exv10w8






EXHIBIT 10.8



 





CREDIT AGREEMENT




AMONG




CASH AMERICA INTERNATIONAL, INC.,

AS THE BORROWER,




WELLS FARGO BANK, NATIONAL ASSOCIATION,

AS ADMINISTRATIVE AGENT,




AND




THE OTHER LENDERS PARTY HERETO




Dated as of November 21, 2008




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section
	 	Page
	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	16	 
	1.03 Accounting Terms
	 	 	17	 
	1.04 Rounding
	 	 	17	 
	1.05 References to Agreements and Laws
	 	 	17	 
	 
	 	 	 	 
	ARTICLE II. THE TERM LOAN
	 	 	 	 
	 
	2.01 The Term Loan
	 	 	17	 
	2.02 Borrowings, Conversions and Continuations of Term Loans
	 	 	17	 
	2.03 Termination of Term Loan Commitments
	 	 	19	 
	2.04 Repayment of Term Loans
	 	 	19	 
	2.05 Prepayments
	 	 	19	 
	2.06 Interest
	 	 	20	 
	2.07 Fees
	 	 	20	 
	2.08 Computation of Interest and Fees
	 	 	20	 
	2.09 Evidence of Debt
	 	 	20	 
	2.10 Payments Generally
	 	 	21	 
	2.11 Sharing of Payments
	 	 	22	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	3.01 Taxes
	 	 	23	 
	3.02 Illegality
	 	 	24	 
	3.03 Inability to Determine Rates
	 	 	25	 
	3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.

	 	 	25	 
	3.05 Funding Losses
	 	 	26	 
	3.06 Matters Applicable to all Requests for Compensation
	 	 	27	 
	3.07 Survival
	 	 	27	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO TERM LOAN BORROWING
	 	 	 	 
	 
	4.01 Conditions of Term Loan Borrowing
	 	 	27	 
	4.02 Conditions to Term Loan Borrowing and all Conversions and Continuations
	 	 	29	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	29	 
	5.02 Authorization; No Contravention
	 	 	30	 
	5.03 Governmental Authorization
	 	 	30	 
	5.04 Binding Effect
	 	 	30	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	30	 
	5.06 Litigation
	 	 	30	 
	5.07 No Default
	 	 	30	 
	5.08 Ownership of Property; Liens
	 	 	31	 






i 









 






	 	 	 	 	 
	Section
	 	Page
	5.09 Environmental Compliance
	 	 	31	 
	5.10 Insurance
	 	 	31	 
	5.11 Taxes
	 	 	31	 
	5.12 ERISA Compliance
	 	 	31	 
	5.13 Subsidiaries
	 	 	32	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	32	 
	5.15 No Financing of Corporate Takeovers
	 	 	32	 
	5.16 Insider
	 	 	32	 
	5.17 Disclosure
	 	 	33	 
	5.18 Intellectual Property; Licenses, Etc
	 	 	33	 
	5.19 Businesses
	 	 	33	 
	5.20 Common Enterprise
	 	 	33	 
	5.21 Solvent
	 	 	33	 
	5.22 Creazione Acquisition
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VI. COVENANTS
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VII. [INTENTIONALLY OMITTED]
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	8.01 Events of Default
	 	 	35	 
	8.02 Remedies Upon Event of Default
	 	 	37	 
	8.03 Application of Proceeds
	 	 	37	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	 	 
	 
	9.01 Appointment and Authorization of Administrative Agent
	 	 	38	 
	9.02 Delegation of Duties
	 	 	38	 
	9.03 Liability of Administrative Agent
	 	 	39	 
	9.04 Reliance by Administrative Agent
	 	 	39	 
	9.05 Notice of Default
	 	 	40	 
	9.06 Credit Decision; Disclosure of Information by Administrative Agent
	 	 	40	 
	9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT
	 	 	40	 
	9.08 Administrative Agent in its Individual Capacity
	 	 	41	 
	9.09 Successor Administrative Agent
	 	 	41	 
	9.10 Guaranty Matters
	 	 	42	 
	9.11 Administrative Agent May File Proofs of Claim
	 	 	42	 
	9.12 Related Obligations
	 	 	43	 
	9.13 Other Agents; Arrangers and Managers
	 	 	43	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	 	 
	 
	10.01 Amendments, Etc
	 	 	44	 
	10.02 Notices and Other Communications; Facsimile Copies
	 	 	45	 
	10.03 No Waiver; Cumulative Remedies
	 	 	46	 
	10.04 Attorney Costs, Expenses and Taxes
	 	 	46	 
	10.05 INDEMNIFICATION BY THE BORROWER
	 	 	47	 
	10.06 Payments Set Aside
	 	 	48	 
	10.07 Successors and Assigns
	 	 	49	 
	10.08 Confidentiality
	 	 	51	 






ii 









 






	 	 	 	 	 
	Section
	 	Page
	10.09 Set-off
	 	 	52	 
	10.10 Interest Rate Limitation
	 	 	52	 
	10.11 Counterparts
	 	 	52	 
	10.12 Integration
	 	 	52	 
	10.13 Survival of Representations and Warranties
	 	 	53	 
	10.14 Severability
	 	 	53	 
	10.15 Foreign Lenders
	 	 	53	 
	10.16 Removal and Replacement of Lenders
	 	 	54	 
	10.17 Exceptions to Covenants
	 	 	54	 
	10.18 Governing Law
	 	 	54	 
	10.19 Waiver of Right to Trial by Jury
	 	 	55	 
	10.20 USA Patriot Act Notice
	 	 	55	 
	10.21 Entire Agreement
	 	 	55	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 






iii 









 






	 	 	 	 	 
	SCHEDULES	 	 

	 	 	 	 	 
	 	1.01	 	 	Subsidiary Groups (for Definitions)

	 	2.01	 	 	Term Commitments and Pro Rata Shares

	 	5.13	 	 	Subsidiaries and Other Equity Investments

	 	7.03	(j)	 	Existing Investments

	 	10.02	 	 	Eurodollar and Domestic Lending Offices, Addresses for Notices

	 	 	 	 	 
	EXHIBITS	 	 

	 	 
	 
	 
	 Form
of
	 	 	 	 	 
	 	A	 	 	Assignment and Acceptance

	 	B	 	 	Guaranty

	 	C	 	 	Term Loan Note

	 	D	 	 	Term Loan Notice

	 	E	 	 	Officer’s Certificate








iv 









 








CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of November 21, 2008, among
CASH AMERICA INTERNATIONAL, INC., a Texas corporation (the “Borrower”), each lender from
time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.



     The Borrower has requested that the Lenders provide a term credit facility, and the Lenders
are willing to do so on and subject to the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Act” has the meaning set forth in Section 10.20 hereof.



     “Administrative Agent” means Wells Fargo in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



     “Affiliate” means, as to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. A Person
shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 10% or more of the Voting Shares (on a fully diluted basis) of such
Person; or (b) to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.



     “Affiliated IRP Agreement” means an Interest Rate Protection Agreement entered into
between the Borrower and a Lender or an Affiliate of a Lender, provided that such Lender
was a Lender hereunder at the time such Interest Rate Protection Agreement was entered into.



     “Agent Fee Letter” has the meaning specified in Section 2.07 hereof.



     “Agent-Related Persons” means the Administrative Agent (including any successor
administrative agent), together with its Affiliates, and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.



     “Aggregate Term Commitments” means the aggregate amount of Term Commitments of the
Lenders, which initially shall be $38,000,000, as the same may be increased or reduced from time to
time pursuant to the terms of this Agreement.



1









 





     “Agreement” means this Credit Agreement.



     “Applicable Law” means (a) in respect of any Person, all provisions of Laws applicable
to such Person, and all orders and decrees of all courts and arbitrators in proceedings or actions
to which the Person in question is a party and (b) in respect of contracts made or performed in the
State of Texas, “Applicable Law” shall also mean the Laws of the United States of America,
including, without limitation the foregoing, 12 USC Sections 85 and 86, as amended to the date
hereof and as the same may be amended at any time and from time to time hereafter, and any other
statute of the United States of America now or at any time hereafter prescribing the maximum rates
of interest on loans and extensions of credit, and the Laws of the State of Texas.



     “Applicable Rate” means (a) in respect of a Eurodollar Rate Loan, 3.50% per annum, and
(b) in respect of a Base Rate Loan, 3.50% per annum.



     “Approved Fund” has the meaning specified in Section 10.07(g) hereof.



     “Assets” means, as of any date, the assets which would be reflected on a balance sheet
of the Borrower and its Subsidiaries on a combined and consolidated basis prepared as of such date
in accordance with GAAP.



     “Assignment and Acceptance” means an Assignment and Acceptance substantially in the
form of Exhibit A.



     “Attorney Costs” means and includes all reasonable fees and disbursements of any law
firm or other external counsel.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2007 and the related
consolidated statements of income, stockholders’ equity and cash flows for such fiscal year of the
Borrower.



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1 and 1/2 % and (b) the Prime Rate in effect for such day. Any
change in such rate announced by Wells Fargo shall take effect at the opening of business on the
day specified in the public announcement of such change.



     “Base Rate Loan” means a Term Loan that bears interest at a rate based on the Base
Rate.



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



     “Borrower” has the meaning set forth in the introductory paragraph hereto.



2









 





     “Business Day” means any day other than a Saturday, Sunday, or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the applicable offshore Dollar interbank market.



     “Capital Lease” means, as of any date, any lease of property, real or personal, which
would be capitalized on a balance sheet of the lessee prepared as of such date, in accordance with
GAAP, together with any other lease by such lessee which is in substance a financing lease,
including without limitation, any lease under which (a) such lessee has or will have an option to
purchase the property subject thereto at a nominal amount or an amount less than a reasonable
estimate of the fair market value of such property as of the date such lease is entered into or
(b) the term of the lease approximates or exceeds the expected useful life of the property leased
thereunder.



     “Capital Stock” means, as to any Person, the equity interests in such Person,
including, without limitation, the shares of each class of capital stock in any Person that is a
corporation, each class of partnership interest in any Person that is a partnership, and each class
of membership interest in any Person that is a limited liability company, and any right to
subscribe for or otherwise acquire any such equity interests.



     “Change of Control” means, with respect to any Person, an event or series of events by
which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person or group shall be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire (such right, an “option right”), whether such
right is exercisable immediately or only after the passage of time), directly or indirectly, of 50%
or more of the equity securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to any
option right).



     “Closing Date” means the first date all the conditions precedent in
Section 4.01 hereof are satisfied or waived in accordance with Section 4.01 hereof
(or, in the case of Section 4.01(b) hereof, waived by the Person entitled to receive the
applicable payment).



     “Code” means the Internal Revenue Code of 1986.



     “Communications” has the meaning specified in Section 10.02(c) hereof.



     “Compensation Period” has the meaning specified in Section 2.10(d)(ii) hereof.



     “Consequential Loss” means, with respect to the Borrower’s payment of all or any
portion of the then outstanding principal amount of a Lender’s Eurodollar Rate Loan on a day other
than the last day of the Interest Period related thereto, any loss, cost or expense incurred by
such Lender as a result of the timing of such payment or in redepositing such principal amount,



3









 







including any expense or penalty incurred by such Lender on redepositing such principal
amount, but excluding any loss of the Applicable Rate on the relevant Eurodollar Rate Loans.



     “Contractual Obligation” means, 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.



     “Creazione” means Creazione Estilo, S.A. de C.V., SOFOM, E.N.R., a Mexican
corporation.



     “Creazione Acquisition” means the purchase by Cash America of Mexico, Inc. of not less
than 80% of all authorized, issued and outstanding equity interest of Creazione.



     “Creazione Acquisition Agreement” means the Securities Purchase Agreement entered into
by and among Creazione, Cash America of Mexico, Inc., Capital International S.ár.l., St. Claire,
S.A. de C.V., Gerardo Ciuk, INVECAMEX, S.A. de C.V., Arturo Aguilar, an individual citizen of the
United Mexican States, Borrower and the other parties thereto.



     “Creazione Acquisition Documents” means Creazione Acquisition Agreement and each other
agreement required to be delivered pursuant to the Creazione Acquisition Agreement as a condition
to the occurrence of the Creazione Acquisition.



     “Creazione Effective Time” means the date and time at which the Creazione Acquisition
shall be consummated pursuant to the Creazione Acquisition Documents.



     “Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws
of the United States of America or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.



     “Default” means any event that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.



     “Default Rate” means an interest rate equal to (a) with respect to a Base Rate Loan,
(i) the Base Rate plus (ii) the Applicable Rate, plus (c) 2% per annum, and (b) with respect to a
Eurodollar Rate Loan, (i) the Eurodollar Rate, plus (ii) the Applicable Rate, plus (iii) 2% per
annum, in each case to the fullest extent permitted by Applicable Law.



     “Disposition” means the sale, transfer, license or other disposition (including any
sale and leaseback transaction, but excluding a Dividend) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Dollar” and “$” means lawful money of the United States of America.



     “Dollar Equivalent” means, on any date, the amount of Dollars into which an amount of
applicable foreign currency may be converted on such date.



4









 





     “Domestic Subsidiary” means any Subsidiary of the Borrower other than a Foreign
Subsidiary.



     “Eligible Assignee” has the meaning specified in Section 10.07(g) hereof.



     “Environmental Laws” means all Laws relating to environmental, health, safety and land
use matters applicable to any property.



     “ERISA” means the Employee Retirement Income Security Act of 1974 and any regulations
issued pursuant thereto.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate
a Pension Plan or Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA with respect to a Pension Plan, other than PBGC premiums due but
not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan (rounded upward to the next 1/16th of 1%):




     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Telerate screen (or any successor thereto)
that displays an average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or




     (b) if the rate referenced in the preceding subsection (a) does not appear on such page
or service or such page or service shall cease to be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of



5









 







approximately 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or




     (c) if the rates referenced in the preceding subsections (a) and (b) are not available,
the rate per annum determined by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Wells Fargo and with a term equivalent to such Interest Period would be offered by Wells
Fargo’s London Branch to major banks in the offshore Dollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period.



     “Eurodollar Rate Loan” means a Term Loan that bears interest at a rate based on the
Eurodollar Rate.



     “Event of Default” means any of the events or circumstances specified in
Section 8.01.



     “Exchange Act” means the Securities Exchange Act of 1934.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upwards to the
nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate charged to Wells Fargo
on such day on such transactions as determined by the Administrative Agent.



     “Foreign Lender” has the meaning specified in Section 10.15 hereof.



     “Foreign Loans” means intercompany loans and advances by the Borrower or any Domestic
Subsidiary to a Foreign Subsidiary.



     “Foreign Plan” means any pension plan or other deferred compensation plan, program or
arrangement maintained by a Foreign Subsidiary which, under applicable local law, is required to be
funded through a trust or other funding vehicle.



     “Foreign Subsidiary” means (a) each Subsidiary of the Borrower or any ERISA Affiliate
which is organized under the laws of a jurisdiction other than the United States of America or any
State thereof, if any, and (b) each Subsidiary of the Borrower or any ERISA Affiliate of which a
majority of the revenues, earnings or other total assets (determined on a consolidated basis with
its Subsidiaries) are located or derived from operations outside of the United States of America,
if any.



     “Fund” has the meaning specified in Section 10.07(g) hereof.



6









 





     “GAAP” means generally accepted accounting principles as in effect in the United
States as set forth in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved by a substantial
segment of the accounting profession, that are applicable to the circumstances as of the date of
determination, consistently applied. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders
such approval not to be unreasonably withheld and no amendment fee will be payable to the Lenders
in connection with such amendment); provided that, until so amended, (a) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such change therein and
(b) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital ownership or otherwise,
by any of the foregoing.



     “Guarantors” means, collectively, each Domestic Subsidiary.



     “Guaranty” means the Guaranty made by one or more of the Guarantors, substantially in
the form of Exhibit B.



     “Guaranty Obligation” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guarantying or having the economic effect of guarantying any Indebtedness
or other obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligees in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such obligees against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person; provided, however, that the term
“Guaranty Obligation” shall not include (x) the purchase of instruments in respect of
Investments otherwise permitted by Section 7.03(a) of the Incorporated Agreement and
(y) endorsements of instruments for deposit or collection in the ordinary course of business. The



7









 







amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guarantying Person in good faith.



     “Highest Lawful Rate” at the particular time in question the maximum rate of interest
which, under Applicable Law, any Lender is then permitted to charge on the Obligations. If the
maximum rate of interest which, under Applicable Law, any Lender is permitted to charge on the
Obligations shall change after the date hereof, the Highest Lawful Rate shall be automatically
increased or decreased, as the case may be, from time to time as of the effective time of each
change in the Highest Lawful Rate without notice to the Borrower. For purposes of determining the
Highest Lawful Rate under Applicable Law, the indicated rate ceiling shall be the lesser of
(a)(i) the “weekly ceiling”, as such ceiling is computed in Section 303.003 of the Texas
Finance Code, as amended, or (ii) if available in accordance with the terms thereof and at the
Administrative Agent’s option after notice to the Borrower and otherwise in accordance with the
terms of Section 303.103 of the Texas Finance Code, as amended, the “annualized ceiling”,
as such ceiling is determined in accordance with Section 303.009 of the Texas Finance Code, as
amended, and (b)(i) if the amount outstanding under this Agreement is less than $250,000,
twenty-four percent (24%), or (ii) if the amount outstanding under this Agreement is equal to or
greater than $250,000, twenty-eight percent (28%) per annum.



     “Incorporated Agreement” means that certain First Amended and Restated Credit
Agreement, dated as of February 24, 2005, among the Borrower, each lender from time to time party
thereto, Wells Fargo Bank, National Association, as Administrative Agent, an L/C Issuer and Swing
Line Lender, JPMorgan Chase Bank, N.A., as Syndication Agent, and U.S. Bank National Association,
KeyBank National Association and Union Bank of California, N.A., as Co-documentation Agents, as
amended by that certain First Amendment to First Amended and Restated Credit Agreement, dated as of
March 16, 2007, that certain Commitment Increase Agreement, dated as of February 29, 2008, that
certain Second Amendment to First Amended and Restated Credit Agreement, dated as of June 30, 2008,
and that certain Third Amendment to First Amended and Restated Credit Agreement, dated as of
November 21, 2008. Unless otherwise specified herein, all references to the Incorporated Agreement
shall mean the Incorporated Agreement as in effect on the date hereof, without giving effect to any
amendment, supplement or other modification thereto or thereof after the date hereof.



     “Increase Effective Date” has the meaning specified in Section 2.12(d) hereof.



     “Indebtedness” means, as to any Person at a particular time, all of the following:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) any direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), banker’s acceptances, bank guaranties, surety bonds and
similar instruments;



8









 






     (c) net obligations under any Interest Rate Protection Agreement in an amount equal to
(i) if such Interest Rate Protection Agreement has been closed out, the unpaid Termination
Value thereof, or (ii) if such Interest Rate Protection Agreement has not been closed out,
the mark-to-market value thereof determined on the basis of readily available quotations
provided by any recognized dealer in such Interest Rate Protection Agreement;




     (d) whether or not so included as liabilities in accordance with GAAP, all obligations
of such Person to pay the deferred purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased
by such Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;




     (e) accrued obligations in respect of earnout or similar payments payable in cash or
which may be payable in cash at the seller’s or obligee’s option;




     (f) Capital Lease and Synthetic Lease Obligations;




     (g) any Redeemable Stock of such Person;




     (h) any Receivables Facility Attributed Indebtedness; and




     (i) all Guaranty Obligations of such Person in respect of any of the foregoing.


For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a joint venturer, unless
such Indebtedness is expressly made non-recourse to such Person except for customary exceptions
reasonably acceptable to the Required Lenders. The amount of any Capital Lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.




     “Indemnified Liabilities” has the meaning set forth in Section 10.05 hereof.



     “Indemnitees” has the meaning set forth in Section 10.05 hereof.



     “Information” has the meaning set forth in Section 10.08 hereof.



     “Interest Payment Date” means, (a) as to any Term Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Term Loan; and (b) as to any Base Rate
Loan, each Quarterly Date and the Maturity Date.



     “Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one month thereafter, as selected by the Borrower in its Term Loan Notice;
provided that:




     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case



9









 







of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;




     (ii) any Interest Period of one month pertaining to a Eurodollar Rate Loan 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 the calendar month at the end of such Interest Period; and




     (iii) no Interest Period shall extend beyond the scheduled Maturity Date.



     “Interest Rate Protection Agreement” means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, any cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.



     “Interest Rate Protection Obligations” means any and all obligations of the Borrower
to any Lender or an Affiliate of a Lender under any Affiliated IRP Agreement.



     “Investment” means, as to any Person, any acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of capital stock or other securities of
another Person, (b) a loan, advance or capital contribution (including a contribution of property)
to, Guaranty Obligation with respect to the debt of, or purchase or other acquisition of any other
debt or equity participation or interest in, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute a business unit. For
purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.



     “IRS” means the United States Internal Revenue Service.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof,



10









 







and all applicable administrative orders, directed duties, requests, licenses, authorizations
and permits of, and agreements with, any Governmental Authority, in each case whether or not having
the force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lender Fee Letter” has the meaning specified in Section 2.07 hereof.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such on Schedule 10.02, or such other office or offices as a Lender may from
time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment as security for
Indebtedness, encumbrance, lien (statutory or other), charge, or preference, priority or other
security interest or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction), including the interest of a
purchaser of accounts receivable.



     “Litigation” means any proceeding, claim, lawsuit, arbitration, and/or investigation
by or before any Governmental Authority, including, without limitation, proceedings, claims,
lawsuits, and/or investigations under or pursuant to any environmental, occupational, safety and
health, antitrust, unfair competition, securities, tax or other Law, or under or pursuant to any
contract, agreement or other instrument.



     “Loan Documents” means this Agreement, the Term Loan Notes, the Lender Fee Letter, the
Agent Fee Letter, each Guaranty, each Term Loan Notice, and any other agreement executed, delivered
or performable by any Loan Party in connection herewith or as security for the Obligations.



     “Loan Parties” means, collectively, the Borrower and each Guarantor.



     “Material Adverse Effect” means any act or circumstance or event which (a) causes an
Event of Default or causes a Default which could reasonably be expected to become an Event of
Default, (b) otherwise is material and adverse to the consolidated financial condition or business
operations of the Borrower and its Subsidiaries and which could reasonably be expected to result in
a Default or an Event of Default, (c) in any manner whatsoever materially and adversely affects the
validity or enforceability of any of the Loan Documents in a manner that impairs the ability of the
Lenders to exercise their remedies under this Agreement or (d) impairs the ability of the Borrower
or any of its Subsidiaries to perform its obligations under any of the Loan Documents to which it
is a party.



     “Maturity Date” means (a) November 21, 2012, or (b) such earlier date upon which all
of the Outstanding Amount shall be due and payable in accordance with the terms hereof.



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is



11









 







obligated to make contributions, or during the preceding three calendar years, has made or
been obligated to make contributions.



     “Net Proceeds” means, with respect to the Disposition of any Asset (including Capital
Stock) by or of, or the issuance of Indebtedness to, any Person, the proceeds received by such
Person in connection with such transaction after deducting therefrom the aggregate, without
duplication, of the following amounts to the extent properly attributable to such transaction or to
any asset that may be the subject thereof: (i) reasonable brokerage commissions, legal fees,
finder’s fees, financial advisory fees, fees for solvency opinions, fairness opinions, accounting
fees, underwriting fees, investment banking fees, survey, title insurance, appraisals, notaries and
other similar commissions and fees and expenses, in each case, to the extent paid, payable or
reimbursed by such Person; (ii) filing, recording or registration fees or charges or similar fees
or charges paid by such Person; (iii) taxes paid or payable by such Person or any shareholder,
partner or member of such Person to governmental taxing authorities as a result of such sale or
other disposition (after taking into account any available tax credits or deductions or any tax
sharing arrangements to the extent actually utilized); and (iv) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the
Obligations) that is secured by a Lien on or otherwise related or attributable to the stock or
asset in question, to the extent required or permitted pursuant to the documentation evidencing
such Indebtedness. To the extent that any note is obtained in such Disposition, the proceeds
received in respect thereof shall be deemed to be the value of such note as determined in
accordance with GAAP. To the extent that any securities are obtained in any such sale, lease,
transfer or other disposition, the proceeds received in respect thereof shall be deemed to be the
fair market value of such securities as of the date of such disposition.



     “Note Agreements” means, collectively, (a) that certain Note Agreement dated as of
August 12, 2002, entered into by and between the Borrower and the “Purchasers” named therein, as
amended to the date of this Agreement and such other further amendments not otherwise prohibited by
Section 7.15 of the Incorporated Agreement; (b) that certain Note Agreement dated as of
December 28, 2005, entered into by and between the Borrower and the “Purchasers” named therein, as
amended to the date of this Agreement and such other further amendments not otherwise prohibited by
Section 7.15 of the Incorporated Agreement; and (c) that certain Note Agreement dated as of
December 19, 2006, entered into by and between the Borrower and the “Purchasers” named therein, as
amended to the date of this Agreement and such other further amendments not otherwise prohibited by
Section 7.15 of the Incorporated Agreement..



     “Notice” has the meaning set forth in Section 10.02(c) hereof.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising. Without limiting the generality of the foregoing,
“Obligations” includes all amounts which would be owed by any Loan Party or any other
Person (other than Administrative Agent or Lenders) to Administrative Agent, Lenders or any
Affiliate of a Lender under any Loan Document, but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving any
Loan Party or any other Person (including all such amounts which would become due or would be
secured but for the filing of



12









 







any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding of any other Loan Party or any other Person under any Debtor Relief Law).



     “Officer’s Certificate” means a certificate signed by the chief executive officer of
the Borrower substantially in the form of Exhibit E.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the
articles of formation and operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint venture or other applicable
agreement of formation and any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation with the secretary of state or other department in the state of
its formation, in each case as amended from time to time.



     “Other Taxes” has the meaning set forth in Section 3.01(b) hereof.



     “Outstanding Amount” means with respect to Term Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Term Loans occurring on such date.



     “Participant” has the meaning specified in Section 10.07(d) hereof.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.



     “Person” means any individual, trustee, corporation, general partnership, limited
partnership, limited liability company, joint stock company, trust, unincorporated organization,
bank, business association, firm, joint venture or Governmental Authority.



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or any ERISA Affiliate.



     “Prepayment Amount” means with respect to any principal of the Term Loan that is
prepaid, an amount equal to 1.00% of such principal amount.



     “Prime Rate” means, at any time, the rate of interest most recently announced within
Wells Fargo at its principal office in San Francisco as its Prime Rate, with the understanding that
Wells Fargo’s Prime Rate is one of its base rates and serves as the basis upon which effective
rates of interest are calculated for those loans making reference thereto, and is evidenced by the
recording thereof after its announcement in such internal publication or publications as Wells
Fargo may designate. Any change in such rate announced within Wells Fargo shall take effect on the
opening of business on the day such change is announced within Wells Fargo.



13









 





     “Pro Rata Share” means, with respect to each Lender, the percentage (carried out to
the ninth decimal place) of the Aggregate Term Commitments set forth opposite the name of such
Lender on Schedule 2.01, as such share may be adjusted as contemplated herein.



     “Property” means any investment in any kind of property or asset, whether real,
personal or mixed, tangible or intangible.



     “Quarterly Date” means the last Business Day of each March, June, September and
December during the term of this Agreement.



     “Receivables Facility Attributed Indebtedness” means the amount of obligations
outstanding under a receivables purchase facility on any date of determination that would be
characterized as principal if such facility were structured as a secured lending transaction other
than a purchase.



     “Redeemable Stock” means the portion of any Capital Stock of the Borrower or any of
its Subsidiaries which prior to the Maturity Date is or may be (a) unilaterally redeemable (by
seeking final or similar payments or otherwise) upon the occurrence of certain events or otherwise;
(b) redeemable at the option of the holder thereof or (c) convertible into Indebtedness.



     “Register” has the meaning set forth in Section 10.07(c) hereof.



     “Release Date” shall mean the date upon which all Obligations and all Interest Rate
Protection Obligations are paid in full and the Term Commitments are terminated.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Required Lenders” means, as of any date of determination, three or more Lenders whose
Voting Percentages aggregate more than 50%.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, corporate controller, treasurer, vice president of finance or corporate secretary of a
Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.



     “Solvent” means, with respect to any Person, that the fair value of the assets of such
Person (both at fair valuation and at present fair saleable value on a going concern basis) is, on
the date of determination, greater than the total amount of liabilities (including contingent and
unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is
able to pay all liabilities of such Person as such liabilities mature and such Person does not have
unreasonably small capital with which to carry on its business. In computing the amount of
contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount
which, in light of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability discounted to present
value at rates believed to be reasonable by such Person.



14









 





     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Borrower.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” has the meaning set forth in Section 3.01(a) hereof.



     “Term Loan” has the meaning specified in Section 2.01.



     “Term Loan Borrowing” means the borrowing of the Term Loans pursuant to
Section 2.01.



     “Term Loan Commitment” means, as to each Lender, its obligation to make a Term Loan to
the Borrower pursuant to Section 2.01 in an aggregate principal amount not to exceed the
amount set forth opposite such Term Lender’s name on Schedule 2.01 under the caption “Term
Loan Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



     “Term Loan Note” means a promissory note made by the Borrower in favor of a Lender
evidencing the Term Loan made by such Lender, substantially in the form of Exhibit C.



     “Term Loan Notice” means a notice of the Term Loan Borrowing or a change of Type of
the Term Loan, substantially in the form of Exhibit D.



     “Termination Value” means, in respect of any one or more Interest Rate Protection
Agreements, after taking into account the effect of any legally enforceable netting agreement
relating to such Interest Rate Protection Agreements, (a) for any date on or after the date such
Interest Rate Protection Agreements have been closed out and termination value(s) determined in
accordance therewith, such termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the mark-to-market value(s) for such Interest Rate
Protection Agreements, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Interest Rate Protection Agreements (which may
include any Lender).



     “Type” means with respect to a Term Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets,



15









 







determined in accordance with the assumptions used for funding the Pension Plan pursuant to
Section 412 of the Code for the applicable plan year.



     “Voting Percentage” means, as to any Lender, (a) at any time when the Term Commitments
are in effect, such Lender’s Pro Rata Share and (b) at any time after the termination of the Term
Commitments, the percentage (carried out to the ninth decimal place) which (i) the Outstanding
Amount of such Lender’s Term Loan then constitutes of (ii) the Outstanding Amount of all Term
Loans; provided, however, that if any Lender has failed to fund any portion of its
Term Loan required to be funded by it hereunder, such Lender’s Voting Percentage shall be deemed to
be zero, and the respective Pro Rata Shares and Voting Percentages of the other Lenders shall be
recomputed for purposes of this definition and the definition of “Required Lenders” without
regard to such failing Lender’s Term Commitment or the Outstanding Amount of its Term Loan.



     “Voting Shares” of any Person means any class or classes of Capital Stock having
ordinary voting power for the election of at least a majority of the members of the Board of
Directors (or other governing bodies) of such Person, other than Capital Stock having such power by
reason of the happening of a contingency.



     “Wells Fargo” means Wells Fargo Bank, National Association.



     1.02 Other Interpretive Provisions.



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.




(b) (i) The words “herein” and “hereunder” and words of similar import when used in any
Loan Document shall refer to such Loan Document as a whole and not to any particular
provision thereof.




     (ii) Unless otherwise specified herein, Article, Section, Exhibit and Schedule
references are to this Agreement.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced.



     (c) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including.”



     (d) Section headings herein and the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     (e) Except as otherwise provided herein, for the calculation of all covenants and other
provisions contained herein, any amounts included in such calculation which are not Dollars



16









 







shall be calculated according to its Dollar Equivalent on the date of such calculation in
accordance with GAAP.



     1.03 Accounting Terms. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 References to Agreements and Laws. Unless otherwise expressly provided herein,
(a) references to agreements (including the Loan Documents) and other contractual instruments shall
be deemed to include all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and (b) references to
any Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.



ARTICLE II.

THE TERM LOAN




     2.01 The Term Loan. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make a single loan to the Borrower on the Closing Date in an amount not to
exceed such Lender’s Term Loan Commitment (the “Term Loans”). The Term Loan Borrowing
shall consist of Term Loans made simultaneously by the Lenders in accordance with the preceding
sentence. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be
reborrowed. Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.



     2.02 Borrowings, Conversions and Continuations of Term Loans.



     (a) The Term Loan Borrowing, each conversion of Term Loans from one Type to the other, and
each continuation of Term Loans as the same Type shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent, which may be given by telephone or electronic mail. Each such
notice must be received by the Administrative Agent not later than 12:00 noon, Dallas, Texas time
(i) two Business Days prior to the requested date of the Term Loan Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans, and (ii) one Business Day prior to the requested date of the Term Loan Borrowing of Base
Rate Loans. Each such telephonic notice or electronic mail must be confirmed promptly by delivery
to the Administrative Agent of a written Term Loan Notice appropriately completed and signed by a
Responsible Officer of the Borrower. The Term Loan Borrowing of, and each conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $100,000 in excess thereof. The Term



17









 







Loan Borrowing of and each conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Term Loan Notice (whether
telephonic, electronic or written), shall specify (i) whether the Borrower is requesting the Term
Loan Borrowing, a conversion of Term Loans from one Type to the other, or a continuation of Term
Loans as the same Type, (ii) the requested date of the Term Loan Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of the
Term Loan Borrowing or Term Loans to be converted or continued, (iv) the Type of the Term Loan
Borrowing or Term Loans to be converted or continued, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of Term Loan in a
Term Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Term Loans shall be made or continued as, or converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests the Term Loan Borrowing of, conversion to, or continuation of Eurodollar Rate
Loans in any such Term Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.



     (b) Following receipt of the Term Loan Notice for the Term Loan Borrowing, the Administrative
Agent shall promptly notify each Lender of its Pro Rata Share of the Term Loan. Following receipt
of a Term Loan Notice related to the continuation or conversion of a Term Loan, the Administrative
Lender shall promptly notify each Lender of the details of such continuation or conversion, and if
no timely notice of a conversion or continuation is provided by the Borrower, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. Each Lender shall make the amount of its Term Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 2:00 p.m., Dallas, Texas time, on the Business Day specified in the
applicable Term Loan Notice. Upon satisfaction of the applicable conditions set forth in
Sections 4.01 and 4.02 hereof, the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the Administrative Agent either by
(i) crediting the account of the Borrower on the books of the Administrative Agent with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to the Administrative Agent by the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default or Event of Default, no Term Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders, and during the existence of an
Event of Default, the Required Lenders may demand that any or all of the then outstanding
Eurodollar Rate Loans be converted immediately to Base Rate Loans.



     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Eurodollar Rate Loan upon determination of such interest rate. The
determination of the Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error.



     (e) After giving effect to the Term Loan Borrowing, all conversions of Term Loans from one
Type to the other, and all continuations of Term Loans as the same Type, there shall not be more
than one Interest Period in effect with respect to all Term Loans.



18









 





     2.03 Termination of Term Loan Commitments. The Aggregate Term Loan Commitments shall be
automatically and permanently reduced to zero on the date of the Term Loan Borrowing.



     2.04 Repayment of Term Loans. The Borrower shall repay to the Lenders the aggregate principal
amount of all Term Loans outstanding on the following dates in the respective amounts set forth
opposite such dates:



	 	 	 	 	 
	Date	 	Amount
	Each Quarterly Date on and after
March 31, 2010

	 	$	3,040,000	 
	 
	 	 	 	 
	Maturity Date

	 	The outstanding aggregate principal
amount of all Term Loans







     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Term Loans in whole or in part; provided that (i) such notice must
be received by the Administrative Agent not later than 12:00 noon, Dallas, Texas time, (A) two
Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (B) one Business Day
prior to the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof; and
(iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Term Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any voluntary or mandatory prepayment of a Term Loan shall be accompanied by (a) all accrued
interest thereon, (b) any additional amounts required pursuant to Section 3.05 hereof, and
(c) if such prepayment occurs on or prior to November 20, 2009, and subject to
Section 10.10, the Prepayment Amount with respect to the amount of the Term Loan prepaid.
Each such prepayment shall be applied to the Term Loans of the Lenders in accordance with their
respective Pro Rata Shares. Any mandatory prepayment required pursuant to Section 2.05(b)
hereof shall not be subject to any notice or minimum payment provisions of this


Section 2.05(a).



     (b) Within 10 Business Days of the receipt of Net Proceeds from the Disposition by the
Borrower or any of its Subsidiaries of any Assets other than any Dispositions permitted under
clauses (a) through (e) of Section 7.05 of the Incorporated Agreement, and clause (f) of
Section 7.05 of the Incorporated Agreement to the extent that a prepayment under this
Section 2.05(b) is not required, the Borrower shall prepay Term Loans in an aggregate
principal amount equal to 25% of such Net Proceeds. Each such mandatory prepayment shall be made
and applied as provided in Section 2.05(a) hereof.



19









 





     2.06 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the lesser of (y) the Highest Lawful Rate and (z) the Eurodollar Rate for such
Interest Period plus the Applicable Rate for Eurodollar Rate Loans; and (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the lesser of (y) the Highest Lawful Rate and (z) the Base Rate plus
the Applicable Rate for Base Rate Loans.



     (b) Upon the request of the Required Lenders, while any Event of Default exists or after
acceleration, the Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the lesser of (y) the
Highest Lawful Rate and (z) the Default Rate, to the fullest extent permitted by Applicable Law.
Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.



     (c) Interest on the Term Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law.



     2.07 Fees. The Borrower shall pay to the Administrative Agent for the Administrative Agent’s
own account, the fees in the amounts and at the times specified in the letter agreement, dated
November 21, 2008, between the Borrower and Wells Fargo (the “Agent Fee Letter”). The
Borrower shall pay to the Administrative Agent for the account of each of the Lenders, the fees in
the amounts and at the times specified in the letter agreement, dated November 21, 2008, between
the Borrower, the Lenders and Wells Fargo (the “Lender Fee Letter”). Subject to
Section 10.10, such fees shall be fully earned when paid and shall be nonrefundable for any
reason whatsoever.



     2.08 Computation of Interest and Fees. Subject to Section 10.10 hereof, computation
of interest on Eurodollar Rate Loans shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed. Computation of all other types of interest and all fees shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and the actual number of
days elapsed. Interest shall accrue on each Term Loan for the day on which the Term Loan is made,
and shall not accrue on such Term Loan, or any portion thereof, for the day on which the Term Loan
or such portion is paid, provided that any Term Loan that is repaid on the same day on which it is
made shall bear interest for one day.



     2.09 Evidence of Debt. The Term Loan made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Term Loan made by the Lenders to the
Borrower and the interest and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Term Loans. In the event of



20









 







any conflict between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and records of such
Lender shall control. Upon the request of any Lender made through the Administrative Agent, such
Lender’s Term Loan may be evidenced by a Term Loan Note in addition to such accounts or records.
Each Lender may attach schedules to its Term Loan Note and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Term Loan and payments with respect thereto.



     2.10 Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m., Dallas, Texas time, on the
date specified herein. The Administrative Agent will promptly, and in any event within the same
business day, distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
All payments received by the Administrative Agent after 2:00 p.m., Dallas, Texas time, shall be
deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. The Borrower authorizes the Administrative Agent to charge the account of the
Borrower maintained with Wells Fargo (as of the Closing Date, such account is number #4761053503)
for each payment of principal, interest and fees as it becomes due hereunder.



     (b) Subject to the definition of “Interest Period,” if any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.



     (c) If, at any time after an Event of Default (but prior to (A) the exercise of remedies
provided for in Section 8.02 or (B) the Term Loans becoming automatically due and payable),
insufficient funds under this Agreement are received by and available to the Administrative Agent
to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be
applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable
under Article III) incurred by the Administrative Agent and each Lender in respect of this
Agreement, (ii) second, toward repayment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (iii) third, toward repayment of principal then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal then due to such
parties.



     (d) Unless the Borrower or any Lender has notified the Administrative Agent prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower
or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:



21









 






     (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds, at the Federal Funds Rate from time to time in effect;
and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
Federal Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Term Loan included in
the Term Loan Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefore, the Administrative Agent may make a demand
therefore upon the Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the Term Loan. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Term Loan Commitment or to prejudice
any rights which the Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.


A notice of the Administrative Agent to any Lender with respect to any amount owing under this
subsection (d) shall be conclusive, absent manifest error.




     (e) If any Lender makes available to the Administrative Agent funds for any Term Loan to be
made by such Lender as provided in the foregoing provisions of this Article II, and the
conditions to the Term Loan Borrowing set forth in Article IV are not satisfied or waived
in accordance with the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.



     (f) The obligations of the Lenders hereunder to make its Term Loan are several and not joint.
The failure of any Lender to make its Term Loan on the date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Term Loan.



     (g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Term
Loan in any particular place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for its Term Loan in any particular place or manner.



     2.11 Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of its Term Loan any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent
of such fact, and (b) purchase from the other Lenders such participations



22









 







in the Term Loans made by them as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Term Loan pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each other Lender shall
repay to the purchasing Lender the purchase price paid therefore, together with an amount equal to
such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying
Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a participation from
another Lender may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09 hereof with respect to such
participation) as fully as if such Lender were the direct creditor of the Borrower in the amount of
such participation. The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this Section and will
in each case notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such purchase have the
right to give all notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Any and all payments by the Borrower to or for the account of the Administrative Agent or
any Lender under any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto, excluding, in the case
of the Administrative Agent and each Lender, taxes imposed on or measured by its net income, and
franchise taxes imposed on it by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office or any other jurisdictions in which the Administrative Agent or such
Lender transacts business (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to
as “Taxes”). If the Borrower shall be required by any Laws to deduct any Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender,
(i) the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section), the Administrative
Agent and such Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority in accordance with
applicable Laws, and (iv) within 30 days after the date of such payment, the Borrower shall furnish
to the Administrative Agent (which shall forward the same to such Lender) the original or a
certified copy of a receipt evidencing payment thereof.



     (b) In addition, the Borrower agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which



23









 







arise from any payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as “Other Taxes”).



     (c) If the Borrower shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, the
Borrower shall also pay to the Administrative Agent (for the account of such Lender) or to such
Lender, at the time interest on the Obligations is paid, such additional amount that such Lender
specifies as reasonably necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have received if such Taxes
or Other Taxes had not been imposed, with the computation of such additional amount to be set forth
in writing, certified by such Lender, and delivered to the Borrower.



     (d) The Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01(c) hereof and (iii) any liability
(including penalties, interest and expenses) arising therefrom or with respect thereto, in each
case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand therefore.



     (e) Each Lender (and the Administrative Agent with respect to payments to the Administrative
Agent for its own account) agrees that (i) it will take all reasonable actions by all usual means
to maintain all exemptions, if any, available to it from United States withholding taxes (whether
available by treaty, existing administrative waiver, or by virtue of the location of any Lender’s
Lending Office) and (ii) otherwise cooperate with the Borrower to minimize amounts payable by the
Borrower under this Section 3.01; provided, however, the Lenders and the
Administrative Agent shall not be obligated by reason of this Section 3.01(e) to contest
the payment of any Taxes or Other Taxes or to disclose any information regarding its tax affairs or
tax computation or reorder its tax or other affairs or tax or other planning. Subject to the
foregoing, to the extent the Borrower pays sums pursuant to this Section 3.01 and the
Lender or the Administrative Agent receives a refund of any or all of such sums, such refund shall
be applied to reduce any amounts then due and owing under this Agreement or, to the extent that no
amounts are due and owing under this Agreement at the time such refunds are received, the party
receiving such refund shall promptly pay over all such refunded sums to the Borrower, provided no
Default or Event of Default is in existence at such time.



     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Eurodollar Rate Loans, or materially restricts the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the applicable offshore Dollar
market, or to determine or charge interest rates based upon the Eurodollar Rate, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that
the circumstances giving rise to such determination no longer exist.



24









 




Upon receipt of such notice, with the computation of such additional amount to be set forth in
writing, certified by such Lender, and delivered to the Borrower, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period thereof, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans. Upon any such prepayment or conversion, the Borrower shall also pay interest then accrued
on the amount so prepaid or converted. Each Lender agrees to designate a different Lending Office
if such designation will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.




     3.03 Inability to Determine Rates. If the Administrative Agent determines in connection with
any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the applicable offshore Dollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Rate for such Eurodollar Rate Loan, or (c) the Eurodollar Rate
for such Eurodollar Rate Loan does not adequately and fairly reflect the cost to the Lenders of
funding such Eurodollar Rate Loan, the Administrative Agent will promptly notify the Borrower and
all Lenders. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans
shall be suspended until the Administrative Agent revokes such notice. Upon receipt of such
notice, the Borrower may revoke any pending request for the Term Loan Borrowing or any request for
a conversion or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for the Term Loan Borrowing of Base Rate Loans in the amount
specified therein, provided that the Borrower shall not be liable for any Consequential Loss in
connection with any such deemed conversion.



     3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.



     (a) If any Lender determines that as a result of the introduction of or any change in or in
the interpretation of any Law, or such Lender’s compliance therewith, there shall be any increase
in the cost to such Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the
amount received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount resulting from
(i) Taxes or Other Taxes (as to which Section 3.01 hereof shall govern), (ii) changes in
the basis of taxation of overall net income or overall gross income by the United States or any
foreign jurisdiction or any political subdivision of either thereof under the Laws of which such
Lender is organized or has its Lending Office, and (iii) reserve requirements contemplated by
Section 3.04(c) hereof), then from time to time upon demand of such Lender (with a copy of
such demand to the Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction, with the computation
of such additional amount to be set forth in writing, certified by such Lender, and delivered to
the Borrower. The affected Lender will as soon as practicable notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section and designate a different



25









 







Lending Office if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the good faith judgment of such Lender, be materially disadvantageous
to such Lender.



     (b) If any Lender determines that the introduction of any Law regarding capital adequacy or
any change therein or in the interpretation thereof, or compliance by such Lender (or its Lending
Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or
any corporation controlling such Lender with respect to this Agreement as a consequence of such
Lender’s obligations hereunder (taking into consideration its policies with respect to capital
adequacy and such Lender’s desired return on capital), then from time to time upon demand of such
Lender, with the computation of such additional amount to be set forth in writing, certified by
such Lender, and delivered to the Borrower (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such
Lender for such reduction.



     (c) The Borrower shall pay to each Lender, as long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional costs on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Term Loan by such Lender (as
determined by such Lender in good faith, which determination shall be controlling, in absence of
error), which shall be due and payable on each date on which interest is payable on such Term Loan,
provided the Borrower shall have received at least 15 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender, with the computation of
such additional amount to be set forth in writing, certified by such Lender, and delivered to the
Borrower. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 15 days from receipt of such notice.



     (d) Notwithstanding anything to the contrary in this Section 3.04, the Borrower shall
not be liable with respect to any amounts that were incurred or accrued more than (90) days prior
to the date of the sending of the notice to the Borrower under subsection (a), (b) or (c) of this
Section 3.04, as the case may be.



     3.05 Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Borrower shall promptly compensate such Lender for the Consequential Loss
incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on a day
other than the last day of the Interest Period for such Eurodollar Rate Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make
its Term Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefore as a result of a request by the Borrower pursuant to Section 10.16 hereof.



26









 




For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Rate for such Term Loan by a matching deposit or other borrowing in the
applicable offshore Dollar interbank market for a comparable amount and for a comparable period,
whether or not such Eurodollar Rate Loan was in fact so funded.




     3.06 Matters Applicable to all Requests for Compensation.



     (a) A certificate of the Administrative Agent or any Lender claiming compensation under this
Article III and setting forth the additional amount or amounts to be paid to it hereunder
and the detailed computation of such amount or amounts shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.



     (b) Upon any Lender’s making a claim for compensation under Section 3.01, 3.02
or 3.04 hereof, the Borrower may remove or replace such Lender in accordance with
Section 10.16 hereof.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Term Commitments and payment in full of all the other Obligations.



ARTICLE IV.

CONDITIONS PRECEDENT TO TERM LOAN BORROWING




     4.01 Conditions of Term Loan Borrowing. The obligation of each Lender to make its Term Loan
as provided in Section 2.01 is subject to satisfaction of the following conditions
precedent:



     (a) Unless waived by all the Lenders (or by the Administrative Agent with respect to
immaterial matters or items specified in clause (iv) or (v) below with respect to which the
Borrower has given assurances satisfactory to the Administrative Agent that such items shall be
delivered promptly following the Closing Date), the Administrative Agent’s receipt of the
following, each of which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party,
each dated the Closing Date (or, in the case of certificates of governmental officials, a recent
date before the Closing Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and its legal counsel:




     (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




     (ii) Term Loan Notes executed by the Borrower in favor of each Lender, each in a
principal amount equal to such Lender’s Term Loan Commitment;




     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require to establish the identities of and verify the authority and capacity of



27









 







each Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan Party is a
party;




     (iv) such evidence as the Administrative Agent may reasonably require to verify that
each Loan Party is duly organized or formed, validly existing, in good standing and
qualified to engage in business in each jurisdiction in which it is required to be qualified
to engage in business, including certified copies of each Loan Party’s Organization
Documents, certificates of good standing and/or qualification to engage in business and tax
clearance certificates;




     (v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) hereof have been
satisfied, and (B) that there has been no event or circumstance since the date of the
Audited Financial Statements which has or could be reasonably expected to have a Material
Adverse Effect;




     (vi) opinions of counsel to each Loan Party in form and substance reasonably
satisfactory to the Administrative Agent;




     (vii) evidence that any Indebtedness not otherwise permitted hereunder has been or
concurrently with the Closing Date is being terminated and all obligations thereunder have
been or concurrently with the Closing Date are being paid in full;




     (viii) a copy of all Creazione Acquisition Documents, certified as complete and correct
by a Responsible Officer of the Borrower and of Cash America of Mexico, Inc.;




     (ix) evidence reasonably satisfactory to the Administrative Agent that all necessary
consents have been obtained from and all necessary notice filings have been made with all
Governmental Authorities related to the transactions the subject of the Creazione
Acquisition Documents;




     (x) the Officer’s Certificate executed by the chief executive officer of the Borrower;
and




     (xi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent or the Required Lenders reasonably may require.



     (b) All fees under the Agent Fee Letter required to be paid on or before the Closing Date
shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs
of the Administrative Agent to the extent invoiced at least two days prior to the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).



     (d) The Closing Date shall have occurred on or before January 31, 2009.



28









 





     4.02 Conditions to Term Loan Borrowing and all Conversions and Continuations. The obligation
of each Lender to make its Term Loan as provided in Section 2.01 and to honor any request
for the continuation of or conversion to a Eurodollar Rate Loan is subject to the following
conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V, or
which are contained in any document furnished at any time under or in connection herewith, shall be
true and correct on and as of the date of the Term Loan Borrowing or such continuation or
conversion, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier date, and except for
purposes of this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 hereof shall be deemed to refer to the most recent
financial statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 of the Incorporated Agreement.



     (b) No Default or Event of Default shall exist, or would result from the Term Loan Borrowing
or such continuation or conversion.



     (c) After giving effect to the Term Loan Borrowing, the aggregate amount of outstanding
Indebtedness of the Borrower and its Subsidiaries is permitted under the Note Agreements.



     (d) The Administrative Agent shall have received a Term Loan Notice in accordance with the
requirements hereof.


Each Term Loan Notice submitted by the Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.02(a) and (b) hereof have been
satisfied on and as of the date of the Term Loan Borrowing, continuation or conversion, as
applicable.




ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party (a) is a
corporation, partnership or limited liability company duly organized or formed, validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or organization,
(b) has all requisite power and authority and all governmental licenses, authorizations, consents
and approvals necessary to (i) own its assets, carry on its business and (ii) execute, deliver, and
perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and
is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such qualification or license, and
(d) is in compliance with all Laws (including, without limitation, all federal and state
registrations required by any anti-money laundering Laws), except in each case referred to in
clause (b)(i), (c) or this clause (d), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.



29









 





     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the
terms of any of such Person’s Organization Documents; (b) materially conflict with or result in any
breach or contravention of, or the creation of any Lien under, any material Contractual Obligation
to which such Person is a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject; or (c) violate any Law.



     5.03 Governmental Authorization. No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or enforcement against, any Loan Party
of this Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject as to enforcement of remedies to (a) any Debtor
Relief Laws and (b) general principles of equity, whether applied by a court of law or equity.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of
the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness in accordance with GAAP consistently applied throughout the period
covered thereby.



     (b) Since the date of the Audited Financial Statements, there has been no event or
circumstance that has or could reasonably be expected to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against
any of their properties or revenues which (a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby, or (b) individually or
collectively, could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Neither the Borrower nor any Subsidiary is in default under or with respect
to any Contractual Obligation which in the Borrower’s reasonable judgment would have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing or



30









 







would result from the consummation of the transactions contemplated by this Agreement or any
other Loan Document.



     5.08 Ownership of Property; Liens. The Borrower and each Subsidiary has good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title as would not,
individually or in the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of the Borrower and its Subsidiaries will be subject to no Liens, other than Permitted
Liens (as defined in the Incorporated Agreement).



     5.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has reasonably
concluded that such Environmental Laws and claims would not, individually or in the aggregate, have
a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
reputable national insurance companies, not Affiliates of the Borrower, in such amounts (after
giving effect to any self-insurance compatible with the following standards), with such deductibles
and covering such risks as are customarily carried by companies of similar financial condition and
strength engaged in similar businesses and owning similar properties in localities where the
Borrower or its Subsidiaries operate.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification. The Borrower and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has been made with respect
to any Plan. Each Foreign Plan is in compliance with applicable laws of any applicable foreign
jurisdictions, except to the extent that failure to do so could not reasonably be expected to have
a Material Adverse Effect.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan



31









 







that could be reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could be reasonably expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would
result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could
be subject to Sections 4069 or 4212(c) of ERISA.



     5.13 Subsidiaries. As of the Closing Date, the Borrower has no Subsidiaries other than those
specifically disclosed in Schedule 1.01 and has no equity investments in any other
corporation or entity other than those specifically disclosed in Schedule 5.13.



     5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board), or extending credit for the purpose of purchasing or carrying
margin stock.



     (b) None of the Borrower, any Person controlling the Borrower, or any Subsidiary (i) is a
“holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 2005, or (ii) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.



     5.15 No Financing of Corporate Takeovers. No proceeds of the Term Loan will be used (a) to
acquire any security in any transaction which is subject to Section 13 or 14 of the Exchange Act,
including particularly (but without limitation) Sections 13(d) and 14(d) thereof, or (b) for any
purpose other than to provide a portion of the cash consideration payable by the Borrower pursuant
to the Creazione Acquisition Agreement and for other general corporate purposes of the Borrower.



     5.16 Insider. The Borrower is not, and no Person having “control” (as that term is defined in
12 U.S.C. § 375(b)(5) or in regulations promulgated pursuant thereto) of the Borrower is, an
“executive officer”, “director”, or “person who directly or indirectly or in concert with one or
more persons owns, controls, or has the power to vote more than 10% of any class of voting
securities” (as those terms are defined in 12 U.S.C. §375(b) or in regulations promulgated pursuant
thereto) of any Lender, of a bank holding company of which any Lender is a subsidiary, or of any
bank at which any Lender maintains a correspondent account.



32









 





     5.17 Disclosure. No statement, information, report, representation, or warranty made by any
Loan Party in any Loan Document or furnished to the Administrative Agent or any Lender by or on
behalf of any Loan Party in connection with any Loan Document contains any untrue statement of a
material fact or omits any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made and at the time at
which they were made, not misleading. There is no fact (excluding economic conditions not peculiar
to the Borrower or any Subsidiary) known to the Borrower or any of its Subsidiaries and not known
to the public generally which materially adversely affects its assets or in the future may
reasonably be expected to (so far as the Borrower or any of its Subsidiaries can now foresee)
result in a Material Adverse Effect, which has not been disclosed to the Administrative Agent and
the Lenders by or on behalf of the Borrower or any of its Subsidiaries prior to the Closing Date in
connection with the transactions contemplated hereby.



     5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other rights that are reasonably necessary for the operation of
their respective businesses, without conflict with the rights of any other Person, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.



     5.19 Businesses. The Borrower is presently engaged directly or through wholly-owned
Subsidiaries in (a) the pawn shop business, (b) the business of cashing checks and conducting
related cash dispensing transactions, (c) the business of making and collecting short term consumer
loans, (d) the business of offering money order, wire transfer and pre-paid card related services
to its customers and (e) other activities related to short term consumer financing and general
consumer financial services.



     5.20 Common Enterprise. The Borrower and its Subsidiaries are engaged in the businesses set
forth in Section 5.19 hereof as of the Closing Date, as well as in certain other
businesses. These operations require financing on a basis such that the credit supplied can be
made available from time to time to the Borrower and various of its Subsidiaries, as required for
the continued successful operation of the Borrower and its Subsidiaries as a whole. The Borrower
has requested the Lender to make credit available hereunder primarily for the purposes of financing
the operations of the Borrower and its Subsidiaries. The Borrower and each of its Subsidiaries
expects to derive benefit (and the Board of Directors of the Borrower and each of its Subsidiaries
has determined that such Subsidiary may reasonably be expected to derive benefit), directly or
indirectly, from the credit extended by the Lenders hereunder, both in its separate capacity and as
a member of the group of companies, since the successful operation and condition of the Borrower
and each of its Subsidiaries is dependent on the continued successful performance of the functions
of the group as a whole.



     5.21 Solvent. The Borrower is, and the Borrower and its Subsidiaries are on a consolidated
basis, Solvent.



     5.22 Creazione Acquisition. With respect to each of the Creazione Acquisition Documents,
(a) all representations (other than representations described in clause (b)) made by each
party in the Creazione Acquisition Documents are complete, true and correct in all material
respects as of the Creazione Effective Time; (b) the Borrower has no reason to believe that the
representations made by any Person (other than Borrower or a Subsidiary of the Borrower) in the



33









 







Creazione Acquisition Documents as to the Financial Statements of Creazione and its
Subsidiaries are not true and correct in all material respects as of the Creazione Effective Time;
(c) the execution and delivery by each party thereto of the Creazione Acquisition Documents and the
consummation of the transactions therein contemplated or the compliance with the provisions thereof
will not violate any Law, order, writ, judgment, injunction, decree or award binding on any party
thereto or any of its Subsidiaries or any Person controlling such party or Subsidiary or any of the
provisions of the Organizational Documents of any party thereto or any of its Subsidiaries or any
of the provisions of any indenture, agreement, document, instrument or undertaking to which any
party thereto or any of its Subsidiaries is a party or subject, or by which any party thereto or
any of its Subsidiaries or any property of or any of its Subsidiaries is bound, or conflict with or
constitute a default thereunder, except, in each case to the extent such violation, conflict or
default could not reasonably be likely to result in a Material Adverse Effect, or result in the
creation or imposition of any Lien on any property of Borrower or any Subsidiary; (d) no material
order, consent, approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any or Governmental Authority, or any other Person is required
to authorize, or is required in connection with, the execution, delivery or performance of, or the
legality, validity, binding effect or enforceability of, any of the Creazione Acquisition
Documents, except those which have already been obtained or given or will be obtained prior to the
Creazione Effective Time; and (e) all conditions to effectiveness of the Creazione Acquisition
Agreement and consummation of the transactions the subject thereof have been satisfied or waived or
will be satisfied or waived prior to the Creazione Effective Time. All conditions precedent to the
Creazione Acquisition set forth in the Creazione Acquisition Agreement (other than payment of the
purchase price) have occurred or will have occurred or been waived prior to the Creazione Effective
Time. No Creazione Acquisition Document has been amended or restated, unless the amendment or
restatement has been provided to the Administrative Agent. Neither the Borrower nor Cash America
of Mexico, Inc. has defaulted under any Creazione Acquisition Document and no default exists under
any Creazione Acquisition Document as of the date hereof. Upon payment of the purchase price, as
provided in the Creazione Acquisition Agreement, the equity interests will be transferred to Cash
America of Mexico, Inc. free and clear of all Liens, claims, encumbrances and other interests.
There are no agreements between or among any of Borrower, any Loan Party, any holder of any equity
interest of Creazione and any other Person, and their respective Affiliates, related to the subject
matter of the Creazione Acquisition Agreement not contained in the documents copies of which have
been delivered to the Administrative Agent. All material terminations or expirations of waiting
periods imposed by any Governmental Authority necessary for the transactions contemplated under the
Creazione Acquisition Agreement, if any, have occurred or will have occurred prior to the Creazione
Effective Time.



ARTICLE VI.

COVENANTS




     So long as any Lender shall have any Term Commitment hereunder or any Term Loan or other
Obligation shall remain unpaid or unsatisfied, the Borrower shall comply with all the covenants and
agreements applicable to it contained in Article VI (Affirmative Covenants) and
Article VII (Negative Covenants) of the Incorporated Agreement. The covenants and
agreements of the Borrower referred to in the preceding sentence (including all exhibits,



34









 







schedules and defined terms referred to therein) are hereby incorporated herein by reference
as if set forth in full herein with appropriate substitutions, including the following:



     (a) all references to “this Agreement” shall be deemed to be references to this Agreement; and



     (b) all references to “Default” and “Event of Default” shall be deemed to be references to a
Default and an Event of Default, respectively.


All such covenants and agreements so incorporated herein by reference shall survive any
termination, cancellation, discharge or replacement of the Incorporated Agreement.



Any financial statements, certificates or other documents received by the Administrative Agent
under the Incorporated Agreement shall be deemed delivered hereunder.




ARTICLE VII.

[INTENTIONALLY OMITTED]



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) The Borrower fails to pay when due (i) any principal of, or interest on the Term Loan or
(ii) any fee, expense, reimbursement obligation or any other amount due in connection herewith or
with any other Loan Document, and such failure with respect to clause (ii) shall have continued for
three (3) Business Days after receipt by the Borrower from the Administrative Agent of notice of
such failure with respect to the Term Loan or other Obligation; or



     (b) Any representation or warranty made under this agreement, or any of the other Loan Papers,
or in any certificate or statement furnished or made to the Lenders pursuant hereto or in
connection herewith or with the Term Loan hereunder, shall prove to be untrue or inaccurate in any
material respect as of the date on which such representation or warranty is made; or



     (c) The Borrower fails to comply with any covenant or agreement incorporated herein by
reference pursuant to Article VI above, subject to any applicable grace period, materiality
or dollar threshold, and/or notice requirement set forth in Section 8.01 of the
Incorporated Agreement (it being understood and agreed that any such notice requirement shall be
met by the Lender’s giving the applicable notice to the Borrower hereunder) but without giving
effect to any waiver or amendment of the Incorporated Agreement; or



     (d) The Borrower or any Subsidiary shall fail to perform or observe any other term or covenant
contained herein or in any of the Loan Documents (other than those specified in subsection (a), or
(c) above), on its part to be performed or observed and such failure shall not be remedied within
thirty (30) days following the earlier of knowledge thereof by the Borrower or any Subsidiary or
written notice by the Administrative Agent to the Borrower; or



35









 





     (e) (i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or any Guaranty Obligation (other than Indebtedness hereunder and Indebtedness under
Interest Rate Protection Agreements) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $2,500,000, or (B) fails to observe or perform 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 occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of any Guaranty Obligation with respect to such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased or redeemed (automatically or otherwise) or such Guaranty Obligation to become payable
or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Interest Rate
Protection Agreement an Early Termination Date (as defined in such Interest Rate Protection
Agreement) resulting from (A) any event of default (or, if such Interest Rate Protection Agreement
is a forward gold transaction, any event of default which has not been cured within five (5) days
after the occurrence of such event of default) under such Interest Rate Protection Agreement as to
which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Interest Rate
Protection Agreement) or (B) any Termination Event (as so defined) under such Interest Rate
Protection Agreement as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than $1,000,000; or



     (f) Any material portion of any Loan Document shall cease to be legal, valid, binding
agreements enforceable against any party executing the same in accordance with the respective terms
thereof or shall in any way be terminated or become or be declared ineffective or inoperative or
shall in any way whatsoever cease to give or provide the respective rights, remedies, powers or
privileges intended to be created hereby; or



     (g) The Borrower or any Subsidiary institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its property; or



     (h) Any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of the Borrower or any Subsidiary, or any
proceeding under any Debtor Relief Law relating to the Borrower or any Subsidiary, or to all or any
part of its property is instituted without the consent of such Person, and such appointment or
proceeding shall remain undismissed and unstayed for a period of 60 consecutive days; or



     (i) (i) The Borrower or any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material part of the property
of any such Person and is not released, vacated or fully bonded within 30 days after its issue or
levy; or



36









 





     (j) There is entered against the Borrower or any Subsidiary a final judgment or order for the
payment of money in an aggregate amount exceeding $2,500,000, and such judgment shall not be
satisfied, discharged or stayed (with sufficient reserves having been set aside by the Borrower or
such Subsidiary to pay such judgment) at least ten (10) days prior to the date on which any of its
assets could be lawfully sold to satisfy such judgment; or



     (k) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of the Borrower under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$2,500,000, (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $2,500,000 or
(iii) any Foreign Plan shall be terminated or the Borrower or any Foreign Subsidiary shall become
obligated to pay any obligation with respect to any Foreign Plan which in either case could
reasonably be expected to have a Material Adverse Effect; or



     (l) A Change of Control of the Borrower shall have occurred; or



     (m) There shall occur any event which, in the reasonable opinion of the Required Lenders, will
have a Material Adverse Effect.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,



     (a) declare the Term Loan Commitment of each Lender to be terminated, whereupon such Term Loan
Commitments shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Term Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Borrower; and



     (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable Law;


provided, however, that upon the occurrence of any event specified in
subsections (g) or (h) of Section 8.01 hereof, the obligation of each Lender to make its
Term Loan shall automatically terminate and the unpaid principal amount of all outstanding Term
Loans and all interest and other amounts as aforesaid shall automatically become due and payable,
in each case without further act of the Administrative Agent or any Lender.




     8.03 Application of Proceeds. After the exercise of remedies provided for in
Section 8.02 (or after the Term Loans have automatically become immediately due and payable
as set forth in the proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following order:



37









 






     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;




     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III), ratably among them
in proportion to the amounts described in this clause Second payable to them;




     Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Term Loans, ratably among the Lenders in proportion to the respective
amounts described in this clause Third payable to them;




     Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Term Loans in proportion to the respective amounts described in this clause
Fourth held by them;




     Fifth, to payment of Interest Rate Protection Obligations, ratably among the
Guarantied Parties (as defined in the Guaranty) in proportion to the respective amounts
described in this clause Fifth held by them; and




     Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by Law.



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authorization of Administrative Agent. Each Lender hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, 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. Without limiting the generality of the foregoing
sentence, the use of the term “agent” herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such term is used merely
as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.



     9.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel (including counsel to any Loan Party)



38









 







and other consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.



     9.03 Liability of Administrative Agent. No Agent-Related Person shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct in connection with its duties expressly set forth herein), or
(b) be responsible in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof, contained herein or in
any other Loan Document, or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure of any Loan Party
or any other party to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant 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 or any Affiliate thereof.



     9.04 Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, electronic mail, telex or telephone message,
statement 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 any Loan Party), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
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 or any other Loan Document in accordance with a request or consent of the
Required Lenders or all the Lenders, if required hereunder, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and participants. Where
this Agreement expressly permits or prohibits an action unless the Required Lenders otherwise
determine, the Administrative Agent shall, and in all other instances, the Administrative Agent
may, but shall not be required to, initiate any solicitation for the consent or a vote of the
Lenders.



     (b) For purposes of determining compliance with the conditions specified in
Section 4.01 hereof, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or other matter either
sent by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction,
or required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.



39









 





     9.05 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, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received written 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.” The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default or Event of Default as may be directed by the Required Lenders in
accordance with Article VIII; provided, however, that unless and until the
Administrative Agent has received any such direction, 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 or in the best interest of the Lenders.



     9.06 Credit Decision; Disclosure of Information by Administrative Agent. Each Lender
acknowledges that no Agent-Related Person has made any representation or warranty to it, and that
no act by the Administrative Agent hereinafter taken, including any consent to and acceptance of
any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the Loan Parties and
their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this Agreement and to
extend credit to the Borrower hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person 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 investigations as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the Borrower and the
other Loan Parties. Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come
into the possession of any Agent-Related Person.



     9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY ARE CONSUMMATED, THE LENDERS SHALL INDEMNIFY UPON DEMAND EACH AGENT-RELATED PERSON (TO THE
EXTENT NOT REIMBURSED BY OR ON BEHALF OF ANY LOAN PARTY AND WITHOUT LIMITING THE OBLIGATION OF ANY
LOAN PARTY TO DO SO), PRO RATA, AND HOLD HARMLESS EACH AGENT-RELATED PERSON FROM AND AGAINST ANY
AND ALL INDEMNIFIED LIABILITIES INCURRED BY IT (WHETHER



40









 







OR NOT ARISING OUT OF THE NEGLIGENCE OF SUCH AGENT-RELATED PERSON); PROVIDED,
HOWEVER, THAT NO LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY AGENT-RELATED PERSON OF ANY
PORTION OF SUCH INDEMNIFIED LIABILITIES RESULTING FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT; PROVIDED, HOWEVER, THAT NO ACTION TAKEN IN ACCORDANCE WITH THE
DIRECTIONS OF THE REQUIRED LENDERS SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT FOR PURPOSES OF THIS SECTION. WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER SHALL
REIMBURSE THE ADMINISTRATIVE AGENT UPON DEMAND FOR ITS RATABLE SHARE OF ANY COSTS OR OUT-OF-POCKET
EXPENSES (INCLUDING ATTORNEY COSTS) INCURRED BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE
PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER
THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR
RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY DOCUMENT CONTEMPLATED BY OR
REFERRED TO HEREIN, TO THE EXTENT THAT THE ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES
BY OR ON BEHALF OF THE BORROWER. THE UNDERTAKING IN THIS SECTION SHALL SURVIVE TERMINATION OF THE
TERM LOAN COMMITMENTS, THE PAYMENT OF ALL OBLIGATIONS HEREUNDER AND THE RESIGNATION OR REPLACEMENT
OF THE ADMINISTRATIVE AGENT. THE FOREGOING INDEMNITY SHALL APPLY TO THE NEGLIGENCE OF THE
AGENT-RELATED PERSON (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE AGENT-RELATED
PERSON).



     9.08 Administrative Agent in its Individual Capacity. The Administrative Agent, acting in any
capacity other than pursuant to this Agreement, and its Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other business with each
of the Loan Parties and their respective Affiliates as though it were not the Administrative Agent
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, the Administrative Agent, acting in any capacity other than pursuant to this
Agreement, or its Affiliates may receive information regarding any Loan Party or its Affiliates
(including information that may be subject to confidentiality obligations in favor of such Loan
Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation
to provide such information to them. With respect to its Term Loan, the Administrative Agent,
acting in its capacity as a Lender, shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not the Administrative
Agent, and the terms “Lender” and “Lenders” include the Administrative Agent in its individual
capacity.



     9.09 Successor Administrative Agent. The Administrative Agent (i) may resign as
Administrative Agent upon 30 days’ notice to the Lenders and the Borrower and (ii) if the
Administrative Agent, acting in its capacity as a Lender, assigns all of its Term Loan Commitment
and Term Loan pursuant to Section 10.07(b), shall resign upon receiving a written request
therefor from the Borrower, with such resignation to be effectuated by the Administrative Agent
sending 30 days advance notice of such resignation to the Borrower and the Lenders, such



41









 







resignation notice to be delivered by the Administrative Agent to the Borrower and the Lenders
upon the Administrative Agent’s receipt of the above-described written notice from the Borrower
requesting such resignation. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative agent for the
Lenders which successor administrative agent shall require the consent of the Borrower at all times
other than during the existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor administrative agent from
among the Lenders. Upon the acceptance of its appointment as successor administrative agent
hereunder, such successor administrative agent shall succeed to all the rights, powers and duties
of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor
administrative agent, and the retiring Administrative Agent’s appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article IX and
Sections 10.04 and 10.05 hereof 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. If no
successor administrative agent has accepted appointment as Administrative Agent by the date which
is 30 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 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.



     9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion, to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon
request by the Administrative Agent at any time, the Required Lenders will confirm in writing the
Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10.



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



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Term Loans and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the claims of the Lenders
and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the Administrative Agent under
Sections 2.07 and 10.04) allowed in such judicial proceedings; and



42









 





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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07
and 10.04 hereof.




     9.12 Related Obligations. The benefit of the Loan Documents and of the provisions of this
Agreement and the Guaranty shall extend to and be available in respect of any obligation arising
under any Affiliated IRP Agreement or that is otherwise owed to Persons other than the
Administrative Agent and the Lenders pursuant to the Loan Documents or the Affiliated IRP
Agreements (collectively, “Related Obligations”) solely on the condition and understanding,
as among the Administrative Agent and the Lenders, that (a) the Related Obligations shall be
entitled to the benefit of the Loan Documents to the extent expressly set forth in this Agreement
and the other Loan Documents and to such extent the Administrative Agent shall hold, and have the
right and power to act with respect to, the Guaranty on behalf and as agent for the holders of the
Related Obligations, but the Administrative Agent is otherwise acting solely as agent for the
Lenders and shall have no fiduciary duty, duty of loyalty, duty of care, duty of disclosure or
other obligation whatsoever to any holder of Related Obligations; (b) all matters, acts and
omissions relating in any manner to the Guaranty shall be governed solely by the provisions of this
Agreement and the Guaranty and no separate Lien, right, power or remedy shall arise or exist in
favor of any Guarantied Party (as defined in the Guaranty) under any separate instrument or
agreement or in respect of any Related Obligation; (c) each Guarantied Party shall be bound by all
actions taken or omitted, in accordance with the terms of this Agreement and the Guaranty, by the
Administrative Agent and the Required Lenders, each of whom shall be entitled to act at its sole
discretion and exclusively in its own interest given its own Term Loan Commitment and its own
interest in its Term Loan and other Obligations to it arising under this Agreement or the other
Loan Documents, without any duty or liability to any other Guarantied Party or as to any Related
Obligation and without regard to whether any Related Obligation remains outstanding or is otherwise
affected or put in jeopardy thereby; (d) no holder of Related Obligations and no other Guarantied
Party (except the Administrative Agent and the Lenders, to the extent set forth in this Agreement)
shall have any right to be notified of, or to direct, require or be heard with respect to, any
action taken or omitted under this Agreement or the other Loan Documents; and (e) no holder of any
Related Obligation shall exercise any right of setoff, banker’s lien or similar right, except as
expressly provided in Section 10.09 hereof.



     9.13 Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on
the facing page or signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” “lead manager,” “arranger, “ “lead arranger” or “co-arranger”
shall have any right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting
the foregoing none of the Lenders or other Persons so identified shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender



43









 







acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons
so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.



ARTICLE X.

MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement (including
any provision of the Incorporated Agreement incorporated herein by reference pursuant to Article VI
above and any waiver of Section 8.01(c) above) or any other Loan Document, and no consent
to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:



     (a) extend or increase the Term Loan Commitment of any Lender (or reinstate any Term Loan
Commitment terminated pursuant to Section 8.02 hereof) or subject the Lenders to any
additional obligations, without the written consent of such Lender;



     (b) postpone any scheduled date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any other Loan Document or waive any Event of Default
occurring pursuant to Section 8.01(a) hereof, without the written consent of each Lender
directly affected thereby;



     (c) reduce or subordinate the principal of, or the rate of interest specified herein on, any
Term Loan, or (subject to clause (ii) of the proviso below) any fees or other amounts payable
hereunder or under any other Loan Document, or change the manner of computation of the Leverage
Ratio (including any change in any defined terms used therein) of the Incorporated Agreement that
would result in a reduction of any interest rate on any Term Loan or fee payable hereunder, without
the written consent of each Lender directly affected thereby;



     (d) change the percentage of the Aggregate Term Loan Commitments or of the aggregate unpaid
principal amount of the Term Loans which is required for the Lenders or any of them to take any
action hereunder, without the written consent of each Lender;



     (e) change the Pro Rata Share or Voting Percentage of any Lender, without the written consent
of each Lender;



     (f) amend this Section, or any provision herein providing for consent or other action by all
the Lenders, without the written consent of each Lender; or



     (g) release any Guarantor from any Guaranty or subordinate any obligation of any Guarantor
under any Guaranty, except as otherwise provided in Section 9.10 hereof, without the
written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required Lenders or all the
Lenders, as the


44









 






case may be, affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; and (ii) the Agent Fee Letter may be amended, or rights or privileges
thereunder waived, except in a writing executed by the parties to the Agent Fee Letter.
Notwithstanding anything to the contrary herein, any Lender that has failed to fund any portion of
its Term Loan required to be funded by it hereunder shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Pro Rata Share of such
Lender may not be increased without the consent of such Lender.




     10.02 Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission) and
mailed, faxed or delivered, to the address, facsimile number or (subject to subsection (c) below)
electronic mail address specified for notices on Schedule 10.02; or, in the case of the
Borrower or the Administrative Agent, to such other address as shall be designated by such party in
a notice to the other parties, and in the case of any other party, to such other address as shall
be designated by such party in a notice to the Borrower or the Administrative Agent. All such
notices and other communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand or by courier, when
signed for by the intended recipient; (B) if delivered by certified mail, three Business Days after
deposit in the mails, postage prepaid for certified delivery with return receipt requested; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered
by electronic mail (which form of delivery is subject to the provisions of subsection (c) below),
when delivered; provided, however, that notices and other communications to the
Administrative Agent pursuant to Article II shall not be effective until actually received
by such Person. Any notice or other communication permitted to be given, made or confirmed by
telephone hereunder shall be given, made or confirmed by means of a telephone call to the intended
recipient at the number specified on Schedule 10.02, it being understood and agreed that a
voicemail message shall in no event be effective as a notice, communication or confirmation
hereunder.



     (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually-signed originals and
shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.



     (c) Other Communications. Notwithstanding anything in this Section 10.02 or
elsewhere in this Agreement to the contrary, the Borrower agrees that the Administrative Agent may
make any material delivered by the Borrower to the Administrative Agent, as well as any amendments,
waivers, consents, and other written information, documents, instruments and other materials
relating to the Borrower, any of its Subsidiaries, or any other materials or matters relating to
this Agreement, the Term Loan Notes or any of the transactions contemplated hereby (collectively,
the “Communications”) available to the Lenders by posting such notices on an electronic
delivery system (which may be provided by the Administrative Agent, an Affiliate of the
Administrative Agent, or any Person that is not an Affiliate of the Administrative Agent),



45









 







such as IntraLinks, or a substantially similar electronic system (the “Platform”).
The Borrower acknowledges that (i) the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness,
sufficiency, or sequencing of the Communications posted on the Platform. The Administrative Agent
and its Affiliates expressly disclaim with respect to the Platform any liability for errors in
transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems
accessing the Communications posted on the Platform and any liability for any losses, costs,
expenses or liabilities that may be suffered or incurred in connection with the Platform. No
warranty of any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform. Each Lender agrees that notice to it (as provided in
the next sentence) (a “Notice”) specifying that any Communication has been posted to the
Platform shall for purposes of this Agreement constitute effective delivery to such Lender of such
information, documents or other materials comprising such Communication. Each Lender agrees (i) to
notify, on or before the date such Lender becomes a party to this Agreement, the Administrative
Agent in writing of such Lender’s e-mail address to which a Notice may be sent (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail address for such Lender)
and (ii) that any Notice may be sent to such e-mail address.



     (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic or electronically
mailed Term Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.
All telephonic or electronically mailed notices to and other communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents
to such recording.



     10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder 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
or therein provided are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.



     10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all reasonable costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the other Loan Documents
and any amendment, waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are



46









 







consummated), and the consummation and administration of the transactions contemplated hereby
and thereby, including all Attorney Costs, (b) to pay or reimburse the Administrative Agent for all
reasonable costs and expenses incurred in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or the other Loan Documents
(including all such costs and expenses incurred during any “workout” or restructuring in respect of
the Obligations and during any legal proceeding, including any proceeding under any Debtor Relief
Law), including all Attorney Costs, and (c) to pay or reimburse each Lender for all reasonable
costs and expenses incurred after an Event of Default in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any “workout” or restructuring in
respect of the Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs. The foregoing costs and expenses shall include
all reasonable search, filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other reasonable out-of-pocket expenses incurred by the Administrative Agent
and the reasonable cost of independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. The agreements in this Section shall survive the termination
of the Term Loan Commitments and repayment of all the other Obligations.



     10.05 INDEMNIFICATION BY THE BORROWER.



     (a) WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE BORROWER AGREES
TO INDEMNIFY, SAVE AND HOLD HARMLESS EACH AGENT-RELATED PERSON, EACH LENDER AND THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL, AGENTS AND ATTORNEYS-IN-FACT (COLLECTIVELY THE
“INDEMNITEES”) FROM AND AGAINST: (a) ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF
ACTION THAT MAY AT ANY TIME (INCLUDING AT ANY TIME FOLLOWING REPAYMENT OF THE OBLIGATIONS AND THE
RESIGNATION OR REMOVAL OF THE ADMINISTRATIVE AGENT OR THE REPLACEMENT OF ANY LENDER) BE ASSERTED OR
IMPOSED AGAINST ANY INDEMNITEE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, OR AS A RESULT OF
(1) THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, (2) ANY VIOLATION BY
THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY AFFILIATES OF ANY LAWS, INCLUDING WITHOUT LIMITATION
ENVIRONMENTAL LAWS, OR ANY ENVIRONMENTAL CLAIM AGAINST ANY INDEMNITEE, (3) ANY FAILURE BY THE
BORROWER OR ANY OF ITS SUBSIDIARIES TO COMPLY WITH ANY COVENANT OR AGREEMENT CONTAINED IN THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, (4) ANY MISREPRESENTATION BY THE BORROWER OR ITS SUBSIDIARIES
UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS OR (5) THE USE OR CONTEMPLATED USE OF THE PROCEEDS
OF ANY TERM LOAN; (b) ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANY GOVERNMENTAL AUTHORITY
ARISING OUT OF OR RELATED TO A CLAIM, DEMAND, ACTION OR CAUSE OF ACTION DESCRIBED IN SUBSECTION (a)
ABOVE; AND (c) ANY AND ALL LIABILITIES (INCLUDING LIABILITIES UNDER INDEMNITIES), LOSSES, COSTS OR
EXPENSES (INCLUDING ATTORNEY COSTS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF THE
ASSERTION



47









 







OF ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING, OR AS A RESULT OF THE
PREPARATION OF ANY DEFENSE IN CONNECTION WITH ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION
OR PROCEEDING, IN ALL CASES, WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNITEE, AND,
WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR
PROCEEDING (ALL THE FOREGOING, COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”);
PROVIDED THAT NO INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATION FOR (i) ANY CLAIM CAUSED
BY ITS OWN GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT, AS FINALLY JUDICIALLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION OR (ii) FOR ANY LOSS ASSERTED AGAINST IT BY ANOTHER INDEMNITEE.
THE FOREGOING INDEMNITY SHALL APPLY TO THE NEGLIGENCE OF THE INDEMNITEE (BUT NOT THE GROSS
NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF THE INDEMNITEE). THE AGREEMENTS IN THIS SECTION
SHALL SURVIVE THE TERMINATION OF THE TERM LOAN COMMITMENTS AND REPAYMENT OF ALL THE OTHER
OBLIGATIONS.



     (b) EACH INDEMNITEE AGREES WITH RESPECT TO ANY ACTION AGAINST IT IN RESPECT OF WHICH INDEMNITY
MAY BE SOUGHT UNDER THIS SECTION 10.05, THAT SUCH INDEMNITEE WILL GIVE WRITTEN NOTICE OF
THE COMMENCEMENT OF SUCH ACTION TO THE BORROWER WITHIN A REASONABLE TIME AFTER SUCH INDEMNITEE IS
MADE A PARTY TO SUCH ACTION. UPON RECEIPT OF ANY SUCH NOTICE BY THE BORROWER, THE BORROWER, UNLESS
SUCH INDEMNITEE SHALL BE ADVISED BY ITS COUNSEL THAT THERE ARE OR MAY BE LEGAL DEFENSES AVAILABLE
TO SUCH INDEMNITEE THAT ARE DIFFERENT FROM, IN ADDITION TO, OR IN CONFLICT WITH, THE DEFENSES
AVAILABLE TO THE BORROWER, MAY PARTICIPATE WITH THE INDEMNITEE IN THE DEFENSE OF SUCH INDEMNIFIED
MATTER, INCLUDING THE EMPLOYMENT OF COUNSEL CONSENTED TO BY SUCH INDEMNITEE (WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD); PROVIDED, HOWEVER, NOTHING PROVIDED HEREIN SHALL (i) ENTITLE THE
BORROWER TO ASSUME THE DEFENSE OF SUCH INDEMNIFIED MATTER OR (ii) REQUIRE THE CONSENT OF THE
BORROWER FOR ANY SETTLEMENT OR ACTION IN RESPECT OF SUCH INDEMNIFIED MATTER, ALTHOUGH EACH
INDEMNITEE AGREES TO CONFER AND CONSULT WITH THE BORROWER BEFORE MAKING ANY SETTLEMENT OF SUCH
INDEMNIFIED MATTER.



     10.06 Payments Set Aside. To the extent that the Borrower makes a payment to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right
of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and



48









 





     (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect.



     10.07 Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Term Loan Commitment and its
Term Loan at the time owing to it); provided that (i) except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Term Loan Commitment or its Term Loan at
the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Term Loan Commitment or the
Term Loan outstanding subject to each such assignment, determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to its Term Loan or the Term Loan Commitment assigned, (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 (provided no such fee shall be required for an
assignment to an Affiliate of a Lender) and (iv) in the case of an assignment to an Affiliate of a
Lender or to an Approved Fund, the assigning Lender shall ensure that all of the Borrower’s
dealings with the assignee shall be conducted through the same Lender. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.07 (which accrued to such Lender prior to such assignment), 10.04 and
10.05 hereof). Upon request and at no expense to the Borrower, the Borrower shall execute
and deliver new or replacement Term Loan Notes to the assigning Lender and the assignee Lender.



49









 




Any assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection 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 subsection (d) of this
Section.




     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Term Loan Commitments of, and principal amount of the Term Loans owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.



     (d) Any Lender may, without the consent of, or notice to, 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/or obligations under this Agreement (including all or a
portion of its Term Loan Commitments and/or the Term Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification that would (i) postpone any date
upon which any payment of money is scheduled to be paid to such Participant, (ii) reduce the
principal, interest, fees or other amounts payable to such Participant, or (iii) release any
Guarantor from the Guaranty except as permitted under Section 9.10. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 hereof to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.09 hereof as though it were a Lender, provided such Participant agrees to be
subject to Section 2.11 hereof as though it were a Lender.



     (e) A Participant shall not be entitled to receive any greater payment under
Section 3.01, 3.02 or 3.04 hereof than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 hereof unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 10.15 hereof as though it were a Lender.



50









 





     (f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement (including under its Term Loan Notes, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank,
without the requirement for notice to or consent of any Person or the payment of any fee;
provided that no such pledge or assignment shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:




“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person) approved by the
Administrative Agent and, unless (x) such Person is taking delivery of an assignment in
connection with physical settlement of a credit derivative transaction or (y) an Event of
Default has occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed).




“Fund” means any Person (other than a natural person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.




“Approved Fund” means any Fund 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.



     10.08 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and required to keep such
Information confidential) with respect to the monitoring and administration of this Agreement or
any other Loan Documents; (b) to the extent required by any regulatory authority; (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any
other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as those of this Section,
to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s
or prospective counterparty’s professional advisor) to any credit derivative transaction relating
to obligations of the Borrower; (g) with the written consent of the Borrower; (h) to the extent
such Information (i) becomes publicly available other than as a result of a breach of this Section
or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from
a source other than the Borrower; or (i) only to the extent required, to the National Association
of Insurance Commissioners or any other similar organization or any nationally recognized rating
agency that requires access to information about a Lender’s or its Affiliates’ investment portfolio
in connection with ratings issued with respect to such Lender or its Affiliates. For the purposes
of this Section, “Information” means all



51









 







information received from the Borrower relating to the Borrower, its Affiliates or their
respective businesses, other than any such information that is available to the Administrative
Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of disclosure as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligations to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential Information.



     10.09 Set-off. In addition to any rights and remedies of the Lenders provided by law, upon
the occurrence and during the continuance of any Event of Default, each Lender is authorized at any
time and from time to time, without prior notice to the Borrower or any other Loan Party, any such
notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special
(except trust and escrow accounts), time or demand, provisional, final or otherwise) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to such Lender, now or
hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although such Obligations may
be contingent or unmatured. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such set-off and application.



     10.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
Highest Lawful Rate. If the Administrative Agent or any Lender shall receive interest in an amount
that exceeds the Highest Lawful Rate, the excess interest shall be applied to the principal of the
Term Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Highest Lawful Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations.



     10.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. A counterpart hereof (or signature page thereto) signed and transmitted by any Person
party hereto to the Administrative Agent (or its counsel) by facsimile machine, telecopier or
electronic mail is to be treated as an original. The signature of such Person thereon, for
purposes hereof, is to be considered as an original signature, and the counterpart (or signature
page thereto) so transmitted is to be considered to have the same binding effect as an original
signature on an original document.



     10.12 Integration. In the event of any conflict between the provisions of this Agreement and
those of any other Loan Document, the provisions of this Agreement shall



52









 







control; provided that the inclusion of supplemental rights or remedies in favor of
the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.



     10.13 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default or Event of Default at the time of the making of the Term Loan
Borrowing, and shall continue in full force and effect as long as any Term Loan or any other
Obligation shall remain unpaid or unsatisfied.



     10.14 Severability. Any provision of this Agreement and the other Loan Documents to which the
Borrower is a party 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 thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.



     10.15 Foreign Lenders. Each Lender that is a “foreign corporation, partnership or trust”
within the meaning of the Code (a “Foreign Lender”) shall deliver to the Administrative
Agent, prior to receipt of any payment subject to withholding under the Code (or after accepting an
assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Person and entitling it to an exemption from, or reduction
of, withholding tax on all payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such
Person by the Borrower pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time to time, each such Person shall
(a) promptly submit to the Administrative Agent such additional duly completed and signed copies of
one of such forms (or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current United States laws
and regulations to avoid, or such evidence as is satisfactory to the Borrower and the
Administrative Agent of any available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Person by the Borrower pursuant to this
Agreement, (b) promptly notify the Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (c) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other documentation,
then the Administrative Agent may withhold from any interest payment to such Person an amount
equivalent to the applicable withholding tax imposed by Sections 1441 and



53









 




1442 of the Code, without reduction. If any Governmental Authority asserts that the
Administrative Agent did not properly withhold any tax or other amount from payments made in
respect of such Person, such Person shall indemnify the Administrative Agent therefore, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to the
Agent under this Section, and costs and expenses (including Attorney Costs) of the Administrative
Agent. The obligation of the Lenders under this Section shall survive the payment of all
Obligations and the resignation or replacement of the Administrative Agent.




     10.16 Removal and Replacement of Lenders.



     (a) Under any circumstances set forth herein providing that the Borrower shall have the right
to remove or replace a Lender as a party to this Agreement, the Borrower may, upon notice to such
Lender and the Administrative Agent, replace such Lender by causing such Lender to assign its Term
Loan pursuant to Section 10.07(b) hereof to one or more other Lenders or Eligible Assignees
procured by the Borrower; provided, however, that if the Borrower elects to
exercise such right with respect to any Lender pursuant to Section 3.06(b) hereof, it shall
be obligated to remove or replace, as the case may be, all Lenders that have made similar requests
for compensation pursuant to Section 3.01, 3.02 or 3.04 hereof. In such
event, the Borrower shall release each such Lender from its obligations under the Loan Documents.
Any Lender being replaced shall execute and deliver an Assignment and Acceptance with respect to
such Lender’s Term Loan. The Administrative Agent shall distribute an amended
Schedule 2.01, which shall be deemed incorporated into this Agreement, to reflect changes
in the identities of the Lenders and adjustments of their respective Pro Rata Shares resulting from
any such removal or replacement.



     (b) This Section shall supersede any provision in Section 10.01 hereof to the
contrary.



     10.17 Exceptions to Covenants. Neither the Borrower nor any Subsidiary shall be deemed to be
permitted to take any action or fail to take any action which is permitted as an exception to any
of the covenants contained herein or which is within the permissible limits of any of the covenants
contained herein if such action or omission would result in the breach of any other covenant
contained herein.



     10.18 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT EACH PARTY SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY, TEXAS OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS (DALLAS DIVISION), AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE



54









 







JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF
SUCH STATE.



     10.19 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



     10.20 USA Patriot Act Notice. Each Lender and the Administrative Agent (for itself and not on
behalf of any 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 required by the Act
or any regulation promulgated pursuant to the Act that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act



     10.21 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.








REMAINDER OF PAGE LEFT INTENTIONALLY BLANK







55









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	CASH AMERICA INTERNATIONAL, INC.

 	 
	 	By:  	/a/  Austin D. Nettle
 	 
	 	 	Name:  	Austin D. Nettle 	 
	 	 	Title:  	Vice President and Treasurer 	 



Exhibit E - 56









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, 
as
Administrative Agent

 	 
	 	By:  	/s/  Jeffrey D. Bundy
 	 
	 	 	Name:  	Jeffrey D. Bundy 	 
	 	 	Title:  	Vice President 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/  Jeffrey D. Bundy
 	 
	 	 	Name:  	Jeffrey D. Bundy 	 
	 	 	Title:  	Vice President 	 



Exhibit E - 57









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By:  	/s/  Lindsey M. Hester
 	 
	 	 	Name:  	Lindsey M. Hester 	 
	 	 	Title:  	Vice President 	 



Exhibit E - 58









 






	 	 	 	 	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/  David A. Wild
 	 
	 	 	Name:  	David A. Wild 	 
	 	 	Title:  	Vice President 	 



Exhibit E - 59









 






	 	 	 	 	 



	 	 	 	 	 
	 	TEXAS CAPITAL BANK, N.A., as a Lender

 	 
	 	By:  	/s/  Barry Kromann
 	 
	 	 	Name:  	Barry Kromann 	 
	 	 	Title:  	Executive Vice President 	 



Exhibit E - 60









 






	 	 	 	 	 



	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as a Lender

 	 
	 	By:  	/s/  Sarah Daniel
 	 
	 	 	Name:  	Sarah Daniel 	 
	 	 	Title:  	Vice President 	 
	 




Exhibit E - 61