Other Taxes”: 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”: as defined in Section 10.6(b).




          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).




          “Permitted Acquisition”: any acquisition, consisting of a single transaction or a
series of related transactions, by the Borrower or any one or more of its Wholly Owned Subsidiary
Guarantors (or Subsidiaries who will concurrently with such acquisition become Wholly Owned
Subsidiary Guarantors) of all of the Capital Stock of, or all or a substantial part of the assets
of, or of a business, unit or division of, any Person organized under the laws of the United States
or any state thereof (or a business, unit or division of any Person organized under the laws of any
governmental instrumentality other than the United States or any state thereof, which business unit
or division operates entirely within the United States) (such business, unit or division, the
“Acquired Business”), provided that (a) the consideration paid by the Borrower or
such Subsidiary or Subsidiaries pursuant to such acquisition shall be solely in a form referred to
in clause (a), (b), (c) or (d) of the definition of “Purchase Price” (or some combination thereof),
(b) the requirements of Section 6.10 have been satisfied with respect to such acquisition, (c) the
Borrower shall be in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Section 7.1, in each case recomputed as at the last
day of the most recently ended fiscal quarter of the Borrower as if such acquisition had occurred
on the first day of each relevant period for testing such compliance, (d) no Default or Event of
Default shall have occurred and be continuing, or would occur after giving effect to such
acquisition, (e) all actions required to be taken with respect to any acquired or newly formed
Subsidiary or otherwise with respect to the Acquired Business in such acquisition under Section 6.9
and 6.10 shall have been taken, (f) if the pro forma Consolidated Leverage Ratio as
of the last day of the most recent fiscal quarter for which the relevant financial information is
available is greater than 2.75 to 1.00, the aggregate Purchase Price in respect of such acquisition
and all other Permitted Acquisitions consummated during such fiscal year (including acquisitions
made when this restriction is not applicable) shall not exceed, in such fiscal year, the sum of (i)
$150,000,000 and (ii) an additional amount up to $50,000,000 to the extent not expended as Capital
Expenditures (Expansion) during such fiscal year pursuant to Section 7.7, and (g) any such
acquisition shall have been approved by




18









 







the Board of Directors or such comparable governing body of the Person (or whose business,
unit or division is, as the case may be) being acquired.




          “Permitted Foreign Acquisition”: any acquisition, consisting of a single transaction
or a series of related transactions, by the Borrower or any one or more of its Wholly Owned
Subsidiary Guarantors (or Subsidiaries who will concurrently with such acquisition become Wholly
Owned Subsidiary Guarantors) or Foreign Subsidiaries (that are Wholly Owned Subsidiaries) of all of
the Capital Stock of, or all or a substantial part of the assets of, or of a business, unit or
division of, any Person organized under the laws of any governmental instrumentality other than the
United States or any state thereof (or a business, unit or division of any Person organized under
the laws of the United States or any state thereof, which business unit or division operates
entirely outside of the United States) (such business, unit or division, the “Acquired Foreign
Business”), provided that (a) the consideration paid by the Borrower or such Subsidiary
or Subsidiaries pursuant to such acquisition shall be solely in a form referred to in clause (a),
(b), (c) or (d) of the definition of “Purchase Price” (or some combination thereof), (b) the
requirements of Section 6.10 have been satisfied with respect to such acquisition, (c) the Borrower
shall be in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Section 7.1, in each case recomputed as at the last
day of the most recently ended fiscal quarter of the Borrower as if such acquisition had occurred
on the first day of each relevant period for testing such compliance, (d) no Default or Event of
Default shall have occurred and be continuing, or would occur after giving effect to such
acquisition, (e) all actions required to be taken with respect to any acquired or newly formed
Subsidiary or otherwise with respect to the Acquired Foreign Business in such acquisition under
Section 6.9 and 6.10 shall have been taken, (f) the aggregate Purchase Prices in respect of such
acquisition and all other Permitted Foreign Acquisitions consummated in accordance with this
Agreement shall not exceed $150,000,000 in any single fiscal year of the Borrower and shall not
exceed $300,000,000 from and after the Restatement Effective Date through the remaining term of
this Agreement, and (g) any such acquisition shall have been approved by the Board of Directors or
such comparable governing body of the Person (or whose business, unit or division is, as the case
may be) being acquired.




          “Permitted Investors”: the collective reference to the Speese Persons.




          “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.




          “Plan”: at a particular time, any employee benefit plan, other than a Multiemployer
Plan, that is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.




          “Prime Rate”: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors).




          “Projections”: as defined in Section 6.2(c).




          “Properties”: as defined in Section 4.17(a).




          “Purchase Price”: with respect to any Permitted Acquisition or Permitted Foreign
Acquisition, the sum (without duplication) of (a) the amount of cash paid by the Borrower and its




19









 







Subsidiaries in connection with such acquisition, (b) the value (as determined for purposes of
such acquisition in accordance with the applicable acquisition agreement) of all Capital Stock of
the Borrower issued or given as consideration in connection with such acquisition, (c) the
Qualified Net Cash Equity Proceeds applied to finance such acquisition and (d) the principal amount
(or, if less, the accreted value) at the time of such acquisition of all Assumed Indebtedness with
respect thereto.




          “Qualified Net Cash Equity Proceeds”: the Net Cash Proceeds of any offering of
Capital Stock of the Borrower, provided that (a) such offering was made in express
contemplation of a Permitted Acquisition or Permitted Foreign Acquisition, (b) such Capital Stock
is not mandatorily redeemable and (c) such Permitted Acquisition or Permitted Foreign Acquisition
is consummated within 90 days after receipt by the Borrower of such Net Cash Proceeds.




          “Qualified Preferred Stock”: any preferred stock of the Borrower that by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event does not (a) (i) mature or become mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) become convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred stock that is not
Qualified Preferred Stock unless such conversion or exchange is subject, as a condition precedent
thereto, to the Borrower’s ability to incur Indebtedness hereunder in accordance with the terms
hereof, or (iii) become redeemable at the option of the holder thereof (other than as a result of a
change of control event), in whole or in part, in each case on or prior to the date that is one
year after the latest maturity date for Loans hereunder that is in effect on the date of issuance
of such preferred stock unless such redemption is subject, as a condition precedent thereto, to the
Borrower’s ability to make a Restricted Payment of like amount in accordance with the terms hereof,
(b) provide holders thereunder with any rights to any payments upon the occurrence of a “change of
control” event prior to the repayment of the Obligations under the Loan Documents unless such
payments would be permitted as Restricted Payments in accordance with the terms hereof, or (c)
require the payment of cash dividends or other cash distributions to the extent the payment thereof
would not be permitted at such time pursuant to this Agreement or any other agreement relating to
borrowed money of the Borrower or any of its Subsidiaries; provided that, immediately after
giving effect to the issuance of such preferred stock, the Borrower is in pro forma
compliance with Section 7.1 (with such compliance calculated as of the last day of the most recent
fiscal quarter for which the relevant financial information is available and demonstrated in a
written certificate delivered to the Administrative Agent prior to the issuance of such preferred
stock).




          “RAC East”: Rent-A-Center East, Inc., a Delaware corporation.




          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its
Subsidiaries.




          “Reference Period”: with respect to any date, the period of four consecutive fiscal
quarters of the Borrower immediately preceding such date or, if such date is the last day of a
fiscal quarter, ending on such date.




          “Refunded Swingline Loans”: as defined in Section 2.6(b).




          “Refunding Date”: as defined in Section 2.6(c).




          “Register”: as defined in Section 10.6(b).




          “Regulation U”: Regulation U of the Board as in effect from time to time.




20









 








          “Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.5 amounts paid under Letters of Credit.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by the Borrower or any of its Subsidiaries in connection therewith that
are not applied to prepay the Term Loans pursuant to Section 2.11(c) as a result of the delivery of
a Reinvestment Notice.




          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary of the Borrower other than a Specified Subsidiary (unless such
Specified Subsidiary was the recipient of such Net Cash Proceeds)) intends and expects to use all
or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire
assets useful in the businesses of the Borrower or any of its Subsidiaries.




          “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring 12 months after such Reinvestment Event (or, in the case of a Recovery
Event with respect to owned real property, 36 months after such Recovery Event) and (b) the date on
which the Borrower (directly or indirectly through a Subsidiary of the Borrower) shall have
determined not to, or shall have otherwise ceased to, acquire assets useful in the Borrower’s
business with all or any portion of the relevant Reinvestment Deferred Amount.




          “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived
under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.




          “Required Lenders”: at any time, the holders of more than 50% of the sum of (a) the
aggregate unpaid principal amount of the Term Loans and the aggregate Term Commitments then
outstanding and (b) the Total Revolving Commitments then in effect or, if the Revolving Commitments
have been terminated, the Total Revolving Extensions of Credit then outstanding.




          “Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.




          “Responsible Officer”: the chief executive officer, president, chief financial
officer or treasurer of the Borrower, but in any event, with respect to financial matters, the
chief financial officer or president of the Borrower.




21









 








          “Restatement Effective Date”: the date on which the conditions precedent set forth in
Section 5.1 shall have been satisfied, which date is July 13, 2006.




          “Restricted Payments”: as defined in Section 7.6.




          “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Swingline Loans and Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set forth under the heading “Revolving
Commitment” opposite such Lender’s name on Annex A, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of the Revolving
Commitments is $400,000,000.




          “Revolving Commitment Period”: the period ending on the Revolving Scheduled
Commitment Termination Date.




          “Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding, (b) such Lender’s Revolving Percentage of the LC Obligations then outstanding and
(c) such Lender’s Revolving Percentage of the aggregate principal amount of Swingline Loans then
outstanding.




          “Revolving Lender”: each Lender that has a Revolving Commitment or that holds
Revolving Loans.




          “Revolving Loans”: as defined in Section 2.2.




          “Revolving Percentage”: as to any Revolving Lender at any time, the percentage which
such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments (or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).




          “Revolving Scheduled Commitment Termination Date”: July 13, 2011.




          “Sale/Leaseback Transaction”: any arrangement providing for the leasing to the
Borrower or any Subsidiary of real or personal property that has been or is to be (a) sold or
transferred by the Borrower or any Subsidiary or (b) constructed or acquired by a third party in
anticipation of a program of leasing to the Borrower or any Subsidiary.




          “SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Secured Parties”: collectively, the Arranger, the Agents, the Lenders and, with
respect to any Specified Hedge Agreement, any affiliate of any Lender party thereto (or any Person
that was a Lender or an affiliate thereof when such Specified Hedge Agreement was entered into)
that has agreed to be bound by the provisions of Section 7.2 of the Guarantee and Collateral
Agreement as if it were a party thereto and by the provisions of Section 9 hereof as if it were a
Lender party hereto; provided that any counterparty to a Specified Hedge Agreement that is
not a Lender shall have no rights in connection with the management or release of any Collateral or
the obligations of any Guarantor under the Loan Documents.




22









 








          “Security Documents”: the collective reference to the Guarantee and Collateral
Agreement, the Mortgages, the Intellectual Property Security Agreement and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any Loan Document.




          “Senior Subordinated Note Indenture”: the collective reference to each Indenture
entered into by the Borrower or any of its Subsidiaries in connection with any issuance of Senior
Subordinated Notes, together with all instruments and other agreements entered into by the Borrower
or any of its Subsidiaries in connection therewith, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 7.9.




          “Senior Subordinated Notes”: the collective reference to (a) the Existing Senior
Subordinated Notes and (b) any other subordinated notes of the Borrower issued pursuant to Section
7.2(f).




          “Single Employer Plan”: any Plan that is covered by Title IV of ERISA.




          “Solvent”: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) the realization of the current assets of such Person in
the ordinary course of business will be sufficient for such Person to pay recurring current debt,
short-term debt and long-term debt service as such debts mature. For purposes of this definition,
(i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.




          “Specified Change of Control”: a “Change of Control” or similar event (however
defined) as defined in any Senior Subordinated Note Indenture.




          “Specified Hedge Agreement”: any Hedge Agreement (a) entered into by (i) the Borrower
or any of its Subsidiaries and (ii) any Lender or any affiliate thereof, or any Person that was a
Lender or an affiliate thereof when such Hedge Agreement was entered into as counterparty and (b)
which has been designated by such Lender and the Borrower, by notice to the Administrative Agent
not later than 90 days after the execution and delivery thereof by the Borrower or such Subsidiary,
as a Specified Hedge Agreement; provided that the designation of any Hedge Agreement as a
Specified Hedge Agreement shall not create in favor of any Lender or affiliate thereof that is a
party thereto any rights in connection with the management or release of any Collateral or of the
obligations of any Guarantor under the Guarantee and Collateral Agreement.




          “Specified Subsidiaries”: the collective reference to the Insurance Subsidiary,
Legacy Trust and any Excluded Foreign Subsidiary.




23









 








          “Speese Persons”: the collective reference to Mark E. Speese, any person having a
relationship with Mark E. Speese by blood, marriage or adoption not more remote than first cousin
and any trust established for the benefit of any such person.




          “Stock Payments”: as defined in Section 7.6(b).




          “Subordinated Debt”: the collective reference to the Existing Senior Subordinated
Notes and any other unsecured subordinated notes issued by the Borrower in a transaction permitted
by Section 7.2(f).




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. Legacy Trust shall be
considered a Subsidiary of the Borrower.




          “Subsidiary Guarantor”: each Subsidiary of the Borrower other than the Specified
Subsidiaries.




          “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to
exceed $35,000,000.




          “Swingline Lender”: JPMorgan Chase Bank, N.A., in its capacity as the lender of
Swingline Loans.




          “Swingline Loans”: as defined in Section 2.3.




          “Swingline Participation Amount”: as defined in Section 2.6(c).




          “Syndication Agent”: as defined in the preamble hereto.




          “Term Commitments”: the collective reference to the Tranche A Term Commitments and
the Tranche B Term Commitments.




          “Term Lenders”: the collective reference to the Tranche A Term Lenders and the
Tranche B Term Lenders.




          “Term Loans”: the collective reference to the Tranche A Term Loans and the Tranche B
Term Loans.




          “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect.




          “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.




24









 








          “Transferee”: any Assignee or Participant.




          “Tranche A Term Commitment”: as to any Lender, the obligation of such Lender, if any,
(i) to make a Tranche A Term Loan to the Borrower in a principal amount not to exceed the amount
set forth under the heading “Tranche A Term Commitment” opposite such Lender’s name on Annex A and
(ii) to make Tranche A Term Loans pursuant to Section 2.1(a)(i) and in accordance with an
applicable Increased Facility Activation Notice. The original aggregate amount of the Tranche A
Term Commitments is $200,000,000.




          “Tranche A Term Lender”: each Lender that has a Tranche A Term Commitment or that
holds a Tranche A Term Loan.




          “Tranche A Term Loan”: as defined in Section 2.1(a)(i).




          “Tranche A Term Percentage”: as to any Tranche A Term Lender at any time, the
percentage which such Lender’s Tranche A Term Commitment then constitutes of the aggregate Tranche
A Term Commitments (or, at any time after the Restatement Effective Date, the percentage which the
aggregate principal amount of such Lender’s Tranche A Term Loans then outstanding constitutes of
the aggregate principal amount of the Tranche A Term Loans then outstanding).




          “Tranche B Term Commitment”: as to any Lender, the obligation of such Lender, if any,
(i) to make a Tranche B Term Loan to the Borrower in a principal amount not to exceed the amount
set forth under the heading “Tranche B Term Commitment” opposite such Lender’s name on its Addendum
and (ii) to make Tranche B Term Loans pursuant to Section 2.1(a)(ii) and in accordance with an
applicable Increased Facility Activation Notice. The original aggregate amount of the Tranche B
Term Commitments is $125,000,000.




          “Tranche B Term Lender”: each Lender that has a Tranche B Term Commitment or that
holds a Tranche B Term Loan.




          “Tranche B Term Loan”: as defined in Section 2.1(a)(ii).




          “Tranche B Term Percentage”: as to any Tranche B Lender at any time, the percentage
which such Lender’s Tranche B Term Commitment then constitutes of the aggregate Tranche B Term
Commitments (or, at any time after the Restatement Effective Date, the percentage which the
aggregate principal amount of such Lender’s Tranche B Term Loans then outstanding constitutes of
the aggregate principal amount of the Tranche B Term Loans then outstanding).




          “Trust Agreement”: the Trust Agreement, dated December 31, 2002, between the Borrower
and JPMorgan Chase Bank, N.A., as trustee, as amended from time to time in accordance with the
terms hereof and thereof (and provided that no Event of Default would occur hereunder as a result
of such amendment).




          “Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




          “Uniform Customs”: the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as the same may be amended from
time to time.




          “United States”: the United States of America.




25









 








          “Voting Stock”: with respect to any Person, any class or series of Capital Stock of
such Person that is ordinarily entitled to vote in the election of directors thereof at a meeting
of stockholders called for such purpose, without the occurrence of any additional event or
contingency.




          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.




          “Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of the Borrower.




          1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or thereto.





          (b) As used herein and in the other Loan Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms relating to the Borrower and
its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the
words “include”, “includes” and “including” shall be deemed to be followed by the phrase
“without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue,
assume, become liable in respect of or suffer to exist (and the words “incurred” and
“incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, and (v) references to agreements or other Contractual
Obligations shall, unless otherwise specified, be deemed to refer to such agreements or
Contractual Obligations as amended, supplemented, restated or otherwise modified from time to
time (subject to any restrictions on such amendments, supplements, restatements or modifications
set forth herein).




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




          (e) Unless the context otherwise requires, all calculations of amounts relating to
Alternative Currency Letters of Credit shall be based on the Dollar Equivalent thereof.




          (f) Unless otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that by its terms
provides for one or more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount is in effect at
such time.



26









 





SECTION 2. AMOUNT AND TERMS OF FACILITIES




          2.1. Term Commitments; Term Loans; Incremental Term Loans. (a) Subject to the terms and
conditions set forth herein, (i) each Tranche A Term Lender severally agrees to make a term loan
(together with the Incremental Tranche A Term Loans defined below, the “Tranche A Term
Loans”) to the Borrower on the Restatement Effective Date in an amount not to exceed the amount
of the Tranche A Term Commitment of such Lender, (ii) each Tranche B Term Lender agrees, as
applicable, (A) to convert all or a part of such Lender’s Existing Term Loan into a principal
amount of term loan (together with the Incremental Tranche B Term Loans defined below, the
“Tranche B Term Loans”) hereunder equal to the principal amount so converted and/or (B)
pursuant to paragraph (b) below, to make a term loan to the Borrower, in each case on the
Restatement Effective Date, in a principal amount equal to its Tranche B Term Commitment and (iii)
each Incremental Term Lender agrees to make one or more term loans to the extent provided in
Section 2.1(c). The Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.4
and 2.12.





          (b) Any Tranche B Term Lender that is not a “Term Lender” under the Existing Credit
Agreement or that has a Tranche B Term Commitment in excess of the amount of its Existing Term
Loan shall, and each other Tranche B Term Lender may elect to (by delivering notice to the
Administrative Agent as described below), make a Tranche B Term Loan to the Borrower on the
Restatement Effective Date in a principal amount equal to its Tranche B Term Commitment (or, if
the principal amount of its Existing Term Loan is less than its Tranche B Term Commitment, the
excess of its Tranche B Term Commitment over the principal amount of its Existing Term Loan that
is being converted into a Tranche B Term Loan pursuant to clause (a)(ii)(A) above). Any notice
to the Administrative Agent delivered by an applicable Lender pursuant to this Section shall
specify (i) the amount of such Lender’s Tranche B Term Commitment, (ii) the principal amount of
the Tranche B Term Loan to be made by such Lender on the Restatement Effective Date and (iii) if
applicable, the principal amount of Existing Term Loan held by such Lender that is to be
converted into a Tranche B Term Loan hereunder pursuant to clause (a)(ii)(A) above.




          (c) The Borrower and any one or more Term Lenders may from time to time agree that such
Term Lenders shall increase the amount of their Tranche A Term Loans (“Incremental Tranche A
Term Loan”) or Tranche B Term Loans (“Incremental Tranche B Term Loan”), as
applicable, by executing and delivering to the Administrative Agents an Increased Facility
Activation Notice specifying (i) the amount of such increase and the Facility or Facilities
involved, (ii) the applicable Increased Facility Closing Date, (iii) the applicable maturity
date for such Loans, (iv) the amortization schedule for such Incremental Term Loans, which shall
comply with the next succeeding sentence, and (v) the Applicable Margin for such Incremental
Term Loans. The amortization schedule for any Incremental Term Loans shall be either (i)
identical, on a percentage basis, to the then remaining amortization schedule for the Tranche A
Term Loans (in which case such Incremental Term Loans shall constitute “Incremental Tranche A
Term Loans”) or (ii) identical or longer than, on a percentage basis, to the then remaining
amortization schedule for the Tranche B Term Loans (in which case such Incremental Term Loans
shall constitute “Incremental Tranche B Term Loans”). Notwithstanding the foregoing, without
the consent of the Required Lenders, the aggregate amount of Incremental Term Loans plus
Incremental Revolving Commitments obtained pursuant to Section 2.2(b) shall not exceed
$300,000,000. No Term Lender shall have any obligation to participate in any increase described
in this paragraph unless it agrees to do so in its sole discretion. The Borrower agrees to take
all actions reasonably requested by the Administrative Agent such that, as promptly as
practicable after any borrowing of Incremental Term Loans, each relevant Term
Lender shall hold a ratable portion of each Eurodollar Tranche applicable to the Tranche A
Term Loans or the Tranche B Term Loans, as the case may be.



27









 





          (d) Any additional bank, financial institution or other entity which, with the consent of
the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld),
elects to become a “Tranche A Term Lender” or a “Tranche B Term Lender” under this Agreement in
connection with any transaction described in Section 2.1(c) shall execute a New Lender
Supplement, whereupon such bank, financial institution or other entity (a “New Term
Lender”) shall become a Tranche A Term Lender or a Tranche B Term Lender, as applicable, for
all purposes and to the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement.




          2.2. Revolving Commitments; Revolving Loans; Incremental Revolving Loans (a) .
(a) Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans hereunder (together with the Incremental Revolving Loans defined below,
collectively, the “Revolving Loans”) to the Borrower from time to time during the Revolving
Commitment Period in an aggregate principal amount at any one time outstanding which, when added to
such Lender’s Revolving Percentage of the sum of (i) the LC Obligations then outstanding and (ii)
the aggregate principal amount of the Swingline Loans then outstanding, does not exceed the amount
of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use
the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from
time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.5 and 2.12.





          (b) The Borrower and any one or more Revolving Lenders may agree that each such Lender
shall increase the amount of its existing Revolving Commitment (the “Incremental Revolving
Commitment”) to make incremental revolving credit loans (the “Incremental Revolving
Loans”) by executing and delivering to the Administrative Agent an Increased Revolving
Facility Activation Notice specifying (i) the amount of such increase and (ii) the Increased
Revolving Facility Closing Date. Notwithstanding the foregoing, without the consent of the
Required Lenders, (i) the aggregate amount of Incremental Revolving Commitments obtained
pursuant to this paragraph plus Incremental Term Loans obtained pursuant to Section 2.1(c) shall
not exceed $300,000,000 and (ii) no more than three Increased Revolving Facility Closing Dates
may be selected by the Borrower during the term of this Agreement. No Lender shall have any
obligation to participate in any increase described in this paragraph unless it agrees to do so
in its sole discretion.




          (c) Any additional bank, financial institution or other entity which, with the consent of
the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld),
elects to become a “Revolving Lender” under this Agreement in connection with any transaction
described in Section 2.2(b) shall execute a New Lender Supplement, whereupon such bank,
financial institution or other entity (a “New Revolving Lender”) shall become a
Revolving Lender for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement.




          (d) For the purpose of providing that the respective amounts of Revolving Loans (and
Eurodollar Tranches in respect thereof) held by the Revolving Lenders are held by them on a pro
rata basis according to their respective Revolving Percentages, on each Increased Revolving
Facility Closing Date (i) all outstanding Revolving Loans shall be converted into a single
Revolving Loan that
is a Eurodollar Loan (with an interest period to be selected by the Borrower), and upon
such conversion the Borrower shall pay any amounts owing pursuant to Section 2.20, if any, (ii)
any new borrowings of Revolving Loans on such date shall also be part of such single Revolving
Loan and (iii) all Revolving Lenders (including the New Revolving Lenders) shall hold a portion
of such



28









 




single Revolving Loan equal to its Revolving Percentage thereof and any fundings on such
date shall be made in such a manner so as to achieve the foregoing.




          2.3. Swingline Commitment. Subject to the terms and conditions hereof, the Swingline
Lender agrees to make a portion of the credit otherwise available to the Borrower under the
Revolving Commitments from time to time during the Revolving Commitment Period by making swing line
loans (“Swingline Loans”) to the Borrower; provided that (a) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline Commitment then in effect
(notwithstanding that the Swingline Loans outstanding at any time, when aggregated with the
Swingline Lender’s other outstanding Revolving Loans hereunder, may exceed the Swingline Commitment
then in effect) and (b) the Borrower shall not request, and the Swingline Lender shall not make,
any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate
amount of the Available Revolving Commitments would be less than zero. During the Revolving
Commitment Period, the Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall be ABR
Loans only.




          2.4. Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent
irrevocable notice (a) which notice, in the case of Term Loans to be made on the Restatement
Effective Date, must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, one Business Day prior to the anticipated Restatement Effective Date with respect to ABR
Loans and three Business Days prior to the anticipated Restatement Effective Date with respect to
Eurodollar Loans, requesting that the Term Lenders (other than Term Lenders that are only
converting Existing Term Loans) make Term Loans on the Restatement Effective Date, or (b) in the
case of Incremental Term Loans, which notice must be received by the Administrative Agent prior to
12:00 Noon, New York City time, one Business Day prior to the anticipated Increased Facility
Closing Date for such Loans with respect to any such Loans that are ABR Loans and three Business
Days prior to such anticipated Increased Facility Closing Date with respect to Eurodollar Loans,
requesting that the relevant Term Lenders make such Incremental Term Loans on the applicable
Increased Facility Closing Date, and in each case specifying the amount to be borrowed. Upon
receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof.
Not later than 12:00 Noon, New York City time, on the Restatement Effective Date each relevant Term
Lender shall make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan to be made by such Lender. The Administrative
Agent shall make available to the Borrower the aggregate of the amounts made available to the
Administrative Agent by the Term Lenders in like funds.




          2.5. Procedure for Revolving Loan Borrowing. (a) The Borrower may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, or provided that
the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business Days prior
to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior to
the requested Borrowing Date, in the case of ABR Loans), specifying (i) the amount and Type of
Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing
under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$2,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate Available
Revolving Commitments are less than $2,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $3,000,000 or a whole multiple of $1,000,000 in excess thereof; provided, that
the Swingline Lender may request, on behalf of the Borrower, borrowings under the Revolving
Commitments that are ABR Loans in other amounts pursuant to Section 2.6 and the Borrower may
request borrowings under the Revolving Commitments that are ABR Loans in other amounts pursuant to
Section 3.5.




29









 









          (b) Upon receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each relevant Lender thereof. Each relevant Lender will make the amount of its
pro rata share of each such borrowing available to the Administrative Agent for
the account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on
the Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the relevant Lenders and
in like funds as received by the Administrative Agent or, if the borrowing was made pursuant to
Section 3.5, by paying the Issuing Bank the amounts funded by it with respect to the Letter of
Credit drawing which gave rise to such borrowing.



          2.6. Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever the
Borrower desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be
received by the Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date
(which shall be a Business Day during the Revolving Commitment Period). Each borrowing under the
Swingline Commitment shall be in an amount equal to $500,000 or a whole multiple of $100,000 in
excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a
notice in respect of Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available funds equal to the
amount of the Swingline Loan to be made by the Swingline Lender. The Administrative Agent shall
make the proceeds of such Swingline Loan available to the Borrower on such Borrowing Date by
depositing such proceeds in the account of the Borrower with the Administrative Agent on such
Borrowing Date in immediately available funds.





          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may (and, not later than 10 Business Days after the making of a Swingline Loan,
shall) on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act
on its behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon, New York City time (with a copy of such notice being provided to the Borrower), request
each Revolving Lender to make, and each Revolving Lender hereby agrees to make, a Revolving
Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the aggregate amount
of the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date of such
notice, to repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in immediately
available funds, not later than 10:00 A.M., New York City time, one Business Day after the date
of such notice. The proceeds of such Revolving Loans shall be immediately made available by the
Administrative Agent to the Swingline Lender for application by the Swingline Lender to the
repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to charge the
Borrower’s accounts with the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swingline Loans to the extent
amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded
Swingline Loans (with notice of such charge being provided to the Borrower, provided
that the failure to give such notice shall not affect the validity of such charge).




          (c) If prior to the time a Revolving Loan would have otherwise been made pursuant to
Section 2.6(b), one of the events described in Section 8(f) shall have occurred and be
continuing with respect to the Borrower or if for any other reason, as determined by the
Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by
Section 2.6(b), each Revolving Lender shall, on the date such Revolving Loan was to have been
made pursuant to the




30










 







notice referred to in Section 2.6(b) (the “Refunding Date”),
purchase for cash an undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to
(i) such Revolving Lender’s Revolving Percentage times (ii) the sum of the aggregate
principal amount of Swingline Loans then outstanding that were to have been repaid with such
Revolving Loans.





          (d) Whenever, at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on
account of the Swingline Loans, the Swingline Lender will distribute to such Revolving Lender
its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Lender’s participating interest was
outstanding and funded and, in the case of principal and interest payments, to reflect such
Revolving Lender’s pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swingline Loans then due);
provided, however, that in the event that such payment received by the Swingline
Lender is required to be returned, such Revolving Lender will return to the Swingline Lender any
portion thereof previously distributed to it by the Swingline Lender.




          (e) Each Revolving Lender’s obligation to make the Loans referred to in Section 2.6(b) and
to purchase participating interests pursuant to Section 2.6(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Revolving Lender or the Borrower may
have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy
any of the other conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan
Document by the Borrower, any other Loan Party or any other Revolving Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.



          2.7. Repayment of Loans. (a) The Tranche A Term Loans (other than the Incremental
Tranche A Term Loans) shall mature in 20 consecutive quarterly installments in the respective
amounts set forth below opposite the applicable installment date (provided, that the
aggregate amount of the final installment shall in any event equal the aggregate then outstanding
principal amount of the Tranche A Term Loans):





31









 








	 	 	 	 	 	 	 
	Installment	 	 	 	Principal Amount
	September 30, 2006

	 	 	 	$	2,500,000.00	 
	December 31, 2006

	 	 	 	$	2,500,000.00	 
	March 31, 2007

	 	 	 	$	2,500,000.00	 
	June 30, 2007

	 	 	 	$	2,500,000.00	 
	September 30, 2007

	 	 	 	$	2,500,000.00	 
	December 31, 2007

	 	 	 	$	2,500,000.00	 
	March 31, 2008

	 	 	 	$	2,500,000.00	 
	June 30, 2008

	 	 	 	$	2,500,000.00	 
	September 30, 2008

	 	 	 	$	2,500,000.00	 
	December 31, 2008

	 	 	 	$	2,500,000.00	 
	March 31, 2009

	 	 	 	$	2,500,000.00	 
	June 30, 2009

	 	 	 	$	2,500,000.00	 
	September 30, 2009

	 	 	 	$	5,000,000.00	 
	December 31, 2009

	 	 	 	$	5,000,000.00	 
	March 31, 2010

	 	 	 	$	5,000,000.00	 
	June 30, 2010

	 	 	 	$	5,000,000.00	 
	September 30, 2010

	 	 	 	$	37,500,000.00	 
	December 31, 2010

	 	 	 	$	37,500,000.00	 
	March 31, 2011

	 	 	 	$	37,500,000.00	 
	June 30, 2011

	 	 	 	$	37,500,000.00	 







          (b) The Tranche B Term Loans (other than the Incremental Tranche B Term Loans) shall mature
in 24 consecutive quarterly installments in the respective amounts set forth below opposite the
applicable installment date (provided, that the aggregate amount of the final
installment shall in any event equal the aggregate then outstanding principal amount of the
Tranche B Term Loans):



	 	 	 	 	 	 	 
	Installment	 	 	 	Principal Amount
	September 30, 2006

	 	 	 	$	312,500.00	 
	December 31, 2006

	 	 	 	$	312,500.00	 
	March 31, 2007

	 	 	 	$	312,500.00	 
	June 30, 2007

	 	 	 	$	312,500.00	 
	September 30, 2007

	 	 	 	$	312,500.00	 
	December 31, 2007

	 	 	 	$	312,500.00	 
	March 31, 2008

	 	 	 	$	312,500.00	 
	June 30, 2008

	 	 	 	$	312,500.00	 
	September 30, 2008

	 	 	 	$	312,500.00	 
	December 31, 2008

	 	 	 	$	312,500.00	 
	March 31, 2009

	 	 	 	$	312,500.00	 
	June 30, 2009

	 	 	 	$	312,500.00	 
	September 30, 2009

	 	 	 	$	312,500.00	 
	December 31, 2009

	 	 	 	$	312,500.00	 
	March 31, 2010

	 	 	 	$	312,500.00	 
	June 30, 2010

	 	 	 	$	312,500.00	 
	September 30, 2010

	 	 	 	$	312,500.00	 
	December 31, 2010

	 	 	 	$	312,500.00	 
	March 31, 2011

	 	 	 	$	312,500.00	 
	June 30, 2011

	 	 	 	$	312,500.00	 
	September 30, 2011

	 	 	 	$	29,687,500.00	 
	December 31, 2011

	 	 	 	$	29,687,500.00	 
	March 31, 2012

	 	 	 	$	29,687,500.00	 
	June 30, 2012

	 	 	 	$	29,687,500.00	 






32









 








          (c) The Borrower shall repay all outstanding Revolving Loans and Swingline Loans on the
Revolving Scheduled Commitment Termination Date.




          (d) The Borrower shall repay all Incremental Term Loans in accordance with the applicable
Increased Facility Activation Notice.



          2.8. Commitment Fees, Etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee accruing during the
Revolving Commitment Period, computed at a per annum rate equal to the Commitment Fee Rate on the
average daily amount of the Available Revolving Commitment of such Lender during the period for
which payment is made, payable on the last day of each March, June, September and December and on
the Revolving Scheduled Commitment Termination Date.





          (b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on
the dates previously agreed to in writing by the Borrower and the Administrative Agent.



          2.9. Termination or Reduction of Commitments. (a) The Borrower shall have the right,
upon not less than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided that no such termination or reduction of Revolving Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made
on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such partial reduction shall be in an amount equal to $1,000,000, or a
whole multiple thereof, and shall reduce permanently the Revolving Commitments then in effect.





          (b) The aggregate amount of the unused Term Commitments shall terminate immediately upon
the making of Term Loans on the Restatement Effective Date.



          2.10. Optional Prepayments. Subject to Section 2.17, the Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent at least three Business Days prior thereto
in the case of Eurodollar Loans and at least one Business Day prior thereto in the case of ABR
Loans, which notice shall specify the date and amount of prepayment and, if applicable, whether the
prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the Borrower shall also
pay any amounts owing pursuant to Section 2.20. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest to
such date on the amount prepaid. Partial prepayments of Loans (other than Swingline Loans) shall
be in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Partial prepayments
of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole multiple
thereof.




          2.11. Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the
Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section
7.2),




33









 







an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such
incurrence toward the prepayment of the Term Loans.





          (b) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in
respect thereof, an amount equal to 75% of such Net Cash Proceeds shall be applied within five
Business Days following such date toward the prepayment of the Term Loans; provided,
that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may
be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed,
in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the
last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans;
provided, further, that, notwithstanding the foregoing, the Borrower shall not
be required to prepay the Term Loans in accordance with this paragraph (b) except to the extent
that the Net Cash Proceeds from all Asset Sales which have not been so applied equals or exceeds
$20,000,000 in the aggregate.




          (c) If, for any fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 2006, there shall be Excess Cash Flow and the Consolidated Leverage Ratio as of the
last day of such fiscal year is greater than or equal to 2.50 to 1.00, the Borrower shall, on
the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the
prepayment of the Term Loans. Each such prepayment shall be made on a date (an “Excess Cash
Flow Application Date”) no later than five Business Days after the earlier of (i) the date
on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal
year with respect to which such prepayment is made, are required to be delivered to the Lenders
and (ii) the date such financial statements are actually delivered.




          (d) If on any Calculation Date, the Total Revolving Extensions of Credit exceed 105% of the
Total Revolving Commitments or the Alternative Currency LC Exposure exceeds 105% of the
Alternative Currency LC Commitment, the Borrower shall, without notice or demand, within three
Business Days after such Calculation Date, prepay the Revolving Loans (or, if no Revolving Loans
remain outstanding, cash collateralize Letters of Credit in a manner satisfactory to the
Administrative Agent) in an aggregate amount such that, after giving effect thereto, the Total
Revolving Extensions of Credit do not exceed the Total Revolving Commitments and the Alternative
Currency LC Exposure does not exceed the Alternative Currency LC Commitment.




          (e) The application of any prepayment of Loans pursuant to this Section 2.11 shall be made,
first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the
Loans under Section 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline
Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount
prepaid and shall be without premium, charge or penalty on account of such prepayment except
such as would otherwise be due on account of a prepayment prior to the last day of an Interest
Period.



          2.12. Conversion and Continuation Options. (a) The Borrower may elect from time to
time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days’ prior irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the
Administrative Agent at least three Business Days’ prior irrevocable notice of such election (which
notice shall specify the length of the initial Interest Period therefor), provided that no
ABR Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative




34









 







Agent or the Majority Facility
Lenders in respect of such Facility have determined in its or their sole discretion not to permit
such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.





          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest
Period”, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued as such
when any Event of Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if the
Borrower shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring Interest Period.
Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.



          2.13. Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $3,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than 15 Eurodollar Tranches shall be
outstanding at any one time.




          2.14. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest
for each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.





          (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.




          (c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at
a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.14 plus 2% or
(y) in the case of Reimbursement Obligations, the rate applicable to ABR Loans under the
Revolving Facility plus 2% and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee, Letter of Credit fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then
applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then applicable to ABR Loans
under the Revolving Facility plus 2%), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in full (after as well
as before judgment).




          (d) Interest shall be payable in arrears on each Interest Payment Date, provided
that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to
time on demand.



35









 





          2.15. Computation of Interest and Fees. (a) Interest and fees payable pursuant
hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,
with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify
the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and
the relevant Lenders of the effective date and the amount of each such change in interest rate.





          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in
the absence of manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.15(a).



          2.16. Inability to Determine Interest Rate. If prior to the first day of any Interest
Period





     (a) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or




     (b) the Administrative Agent shall have received notice from the Majority Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,


the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on
the last day of the then-current Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.




          2.17. Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the
Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term
Percentages, Tranche B Term Percentages or Revolving Percentages, as the case may be, of the
relevant Lenders.





          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders; provided,
that optional prepayments shall be allocated to the installments of the relevant Term Loans as
directed by



36









 






the Borrower. The amount of each principal prepayment of the Term Loans shall be
applied to reduce the then remaining installments of the Tranche A Term Loans and the Tranche B
Term Loans, as the case may be, on a pro rata basis based upon the respective
then remaining principal amounts thereof; provided, that optional prepayments may be
allocated to either the Tranche A Term Loans or the Tranche B Term Loans, as directed by the
Borrower. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.




          (c) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata to the Revolving Lenders
according to the respective outstanding principal amounts of the Revolving Loans then held by
the Revolving Lenders.




          (d) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim
and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such extension would
be to extend such payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension.




          (e) Unless the Administrative Agent shall have been notified in writing by any Lender prior
to a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
If such amount is not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate
for the period until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any
amounts owing under this paragraph shall be conclusive in the absence of manifest error. If
such Lender’s share of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate per annum applicable to ABR
Loans under the relevant Facility, on demand, from the Borrower.




          (f) Unless the Administrative Agent shall have been notified in writing by the Borrower
prior to the date of any payment being made hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by
the Borrower within three Business Days of such required date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was made available
pursuant to



37









 






the preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to
limit the rights of the Administrative Agent or any Lender against the Borrower.



          2.18. Requirements of Law . (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the Restatement Effective Date:





     (i) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.19 and changes in the rate of tax on the overall net
income of such Lender);




     (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or




     (iii) shall impose on such Lender any other condition;


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans, issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such increased cost or
reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant
to this paragraph, it shall promptly notify (no more frequently than quarterly) the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has become so entitled.





          (b) If any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the Restatement Effective Date shall have the effect
of reducing the rate of return on such Lender’s or such corporation’s capital 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 such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender’s or such corporation’s policies with respect
to capital adequacy) by an amount deemed by such Lender to be material, then from time to time,
after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor (which may be submitted no more frequently than quarterly), the
Borrower shall pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction; provided that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts incurred more than six months
prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall be extended to
include the period of such retroactive effect.



38









 






          (c) In determining any additional amounts payable pursuant to this Section 2.18, each
Lender will act reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Lender’s determination of compensation owing
under this Section 2.18 shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 2.18, shall give prompt written notice of such determination to the
Borrower, which notice shall show the basis for calculation of such additional amounts. The
obligations of the Borrower pursuant to this Section 2.18 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.



          2.19. Taxes. (a) Subject to the last proviso of this paragraph (a), all payments
made by the Borrower under this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes
(including any branch profits tax imposed by the United States of America or by the jurisdiction in
which the Borrower is located), and (ii)net income taxes and franchise taxes imposed on the
Administrative Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender’s failure to comply with the requirements of paragraph (d) or (e) of
this Section or (ii) that are United States withholding taxes imposed on amounts payable to such
Lender at the time the Lender becomes a party to this Agreement, except to the extent that such
Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.





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




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter the Borrower shall send to the Administrative Agent for its own account
or for the account of the relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof (or if the relevant
Governmental Authority does not provide a receipt, other reasonable evidence of payment
thereof). If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the required receipts
or other required documentary evidence, the Borrower shall indemnify the Administrative Agent
and the Lenders for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure.




          (d) Each Lender (or Transferee) that is not a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or under the laws



39









 






of
the United States of America (or any state thereof), or any estate or trust that is subject to
federal income taxation regardless of the source of its income (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of “portfolio interest”, a statement substantially in the form of
Exhibit F and a Form W-8BEN, or any subsequent versions thereof or successors thereto,
properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from,
or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the request of the Borrower as a result
of the obsolescence, inaccuracy or invalidity of any form previously delivered by such Non-U.S.
Lender or as a result of a requirement of applicable law. Each Non-U.S. Lender shall promptly
notify the Borrower at any time it determines that it is no longer qualified to provide or
capable of providing any previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose) and shall take such steps
as are not disadvantageous to it (as determined in such Non-U.S. Lender’s sole discretion), as
may be reasonably necessary to avoid any requirement of applicable law that the Borrower make
any deduction or withholding for taxes from amounts payable to such Lender. Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this paragraph that such Non-U.S. Lender is not legally able to deliver.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction 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 or reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s judgment such completion,
execution or submission would not materially prejudice the legal position of such Lender.




          (f) If any Lender receives a refund of any Non-Excluded Taxes or Other Taxes paid or
indemnified by the Borrower under this Section 2.19, such Lender shall pay the amount of such
refund to the Borrower within 15 days of the date it received such refund.




          (g) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.



          2.20. Indemnity. The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense that such Lender may sustain or incur as a consequence of (a)
default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of
this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last
day of an Interest Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow,





40









 







convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued
to such Lender on such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant
to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.




          2.21. Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.18, 2.19(a) or 2.23 with respect to such Lender, it
will use reasonable efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal
or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or
postpone any of the obligations of any Borrower or the rights of any Lender pursuant to Section
2.18, 2.19(a) or 2.23.




          2.22. Replacement of Lenders. The Borrower shall be permitted to replace any Lender
that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or (b)
defaults in its obligation to make Loans hereunder, with a replacement financial institution;
provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.21 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the
replacement financial institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.20 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement
financial institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.




          2.23. Illegality. Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be canceled and (b) such Lender’s Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to Section 2.20.





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                    SECTION 3. LETTERS OF CREDIT



          3.1. LC Commitments. (a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the LC Participants set forth in this Section 3, agrees to
issue, on any Business Day, Letters of Credit for the account of the Borrower (including the
account of the Borrower acting on behalf of any of its Subsidiaries) in such form as may be
approved from time to time by the Issuing Lender; provided that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the
LC Obligations would exceed the Total Revolving Commitments or (ii) the aggregate amount of the
Available Revolving Commitments would be less than zero. It is understood that the Existing
Letters of Credit shall be deemed to constitute Letters of Credit hereunder. Each Letter of Credit
shall (i) be denominated in Dollars or (if and to the extent agreed in writing from time to time
between the Issuing Lender and the Borrower, and provided that no Alternative Currency Letter of
Credit shall be issued if, after giving effect thereto, the Alternative Currency LC Exposure shall
exceed the Alternative Currency LC Commitment) in one or more Alternative Currencies and (ii)
expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the
date that is five Business Days prior to the Revolving Scheduled Commitment Termination Date;
provided that any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above; provided, however, that the Administrative Agent and the Issuing
Lender may agree (such agreement not to be unreasonably withheld) with respect to any Letter of
Credit that clause (y) above shall not be applicable to such extensions so long as by the Revolving
Credit Termination Date such Letter of Credit shall be either cash collateralized at 105% of face
value, or supported by a back-to-back letter of credit in form and substance satisfactory to the
Administrative Agent and the Issuing Lender).





          (b) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not
inconsistent therewith, the laws of the State of New York.




          (c) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or any LC
Participant to exceed any limits imposed by, any applicable Requirement of Law.



          3.2. Procedure for Issuance of Letter of Credit. The Borrower may from time to time
request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at its
address for notices specified herein an Application therefor (and, with respect to Letters of
Credit, delivery of a copy of such Application to the Administrative Agent), completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Lender be
required to issue any Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by the Issuing Lender and the Borrower. The Issuing Lender shall
furnish a copy of such Letter of Credit to the Borrower (and, with respect to Letters of Credit, to
the Administrative Agent) promptly following the issuance thereof. The Issuing Lender shall
promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount and stated maturity thereof).




          3.3. Fees and Other Charges. (a) The Borrower will pay a Letter of Credit fee
calculated at a per annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Facility and payable on the face amount of all outstanding
Letters of Credit,





42









 







shared ratably among the Revolving Lenders and payable quarterly in arrears on
each LC Fee Payment Date. In addition, the Borrower shall pay to the Issuing Lender for its own
account a fronting fee of 0.125% per annum on the undrawn and unexpired amount of each Letter of
Credit that is available for drawing, payable quarterly in arrears on each LC Fee Payment Date.





          (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing
Lender for such normal and customary costs and expenses as are incurred or charged by the
Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.



          3.4. LC Participations. (a) The Issuing Lender irrevocably agrees to grant and
hereby grants to each LC Participant, and, to induce the Issuing Lender to issue Letters of Credit
hereunder, each LC Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the Issuing Lender, on the terms and conditions hereinafter stated, for such LC
Participant’s own account and risk an undivided interest equal to such LC Participant’s Revolving
Percentage in the Issuing Lender’s obligations and rights under each Letter of Credit (including,
for the avoidance of doubt, any portion of an Existing Letter of Credit deemed to be a Letter of
Credit in accordance with Section 3.1 and as indicated on Schedule 1.1) issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each LC Participant unconditionally
and irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit
for which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such LC Participant shall pay to the Administrative Agent for the account of the
Issuing Lender upon demand at the Administrative Agent’s address for notices specified herein (and
thereafter the Administrative Agent shall promptly pay to the Issuing Lender) an amount equal to
such LC Participant’s Revolving Percentage of the relevant LC Disbursement (or, in the case of an
Alternative Currency Letter of Credit, the Dollar Equivalent thereof), or any part thereof, that is
not so reimbursed.





          (b) If any amount required to be paid by any LC Participant to the Issuing Lender pursuant
to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing
Lender under any Letter of Credit is paid to the Issuing Lender within three Business Days after
the date such payment is due, the Issuing Lender shall so notify the Administrative Agent, who
shall promptly notify the LC Participants, and each such LC Participant shall pay to the
Administrative Agent, for the account of the Issuing Lender, on demand (and thereafter the
Administrative Agent shall promptly pay to the Issuing Lender) an amount equal to the product of
(i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period
from and including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any LC Participant pursuant to Section 3.4(a) is not made
available to the Administrative Agent for the account of the Issuing Lender by such LC
Participant within three Business Days after the date such payment is due, the Administrative
Agent on behalf of the Issuing Lender shall be entitled to recover from such LC Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Facility. A certificate of the Administrative Agent
submitted on behalf of the Issuing Lender to any LC Participant with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error.




          (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of
Credit and has received from the Administrative Agent any LC Participant’s pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of



43









 






collateral applied thereto by the Issuing Lender), or any
payment of interest on account thereof, the Issuing Lender will distribute to the Administrative
Agent for the account of such LC Participant (and thereafter the Administrative Agent will
promptly distribute to such LC Participant) its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such LC Participant shall
return to the Administrative Agent for the account of the Issuing Lender (and thereafter the
Administrative Agent shall promptly return to the Issuing Lender) the portion thereof previously
distributed by the Issuing Lender.




          (d) Each LC Participant’s obligation to purchase participating interests pursuant to
Section 3.4(a) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that
such LC Participant or the Borrower may have against the Issuing Lender, the Borrower or any
other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other conditions specified in Section 5;
(iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any
breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any
other Lender; or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.



          3.5. Reimbursement Obligation of the Borrower. (a) The Borrower agrees to
reimburse the Issuing Lender in accordance with this Section upon notification to the Borrower of
the date and amount of a draft presented under any Letter of Credit and paid by the Issuing Lender
for the amount of (i) such draft so paid (an “LC Disbursement”) and (ii) any taxes, fees,
charges or other reasonable costs or expenses incurred by the Issuing Lender in connection with
such payment.





          (b) If the Borrower is notified as provided in the immediately preceding sentence by 2:00
P.M., New York City time, on any day, then the Borrower shall so reimburse the Issuing Lender by
12:00 Noon, New York City time, on the next succeeding Business Day, and, if so notified after
2:00 P.M., New York City time, on any day, the Borrower shall so reimburse the Issuing Lender by
12:00 Noon, New York City time, on the second succeeding Business Day.




          (c) Each drawing under a Letter of Credit shall (unless an event of the type described in
Section 8(f) shall have occurred and be continuing with respect to the Borrower, in which case
the procedures set forth in Section 3.4 for the funding of participations shall apply, and other
than an LC Disbursement in respect of an Alternative Currency Letter of Credit) constitute a
request by the Borrower to the Administrative Agent for a borrowing, in the amount of such
drawing of ABR Revolving Loans pursuant to Section 2.5 (or, at the option of the Administrative
Agent and the Swingline Lender in their sole discretion, a borrowing of Swingline Loans pursuant
to Section 2.6). The Borrowing Date with respect to any such borrowing shall be the first date
on which a borrowing of Revolving Loans (or, if applicable, Swingline Loans) could be made
pursuant to Section 2.5 (or, if applicable, Section 2.7) if the Administrative Agent had
received a notice of such borrowing at the time of such drawing under such Letter of Credit.




          (d) Each payment under this Section 3.5 shall be made to the Issuing Lender at its address
for notices specified herein in immediately available funds in (i) in the case of any Letter of
Credit which is not an Alternative Currency Letter of Credit, Dollars, and (ii) in the case of
any Alternative Currency Letter of Credit, the relevant Alternative Currency. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this Section from the date
such amounts become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full, at the rate set forth in (i) until the second Business Day following the date
of payment of the applicable drawing, Section 2.14(b) and (ii) thereafter, Section 2.14(c), in
each case payable on demand. If the



44









 






Borrower’s reimbursement of, or obligation to reimburse,
any amounts in any Alternative Currency would subject the Administrative Agent, the Issuing
Lender or any Revolving Lender to any stamp duty, ad valorem charge or similar tax that would
not be payable if such reimbursement were made or required to be made in Dollars, the Borrower
shall, at its option, either (i) pay the amount of any such tax requested by the Administrative
Agent, the Issuing Lender or such Revolving Lender, as the case may be, or (ii) reimburse each
LC Disbursement made in such Alternative Currency in Dollars, in an amount equal to the Dollar
Equivalent of such LC Disbursement. If the Borrower fails to reimburse the Issuing Lender for
the amount of any LC Disbursement in respect of an Alternative Currency Letter of Credit, (i)
automatically and with no further action required, the Borrower’s obligation to reimburse the
applicable LC Disbursement shall be permanently converted into an obligation to reimburse the
Dollar Equivalent of such LC Disbursement and (ii) the Administrative Agent shall notify the
Issuing Lender and each Revolving Lender of the applicable LC Disbursement, the Dollar
Equivalent thereof, the payment then due from the Borrower in respect thereof and such Lender’s
Revolving Percentage thereof.



          3.6. Obligations Absolute. The Borrower’s obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had against the Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with
the Issuing Lender that the Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except for errors or omissions
constituting gross negligence or willful misconduct of the Issuing Lender. The Borrower agrees
that any action taken or omitted by the Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform Customs and, to
the extent not inconsistent therewith, the Uniform Commercial Code of the State of New York, shall
be binding on the Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.




          3.7. Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the Administrative
Agent of the date and amount thereof. The responsibility of the Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be limited to determining
that the documents (including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.




          3.8. Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.




                    SECTION 4. REPRESENTATIONS AND WARRANTIES



          To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:





45









 








          4.1. Financial Condition. The audited consolidated balance sheet of the Borrower as
at December 31, 2005, and the related consolidated statements of operations, stockholder’s equity
and cash flows for the fiscal year ended on such date, reported on by and accompanied by an
unqualified report from Grant Thornton LLP, present fairly the consolidated financial condition of
the Borrower as at such date, and the consolidated results of its operations and its consolidated
cash flows for the fiscal year then ended. The unaudited consolidated balance sheet of the
Borrower as at March 31, 2006, and the related unaudited consolidated and consolidating statements
of income and cash flows for the three-month period ended on such date, present fairly the
consolidated financial condition of the Borrower as at such date, and the consolidated results of
its operations and its consolidated and consolidating cash flows for the three-month period then
ended (subject to normal year-end audit adjustments and the absence of footnotes). Such financial
statements have been prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and disclosed therein). The
Borrower and its Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities or liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in all material respects in the
financial statements referred to in this paragraph in accordance with GAAP. During the period from
March 31, 2006 to and including the date hereof there has been no Disposition by the Borrower or
any Subsidiary of any material part of its business or property.




          4.2. No Change. Since December 31, 2005 there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.




          4.3. Existence; Compliance with Law. Each of the Borrower and its Subsidiaries (a) is
duly organized, validly existing and in good standing, if applicable, under the laws of the
jurisdiction of its organization, (b) has the power (corporate or otherwise) and authority, and the
legal right, to own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified and in good standing could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect, and (d) is in
compliance with all Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          4.4. Power; Authorization; Enforceable Obligations. Each Loan Party has the power
(corporate or otherwise) and authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow hereunder. Each Loan
Party has taken all necessary action (corporate or otherwise) to authorize the execution, delivery
and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in Schedule 4.4,
which consents, authorizations, filings and notices have been obtained or made and are in full
force and effect, (ii) the filings referred to in Section 4.19 and (iii) filings with the SEC on
Form 8-K that may be required to be made following the execution and delivery hereof. Each Loan
Document has been duly executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid
and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party
in accordance with its terms, except as enforceability may be limited by applicable





46









 







bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings
in equity or at law).




          4.5. No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any material Contractual Obligation
of the Borrower or any of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation applicable to the Borrower or any of
its Subsidiaries could reasonably be expected to have a Material Adverse Effect.




          4.6. Litigation. Except as set forth on Schedule 4.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of
the Borrower, threatened by or against the Borrower or any of its Subsidiaries or against any of
their respective properties or revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a
Material Adverse Effect.




          4.7. No Default. Neither the Borrower nor any of its Subsidiaries is in default under
or with respect to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.




          4.8. Ownership of Property; Liens. Each of the Borrower and its Subsidiaries has
title in fee simple to, or a valid leasehold interest in, all its material real property, and good
title to, or a valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 7.3.




          4.9. Intellectual Property. The Borrower and each of its Subsidiaries owns, or is
licensed to use, all Intellectual Property necessary for the conduct of its business as currently
conducted. No material claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, nor does the Borrower know of any valid basis for any such claim. The use
of Intellectual Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person in any material respect.




          4.10. Taxes. The Borrower and each of its Subsidiaries has filed or caused to be
filed all Federal, state and other material tax returns that are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments made against it or any
of its property and all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority to the extent due and payable (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); no material tax Lien has been filed, and, to the knowledge of
the Borrower, no claim is being asserted, with respect to any such tax, fee or other charge, except
to the extent that the validity thereof is being contested in good faith pursuant to appropriate
proceedings and with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be.




          4.11. Federal Regulations. No part of the proceeds of any Loans will be used for
“buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted
terms under Regulation U as now and from time to time hereafter in effect except in compliance with
the





47









 







provisions of the Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.




          4.12. Labor Matters. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect: (a) there are no strikes or other labor disputes against the
Borrower or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened; (b)
hours worked by and payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with
such matters; and (c) all payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a liability on the books of the
Borrower or the relevant Subsidiary.




          4.13. ERISA. Except as, in the aggregate, would not reasonably be expected to have a
Material Adverse Effect: (a) neither a Reportable Event nor an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five year period prior to the date on which this representation is made or deemed made with respect
to any Single Employer Plan, (b) each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, (c) no termination of a Single Employer Plan has
occurred, and (d) no Lien against the Borrower or any Commonly Controlled Entity and in favor of
the PBGC or a Plan has arisen, during the five-year period prior to the date on which this
representation is made or deemed made, (e) the aggregate actuarial present value of all accumulated
plan benefits of all Single Employer Plans (determined utilizing the assumptions used for purposes
of Financial Accounting Standards No. 35) did not, as of the most recent valuation dates reflected
in the Borrower’s annual financial statements contained in the Borrower’s most recent Form 10-K,
exceed the aggregate fair market value of the assets of all such Single Employer Plans, except as
disclosed in the Borrower’s financial statements, (f) neither the Borrower nor any Commonly
Controlled Entity has incurred or, to the knowledge of the Borrower, is reasonably expected to
incur, any withdrawal liability under ERISA to any Multiemployer Plan, and (g) no Multiemployer
Plan in which the Borrower participates is in Reorganization or Insolvent.




          4.14. Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.




          4.15. Subsidiaries. Except as disclosed to the Administrative Agent by the Borrower
in writing from time to time, (a) Schedule 4.15 sets forth the name and jurisdiction of
incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options granted to
employees, independent contractors or directors and directors’ qualifying shares) of any nature
relating to any Capital Stock of any Subsidiary, except as created by the Loan Documents or as set
forth on Schedule 4.15.




          4.16. Use of Proceeds. The proceeds of the Term Loans (other than Term Loans
constituting a conversion of Existing Term Loans) shall be used to refinance Indebtedness of the
Borrower under the Existing Credit Agreement and for general corporate purposes, and the proceeds
of the Revolving Loans and the Swingline Loans, and the Letters of Credit, shall be used for
general corporate purposes.




          4.17. Environmental Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect:





48










 








    (a) the facilities and properties owned, leased or operated by the Borrower or any of
its Subsidiaries (the “Properties”) do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation by Borrower or its Subsidiaries of,
or could give rise to liability of Borrower or its Subsidiaries under, any Environmental
Law;




    (b) neither the Borrower nor any of its Subsidiaries has received any notice of, or is
otherwise aware of, any violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws with regard
to any of the Properties or the business presently or formerly operated by the Borrower or
any of its Subsidiaries (the “Business”), nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being threatened;




    (c) Materials of Environmental Concern have not been transported or disposed of by or
on behalf of the Borrower or its Subsidiaries from the Properties or otherwise in connection
with the Business, in violation of, or in a manner or to a location that could give rise to
liability under, any Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored, or disposed of, or have otherwise come to be located at, on or
under any of the Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;




    (d) no judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Borrower, threatened, under any Environmental Law to which the Borrower
or any Subsidiary is or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the Business;




    (e) there has been no release or threat of release of Materials of Environmental
Concern at, to, on, under or from the Properties or arising from or related to the
operations of the Borrower or any Subsidiary in connection with the Properties or otherwise
in connection with the
Business, in violation of or in amounts or in a manner that could give rise to
liability of Borrower or its Subsidiaries under Environmental Laws;




    (f) the Borrower, its Subsidiaries, the Business, the Properties and all operations at
the Properties are in compliance and have in the last five years been in compliance with all
applicable Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties or the
Business; and




    (g) neither the Borrower nor any of its Subsidiaries has, by contract or by operation
of law, assumed any liability of any other Person or agreed to indemnify any other person
for liability under Environmental Laws.



               4.18. Accuracy of Information, etc. (a) No statement or information contained in
this Agreement, any other Loan Document or any other document, certificate or statement furnished
by or on behalf of any Loan Party to the Administrative Agent or the Lenders, or any of them, for
use in connection with the transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate was so furnished, any
untrue statement of a material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the



49









 




Borrower to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it relates to future
events is not to be viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth therein by a material
amount. There is no fact known to any Loan Party that could reasonably be expected to have a
Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents
or in any other documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and by the other Loan
Documents.





               (b) The Borrower’s Annual Report on Form 10-K for the year ended December 31, 2005 and the
Borrower’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 (collectively the
“Borrower’s SEC Reports”) as of their respective filing dates complied in all material
respects with the applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder applicable to the Borrower’s SEC Reports.
None of the Borrower’s SEC Reports at the time of filing contained any untrue statements of
material fact or omitted a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading. Forward looking statements and other statements contained in the Borrower’s SEC
Reports are subject to the cautionary language and risk factors contained in the Borrower’s SEC
Reports.



               4.19. Security Documents. (a) The Guarantee and Collateral Agreement is effective to
create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described in Section 3 thereof and proceeds of
such Collateral. In the case of (i) the Pledged Equity Interests described in the Guarantee and
Collateral Agreement, when stock certificates representing such certificated Pledged Equity
Interests are delivered to the Administrative Agent or when financing statements in appropriate
form are filed in the offices specified on Schedule 4.19(a) and (ii) the other Collateral described
in the Guarantee and Collateral Agreement, when financing statements and other filings specified on
Schedule 4.19(a) (or otherwise notified to the Administrative Agent) in
appropriate form are filed in the offices specified on Schedule 4.19(a) (or otherwise notified
to the Administrative Agent), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
such Collateral (other than motor vehicles, aircraft, vessels, Deposit Accounts (as defined in the
Guarantee and Collateral Agreement), leasehold estates in real property and intellectual property
registrations outside the United States) and the proceeds thereof, as security for the Obligations
(as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to
any other Person (except, in the case of Collateral other than Pledged Equity Interests, Liens
permitted by Section 7.3).




               (b) Each of the Mortgages is effective to create in favor of the Administrative Agent, for
the benefit of the Secured Parties, a legal, valid and enforceable Lien on the Mortgaged
Properties described therein and proceeds thereof and constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such Mortgaged
Properties and the proceeds thereof, as security for the Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person except Liens permitted
by Section 7.3. Schedule 4.19(b) lists, as of the Restatement Effective Date, each parcel of
owned real property located in the United States and held by the Borrower or any of its
Subsidiaries that has a value, in the reasonable opinion of the Borrower, in excess of $750,000.



               4.20. Solvency. Each Loan Party is on the Restatement Effective Date (after giving
effect to the transactions contemplated by this Agreement), and will continue to be, Solvent.



50









 





               4.21. Senior Indebtedness. The Obligations constitute “Senior Indebtedness” of the
Borrower under and as defined in each Senior Subordinated Note Indenture. The obligations of each
Subsidiary Guarantor under the Guarantee and Collateral Agreement constitute “Guarantor Senior
Indebtedness” of such Subsidiary Guarantor under and as defined in each Senior Subordinated Note
Indenture.



               4.22. Regulation H. No Mortgage encumbers improved real property that is located in
an area that has been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968.



               4.23. Insurance. Each of the Borrower and its Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged; and none of the Borrower or any of
its Subsidiaries (i) has received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in order to continue such
insurance or (ii) has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers at a cost that could not reasonably be expected to have a Material Adverse Effect.



               4.24. Lease Payments . Each of the Borrower and its Subsidiaries has paid all payments required to be made by it
within any specified grace periods under leases of real property where any of the Collateral is or
may be located from time to time (other than any the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or such Subsidiary, as the
case may be), except as could not reasonably be expected to have a Material Adverse Effect; no
landlord Lien has been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such payments, in each case that could, when taken together with any other such
liens or claims, reasonably be expected to have a Material Adverse Effect.



SECTION 5. CONDITIONS PRECEDENT




               5.1. Conditions to Effectiveness. The effectiveness of this Agreement is subject to
the satisfaction, prior to or concurrently with the making of the Term Loans on the Restatement
Effective Date, of the following conditions precedent:




    (a) Loan Documents. The Administrative Agent shall have received (i) this
Agreement (or, in the case of the Lenders, an Addendum), executed and delivered by a duly
authorized officer of the Borrower, each Tranche B Term Lender and each Person listed on
Annex A and (ii) reaffirmation with respect to the Guarantee and Collateral Agreement and
the Intellectual Property Security Agreement, executed and delivered by a duly authorized
officer of each relevant Loan Party.




    (b) Closing Certificate. The Administrative Agent shall have received a
certificate of the Borrower and each Subsidiary Guarantor, dated the Restatement Effective
Date, substantially in the form of Exhibit C, with appropriate insertions and
attachments.




    (c) Fees. The Lenders, the Co-Lead Arrangers and Joint Bookrunners named on
the cover page to this Agreement, and each Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including, without
limitation, the reasonable fees, disbursements and other charges of counsel to the Agents),
on or before the Restatement



51









 






Effective Date. All such amounts will be paid with proceeds of
Loans made on the Restatement Effective Date and will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the Restatement
Effective Date.




    (d) Legal Opinions. The Administrative Agent shall have received the executed
legal opinion of Fulbright & Jaworski L.L.P., counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit E.




    (e) Financial Information. The Borrower shall have delivered (i) audited
consolidated financial statements of the Borrower for the 2005 fiscal year, (ii) unaudited
interim consolidated financial statements of the Borrower for the quarterly period ended
March 31, 2006 and (iii) projections through the 2011 fiscal year.




    (f) Miscellaneous. The Administrative Agent shall have received such other
documents, agreements, certificates and information as it shall reasonably request.



               5.2. Conditions to Each Extension of Credit . The agreement of each Lender to make any extension of credit (including any Incremental
Term Loan) requested to be made by it on any date (including its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:




    (a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date (unless such
representations expressly relate to an earlier date, in which case they shall be true and
correct in all material respects on and as of such earlier date).




    (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be
made on such date.


Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such extension of credit
that the conditions contained in this Section 5.2 have been satisfied.




SECTION 6. AFFIRMATIVE COVENANTS




               The Borrower hereby agrees that, so long as any Commitment remains in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:



               6.1. Financial Statements. Furnish to the Administrative Agent (and the
Administrative Agent shall promptly provide to each Lender, by posting to Intralinks or otherwise):




    (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit, by Grant Thornton LLP or other independent certified public accountants of
nationally recognized standing; and



52









 






    (b) as soon as available, but in any event not later than 45 days after the end of each
of the first three quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments and the absence of notes thereto).


All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).




               6.2. Certificates; Other Information. Furnish to the Administrative Agent:




    (a) concurrently with the delivery of the financial statements referred to in Section
6.1(a), a certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in such certificate;




    (b) concurrently with the delivery of any financial statements pursuant to Section 6.1,
(i) a certificate of a Responsible Officer stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in such
certificate and (ii) (x) a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower and its Subsidiaries with
the provisions of this Agreement referred to therein as of the last day of the fiscal
quarter or fiscal year of the Borrower, and (y) to the extent not previously disclosed to
the Administrative Agent, a report describing each new Subsidiary of any Loan Party, any
change in the name or jurisdiction of organization of any Loan Party and any new fee owned
real property or material Intellectual Property acquired by any Loan Party since the date of
the most recent report delivered pursuant to this clause (y);




    (c) as soon as available, and in any event no later than 45 days after the end of each
fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year
(including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the following fiscal year, the related consolidated statements of projected cash
flow, projected changes in financial position and projected income, resulting applicable
financial covenant ratios and a description of the underlying assumptions applicable
thereto), and, as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the “Projections”),
which Projections shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Projections are based on reasonable estimates, information and
assumptions and that such Responsible Officer has no reason to believe that such Projections
are incorrect or misleading in any material respect;




    (d) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a narrative discussion and analysis of the financial condition
and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Projections covering such periods and to the
comparable periods of the previous year; provided that delivery of the Report on
Form 10-Q filed with the SEC with respect to such fiscal quarter shall be deemed to satisfy
the foregoing requirement;



53









 






    (e) no later than five Business Days prior to the effectiveness thereof, copies of
substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Senior Subordinated Note Indenture if the effectiveness
thereof requires the approval of any percentage of the holders of Indebtedness thereunder;




    (f) within five Business Days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of any class of its debt
securities or public equity securities and, within five Business Days after the same are
filed, copies of all financial statements and reports that the Borrower may make to, or file
with, the SEC; and




    (g) promptly, such additional financial and other information as any Lender may from
time to time reasonably request.



               6.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material obligations of
whatever nature, except where the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or its Subsidiaries, as the case may be.



               6.4. Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full
force and effect its corporate (or other) existence and (ii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii)
above, to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.



               6.5. Maintenance of Property; Insurance. Keep all property useful and necessary in
its business in good working order and condition, ordinary wear and tear excepted and maintain with
financially sound and reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public liability, product
liability and business interruption expense coverage) as are usually insured against in the same
general area by companies engaged in the same or a similar business.




          6.6. Inspection of Property; Books and Records; Discussions. (a) Keep proper books
of records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business
and activities and (b) subject to the provisions of Section 10.14, permit representatives of any
Lender, upon reasonable prior notice, to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and with its independent certified public accountants.



               6.7. Notices. Promptly give notice to the Administrative Agent (and the
Administrative Agent shall promptly provide such notice to each Lender, by posting to Intralinks or
otherwise) of:




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



54









 






    (b) any (i) default or event of default under any Contractual Obligation of the
Borrower or any of its Subsidiaries or (ii) litigation, investigation or proceeding that may
exist at any time between the Borrower or any of its Subsidiaries and any Governmental
Authority, that
in either case, if not cured or if reasonably expected to be adversely determined, as
the case may be, could reasonably be expected to have a Material Adverse Effect;




    (c) any litigation or proceeding affecting the Borrower or any of its Subsidiaries in
which (x) the amount claimed is (i) $20,000,000 or more and (ii) not covered by insurance or
(y) injunctive or similar relief is sought which could reasonably be expected to be granted
and which, if granted, could reasonably be expected to have a Material Adverse Effect;




    (d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Single Employer Plan, a failure to make any required contribution to a
Plan or a Multiemployer Plan that, in each case, could reasonably be expected to have a
Material Adverse Effect, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action by the PBGC or the
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Single Employer
Plan or Multiemployer Plan; and




    (e) any development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
Borrower or the relevant Subsidiary proposes to take with respect thereto.




               6.8. Environmental Laws. Except as could not reasonably be expected to have a
Material Adverse Effect:




    (a) comply with, and contractually require compliance by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply with and maintain, and
contractually require that all tenants and subtenants obtain and comply with and maintain,
any and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws; and




    (b) conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply
with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.



               6.9. Additional Collateral, etc. (a) With respect to any property acquired after the
Restatement Effective Date by the Borrower or any of its Subsidiaries (other than (v) Capital Stock
issued by the Borrower, (w) any vehicles, aircraft, vessels, leasehold interests, foreign
registrations related to intellectual property, and any immaterial inventory and equipment, (x) any
property described in paragraph (b), (c) or (d) below, (y) any property subject to a Lien expressly
permitted by Section 7.3(g) or (j) and (z) property acquired by any Specified Subsidiary) as to
which the Administrative Agent, for the benefit of the Secured Parties, does not have a perfected
Lien, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement or such other



55









 




documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a security interest in such property and (ii) take all actions necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in such property, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent.





               (b) With respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $750,000 acquired after the Restatement Effective Date by the
Borrower or any of its Subsidiaries (other than (x) any such real property subject to a Lien
expressly permitted by Section 7.3(g) or (j) and (z) real property acquired by any Specified
Subsidiary), promptly (i) execute and deliver a first priority Mortgage, in favor of the
Administrative Agent, for the benefit of the Secured Parties, covering such real property, (ii)
if requested by the Administrative Agent, provide the Lenders with (x) title and extended
coverage insurance covering such real property in an amount at least equal to the purchase price
of such real property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s
certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such Mortgage, each of the foregoing in form and
substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.




               (c) With respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created
or acquired after the Restatement Effective Date by the Borrower or any of its Subsidiaries
(which, for the purposes of this paragraph (c), shall include any existing Subsidiary that
ceases to be an Excluded Foreign Subsidiary but shall exclude Legacy Trust and the Insurance
Subsidiary), promptly (i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is owned by the
Borrower or any of its Subsidiaries (except Capital Stock constituting Investments permitted
under Section 7.8(g) or (j)), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock (or other transfer) powers, in
blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary,
as the case may be, and (iii) cause such new Subsidiary (A) to become a party to the Guarantee
and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Secured Parties a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary, including the filing of Uniform Commercial Code financing statements in
such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as
may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate
insertions and attachments.




               (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the
Restatement Effective Date by the Borrower or any of its Subsidiaries, promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as
the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for
the benefit of the Secured Parties, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by the Borrower or any of its Subsidiaries (provided
that in no event shall more than 65% of the total outstanding voting Capital Stock of any such
new Subsidiary



56









 







be required to be so pledged), and (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock (or other transfer)
powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and take such other action as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the Administrative Agent’s security
interest therein; provided that the Borrower and its Subsidiaries shall not be required
to comply with the requirements of this Section 6.9(d) if the Administrative Agent, in its sole
discretion, determines the cost of such compliance is excessive in relation to the value of the
collateral security to be afforded thereby.



               6.10. Permitted Acquisitions and Permitted Foreign Acquisitions. Deliver to the
Lenders, within 30 Business Days after the closing date of any Permitted Acquisition or Permitted
Foreign Acquisition involving a Purchase Price greater than or equal to $75,000,000, each of the
following: (a) a description of the property, assets and/or equity interest being purchased, in
reasonable detail; (b) a copy of the purchase agreement pursuant to which such acquisition was or
is to be consummated or a term sheet or other description setting forth the essential terms and the
basic structure of such acquisition; (c) projected statements of income for the entity that is
being acquired (or the assets, if an acquisition of assets) for at least a two-year period
following such acquisition (including a summary of assumptions or pro forma adjustments for such
projections); (d) to the extent made available to the Borrower, historical financial statements for
the entity that is being acquired (or the assets, if an acquisition of assets) (including balance
sheets and statements of income, retained earnings and cash flows for at least a two-year period
prior to such acquisition); and (e) confirmation, supported by detailed calculations, that the
Borrower and its Subsidiaries would have been in compliance with all the covenants in Section 7.1
for the fiscal quarter ending immediately prior to the consummation of such acquisition, with such
compliance determined on a pro forma basis as if such acquisition had been consummated on the first
day of the Reference Period ending on the last day of such fiscal quarter.



               6.11. Further Assurances. From time to time execute and deliver, or cause to be
executed and delivered, such additional instruments, certificates or documents, and take all such
actions, as the Administrative Agent may reasonably request, for the purposes of implementing or
effectuating the provisions of this Agreement and the other Loan Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Secured Parties with respect
to the Collateral (or with respect to any additions thereto or replacements or proceeds or products
thereof or with respect to any other property or assets hereafter acquired by the Borrower or any
Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the
exercise by the Administrative Agent or any Secured Party of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the Borrower will execute
and deliver, or will cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that the Administrative Agent or such Lender may be
required to obtain from the Borrower or any of its Subsidiaries for such governmental consent,
approval, recording, qualification or authorization.



SECTION 7. NEGATIVE COVENANTS




               The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:



               7.1. Financial Condition Covenants.



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               (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of the Borrower ending on or after
June 30, 2006 to exceed 3.25 to 1.00.




               (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters of the Borrower ending on or
after June 30, 2006 to be less than 1.35 to 1.00.



               7.2. Indebtedness. Create, issue, incur, assume, become liable in respect of or
suffer to exist any Indebtedness, except:




    (a) Indebtedness of any Loan Party pursuant to any Loan Document;




    (b) (i) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary and (ii) Indebtedness of the
Borrower and any Subsidiary to the Insurance Subsidiary in an aggregate amount not to exceed
$50,000,000 at any time outstanding that cannot be subordinated to the obligations of such
Loan Party under the Loan Documents for regulatory reasons or would cause the carrying value
for regulatory valuation purposes to be decreased;




    (c) (i) Guarantee Obligations incurred in the ordinary course of business by the
Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor
or any Foreign Subsidiary;




    (d) Indebtedness (other than the Indebtedness referred to in Section 7.2(b), (e), (f),
(h) and (j)) outstanding on the Restatement Effective Date and listed on Schedule 7.2(d) and
any refinancings, refundings, renewals or extensions thereof (without increasing, or
shortening the maturity of, the principal amount thereof);




    (e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by
Liens permitted by Section 7.3(g);




    (f) (i) Indebtedness of the Borrower in respect of the Existing Senior Subordinated
Notes and any refinancings thereof (without increasing the principal amount thereof) with
other unsecured subordinated notes of the Borrower that (x) have no scheduled principal
payments prior to the date that is one year after the latest maturity date for Loans
hereunder that is in effect on the date of issuance of such refinancing Indebtedness and (y)
have terms (including subordination terms, but excluding the interest rate) no less
favorable in any material respect to the Borrower and its Subsidiaries (taken as a whole)
and the Lenders (taken as a whole) than those applicable to offerings of “high-yield”
subordinated debt by similar issuers of similar debt at or about the same time, as evidenced
by written advice of the Borrower’s financial advisors of recognized national standing, (ii)
Guarantee Obligations of any Subsidiary Guarantor in respect of Indebtedness incurred
pursuant to clause (i) above, provided that such Guarantee Obligations are
subordinated to the same extent as the obligations of the Borrower in respect of the
Existing Senior Subordinated Notes or any notes issued pursuant to a refinancing permitted
pursuant to clause (i) above, (iii) subject to pro forma compliance with
Section 7.1 (as demonstrated in a written certificate delivered to the Administrative Agent
prior to the issuance thereof), additional
unsecured subordinated notes of the Borrower not permitted pursuant to clause (i) above
that (x) have no scheduled principal payments prior to the date that is one year after the
latest maturity date for Loans hereunder that is in effect on the date of issuance of such
subordinated notes and (y) have terms (including subordination terms, but excluding the
interest rate) no less favorable in



58









 







any material respect to the Borrower and its
Subsidiaries (taken as a whole) and the Lenders (taken as a whole) than those applicable to
offerings of “high-yield” subordinated debt by similar issuers of similar debt at or about
the same time, as evidenced by written advice of the Borrower’s financial advisors of
recognized national standing, and (iv) Guarantee Obligations of any Subsidiary Guarantor in
respect of Indebtedness incurred pursuant to clause (iii) above, provided that such
Guarantee Obligations are subordinated to the same extent as the obligations of the Borrower
in respect of the subordinated notes issued pursuant to clause (iii) above;




    (g) Assumed Indebtedness incurred pursuant to Permitted Acquisitions or Permitted
Foreign Acquisitions consummated after the Restatement Effective Date in an aggregate amount
not to exceed $100,000,000 at any time outstanding;




    (h) Guarantee Obligations of the Borrower or any Subsidiary in respect of Indebtedness
of franchisees not to exceed $100,000,000 at any one time outstanding;




    (i) Indebtedness in connection with any Sale/Leaseback Transaction permitted by Section
7.11;




    (j) Indebtedness of Rent-A-Center East, Inc., the Borrower and its other Subsidiaries
to INTRUST Bank, N.A. pursuant to a line of credit in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $15,000,000 at any one time outstanding and any
refinancings, refundings, renewals or extensions thereof (without increasing, or shortening
the maturity of, the principal amount thereof); and




    (k) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed $150,000,000 at any
one time outstanding.



               7.3. Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except for:




    (a) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto are maintained
on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;




    (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or
other like Liens arising in the ordinary course of business that are not overdue for a
period of more than 30 days or that are being contested in good faith by appropriate
proceedings and for which adequate reserves with respect thereto are maintained on the books
of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;




    (c) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation;




    (d) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business;




    (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not substantial in amount and
that do



59









 







not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;




    (f) Liens in existence on the Restatement Effective Date listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such Lien is
spread to cover any additional property after the Restatement Effective Date (other than
“products” and “proceeds” thereof, as each such term is defined in the Uniform Commercial
Code of the State of New York) and that the amount of Indebtedness secured thereby is not
increased;




    (g) Liens securing Indebtedness of the Borrower or any of its Subsidiaries incurred
pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness (including the “products” and
“proceeds” thereof, as each such term is defined in the Uniform Commercial Code of the State
of New York) and (iii) the amount of Indebtedness secured thereby is not increased;




    (h) Liens created pursuant to the Security Documents;




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




    (j) Liens on the property or assets of an Acquired Business or Acquired Foreign
Business occurring or arising after the Restatement Effective Date and securing Assumed
Indebtedness in an amount not to exceed $50,000,000, provided that such Liens (i)
were not incurred in contemplation of the Permitted Acquisition or the Permitted Foreign
Acquisition consummated in conjunction with the assumption of such Assumed Indebtedness and
(ii) do not encumber any property other than the property acquired pursuant to such
acquisition;




    (k) Liens of securities intermediaries and depository banks on the accounts held by
them to secure the payment of fees and expenses payable to them in respect of the
maintenance of such accounts;




    (l) Liens on Margin Capital Stock that is held by the Borrower as treasury stock or
that is held by any of its Subsidiaries; and




    (m) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $50,000,000 at any one time.



               7.4. Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:




    (a) (i) any Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
corporation) or with or into any other Person (provided that a Wholly Owned
Subsidiary Guarantor shall be the continuing or surviving corporation) and (ii) any Foreign
Subsidiary may be merged or consolidated with or into any other Foreign Subsidiary;



60









 






    (b) (i) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any Wholly Owned Subsidiary Guarantor
and (ii) any Foreign Subsidiary may Dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any other Foreign Subsidiary; and




    (c) (i) any Permitted Acquisition and any Permitted Foreign Acquisition may be
structured as a merger with or into the Borrower (provided that the Borrower shall
be the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary
Guarantor (provided that the continuing or surviving corporation is or becomes a
Wholly Owned Subsidiary Guarantor) and (ii) any Permitted Foreign Acquisition may be
structured as a merger with or into any Foreign Subsidiary (provided that the
continuing or surviving corporation is or becomes a Foreign Subsidiary).



               7.5. Disposition of Property. Dispose of any of its property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary of the Borrower, issue or sell any shares of
such Subsidiary’s Capital Stock to any Person, except:




    (a) the Disposition of obsolete or worn out property in the ordinary course of
business;




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




    (c) Dispositions (i) by the Borrower of any of its assets to any Wholly Owned
Subsidiary Guarantor, (ii) by any Subsidiary of the Borrower of any of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any Wholly Owned Subsidiary
Guarantor, (iii) by any Subsidiary of patent, trademark or copyright registrations under
laws of any nation other than the United States to any other Subsidiary and (iv) by any
Foreign Subsidiary to any other Foreign Subsidiary;




    (d) the sale or issuance of (i) any Subsidiary’s Capital Stock to the Borrower or any
Wholly Owned Subsidiary Guarantor and (ii) any Foreign Subsidiary’s Capital Stock to any
other Foreign Subsidiary;




    (e) the Disposition of other property having a fair market value not to exceed, as of
the last day of the immediately preceding fiscal year for any fiscal year of the Borrower,
5% of Consolidated Total Assets; provided, that the requirements of Section 2.11(b)
are complied with in connection therewith;




    (f) Dispositions referred to in Sections 7.8(f), (g) and (h);




    (g) Dispositions to or by Legacy Trust or the Insurance Subsidiary of Capital Stock of
the Borrower;




    (h) Dispositions to or by Legacy Trust or the Insurance Subsidiary of Indebtedness
described in Section 7.2(b) to the Borrower or any Wholly Owned Subsidiary Guarantor;




    (i) Dispositions by the Borrower to Legacy Trust of cash in an amount not to exceed
(when taken together with the amount of Restricted Payments made pursuant to Section 7.6(d))
the amount necessary to pay operating costs and expenses of Legacy Trust incurred in the
ordinary course of business (not to exceed $150,000 per fiscal year of the Borrower) and to
make payments to Third Party Beneficiaries (as defined in the Trust Agreement) pursuant to
and in



61









 







accordance with the Trust Agreement as in effect on the date hereof and Dispositions
by Legacy Trust of such cash to such Third Party Beneficiaries;




    (j) Dispositions by the Insurance Subsidiary effected solely for the purpose of
liquidating assets in order to permit the Insurance Subsidiary to pay expenses and to make
payments on insurance claims of the Borrower and/or any of its Subsidiaries with the
proceeds of such Dispositions;




    (k) Dispositions of Margin Capital Stock that is held as treasury stock by the Borrower
or that is held by any of its Subsidiaries; and




    (l) the Disposition of the real property in Plano, Texas on which the Borrower’s
corporate headquarters is located in connection with a Sale/Leaseback Transaction;
provided, that the requirements of Section 2.11(b) are complied with in connection
therewith.



               7.6. Restricted Payments. Declare or pay any dividend (other than dividends payable
solely in (i) common stock of the Person making such dividend or (ii) the same class of Capital
Stock of the Person making such dividend on which such dividend is being declared or paid, other
than, in any such case, Disqualified Stock) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement
or other acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary
(collectively, “Restricted Payments”), except that:




    (a) (i) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned
Subsidiary Guarantor and (ii) any Foreign Subsidiary may make Restricted Payments to any
other Foreign Subsidiary;




    (b) so long as no Default or Event of Default shall have occurred and be continuing or
would result therefrom, the Borrower may make Restricted Payments with respect to its
Capital Stock or repurchase the Borrower’s Capital Stock or the Insurance Subsidiary may
repurchase the Borrower’s Capital Stock (collectively, “Stock Payments”);
provided, that if, after giving pro forma effect thereto, the
Consolidated Senior Leverage Ratio as the last day of the most recent fiscal quarter for
which the relevant financial information is available is greater than 2.50 to 1.00 (and this
proviso shall not apply to or limit Stock Payments made so long as such ratio is less than
or equal to 2.50 to 1.00), the Borrower may make additional Stock Payments so long as the
aggregate amount of such Stock Payments made during such fiscal year, when added to the
aggregate amount expended to repurchase, repay or prepay Senior Subordinated Notes
pursuant to the second proviso of Section 7.9(a), shall not exceed, in any fiscal year
(including Stock Payments made when this restriction is not applicable), the sum of (A)
$120,000,000, (B) 50% of the Consolidated Net Income Amount and (C) 100% of the aggregate
Net Cash Proceeds received by the Borrower since April 1, 2006 as a contribution to its
common equity capital or from the issue or sale of Capital Stock of the Borrower (other than
Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities of the Borrower that have been
converted into or exchanged for such Capital Stock (other than Capital Stock (or
Disqualified Stock or debt securities) sold to a Subsidiary of the Borrower);




    (c) the Borrower may repurchase shares of its common stock issued to finance all or
part of a Permitted Acquisition, so long as such repurchase is consummated within 180 days
of such issuance;



62









 






    (d) the Borrower may repurchase shares of its common stock from Legacy Trust in an
amount not to exceed (when taken together with the amount of cash Dispositions made pursuant
to Section 7.5(i)) the amount necessary to pay operating costs and expenses of Legacy Trust
incurred in the ordinary course of business (not to exceed $150,000 per fiscal year of the
Borrower) and to make payments to Third Party Beneficiaries (as defined in the Trust
Agreement) pursuant to and in accordance with the Trust Agreement as in effect on the date
hereof;




    (e) the Borrower may repurchase shares of its common stock from the Insurance
Subsidiary in an amount not to exceed (when taken together with the amount of Dispositions
made pursuant to Section 7.5(j)) the amount necessary to (i) pay operating costs and
expenses of the Insurance Subsidiary incurred in the ordinary course of business (not to
exceed $250,000 per fiscal year of the Borrower) and (ii) permit the Insurance Subsidiary to
make payments on insurance claims of the Borrower and/or any of its Subsidiaries with the
proceeds of such repurchase; and




    (f) the Insurance Subsidiary may purchase shares of the common stock of the Borrower
from the Borrower or any Subsidiary.



               7.7. Capital Expenditures. Make or commit to make any Capital Expenditure (Expansion)
if, after giving pro forma effect thereto, the Consolidated Leverage Ratio as of
the last day of the most recent fiscal quarter for which the relevant financial information is
available is greater than 2.75 to 1.0, except (a) Capital Expenditures (Expansion) of the Borrower
and its Subsidiaries during such fiscal year (including Capital Expenditures (Expansion) when this
restriction is not in effect) shall not exceed $75,000,000 in the aggregate and (b) Capital
Expenditures (Expansion) made with the proceeds of any Reinvestment Deferred Amount.



               7.8. Investments. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting a business unit of, or make any other
investment in, any other Person (all of the foregoing, “Investments”), except:




    (a) extensions of trade credit in the ordinary course of business;




    (b) investments in Cash Equivalents;




    (c) Guarantee Obligations permitted by Section 7.2;




    (d) loans and advances to employees of the Borrower or any Subsidiary of the Borrower
in the ordinary course of business (including for travel, entertainment and relocation
expenses) in an aggregate amount for the Borrower and its Subsidiaries not to exceed
$5,000,000 at any one time outstanding;




    (e) intercompany Investments by the Borrower or any of its Subsidiaries in the Borrower
or any Person that, prior to and after giving effect to such Investment and any related
transactions, is a Wholly Owned Subsidiary Guarantor;




    (f) Investments made on or after the Restatement Effective Date in the Insurance
Subsidiary to the extent required to meet regulatory capital guidelines, policies or rules
in an amount not to exceed $25,000,000 in the aggregate;



63









 






    (g) Investments in the Insurance Subsidiary or Legacy Trust consisting of the
contribution of common stock of the Borrower and Investments by the Insurance Subsidiary or
Legacy Trust in the common stock of the Borrower;




    (h) in addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at
cost) not to exceed $75,000,000 at any time outstanding (of which no more than $50,000,000
may be used to make Investments in entities organized under, or assets located in,
jurisdictions other than those within the United States), in each case determined net of the
amount of any Net Cash Proceeds received by the Borrower and its Subsidiaries in respect of
a Disposition of any such Investment; provided, that such amount shall be calculated
from the Restatement Effective Date and not exceed the original amount of such Investment;




    (i) additional Investments constituting Permitted Acquisitions or Permitted Foreign
Acquisitions;




    (j) Investments by the Insurance Subsidiary or Legacy Trust in indebtedness of the
Borrower and the Wholly Owned Subsidiary Guarantors described in Section 7.2(b);




    (k) Investments in Legacy Trust described in Section 7.5(i);




    (l) Investments in the Insurance Subsidiary in amounts not to exceed, in any fiscal
year of the Borrower, the lesser of (x) $75,000,000 and (y) the amount that will appear as
an expense for self-insurance costs on the Borrower’s consolidated income statement; and




    (m) other Investments not otherwise permitted by this Section, so long as the aggregate
amount expended pursuant to this clause (m) after the Restatement Effective Date shall not
exceed the greater of (x) $100,000,000 and (y) 10% of the Borrower’s Consolidated Net Worth
as of the last day of the most recently completed quarterly period for which relevant
financial information is available; provided, that no more than $60,000,000 of
Investments made pursuant to this clause (m) shall be made in Persons that are not, or do
not become, Domestic Subsidiaries.



               7.9. Payments and Modifications of Certain Debt Instruments and Qualified Preferred
Stock. (a) Make or offer to make any payment, prepayment, repurchase or redemption of or
otherwise defease or segregate funds with respect to the Senior Subordinated Notes, other than
interest payments expressly required by the terms thereof and other than pursuant to prepayments or
repayments thereof with the proceeds of other Senior Subordinated Notes, provided, that so
long as no Default or Event of Default shall have occurred and be continuing or would result
therefrom the Borrower may pay, prepay, repurchase, redeem, or otherwise defease or segregate funds
with respect to Senior Subordinated Notes; provided, further, that, if after giving
pro forma effect thereto, the Consolidated Senior Leverage Ratio as of the last day
of the most recent quarter for which the relevant financial information is available is greater
than 2.50 to 1.00 (and this second proviso shall not apply to or limit any such payment,
prepayment, repurchase, redemption, defeasance or segregation of funds so long as such ratio is
less than or equal to 2.50 to 1.00), the Borrower may pay, prepay, repurchase, redeem, defease or
segregate funds with respect to Senior Subordinated Notes so long as the aggregate amount expended
in connection with such payment, prepayment, repurchase or redemption of or defeasance or
segregation of funds made during such fiscal year, when added to the aggregate amount expended in
connection with Stock Payments made pursuant to the proviso of Section 7.6(b), shall not exceed,
during any such fiscal year (including repurchases, repayments or prepayments made when this
restriction is not applicable), the sum of (A) $120,000,000, (B) 50% of the Consolidated Net Income
Amount and (C) 100% of the aggregate



64









 







Net Cash Proceeds received by the Borrower since April 1, 2006
as a contribution to its common equity capital or from the issue or sale of Capital Stock of the
Borrower (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt securities of the Borrower that have been
converted into or exchanged for such Capital Stock (other than Capital Stock (or Disqualified Stock
or debt securities) sold to a Subsidiary of the Borrower).




               (b) Amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Senior Subordinated Notes or
the Senior Subordinated Note Indenture if, after giving effect thereto, the relevant Senior
Subordinated Notes would cease to satisfy the requirements of Section 7.2(f), other than the
requirement to be in pro forma compliance with Section 7.1.




               (c) Amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any Qualified Preferred Stock if,
after giving effect thereto, the relevant Qualified Preferred Stock would cease to satisfy the
requirements of the definition thereof, other than the requirement to be in pro
forma compliance with Section 7.1.




               (d) Designate any Indebtedness (other than obligations of the Loan Parties pursuant to the
Loan Documents) as “Designated Senior Indebtedness” (howsoever defined) for the purposes of the
Senior Subordinated Note Indenture.



               7.10. Transactions with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the Borrower or any Wholly
Owned Subsidiary) unless such transaction is (a) otherwise permitted under this Agreement, (b) in
the ordinary course of business of the Borrower or such Subsidiary, as the case may be, and (c)
upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary, as the case
may be, than it would obtain in a comparable arm’s length transaction with a Person that is not an
Affiliate, provided that the foregoing limitation shall not apply to
(i) Investments, Dispositions or Restricted Payments involving the Insurance Subsidiary or
Legacy Trust to the extent expressly permitted by this Agreement or (ii) Restricted Payments that
are permitted by Section 7.6 hereof.



               7.11. Sales/Leaseback Transactions. Enter into any Sale/Leaseback Transaction other
than with respect to any assets disposed of pursuant to Section 7.5(e) or (l).



               7.12. Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a
day other than December 31 or change the Borrower’s method of determining fiscal quarters.



               7.13. Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of the Borrower or any of its Subsidiaries (other
than the Insurance Subsidiary and Legacy Trust) to create, incur, assume or suffer to exist any
Lien upon any of its property (other than Margin Capital Stock that is held by the Borrower as
treasury stock or that is held by any of its Subsidiaries) or revenues, whether now owned or
hereafter acquired, other than (a) this Agreement and the other Loan Documents, (b) any agreement
governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the assets financed
thereby and proceeds thereof), (c) any agreement acquired pursuant to a Permitted Acquisition or a
Permitted Foreign Acquisition that restricts assignment of such acquired agreement, provided that
such restrictions on assignment were not entered into in contemplation of or in connection with
such Permitted Acquisition or Permitted Foreign Acquisition and (d) any agreement governing any
other Indebtedness permitted under Section 7.2 and owed to
Persons that are not Subsidiaries of the Borrower, provided that such agreement does not impair the ability of the Loan Parties to
comply with Section 6.9.



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               7.14. Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the
Borrower to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held
by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b) make
loans or advances to, or other Investments in, the Borrower or any other Subsidiary of the Borrower
or (c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except
for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents, (ii) restrictions in effect on the Restatement Effective Date and listed
on Schedule 7.14, (iii) in the case of clause (c) above, customary non-assignment clauses in leases
and other contracts entered into in the ordinary course of business, (iv) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection
with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary,
(v) restrictions with respect to a Subsidiary acquired pursuant to a Permitted Acquisition
(provided that such restrictions were not entered into in contemplation of or in connection with
such Permitted Acquisition) and restrictions with respect to a Foreign Subsidiary arising under
applicable law, (vi) consensual arrangements with insurance regulators with respect to the
Insurance Subsidiary and (vii) restrictions applicable to Foreign Subsidiaries arising with respect
to Indebtedness of Foreign Subsidiaries permitted pursuant to Section 7.2.



               7.15. Lines of Business. (a) In the case of the Borrower and its Subsidiaries (other
than the Insurance Subsidiary and Legacy Trust), enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower or any of its
Subsidiaries are engaged on the Restatement Effective Date, any business involved in or associated
with providing payday loans, money wires, payroll advances, check-cashing services or other loans
to consumers, any business involved in or associated with servicing furniture, appliances,
electronics, computers or other similar items or any business reasonably related or incidental to
any of the businesses described above.




                    (b) In the case of the Insurance Subsidiary, enter into any business, except for providing
insurance services to the Borrower and its Subsidiaries and activities reasonably related
thereto.




                    (c) In the case of Legacy Trust, enter into any activity not expressly contemplated by the
terms of the Trust Agreement as in effect on the date hereof.



SECTION 8. EVENTS OF DEFAULT




               If any of the following events shall occur and be continuing:




    (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or Reimbursement Obligation, or any Loan Party shall fail to pay
any other amount payable hereunder or under any other Loan Document, within five days after
any such interest or other amount becomes due in accordance with the terms hereof; or




    (b) any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made; or



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    (c) any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only),
Section 6.7(a) or Section 7 of this Agreement or Section 5.8(b) of the Guarantee and
Collateral Agreement; or




    (d) any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue unremedied for
a period of 30 days after notice to the Borrower from the Administrative Agent or the
Required Lenders; or




    (e) the Borrower or any of its Subsidiaries shall (i) default in making any payment of
any principal of any Indebtedness (including any Guarantee Obligation, but excluding the
Loans) on the scheduled or original due date with respect thereto; or (ii) default in making
any payment of any interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or
agent on behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i), (ii) or (iii)
of this paragraph (e) shall not at any time constitute an Event of Default unless, at such
time, one or more defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate $20,000,000;
or




    (f) (i) the Borrower or any of its Subsidiaries shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it
or for all or any substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or




    (g) (i) any Person shall engage in any non-exempt “prohibited transaction” (as defined
in Section 406 and 408 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not



67









 







waived, shall exist with respect to any Single Employer Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of the Borrower or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall commence under
Title IV of ERISA to have a trustee appointed, or a trustee shall be appointed under Title
IV of ERISA, to administer or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Single Employer Plan in a
distress termination under Section 4041(c) of ERISA, (iv) any Single Employer Plan shall
terminate in a “distress termination” or an “involuntary termination”, as such terms are
defined in Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or
could reasonably be expected to, incur any liability in connection with a withdrawal from,
or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse Effect; or




    (h) one or more judgments or decrees shall be entered against the Borrower or any of
its Subsidiaries involving in the aggregate a liability (not paid or fully covered by
insurance as to
which the relevant insurance company has acknowledged coverage) of $20,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged, satisfied, stayed
or bonded pending appeal within 30 days from the entry thereof; or




    (i) any of the Security Documents shall cease, for any reason, to be in full force and
effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby; or




    (j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement
shall cease, for any reason (other than, with respect to the guarantee of a Subsidiary, (i)
as a result of a merger of such Subsidiary into the Borrower in accordance with the terms of
this Agreement or (ii) as a result of a release pursuant to Section 8.15(b) of the Guarantee
and Collateral Agreement), to be in full force and effect or any Loan Party or any Affiliate
of any Loan Party shall so assert; or




    (k) (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), excluding the
Permitted Investors, shall at any time become, or obtain rights (whether by means of
warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)
3 and 13(d) 5 under the Exchange Act), directly or indirectly, of a percentage equal to 35%
or more of the Voting Stock of the Borrower; (ii) the board of directors of the Borrower
shall cease to consist of a majority of Continuing Directors; (iii) a Specified Change of
Control shall occur or (iv) the Borrower shall cease to own, directly or indirectly, 100% of
the Voting Stock of RAC East or Rent-A-Center West, Inc.; or




    (l) the Senior Subordinated Notes or the guarantees thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the obligations of the Subsidiary
Guarantors under the Guarantee and Collateral Agreement, as the case may be, as provided in
the Senior Subordinated Note Indenture, or any Loan Party, any Affiliate of any Loan Party,
the trustee in respect of the Senior Subordinated Notes or the holders of at least 25% in
aggregate principal amount of the Senior Subordinated Notes shall so assert; or



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    (m) the Trust Agreement shall be amended, modified or supplemented without the prior
written consent of the Required Lenders, other than any such amendment, modification or
supplement that the Borrower is permitted to make in accordance with Section 8.3 of the
Trust Agreement as in effect on the date hereof and that does not otherwise violate
obligations of the Borrower and its Subsidiaries under this Agreement;


then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Revolving Commitments
shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all amounts of LC
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including all amounts of LC Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable. Upon the
occurrence and during the continuation of an Event of Default, the Administrative Agent and the
Lenders shall be entitled to exercise any and all remedies available under the Security Documents,
including, without limitation, the Guarantee and Collateral Agreement and the Mortgages, or
otherwise available under applicable law or otherwise. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit, and the Borrower hereby grants to the Administrative Agent, for
the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any
time on deposit in such cash collateral account to secure the undrawn and unexpired amount of such
Letters of Credit and all other Obligations. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit,
and the unused portion thereof after all such Letters of Credit shall have expired or been fully
drawn upon, if any, shall be applied to repay other obligations of the Loan Parties hereunder and
under the other Loan Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of
the Loan Parties hereunder and under the other Loan Documents shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto). Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind (other than notices expressly
required pursuant to this Agreement and any other Loan Document) are hereby expressly waived by the
Borrower.




SECTION 9. THE AGENTS




               9.1. Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably



69









 







incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.



               9.2. Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.



               9.3. Exculpatory Provisions . Neither any Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and nonappealable decision of
a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer thereof contained
in this Agreement or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of
any Loan Party party thereto to perform its obligations hereunder or thereunder. The Agents shall
not be under any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of any Loan Party.



               9.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if
so specified by this Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.



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




70










 







thereof to the Lenders. The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.




          9.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own decision to make its
extensions of credit hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent 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
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into
the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.




          9.7. Indemnification. The Lenders agree to indemnify each Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or
in connection with any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful
misconduct. The agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.




          9.8. Agent in Its Individual Capacity. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent was not an Agent. With respect to its Loans made or renewed by it and with respect to
any Letter of Credit issued or participated in by it, each Agent shall have the same rights and
powers under this




71









 







Agreement and the other Loan Documents as any Lender and may exercise the same as
though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.




          9.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the
Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default
under Section 8(a) or Section 8(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent
effective upon such appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or further act or deed on
the part of such former Administrative Agent or any of the parties to this Agreement or any holders
of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section
9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.




          9.10. Authorization to Release Guarantees and Liens. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, the Administrative Agent is hereby
irrevocably authorized by each of the Lenders (without requirement of notice to or vote or consent
of any Lender, except as expressly required by Section 10.1, or any affiliate of any Lender that is
a party to any Specified Hedge Agreement) to take any action requested by the Borrower having the
effect of releasing any Collateral or guarantee obligations to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has been consented to
in accordance with Section 10.1 and the Administrative Agent shall do so if so requested.




          9.11. Documentation Agent and Syndication Agent. Neither the Documentation Agent nor
the Syndication Agent shall have any duties or responsibilities hereunder in their respective
capacities as such.




SECTION 10. MISCELLANEOUS




          10.1. Amendments and Waivers. Neither this Agreement, any other Loan Document, nor
any terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be,
may specify in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided, however, that no such
waiver and no such amendment, supplement or modification shall (i) forgive, reduce, extend or waive
the principal amount or extend or waive the
final scheduled date of
maturity of any Loan or Reimbursement Obligation, extend or waive the




72









 







scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee
payable hereunder or extend or waive the scheduled date of any payment thereof, increase the amount
or extend the expiration date of any Lender’s Commitment, in each case without the written consent
of each Lender directly affected thereby; (ii) amend, modify or waive any provision of this Section
10.1 or reduce any percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by any Loan Party of any of its rights and obligations under this Agreement
and the other Loan Documents, or release all or substantially all of the Collateral or all or
substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and
Collateral Agreement, in each case without the written consent of all Lenders; (iii) reduce the
percentage specified in the definition of Majority Facility Lenders with respect to any Facility
without the written consent of all Lenders under such Facility; (iv) amend, modify or waive any
provision of Section 9 without the written consent of the Administrative Agent; (v) amend, modify
or waive any provision of Section 2.3 or 2.6 without the written consent of the Swingline Lender;
(vi) amend, modify or waive any provision of Section 3 without the written consent of the Issuing
Lender or (vii) amend, modify or waive any provision of Section 2.17 without the written consent of
the Majority Facility Lenders in respect of each Facility adversely affected thereby. Any such
waiver and any such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.




          Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add
one or more additional credit facilities to this Agreement and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans
and Revolving Extensions of Credit and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders and Majority Facility Lenders.




          In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of
all (but not less than all) outstanding Tranche A Term Loans or all (but not less than all) Tranche
B Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder
(“Replacement Term Loans”), provided that (a) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term
Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the
Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to any period after the
latest final maturity of the relevant Term Loans in effect immediately prior to such refinancing.
The election by any Lender to provide or participate in the Replacement Term Loans shall not
obligate any other Lender to so provide or participate. The Borrower shall pay to any Lender who
elects not to provide or participate in any Replacement Term Loans an amount equal to the relevant
outstanding Term Loans (plus any accrued and unpaid interest or other amounts due in




73








 







connection therewith) held by such Lender prior to or simultaneously with any refinancing,
replacement or modification of relevant outstanding Term Loans hereunder.




          10.2. Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent or Assignment and
Acceptance (as applicable) in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:




	 	 	 	 	 
	 

	 	The Borrower:
	 	Rent-A-Center, Inc.

5700 Tennyson Parkway

Third Floor

Plano, Texas 75024

Attention: Robert D. Davis

Telecopy: (972) 943-0113

Telephone: (972) 801-1200
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	Rent-A-Center, Inc.

5700 Tennyson Parkway

Third Floor

Plano, Texas 75024

Attention: Christopher A. Korst, Senior Vice President and
General Counsel

Telecopy: (972) 801-1476

Telephone: (972) 801-1200
	 
	 	 	 	 
	 

	 	with copies to:
	 	Fulbright & Jaworski L.L.P.

2200 Ross Avenue, Suite 2800

Dallas, Texas 75201

Attention: Thomas W. Hughes and James R. Griffin
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	Fulbright & Jaworski L.L.P.

1301 McKinney, Suite 5100

Houston, Texas 77010

Attention: Joshua P. Agrons
	 
	 	 	 	 
	 

	 	The Administrative Agent
and the Issuing Lender:
	 	JPMorgan Chase Bank, N.A.

Loan and Agency Services

10 South Dearborn, Floor 19

Chicago, IL 60603-2003

Attention: Nanette Wilson

Telecopy: (312) 385-7084

Telephone: (312) 385-7096






74









 





provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.




          10.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.




          10.4. Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.




          10.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent and each Arranger for all its out-of-pocket costs and expenses incurred in
connection with the syndication of the Facilities, the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including the reasonable fees
and disbursements of counsel to the Administrative Agent and filing and recording fees and expenses
and the charges of IntraLinks, in each case from time to time on a quarterly basis or such other
periodic basis as the Administrative Agent shall deem appropriate, (b) to pay or reimburse each
Lender and the Administrative Agent (in the case of each Lender, after the occurrence and during
the continuance of an Event of Default) for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the fees and disbursements of counsel (including the allocated
fees and expenses of in-house counsel (but not both outside and in-house counsel)) to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and each
Agent harmless from, any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if any, that may be
payable or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the
other Loan Documents and any such other documents, and (d) to pay, indemnify, and hold each Lender
and the Administrative Agent and their respective officers, directors, trustees, employees,
affiliates, agents, controlling persons and investment advisors who manage a Lender (each, an
“Indemnitee”) harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other documents, including
any of the foregoing relating to the use of proceeds of the Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to the operations
of the Borrower or any of its Subsidiaries or any of the Properties or the use by unauthorized
persons of information or other materials sent through electronic, telecommunications or other
information transmission systems that are intercepted by such persons without the consent of the
Indemnitee and the reasonable fees and expenses of legal counsel in connection with claims, actions
or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing
in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall
have no obligation


75









 







hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities arise from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries to so waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due under this Section
10.5 shall be payable not later than 10 Business Days after written demand therefor. Statements
payable by the Borrower pursuant to this Section 10.5 shall be submitted to Robert D. Davis
(Telephone No. 972-801-1204) (Telecopy No. 972-943-0113), at the address of the Borrower set forth
in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower
in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.




          10.6. Successors and Assigns; Participations and Assignments. (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 (including any affiliate of the Issuing Lender
that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section.





               (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent of:




     (A) the Borrower (such consent not to be unreasonably withheld), provided that
no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of
a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is
continuing, any other Person;




     (B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender,
an Affiliate of a Lender or an Approved Fund; and




     (C) in the case of assignments of Revolving Commitments, the Issuing Lender.




     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 in the case of the
Revolving Facility and the Tranche A Term Facility or $1,000,000 in the case of the
Tranche B Term Facility, in each case unless each of the Borrower and the
Administrative Agent otherwise consent, provided that (1) no such consent of
the Borrower shall be required if an Event of Default has occurred and is continuing
and (2) such amounts shall be aggregated in respect of each Lender and its
Affiliates or Approved Funds, if any;



76









 






     (B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 (with only one such fee payable in connection with
multiple, simultaneous assignments); and




     (C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire.


For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption 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 2.18, 2.19, 2.20 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 10.6 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 (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and LC Obligations 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, the Issuing Lender
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.




     (v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register. No
assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as provided in
this paragraph.




               (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to
deal solely and directly with such



77









 






Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement 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 may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to the second
sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph
(c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though
it were a Lender.




(ii) A Participant shall not be entitled to receive any greater payment under Section
2.18 or 2.19 than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. Any Participant that is a
Non-U.S. Lender shall not be entitled to the benefits of Section 2.19 unless such
Participant complies with Section 2.19(d).




          (d) 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 any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in
paragraph (d) above.




          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each
of the Borrower, each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting against a Conduit
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under
any state bankruptcy or similar law, for one year and one day after the payment in full of the
latest maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to institute such
a proceeding against such Conduit Lender during such period of forbearance.



          10.7. Adjustments; Setoff. (a) Except to the extent that this Agreement expressly
provides for payments to be allocated to a particular Lender or to the Lenders under a particular
Facility, if any Lender (a “Benefitted Lender”) shall at any time receive any payment of
all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by setoff, pursuant to events or proceedings of the nature referred
to in Section 8(f), or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to such other Lender,
such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in
such portion of the Obligations owing to each such other Lender,




78









 







or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but without interest.





          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender and
its Affiliates shall have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing by such Lender, such
Affiliate or any branch or agency of any thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such setoff and application made by such Lender or any of its Affiliates, provided
that the failure to give such notice shall not affect the validity of such setoff and
application.



          10.8. Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.




          10.9. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




          10.10. Integration. This Agreement and the other Loan Documents represent the agreement of the Borrower, the
Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein or in the other
Loan Documents.




          10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.




          10.12. Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:





     (a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;



79









 






     (b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




     (c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to it at its address set forth in Section 10.2 or at such other
address of which the Administrative Agent shall have been notified pursuant thereto;




     (d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.




     10.13. Acknowledgements. The Borrower hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




     (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between the Administrative Agent and Lenders, on
one hand, and the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and




     (c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrower and the Lenders.



          10.14. Confidentiality. Each of the Administrative Agent and each Lender agrees to
keep confidential all non-public information provided to it by any Loan Party pursuant to this
Agreement that is designated by such Loan Party as confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate or Approved Fund of any Lender, (b) to any
participant or assignee or prospective participant or assignee that agrees to comply with the
provisions of this Section, (c) to its employees, directors, trustees, agents, attorneys,
accountants, investment advisors and other professional advisors or those of any of its affiliates,
(d) upon the request or demand of any Governmental Authority, (e) in response to any order of any
court or other Governmental Authority or as may otherwise be required pursuant to any Requirement
of Law, (f) if requested or required to do so in connection with any litigation or similar
proceeding, provided that in the case of any such request or requirement, the Administrative Agent
or Lender (as applicable) so requested or required to make such disclosure shall as soon as
practicable notify the Borrower thereof, (g) that has been publicly disclosed, (h) to the National
Association of Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender’s investment portfolio in
connection with ratings issued with respect to such Lender, (i) in connection with the exercise of
any remedy hereunder or under any other Loan Document or (j) to any direct or indirect contractual
counterparty in swap agreements with the Borrower or such contractual counterparty’s professional
advisor (so long as such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 10.14).






80









 









          10.15. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          10.16. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.




          10.17. No Novation, etc..





          (a) The terms and conditions of the Existing Credit Agreement are amended as set forth in,
and restated in their entirety and superseded by, this Agreement. Nothing in this Agreement
shall be deemed to be a novation of any of the Obligations as defined in the Existing Credit
Agreement. Notwithstanding any provision of this Agreement or any other Loan Document or
instrument executed in connection herewith, the execution and delivery of this Agreement and the
incurrence of Obligations hereunder shall be in substitution for, but not in payment of,
the Obligations owed by the Loan Parties under the Existing Credit Agreement.




          (b) From and after the Restatement Effective Date, each reference to the “Agreement”,
“Credit Agreement” or other reference originally applicable to the Existing Credit Agreement
contained in any Loan Document shall be a reference to this Agreement, as amended, supplemented,
restated or otherwise modified from time to time.



          10.18. Delivery of Addenda. Each Lender on the Restatement Effective Date shall
become a party to this Agreement by delivering to the Administrative Agent an Addendum duly
executed by such Lender.




81









 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	RENT-A-CENTER, INC.

 	 
	 	By:  	/s/ Mark E. Speese
 	 
	 	Name:  	Mark E. Speese 	 
	 	Title:  	Chairman of the Board and
Chief Executive Officer 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,
      
as Administrative Agent and a Lender

 	 
	 	By:  	/s/ D. Scott Harvey
 	 
	 	Name:  	D. Scott Harvey 	 
	 	Title:  	Senior Vice President 	 
	 
	 	LEHMAN COMMERCIAL PAPER INC.,
      
as Syndication Agent and a Lender

 	 
	 	By:  	/s/ Laurie Perper
 	 
	 	Name: Laurie Perper 	 
	 	Title: Authorized Signatory 	 
	 
	 	UNION BANK OF CALIFORNIA, N.A.,
      
as Documentation Agent and a Lender

 	 
	 	By:  	/s/ Clifford F. Cho
 	 
	 	Name: Clifford F. Cho 	 
	 	Title: Vice President