Exhibit 10.1


 


$175,000,000.00 REVOLVING CREDIT FACILITY


 


CREDIT AGREEMENT


 


by and among


 


PAPA JOHN’S INTERNATIONAL, INC.,


 


THE GUARANTORS PARTY HERETO,


 


RSC INSURANCE SERVICES LTD., a Bermuda company,


 


THE BANKS PARTY HERETO,


 


PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent,


 


JPMORGAN CHASE BANK, N.A., as Syndication Agent,


 


NATIONAL CITY BANK OF KENTUCKY, as Co-Documentation Agent,


 


BANK OF AMERICA, N.A., as Co-Documentation Agent,


 


FIFTH THIRD BANK, as Co-Documentation Agent,


 


and


 


PNC CAPITAL MARKETS LLC, as Lead Arranger and as Sole Bookrunner


 


 


Dated January 31, 2006


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  CERTAIN
  DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  Certain
  Definitions.

  	
  1

  
	
   

  	
  1.2

  	
  Construction.

  	
  24

  
	
   

  	
   

  	
  1.2.1.

  	
  Number;
  Inclusion.

  	
  25

  
	
   

  	
   

  	
  1.2.2.

  	
  Determination.

  	
  25

  
	
   

  	
   

  	
  1.2.3.

  	
  Administrative
  Agent’s Discretion and Consent.

  	
  25

  
	
   

  	
   

  	
  1.2.4.

  	
  Documents
  Taken as a Whole.

  	
  25

  
	
   

  	
   

  	
  1.2.5.

  	
  Headings.

  	
  25

  
	
   

  	
   

  	
  1.2.6.

  	
  Implied
  References to this Agreement.

  	
  25

  
	
   

  	
   

  	
  1.2.7.

  	
  Persons.

  	
  25

  
	
   

  	
   

  	
  1.2.8.

  	
  Modifications
  to Documents.

  	
  26

  
	
   

  	
   

  	
  1.2.9.

  	
  From,
  To and Through.

  	
  26

  
	
   

  	
   

  	
  1.2.10.

  	
  Shall;
  Will.

  	
  26

  
	
   

  	
  1.3

  	
  Accounting
  Principles.

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  REVOLVING
  CREDIT AND SWING LOAN FACILITIES

  	
  26

  
	
   

  	
  2.1

  	
  Revolving
  Credit and Swing Loan Commitments.

  	
  26

  
	
   

  	
   

  	
  2.1.1.

  	
  Revolving
  Credit Loans.

  	
  26

  
	
   

  	
   

  	
  2.1.2.

  	
  Swing
  Loans.

  	
  27

  
	
   

  	
  2.2

  	
  Nature
  of Banks’ Obligations with Respect to Revolving Credit Loans.

  	
  27

  
	
   

  	
  2.3

  	
  Commitment
  Fees.

  	
  27

  
	
   

  	
  2.4

  	
  Revolving
  Credit Loan Requests; Swing Loan Requests.

  	
  28

  
	
   

  	
   

  	
  2.4.1.

  	
  Revolving
  Credit Loan Requests.

  	
  28

  
	
   

  	
   

  	
  2.4.2.

  	
  Swing
  Loan Requests.

  	
  29

  
	
   

  	
  2.5

  	
  Making
  Revolving Credit Loans and Swing Loans; Revolving Credit Notes and Swing
  Notes.

  	
  29

  
	
   

  	
   

  	
  2.5.1.

  	
  Making
  Revolving Credit Loans.

  	
  29

  
	
   

  	
   

  	
  2.5.2.

  	
  Making
  Swing Loans.

  	
  29

  
	
   

  	
   

  	
  2.5.3.

  	
  Revolving
  Credit Notes.

  	
  30

  
	
   

  	
   

  	
  2.5.4.

  	
  Swing
  Note.

  	
  30

  
	
   

  	
  2.6

  	
  Borrowings
  to Repay Swing Loans.

  	
  30

  
	
   

  	
  2.7

  	
  Use
  of Proceeds.

  	
  30

  
	
   

  	
  2.8

  	
  Utilization
  of Commitments in Optional Currencies.

  	
  31

  
	
   

  	
   

  	
  2.8.1.

  	
  Periodic
  Computations of Dollar Equivalent Amounts of Loans and Letters of Credit
  Outstanding.

  	
  31

  
	
   

  	
   

  	
  2.8.2.

  	
  Notices
  From Banks That Optional Currencies Are Unavailable to Fund New Loans.

  	
  31

  
	
   

  	
   

  	
  2.8.3.

  	
  Notices
  From Banks That Optional Currencies Are Unavailable to Fund Renewals of the
  Euro-Rate Option.

  	
   

  	
  31

  
	
   

  	
   

  	
  2.8.4.

  	
  Requests
  for Additional Optional Currencies.

  	
  32

  
	
   

  	
  2.9

  	
  Letter
  of Credit Subfacility.

  	
  32

  
	
   

  	
   

  	
  2.9.1.

  	
  Issuance
  of Letters of Credit.

  	
  32

  
	
   

  	
   

  	
  2.9.2.

  	
  Letter
  of Credit Fees.

  	
  33

  
							



 


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  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.9.3.

  	
  Disbursements,
  Reimbursement.

  	
  33

  
	
   

  	
   

  	
  2.9.4.

  	
  Repayment
  of Participation Advances.

  	
  35

  
	
   

  	
   

  	
  2.9.5.

  	
  Documentation.

  	
  35

  
	
   

  	
   

  	
  2.9.6.

  	
  Determinations
  to Honor Drawing Requests.

  	
  35

  
	
   

  	
   

  	
  2.9.7.

  	
  Nature
  of Participation and Reimbursement Obligations.

  	
  36

  
	
   

  	
   

  	
  2.9.8.

  	
  Indemnity.

  	
  37

  
	
   

  	
   

  	
  2.9.9.

  	
  Liability
  for Acts and Omissions.

  	
  38

  
	
   

  	
  2.10

  	
  Increase
  of Revolving Credit Commitments.

  	
  39

  
	
   

  	
  2.11

  	
  Currency
  Repayments.

  	
  40

  
	
   

  	
  2.12

  	
  Optional
  Currency Amounts.

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  INTEREST
  RATES

  	
  41

  
	
   

  	
  3.1

  	
  Interest
  Rate Options.

  	
  41

  
	
   

  	
   

  	
  3.1.1.

  	
  Revolving
  Credit Interest Rate Options.

  	
  41

  
	
   

  	
   

  	
  3.1.2.

  	
  Swing
  Loan Interest Rate.

  	
  42

  
	
   

  	
   

  	
  3.1.3.

  	
  Rate
  Quotations.

  	
  42

  
	
   

  	
  3.2

  	
  Interest
  Periods.

  	
  42

  
	
   

  	
   

  	
  3.2.1.

  	
  Amount
  of Borrowing Tranche

  	
  42

  
	
   

  	
   

  	
  3.2.2.

  	
  Renewals

  	
  43

  
	
   

  	
  3.3

  	
  Interest
  After Default.

  	
  43

  
	
   

  	
   

  	
  3.3.1.

  	
  Interest
  Rate.

  	
  43

  
	
   

  	
   

  	
  3.3.2.

  	
  Letter
  of Credit Fees.

  	
  43

  
	
   

  	
   

  	
  3.3.3.

  	
  Other
  Obligations.

  	
  43

  
	
   

  	
   

  	
  3.3.4.

  	
  Acknowledgment.

  	
  43

  
	
   

  	
  3.4

  	
  Euro-Rate
  Unascertainable; Illegality; Increased Costs; Deposits Not Available.

  	
  43

  
	
   

  	
   

  	
  3.4.1.

  	
  Unascertainable.

  	
  43

  
	
   

  	
   

  	
  3.4.2.

  	
  Illegality;
  Increased Costs; Deposits Not Available.

  	
  44

  
	
   

  	
   

  	
  3.4.3.

  	
  Administrative
  Agent’s and Bank’s Rights.

  	
  44

  
	
   

  	
  3.5

  	
  Selection
  of Interest Rate Options; Selection of Optional Currency.

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  PAYMENTS

  	
  45

  
	
   

  	
  4.1

  	
  Payments.

  	
  45

  
	
   

  	
  4.2

  	
  Pro
  Rata Treatment of Banks.

  	
  46

  
	
   

  	
  4.3

  	
  Interest
  Payment Dates.

  	
  46

  
	
   

  	
  4.4

  	
  Voluntary
  Prepayments.

  	
  46

  
	
   

  	
   

  	
  4.4.1.

  	
  Right
  to Prepay.

  	
  46

  
	
   

  	
   

  	
  4.4.2.

  	
  Replacement
  of a Bank.

  	
  48

  
	
   

  	
   

  	
  4.4.3.

  	
  Change
  of Lending Office.

  	
  48

  
	
   

  	
  4.5

  	
  Mandatory
  Prepayments.

  	
  49

  
	
   

  	
   

  	
  4.5.1.

  	
  Currency
  Fluctuations

  	
  49

  
	
   

  	
   

  	
  4.5.2.

  	
  Application
  among Interest Rate Options.

  	
  49

  
	
   

  	
  4.6

  	
  Additional
  Compensation in Certain Circumstances.

  	
  49

  
	
   

  	
   

  	
  4.6.1.

  	
  Increased
  Costs or Reduced Return Resulting from Taxes, Reserves, Capital Adequacy
  Requirements, Expenses, Etc.

  	
  49

  
						



 


ii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.6.2.

  	
  Indemnity.

  	
  50

  
	
   

  	
  4.7

  	
  Interbank
  Market Presumption.

  	
  51

  
	
   

  	
  4.8

  	
  Taxes.

  	
  51

  
	
   

  	
   

  	
  4.8.1.

  	
  No
  Deductions.

  	
  51

  
	
   

  	
   

  	
  4.8.2.

  	
  Stamp
  Taxes.

  	
  51

  
	
   

  	
   

  	
  4.8.3.

  	
  Indemnification
  for Taxes Paid by a Bank.

  	
  51

  
	
   

  	
   

  	
  4.8.4.

  	
  Certificate.

  	
  52

  
	
   

  	
   

  	
  4.8.5.

  	
  Survival.

  	
  52

  
	
   

  	
  4.9

  	
  Judgment
  Currency.

  	
  52

  
	
   

  	
   

  	
  4.9.1.

  	
  Currency
  Conversion Procedures for Judgments.

  	
  52

  
	
   

  	
   

  	
  4.9.2.

  	
  Indemnity
  in Certain Events.

  	
  52

  
	
   

  	
  4.10

  	
  Settlement
  Date Procedures.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  53

  
	
   

  	
  5.1

  	
  Representations
  and Warranties.

  	
  53

  
	
   

  	
   

  	
  5.1.1.

  	
  Organization
  and Qualification.

  	
  53

  
	
   

  	
   

  	
  5.1.2.

  	
  Capitalization
  and Ownership.

  	
  53

  
	
   

  	
   

  	
  5.1.3.

  	
  Subsidiaries.

  	
  53

  
	
   

  	
   

  	
  5.1.4.

  	
  Power
  and Authority.

  	
  54

  
	
   

  	
   

  	
  5.1.5.

  	
  Validity
  and Binding Effect.

  	
  54

  
	
   

  	
   

  	
  5.1.6.

  	
  No
  Conflict.

  	
  54

  
	
   

  	
   

  	
  5.1.7.

  	
  Litigation.

  	
  55

  
	
   

  	
   

  	
  5.1.8.

  	
  Title
  to Properties.

  	
  55

  
	
   

  	
   

  	
  5.1.9.

  	
  Financial
  Statements.

  	
  55

  
	
   

  	
   

  	
  5.1.10.

  	
  Use
  of Proceeds; Margin Stock; Section 20 Subsidiaries.

  	
  56

  
	
   

  	
   

  	
  5.1.11.

  	
  Full
  Disclosure.

  	
  56

  
	
   

  	
   

  	
  5.1.12.

  	
  Taxes.

  	
  57

  
	
   

  	
   

  	
  5.1.13.

  	
  Consents
  and Approvals.

  	
  57

  
	
   

  	
   

  	
  5.1.14.

  	
  No
  Event of Default; Compliance with Instruments.

  	
  57

  
	
   

  	
   

  	
  5.1.15.

  	
  Patents,
  Trademarks, Copyrights, Licenses, Etc.

  	
  57

  
	
   

  	
   

  	
  5.1.16.

  	
  Insurance.

  	
  57

  
	
   

  	
   

  	
  5.1.17.

  	
  Compliance
  with Laws.

  	
  58

  
	
   

  	
   

  	
  5.1.18.

  	
  Material
  Contracts; Burdensome Restrictions.

  	
  58

  
	
   

  	
   

  	
  5.1.19.

  	
  Investment
  Companies; Regulated Entities.

  	
  58

  
	
   

  	
   

  	
  5.1.20.

  	
  Plans
  and Benefit Arrangements.

  	
  58

  
	
   

  	
   

  	
  5.1.21.

  	
  Employment
  Matters.

  	
  59

  
	
   

  	
   

  	
  5.1.22.

  	
  Environmental
  Matters and Safety Matters.

  	
  60

  
	
   

  	
   

  	
  5.1.23.

  	
  Senior
  Debt Status.

  	
  61

  
	
   

  	
   

  	
  5.1.24.

  	
  Anti-Terrorism
  Laws.

  	
  61

  
	
   

  	
   

  	
  5.1.25.

  	
  Solvency.

  	
  62

  
	
   

  	
  5.2

  	
  Updates
  to Schedules.

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  CONDITIONS
  OF LENDING AND ISSUANCE OF LETTERS OF CREDIT

  	
  63

  
	
   

  	
  6.1

  	
  First
  Loans and Letters of Credit.

  	
  63

  
						



 


iii

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.1.

  	
  Officer’s
  Certificate.

  	
  63

  
	
   

  	
   

  	
  6.1.2.

  	
  Secretary’s
  Certificate.

  	
  64

  
	
   

  	
   

  	
  6.1.3.

  	
  Delivery
  of Loan Documents.

  	
  64

  
	
   

  	
   

  	
  6.1.4.

  	
  Opinion
  of Counsel.

  	
  64

  
	
   

  	
   

  	
  6.1.5.

  	
  Legal
  Details.

  	
  64

  
	
   

  	
   

  	
  6.1.6.

  	
  Payment
  of Fees.

  	
  65

  
	
   

  	
   

  	
  6.1.7.

  	
  Consents.

  	
  65

  
	
   

  	
   

  	
  6.1.8.

  	
  Officer’s
  Certificate Regarding MACs.

  	
  65

  
	
   

  	
   

  	
  6.1.9.

  	
  No
  Violation of Laws.

  	
  65

  
	
   

  	
   

  	
  6.1.10.

  	
  No
  Actions or Proceedings.

  	
  65

  
	
   

  	
   

  	
  6.1.11.

  	
  Lien
  Searches.

  	
  65

  
	
   

  	
   

  	
  6.1.12.

  	
  Insurance
  Policies.

  	
  66

  
	
   

  	
   

  	
  6.1.13.

  	
  Termination
  Statements: Release Statements and Other Releases.

  	
  66

  
	
   

  	
   

  	
  6.1.14.

  	
  Repayment
  of Prohibited Indebtedness.

  	
  66

  
	
   

  	
   

  	
  6.1.15.

  	
  Other
  Documents and Conditions.

  	
  66

  
	
   

  	
  6.2

  	
  Each
  Additional Loan or Letter of Credit.

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  COVENANTS

  	
  67

  
	
   

  	
  7.1

  	
  Affirmative
  Covenants.

  	
  67

  
	
   

  	
   

  	
  7.1.1.

  	
  Preservation
  of Existence, Etc.

  	
  67

  
	
   

  	
   

  	
  7.1.2.

  	
  Payment
  of Liabilities, Including Taxes, Etc.

  	
  67

  
	
   

  	
   

  	
  7.1.3.

  	
  Maintenance
  of Insurance.

  	
  67

  
	
   

  	
   

  	
  7.1.4.

  	
  Maintenance
  of Properties and Leases.

  	
  68

  
	
   

  	
   

  	
  7.1.5.

  	
  Maintenance
  of Patents, Trademarks, Etc.

  	
  68

  
	
   

  	
   

  	
  7.1.6.

  	
  Visitation
  Rights.

  	
  68

  
	
   

  	
   

  	
  7.1.7.

  	
  Keeping
  of Records and Books of Account.

  	
  68

  
	
   

  	
   

  	
  7.1.8.

  	
  Plans
  and Benefit Arrangements.

  	
  68

  
	
   

  	
   

  	
  7.1.9.

  	
  Compliance
  with Laws.

  	
  69

  
	
   

  	
   

  	
  7.1.10.

  	
  Use
  of Proceeds.

  	
  69

  
	
   

  	
   

  	
  7.1.11.

  	
  Subordination
  of Intercompany Loans.

  	
  69

  
	
   

  	
   

  	
  7.1.12.

  	
  Anti-Terrorism
  Laws.

  	
  69

  
	
   

  	
  7.2

  	
  Negative
  Covenants.

  	
  69

  
	
   

  	
   

  	
  7.2.1.

  	
  Indebtedness.

  	
  70

  
	
   

  	
   

  	
  7.2.2.

  	
  Liens.

  	
  71

  
	
   

  	
   

  	
  7.2.3.

  	
  Guaranties.

  	
  71

  
	
   

  	
   

  	
  7.2.4.

  	
  Loans
  and Investments.

  	
  71

  
	
   

  	
   

  	
  7.2.5.

  	
  Dividends
  and Related Distributions.

  	
  72

  
	
   

  	
   

  	
  7.2.6.

  	
  Liquidations,
  Mergers, Consolidations, Acquisitions.

  	
  73

  
	
   

  	
   

  	
  7.2.7.

  	
  Dispositions
  of Assets or Subsidiaries.

  	
  74

  
	
   

  	
   

  	
  7.2.8.

  	
  Affiliate
  Transactions.

  	
  74

  
	
   

  	
   

  	
  7.2.9.

  	
  Subsidiaries,
  Partnerships and Joint Ventures; Excluded Subsidiaries.

  	
  75

  
	
   

  	
   

  	
  7.2.10.

  	
  Continuation
  of or Change in Business.

  	
  75

  
	
   

  	
   

  	
  7.2.11.

  	
  Plans
  and Benefit Arrangements.

  	
  75

  
	
   

  	
   

  	
  7.2.12.

  	
  Fiscal
  Year.

  	
  76

  
						



 


iv

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.2.13.

  	
  Changes
  in Organizational Documents.

  	
  76

  
	
   

  	
   

  	
  7.2.14.

  	
  Maximum
  Leverage Ratio.

  	
  77

  
	
   

  	
   

  	
  7.2.15.

  	
  Minimum
  Interest Coverage Ratio.

  	
  77

  
	
   

  	
   

  	
  7.2.16.

  	
  Negative
  Pledges.

  	
  77

  
	
   

  	
  7.3

  	
  Reporting
  Requirements.

  	
  77

  
	
   

  	
   

  	
  7.3.1.

  	
  Quarterly
  Financial Statements.

  	
  77

  
	
   

  	
   

  	
  7.3.2.

  	
  Annual
  Financial Statements.

  	
  78

  
	
   

  	
   

  	
  7.3.3.

  	
  Certificate
  of the Borrower.

  	
  79

  
	
   

  	
   

  	
  7.3.4.

  	
  Notice
  of Default.

  	
  79

  
	
   

  	
   

  	
  7.3.5.

  	
  Notice
  of Litigation.

  	
  79

  
	
   

  	
   

  	
  7.3.6.

  	
  Budgets,
  Forecasts, Other Reports and Information.

  	
  79

  
	
   

  	
   

  	
  7.3.7.

  	
  Notices
  Regarding Plans and Benefit Arrangements.

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  DEFAULT

  	
  81

  
	
   

  	
  8.1

  	
  Events
  of Default.

  	
  81

  
	
   

  	
   

  	
  8.1.1.

  	
  Payments
  Under Loan Documents.

  	
  81

  
	
   

  	
   

  	
  8.1.2.

  	
  Breach
  of Warranty.

  	
  82

  
	
   

  	
   

  	
  8.1.3.

  	
  Breach
  of Negative Covenants, Maintenance of Insurance or Visitation Rights.

  	
  82

  
	
   

  	
   

  	
  8.1.4.

  	
  Breach
  of Other Covenants.

  	
  82

  
	
   

  	
   

  	
  8.1.5.

  	
  Defaults
  in Other Agreements or Indebtedness.

  	
  82

  
	
   

  	
   

  	
  8.1.6.

  	
  Final
  Judgments or Orders.

  	
  82

  
	
   

  	
   

  	
  8.1.7.

  	
  Loan
  Document Unenforceable.

  	
  83

  
	
   

  	
   

  	
  8.1.8.

  	
  Proceedings
  Against Assets.

  	
  83

  
	
   

  	
   

  	
  8.1.9.

  	
  Notice
  of Lien or Assessment.

  	
  83

  
	
   

  	
   

  	
  8.1.10.

  	
  Insolvency.

  	
  83

  
	
   

  	
   

  	
  8.1.11.

  	
  Events
  Relating to Plans and Benefit Arrangements.

  	
  83

  
	
   

  	
   

  	
  8.1.12.

  	
  Cessation
  of Business.

  	
  84

  
	
   

  	
   

  	
  8.1.13.

  	
  Change
  of Control.

  	
  84

  
	
   

  	
   

  	
  8.1.14.

  	
  Involuntary
  Proceedings.

  	
  84

  
	
   

  	
   

  	
  8.1.15.

  	
  Voluntary
  Proceedings.

  	
  84

  
	
   

  	
  8.2

  	
  Consequences
  of Event of Default.

  	
  85

  
	
   

  	
   

  	
  8.2.1.

  	
  Events
  of Default Other Than Bankruptcy or Reorganization Proceedings.

  	
  85

  
	
   

  	
   

  	
  8.2.2.

  	
  Bankruptcy
  or Reorganization Proceedings.

  	
  85

  
	
   

  	
   

  	
  8.2.3.

  	
  Set-off.

  	
  86

  
	
   

  	
   

  	
  8.2.4.

  	
  Suits,
  Actions, Proceedings.

  	
  86

  
	
   

  	
   

  	
  8.2.5.

  	
  Application
  of Proceeds.

  	
  86

  
	
   

  	
   

  	
  8.2.6.

  	
  Other
  Rights and Remedies.

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  THE
  ADMINISTRATIVE AGENT

  	
  87

  
	
   

  	
  9.1

  	
  Appointment.

  	
  87

  
	
   

  	
  9.2

  	
  Delegation
  of Duties.

  	
  87

  
	
   

  	
  9.3

  	
  Nature
  of Duties; Independent Credit Investigation.

  	
  88

  
						



 


v

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  9.4

  	
  Actions
  in Discretion of Administrative Agent; Instructions From the Banks.

  	
  88

  
	
   

  	
  9.5

  	
  Reimbursement
  and Indemnification of Administrative Agent by the Loan Parties and RSC.

  	
  89

  
	
   

  	
  9.6

  	
  Exculpatory
  Provisions; Limitation of Liability.

  	
  89

  
	
   

  	
  9.7

  	
  Reimbursement
  and Indemnification of Administrative Agent by Banks.

  	
  90

  
	
   

  	
  9.8

  	
  Reliance
  by Administrative Agent.

  	
  91

  
	
   

  	
  9.9

  	
  Notice
  of Default.

  	
  91

  
	
   

  	
  9.10

  	
  Notices.

  	
  91

  
	
   

  	
  9.11

  	
  Banks
  in Their Individual Capacities; Administrative Agent in its Individual
  Capacity.

  	
  91

  
	
   

  	
  9.12

  	
  Holders
  of Notes.

  	
  92

  
	
   

  	
  9.13

  	
  Equalization
  of Banks.

  	
  92

  
	
   

  	
  9.14

  	
  Successor
  Administrative Agent.

  	
  92

  
	
   

  	
  9.15

  	
  Administrative
  Agent’s Fee.

  	
  93

  
	
   

  	
  9.16

  	
  Availability
  of Funds.

  	
  93

  
	
   

  	
  9.17

  	
  Calculations.

  	
  94

  
	
   

  	
  9.18

  	
  No
  Reliance on Administrative Agent’s Customer Identification Program.

  	
  94

  
	
   

  	
  9.19

  	
  Beneficiaries.

  	
  94

  
	
   

  	
  9.20

  	
  Syndication
  Agent, Co-Documentation Agents, Lead Arranger and Sole Bookrunner.

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  MISCELLANEOUS

  	
  95

  
	
   

  	
  10.1

  	
  Modifications,
  Amendments or Waivers.

  	
  95

  
	
   

  	
   

  	
  10.1.1.

  	
  Increase
  of Commitment; Extension of Expiration Date,

  	
  95

  
	
   

  	
   

  	
  10.1.2.

  	
  Extension
  of Payment; Reduction of Principal Interest or Fees; Modification of Terms of
  Payment.

  	
  95

  
	
   

  	
   

  	
  10.1.3.

  	
  Release
  of Guarantor.

  	
  95

  
	
   

  	
   

  	
  10.1.4.

  	
  Miscellaneous.

  	
  95

  
	
   

  	
  10.2

  	
  No
  Implied Waivers; Cumulative Remedies; Writing Required.

  	
  96

  
	
   

  	
  10.3

  	
  Reimbursement
  and Indemnification of Banks by the Loan Parties and RSC; Taxes.

  	
  96

  
	
   

  	
  10.4

  	
  Holidays.

  	
  97

  
	
   

  	
  10.5

  	
  Funding
  by Branch, Subsidiary or Affiliate.

  	
  97

  
	
   

  	
   

  	
  10.5.1.

  	
  Notional
  Funding.

  	
  97

  
	
   

  	
   

  	
  10.5.2.

  	
  Actual
  Funding.

  	
  98

  
	
   

  	
  10.6

  	
  Notices;
  Lending Offices.

  	
  98

  
	
   

  	
  10.7

  	
  Severability.

  	
  99

  
	
   

  	
  10.8

  	
  Governing
  Law.

  	
  99

  
	
   

  	
  10.9

  	
  Prior
  Understanding.

  	
  99

  
	
   

  	
  10.10

  	
  Duration;
  Survival.

  	
  100

  
	
   

  	
  10.11

  	
  Successors
  and Assigns.

  	
  100

  
	
   

  	
  10.12

  	
  Confidentiality.

  	
  101

  
	
   

  	
   

  	
  10.12.1.

  	
  General.

  	
  101

  
	
   

  	
   

  	
  10.12.2.

  	
  Sharing
  Information With Affiliates of the Banks.

  	
  102

  
						



 


vi

















 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  10.13

  	
  Counterparts.

  	
  102

  
	
   

  	
  10.14

  	
  Administrative
  Agent’s or Bank’s Consent.

  	
  102

  
	
   

  	
  10.15

  	
  Exceptions.

  	
  102

  
	
   

  	
  10.16

  	
  CONSENT TO FORUM; WAIVER OF JURY TRIAL.

  	
  102

  
	
   

  	
  10.17

  	
  Certifications
  From Banks and Participants

  	
  103

  
	
   

  	
   

  	
  10.17.1.

  	
  Tax
  Withholding Clause.

  	
  103

  
	
   

  	
   

  	
  10.17.2.

  	
  USA
  Patriot Act.

  	
  104

  
	
   

  	
  10.18

  	
  Joinder
  of Guarantors.

  	
  104

  
						



 


vii

















 


LIST OF SCHEDULES AND EXHIBITS


 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1.1(A)

  	
  -

  	
  PRICING
  GRID

  
	
  SCHEDULE 1.1(B)

  	
  -

  	
  COMMITMENTS
  OF BANKS AND ADDRESSES FOR NOTICES; LENDING OFFICES

  
	
  SCHEDULE 1.1(E)(1)

  	
  -

  	
  EXCLUDED
  VIE’S

  
	
  SCHEDULE 1.1(E)(2)

  	
  -

  	
  EXISTING
  LETTERS OF CREDIT

  
	
  SCHEDULE 1.1(P)(1)

  	
  -

  	
  PERMITTED
  INVESTMENTS

  
	
  SCHEDULE 1.1(P)(2)

  	
  -

  	
  PERMITTED
  LIENS

  
	
  SCHEDULE 5.1.1

  	
  -

  	
  QUALIFICATIONS
  TO DO BUSINESS

  
	
  SCHEDULE 5.1.2

  	
  -

  	
  CAPITALIZATION

  
	
  SCHEDULE 5.1.3

  	
  -

  	
  SUBSIDIARIES

  
	
  SCHEDULE 5.1.7

  	
  -

  	
  LITIGATION

  
	
  SCHEDULE 5.1.16

  	
  -

  	
  INSURANCE

  
	
  SCHEDULE 5.1.20

  	
  -

  	
  EMPLOYEE
  BENEFIT PLAN DISCLOSURES

  
	
  SCHEDULE 5.1.22

  	
  -

  	
  ENVIRONMENTAL
  DISCLOSURES

  
	
  SCHEDULE 7.2.1

  	
  -

  	
  PERMITTED
  INDEBTEDNESS

  
	
  SCHEDULE 7.2.3

  	
  -

  	
  EXISTING
  GUARANTIES

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1.1(A)

  	
  -

  	
  ASSIGNMENT
  AND ASSUMPTION AGREEMENT

  
	
  EXHIBIT 1.1(E)

  	
  -

  	
  EXCLUDED
  VIE APPROVAL FORM

  
	
  EXHIBIT 1.1(G)(1)

  	
  -

  	
  GUARANTOR
  JOINDER

  
	
  EXHIBIT 1.1(G)(2)

  	
  -

  	
  GUARANTY
  AGREEMENT

  
	
  EXHIBIT 1.1(G)(3)

  	
  -

  	
  BORROWER/RSC
  GUARANTY AGREEMENT

  
	
  EXHIBIT 1.1(I)

  	
  -

  	
  INTERCOMPANY
  SUBORDINATION AGREEMENT

  
	
  EXHIBIT 1.1(R)

  	
  -

  	
  REVOLVING
  CREDIT NOTE

  
	
  EXHIBIT 1.1(S)

  	
  -

  	
  SWING
  NOTE

  
	
  EXHIBIT 2.4.1

  	
  -

  	
  REVOLVING
  CREDIT LOAN REQUEST

  
	
  EXHIBIT 2.4.2

  	
  -

  	
  SWING
  LOAN REQUEST

  
	
  EXHIBIT 7.3.3

  	
  -

  	
  QUARTERLY
  COMPLIANCE CERTIFICATE

  



 


viii

















 


CREDIT AGREEMENT


 


THIS
CREDIT AGREEMENT is dated January 31, 2006 and is made by and among Papa
John’s International, Inc., a Delaware corporation (the “Borrower”), each
of the Guarantors (as hereinafter defined), RSC (as hereinafter defined), the
Banks (as hereinafter defined), PNC Bank, National Association, in its capacity
as administrative agent for the Banks under this Agreement (hereinafter
referred to in such capacity as the “Administrative Agent”), JPMorgan Chase
Bank, N.A., in its capacity as syndication agent for the Banks under this
Agreement (hereinafter referred to in such capacity as the “Syndication Agent”),
National City Bank of Kentucky, in its capacity as co-documentation agent for
the Banks under this Agreement, Bank of America, N.A., in its capacity as
co-documentation agent for the Banks under this Agreement and Fifth Third Bank,
in its capacity as co-documentation agent for the Banks under this Agreement
(each a “Co-Documentation Agent” and hereinafter collectively referred to in
such capacity as the “Co-Documentation Agents”).


 


WITNESSETH:


 


WHEREAS,
the Borrower has requested the Banks to provide a revolving credit facility
(including a letter of credit subfacility) to the Borrower in an aggregate
principal amount of One Hundred Seventy-Five Million and 00/100 Dollars
($175,000,000.00); and


 


WHEREAS,
the revolving credit facility shall be used (i) to repay certain existing
Indebtedness (as hereinafter defined) of the Borrower including amounts due
under the Prior Loan Documents (as hereinafter defined), (ii) to provide
working capital to the Borrower, and (iii) for general corporate purposes
of the Borrower, including transaction costs and expenses, capital
expenditures, letters of credit, stock repurchases, Permitted Acquisitions (as
hereinafter defined) and Permitted Investments (as hereinafter defined); and


 


WHEREAS,
the Banks are willing to provide such credit including letters of credit upon
the terms and conditions hereinafter set forth;


 


NOW,
THEREFORE, the parties hereto, in consideration of their mutual covenants and
agreements hereinafter set forth, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, covenant and
agree as follows:


 


1.                                       CERTAIN DEFINITIONS


1.1                                 Certain Definitions.


 


In
addition to words and terms defined elsewhere in this Agreement, the following
words and terms shall have the following meanings, respectively, unless the
context hereof clearly requires otherwise:


 


Administrative Agent shall mean PNC Bank, National Association, and its successors and
assigns.


 

















 


Administrative Agent’s Fee shall have the meaning assigned to that term in Section 9.15
[Administrative Agent’s Fee].


 


Administrative Agent’s Letter shall have the meaning assigned to that term in Section 9.15
[Administrative Agent’s Fee].


 


Affiliate as
to any Person shall mean any other Person (i) which directly or indirectly
controls, is controlled by, or is under common control with such Person, (ii) which
beneficially owns or holds ten percent (10%) or more of any class of the voting
or other equity interests of such Person, or (iii) ten percent (10%) or
more of any class of voting interests or other equity interests of which is
beneficially owned or held, directly or indirectly, by such Person.  Control, as used in this definition, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ownership
of voting securities, by contract or otherwise, including the power to elect a
majority of the directors or trustees of a corporation or trust, as the case
may be.


 


Agreement
shall mean this Credit Agreement, as the same may be supplemented, amended,
modified or restated from time to time, including all schedules and exhibits.


 


Annual Statements shall have the meaning assigned to that term in Section 5.1.9(i) [Financial
Statements].


 


Anti-Terrorism Laws shall mean any Laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA Patriot Act, the Laws
comprising or implementing the Bank Secrecy Act, and the Laws administered by
the United States Treasury Department’s Office of Foreign Asset Control (as any
of the foregoing Laws may from time to time be amended, renewed, extended, or
replaced).


 


Applicable Commitment Fee Percentage shall mean the percentage rate per annum at
the indicated Leverage Ratio of the Borrower and its Subsidiaries in the
pricing grid on Schedule 1.1(A), attached hereto and made a part hereof,
below the heading “Commitment Fee.”  The
Applicable Commitment Fee Percentage shall be computed in accordance with the
parameters set forth on Schedule 1.1(A).


 


Applicable Letter of Credit Fee Percentage shall mean the percentage at the indicated
Leverage Ratio of the Borrower and its Subsidiaries in the pricing grid on Schedule 1.1(A),
attached hereto and made a part hereof, below the heading “Letter of Credit Fee
Percentage”.  The Applicable Letter of
Credit Fee Percentage shall be computed in accordance with the parameters set
forth on Schedule 1.1(A).


 


Applicable Margin shall mean, as applicable:  the
percentage margin to be added to the Euro-Rate under the Euro-Rate Option at
the indicated Leverage Ratio of the Borrower and its Subsidiaries in the
pricing grid on Schedule 1.1(A), attached hereto and made a part
hereof, below the heading “Euro-Rate Margin”. 
The Applicable Margin shall be computed in accordance with the
parameters set forth on Schedule 1.1(A).


 


2

















 


Assignment and Assumption Agreement shall mean an Assignment and Assumption
Agreement by and among a Purchasing Bank, a Transferor Bank and the
Administrative Agent, as Administrative Agent and on behalf of the remaining
Banks, substantially in the form of Exhibit 1.1(A).


 


Authorized Officer shall mean those individuals, designated by written notice to the
Administrative Agent from the Borrower, authorized to execute notices, reports
and other documents on behalf of the Loan Parties or RSC required
hereunder.  The Borrower may amend such
list of individuals from time to time by giving written notice of such
amendment to the Administrative Agent.


 


Bank-Provided Hedge shall mean a Hedge Agreement which is provided by any Bank or an
Affiliate of a Bank and with respect to which the Administrative Agent confirms
meets the following requirements: such Hedge Agreement (i) is documented
in a standard International Swap Dealer Association Agreement or a similar
agreement acceptable to the Administrative Agent, (ii) provides for the
method of calculating the reimbursable amount of the provider’s credit exposure
in a reasonable and customary manner, and (iii) is entered into for
hedging (rather than speculative) purposes. 
The liabilities of the Loan Parties to the provider of any Bank-Provided
Hedge (the “Hedge Liabilities”) shall be “Obligations” hereunder, guaranteed
obligations under the Guaranty Agreements and otherwise treated as Obligations
for purposes of each of the other Loan Documents.


 


Banks shall
mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which
is referred to herein as a Bank.


 


Base Rate
shall mean the greater of (i) the interest rate per annum announced from
time to time by the Administrative Agent at its Principal Office as its then
prime rate, which rate may not be the lowest rate then being charged commercial
borrowers by the Administrative Agent, or (ii) the Federal Funds Open Rate
plus one-half of one percent (.50%) per annum.


 


Base Rate Option
shall mean the Revolving Credit Base Rate Option.


 


BBA shall
have the meaning assigned to that term in the definition of Euro-Rate.


 


Benefit Arrangement shall mean at any time an “employee benefit plan,” within the meaning
of Section 3(3) of ERISA, which is not a Plan, a Multiemployer Plan
or a Multiple Employer Plan and which is maintained, sponsored or otherwise
contributed to by any member of the ERISA Group.


 


BIBP shall
mean BIBP Commodities, Inc., a Delaware corporation.


 


Blocked Person
shall have the meaning assigned to such term in Section 5.1.24.2
[Anti-Terrorism Laws].


 


3

















 


Borrower
shall have the meaning assigned to such term in the preamble.


 


Borrower/RSC Guaranty Agreement shall mean the Guaranty and Suretyship
Agreement in substantially the form of Exhibit 1.1(G)(3) executed
and delivered by the Borrower to the Administrative Agent for the benefit of
the Banks on or after the date hereof, as amended, modified or supplemented
from time to time.


 


Borrowing Date
shall mean, with respect to any Loan, the date for the making thereof or the
renewal or conversion thereof at or to the same or a different Interest Rate
Option, which shall be a Business Day.


 


Borrowing Tranche shall mean specified portions of Loans outstanding as follows:  (i) any Loans to which a Euro-Rate
Option applies which become subject to the same Interest Rate Option under the
same Loan Request by the Borrower and which have the same Interest Period and
which are denominated either in Dollars or in the same Optional Currency shall
constitute one Borrowing Tranche, and (ii) all Loans to which a Base Rate
Option applies shall constitute one Borrowing Tranche.


 


British Pounds Sterling shall mean the official currency of the United Kingdom of Great
Britain and Northern Ireland.


 


Business Day
shall mean any day other than a Saturday or Sunday or a legal holiday on which
commercial banks are authorized or required to be closed for business in Pittsburgh,
Pennsylvania and (i) if the applicable Business Day relates to any Loan to
which the Euro-Rate Option applies, such day must also be a day on which
dealings are carried on in the London interbank market, and (ii) with
respect to advances or payments of Loans or any other matters relating to Loans
denominated in an Optional Currency, such day also shall be a day on which
dealings in deposits in the relevant Optional Currency are carried on in the
applicable interbank market, and (iii) with respect to advances or
payments of Loans denominated in an Optional Currency, such day shall also be a
day on which all applicable banks into which Loan proceeds may be deposited are
open for business and foreign exchange markets are open for business in the
principal financial center of the country of such currency.


 


Canadian Dollars
shall mean the official currency of Canada.


 


CDL shall
mean Capital Delivery, Ltd., a Kentucky corporation and its successors and
assigns.


 


CIP Regulations
shall have the meaning assigned to such term in Section 9.18 [No Reliance
on Administrative Agent’s CIP].


 


CLL shall
mean Colonel’s Limited, LLC, a Virginia limited liability company and its
successors and assigns.


 


Closing Date
shall mean the Business Day on which the first Loan shall be made, which shall
be January 31, 2006.


 


4

















 


Commercial Letter of Credit shall mean any Letter of Credit which is a commercial letter of credit
issued in respect of the purchase of goods or services by one or more of the
Loan Parties in the ordinary course of their business.


 


Commitment
shall mean, as to any Bank, the aggregate of its Revolving Credit Commitment
and, in the case of the Administrative Agent, the aggregate of its Revolving
Credit Commitment and its Swing Loan Commitment, and Commitments shall
mean the aggregate of the Revolving Credit Commitment and Swing Loan Commitment
of all of the Banks.


 


Commitment Fee
shall have the meaning assigned to such term in Section 2.3 [Commitment
Fees].


 


Compliance Certificate shall have the meaning assigned to such term in Section 7.3.3
[Certificate of the Borrower and the Borrower].


 


Computation Date
shall have the meaning assigned to such term in Section 2.8.1 [Periodic
Computations of Dollar Equivalent Amounts, etc].


 


Consolidated EBITDA shall
mean, for any period of determination, without duplication (i) the sum of
consolidated net income, depreciation, amortization, other non-cash charges to
net income, Consolidated Interest Expense and income tax expense, for such
period, minus (ii) non-cash credit to net income, in each case determined
and consolidated for the Borrower and its Subsidiaries (excluding the Excluded
VIE’s) in accordance with GAAP.


 


Consolidated Interest
Expense shall mean, for any period of determination, the
aggregate amount of interest or fees paid, accrued or scheduled to be paid or
accrued in respect of any Indebtedness (including the interest portion of
rentals under capitalized leases) and all but the principal component of
payments in respect of conditional sales or other title retention agreements
paid, accrued or scheduled to be paid or accrued during such period, net of
interest income, in each case determined and consolidated for the Borrower and
its Subsidiaries (excluding the Excluded VIE’s) in accordance with GAAP.


 


Consolidated Rental Expense shall
mean, for any period of determination, the aggregate rental amounts payable by
the Borrower and its Subsidiaries during such period under any lease of real
property having a remaining term (including any required renewals or any
renewals at the option of the lessor or lessee) of one year or more (but does
not include any amounts payable under capitalized leases or performance rents),
in each case determined and consolidated for the Borrower and its Subsidiaries
(excluding the Excluded VIE’s) in accordance with GAAP.


 


Consolidated Total
Indebtedness shall mean, as of any date of determination, any and
all Indebtedness of the Borrower and its Subsidiaries, in each case determined
and consolidated for the Borrower and its Subsidiaries (excluding the Excluded
VIE’s) in accordance with GAAP.


 


5

















 


Contamination
shall mean the presence or release or threat of release of Regulated Substances
in, on, under or emanating to or from the Property, which pursuant to
Environmental Laws requires notification or reporting to an Official Body, or
which pursuant to Environmental Laws requires the investigation, cleanup,
removal, remediation, containment, abatement of or other response action or
which otherwise constitutes a violation of Environmental Laws.


 


Co-Documentation Agent shall have the meaning assigned to such term in the preamble.


 


Co-Documentation Agents shall have the meaning assigned to such term in the preamble.


 


Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the United States
of America.


 


Dollar Equivalent shall mean, with respect to any amount of any currency, the Equivalent
Amount of such currency expressed in Dollars.


 


Dollar Equivalent Revolving Facility Usage shall mean at any time the sum of the Dollar
Equivalent amount of Revolving Credit Loans then outstanding and the Dollar
Equivalent amount of Letters of Credit Outstanding.


 


Drawing Date
shall have the meaning assigned to that term in Section 2.9.3.2
[Disbursements, Reimbursement].


 


Environmental Complaint shall mean any (i) notice of non-compliance or violation,
citation or order relating in any way to any Environmental Law, Environmental
Permit, Contamination or Regulated Substance; (ii) civil, criminal,
administrative or regulatory investigation instituted by an Official Body
relating in any way to any Environmental Law, Environmental Permit,
Contamination or Regulated Substance; (iii) administrative, regulatory or
judicial action, suit, claim or proceeding instituted by any Person or Official
Body or any written notice of liability or potential liability from any Person
or Official Body, in either instance, setting forth allegations relating to or
a cause of action for personal injury (including death), property damage,
natural resource damage, contribution or indemnity for the costs associated
with the performance of Remedial Actions, direct recovery for the costs
associated with the performance of Remedial Actions, liens or encumbrances
attached to or recorded or levied against property for the costs associated
with the performance of Remedial Actions, civil or administrative penalties,
criminal fines or penalties, or declaratory or equitable relief arising under any
Environmental Laws; or (iv) subpoena, request for information or other
written notice or demand of any type issued to the Borrower or any of its
Subsidiaries by an Official Body pursuant to any Environmental Laws.


 


Environmental Laws shall mean all federal, state, local and foreign Laws (including, but
not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. §§ 9601 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C.


 


6

















 


§ 6901
et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et
seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the
Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., the
Federal Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j, the Federal Air
Pollution Control Act, 42 U.S.C. § 7401 et seq., the Oil Pollution Act, 33
U.S.C. § 2701 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. §§ 136 to 136y) each as amended, and any regulations
promulgated thereunder or any equivalent state or local Law, each as amended,
and any regulations promulgated thereunder and any consent decrees, settlement
agreements, judgments, orders, directives or any binding policies having the
force and effect of law issued by or entered into with an Official Body
pertaining or relating to:  (i) pollution
or pollution control; (ii) protection of human health from exposure to
Regulated Substances; (iii) protection of the environment and/or natural
resources; (iv) the presence, use, management, generation, manufacture,
processing, extraction, treatment, recycling, refining, reclamation, labeling,
sale, transport, storage, collection, distribution, disposal or release or
threat of release of Regulated Substances; (v) the presence of
Contamination; (vi) the protection of endangered or threatened species;
and (vii) the protection of Environmentally Sensitive Areas.


 


Environmental Permits shall mean all permits, licenses, bonds or other forms of financial
assurances, consents, registrations, identification numbers, approvals or
authorizations required under Environmental Laws (i) to own, occupy or
maintain the Property; (ii) for the operations and business activities of
the Loan Parties or any Subsidiary of any Loan Party; or (iii) for the
performance of a Remedial Action.


 


Environmental Records shall mean all notices, reports, records, plans, applications, forms
or other filings relating or pertaining to the Property, Contamination, the
performance of a Remedial Action and the operations and business activities of
the Loan Parties which pursuant to Environmental Laws, Environmental Permits or
at the request or direction of an Official Body either must be submitted to an
Official Body or otherwise must be maintained.


 


Environmentally Sensitive Area shall mean (i) any wetland as defined by or designated by
applicable Laws, including applicable Environmental Laws; (ii) any area
designated as a coastal zone pursuant to applicable Laws, including
Environmental Laws; (iii) any area of historic or archeological
significance or scenic area as defined or designated by applicable Laws,
including Environmental Laws; (iv) habitats of endangered species or
threatened species as designated by applicable Laws, including Environmental
Laws; (v) wilderness or refuge areas as defined or designated by
applicable Laws, including Environmental Laws; or (vi) a floodplain or
other flood hazard area as defined pursuant to any applicable Laws.


 


Equivalent Amount shall mean, at any time, as determined by the Administrative Agent
(which determination shall be conclusive absent manifest error), with respect
to an amount of any currency (the “Reference Currency”) which is to be computed
as an equivalent amount of another currency (the “Equivalent Currency”): (i) if
the Reference Currency and the Equivalent Currency are the same, the amount of
such Reference Currency, or (ii) if the Reference Currency and the
Equivalent Currency are not the same, the amount of such Equivalent Currency
converted from such Reference Currency at the Administrative Agent’s spot
selling rate (based on the market rates then prevailing and available to the
Administrative Agent) for the sale of such Equivalent Currency for such
Reference Currency at a time determined by the


 


7

















 


Administrative
Agent on the second Business Day immediately preceding the event for which such
calculation is made.


 


Equivalent Currency shall have the meaning assigned to such term in the definition of Equivalent
Amount.


 


ERISA shall
mean the Employee Retirement Income Security Act of 1974, as the same may be
amended or supplemented from time to time, and any successor statute of similar
import, and the rules and regulations thereunder, as from time to time in
effect.


 


ERISA Group
shall mean, at any time, the Borrower and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control and all other entities which, together with the Borrower, are
treated as a single employer under Section 414 of the Internal Revenue
Code.


 


Euro shall
mean the European common currency pursuant to the European Monetary Union.


 


Eurocurrency Liabilities shall have the meaning assigned to such term in the definition of
Euro-Rate Reserve Percentage.


 


Euro-Rate
shall mean the following:


 


(A) with
respect to Dollar Loans comprising any Borrowing Tranche to which the Euro-Rate
Option applies for any Interest Period, the interest rate per annum determined
by the Administrative Agent by dividing (the resulting quotient rounded
upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the Administrative Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank offered rates for U.S. Dollars
quoted by the British Bankers’ Association (“BBA”) as set forth on the
Moneyline Telerate (or appropriate successor or, if the BBA or its successor
ceases to provide such quotes, a comparable replacement determined by the
Administrative Agent) display page 3750 (or such other display page on
the Moneyline Telerate service as may replace display page 3750) two (2) Business
Days prior to the first day of such Interest Period for an amount comparable to
such Borrowing Tranche and having a borrowing date and a maturity comparable to
such Interest Period by (ii) a number equal to 1.00 minus the Euro-Rate
Reserve Percentage.  Such Euro-Rate may
also be expressed by the following formula:


 


	
   

  	
   

  	
  Average of London
  interbank offered rates quoted by

  	
   

  
	
   

  	
   

  	
  BBA or appropriate
  successor as shown on Moneyline

  	
   

  
	
   

  	
  Euro-Rate =

  	
  Telerate Service display page 3750

  	
   

  
	
   

  	
   

  	
  1.00 - Euro-Rate Reserve
  Percentage

  	
   

  



 


The
Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt
notice to the Borrower of the


 


8

















 


Euro-Rate
as determined or adjusted in accordance herewith, which determination shall be
conclusive absent manifest error.


 


(B) with
respect to Optional Currency Loans comprising any Borrowing Tranche to which
the Euro-Rate Option applies for any Interest Period, the interest rate per
annum determined by the Administrative Agent by dividing (the resulting
quotient rounded upwards, if necessary, to the nearest 1/100th of one percent
(1%) per annum) (i) the rate of interest per annum determined by the
Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the rate of
interest per annum for deposits in the relevant Optional Currency quoted by the
BBA as set forth on Moneyline Telerate (or appropriate successor or, if the BBA
or its successors ceases to provide such quotes, a comparable replacement
determined by the Administrative Agent) on the relevant display page (or
such other display page on the Moneyline Telerate service as may replace
such display page) at approximately 9:00 a.m., Pittsburgh, Pennsylvania
time, two (2) Business Days prior to the first day of such Interest Period
for delivery on the first day of such Interest Period for a period, and in an
amount, comparable to such Interest Period and principal amount of such
Borrowing Tranche (“LIBO Rate”) by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage.  Such
Euro-Rate may also be expressed by the following formula:


 


	
   

  	
  Euro-Rate
  =

  	
  LIBO Rate

  	
   

  
	
   

  	
   

  	
  1.00 - Euro-Rate Reserve Percentage

  	
   

  



 


The
Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt
notice to the Borrower of the Euro-Rate as determined or adjusted in accordance
herewith, which determination shall be conclusive absent manifest error.  The Euro-Rate for any Loans shall be based
upon the Euro-Rate for the currency in which such Loans are requested.


 


Euro-Rate Option
shall mean the Revolving Credit Euro-Rate Option.


 


Euro-Rate Reserve Percentage shall mean as of any day the maximum percentage in effect on such day:
(i) as prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirements (including
supplemental, marginal and emergency reserve requirements) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency Liabilities”); and
(ii) to be maintained by a Bank as required for reserve liquidity, special
deposit, or a similar purpose by any governmental or monetary authority of any
country or political subdivision thereof (including any central bank), against (A) any
category of liabilities that includes deposits by reference to which a
Euro-Rate is to be determined, or (B) any category of extension of credit
or other assets that includes Loans or Borrowing Tranches to which a Euro-Rate
applies.


 


Event of Default
shall mean any of the events described in Section 8.1 [Events of Default]
and referred to therein as an “Event of Default.”


 


9

















 


Excluded Subsidiary shall mean any Subsidiary of the Borrower that is not a Loan Party.


 


Excluded VIE
shall mean those VIE’s identified in Schedule 1.1(E)(1) attached
hereto and made a part hereof, together with any VIE hereafter that is
requested by the Borrower to be approved by the Banks as an Excluded VIE and
that the Required Banks, each acting in their sole and absolute discretion,
approve as an Excluded VIE pursuant to execution and delivery by the Required
Banks of a document not materially varying from the form thereof attached to
and made a part hereof as Exhibit 1.1(E), a copy of which shall be
delivered by the Administrative Agent to the Borrower and each of the Banks
promptly following receipt by the Administrative Agent thereof, signed by at
least the Required Banks, it being understood and agreed that no Bank shall
have any obligation to approve any additional Excluded VIE for which approval
is requested by the Borrower.


 


Excess Interest
shall have the meaning assigned to that term in Section 3.1 [Interest Rate
Options].


 


Executive Order No. 13224 shall mean the Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, as the same has been, or shall hereafter be,
renewed, extended, amended or replaced.


 


Expiration Date
shall mean January 31, 2011.


 


Existing Letters of Credit shall mean all letters of credit set forth on Schedule 1.1(E)(2) which
were issued by the financial institution listed on Schedule 1.1(E)(2) under
the Existing Credit Agreement prior to the date hereof upon the application of
a Loan Party (or RSC, in the case of the RSC Letter of Credit) and are
outstanding on the Closing Date.


 


Federal Funds Effective Rate for any day shall mean the rate per annum (based on a year of 360 days
and actual days elapsed and rounded upward to the nearest 1/100 of 1%) announced
by the Federal Reserve Bank of New York (or any successor) on such day as being
the weighted average of the rates on overnight federal funds transactions
arranged by federal funds brokers on the previous trading day, as computed and
announced by such Federal Reserve Bank (or any successor) in substantially the
same manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the “Federal Funds Effective Rate” as of the date of
this Agreement; provided, if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the “Federal Funds Effective
Rate” for such day shall be the Federal Funds Effective Rate for the last day
on which such rate was announced.


 


Federal Funds Open Rate for any day shall mean the rate per annum determined by the
Administrative Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the “open” rate
for federal funds transactions as of the opening of business for federal funds
transactions among members of the Federal Reserve System arranged by federal
funds brokers on such day, as quoted by Garvin Guybutler, any successor entity
thereto, or any other broker selected by the Administrative Agent, as set forth
on the applicable Telerate display page; provided, however; that if such day is
not a


 


10

















 


Business
Day, the Federal Funds Open Rate for such day shall be the “open” rate on the
immediately preceding Business Day, or if no such rate shall be quoted by a
Federal funds broker at such time, such other rate as determined by the
Administrative Agent in accordance with its usual procedures.


 


Financial Projections shall have the meaning assigned to that term in Section 5.1.9(ii) [Financial
Statements].


 


Foreign Subsidiary shall mean any Subsidiary of the Borrower that is not organized under
the Laws of the United States or any state thereof.


 


GAAP shall
mean generally accepted accounting principles as are in effect in the United
States from time to time, subject to the provisions of Section 1.3
[Accounting Principles], and applied on a consistent basis both as to
classification of items and amounts.


 


Governmental Acts shall have the meaning assigned to that term in Section 2.9.8
[Indemnity].


 


Guarantor
shall mean separately, and Guarantors shall mean collectively, each of
the parties to this Agreement which is designated as a “Guarantor” on the
signature page hereof and each other Person which joins this Agreement as
a Guarantor after the date hereof pursuant to Section 10.18 [Joinder of
Guarantors].


 


Guarantor Joinder shall mean a joinder by a Person as a Guarantor under this Agreement,
the Guaranty Agreement and the other Loan Documents in the form of Exhibit 1.1(G)(1).


 


Guaranty of
any Person shall mean any obligation of such Person guaranteeing or in effect
guaranteeing any liability or obligation of any other Person in any manner,
whether directly or indirectly, including any agreement to indemnify or hold
harmless any other Person, any performance bond or other suretyship arrangement
and any other form of assurance against loss, except endorsement of negotiable
or other instruments for deposit or collection in the ordinary course of
business.


 


Guaranty Agreement or Guaranty Agreements shall mean, singularly or collectively,
as the context may require, the Guaranty and Suretyship Agreements in
substantially the form of Exhibit 1.1(G)(2) executed and
delivered by the Guarantors to the Administrative Agent for the benefit of the
Banks on or after the date hereof, as amended, modified or supplemented from
time to time.


 


Hedge Agreements
shall mean foreign exchange agreements, currency swap agreements, interest rate
exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor
agreements or similar hedging agreements entered into by the Borrower or its
Subsidiaries in the ordinary course of business and not for speculative
purposes.


 


Hedge Liabilities shall have the meaning assigned to that term in the definition of
Bank-Provided Hedge.


 


11

















 


Historical Statements shall have the meaning assigned to that term in Section 5.1.9(i) [Financial
Statements].


 


Indebtedness
shall mean, as to any Person at any time, any and all indebtedness, obligations
or liabilities (whether matured or unmatured, liquidated or unliquidated,
direct or indirect, absolute or contingent, or joint or several) of such Person
for or in respect of:  (i) borrowed
money, (ii) amounts raised under or liabilities in respect of any note
purchase or acceptance credit facility, (iii) reimbursement obligations
(contingent or otherwise) under any letter of credit or Hedge Agreement, (iv) any
other transaction (including forward sale or purchase agreements, capitalized
leases and conditional sales agreements) having the commercial effect of a
borrowing of money entered into by such Person to finance its operations or
capital requirements (but not including trade payables and accrued expenses
incurred in the ordinary course of business which are not represented by a
promissory note or other evidence of indebtedness and which are not more than
thirty (30) days past due, or (v) any Guaranty of Indebtedness for
borrowed money; provided, however, that it is expressly agreed that the
Indebtedness of the Borrower pursuant to the RSC/Borrower Letter of Credit
shall not be considered Indebtedness for purposes of this Agreement so long as (1) the
same has not been drawn against and (2) the principal amount of such
Indebtedness does not exceed Eighteen Million and 00/100 Dollars
($18,000,000.00).


 


Ineligible Securities shall mean any security which may not be underwritten or dealt in by
member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.


 


Insolvency Proceeding  shall mean, with respect to any
Person, (a) a case, action or proceeding with respect to such Person (i) before
any court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of such Person or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
such Person’s creditors generally or any substantial portion of its creditors;
undertaken under any Law.


 


Intercompany Subordination Agreement shall mean an Intercompany Subordination
Agreement among the Loan Parties in the form attached hereto as Exhibit 1.1(I).


 


Interest Coverage Ratio shall mean the ratio of (a) the sum of (i) Consolidated
EBITDA and (ii) Consolidated Rental Expense, to (b) the sum of (i) Consolidated
Interest Expense and (ii) Consolidated Rental Expense.


 


Interest Period
shall mean the period of time selected by the Borrower in connection with (and
to apply to) any election permitted hereunder by the Borrower to have Revolving
Credit Loans bear interest under the Euro-Rate Option.  Subject to the last sentence of this
definition, such period shall be one (1), two (2), three (3), six (6) or
twelve (12) Months if Borrower selects the Euro-Rate Option; provided, however with respect to
Revolving Credit


 


12

















 


Loans
made or to be made in an Optional Currency, such period shall be one (1) Month.  Such Interest Period shall commence on the
effective date of such Interest Rate Option, which shall be (i) the
Borrowing Date if the Borrower is requesting new Loans, or (ii) the date
of renewal of or conversion to the Euro-Rate Option if the Borrower is renewing
or converting to the Euro-Rate Option applicable to outstanding Loans.  Notwithstanding the second sentence hereof: (A) any
Interest Period which would otherwise end on a date which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day, and (B) the Borrower shall not select,
convert to or renew an Interest Period for any portion of the Loans that would
end after the applicable Expiration Date.


 


Interest Rate Option shall mean any Euro-Rate Option or Base Rate Option.


 


Internal Revenue Code shall mean the Internal Revenue Code of 1986, as the same may be
amended or supplemented from time to time, and any successor statute of similar
import, and the rules and regulations thereunder, as from time to time in
effect.


 


Japanese Yen
shall mean the official currency of Japan.


 


Jeffersontown IRB shall mean collectively (i) that certain Seven Million Five
Hundred Thousand and 00/100 Dollar ($7,500,000.00) Industrial Revenue Bond
issued by the City of Jeffersontown, Kentucky on December 27, 1997, (ii) that
certain Sixty Two Million Seven Hundred Thousand and 00/100 Dollar
($62,700,000.00) Industrial Revenue Bond issued by the City of Jeffersontown,
Kentucky on November 9, 1999, and (iii) that certain Ten Million and
00/100 Dollar ($10,000,000.00) Industrial Revenue Bond issued by the City of
Jeffersontown, Kentucky on December 20, 2000, each of the same being
supported by the sale and leaseback of property located at 2002 Papa John’s
Boulevard, Jeffersontown, Kentucky.


 


Labor Contracts
shall mean all employment agreements, employment contracts, collective
bargaining agreements and other similar agreements guaranteeing a right of
employment among any Loan Party or a Subsidiary of a Loan Party and its
employees.


 


Law shall
mean any law (including common law), constitution, statute, treaty, regulation,
rule, ordinance, opinion, release, ruling, order, injunction, writ, decree,
bond, judgment, authorization or approval, lien or award of or settlement
agreement with any Official Body.


 


Letter of Credit
shall have the meaning assigned to that term in Section 2.9.1 [Issuance of
Letters of Credit].


 


Letter of Credit Borrowing shall have the meaning assigned to such term in Section 2.9.3.4
[Disbursements, Reimbursement].


 


Letter of Credit Fees shall have the meaning assigned to that term in Section 2.9.2
[Letter of Credit Fees].


 


13

















 


Letters of Credit Outstanding shall mean at any time the sum of (i) the aggregate undrawn face
amount of outstanding Letters of Credit and (ii) the aggregate amount of
all unpaid and outstanding Reimbursement Obligations and Letter of Credit
Borrowings.


 


Leverage Ratio
shall mean, as of any date of determination, the ratio of (a) Consolidated
Total Indebtedness on such date (excluding Indebtedness under the Jeffersontown
IRB so long as such Indebtedness is owed to a Subsidiary of the Borrower), to (b) Consolidated
EBITDA for the four (4) fiscal quarters ending on such date.


 


Lien shall
mean any mortgage, leasehold mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the
filing).


 


LLC Interests
shall have the meaning assigned to such term in Section 5.1.3
[Subsidiaries].


 


Loan Documents
shall mean this Agreement, the Administrative Agent’s Letter, the Guaranty
Agreements, the Intercompany Subordination Agreement, the Notes, agreements
related to Bank-Provided Hedges, the Letters of Credit, the Borrower/RSC
Guaranty Agreement and any other instruments, certificates or documents delivered
or contemplated to be delivered hereunder or thereunder or in connection
herewith or therewith, as the same may be supplemented or amended from time to
time in accordance herewith or therewith, and Loan Document shall mean
any of the Loan Documents.


 


Loan Parties
shall collectively mean the Borrower and the Guarantors and Loan Party
shall mean the Borrower or any Guarantor.


 


Loan Request
shall mean either a Revolving Credit Loan Request or a Swing Loan Request.


 


Loans shall
mean collectively and Loan shall mean separately all Revolving Credit
Loans and Swing Loans or any Revolving Credit Loan or Swing Loan, respectively.


 


Margin Stock
shall mean margin stock as defined in Regulation U, together with all official
rulings and interpretations issued thereunder.


 


Material Adverse Change shall mean any set of circumstances or events which (a) has or
could reasonably be expected to have any material adverse effect whatsoever
upon the validity or enforceability of this Agreement or any other Loan
Document, (b) is or could reasonably be expected to be material and
adverse to the business, properties, assets, financial condition, results of
operations or prospects of the Loan Parties taken as a whole, (c) impairs
materially or could reasonably be expected to impair materially the ability of
the Loan Parties to duly and punctually pay or perform their Indebtedness, or (d) impairs
materially or could


 


14

















 


reasonably
be expected to impair materially the ability of the Administrative Agent or any
of the Banks, to the extent permitted, to enforce their legal remedies pursuant
to this Agreement or any other Loan Document.


 


Mexican Peso
shall mean the official currency of Mexico.


 


Month, with
respect to an Interest Period under the Euro-Rate Option, shall mean the
interval between the days in consecutive calendar months numerically
corresponding to the first day of such Interest Period.  If any Euro-Rate Interest Period begins on a
day of a calendar month for which there is no numerically corresponding day in
the month in which such Interest Period is to end, the final month of such
Interest Period shall be deemed to end on the last Business Day of such final
month.


 


Moody’s shall
mean Moody’s Investors Service, Inc. and its successors.


 


Multiemployer Plan shall mean any employee benefit plan which is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA and to which the
Borrower or any member of the ERISA Group is then making or accruing an
obligation to make contributions or, within the preceding five (5) Plan
years, has made or had an obligation to make such contributions.


 


Multiple Employer Plan shall mean a Plan which has two (2) or more contributing sponsors
(including the Borrower or any member of the ERISA Group) at least two (2) of
whom are not under common control, as such a plan is described in
Sections 4063 and 4064 of ERISA.


 


Notes shall
collectively mean the Revolving Credit Notes and the Swing Note.


 


Notices shall
have the meaning assigned to that term in Section 10.6 [Notices; Lending
Offices].


 


Obligation
shall mean any obligation or liability of any of the Loan Parties or RSC to the
Administrative Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Administrative Agent’s Letter or any
other Loan Document.  Obligations shall
include the liabilities to any Bank under any Bank-Provided Hedge but shall not
include the liabilities to other Persons under any other Hedge Agreement.


 


Official Body
shall mean any national, federal, state, local or other government or political
subdivision or any agency, authority, board, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.


 


Optional Currency shall mean any of the following currencies (i) British Pounds
Sterling, (ii) Japanese Yen, (iii) Euros, (iv) Mexican Pesos, (v) Canadian
Dollars and (vi)


 


15

















 


any
other currency approved by Administrative Agent and all of the Banks pursuant
to Section 2.12 [Optional Currency Amounts].


 


Original Currency shall have the meaning assigned to such term in Section 4.9.1
[Currency Conversation Procedures for Judgments].


 


Order shall
have the meaning assigned to such term in Section 2.9.9 [Liability for
Acts and Omissions].


 


Other Currency
shall have the meaning assigned to such term in Section 4.9.1 [Currency
Conversion Procedures for Judgments].


 


Other Taxes
shall have the meaning assigned to such term in Section 4.8.2 [Stamp
Taxes].


 


Overnight Rate
shall mean for any day with respect to any Loans in an Optional Currency, the
rate of interest per annum as determined by the Administrative Agent at which
overnight deposits in the such currency, in an amount approximately equal to
the amount with respect to which such rate is being determined, would be
offered for such day in the applicable offshore interbank market.


 


Participation Advance shall mean, with respect to any Bank, such Bank’s payment in respect
of its participation in a Letter of Credit Borrowing according to its Ratable
Share pursuant to Section 2.9.3.3 [Disbursements, Reimbursement].


 


Partnership Interests shall have the meaning given to such term in Section 5.1.3
[Subsidiaries].


 


PBGC shall
mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA or any successor.


 


Permitted Acquisitions shall have the meaning assigned to such term in Section 7.2.6
[Liquidations, Mergers, Consolidations, Acquisitions].


 


Permitted Investments shall mean:


 


(i)                                     direct obligations of the United States of
America or any agency or instrumentality thereof or obligations backed by the
full faith and credit of the United States of America maturing in twelve (12)
months or less from the date of acquisition;


 


(ii)                                  commercial paper maturing in one hundred
eighty (180) days or less rated not lower than A-1, by Standard & Poor’s
or P-1 by Moody’s on the date of acquisition;


 


(iii)                               demand deposits, time deposits or
certificates of deposit maturing within one year in commercial banks whose
obligations are rated A-1, A or the equivalent or better by Standard &
Poor’s on the date of acquisition;


 


16

















 


iv)                                  variable
rate demand notes having a minimum long-term credit rating of A2 or A, or the
equivalent, using the lowest credit rating by Moody’s or Standard & Poor’s,
or with a short-term credit rating of A-1/P-2 or A-2/P-1, or the equivalent,
using the lowest credit rating by Moody’s or Standard & Poor’s (issues with
only one short-term credit rating must have a minimum credit rating of A-1, P-1
or the equivalent); and


 


(v)                                 any
investment existing on the date of this Agreement and described on Schedule 1.1(P)(1).


 


Permitted Liens shall mean:


 


(i)                                     Liens
for taxes, assessments, or similar charges, incurred in the ordinary course of
business and which are not yet due and payable;


 


(ii)                                  Pledges
or deposits made in the ordinary course of business to secure payment of
workmen’s compensation, or to participate in any fund in connection with
workmen’s compensation, unemployment insurance, old-age pensions or other
social security programs;


 


(iii)                               Liens
of mechanics, materialmen, warehousemen, carriers, or other like Liens,
securing obligations incurred in the ordinary course of business that are not
yet due and payable and Liens of landlords securing obligations to pay lease
payments that are not yet due and payable or in default;


 


(iv)                              Good-faith
pledges or deposits made in the ordinary course of business to secure
performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, not in excess of the aggregate amount due
thereunder, or to secure statutory obligations, or surety, appeal, indemnity,
performance or other similar bonds required in the ordinary course of business;


 


(v)                                 Encumbrances
consisting of zoning restrictions, easements or other restrictions on the use
of real property, none of which materially impairs the use of such property or
the value thereof, and none of which is violated in any material respect by
existing or proposed structures or land use;


 


(vi)                              Liens
on property leased by any Loan Party or any Subsidiary of any Loan Party under
capital and operating leases securing obligations of such Loan Party or
Subsidiary to the lessor under such leases;


 


(vii)                           Any
Lien existing on the date of this Agreement and described on Schedule
1.1(P)(2), provided that the principal amount secured thereby
is not hereafter increased, and no additional assets become subject to such
Lien;


 


(viii)                        Purchase
Money Security Interests, provided that the aggregate amount of loans
and deferred payments secured by such Purchase Money Security Interests shall
not exceed the amount set forth in Section 7.2.1(iii) hereof (excluding for the


 


17

















 


purpose of this
computation any loans or deferred payments secured by Liens described on Schedule 1.1(P)(2));


 


(ix)                                The
following, (A) if the validity or amount thereof is being contested in
good faith by appropriate and lawful proceedings diligently conducted so long
as levy and execution thereon have been stayed and continue to be stayed or
(B) if a final judgment is entered and such judgment is discharged within
thirty (30) days of entry, and in any case they do not in the aggregate
materially impair the ability of any Loan Party to perform its Obligations
hereunder or under the other Loan Documents:


 


(1)                                  Claims
or Liens for taxes, assessments or charges due and payable and subject to
interest or penalty, provided that the applicable Loan Party maintains
such reserves or other appropriate provisions as shall be required by GAAP and
pays all such taxes, assessments or charges forthwith upon the commencement of
proceedings to foreclose any such Lien;


 


(2)                                  Claims,
Liens or encumbrances upon, and defects of title to, real or personal property,
including any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits;


 


(3)                                  Claims
or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory
nonconsensual Liens; or


 


(4)                                  Liens
resulting from final judgments or orders described in Section 8.1.6 [Final
Judgment or Orders].


 


Person shall mean any individual,
corporation, partnership, limited liability company, association, joint-stock
company, trust, unincorporated organization, joint venture, government or
political subdivision or agency thereof, or any other entity.


 


Plan shall mean at any time an employee
pension benefit plan (including a Multiple Employer Plan, but not a
Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the
minimum funding standards under Section 412 of the Internal Revenue Code
and either (i) is maintained by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained by any entity which was at such time a
member of the ERISA Group for employees of any entity which was at such time a
member of the ERISA Group.


 


PNC Bank shall mean PNC Bank,
National Association, its successors and assigns.


 


Potential Default shall mean any
event or condition which with notice, passage of time or a determination by the
Administrative Agent or the Required Banks, or any combination of the
foregoing, would constitute an Event of Default.


 


Principal Office shall mean the main
banking office of the Administrative Agent in Pittsburgh, Pennsylvania.


 


18

















 


Prior Loan Agreement shall mean the
Credit Agreement, dated as of January 27, 2003, by and among the Borrower, the
lenders party thereto, Bank One, Kentucky, NA, as administrative agent, PNC
Bank, as syndication agent, and Banc One Capital Markets, Inc., as lead
arranger and sole book runner, as amended, modified or supplemented from time
to time.


 


Prior Loan Documents shall mean the
Prior Loan Agreement and any and all other related documents entered into in
connection therewith, as amended, modified or supplemented from time to time.


 


Prohibited Transaction shall mean
any prohibited transaction as defined in Section 4975 of the Internal
Revenue Code or Section 406 of ERISA for which neither an individual nor a
class exemption has been issued by the United States Department of Labor.


 


Property shall mean all real
property, both owned and leased, of any Loan Party or Subsidiary of a Loan
Party.


 


Purchase Money Security Interest
shall mean Liens upon real or tangible personal property securing loans to any
Loan Party or Subsidiary of a Loan Party or deferred payments by such Loan
Party or Subsidiary for the purchase of such real or tangible personal
property.


 


Purchasing Bank shall mean a Bank
which becomes a party to this Agreement by executing an Assignment and
Assumption Agreement.


 


Ratable Share shall mean the
proportion that a Bank’s Commitment (excluding the Swing Loan Commitment) bears
to the Commitments (excluding the Swing Loan Commitment) of all of the Banks.


 


Reference Currency shall have the meaning
assigned to such term in the definition of Equivalent Amount.


 


Regulated Substances shall mean,
without limitation, any substance, material or waste, regardless of its form or
nature, defined under Environmental Laws as a “hazardous substance,” “pollutant,”
“pollution,” “contaminant,” “hazardous or toxic substance,” “extremely
hazardous substance,” “toxic chemical,” “toxic substance,” “toxic waste,” “hazardous
waste,” “special handling waste,” “industrial waste,” “residual waste,” “solid
waste,” “municipal waste,” “mixed waste,” “infectious waste,” “chemotherapeutic
waste,” “medical waste,” “pesticide” or “regulated substance” or any other
substance, material or waste, regardless of its form or nature, which is
regulated, controlled or governed by Environmental Laws due to its radioactive,
ignitable, corrosive, reactive, explosive, toxic, carcinogenic or infectious
properties or nature or any other material, substance or waste, regardless of
its form or nature, which otherwise is regulated, controlled or governed by
Environmental Laws, including petroleum and petroleum products (including crude
oil and any fractions thereof), natural gas, synthetic gas and any mixtures
thereof, asbestos, urea formaldehyde, polychlorinated biphenyls, mercury, radon
and radioactive materials.


 


19

















 


Regulation U shall mean Regulation
U, T or X as promulgated by the Board of Governors of the Federal Reserve
System, as amended from time to time.


 


Regulations shall have the meaning
assigned to that term in Section 10.17.1 [Tax Withholding Clause]


 


Reimbursement Obligation shall have
the meaning assigned to such term in Section 2.9.3.2 [Disbursements,
Reimbursement].


 


Remedial Action shall mean any
investigation, identification, preliminary assessment, characterization,
delineation, feasibility study, cleanup, corrective action, removal,
remediation, risk assessment, fate and transport analysis, in situ treatment,
containment, operation and maintenance or management in-place, control or
abatement of or other response actions to Regulated Substances and any closure
or post-closure measures associated therewith.


 


Reportable Event shall mean a
reportable event described in Section 4043 of ERISA and regulations
thereunder with respect to a Plan, a Multiemployer Plan or a Multiple Employer
Plan.


 


Required Banks shall mean:


 


(A)                              if
there are no Loans, Reimbursement Obligations or Letter of Credit Borrowings
outstanding, Banks whose Commitments (excluding the Swing Loan Commitments)
aggregate more than fifty percent (50%) of the Commitments (excluding the Swing
Loan Commitments) of all of the Banks, or


 


(B)                                if
there are Loans, Reimbursement Obligations, or Letter of Credit Borrowings
outstanding, any Bank or group of Banks if the sum of the Loans (excluding the
Swing Loans), Reimbursement Obligations and Letter of Credit Borrowings of such
Banks then outstanding aggregates more than fifty percent (50%) of the total
principal amount of all of the Loans (excluding the Swing Loans), Reimbursement
Obligations and Letter of Credit Borrowings then outstanding.


 


Reimbursement Obligations
and Letter of Credit Borrowings shall be deemed, for purposes of this
definition, to be in favor of the Administrative Agent and not a participating
Bank if such Bank has not made its Participation Advance in respect thereof and
shall be deemed to be in favor of such Bank to the extent of its Participation
Advance if it has made its Participation Advance in respect thereof.


 


Required Share shall have the
meaning assigned to such term in Section 4.10 [Settlement Date Procedures].


 


Revolving Credit Base Rate Option
shall mean the option of the Borrower to have Revolving Credit Loans bear
interest at the rate and under the terms and conditions set forth in
Section 3.1.1(i) [Revolving Credit Interest Rate Options].


 


20

















 


Revolving Credit Commitment shall
mean, as to any Bank at any time, the amount initially set forth opposite its
name on Schedule 1.1(B) in the column labeled “Amount of Commitment for
Revolving Credit Loans,” and thereafter on Schedule I to the most recent
Assignment and Assumption Agreement, and Revolving Credit Commitments
shall mean the aggregate Revolving Credit Commitments of all of the Banks.


 


Revolving Credit Euro-Rate Option
shall mean the option of the Borrower to have Revolving Credit Loans bear
interest at the rate and under the terms and conditions set forth in
Section 3.1.1(ii) [Revolving Credit Interest Rate Options].


 


Revolving Credit Loans shall mean
collectively and Revolving Credit Loan shall mean separately all
Revolving Credit Loans or any Revolving Credit Loan made by the Banks or one of
the Banks to the Borrower pursuant to Section 2.1 [Revolving Credit and
Swing Loan Commitments] or 2.9.3 [Disbursements, Reimbursement].


 


Revolving Credit Loan Request shall
mean a request for Revolving Credit Loans in accordance with Section 2.4.1
[Revolving Credit Loan Requests] hereof.


 


Revolving Credit Notes shall mean
collectively and Revolving Credit Note shall mean separately all the
Revolving Credit Notes of the Borrower in the form of Exhibit 1.1(R)
evidencing the Revolving Credit Loans together with all amendments, extensions,
renewals, replacements, refinancings or refundings thereof in whole or in part.


 


RSC shall mean RSC Insurance
Services Ltd., a Bermuda company and its successors and assigns.


 


RSC/Borrower Letter of Credit shall
mean a Letter of Credit, in an amount not greater than the amount from time to
time of the RSC Letter of Credit, issued for the account of the Borrower in
favor of RSC to facilitate the underwriting by RSC of insurance for franchisees
of the Borrower in the ordinary course of the Borrower’s business and that the
Borrower intends to be drawn against promptly following, and in an amount equal
to the amount of, any drafts drawn under the RSC Letter of Credit.


 


RSC Letter of Credit shall mean a
letter of credit issued for the account of RSC in favor of a reinsurance
company incidental to the underwriting by RSC of insurance for franchisees of
Borrower in the ordinary course of Borrower’s business.


 


RSC Letter of Credit (PNC) shall
mean the RSC Letter of Credit so long as such letter of credit is a Letter of
Credit issued pursuant to the provisions of this Agreement.


 


Safety Complaints shall mean any (i)
notice of non-compliance or violation, citation or order relating in any way to
any Safety Law; (ii) civil, criminal, administrative or regulatory
investigation instituted by an Official Body relating in any way to any Safety
Law; (iii) administrative, regulatory or judicial action, suit, claim or
proceeding instituted by any Person or Official Body or any written notice of
liability or potential liability from any Person or Official Body, in either
instance, setting forth allegations relating to or a cause of action for civil
or administrative penalties, criminal fines or penalties, or declaratory or


 


21

















equitable relief arising
under any Safety Laws; or (iv) subpoena, request for information or other
written notice or demand of any type issued by an Official Body pursuant to any
Safety Laws.


 


Safety Filings and Records shall
mean all notices, reports, records, plans, applications, forms, logs, programs,
manuals or other filings or documents relating or pertaining to compliance with
Safety Laws, including employee safety in the workplace, employee injuries or
fatalities, employee training, or the protection of employees from exposure to
Regulated Substances which pursuant to Safety Laws or at the direction or order
of any Official Body, the Loan Parties or any Subsidiaries of any Loan Party
either must submit to an Official Body or otherwise must maintain in their
records.


 


Safety Laws shall mean the
Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., as amended,
and any regulations promulgated thereunder or any equivalent foreign, federal,
state or local Law, each as amended, and any regulations promulgated thereunder
or any other foreign, federal, state or local Law, each as amended, and any
regulations promulgated thereunder, pertaining or relating to the protection of
employees from exposure to Regulated Substances in the workplace (but excluding
workers compensation and wage and hour laws).


 


SEC shall mean the Securities and
Exchange Commission or any governmental agencies substituted therefor.


 


Section 20 Subsidiary  shall mean the Subsidiary of the bank holding
company controlling any Bank, which Subsidiary has been granted authority by
the Federal Reserve Board to underwrite and deal in certain Ineligible
Securities.


 


Settlement Date shall mean any
Business Day on which the Administrative Agent elects to effect settlement
pursuant to Section 4.10 [Settlement Date Procedures].


 


Solvent shall mean, with respect to
any Person on a particular date, that on such date (i) the fair value of
the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(ii) the present fair saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (iii) such
Person is able to realize upon its assets and pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal
course of business, (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability
to pay as such debts and liabilities mature, and (v) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person’s property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended that 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.


 


22

















 


Standard & Poor’s shall mean
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.


 


Standby Letter of Credit shall mean
a Letter of Credit issued to support obligations of one or more of the Loan
Parties or, solely with respect to the RSC Letter of Credit (PNC), RSC,
contingent or otherwise, which finance the working capital and business needs
of the Loan Parties incurred in the ordinary course of business.


 


SPL shall mean Star Papa, LP, a
Texas limited partnership and its successors and assigns.


 


Subsidiary of any Person at any time
shall mean (i) any corporation or trust of which fifty percent (50%) or
more (by number of shares or number of votes) of the outstanding capital stock
or shares of beneficial interest normally entitled to vote for the election of
one or more directors or trustees (regardless of any contingency which does or
may suspend or dilute the voting rights) is at such time owned directly or
indirectly by such Person or one or more of such Person’s Subsidiaries,
(ii) any partnership of which such Person is a general partner or of which
fifty percent (50%) or more of the partnership interests are at the time
directly or indirectly owned by such Person or one or more of such Person’s
Subsidiaries, (iii) any limited liability company of which such Person is
a member or of which fifty percent (50%) or more of the limited liability
company interests are at the time directly or indirectly owned by such Person
or one or more of such Person’s Subsidiaries or (iv) any corporation,
trust, partnership, limited liability company or other entity which is
controlled or capable of being controlled by such Person or one or more of such
Person’s Subsidiaries.


 


Subsidiary Shares shall have the
meaning assigned to that term in Section 5.1.3 [Consents and Approvals].


 


Super Majority Required Banks shall
mean:


 


(i)                                     If
there are no Loans, Reimbursement Obligations or Letter of Credit Borrowings
outstanding, Super-Majority Required Banks shall mean Banks whose Commitments
(excluding the Swing Loan Commitments) aggregate at least sixty-six and
two-thirds of one percent (66-2/3%) of the Commitments (excluding the Swing
Loan Commitments) of all of the Banks; or


 


(ii) if there are Loans,
Reimbursement Obligations, or Letter of Credit Borrowings outstanding, any Bank
or group of Banks if the sum of the Loans (excluding the Swing Loans),
Reimbursement Obligations and Letter of Credit Borrowings of such Banks then
outstanding aggregates at least sixty-six and two-thirds of one percent
(66-2/3%) of the total principal amount of all of the Loans (excluding the
Swing Loans), Reimbursement Obligations and Letter of Credit Borrowings then
outstanding.


 


Reimbursement Obligations
and Letter of Credit Borrowings shall be deemed, for purposes of this
definition, to be in favor of the Administrative Agent and not a participating
Bank if such Bank has not made its Participation Advance in respect thereof
and  shall be deemed to be in


 


23

















 


favor of such Bank to the
extent of its Participation Advance if it has made its Participation Advance in
respect thereof.


 


Swing Loan Commitment shall mean PNC
Bank’s commitment to make Swing Loans to the Borrower pursuant to Section 2.1.2
[Swing Loans] hereof in an aggregate principal amount up to Ten Million and
00/100 Dollars ($10,000,000.00).


 


Swing Note shall mean the Swing Note
of the Borrower in the form of Exhibit 1.1(S) evidencing the Swing
Loans, together with all amendments, extensions, renewals, replacements,
refinancings or refundings thereof in whole or in part.


 


Swing Loan Request shall mean a
request for Swing Loans made in accordance with Section 2.4.2 [Swing Loan
Requests] hereof.


 


Swing Loans shall mean collectively
and Swing Loan shall mean separately all Swing Loans or any Swing Loan
made by PNC Bank to the Borrower pursuant to Section 2.1.2 [Swing Loans]
hereof.


 


Syndication Agent shall have the
meaning assigned to such term in the preamble.


 


Taxes shall have the meaning
assigned to that term in Section 4.8.1 [No Deductions].


 


Transferor Bank shall mean the
selling Bank pursuant to an Assignment and Assumption Agreement.


 


USA Patriot Act shall mean the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same
has been, or shall hereafter be, renewed, extended, amended or replaced.


 


VIE shall mean any Person that is a
variable interest entity pursuant to Financial Accounting Standard Boards
Interpretation #46, “Consolidation of Variable Interest Entities” (FIN 46).


 


Website Posting shall have the
meaning assigned to that term in Section 10.6 [Notices; Lending Offices].


 


Withholding Certificate shall have
the meaning assigned to that term in Section 10.17.1 [Tax Withholding Clause].


 


1.2                                 Construction.


 


Unless the context of this Agreement otherwise clearly
requires, the following rules of construction shall apply to this Agreement and
each of the other Loan Documents:


 


24

















 


1.2.1.                     Number;
Inclusion.


 


references to the plural include the singular, the plural,
the part and the whole; “or” has the inclusive meaning represented by the
phrase “and/or,” and “including” has the meaning represented by the phrase “including
without limitation”;


 


1.2.2.                     Determination.


 


references to “determination” of or by the Administrative
Agent or the Banks shall be deemed to include good-faith estimates by the
Administrative Agent or the Banks (in the case of quantitative determinations)
and good-faith beliefs by the Administrative Agent or the Banks (in the case of
qualitative determinations) and such determination shall be conclusive absent
manifest error;


 


1.2.3.                     Administrative
Agent’s Discretion and Consent.


 


whenever the Administrative Agent or the Banks are
granted the right herein to act in its or their sole discretion or to grant or
withhold consent such right shall be exercised in good faith;


 


1.2.4.                     Documents
Taken as a Whole.


 


the words “hereof,” “herein,” “hereunder,” “hereto”
and similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and, unless otherwise
specified herein, not to any particular provision of this Agreement or such
other Loan Document;


 


1.2.5.                     Headings.


 


the section and other headings contained in this
Agreement or such other Loan Document and the Table of Contents (if any),
preceding this Agreement or such other Loan Document are for reference purposes
only and shall not control or affect the construction of this Agreement or such
other Loan Document or the interpretation thereof in any respect;


 


1.2.6.                     Implied
References to this Agreement.


 


article, section, subsection, clause, schedule and
exhibit references are to this Agreement or other Loan Document, as the case
may be, unless otherwise specified;


 


1.2.7.                     Persons.


 


reference to any Person includes such Person’s
successors and assigns but, if applicable, only if such successors and assigns
are permitted by this Agreement or such other Loan Document, as the case may
be, and reference to a Person in a particular capacity excludes such Person in
any other capacity;


 


25

















 


 


1.2.8.                     Modifications
to Documents.


 


reference to any agreement (including this Agreement
and any other Loan Document together with the schedules and exhibits hereto or
thereto), document or instrument means such agreement, document or instrument
as amended, modified, replaced, substituted for, superseded or restated;


 


1.2.9.                     From, To
and Through.


 


relative to the determination of any period of time, “from”
means “from and including,” “to” means “to but excluding,” and “through” means “through
and including”; and


 


1.2.10.               Shall; Will.


 


references to “shall” and “will” are intended to have
the same meaning.


 


1.3                                 Accounting
Principles.


 


Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters and all
financial statements to be delivered pursuant to this Agreement shall be made
and prepared in accordance with GAAP (including principles of consolidation
where appropriate), and all accounting or financial terms shall have the
meanings ascribed to such terms by GAAP; provided, however, that
all accounting terms used in Section 7.2 [Negative Covenants] (and all
defined terms used in the definition of any accounting term used in
Section 7.2 [Negative Covenants] shall have the meaning given to such
terms (and defined terms) under GAAP as in effect on the date hereof applied on
a basis consistent with those used in preparing the Annual Statements referred
to in Section 5.1.9(i) [Historical Statements]. In the event of any change
after the date hereof in GAAP, and if such change would result in the inability
to determine compliance with the financial covenants set forth in
Section 7.2 [Negative Covenants] based upon the Borrower’s regularly
prepared financial statements by reason of the preceding sentence, then the
parties hereto agree to endeavor, in good faith, to agree upon an amendment to
this Agreement that would adjust such financial covenants in a manner that
would not affect the substance thereof, but would allow compliance therewith to
be determined in accordance with the Borrower’s financial statements at that
time.


 


2.                                       REVOLVING
CREDIT AND SWING LOAN FACILITIES


 


2.1                                 Revolving
Credit and Swing Loan Commitments.


 


2.1.1.                     Revolving
Credit Loans.


 


Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Bank severally
agrees to make Revolving Credit Loans in either Dollars or one or more Optional
Currencies to the Borrower at any time or from time to time on or after the
date hereof to the Expiration Date provided that (i) after giving


 


26

















 


effect to each such
Revolving Credit Loan the aggregate Dollar Equivalent amount of Revolving
Credit Loans from such Bank shall not exceed such Bank’s Revolving Credit
Commitment minus such Bank’s Ratable Share of the Dollar Equivalent amount of
Letters of Credit Outstanding, and (ii) no Loan to which the Base Rate Option
applies shall be made in an Optional Currency. Within such limits of time and
amount and subject to the other provisions of this Agreement, the Borrower may
borrow, repay and reborrow pursuant to this Section 2.1.1.


 


2.1.2.                     Swing
Loans. 


 


Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, and in order to
facilitate loans and repayments between Settlement Dates, PNC Bank may, at its
option, cancelable at any time for any reason whatsoever, make swing loans (the
“Swing Loans”) to the Borrower at any time or from time to time after the date
hereof to, but not including, the Expiration Date, in an aggregate principal
amount up to but not in excess of Ten Million and 00/100 Dollars
($10,000,000.00) (the “Swing Loan Commitment”), provided that the aggregate
principal amount of PNC Bank’s Swing Loans and the Revolving Credit Loans of
all the Banks and the Letters of Credit Outstanding at any one time outstanding
shall not exceed the Revolving Credit Commitments of all the Banks. Within such
limits of time and amount and subject to the other provisions of this
Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section
2.1.2.


 


2.2                                 Nature
of Banks’ Obligations with Respect to Revolving Credit Loans.


 


Each Bank shall be obligated to participate in each
request for Revolving Credit Loans pursuant to Section 2.4.1 [Revolving
Credit Loan Requests] in accordance with its Ratable Share. The aggregate
Dollar Equivalent amount of each Bank’s Revolving Credit Loans outstanding
hereunder to the Borrower at any time shall never exceed its Revolving Credit
Commitment minus its Ratable Share of the Dollar Equivalent amount of Letters
of Credit Outstanding, subject to Section 4.5.1 [Currency Fluctuations]. The
obligations of each Bank hereunder are several. The failure of any Bank to
perform its obligations hereunder shall not affect the Obligations of the
Borrower to any other party nor shall any other party be liable for the failure
of such Bank to perform its obligations hereunder. The Banks shall have no
obligation to make Revolving Credit Loans hereunder on or after the Expiration
Date.


 


2.3                                 Commitment
Fees.


 


Accruing from the date hereof until the Expiration
Date, the Borrower agrees to pay to the Administrative Agent in Dollars for the
account of each Bank, as consideration for such Bank’s Revolving Credit
Commitment hereunder, a nonrefundable commitment fee (the “Commitment Fee”)
equal to the Applicable Commitment Fee Rate (computed on the basis of a year of
three hundred sixty-five (365) or three hundred sixty-six (366) days, as the
case may be, and actual days elapsed) on the average daily difference between
the amount of (i) such Bank’s Revolving Credit Commitment as the same may be
constituted from time to time (for purposes of this computation, PNC Bank’s
Swing Loans shall be deemed to be borrowed amounts under its Revolving Credit
Commitment) and the (ii) sum of such Bank’s Dollar Equivalent Amount of
Revolving Credit Loans outstanding plus the Dollar Equivalent Amount of its
Ratable Share of


 


27

















 


Letters of Credit Outstanding. All Commitment Fees
shall be payable in arrears on the first day of each April, July, October and
January after the date hereof and on the Expiration Date or upon acceleration
of the Loan.


 


2.4                                 Revolving
Credit Loan Requests; Swing Loan Requests.


 


2.4.1.                     Revolving
Credit Loan Requests.


 


Except as otherwise provided herein, the Borrower may
from time to time prior to the Expiration Date request the Banks to make
Revolving Credit Loans, or renew or convert the Interest Rate Option applicable
to existing Revolving Credit Loans pursuant to Section 3.2 [Interest
Periods], by delivering to the Administrative Agent, (i) not later than 12:00
noon, Pittsburgh, Pennsylvania time, three (3) Business Days prior to the
proposed Borrowing Date with respect to the making of Revolving Credit Loans in
Dollars to which the Euro-Rate Option applies or the date of conversion to or
the renewal of the Euro-Rate Option for any such Loans; (ii) not later than
10:00 a.m., Pittsburgh, Pennsylvania time, four (4) Business Days prior to the
proposed Borrowing Date with respect to the making of Revolving Credit Loans in
an Optional Currency or the date of conversion to or renewal of the Euro-Rate
Option for Revolving Credit Loans in an Optional Currency; and (iii) not later
than 12:00 noon, Pittsburgh, Pennsylvania time, one (1) Business Day prior to
either the proposed Borrowing Date with respect to the making of a Revolving
Credit Loan to which the Base Rate Option applies or the last day of the
preceding Interest Period with respect to the conversion to the Base Rate
Option for any Loan, of a duly completed request therefor substantially in the
form of Exhibit 2.4.1 or a request by telephone immediately
confirmed in writing by letter, facsimile or telex in the form of such exhibit
(each, a “Revolving Credit Loan Request”), it being understood that the
Administrative Agent may rely on the authority of any individual making such a
telephonic request without the necessity of receipt of such written
confirmation. Provided further that the aggregate Dollar Equivalent amount of
the sum of such Optional Currency Loans and the Letters of Credit Outstanding
which are denominated in Optional Currencies, after giving effect to such
Revolving Credit Loan Request, shall not exceed Twenty-Five Million and 00/100
Dollars ($25,000,000.00). Each Revolving Credit Loan Request shall be
irrevocable and shall specify (i) the proposed Borrowing Date;
(ii) the aggregate amount of the proposed Loans (expressed in the currency
in which such Loans shall be funded) comprising each Borrowing Tranche, the
amount of which shall be in integral multiples of Five Hundred Thousand and
00/100 Dollars ($500,000.00) and not less than One Million and 00/100 Dollars
($1,000,000.00) for each Borrowing Tranche to which the Euro-Rate Option
applies and integral multiples of One Hundred Thousand and 00/100 Dollars
($100,000.00) and not less than the lesser of Five Hundred Thousand and 00/100
Dollars ($500,000.00) or the maximum amount available for Borrowing Tranches to
which the Base Rate Option applies; (iii) whether the Euro-Rate Option or
Base Rate Option shall apply to the proposed Loans comprising the applicable
Borrowing Tranche; (iv) the currency in which such Loans shall be funded if the
Borrower is electing the Euro-Rate Option; and (v) in the case of a
Borrowing Tranche to which the Euro-Rate Option applies, an appropriate
Interest Period for the Loans comprising such Borrowing Tranche.


 


28

















 


2.4.2.                     Swing Loan
Requests.


 


Except as otherwise provided herein, the Borrower may
from time to time prior to the Expiration Date request PNC Bank to make Swing
Loans by delivery to PNC Bank not later than 10:00 a.m., Pittsburgh,
Pennsylvania time on the proposed Borrowing Date of a duly completed request
therefor substantially in the form of Exhibit 2.4.2 hereto or a request
by telephone immediately confirmed in writing by letter, facsimile or telex
(each, a “Swing Loan Request”), it being understood that the Administrative
Agent may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation. Each Swing
Loan Request shall be irrevocable and shall specify the proposed Borrowing Date
and the principal amount of such Swing Loan, which shall be in integral
multiples of One Hundred Thousand and 00/100 Dollars ($100,000.00) and not less
than One Hundred Thousand and 00/100 Dollars ($100,000.00).


 


2.5                                 Making
Revolving Credit Loans and Swing Loans; Revolving Credit Notes and Swing Notes.


 


2.5.1.                     Making
Revolving Credit Loans.


 


The Administrative Agent shall, promptly after receipt
by it of a Revolving Credit Loan Request pursuant to Section 2.4.1
[Revolving Credit Loan Requests], notify the Banks of its receipt of such
Revolving Credit Loan Request specifying: 
(i) the proposed Borrowing Date and the time and method of
disbursement of the Revolving Credit Loans requested thereby; (ii) the
amount, type and type of currency of each such Revolving Credit Loan and the
applicable Interest Period (if any); and (iii) the apportionment among the
Banks of such Revolving Credit Loans as determined by the Administrative Agent
in accordance with Section 2.2 [Nature of Banks’ Obligations]. Each Bank
shall remit the principal amount of each Revolving Credit Loan to the
Administrative Agent such that the Administrative Agent is able to, and the
Administrative Agent shall, to the extent the Banks have made funds available
to it for such purpose and subject to Section 6.2 [Each Additional Loan],
fund such Revolving Credit Loans to the Borrower in the applicable currency and
immediately available funds at the Principal Office prior to 4:00 p.m.,
Pittsburgh, Pennsylvania time, on the applicable Borrowing Date, provided
that if any Bank fails to remit such funds to the Administrative Agent in a
timely manner, the Administrative Agent may elect in its sole discretion to
fund with its own funds the Revolving Credit Loans of such Bank on such
Borrowing Date, and such Bank shall be subject to the repayment obligation in
Section 9.16 [Availability of Funds].


 


2.5.2.                     Making
Swing Loans.


 


So long as PNC Bank elects to make Swing Loans, PNC Bank
shall, after receipt by it of a Swing Loan Request pursuant to Section 2.4.2
[Swing Loan Requests], fund such Swing Loan to the Borrower in U.S. Dollars and
immediately available funds at the Principal Office prior to 2:00 p.m.,
Pittsburgh, Pennsylvania time, on the Borrowing Date.


 


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2.5.3.                     Revolving
Credit Notes.


 


The obligation of the Borrower to repay the aggregate
unpaid principal amount of the Revolving Credit Loans made to it by each Bank,
together with interest thereon, shall be evidenced by a Revolving Credit Note
dated the Closing Date payable to the order of such Bank in a face amount equal
to the Revolving Credit Commitment of such Bank.


 


2.5.4.                     Swing Note.


 


The obligation of the Borrower to repay the aggregate
unpaid principal amount of the Swing Loans made to it by PNC Bank, together
with interest thereon, shall be evidenced by a Swing Note dated the Closing
Date payable to the order of PNC Bank in a face amount equal to the Swing Loan
Commitment.


 


2.6                                 Borrowings
to Repay Swing Loans.


 


PNC Bank may, at its option, exercisable at any time
for any reason whatsoever, demand repayment of the Swing Loans, and each Bank
shall make a Revolving Credit Loan in an amount equal to such Bank’s Ratable
Share of the aggregate principal amount of the outstanding Swing Loans, plus,
if PNC Bank so requests, accrued interest thereon, provided that no Bank
shall be obligated in any event to make Revolving Credit Loans in excess of its
Revolving Credit Commitment less its Ratable Share of the Dollar Equivalent
Amount of Letters of Credit Outstanding. Revolving Credit Loans made pursuant
to the preceding sentence shall bear interest at the Base Rate Option and shall
be deemed to have been properly requested in accordance with Section 2.4.1
[Revolving Credit Loans] without regard to any of the requirements of that
provision. PNC Bank shall provide notice to the Banks (which may be telephonic,
written, or facsimile notice) that such Revolving Credit Loans are to be made
under this Section 2.6 [Borrowings to Repay Swing Loans] and of the
apportionment among the Banks, and the Banks shall be unconditionally obligated
to fund such Revolving Credit Loans (whether or not the conditions specified in
Section 2.4.1 [Revolving Credit Loans] are then satisfied) by the time PNC
Bank so requests, which shall not be earlier than 2:00 p.m., Pittsburgh,
Pennsylvania time, on the next Business Day after the date the Banks receive
such notice from PNC Bank.


 


2.7                                 Use
of Proceeds.


 


The proceeds of the Revolving Credit Loans shall be
used (i) to repay certain existing Indebtedness of the Borrower including
amounts due under the Prior Loan Documents, (ii) to provide working capital to
the Borrower, and (iii) for general corporate purposes of the Borrower,
including transaction costs and expenses, capital expenditures, letters of
credit, stock repurchases, Permitted Acquisitions and Permitted Investments.


 


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2.8                                 Utilization
of Commitments in Optional Currencies.


 


2.8.1.                     Periodic
Computations of Dollar Equivalent Amounts of Loans and Letters of Credit
Outstanding.


 


The Administrative Agent will determine the Dollar
Equivalent amount of (i) proposed Revolving Credit Loans or Letters of
Credit to be denominated in an Optional Currency as of the requested Borrowing
Date or date of issuance, as the case may be, (ii) Letters of Credit
Outstanding denominated in an Optional Currency as of the last Business Day of
each month, and (iii) outstanding Revolving Credit Loans denominated in an
Optional Currency as of the end of each Interest Period (each such date under
clauses (i) through (iii), a “Computation Date”).


 


2.8.2.                     Notices
From Banks That Optional Currencies Are Unavailable to Fund New Loans.


 


The Banks shall be under no obligation to make the
Revolving Credit Loans requested by the Borrower which are denominated in an
Optional Currency if any Bank notifies the Administrative Agent by 5:00 p.m.,
Pittsburgh, Pennsylvania time, four (4) Business Days prior to the Borrowing
Date for such Loans that such Bank cannot provide its share of such Loans in
such Optional Currency due to the introduction of, or any change in, any
applicable Law or any change in the interpretation or administration thereof by
any Official Body charged with the interpretation or administration thereof, or
compliance by such Bank (or any of its lending offices) with any request or
directive (whether or not having the force of Law) of any such Official Body
which would make it unlawful or impossible for such Bank (or any of its lending
offices) to honor its obligations hereunder to make a Loan in an Optional
Currency. In the event the Administrative Agent timely receives a notice from a
Bank pursuant to the preceding sentence, the Administrative Agent will notify
the Borrower no later than 12:00 noon, Pittsburgh, Pennsylvania time, three (3)
Business Days prior to the Borrowing Date for such Loans that the Optional
Currency is not then available for such Loans, and the Administrative Agent
shall promptly thereafter notify the Banks of the same. If the Borrower
receives a notice described in the preceding sentence, the Loan Request for
such Loans will be automatically cancelled.


 


2.8.3.                     Notices
From Banks That Optional Currencies Are Unavailable to Fund Renewals of the
Euro-Rate Option.


 


If the Borrower delivers a Loan Request requesting
that the Banks renew the Euro-Rate Option with respect to an outstanding
Borrowing Tranche of Revolving Credit Loans denominated in an Optional
Currency, the Banks shall be under no obligation to renew such Euro-Rate Option
if any Bank delivers to the Administrative Agent a notice by 5:00 p.m.,
Pittsburgh, Pennsylvania time, four (4) Business Days prior to effective date
of such renewal that such Bank cannot continue to provide Revolving Credit
Loans in such Optional Currency. In the event the Administrative Agent timely
receives a notice from a Bank pursuant to the preceding sentence, the
Administrative Agent will notify the Borrower no later than 12:00 noon,
Pittsburgh, Pennsylvania time, three (3) Business Days prior to the renewal
date that the renewal of such Revolving Credit Loans in such Optional Currency
is not then available, and the Administrative


 


31

















 


Agent shall promptly thereafter notify the Banks of
the same. If the Administrative Agent shall have so notified the Borrower that
any such continuation of Optional Currency Loans is not then available, any
notice of renewal with respect thereto shall be deemed withdrawn, and such
Optional Currency Loans shall be redenominated into Base Rate Loans in Dollars
with effect from the last day of the Interest Period with respect to any such
Optional Currency Loans. The Administrative Agent will promptly notify the
Borrower and the Banks of any such redenomination, and in such notice, the
Administrative Agent will state the aggregate Dollar Equivalent amount of the
redenominated Optional Currency Loans as of the Computation Date with respect
thereto and such Bank’s Ratable Share thereof.


 


2.8.4.                     Requests
for Additional Optional Currencies.


 


The Borrower may deliver to the Administrative Agent a
written request that Revolving Credit Loans hereunder also be permitted to be
made in any other lawful currency (other than Dollars), in addition to the
currencies specified in the definition of “Optional Currency” herein provided
that such currency must be freely traded in the offshore interbank foreign
exchange markets, freely transferable, freely convertible into Dollars and
available to the Banks in the applicable interbank market. The Administrative
Agent will promptly notify the Banks of any such request promptly after the
Administrative Agent receives such request. The Administrative Agent and each
Bank may grant or accept such request in their sole discretion. The
Administrative Agent will promptly notify the Borrower of the acceptance or
rejection by the Administrative Agent and each of the Banks of the Borrower’s
request. The requested currency shall be approved as an Optional Currency
hereunder only if the Administrative Agent and all of the Banks approve of the
Borrower’s request.


 


2.9                                 Letter
of Credit Subfacility.


 


2.9.1.                     Issuance
of Letters of Credit.


 


Borrower may request the issuance of (or modification
of any issued) letters of credit (each a “Letter of Credit”) on behalf of
itself, another Loan Party, or, solely with respect to the RSC Letter of Credit
(PNC), RSC, by delivering or having such other Loan Party or RSC, as
applicable, deliver to the Administrative Agent a completed application and
agreement for letters of credit and such other certificates, documents,
agreements including reimbursement agreements and other papers and
documentation in such form as the Administrative Agent may specify from time to
time by no later than 10:00 a.m., Pittsburgh, Pennsylvania time, at least five
(5) Business Days, or such shorter period as may be agreed to by the
Administrative Agent, in advance of the proposed date of issuance. Each Letter
of Credit shall be a Standby Letter of Credit or a Commercial Letter of Credit
and may be denominated in either Dollars or an Optional Currency. Subject to
the terms and conditions hereof and in reliance on the agreements of the other
Banks set forth in this Section 2.9 [Letter of Credit Subfacility], the
Administrative Agent or any of the Administrative Agent’s Affiliates will issue
a Letter of Credit provided that each Letter of Credit shall (A) have a
maximum maturity of twelve (12) months from the date of issuance, and
(B) in no event expire later than ten (10) Business Days prior to the
Expiration Date, provided, further, that a Letter of Credit may
expire after the Expiration Date if the Borrower provides cash collateral
acceptable to the Administrative Agent


 


32

















 


in its sole discretion no
later than sixty (60) days prior to the Expiration Date, and providing that in
no event shall (i) the Dollar Equivalent amount of Letters of Credit
Outstanding exceed, at any one time, Sixty Million and 00/100 Dollars
($60,000,000.00) or (ii) the Dollar Equivalent Revolving Facility Usage
exceed, at any one time, the Revolving Credit Commitments. Each Existing Letter
of Credit shall be deemed to have been issued hereunder on the Closing Date by
PNC Bank as the issuer. Each Existing Letter of Credit shall be deemed to be a
Letter of Credit for all purposes of this Agreement.


 


2.9.2.                     Letter of
Credit Fees.


 


The Borrower shall pay (on behalf of RSC, in the case
of the RSC Letter of Credit (PNC)) in Dollars (i) to the Administrative
Agent for the ratable account of the Banks a fee (the “Letter of Credit Fee”)
equal to the Applicable Letter of Credit Fee Percentage (computed on the basis
of a year of 360 days and actual days elapsed), and (ii) to the Administrative
Agent for its own account a fronting fee equal to one eighth of one percent
(.125%) per annum (computed on the basis of a year of 360 days and actual days
elapsed), which fees shall be computed on the daily average Dollar Equivalent
amount of Letters of Credit Outstanding and shall be payable quarterly in
arrears commencing with the first day of each April, July, October and January
following issuance of each Letter of Credit and on the Expiration Date. The
Borrower shall also pay (on behalf of RSC, in the case of the RSC Letter of
Credit (PNC)) to the Administrative Agent in Dollars for the Administrative
Agent’s sole account the Administrative Agent’s then in effect customary fees
and administrative expenses payable with respect to the Letters of Credit as
the Administrative Agent may generally charge or incur from time to time in
connection with the issuance, maintenance, modification (if any), assignment or
transfer (if any), negotiation,
and administration of Letters of Credit.


 


2.9.3.                     Disbursements,
Reimbursement.


 


2.9.3.1               Immediately upon
the issuance of each Letter of Credit, each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Administrative
Agent a participation in such Letter of Credit and each drawing thereunder in
an amount equal to such Bank’s Ratable Share of the maximum amount available to
be drawn under such Letter of Credit and the amount of such drawing,
respectively.


 


2.9.3.2               In the event of any
request for a drawing under a Letter of Credit by the beneficiary or transferee
thereof, the Administrative Agent will promptly notify the Borrower (or RSC, in
the case of the RSC Letter of Credit (PNC)) thereof. Provided that it shall
have received such notice by 10:00 a.m., Pittsburgh, Pennsylvania time (any
notice received after 10:00 a.m., Pittsburgh, Pennsylvania time, on a
particular day shall be deemed to have been received by 10:00 a.m., Pittsburgh,
Pennsylvania time, on the next Business Day), on the applicable Drawing Date,
the Borrower (or RSC, in the case of the RSC Letter of Credit (PNC)) shall
reimburse (such obligation to reimburse the Administrative Agent shall
sometimes be referred to as a “Reimbursement Obligation”) the Administrative
Agent in Dollars prior to 12:00 noon, Pittsburgh, Pennsylvania time, on each
date that an amount is paid by the Administrative Agent under any Letter of
Credit (each such date, a “Drawing Date”) in an amount equal to the Dollar
Equivalent amount so paid by the Administrative Agent. In the event the Borrower
(or


 


33





















 


RSC, in the case of the RSC Letter of Credit (PNC))
fails to pay the Administrative Agent the full Dollar Equivalent amount of any
drawing under any Letter of Credit by 12:00 noon, Pittsburgh, Pennsylvania
time, on the Drawing Date, the Administrative Agent will promptly notify each
Bank thereof, and the Borrower shall be deemed to have requested that Revolving
Credit Loans be made by the Banks in Dollars under the Base Rate Option to be
disbursed on the Drawing Date under such Letter of Credit, subject to the
amount of the unutilized portion of the Revolving Credit Commitment and subject
to the conditions set forth in Section 6.2 [Each Additional Loan] other
than any notice requirements. Any notice given by the Administrative Agent
pursuant to this Section 2.9.3.2 [Disbursements, Reimbursement] may be
oral if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.


 


2.9.3.3               Each Bank shall
upon any notice pursuant to Section 2.9.3.2 [Disbursements, Reimbursement]
pay to the Administrative Agent an amount in Dollars in immediately available
funds equal to its Ratable Share of the Dollar Equivalent amount of the
drawing, whereupon the participating Banks shall (subject to Section 2.9.3.4)
each be deemed to have made a Revolving Credit Loan in Dollars under the Base
Rate Option to the Borrower in that amount. If any Bank so notified fails to
make available in Dollars to the Administrative Agent for the account of the
Administrative Agent the amount of such Bank’s Ratable Share of such Dollar
Equivalent amount by no later than 2:00 p.m., Pittsburgh, Pennsylvania time, on
the Drawing Date, then interest shall accrue on such Bank’s obligation to make
such payment, from the Drawing Date to the date on which such Bank makes such
payment (i) at a rate per annum equal to the Federal Funds Effective Rate
during the first three (3) days following the Drawing Date and (ii) at a rate
per annum equal to the rate applicable to Loans under the Revolving Credit Base
Rate Option on and after the fourth (4th) day following the Drawing
Date. The Administrative Agent will promptly give notice of the occurrence of
the Drawing Date, but failure of the Administrative Agent to give any such
notice on the Drawing Date or in sufficient time to enable any Bank to effect
such payment on such date shall not relieve such Bank from its obligations to
fund under this Section 2.9.3.3 [Disbursements, Reimbursement] upon
receipt of such notice.


 


2.9.3.4               With respect to any
unreimbursed drawing that is not converted into Revolving Credit Loans under
the Base Rate Option to the Borrower in whole or in part as contemplated by
Section 2.9.3.2 [Disbursements, Reimbursement] because of the Borrower’s
failure to satisfy the conditions set forth in Section 6.2 [Each Additional
Loan or Letter of Credit] other than any notice requirements or for any other
reason, the Borrower shall be deemed to have incurred from the Administrative
Agent a borrowing (each a “Letter of Credit Borrowing”) in Dollars in the
Dollar Equivalent amount of such drawing. Such Letter of Credit Borrowing shall
be due and payable on demand (together with interest) and shall bear interest
at the rate per annum applicable to the Revolving Credit Loans under the Base
Rate Option. Each Bank’s payment to the Administrative Agent pursuant to
Section 2.9.3.3 [Disbursements, Reimbursement] shall be deemed to be a payment
in respect of its participation in such Letter of Credit Borrowing and shall
constitute a “Participation Advance” from such Bank in satisfaction of its
participation obligation under this Section 2.9.3 [Disbursements,
Reimbursements].


 


34





















 


2.9.4.                     Repayment
of Participation Advances.


 


2.9.4.1               Upon (and only
upon) receipt by the Administrative Agent for its account of immediately
available funds from the Borrower (i) in reimbursement of any payment made
by the Administrative Agent under the Letter of Credit with respect to which
any Bank has made a Participation Advance to the Administrative Agent, or
(ii) in payment of interest on such a payment made by the Administrative
Agent under such a Letter of Credit, the Administrative Agent will pay to each
Bank, in the same funds as those received by the Administrative Agent, the
amount of such Bank’s Ratable Share of such funds, except the Administrative
Agent shall retain the amount of the Ratable Share of such funds of any Bank
that did not make a Participation Advance in respect of such payment by
Administrative Agent.


 


2.9.4.2               If the
Administrative Agent is required at any time to return to any Loan Party, or to
a trustee, receiver, liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by any Loan Party to the
Administrative Agent pursuant to Section 2.9.4.1 [Repayment of
Participation Advances] in reimbursement of a payment made under the Letter of
Credit or interest or fee thereon, each Bank shall, on demand of the
Administrative Agent, forthwith return to the Administrative Agent the amount
of its Ratable Share of any amounts so returned by the Administrative Agent
plus interest thereon from the date such demand is made to the date such
amounts are returned by such Bank to the Administrative Agent, at a rate per
annum equal to the Federal Funds Effective Rate in effect from time to time.


 


2.9.5.                     Documentation.


 


Each Loan Party (and RSC, in the case of the RSC
Letter of Credit (PNC)) agrees to be bound by the terms of the Administrative
Agent’s application and agreement for letters of credit and the Administrative
Agent’s written regulations and customary practices relating to letters of
credit, though such interpretation may be different from such Loan Party’s (or
RSC’s, in the case of the RSC Letter of Credit (PNC)) own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Administrative Agent shall not be
liable for any error, negligence and/or mistakes, whether of omission or
commission, in following any Loan Party’s (or RSC’s, in the case of the RSC
Letter of Credit (PNC)) instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.


 


2.9.6.                     Determinations
to Honor Drawing Requests.


 


In determining whether to honor any request for
drawing under any Letter of Credit by the beneficiary thereof, the
Administrative Agent shall be responsible only to determine that the documents
and certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such Letter
of Credit.


 


35

















 


2.9.7.                     Nature of
Participation and Reimbursement Obligations.


 


Each Bank’s obligation in accordance with this
Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated
by Section 2.9.3 [Disbursements, Reimbursement], as a result of a drawing
under a Letter of Credit, and the Obligations of the Borrower (or RSC, in the
case of the RSC Letter of Credit (PNC)) to reimburse the Administrative Agent
upon a draw under a Letter of Credit, shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Section 2.9 [Letter of Credit Subfacility] under all circumstances,
including the following circumstances:


 


(i)                                     any
set-off, counterclaim, recoupment, defense or other right which such Bank may
have against the Administrative Agent or any of its Affiliates, the Borrower,
any other Loan Party, RSC or any other Person for any reason whatsoever;


 


(ii)                                  the
failure of any Loan Party, RSC or any other Person to comply, in connection
with a Letter of Credit Borrowing, with the conditions set forth in
Section 2.1 [Revolving Credit Commitments], 2.4 [Revolving Credit Loan
Requests], 2.5 [Making Revolving Credit Loans] or 6.2 [Each Additional Loan] or
as otherwise set forth in this Agreement for the making of a Revolving Credit
Loan, it being acknowledged that such conditions are not required for the
making of a Letter of Credit Borrowing and the obligation of the Banks to make
Participation Advances under Section 2.9.3 [Disbursements, Reimbursement];


 


(iii)                               any lack of validity or
enforceability of any Letter of Credit;


 


(iv)                              any
claim of breach of warranty that might be made by any Loan Party, RSC or any
Bank against any beneficiary of a Letter of Credit, or the existence of any
claim, set-off, recoupment, counterclaim, crossclaim, defense or other right
which any Loan Party, RSC or any Bank may have at any time against a
beneficiary, successor beneficiary any transferee or assignee of any Letter of
Credit or the proceeds thereof (or any Persons for whom any such transferee may
be acting), the Administrative Agent or its Affiliates or any Bank or any other
Person or, whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between any Loan Party, RSC or Subsidiaries of a Loan Party and the beneficiary
for which any Letter of Credit was procured);


 


(v)                                 the
lack of power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument,
certificate or other document presented under or in connection with any Letter
of Credit, or any fraud or alleged fraud in connection with any Letter of
Credit, or the transport of any property or provisions of services relating to
a Letter of Credit, in each case even if the Administrative Agent has been
notified thereof;


 


(vi)                              payment
by the Administrative Agent or any of its Affiliates under any Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;


 


36





















 


(vii)                           the solvency of, or any acts
of omissions by, any beneficiary of any Letter of Credit, or any other Person
having a role in any transaction or obligation relating to a Letter of Credit,
or the existence, nature, quality, quantity, condition, value or other
characteristic of any property or services relating to a Letter of Credit;


 


(viii)                        any failure by the
Administrative Agent to issue any Letter of Credit in the form requested by any
Loan Party (or RSC, in the case of the RSC Letter of Credit (PNC)), unless the
Administrative Agent has received written notice from such Loan Party (or RSC,
in the case of the RSC Letter of Credit (PNC)) of such failure within six (6)
Business Days after the Administrative Agent shall have furnished such Loan
Party or RSC, as applicable, a copy of such Letter of Credit and such error is
material and no drawing has been made thereon prior to receipt of such notice;


 


(ix)                                any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of any Loan Party, RSC or Subsidiaries of
a Loan Party;


 


(x)                                   any
breach of this Agreement or any other Loan Document by any party thereto;


 


(xi)                                the
occurrence or continuance of an Insolvency Proceeding with respect to any Loan
Party (or RSC, in the case of the RSC Letter of Credit (PNC));


 


(xii)                             the fact that an Event of
Default or a Potential Default shall have occurred and be continuing;


 


(xiii)                          the fact that the Expiration
Date shall have passed or this Agreement or the Commitments hereunder shall
have been terminated; and,


 


(xiv)                         any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing.


 


2.9.8.                     Indemnity.


 


In addition to amounts payable as provided in
Section 9.5 [Reimbursement and Indemnification of Administrative Agent by
Loan Parties], the Loan Parties (and RSC, in the
case of the RSC Letter of Credit (PNC)) hereby agree to protect, indemnify, pay
and save harmless the Administrative Agent and any of its Affiliates that has
issued a Letter of Credit from and against any and all claims, demands,
liabilities, damages, taxes, penalties, interest, judgments, losses, costs,
charges and expenses (including reasonable fees, expenses and disbursements of
counsel and allocated costs of internal counsel) which the Administrative Agent
or any of its Affiliates may incur or be subject to as a consequence, direct or
indirect, of the issuance of any Letter of Credit, other than as a result of
(A) the gross negligence or willful misconduct of the Administrative Agent
or any of its Affiliates as determined by a final judgment of a court of
competent jurisdiction or (B) the wrongful dishonor by the Administrative
Agent or any of its Affiliates of a proper demand for payment made under any
Letter of Credit, except if such dishonor resulted from any act or omission,
whether rightful or wrongful, of any present or


 


37

















 


future de jure or de facto government or governmental authority (all such acts
or omissions herein called “Governmental Acts”).


 


2.9.9.                     Liability
for Acts and Omissions.


 


As between any Loan Party (or RSC, in the case of the
RSC Letter of Credit (PNC)) and the Administrative Agent, or any of its
Affiliates, such Loan Party (or RSC, in the case of the RSC Letter of Credit
(PNC)) assumes all risks of the acts and omissions of, or misuse of the Letters
of Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Administrative Agent
shall not be responsible for any of the following including any losses or
damages to any Loan Party (or RSC, in the case of the RSC Letter of Credit
(PNC)) or other Person or property relating therefrom:  (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if the Administrative
Agent or any of its Affiliates shall have been notified thereof); (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) the failure of the
beneficiary of any such Letter of Credit, or any other party to which such
Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of any
Loan Party (or RSC, in the case of the RSC Letter of Credit (PNC)) against any
beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among any Loan Party (or RSC, in the case of the RSC Letter of
Credit (PNC)) and any beneficiary of any Letter of Credit or any such
transferee; (iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, electronic mail, cable, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation
of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by
the beneficiary of any such Letter of Credit of the proceeds of any drawing
under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Administrative Agent or any of its Affiliates,
as applicable, including any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of the Administrative Agent’s
or any of its Affiliate’s rights or powers hereunder. Nothing in the preceding
sentence shall relieve the Administrative Agent from liability for the
Administrative Agent’s gross negligence or willful misconduct in connection
with actions or omissions described in such clauses (i) through (viii) of such
sentence. In no event shall the Administrative Agent or any of its Affiliates
be liable to any Loan Party or RSC for any indirect, consequential, incidental,
punitive, exemplary or special damages or expenses (including without limitation
attorneys’ fees), or for any damages resulting from any change in the value of
any property relating to a Letter of Credit.


 


Without limiting the generality of the foregoing, the
Administrative Agent and each of its Affiliates (i) may rely on any oral or
other communication believed in good faith by the Administrative Agent or such
Affiliate to have been authorized or given by or on behalf of the applicant
Loan Party (or RSC, in the case of the RSC Letter of Credit (PNC)) for a Letter
of


 


38

















 


Credit, (ii) may honor
any presentation if the documents presented appear on their face substantially
to comply with the terms and conditions of the relevant Letter of Credit; (iii)
may honor a previously dishonored presentation under a Letter of Credit,
whether such dishonor was pursuant to a court order, to settle or compromise
any claim of wrongful dishonor, or otherwise, and shall be entitled to
reimbursement to the same extent as if such presentation had initially been
honored, together with any interest paid by the Administrative Agent or its
Affiliate; (iv) may honor any drawing that is payable upon presentation of a
statement advising negotiation or payment, upon receipt of such statement (even
if such statement indicates that a draft or other document is being delivered
separately), and shall not be liable for any failure of any such draft or other
document to arrive, or to conform in any way with the relevant Letter of
Credit; (v) may pay any paying or negotiating bank claiming that it rightfully
honored under the Laws or practices of the place where such bank is located;
and (vi) may settle or adjust any claim or demand made on the Administrative
Agent or its Affiliate in any way related to any order issued at the applicant’s
request to an air carrier, a letter of guarantee or of indemnity issued to a
carrier or any similar document (each an “Order”) and honor any drawing in
connection with any Letter of Credit that is the subject to such Order,
notwithstanding that any drafts or other documents presented in connection with
such Letter of Credit fail to conform in any way with such Letter of Credit.


 


In furtherance and extension and not in limitation of
the specific provisions set forth above, any action taken or omitted by the
Administrative Agent or any of its Affiliates under or in connection with the
Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put the Administrative
Agent or any of its Affiliates under any resulting liability to the Borrower or
any Bank.


 


2.10                           Increase
of Revolving Credit Commitments.


 


If at any time after the Closing Date, and so long as
no Event of Default or Potential Default has occurred and is continuing, the
Borrower desires to increase the Revolving Credit Commitments, the Borrower
shall notify the Administrative Agent, who will promptly notify each Bank
thereof, provided that any such increase shall be in a minimum amount of Twenty
Five Million and 00/100 Dollars ($25,000,000.00) and the aggregate of all such
increases shall not exceed Seventy-Five Million and 00/100 Dollars
($75,000,000.00), without the prior consent of all of the Banks. The existing
Banks shall have the right at any time within thirty (30) days following such
notice to increase their respective Revolving Credit Commitments so as to
provide such additional Revolving Credit Commitment pro-rata in accordance with
the Ratable Share of each, and any portion of such requested increase which is
not provided by any such existing Bank shall be available to the other existing
Banks; provided, that if more than one existing Bank desires to increase its
Revolving Credit Commitment in respect of the portion not provided by an
existing Bank, such participating Banks shall provide such portion of the
additional Revolving Credit Commitments on a pro rata basis in accordance with
the proportion that their respective Ratable Share bears to each other, and
thereafter, to the extent not provided by existing Banks, to any additional
lending institution or institutions proposed by the Borrower and which is
approved by the Administrative Agent and which becomes a party to this
Agreement pursuant to documentation reasonably acceptable to the Administrative
Agent and


 


39

















 


prepared at the Borrower’s expense, which
documentation may be executed by the Borrower and the Administrative Agent (as
agent for the Banks) without further consent or action of the Banks, such consent
hereby deemed to be irrevocably given to the Administrative Agent by the Banks;
provided, however, that the Borrower shall have the right to have
all of such increase provided by such approved additional lending institution
or institutions if all the existing Banks decline to increase their Revolving
Credit Commitments to accommodate any such requested increase. In the event of
any such increase in the aggregate Revolving Credit Commitments and in the
Revolving Credit Commitment of any Bank effected pursuant to the terms of this
Section 2.10, new Notes shall, to the extent deemed reasonably necessary or
appropriate by the Administrative Agent, be executed and delivered by the
Borrower and, to the extent deemed appropriate by the Administrative Agent, the
surrender and cancellation of existing Note(s); and the Borrower shall execute
and deliver such additional documentation setting forth the new Revolving
Credit Commitments and Ratable Shares as the Administrative Agent shall
reasonably request (which documentation may be executed by the Borrower and the
Administrative Agent (as agent for the Banks) without further consent or action
of the Banks, such consent herein is deemed to be irrevocably given to the
Administrative Agent by the Banks).


 


2.11                           Currency
Repayments.


 


Notwithstanding anything contained herein to the
contrary, the entire amount of principal of and interest on any Loan made in an
Optional Currency shall be repaid in the same Optional Currency in which such
Loan was made, provided, however, that if it is impossible or illegal for
Borrower to effect payment of a Loan in the Optional Currency in which such
Loan was made, or if Borrower defaults in its obligations to do so, the
Required Banks may at their option permit such payment to be made (i) at and to
a different location, subsidiary, affiliate or correspondent of Administrative
Agent, or (ii) in the Equivalent Amount of Dollars or (iii) in an Equivalent
Amount of such other currency (freely convertible into Dollars) as the Required
Banks may solely at their option designate. Upon any events described in (i)
through (iii) of the preceding sentence, Borrower shall make such payment and
Borrower agrees to hold each Bank harmless from and against any loss incurred
by any Bank arising from the cost to such Bank of any premium, any costs of
exchange, the cost of hedging and covering the Optional Currency in which such
Loan was originally made, and from any change in the value of Dollars, or such
other currency, in relation to the Optional Currency that was due and owing. Such
loss shall be calculated for the period commencing with the first day of the
Interest Period for such Loan and continuing through the date of payment
thereof. Without prejudice to the survival of any other agreement of Borrower
hereunder, Borrower’s obligations under this Section 2.11 shall survive
termination of this Agreement.


 


2.12                           Optional
Currency Amounts.


 


Notwithstanding anything contained herein to the
contrary, Administrative Agent may, with respect to notices by Borrower for
Loans in an Optional Currency or voluntary prepayments of less than the full
amount of an Optional Currency Borrowing Tranche, engage in reasonable rounding
of the Optional Currency amounts requested to be loaned or repaid; and, in such
event, Administrative Agent shall promptly notify Borrower and the Banks of
such rounded


 


40

















 


amounts and Borrower’s request or notice shall thereby
be deemed to reflect such rounded amounts.


 


3.                                       INTEREST
RATES


 


3.1                                 Interest
Rate Options.


 


The Borrower shall pay interest in respect of the
outstanding unpaid principal amount of the Loans as selected by it from the
Base Rate Option or Euro-Rate Option set forth below applicable to the Loans,
it being understood that, subject to the provisions of this Agreement, the
Borrower may select different Interest Rate Options and different Interest
Periods to apply simultaneously to the Loans comprising different Borrowing
Tranches and may convert to or renew one or more Interest Rate Options with
respect to all or any portion of the Loans comprising any Borrowing Tranche, provided
that there shall not be at any one time outstanding more than eight (8)
Borrowing Tranches in the aggregate among all of the Loans (including a
Borrowing Tranche to which the Base Rate Option applies) and provided further
that only the Base Rate or such other interest rates as PNC Bank and the
Borrower may agree to from time to time shall apply to the Swing Loans. If at
any time the designated rate applicable to any Loan made by any Bank exceeds
such Bank’s highest lawful rate, the rate of interest on such Bank’s Loan shall
be limited to such Bank’s highest lawful rate. Notwithstanding any provisions
to the contrary contained in this Agreement or any other Loan Document, the
Borrower shall not be required to pay, and the Banks shall not be permitted to
collect, any amount of interest in excess of the maximum amount of interest
permitted by applicable Law (“Excess Interest”). If any Excess Interest is
provided for or determined by a court of competent jurisdiction to have been
provided for in this Agreement or in any other Loan Document, then, in such
event:  (1) the provisions of this
subsection shall govern and control; (2) the Borrower shall not be obligated to
pay any Excess Interest; (3) any Excess Interest that the Banks may have
received hereunder shall be, at the option of the Required Banks, (a) applied
as a credit against the outstanding principal balance of the Obligations or
accrued and unpaid interest (not to exceed the maximum amount permitted by
Law), (b) refunded to the payor thereof, or (c) any combination of the
foregoing; (4) the interest rates provided for herein shall be automatically
reduced to the maximum lawful rate allowed from time to time under applicable
Law, and this Agreement and the other Loan Documents shall be deemed to have
been and shall be reformed and modified to reflect such reduction; and (5) the
Borrower shall have no action against the Administrative Agent or any Bank for
any damages arising out of the payment or collection of any Excess Interest
(other than to enforce this Section 3.1 [Interest Rate Options]). Interest on
the principal amount of each Loan made in an Optional Currency shall be paid by
the Borrower in such Optional Currency.


 


3.1.1.                     Revolving
Credit Interest Rate Options.


 


The Borrower shall have the right to select from the
following Interest Rate Options applicable to the Revolving Credit Loans
(subject to the provisions above regarding Swing Loans), except that no Loan to
which a Base Rate shall apply may be made in an Optional Currency:


 


41

















 


(i)                                     Revolving
Credit Base Rate Option:  A
fluctuating rate per annum (computed on the basis of a year of 365 or 366  days, as the case may
be, and actual days elapsed) equal to the Base Rate, such interest rate to
change automatically from time to time effective as of the effective date of
each change in the Base Rate; or


 


(ii)                                  Revolving
Credit Euro-Rate Option:  A rate per
annum (computed on the basis of a year of 360 days and actual days elapsed, provided
that, for Loans made in an Optional Currency for which a three hundred
sixty five (365) day basis is the only market practice available to the
Administrative Agent, such rate shall be calculated on the basis of a year of
three hundred sixty five (365) days) equal to the Euro-Rate plus the Applicable
Margin.


 


3.1.2.                     Swing Loan
Interest Rate.


 


Each Swing Loan shall bear interest at a rate per
annum equal to (i) the Base Rate (computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed), such interest rate to
change automatically from time to time effective as of the effective date of
each change in the Base Rate or (ii) such other interest rates (computed on the
basis of a year of 360, 365 or 366 days, as PNC may determine) as PNC Bank and
the Borrower may agree to from time to time.


 


3.1.3.                     Rate
Quotations.


 


The Borrower may call the Administrative Agent on or
before the date on which a Loan Request is to be delivered to receive an
indication of the interest rates and the applicable currency exchange rates
then in effect, but it is acknowledged that such projection shall not be
binding on the Administrative Agent or the Banks nor affect the rate of
interest or the calculation of Equivalent Amounts which thereafter are actually
in effect when the election is made.


 


3.2                                 Interest
Periods.


 


At any time when the Borrower shall select, convert to
or renew a Euro-Rate Option, the Borrower shall notify the Administrative Agent
thereof at least four (4) Business Days prior to the effective date of such
Interest Rate Option, with respect to an Optional Currency Loan, and three (3)
Business Days prior to the effective date of such Interest Rate Option with
respect to a Dollar Loan. Subject to the terms and conditions of this
Agreement, the notice shall specify an Interest Period during which such
Interest Rate Option shall apply. Notwithstanding the preceding sentence, the
following provisions shall apply to any selection of, renewal of, or conversion
to a Euro-Rate Option:


 


3.2.1.                     Amount of
Borrowing Tranche


 


The Dollar Equivalent amount of each Borrowing Tranche
of Euro-Rate Loans shall be in integral multiples of Five Hundred Thousand and
00/100 Dollars ($500,000.00) and not less than One Million and 00/100
Dollars ($1,000,000.00);


 


42

















 


3.2.2.                     Renewals


 


In the case of the renewal of a Euro-Rate Option at
the end of an Interest Period, the first day of the new Interest Period shall
be the last day of the preceding Interest Period, without duplication in
payment of interest for such day.


 


3.3                                 Interest
After Default.


 


To the extent permitted by Law, upon the occurrence of
an Event of Default and until such time such Event of Default shall have been
cured or waived:


 


3.3.1.                     Interest
Rate.


 


The rate of interest for each Loan otherwise applicable
pursuant to Section 3.1 [Interest Rate Options], shall bear interest at a
rate per annum equal to the sum of the rate of interest applicable under the
Base Rate Option plus an additional two percent (2.0%) per annum, each
Borrowing Tranche to which the Euro-Rate Option applies shall automatically
convert to the Base Rate Option at the end of the applicable Interest Period
and no Loans may be made as, renewed or converted into a Borrowing Tranche to
which the Euro-Rate Option applies;


 


3.3.2.                     Letter of Credit
Fees.


 


The Letter of Credit Fees otherwise applicable
pursuant to Section 2.9.2 [Letter of Credit Fees] shall be increased by two
percent (2.0%) per annum;


 


3.3.3.                     Other
Obligations.


 


Each other Obligation hereunder if not paid when due
shall bear interest at a rate per annum equal to the sum of the rate of
interest applicable under the Base Rate Option plus an additional two percent
(2.0%) per annum from the time such Obligation becomes due and payable and
until it is paid in full; and


 


3.3.4.                     Acknowledgment.


 


The Borrower acknowledges that the increase in rates
referred to in this Section 3.3 [Interest After Default] reflects, among
other things, the fact that such Loans or other amounts have become a
substantially greater risk given their default status and that the Banks are
entitled to additional compensation for such risk; and all such interest shall
be payable by Borrower upon demand by Administrative Agent.


 


3.4                                 Euro-Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available.


 


3.4.1.                     Unascertainable.


 


If on any date on which a Euro-Rate would otherwise be
determined, the Administrative Agent shall have determined that:


 


43

















 


(i)                                     adequate
and reasonable means do not exist for ascertaining such Euro-Rate, or


 


(ii)                                  a
contingency has occurred which materially and adversely affects the London
interbank Eurodollar market relating to the Euro-Rate, the Administrative Agent
shall have the rights specified in Section 3.4.3 [Administrative Agent’s
and Bank’s Rights].


 


3.4.2.                     Illegality;
Increased Costs; Deposits Not Available.


 


If at any time any Bank shall have determined that:


 


(i)                                     the
making, maintenance or funding of any Loan to which a Euro-Rate Option applies
has been made impracticable or unlawful by compliance by such Bank in good
faith with any Law or any interpretation or application thereof by any Official
Body or with any request or directive of any such Official Body (whether or not
having the force of Law), or


 


(ii)                                  such
Euro-Rate Option will not adequately and fairly reflect the cost to such Bank
of the establishment or maintenance of any such Loan, or


 


(iii)                               after
making all reasonable efforts, deposits of the relevant amount in Dollars or
the Optional Currency (as applicable) for the relevant Interest Period for a
Loan, or to banks generally, to which a Euro-Rate Option applies, respectively,
are not available to such Bank with respect to such Loan, or to banks
generally, in the interbank Eurodollar market, then the Administrative Agent
shall have the rights specified in Section 3.4.3 [Administrative Agent’s
and Bank’s Rights].


 


3.4.3.                     Administrative
Agent’s and Bank’s Rights.


 


In the case of any event specified in
Section 3.4.1 [Unascertainable] above, the Administrative Agent shall
promptly so notify the Banks and the Borrower thereof, and in the case of an
event specified in Section 3.4.2 [Illegality; Increased Costs; Etc.]
above, such Bank shall promptly so notify the Administrative Agent and endorse
a certificate to such notice as to the specific circumstances of such notice,
and the Administrative Agent shall promptly send copies of such notice and
certificate to the other Banks and the Borrower. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given), the obligation of (A) the Banks, in the case of such notice
given by the Administrative Agent, or (B) such Bank, in the case of such
notice given by such Bank, to allow the Borrower to select, convert to or renew
a Euro-Rate Option or select an Optional Currency (as applicable) shall be
suspended until the Administrative Agent shall have later notified the
Borrower, or such Bank shall have later notified the Administrative Agent, of
the Administrative Agent’s or such Bank’s, as the case may be, determination
that the circumstances giving rise to such previous determination no longer
exist. If at any time the Administrative Agent makes a determination under
Section 3.4.1 [Unascertainable] and the Borrower has previously notified
the Administrative Agent of its selection of, conversion to or renewal of a
Euro-Rate Option and


 


44

















 


such Interest Rate Option
has not yet gone into effect, such notification shall be deemed to provide for
the selection of, conversion to or renewal of the Base Rate Option otherwise
available with respect to such Loans. If any Bank notifies the Administrative
Agent of a determination under Section 3.4.2 [Illegality; Increased Costs;
Etc.], the Borrower shall, subject to the Borrower’s indemnification
Obligations under Section 4.6.2 [Indemnity], as to any Loan of the Bank to
which a Euro-Rate Option applies, on the date specified in such notice either
(i) as applicable, convert such Loan to the Base Rate Option otherwise
available with respect to such Loan or select a different Optional Currency or
Dollars, or (ii) prepay such Loan in accordance with Section 4.4
[Voluntary Prepayments]. Absent due notice from the Borrower of conversion or
prepayment, such Loan shall automatically be converted to the Base Rate Option
otherwise available with respect to such Loan upon such specified date.


 


3.5                                 Selection
of Interest Rate Options; Selection of Optional Currency.


 


If the Borrower fails to select a new Interest Period
or Optional Currency to apply to any Borrowing Tranche of Loans under the
Euro-Rate Option at the expiration of an existing Interest Period applicable to
such Borrowing Tranche in accordance with the provisions of Section 3.2
[Interest Periods], the Borrower shall be deemed to have selected a one Month
Interest Period to apply to such Borrowing Tranche with no change in the
currency in which such Loan was originally made, commencing upon the last day
of the existing Interest Period.


 


4.                                       PAYMENTS


 


4.1                                 Payments.


 


All payments and prepayments to be made in respect of
principal, interest, Commitment Fees, Letter of Credit Fees, Administrative
Agent’s Fee, or other fees or amounts due from the Borrower hereunder shall be
payable prior to 11:00 a.m., Pittsburgh, Pennsylvania time, on the date when
due without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by the Borrower, and without set-off, counterclaim
or other deduction of any nature, and an action therefor shall immediately
accrue. Such payments shall be made to the Administrative Agent at the
Principal Office for the account of PNC Bank with respect to the Swing Loans
and for the ratable accounts of the Banks with respect to the Revolving Credit
Loans in U.S. Dollars except that payments of principal or interest shall be
made in the currency in which such Loan was made, and in immediately available
funds, and the Administrative Agent shall promptly distribute such amounts to
the Banks, as applicable, in immediately available funds, provided that
in the event payments are received by 11:00 a.m., Pittsburgh, Pennsylvania
time, by the Administrative Agent with respect to the Revolving Credit Loans
and such payments are not distributed to the Banks on the same day received by
the Administrative Agent, the Administrative Agent shall pay the Banks the
Federal Funds Effective Rate in the case of Loans or other amounts due in
Dollars, or the Overnight Rate in the case of Loans or other amounts due in an
Optional Currency, with respect to the amount of such payments for each day
held by the Administrative Agent and not distributed to the Banks. The
Administrative Agent’s and each Bank’s statement of account, ledger or other
relevant record shall, in the absence of manifest error, be conclusive as the
statement of the amount of principal


 


45

















 


of and interest on the Loans and other amounts owing
under this Agreement (including the Equivalent Amounts of the applicable
currencies where such computations are required) and shall be deemed an “account
stated.”


 


4.2                                 Pro
Rata Treatment of Banks.


 


Each borrowing of Revolving Credit Loans shall be
allocated to each Bank according to its Ratable Share, and each selection of,
conversion to or renewal of any Interest Rate Option and each payment or
prepayment by the Borrower with respect to principal or interest on the
Revolving Credit Loans, Commitment Fees, Letter of Credit Fees, or other fees
(except for the Administrative Agent’s Fee) or amounts due from the Borrower
hereunder to the Banks with respect to the Revolving Credit Loans, shall
(except as provided in Section 3.4.3 [Administrative Agent’s and Bank’s
Rights] in the case of an event specified in Section 3.4 [Euro-Rate
Unascertainable; Etc.], Section 4.4.2 [Replacement of a Bank] or Section 4.6
[Additional Compensation in Certain Circumstances]) be made in proportion to
the applicable Revolving Credit Loans outstanding from each Bank and, if no
such Loans are then outstanding, in proportion to the Ratable Share of each
Bank. Notwithstanding any of the foregoing, each borrowing or payment or
pre-payment by the Borrower of principal, interest, fees or other amounts from
the Borrower with respect to Swing Loans shall be made by or to PNC Bank
according to Section 2 [Revolving Credit and Swing Loan Facilities].


 


4.3                                 Interest
Payment Dates.


 


Interest on Loans to which the Base Rate Option
applies shall be due and payable in arrears on the first day of each April,
July, October and January after the date hereof and on the Expiration Date or
upon acceleration of the Notes. Interest on Loans to which the Euro-Rate Option
applies and shall be due and payable in the currency in which such Loan was
made on the last day of each Interest Period for such Loans and, if such
Interest Period is longer than ninety (90) days, also on the ninetieth (90th)
day of such Interest Period. Interest on mandatory prepayments of principal
under Section 4.5 [Mandatory Prepayments] shall be made in the currency in
which such Loan was made and shall be due on the date such mandatory prepayment
is due. Interest on the principal amount of each Loan or other monetary
obligation shall be due and payable in the currency in which such Loan was made
on demand after such principal amount or other monetary obligation becomes due
and payable (whether on the stated maturity date, upon acceleration or
otherwise).


 


4.4                                 Voluntary
Prepayments.


 


4.4.1.                     Right to
Prepay.


 


The Borrower shall have the right at its option from
time to time to prepay the Loans in whole or part without premium or penalty
(except as provided in Section 4.4.2 [Replacement of a Bank] below or in
Section 4.6 [Additional Compensation in Certain Circumstances]) in the
currency in which such Loan was made:


 


46

















 


(i)                                     at
any time with respect to any Loan to which the Base Rate Option applies,


 


(ii)                                  on
the last day of the applicable Interest Period with respect to Loans to which a
Euro-Rate Option applies, and


 


(iii)                               on
the date specified in a notice by any Bank pursuant to Section 3.4
[Euro-Rate Unascertainable, Etc.] with respect to any Loan to which a Euro-Rate
Option applies.


 


Whenever the Borrower desires to prepay any part of
the Loans, it shall provide a prepayment notice to the Administrative Agent by
11:00 a.m., Pittsburgh, Pennsylvania time, (a) at least one (1) Business Day
prior to the date of prepayment of Revolving Credit Loans denominated in U.S.
Dollars, (b) at least four (4) Business Days prior to the date of prepayment of
Revolving Credit Loans denominated in an Optional Currency, and (c) no later
than 11:00 a.m., Pittsburgh, Pennsylvania time, on the date of prepayment of
Swing Loans, setting forth the following information:


 


(x)                                   the
date, which shall be a Business Day, on which the proposed prepayment is to be
made;


 


(y)                                 a
statement indicating the application of the prepayment between the Swing Loans
and the Revolving Credit Loans; and


 


(z)                                   the
total principal amount and currency of such prepayment, the Dollar Equivalent
amount of which (i) with respect to Revolving Credit Loans shall be in integral
multiples of Five Hundred Thousand and 00/100 Dollars ($500,000.00) and not
less than One Million and 00/100 Dollars ($1,000,000.00) for each Borrowing
Tranche to which the Euro-Rate Option applies and in integral multiples of One
Hundred Thousand and 00/100 Dollars ($100,000.00) and not less than the lesser
of Five Hundred Thousand and 00/100 Dollars ($500,000.00) or the outstanding
principal amount or Revolving Credit Loans to which the Base Rate Option
applies and (ii) with respect to Swing Loans, in integral multiples of One
Hundred Thousand and 00/100 Dollars ($100,000.00) and not less than the lesser
of One Hundred Thousand and 00/100 Dollars ($100,000.00) or the outstanding
principal amount of the Swing Loans.


 


All prepayment notices shall be irrevocable. The
principal amount of the Loans for which a prepayment notice is given, together
with interest on such principal amount except with respect to Loans to which the
Base Rate Option applies, shall be due and payable on the date specified in
such prepayment notice as the date on which the proposed prepayment is to be
made in the currency in which such Loan was made. Except as provided in
Section 3.4.3 [Administrative Agent’s and Bank’s Rights], if the Borrower
prepays a Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is prepaying, the prepayment shall be applied first to Loans to which
the Base Rate Option applies, then to Loans to which the Euro-


 


47

















 


Rate Option applies, and
then to Optional Currency Loans. Any prepayment hereunder shall be subject to
the Borrower’s Obligation to indemnify the Banks under Section 4.6.2
[Indemnity].


 


4.4.2.                     Replacement
of a Bank.


 


In the event any Bank (i) gives notice under
Section 3.4 [Euro-Rate Unascertainable, Etc.] or Section 4.6.1
[Increased Costs, Etc.], (ii) does not fund Revolving Credit Loans because
the making of such Loans would contravene any Law applicable to such Bank,
(iii) becomes subject to the control of an Official Body (other than
normal and customary supervision), or (iv) has failed to consent to a proposed
modification, amendment or waiver which pursuant to the terms of Section 10.1
or any other provision of any Loan Document requires the consent of all of the
Banks and with respect to which the Super-Majority Required Banks shall have
granted their consent, (a) within ninety (90) days after (x) receipt of
such Bank’s notice under Section 3.4 [Euro-Rate Unascertainable, Etc.] or
4.6.1 [Increased Costs, Etc.], (y) the date such Bank has failed to fund
Revolving Credit Loans because the making of such Loans would contravene Law
applicable to such Bank, or (z) the date such Bank became subject to the
control of an Official Body, as applicable, or (b) within ninety (90) days
after such Bank has failed to consent to a proposed modification, amendment or
waiver, to prepay the Loans of such Bank in whole (together with all interest
accrued thereon and any amounts required under Section 4.6
[Additional Compensation in Certain Circumstances] and any accrued interest due
on such amount and any related fees) and terminate such Bank’s Commitment or to
have such Bank’s Commitment replaced by one or more of the remaining Banks or a
replacement bank acceptable to the Administrative Agent pursuant to Section
10.11 hereof; provided, that the remaining Banks shall have no
obligation hereunder to increase their Commitments; provided, further to
the extent the Borrower elects to replace a Bank which gave the Borrower notice
under Section 3.4 or 4.6.1 or which failed to fund a Revolving Credit Loan
because the making of such Loans would contravene any Law applicable to such
Bank, it shall be obligated to remove or replace, as the case may be, all Banks
that have made similar requests for compensation pursuant to Section 3.4 or
Section 4.6.1 or who have failed to fund such Loans. Notwithstanding the
foregoing, the Administrative Agent may only be replaced subject to the
requirements of Section 9.14 [Successor Administrative Agent] and provided
that all Letters of Credit have expired or been terminated or replaced.


 


4.4.3.                     Change of
Lending Office.


 


Each Bank agrees that upon the occurrence of any event
giving rise to increased costs or other special payments under
Section 3.4.2 [Illegality, Etc.] or 4.6.1 [Increased Costs, Etc.] with
respect to such Bank, it will if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such
Bank and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this Section 4.3
[Interest Payment Dates] shall affect or postpone any of the Obligations of the
Borrower, any other Loan Party or RSC or the rights of the Administrative Agent
or any Bank provided in this Agreement.


 


48

















 


4.5                                 Mandatory
Prepayments.


 


4.5.1.                     Currency
Fluctuations


 


If on any Computation Date (i) the Dollar Equivalent
Revolving Facility Usage is equal to or greater than one hundred percent (100%)
of the Commitments as a result of a change in exchange rates between one (1) or
more Optional Currencies and Dollars, then the Administrative Agent shall
notify the Borrower of the same. The Borrower shall pay or prepay Loans
(subject to Borrower’s indemnity obligations under Sections 3.4 [Euro-Rate
Unascertainable; Illegality; Increased Costs, etc.] and 4.6 [Additional
Compensation in Certain Circumstances]) within one (1) Business Day after
receiving such notice such that the Dollar Equivalent Revolving Facility Usage
shall not exceed the aggregate Commitments after giving effect to such payments
or prepayments.


 


4.5.2.                     Application
among Interest Rate Options.


 


All prepayments required pursuant to this Section 4.5
[Mandatory Prepayments] shall first be applied among the Interest Rate Options
to the principal amount of the Loans subject to the Base Rate Option, then to
Dollar Loans subject to a Euro-Rate Option and then to Optional Currency Loans
subject to the Euro-Rate Option. In accordance with Section 4.6.2 [Indemnity],
the Borrower shall indemnify the Banks for any loss or expense, including loss
of margin, incurred with respect to any such prepayments applied against Loans
subject to a Euro-Rate Option on any day other than the last day of the
applicable Interest Period.


 


4.6                                 Additional
Compensation in Certain Circumstances.


 


4.6.1.                     Increased
Costs or Reduced Return Resulting from Taxes, Reserves, Capital Adequacy
Requirements, Expenses, Etc.


 


If any Law, guideline or interpretation or any change
in any Law, guideline or interpretation or application thereof by any Official
Body charged with the interpretation or administration thereof or compliance
with any request or directive (whether or not having the force of Law) of any
central bank or other Official Body:


 


(i)                                     subjects
any Bank to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans, the Letters of Credit or payments by the
Borrower of principal, interest, Commitment Fees, or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on or measured by the
overall net income of such Bank),


 


(ii)                                  imposes,
modifies or deems applicable any reserve, special deposit or similar
requirement against credits or commitments to extend credit extended by, or
assets (funded or contingent) of, deposits with or for the account of, or other
acquisitions of funds by, any Bank or any lending office of any Bank, or


 


(iii)                               imposes,
modifies or deems applicable any capital adequacy or similar requirement
(A) against assets (funded or contingent) of, or letters of credit,


 


49

















 


other credits or commitments to extend credit extended by, any Bank, or
(B) otherwise applicable to the obligations of any Bank or any lending
office of any Bank under this Agreement, and the result of any of the foregoing
is to increase the cost to, reduce the income receivable by, or impose any
expense (including loss of margin) upon any Bank or its lending office with
respect to this Agreement, the Notes or the making, maintenance or funding of
any part of the Loans (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on any Bank’s
capital, taking into consideration such Bank’s customary policies with respect
to capital adequacy) by an amount which such Bank in its sole discretion deems
to be material, such Bank shall from time to time notify the Borrower and the
Administrative Agent of the amount determined in good faith (using any
averaging and attribution methods employed in good faith) by such Bank to be
necessary to compensate such Bank for such increase in cost, reduction of
income, additional expense or reduced rate of return. Such notice shall set
forth in reasonable detail the basis for such determination. Such amount shall
be due and payable by the Borrower to such Bank ten (10) Business Days after
such notice is given.


 


4.6.2.                     Indemnity.


 


In addition to the compensation required by
Section 4.6.1 [Increased Costs, Etc.], each Loan Party shall indemnify
each Bank against all liabilities, losses or expenses (including loss of
margin, any loss or expense incurred in liquidating or employing deposits from
third parties, any loss or expense incurred in connection with funds acquired
by a Bank to fund or maintain Loans subject to a Euro-Rate Option and any
customary administrative expenses of such Bank) which such Bank sustains or
incurs as a consequence of any:


 


(i)                                     payment,
prepayment, conversion or renewal of any Loan to which a Euro-Rate Option
applies on a day other than the last day of the corresponding Interest Period
(whether or not such payment or prepayment is mandatory, voluntary or automatic
and whether or not such payment or prepayment is then due),


 


(ii)                                  attempt
by the Borrower to revoke (expressly, by later inconsistent notices or
otherwise) in whole or part any Loan Requests under Section 2.4 [Revolving
Credit Loan Requests] or Section 3.2 [Interest Periods] or notice relating
to prepayments under Section 4.4 [Voluntary Prepayments], or


 


(iii)                               default
by a Loan Party or RSC in the performance or observance of any covenant or
condition contained in this Agreement or any other Loan Document, including any
failure of the Borrower to pay when due (by acceleration or otherwise) any
principal, interest, Commitment Fee or any other amount due hereunder.


 


If any Bank sustains or incurs any such loss or
expense, it shall from time to time notify the Borrower of the amount determined
in good faith by such Bank (which determination may include such assumptions,
allocations of costs and expenses and averaging or attribution methods as such
Bank shall deem reasonable) to be necessary to indemnify such Bank for such
loss or expense. Such notice shall set forth in reasonable detail the basis for
such determination. Such amount shall be due and payable by the Loan Parties to
such Bank ten (10) Business Days after such notice is given.


 


50

















 


4.7                                 Interbank
Market Presumption.


 


For all purposes of this Agreement and each Note with
respect to any aspects of the Euro-Rate, any Loan under the Euro-Rate Option or
any Optional Currency, each Bank and the Administrative Agent shall be presumed
to have obtained rates, funding, currencies, deposits, and the like in the
applicable interbank market regardless whether it did so or not; and, each Bank’s
and the Administrative Agent’s determination of amounts payable under, and
actions required or authorized by, Sections 3.4 [Euro-Rate Unascertainable;
Illegality; Increased Costs; Deposits Not Available] and 4.6 [Indemnity] shall
be calculated, at each Bank’s and the Administrative Agent’s option, as though
each Bank and the Administrative Agent funded each Borrowing Tranche of Loans
under the Euro-Rate Option through the purchase of deposits of the types and
maturities corresponding to the deposits used as a reference in accordance with
the terms hereof in determining the Euro-Rate applicable to such Loans, whether
in fact that is the case.


 


4.8                                 Taxes.


 


4.8.1.                     No
Deductions.


 


All payments made by Borrower hereunder and under each
Note shall be made free and clear of and without deduction for any present or
future taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the net income of
any Bank and all income and franchise taxes applicable to any Bank of the
United States (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as “Taxes”). If
Borrower shall be required by Law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.8.1) each Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall timely pay the full amount deducted to
the relevant tax authority or other authority in accordance with applicable
Law.


 


4.8.2.                     Stamp
Taxes.


 


In addition, Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder or from
the execution, delivery, or registration of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as “Other Taxes”).


 


4.8.3.                     Indemnification
for Taxes Paid by a Bank.


 


Borrower shall indemnify each Bank for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 4.8.3)
paid by any Bank and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other


 


51

















 


Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date a Bank
makes written demand therefor.


 


4.8.4.                     Certificate.


 


Within thirty (30) days after the date of any payment
of any Taxes by Borrower, Borrower shall furnish to each Bank, at its address
referred to herein, the original or a certified copy of a receipt evidencing
payment thereof. If no Taxes are payable in respect of any payment by Borrower,
such Borrower shall, if so requested by a Bank, provide a certificate of an
officer of Borrower to that effect.


 


4.8.5.                     Survival.


 


Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of Borrower
contained in Sections 4.8.1 through 4.8.4 shall survive the payment in full of
principal and interest hereunder and under any instrument delivered hereunder.


 


4.9                                 Judgment
Currency.


 


4.9.1.                     Currency
Conversion Procedures for Judgments.


 


If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder or under a Note in any currency
(the “Original Currency”) into another currency (the “Other Currency”), the
parties hereby agree, to the fullest extent permitted by Law, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures each Bank could purchase the Original Currency with the Other
Currency after any premium and costs of exchange on the Business Day preceding
that on which final judgment is given.


 


4.9.2.                     Indemnity
in Certain Events.


 


The obligation of Borrower in respect of any sum due
from Borrower to any Bank hereunder shall, notwithstanding any judgment in an
Other Currency, whether pursuant to a judgment or otherwise, be discharged only
to the extent that, on the Business Day following receipt by any Bank of any
sum adjudged to be so due in such Other Currency, such Bank may in accordance
with normal banking procedures purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to such Bank in the Original Currency, Borrower agrees, as a
separate obligation and notwithstanding any such judgment or payment, to
indemnify such Bank against such loss.


 


4.10                           Settlement
Date Procedures.


 


In order to minimize the transfer of funds between the
Banks and the Administrative Agent, the Borrower may borrow, repay and reborrow
Swing Loans and PNC Bank may make Swing Loans as provided in Section 2.1.2
[Swing Loans] hereof during the period between Settlement Dates. Not later than
10:00 a.m., Pittsburgh, Pennsylvania time, on


 


52

















 


each Settlement Date, the Administrative Agent shall
notify each Bank of its Ratable Share of the total of the Revolving Credit
Loans (each a “Required Share”). Prior to 2:00 p.m., Pittsburgh, Pennsylvania
time, on such Settlement Date, each Bank shall pay to the Administrative Agent
the amount equal to the difference between its Required Share and its Revolving
Credit Loans, and the Administrative Agent shall pay to each Bank its Ratable
Share of all payments made by the Borrower to the Administrative Agent with
respect to the Revolving Credit Loans. The Administrative Agent shall also
effect settlement in accordance with the foregoing sentence on the proposed
Borrowing Dates for Revolving Credit Loans and may at its option effect
settlement on any other Business Day. These settlement procedures are
established solely as a matter of administrative convenience, and nothing
contained in this Section 4.10 [Settlement Date Procedures] shall relieve the
Banks of their obligations to fund Revolving Credit Loans on dates other than a
Settlement Date pursuant to Section 2.1.1 [Revolving Credit Loans]. The
Administrative Agent may at any time at its option for any reason whatsoever
require each Bank to pay immediately to the Administrative Agent such Bank’s
Ratable Share of the outstanding Revolving Credit Loans and each Bank may at
any time require the Administrative Agent to pay immediately to such Bank its
Ratable Share of all payments made by the Borrower to the Administrative Agent
with respect to the Revolving Credit Loans.


 


5.                                       REPRESENTATIONS
AND WARRANTIES


 


5.1                                 Representations
and Warranties.


 


The Loan Parties, jointly and severally, represent and
warrant to the Administrative Agent and each of the Banks as follows:


 


5.1.1.                     Organization
and Qualification.


 


Each Loan Party and each Subsidiary of each Loan Party
is a corporation, partnership or limited liability company duly organized,
validly existing and in good standing under the Laws of its jurisdiction of
organization. Each Loan Party and each Subsidiary of each Loan Party has the
lawful power to own or lease its properties and to engage in the business it
presently conducts or proposes to conduct. Each Loan Party is duly licensed or
qualified and in good standing in each jurisdiction where the property owned or
leased by it or the nature of the business transacted by it or both makes such
licensing or qualification necessary.


 


5.1.2.                     Capitalization
and Ownership.


 


All of the authorized capital stock of the Borrower,
and the shares (referred to herein as the “Shares”) of the Borrower that are
issued and outstanding have been validly issued and are fully paid and
nonassessable. There are no options, warrants or other rights outstanding to
purchase any such shares except as indicated on Schedule 5.1.2.


 


5.1.3.                     Subsidiaries.


 


Schedule 5.1.3 states the name of
each of the Borrower’s Subsidiaries, its jurisdiction of incorporation, its
authorized capital stock, the issued and outstanding shares


 


53

















 


(referred to herein as
the “Subsidiary Shares”) and the owners thereof if it is a corporation, its
outstanding partnership interests (the “Partnership Interests”) if it is a
partnership and its outstanding limited liability company interests, interests
assigned to managers thereof and the voting rights associated therewith (the “LLC
Interests”) if it is a limited liability company. Each of the Loan Parties has
good and marketable title to all of the Subsidiary Shares, Partnership
Interests and LLC Interests it purports to own, free and clear in each case of
any Lien. All Subsidiary Shares, Partnership Interests and LLC Interests have
been validly issued, and all Subsidiary Shares are fully paid and nonassessable.
All capital contributions and other consideration required to be made or paid
in connection with the issuance of the Partnership Interests and LLC Interests
have been made or paid, as the case may be. There are no options, warrants or other rights outstanding to purchase any such
Subsidiary Shares, Partnership Interests or LLC Interests except as indicated
on Schedule 5.1.3.


 


5.1.4.                     Power and
Authority.


 


Each Loan Party and RSC has full power to enter into,
execute, deliver and carry out this Agreement and the other Loan Documents to
which it is a party, to incur the Indebtedness contemplated by the Loan
Documents and to perform its Obligations under the Loan Documents to which it
is a party, and all such actions have been duly authorized by all necessary
proceedings on its part.


 


5.1.5.                     Validity
and Binding Effect.


 


This Agreement has been duly and validly executed and
delivered by each Loan Party and RSC, and each other Loan Document which any
Loan Party or RSC is required to execute and deliver on or after the date
hereof will have been duly executed and delivered by such Loan Party or RSC on
the required date of delivery of such Loan Document. This Agreement and each
other Loan Document constitutes, or will constitute, legal, valid and binding
obligations of RSC and each Loan Party which is or will be a party thereto on
and after its date of delivery thereof, enforceable against RSC and such Loan
Party in accordance with its terms, except to the extent that enforceability of
any of such Loan Document may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting the enforceability
of creditors’ rights generally or limiting the right of specific performance.


 


5.1.6.                     No
Conflict.


 


Neither the execution and delivery of this Agreement
or the other Loan Documents by any Loan Party or RSC nor the consummation of
the transactions herein or therein contemplated or compliance with the terms
and provisions hereof or thereof by any of them will conflict with, constitute
a default under or result in any breach of (i) the terms and conditions of
the certificate or articles of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement or other organizational documents of any Loan Party or RSC or
(ii) any material Law or any material agreement or instrument or order,
writ, judgment, injunction or decree to which any Loan Party or any of its
Subsidiaries is a party or by which it is bound or to which it or any of its
Subsidiaries is subject,


 


54

















 


or result in the creation
or enforcement of any Lien, charge or encumbrance whatsoever upon any property
(now or hereafter acquired) of any Loan Party or any of its Subsidiaries.


 


5.1.7.                     Litigation.


 


There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Loan Party, threatened
against such Loan Party or any of its Subsidiaries at law or equity before any
Official Body which individually or in the aggregate would reasonably be
expected to result in any Material Adverse Change. None of the Loan Parties or
any Subsidiaries of any Loan Party is in violation of any order, writ,
injunction or any decree of any Official Body which would reasonably be
expected to result in any Material Adverse Change.


 


5.1.8.                     Title to
Properties.


 


Each Loan Party and each Subsidiary of each Loan Party
has good and marketable title to (or ownership of) or valid leasehold interest
in all properties, assets and other rights which it purports to own or lease or
which are reflected as owned or leased on its books and records, free and clear
of all Liens and encumbrances except Permitted Liens, and in the case of
property leased by such Loan Party, subject to the terms and conditions of the
applicable leases. Upon consummation of the transactions contemplated hereby,
all leases of real property are in full force and effect without the necessity
for any consent which has not previously been obtained.


 


5.1.9.                     Financial
Statements.


 


(i)                                     Historical
Statements. The Borrower has delivered to the Administrative Agent copies
of its audited consolidated year-end financial statements for and as of the end
of the two (2) fiscal years ended December 28, 2003 and December 26, 2004 (the “Annual
Statements”). The Annual Statements were compiled from the books and records
maintained by the Borrower’s management, fairly represent the consolidated
financial condition of the Borrower and its Subsidiaries as of their dates and
the results of operations for the fiscal periods then ended and have been
prepared in accordance with GAAP consistently applied.


 


(ii)                                  Financial
Projections. The Borrower has delivered to the Administrative Agent
financial projections of the Borrower and its Subsidiaries for the period from
fiscal year 2005 through fiscal year 2010 derived from various assumptions of
the Borrower’s management (the “Financial Projections”). The Financial
Projections represent a reasonable range of possible results in light of the
history of the business, present and foreseeable conditions and the intentions
of the Borrower’s management. The Financial Projections accurately reflect the
liabilities of the Borrower and its Subsidiaries upon consummation of the
transactions contemplated hereby as of the Closing Date.


 


(iii)                               Accuracy
of Financial Statements. Neither the Borrower nor any Subsidiary of the
Borrower has any liabilities, contingent or otherwise, or forward or long-term
commitments that are not disclosed in the Historical Statements or in the notes
thereto, and except as disclosed therein there are no unrealized or anticipated
losses from any


 


55

















 


commitments of the Borrower or any Subsidiary of the Borrower, in each
case which would reasonably be expected to cause a Material Adverse Change. Since
December 26, 2004, no Material Adverse Change has occurred.


 


5.1.10.               Use of Proceeds;
Margin Stock; Section 20 Subsidiaries.


 


5.1.10.1         General.


 


The Loan Parties intend
to use the proceeds of the Loans in accordance with Sections 2.7 [Use of
Proceeds] and 7.1.10 [Use of Proceeds].


 


5.1.10.2         Margin Stock.


 


None of the Loan Parties
or any Subsidiaries of any Loan Party engages or intends to engage principally,
or as one of its important activities, in the business of extending credit for
the purpose, immediately, incidentally or ultimately, of purchasing or carrying
margin stock (within the meaning of Regulation U). No part of the proceeds of
any Loan has been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock or to refund Indebtedness
originally incurred for such purpose, or for any purpose which entails a
violation of or which is inconsistent with the provisions of the regulations of
the Board of Governors of the Federal Reserve System. None of the Loan Parties
or any Subsidiary of any Loan Party holds or intends to hold margin stock in
such amounts that more than twenty five percent (25%) of the reasonable value
of the assets of such Loan Party or Subsidiary are or will be represented by
margin stock.


 


5.1.10.3         Section 20
Subsidiaries.


 


The Loan Parties do not
intend to use and shall not use any portion of the proceeds of the Loans,
directly or indirectly, to purchase during the underwriting period, or for
thirty (30) days thereafter, Ineligible Securities being underwritten by a
Section 20 Subsidiary.


 


5.1.11.               Full Disclosure.


 


Neither this Agreement nor any other Loan Document,
nor any certificate, statement, agreement or other documents furnished to the
Administrative Agent or any Bank in connection herewith or therewith, contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein, in
light of the circumstances under which they were made, not misleading. There is
no fact known to any Loan Party which materially adversely affects the
business, property, assets, financial condition, results of operations or
prospects of any Loan Party or any Subsidiary of any Loan Party which has not
been set forth in this Agreement or in the certificates, statements, agreements
or other documents furnished in writing to the Administrative Agent and the
Banks prior to or at the date hereof in connection with the transactions
contemplated hereby.


 


56

















 


5.1.12.               Taxes.


 


All federal, state, local and other tax returns
required to have been filed with respect to each Loan Party or any Subsidiary
of any Loan Party have been filed, and payment or adequate provision has been
made for the payment of all taxes, fees, assessments and other governmental
charges which have or may become due pursuant to said returns or to assessments
received, except to the extent that such taxes, fees, assessments and other
charges are being contested in good faith by appropriate proceedings diligently
conducted and for which such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made. There are no agreements or
waivers extending the statutory period of limitations applicable to any federal
or other income tax return of any Loan Party or any Subsidiary of any Loan
Party for any period.


 


5.1.13.               Consents and
Approvals.


 


No consent, approval, exemption, order or
authorization of, or a registration or filing with, any Official Body or any
other Person is required by any Law or any agreement in connection with the
execution, delivery and carrying out of this Agreement and the other Loan
Documents by any Loan Party or RSC, all of which shall have been obtained or
made on or prior to the Closing Date.


 


5.1.14.               No Event of
Default; Compliance with Instruments.


 


No event has occurred and is continuing and no
condition exists or will exist after giving effect to the borrowings or other
extensions of credit to be made on the Closing Date under or pursuant to the
Loan Documents which constitutes an Event of Default or Potential Default. None
of the Loan Parties or any Subsidiary of any Loan Party is in violation of
(i) any term of its certificate of incorporation, bylaws, certificate of
limited partnership, partnership agreement, certificate of formation, limited
liability company agreement or other organizational documents or (ii) any
material agreement or instrument to which it is a party or by which it or any
of its properties may be subject or bound where such violation would constitute
a Material Adverse Change.


 


5.1.15.               Patents,
Trademarks, Copyrights, Licenses, Etc.


 


Each Loan Party and each Subsidiary of each Loan Party
owns or possesses all the material patents, trademarks, service marks, trade
names, copyrights, licenses, registrations, franchises, permits and rights
necessary to own and operate its properties and to carry on its business as
presently conducted and planned to be conducted by such Loan Party or
Subsidiary, without known possible, alleged or actual conflict with the rights
of others.


 


5.1.16.               Insurance.


 


Schedule 5.1.16 lists all insurance
policies to which any Loan Party is a party, all of which are valid and in full
force and effect. No notice has been given or claim made and no grounds exist
to cancel or avoid any insurance policies and other bonds to which any Loan
Party or any Subsidiary of any Loan Party is a party or to materially reduce
the coverage


 


57

















 


provided thereby. Such
policies and bonds provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of each
Loan Party and each Subsidiary of any Loan Party in accordance with customary
business practice in the industry of the Loan Parties and their Subsidiaries.


 


5.1.17.               Compliance with
Laws.


 


The Loan Parties and their Subsidiaries are in
compliance in all material respects with all applicable Laws (other than
Environmental Laws or Safety Laws which are specifically addressed in
Section 5.1.22 [Environmental Matters and Safety Matters]) in all
jurisdictions in which any Loan Party or any Subsidiary of any Loan Party is
presently or will be doing business except where the failure to do so would not
reasonably be expected to constitute a Material Adverse Change.


 


5.1.18.               Material
Contracts; Burdensome Restrictions.


 


All material contracts relating to the business
operations of each Loan Party and each Subsidiary of each Loan Party, including
all employee benefit plans and Labor Contracts are valid, binding and
enforceable upon such Loan Party or Subsidiary and each of the other parties
thereto in accordance with their respective terms, and there is no default
thereunder or, to the Loan Parties’ knowledge, by any other parties thereto. None
of the Loan Parties or their Subsidiaries is bound by any contractual
obligation, or subject to any restriction in any organization document, or any
requirement of Law which could result in a Material Adverse Change or which
restricts or prohibits any Loan Party or RSC from entering into, and performing
its obligations under, the transactions contemplated hereby.


 


5.1.19.               Investment
Companies; Regulated Entities.


 


None of the Loan Parties or any Subsidiary of any Loan
Party is an “investment company” registered or required to be registered under
the Investment Company Act of 1940 or under the “control” of an “investment
company” as such terms are defined in the Investment Company Act of 1940 and
shall not become such an “investment company” or under such “control.”  None of the Loan Parties or any Subsidiary of
any Loan Party is subject to any other federal or state statute or regulation
limiting its ability to incur Indebtedness for borrowed money.


 


5.1.20.               Plans and
Benefit Arrangements.


 


Except as set forth on Schedule
5.1.20:


 


(i)                                     The
Borrower and each other member of the ERISA Group are in compliance in all
material respects with any applicable provisions of ERISA with respect to all
Benefit Arrangements, Plans and Multiemployer Plans. There has been no
Prohibited Transaction with respect to any Benefit Arrangement or any Plan or,
to the best knowledge of the Borrower and each member of the ERISA Group, with
respect to any Multiemployer Plan or Multiple Employer Plan, which could result
in any material liability of the Borrower or any other member of the ERISA
Group. The Borrower and all other members of the ERISA Group have


 


58

















 


made when due any and all payments required to be made under any
agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any
Law pertaining thereto. With respect to each Plan and Multiemployer Plan, the
Borrower and each other member of the ERISA Group (i) have fulfilled in
all material respects their obligations under the minimum funding standards of
ERISA, (ii) have not incurred any liability to the PBGC, and
(iii) have not had asserted against them any penalty for failure to
fulfill the minimum funding requirements of ERISA.


 


(ii)                                  To
the best of the Borrower’s knowledge, each Multiemployer Plan and Multiple
Employer Plan is able to pay benefits thereunder when due.


 


(iii)                               Neither
the Borrower nor any other member of the ERISA Group has instituted or intends
to institute proceedings to terminate any Plan.


 


(iv)                              No
event requiring notice to the PBGC under Section 302(f)(4)(A) of ERISA has
occurred or is reasonably expected to occur with respect to any Plan, and no
amendment with respect to which security is required under Section 307 of
ERISA has been made or is reasonably expected to be made to any Plan.


 


(v)                                 The
aggregate actuarial present value of all benefit liabilities (whether or not
vested) under each Plan, determined on a plan termination basis, as disclosed
in, and as of the date of, the most recent actuarial report for such Plan, does
not exceed the aggregate fair market value of the assets of such Plan.


 


(vi)                              Neither
the Borrower nor any other member of the ERISA Group has incurred or reasonably
expects to incur any material withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any
other member of the ERISA Group has been notified by any Multiemployer Plan or
Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan
has been terminated within the meaning of Title IV of ERISA and, to the best
knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan is
reasonably expected to be reorganized or terminated, within the meaning of
Title IV of ERISA.


 


(vii)                           To the
extent that any Benefit Arrangement is insured, the Borrower and all other
members of the ERISA Group have paid when due all premiums required to be paid
for all periods through the Closing Date. To the extent that any Benefit
Arrangement is funded other than with insurance, the Borrower and all other
members of the ERISA Group have made when due all contributions required to be
paid for all periods through the Closing Date.


 


(viii)                        All Plans,
Benefit Arrangements and Multiemployer Plans have been administered in
accordance with their terms and applicable Law.


 


5.1.21.               Employment
Matters.


 


Each of the Loan Parties and each of their
Subsidiaries is in compliance with the Labor Contracts and all applicable
federal, state and local labor and employment Laws including those related to
equal employment opportunity and affirmative action, labor relations,


 


59

















 


minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment compensation, where
the failure to comply would reasonably be expected to constitute a Material
Adverse Change. There are no outstanding grievances, arbitration awards or
appeals therefrom arising out of the Labor Contracts or current or threatened
strikes, picketing, handbilling or other work stoppages or slowdowns at
facilities of any of the Loan Parties or any of their Subsidiaries which in any
case would reasonably be expected to constitute a Material Adverse Change. The
Borrower has delivered to the Administrative Agent true and correct copies of
each of the Labor Contracts.


 


5.1.22.               Environmental
Matters and Safety Matters.


 


Except as disclosed on Schedule 5.1.22:


 


(i)                                     None
of the Loan Parties and none of the Subsidiaries of any Loan Party have received
any Environmental Complaint, whether directed or issued to any Loan Party or
relating or pertaining to any predecessor of any Loan Party or Subsidiary or to
any prior owner, operator or occupant of the Property which has caused or would
reasonably be expected to cause a Material Adverse Change, and none of such
Loan Parties or Subsidiaries have reason to believe that it might receive an
Environmental Complaint which has caused or would reasonably be expected to
cause a Material Adverse Change.


 


(ii)                                  No
activity of any Loan Party or any Subsidiary of any Loan Party at the Property
is being or has been conducted in violation of any Environmental Law or
Environmental Permit which has caused or would reasonably be expected to cause
a Material Adverse Change and to the knowledge of any such Loan Party of
Subsidiary no activity of any predecessor of any Loan Party or Subsidiary or
any prior owner, operator or occupant of the Property was conducted in
violation of any Environmental Law which has caused or would reasonably be
expected to cause a Material Adverse Change.


 


(iii)                               There
are no Regulated Substances present on, in, under, or emanating from, or to any
Loan Party’s or Subsidiary of any Loan Party’s knowledge emanating to, the
Property or any portion thereof which result in Contamination and which would
reasonably be expected to cause a Material Adverse Change.


 


(iv)                              Each
Loan Party and each Subsidiary of each Loan Party has all Environmental Permits
and all such Environmental Permits are in full force and effect except for
those Environmental Permits which the failure to have will not cause a Material
Adverse Change.


 


(v)                                 Each
Loan Party and each Subsidiary of each Loan Party has submitted to an Official
Body and/or maintains, as appropriate, all Environmental Records except for
those Environmental Records which the failure to submit or maintain will not
cause a Material Adverse Change.


 


(vi)                              No
portion of the Property is identified or to the knowledge of each Loan Party
and each Subsidiary of each Loan Party proposed to be identified on any list


 


60

















 


of contaminated properties or other properties which pursuant to
Environmental Laws are the subject of a Remedial Action by an Official Body or
any other Person (including any such Loan Party or Subsidiary).


 


(vii)                           No
portion of the Property constitutes an Environmentally Sensitive Area except
for those portions of the Property constituting an Environmentally Sensitive
Area which would not reasonably be expected to result in a Material Adverse
Change.


 


(viii)                        No lien or
other encumbrance authorized by Environmental Laws exists against the Property
and none of the Loan Parties nor any Subsidiary of any Loan Party has any
reason to believe that such a lien or encumbrance may be imposed.


 


(ix)                                The
activities and operations of the Loan Parties and the Subsidiaries of the Loan
Parties are being conducted in material compliance with applicable Safety Laws.


 


(x)                                   The
Loan Parties and the Subsidiaries of the Loan Parties have not received any
Safety Complaints which have or would reasonably be expected to result in a
Material Adverse Change, and to the knowledge of the Loan Parties and
Subsidiaries, no Safety Complaints are being threatened which have or would
reasonably be expected to result in a Material Adverse Change and the Loan
Parties and Subsidiaries have no reason to believe that a Safety Complaint
might be received or instituted which have or would reasonably be expected to
result in a Material Adverse Change.


 


(xi)                                Each
Loan Party and each Subsidiary of each Loan Party has submitted to an Official
Body and/or maintains in its files, as applicable, all Safety Filings and
Records except for those Safety Filings and Records which the failure to submit
or maintain would not reasonably be expected to result in a Material Adverse
Change.


 


5.1.23.               Senior Debt
Status.


 


The Obligations of each Loan Party and RSC under this
Agreement, the Notes, the Guaranty Agreements, the Borrower/RSC Guaranty
Agreement and each of the other Loan Documents to which any Loan Party or RSC
is a party do rank and will rank at least pari  passu in priority
of payment with all other Indebtedness of such Loan Party or RSC, as the case
may be, except Indebtedness of such Loan Party or RSC, as the case may be, to
the extent secured by Permitted Liens. There is no Lien upon or with respect to
any of the properties or income of any Loan Party or any Subsidiary of any Loan
Party which secures indebtedness or other obligations of any Person except for
Permitted Liens.


 


5.1.24.               Anti-Terrorism
Laws.


 


5.1.24.1         General.


 


None of the Loan Parties
nor, to any Loan Party’s knowledge, any Affiliate of any Loan Party, is in
violation of any Anti-Terrorism Law or engages in or conspires


 


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to engage in any
transaction  that evades or avoids, or
has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.


 


5.1.24.2         Executive Order No.
13224.


 


None of the Loan Parties,
nor, to any Loan Party’s knowledge, any Affiliate of any Loan Party, or their
respective agents acting or benefiting in any capacity in connection with the
Loans, Letters of Credit or other transactions hereunder, is any of the
following (each a “Blocked Person”):


 


(i)                                     a
Person that is listed in the annex to, or is otherwise subject to the
provisions of, the Executive Order No. 13224;


 


(ii)                                  a
Person owned or  controlled  by, or acting for or on behalf  of, 
any  Person  that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order No. 13224;


 


(iii)                               a
Person with  which any  Bank is 
prohibited  from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;


 


(iv)                              a
Person that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224; or


 


(v)                                 a  Person that is named as a “specially  designated national” on the most current list
published by the U.S. Treasury Department Office of Foreign Asset Control at
its official website or any replacement website or other replacement official
publication of such list; or


 


(vi)                              a
Person who is affiliated or associated with a Person listed above.


 


No Loan Party or to the knowledge of any Loan Party,
any Affiliate of any Loan Party or any of its agents acting in any capacity in
connection with the Loans, Letters of Credit or other transaction hereunder (i)
conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Blocked Person, or (ii)
deals in, or otherwise engages in any transaction relating to, any property or
interests in property  blocked  pursuant to the Executive Order No. 13224.


 


5.1.25.               Solvency.


 


After giving effect to the transactions contemplated
by this Agreement and the Loan Documents and the making of Loans and issuance
of Letters of Credit hereunder each Loan Party and RSC shall be Solvent.


 


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5.2                                 Updates
to Schedules.


 


Should any of the information or disclosures provided
on any of the Schedules attached hereto become outdated or incorrect in any
material respect, the Borrower shall promptly provide the Administrative Agent
in writing with such revisions or updates to such Schedule as may be necessary
or appropriate to update or correct same; provided, however, that no
Schedule shall be deemed to have been amended, modified or superseded by any
such correction or update, nor shall any breach of warranty or representation
resulting from the inaccuracy or incompleteness of any such Schedule be deemed
to have been cured thereby, unless and until the Required Banks, in their sole
and absolute discretion, shall have accepted in writing such revisions or
updates to such Schedule.


 


6.                                       CONDITIONS
OF LENDING AND ISSUANCE OF LETTERS OF CREDIT


 


The obligation of each Bank to make Loans and the
Administrative Agent to issue Letters of Credit hereunder is subject to the
performance by each of the Loan Parties and RSC of its Obligations to be performed
hereunder at or prior to the making of any such Loans or issuance of such
Letters of Credit and to the satisfaction of the following further conditions:


 


6.1                                 First
Loans and Letters of Credit.


 


On the Closing Date:


 


6.1.1.                     Officer’s
Certificate.


 


The representations and warranties of each of the Loan
Parties and RSC contained in Section 5 [Representations and Warranties]
and in each of the other Loan Documents shall be true and accurate on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein), and each of the Loan Parties and
RSC shall have performed and complied with all covenants and conditions hereof
and thereof, no Event of Default or Potential Default shall have occurred and
be continuing or shall exist; and there shall be delivered to the
Administrative Agent for the benefit of each Bank one original certificate
(with sufficient copies for each Bank) of each of the Loan Parties, dated the
Closing Date and signed by the Chief Executive Officer, President or Chief Financial
Officer of each of the Loan Parties, to each such effect.


 


63

















 


6.1.2.                     Secretary’s
Certificate.


 


There shall be delivered
to the Administrative Agent for the benefit of each Bank one original certificate
(with sufficient copies for each Bank) dated the Closing Date and signed by the
Secretary or an Assistant Secretary of each of the Loan Parties and RSC,
certifying as appropriate as to:


 


(i)                                     the
completion of all action required to have been taken by each Loan Party and RSC
by the Closing Date in connection with this Agreement and the other Loan
Documents;


 


(ii)                                  the
names of the officer or officers authorized to sign this Agreement and the
other Loan Documents to which they are a party and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of each Loan Party or RSC, as applicable, for purposes of this Agreement
and the true signatures of such officers, on which the Administrative Agent and
each Bank may conclusively rely; and


 


(iii)                               copies
of its organizational documents, including its certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, and limited liability company agreement as in effect on the
Closing Date certified by the appropriate governmental official, where
applicable, together with certificates from the appropriate governmental
officials as to the continued existence and good standing of each Loan Party
and RSC in each jurisdiction where organized or formed, as applicable, and each
jurisdiction where a Loan Party or RSC, as applicable, is qualified to do
business.


 


6.1.3.                     Delivery
of Loan Documents.


 


The Guaranty Agreements, the Borrower/RSC Guaranty
Agreement, the Notes, the Intercompany Subordination Agreement and any other
Loan Documents required by the Administrative Agent, shall have been duly
executed and delivered to the Administrative Agent for the benefit of the
Banks.


 


6.1.4.                     Opinion of
Counsel.


 


There shall be delivered to the Administrative Agent
for the benefit of each Bank one (1) original, with sufficient copies for the
Banks, of a written opinion of the Borrower’s in-house counsel, dated the
Closing Date and in form and substance satisfactory to the Administrative Agent
and its counsel.


 


6.1.5.                     Legal
Details.


 


All legal details and proceedings in connection with
the transactions contemplated by this Agreement and the other Loan Documents
shall be in form and substance satisfactory to the Administrative Agent and
counsel for the Administrative Agent, and the Administrative Agent shall have
received all such other counterpart originals or certified or other copies of
such documents and proceedings in connection with such transactions, in form
and


 


64

















substance satisfactory to
the Administrative Agent and said counsel, as the Administrative Agent or said
counsel may reasonably request.


 


6.1.6.                     Payment of
Fees.


 


The Borrower shall have paid or caused to be paid to
the Administrative Agent for itself and for the account of the Banks to the
extent not previously paid, all commitment and other fees accrued through the
Closing Date and the costs and expenses for which the Administrative Agent and
the Banks are entitled to be reimbursed.


 


6.1.7.                     Consents.


 


All material consents required to effectuate the
transactions contemplated hereby shall have been obtained.


 


6.1.8.                     Officer’s
Certificate Regarding MACs.


 


Since December 26, 2004, no Material Adverse Change
shall have occurred; prior to the Closing Date, there shall have been no
material change in the management of any Loan Party or any Subsidiary of any
Loan Party; and there shall have been delivered to the Administrative Agent for
the benefit of each Bank a certificate dated the Closing Date and signed by the
Chief Executive Officer, President or Chief Financial Officer of each Loan
Party to each such effect.


 


6.1.9.                     No
Violation of Laws.


 


The making of the Loans and the issuance of the
Letters of Credit shall not contravene any Law applicable to any Loan Party,
RSC or any of the Banks.


 


6.1.10.               No Actions or
Proceedings.


 


No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin, restrain or prohibit,
or to obtain damages in respect of, this Agreement, the other Loan
Documents  or the consummation of the
transactions contemplated hereby or thereby or which, in the Administrative
Agent’s sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.


 


6.1.11.               Lien Searches.


 


The Administrative Agent shall have obtained copies of
record searches (including UCC searches and judgments), at the state level for
each material location of each applicable Loan Party and in each Loan Party’s
respective jurisdiction of organization evidencing that no Liens exist against
any Loan Party except Permitted Liens or those Liens that are or will be
released or terminated in connection herewith.


 


65

















 


6.1.12.               Insurance
Policies.


 


The Loan Parties shall have delivered a certificate of
insurance acceptable to the Administrative Agent that adequate insurance in
compliance with Section 7.1.3 [Maintenance of Insurance] is in full force
and effect and that all premiums then due thereon have been paid and that the
Administrative Agent on behalf of the Banks is entitled to thirty (30) days
prior notice of cancellation or material reduction in coverage on all such
policies.


 


6.1.13.               Termination
Statements:  Release Statements and Other
Releases.


 


Evidence satisfactory to the Administrative Agent that
all necessary termination statements, release statements and other releases in
connection with all Liens (other than Permitted Liens) have been filed or
satisfactory arrangements have been made for such filing (including payoff
letters, if applicable, in form and substance satisfactory to the
Administrative Agent).


 


6.1.14.               Repayment
of Prohibited Indebtedness.


 


All Indebtedness not permitted under Section 7.2.1
[Indebtedness] including, but not limited to, amounts due under the Prior Loan
Documents shall have been paid in full and the Prior Loan Documents shall have
been terminated.


 


6.1.15.               Other
Documents and Conditions.


 


The Loan Parties shall have delivered such other
documents and satisfied such other conditions as may reasonably be requested to
be submitted to the Administrative Agent or any Bank by the terms of this
Agreement or of any Loan Document or set forth on the closing checklist with
respect to the transactions contemplated by this Agreement.


 


6.2                                 Each Additional Loan or Letter of Credit.


 


It shall be a condition
precedent to the making any Loans or issuing any Letters of Credit other than
Loans made or Letters of Credit issued on the Closing Date, that after giving
effect to the proposed extensions of credit: 
(i) the representations and warranties of the Loan Parties and RSC
contained in Section 5 [Representations and Warranties] and in the other
Loan Documents shall be true on and as of the date of such additional Loan or
Letter of Credit with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein) and the Loan Parties and RSC shall
have performed and complied with all covenants and conditions hereof; (ii) no
Event of Default or Potential Default shall have occurred and be continuing or
shall exist; (iii) the making of the Loans or issuance of such Letter of
Credit shall not contravene any Law applicable to any Loan Party or Subsidiary
of any Loan Party or any of the Banks; and (iv) the Borrower shall have
delivered to the Administrative Agent a duly executed and completed Loan
Request or application for a Letter of Credit as the case may be.


 


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7.                                      COVENANTS


 


7.1                                 Affirmative Covenants.


 


The Loan Parties and RSC,
jointly and severally, covenant and agree that until payment in full of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings, and interest
thereon, expiration or termination of all Letters of Credit, satisfaction of
all of the Loan Parties’ and RSC’s other Obligations under the Loan Documents
and termination of the Commitments, the Loan Parties and RSC shall comply at
all times with the following affirmative covenants:


 


7.1.1.                     Preservation
of Existence, Etc.


 


Each Loan Party shall and shall cause each of its
Subsidiaries to maintain its legal existence as a corporation, limited
partnership or limited liability company and
its license or qualification and good standing in each jurisdiction in which
its ownership or lease of property or the nature of its business makes such
license or qualification necessary, except as otherwise expressly permitted in Section 7.2.6
[Liquidations, Mergers, Etc.].


 


7.1.2.                     Payment
of Liabilities, Including Taxes, Etc.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to, duly pay and discharge all liabilities to which it is subject
or which are asserted against it, promptly as and when the same shall become
due and payable, including all taxes, assessments
and governmental charges upon it or any of its properties, assets, income or
profits, prior to the date on which penalties attach thereto, except to the
extent that such liabilities, including taxes, assessments or charges, are
being contested in good faith and by appropriate and lawful proceedings
diligently conducted and for which such reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made, but only
to the extent that failure to discharge any such liabilities would not result
in a Material Adverse Change, provided that the Loan Parties and their
Subsidiaries will pay all such liabilities forthwith upon the commencement of
proceedings to foreclose any Lien which may have attached as security therefor.


 


7.1.3.                     Maintenance
of Insurance.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to, insure its properties and assets against loss or damage by
fire and such other insurable hazards as such assets are commonly insured
(including fire, extended coverage, property damage, workers’ compensation,
public liability and business interruption insurance) and against other risks
(including errors and omissions) in such amounts as similar properties and
assets are insured by prudent companies in similar circumstances carrying on
similar businesses, and with reputable and financially sound insurers,
including self-insurance to the extent customary, all as reasonably determined
by the Administrative Agent.  At the
request of the Administrative Agent, the Loan Parties shall deliver to the Administrative
Agent (x) on the Closing Date and annually thereafter an original certificate
of insurance signed by the Loan Parties’ independent insurance broker
describing and certifying as to the existence of the insurance required to be
maintained by this


 


67

















 


Agreement and the other
Loan Documents, and (y) from time to time a summary schedule indicating all
insurance then in force with respect to each of the Loan Parties.


 


7.1.4.                     Maintenance
of Properties and Leases.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to, maintain in good repair, working order and condition (ordinary
wear and tear excepted) in accordance with the general practice of other
businesses of similar character and size, all of those properties useful or
necessary to its business, and from time to time, such Loan Party will make or
cause to be made all appropriate repairs, renewals or replacements thereof.


 


7.1.5.                     Maintenance
of Patents, Trademarks, Etc.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to, maintain in full force and effect all patents, trademarks,
service marks, trade names, copyrights, licenses, franchises, permits and other
authorizations necessary for the ownership and operation of its properties and
business if the failure so to maintain the same would constitute a Material
Adverse Change.


 


7.1.6.                     Visitation
Rights.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to permit any of the officers or authorized employees or representatives
of the Administrative Agent or any of the Banks to visit, during normal
business hours and inspect any of its properties and to examine and make
excerpts from its books and records and discuss its business affairs, finances
and accounts with its officers, all in such detail and at such times and as
often as any of the Banks may reasonably request, provided that each
Bank shall provide the Borrower and the Administrative Agent with reasonable
notice prior to any visit or inspection. 
In the event any Bank desires to visit and inspect any Loan Party, such
Bank shall make a reasonable effort to conduct such visit and inspection
contemporaneously with any visit and inspection to be performed by the
Administrative Agent.


 


7.1.7.                     Keeping
of Records and Books of Account.


 


The Borrower shall, and shall cause each Subsidiary of
the Borrower to, maintain and keep proper books of record and account which
enable the Borrower and its Subsidiaries to issue financial statements in
accordance with GAAP and as otherwise required by applicable Laws of any
Official Body having jurisdiction over the Borrower or any Subsidiary of the
Borrower, and in which full, true and correct entries shall be made in all
material respects of all its dealings and business and financial affairs.


 


7.1.8.                     Plans
and Benefit Arrangements.


 


The Borrower shall, and shall cause each other member
of the ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Plans and Benefit Arrangements except where such
failure, alone or in conjunction with any other failure, would not result in a
Material Adverse Change.  Without
limiting the generality of


 


68

















 


the foregoing, the
Borrower shall cause all of its Plans and all Plans maintained by any member of
the ERISA Group to be funded in accordance with the minimum funding
requirements of ERISA and shall make, and cause each member of the ERISA Group
to make, in a timely manner, all contributions due to Plans, Benefit
Arrangements, Multiemployer Plans and Multiple Employer Plans.


 


7.1.9.                     Compliance
with Laws.


 


Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply with all applicable Laws, including all Environmental
Laws, in all respects, provided that it shall not be deemed to be a
violation of this Section 7.1.9 [Compliance with Laws] if any failure to
comply with any Law would not result in fines, penalties, remediation costs,
other similar liabilities or injunctive relief which in the aggregate would
reasonably be expected to constitute a Material Adverse Change.


 


7.1.10.               Use
of Proceeds.


 


The Loan Parties and RSC will use the Letters of
Credit and the proceeds of the Loans for the purposes stated in Section 2.7
[Use of Proceeds].  Neither the Loan
Parties nor RSC shall use the Letters of Credit or the proceeds of the Loans
for any purposes which contravenes any applicable Law or any provision hereof.


 


7.1.11.               Subordination
of Intercompany Loans.


 


Each Loan Party shall cause any intercompany
Indebtedness, loans or advances owed by any Loan Party to any other Loan Party
to be subordinated pursuant to the terms of the Intercompany Subordination
Agreement.


 


7.1.12.               Anti-Terrorism
Laws.


 


The Loan Parties and their respective Affiliates and
agents shall not knowingly (i) conduct any business or engage in any
transaction or dealing with any Blocked Person, including the making or
receiving of any contribution of funds, goods or services to or for the benefit
of any Blocked Person, (ii) deal in, or otherwise engage in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order No. 13224; or (iii) engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in the
Executive Order No. 13224, the USA Patriot Act or any other Anti-Terrorism
Law.  The Borrower shall deliver to Banks
any certification or other evidence requested from time to time by any Bank in
its sole reasonable discretion, confirming Borrower’s compliance with this Section 7.1.12
[Anti-Terrorism Laws].


 


7.2                                 Negative Covenants.


 


The Loan Parties and RSC,
jointly and severally, covenant and agree that until payment in full of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the
Loan


 


69

















 


Parties’ and RSC’s
other Obligations hereunder and termination of the Commitments, the Loan
Parties and RSC shall comply with the following negative covenants:


 


7.2.1.                     Indebtedness.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, at any time create, incur, assume or suffer
to exist any Indebtedness, except:


 


(i)                                     Indebtedness
under the Loan Documents;


 


(ii)                                  Existing
Indebtedness as set forth on Schedule 7.2.1 (including any
extensions or renewals thereof, provided there is no increase in the
principal amount thereof, or an increase in the effective interest rate
thereof, or an earlier maturity date for any payment payable thereunder, or the
provision of any security or guaranties therefor, or other significant change
in the terms thereof);


 


(iii)                               Indebtedness which does
not exceed Twenty Five Million and 00/100 Dollars ($25,000,000.00) in the
aggregate at any time outstanding in the form of capitalized leases or secured
by Purchase Money Security Interests;


 


(iv)                              Indebtedness
of a Loan Party to another Loan Party which is subordinated in accordance with
the provisions of Section 7.1.11 [Subordination of Intercompany Loans];


 


(v)                                 Any
Bank-Provided Hedge;


 


(vi)                              Indebtedness
arising from Hedge Agreements consisting of bona fide hedging contracts
intended to protect against material fluctuations in the cost of energy, milk
and other commodities used in the ordinary course of the Borrower’s business;
provided that the Indebtedness associated with such Hedge Agreements does not
exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) in the aggregate at
any time;


 


(vii)                           contingent liabilities arising out of (a) endorsements of checks
and other negotiable instruments for deposit or collection in the ordinary
course of business, (b) the Borrower/RSC Guaranty Agreement, (c) other
Guaranties by any Loan Party or any Subsidiary of a Loan Party which guaranteed
obligations shall not exceed Fifteen Million and 00/100 Dollars
($15,000,000.00) in the aggregate at any time for all Loan Parties and
Subsidiaries of Loan Parties, (d) reimbursement obligations (including any
Guaranty thereof) with respect to any portion of the RSC Letter of Credit that
has not been drawn against so long as such obligations shall not exceed
Eighteen Million and 00/100 Dollars ($18,000,000.00) in the aggregate at any
time;


 


(viii)                        Indebtedness under the
Jeffersontown IRB, provided that the principal amount is not subsequently
increased (such Jeffersontown IRB shall continue to be permitted Indebtedness
hereunder if CDL should subsequently sell its rights thereunder to a Person
which is not an Affiliate of the Borrower); and


 


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(ix)                                Unsecured
Indebtedness incurred in connection with the issuance by any Loan Party of
Indebtedness evidenced by privately placed notes, provided that (1) such
Indebtedness is pari passu in right of payment with the Indebtedness hereunder,
(2) immediately prior to and after giving effect to such Indebtedness, no
Event of Default or Potential Default shall have occurred hereunder, and (3) the
terms and conditions of such Indebtedness are (a) no more restrictive than
the terms and conditions of this Agreement and (b) reasonably acceptable
to the Agent.


 


7.2.2.                     Liens.


 


Each of the Loan Parties shall not and shall not
permit any of their Subsidiaries to at any time create, incur, assume or suffer
to exist any Lien on any of its property or assets, tangible or intangible, now
owned or hereafter acquired, or agree or become liable to do so, except Permitted Liens.


 


7.2.3.                     Guaranties.


 


Each of the Loan Parties shall not and shall not
permit any of their Subsidiaries to at any time, directly or indirectly, become
or be liable in respect of any Guaranty, or assume, guarantee, become surety
for, endorse or otherwise agree, become or remain directly or contingently
liable upon or with respect to any obligation or liability of any other Person,
except for (i) Guaranties of Indebtedness of the Loan Parties permitted in
Section 7.2.1 [Indebtedness], (ii) the Borrower/RSC Guaranty or (iii) Guaranties
that are in existence on the Closing Date and set forth on Schedule 7.2.3.


 


7.2.4.                     Loans
and Investments.


 


Each of the Loan Parties shall not and shall not
permit any of their Subsidiaries to, at any time make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock,
bonds, notes or securities of, or any partnership interest (whether general or
limited) or limited liability company interest in, or any other investment or
interest in, or make any capital contribution
to, any other Person, or agree, become or remain liable to do any of the
foregoing, except:


 


(i)                                     trade
credit extended on usual and customary terms in the ordinary course of
business;


 


(ii)                                  advances
to employees to meet expenses incurred by such employees in the ordinary course
of business;


 


(iii)                               Permitted Investments;


 


(iv)                              loans,
advances and investments to, or in, a Loan Party;


 


(v)                                 loans,
advances and investments in or to Foreign Subsidiaries and foreign joint
ventures in an aggregate amount at any time for all such Foreign Subsidiaries
and foreign joint ventures of Fifty Million and 00/100 Dollars
($50,000,000.00);


 


71





















 


provided, however, that
such amount shall not include any loans, advances and investments made by a
Loan Party in or to a Foreign Subsidiary or foreign joint venture to the extent
such loan, advance or investment is made with proceeds such Loan Party has
received as a result of the sale by such Loan Party of the stock or other
ownership interests of a Foreign Subsidiary of such Loan Party or the joint
venture interests of a foreign joint venture to which such Loan Party is a
party;


 


(vi)                              loans,
advances and investments in or to franchisees of any Loan Party, the Papa John’s
Marketing Fund and BIBP, in an aggregate amount (including all amounts as of
the Closing Date as set forth on Schedule 1.1(P)(1) attached
hereto) at any time for all such parties of Fifty Million and 00/100 Dollars
($50,000,000.00);


 


(vii)                           loans, advances and
investments in or to domestic joint ventures (including, but not limited to,
CLL and SPL) in an aggregate amount (including all amounts as of the Closing
Date as set forth on Schedule 1.1(P)(1) attached hereto) at
any time for all such domestic joint ventures of Thirty Million and 00/100
Dollars ($30,000,000.00); provided, however, that such amount shall not include
any loans, advances and investments made by a Loan Party in or to a domestic
joint venture to the extent such loan, advance or investment is made with (a) proceeds
such Loan Party has received as a result of the sale by such Loan Party of the
joint venture interests of a domestic joint venture to which such Loan Party is
a party, or (b) proceeds of distributions such Loan Party has received as
a result of its joint venture interest in such joint venture;


 


(viii)                        investments in Bank-Provided
Hedges and other Hedge Agreements as permitted by Section 7.2.1(vi);


 


(ix)                                investments
consisting of notes payable to any such Loan Party or any such Subsidiary in
connection with the sale by such Loan Party or such Subsidiary of any
properties or assets as permitted by Section 7.2.7(v) hereof, in an
aggregate amount at any time for all such investments not to exceed Five
Million and 00/100 Dollars ($5,000,000.00);


 


(x)                                   loans,
advances and investments (including, but not limited to, the RSC/Borrower
Letter of Credit) in or to RSC in an aggregate amount at any time of Eighteen
Million and 00/100 Dollars ($18,000,000.00); and


 


(xi)                                Permitted
Acquisitions.


 


7.2.5.                     Dividends
and Related Distributions.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, make or pay, or agree to become or remain
liable to make or pay, any dividend or other distribution of any nature
(whether in cash, property, securities or otherwise) on account of or in
respect of its shares of capital stock, partnership interests or limited
liability company interests or on account of the purchase, redemption,
retirement or acquisition of its shares of capital stock (or warrants, options
or rights therefor), partnership interests or limited liability company
interests; provided, however, so long as no Event of Default or Potential
Default shall exist immediately prior to or after giving effect to any such
dividend or distribution, the Loan


 


72

















 


Parties and their
Subsidiaries may make or pay any such dividend or distribution.  In addition, the Borrower shall not permit
its Subsidiaries to enter into or otherwise be bound by any agreement
prohibiting or restricting the payment of dividends or distributions to the
Borrower.


 


7.2.6.                     Liquidations,
Mergers, Consolidations, Acquisitions.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, dissolve, liquidate or wind-up its affairs,
or become a party to any merger or consolidation, or acquire by purchase, lease
or otherwise all or substantially all of the assets or capital stock of any
other Person, provided that


 


(i)                                     any
Loan Party other than the Borrower may consolidate or merge into another Loan
Party which is directly or indirectly wholly-owned by one or more of the other
Loan Parties;


 


(ii)                                  any
Subsidiary of a Loan Party which is not a Loan Party may consolidate or merge
into another Subsidiary of a Loan Party which is not a Loan Party;


 


(iii)                               the Borrower may
dissolve or wind-up any of its Subsidiaries that are not Loan Parties;


 


(iv)                              any
Loan Party may acquire, whether by purchase or by merger, (A) all or
substantially all of the ownership interests of another Person or (B) all
or substantially all of the assets of another Person or of a business or
division of another Person (each a “Permitted Acquisition”), provided
that, each of the following requirements is met:


 


(a)                                  if
a Loan Party is acquiring the ownership interests in such Person, such Person
shall, unless not required by Section 7.2.9 [Subsidiaries, Partnerships,
Etc.], execute a Guarantor Joinder and such other documents required by Section 10.18
[Joinder of Guarantors] and join this Agreement as a Guarantor pursuant to Section 10.18
[Joinder of Guarantors] on or before the date of such Permitted Acquisition;


 


(b)                                 the
board of directors or other equivalent governing body of such Person shall have
approved such Permitted Acquisition and, if the Loan Parties shall use any
portion of the Loans to fund such Permitted Acquisition, the Loan Parties also
shall have delivered to the Banks written evidence of the approval of the board
of directors (or equivalent body) of such Person for such Permitted Acquisition;


 


(c)                                  the
business acquired, or the business conducted by the Person whose ownership
interests are being acquired, as applicable, shall be similar to or
substantially the same as one or more line or lines of business conducted by
the Loan Parties and shall comply with Section 7.2.10 [Continuation of or
Change in Business]; and


 


(d)                                 no
Potential Default or Event of Default shall exist immediately prior to and
after giving effect to such Permitted Acquisition.


 


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7.2.7.                     Dispositions
of Assets or Subsidiaries.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or
otherwise transfer or dispose of, voluntarily or involuntarily, any of its
properties or assets, tangible or intangible, (including sale, assignment,
discount or other disposition of accounts, contract rights, chattel paper,
equipment or general intangibles, with or without recourse, or of capital
stock, shares of beneficial interest, partnership interests or limited
liability company interests of a Subsidiary of such Loan Party), except:


 


(i)                                     transactions
involving the sale of inventory in the ordinary course of business;


 


(ii)                                  any
sale, transfer or lease of properties or assets in the ordinary course of
business which are no longer necessary or required in the conduct of such Loan
Party’s business;


 


(iii)                               any sale, transfer or
lease of properties or assets by any Loan Party to another Loan Party;


 


(iv)                              any
sale, transfer or lease of properties or assets in the ordinary course of
business which are replaced by substitute properties or assets acquired or
leased within the terms of this Agreement;


 


(v)                                 any
sale, transfer or lease of properties or assets, other than those specifically
excepted pursuant to clauses (i) through (iv) above, provided that:


 


(a)                                  there
shall not exist any Event of Default or Potential Default immediately prior to
and after giving effect to such sale; and


 


(b)                                 the
aggregate value of such assets sold, transferred or leased by the Loan Parties
and their Subsidiaries during the term of this Agreement shall not exceed the
following amount with respect to the following time period:  (1) Sixty Five Million and 00/100
Dollars ($65,000,000.00) for the period from the Closing Date through the day
immediately preceding the first anniversary of the Closing Date; and (2) the
difference between (y) Sixty Five Million and 00/100 Dollars ($65,000,000.00)
and (z) the greater of (I) Fifteen Million and 00/100 Dollars ($15,000,000.00)
and (II) the aggregate value of the assets sold, transferred or leased by the
Loan Parties and their Subsidiaries during the period described in item (b)(1) above
for the period from the first anniversary of the Closing Date through the
Expiration Date.


 


7.2.8.                     Affiliate
Transactions.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, enter into or carry out any transaction with
any Affiliate of any Loan Party (including purchasing property or services from
or selling property or services to any Affiliate of any Loan Party) unless such
transaction (a) is not otherwise prohibited by this Agreement, (b) is


 


74

















 


entered into in the
ordinary course of business upon fair and reasonable arm’s-length terms and
conditions which are fully disclosed to the Administrative Agent and (c) is
in accordance with all applicable Law.


 


7.2.9.                     Subsidiaries,
Partnerships and Joint Ventures; Excluded Subsidiaries.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, own or create directly or indirectly any
Subsidiaries other than (i) any Subsidiary which has joined this Agreement
as a Guarantor on the Closing Date; (ii) any Excluded Subsidiary; and (iii) any
Subsidiary formed or acquired after the Closing Date which joins this Agreement
as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors];
provided, however, if such Subsidiary (a) is acquired by a Loan Party or
Subsidiary of a Loan Party and is a Foreign Subsidiary or (b) is formed or
organized as a Foreign Subsidiary by a Loan Party or Subsidiary of a Loan Party
after the date of this Agreement, such Foreign Subsidiary shall not be required
to join this Agreement as a Guarantor pursuant to Section 10.18 [Joinder
of Guarantors] if the execution of a Guaranty Agreement or the Guarantor
Joinder would cause material adverse tax consequences to the Borrower under Section 956
of the Internal Revenue Code as demonstrated to the reasonable satisfaction of
the Administrative Agent.


 


Except for loans, advances and investments permitted
by Section 7.2.4 hereof, each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, become or agree to (1) become a general
or limited partner in any general or limited partnership, except that the Loan
Parties may be general or limited partners in other Loan Parties, (2) become
a member or manager of, or hold a limited liability company interest in, a
limited liability company, except that the Loan Parties may be members or
managers of, or hold limited liability company interests in, other Loan
Parties, or (3) become a joint venturer or hold a joint venture interest
in any joint venture.


 


7.2.10.               Continuation
of or Change in Business.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to engage in any business other than the
operation and franchising of pizza delivery, dine in and carryout restaurants,
together with production, manufacturing and all other services in support of
such business and all businesses incidental thereto, substantially as conducted
and operated by such Loan Party or Subsidiary during the present fiscal year, and such Loan Party shall not permit any material change in
such business.


 


7.2.11.               Plans
and Benefit Arrangements.


 


Each of the Loan Parties shall not:


 


(i)                                     fail
to satisfy the minimum funding requirements of ERISA and the Internal Revenue
Code with respect to any Plan;


 


(ii)                                  request
a minimum funding waiver from the Internal Revenue Service with respect to any
Plan;


 


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(iii)                               engage in a Prohibited
Transaction with any Plan, Benefit Arrangement, Multiemployer Plan or Multiple
Employer Plan which, alone or in conjunction with any other circumstances or
set of circumstances resulting in liability under ERISA, would constitute a
Material Adverse Change;


 


(iv)                              permit
the funded current liability percentage of each Plan to be less than the
required percentage to satisfy the full funding limitation, determined as of
the most recent actuarial valuation report for each Plan using the actuarial
assumptions required under Section 412 of the Internal Revenue Code for
purposes of funding;


 


(v)                                 fail
to make when due any contribution to any Multiemployer Plan or Multiple
Employer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan or
Multiple Employer Plan, or any Law pertaining thereto;


 


(vi)                              withdraw
(completely or partially) from any Multiemployer Plan or withdraw (or be deemed
under Section 4062(e) of ERISA to withdraw) from any Multiple
Employer Plan, where any such withdrawal is likely to result in a Material
Adverse Change;


 


(vii)                           terminate, or institute
proceedings to terminate, any Plan, where such termination is likely to result
in a Material Adverse Change;


 


(viii)                        make any amendment to any Plan
with respect to which security is required under Section 307 of ERISA
except to the extent that such amendment would not cause a Material Adverse
Change; or


 


(ix)                                fail
to give any and all notices and make all disclosures and governmental filings
required under ERISA or the Internal Revenue Code, where such failure is likely
to result in a Material Adverse Change.


 


7.2.12.               Fiscal
Year.


 


The Borrower shall not, and shall not permit any
Subsidiary of the Borrower (other than RSC) to, change its fiscal year from the
fifty-two (52)/fifty-three (53) week fiscal year beginning on the Monday
closest to December 31 of each calendar year and ending on the last Sunday
in December of each calendar year; provided, however that if during any
calendar year December 31 is a Sunday such fifty-two (52)/fifty-three (53)
week period shall begin on January 1 of the immediately following calendar
year.


 


7.2.13.               Changes
in Organizational Documents.


 


Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, amend in any material respect its
certificate or articles of incorporation, by-laws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement or other organizational documents without providing at least
five (5) calendar days prior written notice to the Administrative Agent
and the Banks and, in the event


 


76

















 


such change would be
adverse to the Banks as determined by the Administrative Agent in its sole
discretion, obtaining the prior written consent of the Required Banks.


 


7.2.14.               Maximum
Leverage Ratio.


 


The Loan Parties shall not at any time permit the
Leverage Ratio, calculated as of the end of each fiscal quarter for the period
equal to the four (4) fiscal quarters then ended, to exceed 2.50 to 1.00.


 


7.2.15.               Minimum
Interest Coverage Ratio.


 


The Loan Parties shall not at any time permit the
Interest Coverage Ratio, calculated as of the end of each fiscal quarter for
the period equal to the four (4) fiscal quarters then ended, to be less
than 3.50 to 1.00.


 


7.2.16.               Negative
Pledges.


 


No Loan Party shall directly or indirectly enter into
or assume or become bound by, or permit any Subsidiary to enter into or assume
or become bound by, any agreement (other than this Agreement and the other Loan
Documents), or any provision of any certificate of incorporation, bylaws, partnership
agreement, operating agreement or other organizational formation or governing
document prohibiting the creation or assumption of any Lien or encumbrance upon
any such Loan Party’s or Subsidiary’s properties, whether now owned or
hereafter created or acquired, or otherwise prohibiting or restricting any
transaction contemplated hereby; provided that the foregoing shall not apply to
(i) restrictions and conditions imposed by any Law or by any Loan
Document, (ii) restrictions or conditions imposed by any agreement
relating to secured Indebtedness or other obligations permitted by this
Agreement but only to the extent such restriction or condition is limited to
the specific assets subject to a Permitted Lien, (iii) customary
provisions in leases or other agreements restricting assignment thereof, or (iv) restrictions
or conditions imposed by any agreement relating to the issuance by any Loan
Party of Indebtedness represented by privately placed notes as permitted by Section 7.2.1
[Indebtedness] of this Agreement.


 


7.3                                 Reporting Requirements.


 


The Loan Parties, jointly
and severally, covenant and agree that until payment in full of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings and interest thereon,
expiration or termination of all Letters of Credit, satisfaction of all of the
Loan Parties’ other Obligations hereunder and under the other Loan Documents
and termination of the Commitments, the Loan Parties will furnish or cause to
be furnished to the Administrative Agent and each of the Banks:


 


7.3.1.                     Quarterly
Financial Statements.


 


As soon as available and in any event within
forty-five (45) calendar days after the end of each of the first three fiscal
quarters in each fiscal year of the Borrower, financial statements of the
Borrower, consisting of:  (i) a
consolidated balance sheet as of the end of such


 


77

















 


fiscal quarter and as of
the end of the prior fiscal year; (ii) a consolidated statement of
operations for such fiscal quarter and the year-to-date period of the
then-current fiscal year, and for the corresponding fiscal quarter and
year-to-date period of the prior fiscal year; (iii) a consolidated
statement of shareholders’ equity as of the end of such fiscal quarter, as of
the end of the corresponding fiscal quarter of the prior fiscal year, and as of
the end of the prior fiscal year; and (iv) a consolidated statement of
cash flows for the year-to-date period of the then-current fiscal year and the
corresponding year-to-date period of the prior fiscal year.  Each of the aforementioned financial
statements shall be in reasonable detail and certified (subject to normal
year-end audit adjustments) by the Chief Executive Officer, President or Chief
Financial Officer of the Borrower as having been prepared in accordance with
GAAP, consistently applied.  The Loan
Parties will be deemed to have complied with the delivery requirements of this Section 7.3.1
if, within forty-five (45) calendar days after the end of each of the first
three fiscal quarters in each fiscal year of the Borrower, the Borrower
delivers to the Administrative Agent a copy of its Form 10-Q as filed with
the SEC and the financial statements contained therein meet the requirements
described in this Section.


 


7.3.2.                     Annual
Financial Statements.


 


As soon as available and in any event within ninety
(90) days after the end of each fiscal year of the Borrower, financial
statements of the Borrower consisting of a consolidated balance sheet as of the
end of such fiscal year, and related consolidated statements of operations,
shareholders’ equity and cash flows for the fiscal year then ended, all in
reasonable detail and setting forth in comparative form the financial
statements as of the end of and for the preceding fiscal year, and audited by
independent certified public accountants of nationally recognized standing
reasonably satisfactory to the Administrative Agent.  The certificate or report of accountants
shall be free of qualifications (other than any consistency qualification that
may result from a change in the method used to prepare the financial statements
as to which such accountants concur) and shall not indicate the occurrence or
existence of any of event, condition or contingency which would materially
impair the prospect of payment or performance of any covenant, agreement or
duty of any Loan Party under any of the Loan Documents.  The Loan Parties shall deliver with such
financial statements and certification by their accountants, a letter of such
accountants to the Administrative Agent for the benefit of each Bank
substantially (i) to the effect that, based upon their ordinary and
customary examination of the affairs of the Borrower, performed in connection
with the preparation of such consolidated financial statements, and in
accordance with generally accepted auditing standards, they are not aware of
the existence of any condition or event which constitutes an Event of Default
or Potential Default or, if they are aware of such condition or event, stating
the nature thereof and confirming the Borrower’s calculations with respect to
the certificate to be delivered pursuant to Section 7.3.3 [Certificate of
the Borrower and the Borrower] with respect to such financial statements and (ii) to
the effect that the Banks are intended to rely upon such accountant’s audit of
the annual financial statements and that such accountants authorize the Loan
Parties to deliver such certifying letter to the Banks on such accountants’
behalf.  The Loan Parties will be deemed
to have complied with the delivery requirements of this Section 7.3.2 if,
within ninety (90) days after the end of each fiscal year of the Borrower, the
Borrower delivers to the Administrative Agent and each of the Banks (i) a
copy of its Annual Report and Form 10-K as filed with the


 


78

















 


SEC and the financial
statements contained therein meet the requirements described in this Section and
(ii) the certificate and letter of accountants as described above.


 


7.3.3.                     Certificate
of the Borrower.


 


Concurrently with the financial statements of the
Borrower furnished to the Administrative Agent and to the Banks pursuant to
Sections 7.3.1 [Quarterly Financial Statements] and 7.3.2 [Annual
Financial Statements], a certificate (each a “Compliance Certificate”) of the
Borrower signed by the Chief Executive Officer, President, Chief Financial
Officer or Vice President of Corporate Finance of the Borrower, in the form of Exhibit 7.3.3,
to the effect that, except as described pursuant to Section 7.3.4 [Notice
of Default], (i) the representations and warranties of the Loan Parties
contained in Section 5 [Representations and Warranties] and in the other
Loan Documents are true on and as of the date of such certificate with the same
effect as though such representations and warranties had been made on and as of
such date (except representations and warranties which expressly relate solely
to an earlier date or time) and the Loan Parties have performed and complied
with all covenants and conditions hereof, (ii) no Event of Default or
Potential Default exists and is continuing on the date of such certificate and (iii) containing
calculations in sufficient detail to demonstrate compliance as of the date of
such financial statements with all financial covenants contained in Section 7.2
[Negative Covenants].


 


7.3.4.                     Notice
of Default.


 


Promptly after any officer of any Loan Party has
learned of the occurrence of an Event of Default or Potential Default, a
certificate signed by the Chief Executive Officer, President or Chief Financial
Officer of such Loan Party setting forth the details of such Event of Default
or Potential Default and the action which such Loan Party proposes to take with
respect thereto.


 


7.3.5.                     Notice
of Litigation.


 


Promptly after the commencement thereof, notice of all
actions, suits, proceedings or investigations before or by any Official Body or
any other Person against any Loan Party or Subsidiary of any Loan Party, which
involve a claim or series of claims in excess of Ten Million and 00/100 Dollars
($10,000,000.00) or which if adversely determined would constitute a Material
Adverse Change.


 


7.3.6.                     Budgets,
Forecasts, Other Reports and Information.


 


Promptly upon their becoming available to the
Borrower:


 


(i)                                     the
annual budget and any forecasts or projections of the Borrower, to be supplied
not later than January 31st of the fiscal year to which any of the
foregoing may be applicable,


 


(ii)                                  any
reports including management letters submitted to the Borrower by independent
accountants in connection with any annual, interim or special audit,


 


79





















 


(iii)                               any reports, notices or
proxy statements generally distributed by the Borrower to its stockholders on a
date no later than the date supplied to such stockholders,


 


(iv)                              regular
or periodic reports, including Forms 10-K, 10-Q and 8-K, registration
statements and prospectuses, filed by the Borrower with the SEC,


 


(v)                                 a
copy of any order in any proceeding to which the Borrower or any of its
Subsidiaries is a party issued by any Official Body which could reasonably be
expected to result in a Material Adverse Change, and


 


(vi)                              such
other reports and information as any of the Banks may from time to time
reasonably request.  The Borrower shall
also notify the Banks promptly of the enactment or adoption of any Law which
may result in a Material Adverse Change.


 


7.3.7.                     Notices
Regarding Plans and Benefit Arrangements.


 


7.3.7.1               Certain Events.


 


Promptly upon becoming aware of the occurrence
thereof, notice (including the nature of the event and, when known, any action
taken or threatened by the Internal Revenue Service or the PBGC with respect
thereto) of:


 


(i)                                     any
Reportable Event with respect to the Borrower or any other member of the ERISA
Group (regardless of whether the obligation to report said Reportable Event to
the PBGC has been waived),


 


(ii)                                  any
Prohibited Transaction which could subject the Borrower or any other member of
the ERISA Group to a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Internal Revenue Code in
connection with any Plan, any Benefit Arrangement or any trust created
thereunder,


 


(iii)                               any assertion of
material withdrawal liability with respect to any Multiemployer Plan or
Multiple Employer Plan,


 


(iv)                              any
partial or complete withdrawal from a Multiemployer Plan or Multiple Employer
Plan by the Borrower or any other member of the ERISA Group under Title IV of
ERISA (or assertion thereof), where such withdrawal is likely to result in material
withdrawal liability,


 


(v)                                 any
cessation of operations (by the Borrower or any other member of the ERISA
Group) at a facility in the circumstances described in Section 4062(e) of
ERISA,


 


(vi)                              withdrawal
by the Borrower or any other member of the ERISA Group from a Multiple Employer
Plan,


 


80





















 


(vii)                           a failure by the Borrower or
any other member of the ERISA Group to make a payment to a Plan required to
avoid imposition of a material Lien under Section 302(f) of ERISA,


 


(viii)                        the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to Section 307
of ERISA, or


 


(ix)                                any
change in the actuarial assumptions or funding methods used for any Plan, where
the effect of such change is to materially increase or materially reduce the
unfunded benefit liability or obligation to make periodic contributions.


 


7.3.7.2                           Notices
of Involuntary Termination and Annual Reports.


 


Promptly after receipt thereof, copies of (a) all
notices received by the Borrower or any other member of the ERISA Group of the
PBGC’s intent to terminate any Plan administered or maintained by the Borrower
or any member of the ERISA Group, or to have a trustee appointed to administer
any such Plan; and (b) at the request of the Administrative Agent or any
Bank each annual report (IRS Form 5500 series) and all accompanying
schedules, the most recent actuarial reports, the most recent financial
information concerning the financial status of each Plan administered or
maintained by the Borrower or any other member of the ERISA Group, and
schedules showing the amounts contributed to each such Plan by or on behalf of
the Borrower or any other member of the ERISA Group in which any of their
personnel participate or from which such personnel may derive a benefit, and
each Schedule B (Actuarial Information) to the annual report filed by the
Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.


 


7.3.7.3                           Notice
of Voluntary Termination.


 


Promptly upon the filing thereof, copies of any Form 5310,
or any successor or equivalent form to Form 5310, filed with the PBGC in
connection with the termination of any Plan.


 


8.                                       DEFAULT


 


8.1                                 Events of Default.


 


An Event of Default shall
mean the occurrence or existence of any one or more of the following events or
conditions (whatever the reason therefor and whether voluntary, involuntary or
effected by operation of Law):


 


8.1.1.                     Payments
Under Loan Documents.


 


The Borrower shall fail to pay (i) any principal
of any Loan (including scheduled installments, mandatory prepayments or the
payment due at maturity), Reimbursement Obligation or Letter of Credit
Borrowing when such principal is due hereunder or (ii) any interest on any
Loan, Reimbursement Obligation or Letter of Credit Borrowing or any other
amount


 


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owing hereunder or under
the other Loan Documents within five (5) Business Days after such interest
or other amount becomes due in accordance with the terms hereof or thereof
(whether at stated maturity, by acceleration or otherwise);


 


8.1.2.                     Breach
of Warranty.


 


Any representation or warranty made at any time by any
of the Loan Parties or RSC herein or by any of the Loan Parties or RSC in any
other Loan Document, or in any certificate, other instrument or statement
furnished pursuant to the provisions hereof or thereof, shall prove to have
been false or misleading in any material respect as of the time it was made or
furnished;


 


8.1.3.                     Breach
of Negative Covenants, Maintenance of Insurance or Visitation Rights.


 


Any of the Loan Parties or RSC shall default in the
observance or performance of any covenant contained in Section 7.1.3
[Maintenance of Insurance], Section 7.1.6 [Visitation Rights] or Section 7.2
[Negative Covenants];


 


8.1.4.                     Breach
of Other Covenants.


 


Any of the Loan Parties or RSC shall default in the
observance or performance of any other covenant, condition or provision hereof
or of any other Loan Document and such default shall continue unremedied for a
period of ten (10) Business Days after any officer of any Loan Party or
RSC, as the case may be, becomes aware of the occurrence thereof (such grace
period to be applicable only in the event such default can be remedied by
corrective action of the Loan Parties or RSC as determined by the
Administrative Agent in its sole discretion);


 


8.1.5.                     Defaults
in Other Agreements or Indebtedness.


 


A default or event of default shall occur at any time
under the terms of any other agreement involving Indebtedness under which any
Loan Party or any Subsidiary of any Loan Party may be obligated as a borrower
or guarantor in excess of Ten Million and 00/100 Dollars ($10,000,000.00) in
the aggregate, and such breach, default or event of default consists of the
failure to pay (beyond any period of grace permitted with respect thereto,
whether waived or not) any Indebtedness when due (whether at stated maturity,
by acceleration or otherwise) or if such breach or default permits or causes the
acceleration of any Indebtedness (whether or not such right shall have been
waived) or the termination of any commitment to lend;


 


8.1.6.                     Final
Judgments or Orders.


 


Any final judgments or orders for the payment of money
in excess of Ten Million and 00/100 Dollars ($10,000,000.00) in the aggregate
shall be entered against any Loan Party by a court having jurisdiction in the
premises, which judgment is not discharged, vacated, bonded or stayed pending
appeal within a period of thirty (30) days from the date of entry;


 


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8.1.7.                     Loan
Document Unenforceable.


 


Any of the Loan Documents shall cease to be legal,
valid and binding agreements enforceable against the party executing the same
or such party’s successors and assigns (as permitted under the Loan Documents)
in accordance with the respective terms thereof or shall in any way be
terminated (except in accordance with its terms) or become or be declared
ineffective or inoperative or shall in any way be challenged or contested by a
Loan Party or RSC or cease to give or provide the remedies, powers or
privileges intended to be created thereby;


 


8.1.8.                     Proceedings
Against Assets.


 


Any of the Loan Parties’ or any of their Subsidiaries’
assets are attached, seized, levied upon or subjected to a writ or distress
warrant; or such come within the possession of any receiver, trustee, custodian
or assignee for the benefit of creditors and the same is not cured within
thirty (30) days thereafter;


 


8.1.9.                     Notice
of Lien or Assessment.


 


A notice of Lien or assessment in excess of Ten
Million and 00/100 Dollars ($10,000,000.00) which is not a Permitted Lien is
filed of record with respect to all or any part of any of the Loan Parties’ or
any of their Subsidiaries’ assets by the United States, or any department,
agency or instrumentality thereof, or by any state, county, municipal or other
governmental agency, including the PBGC, or any taxes or debts owing at any
time or times hereafter to any one of these becomes payable and the same is not
paid within thirty (30) days after the same becomes payable;


 


8.1.10.               Insolvency.


 


Any Loan Party or any Subsidiary of any Loan Party
ceases to be Solvent or admits in writing its inability to pay its debts as
they mature;


 


8.1.11.               Events
Relating to Plans and Benefit Arrangements.


 


Any of the following occurs:  (i) any Reportable Event which
constitutes grounds for the termination of any Plan by the PBGC or the
appointment of a trustee to administer or liquidate any Plan, shall have
occurred and be continuing; (ii) proceedings shall have been instituted or
other action taken to terminate any Plan, or a termination notice shall have
been filed with respect to any Plan; (iii) a trustee shall be appointed to
administer or liquidate any Plan; (iv) the PBGC shall give notice of its
intent to institute proceedings to terminate any Plan or Plans or to appoint a
trustee to administer or liquidate any Plan; and, in the case of the occurrence
of (i), (ii), (iii), or (iv) above, the Administrative Agent determines in
good faith that the amount of the Loan Parties’ liability is likely to exceed
ten percent (10%) of its consolidated tangible net worth; (v) the Borrower
or any member of the ERISA Group shall fail to make any contributions when due
to a Plan, Multiemployer Plan or Multiple Employer Plan; (vi) the Borrower
or any other member of the ERISA Group shall make any amendment to a Plan with
respect to which security is required under Section 307 of ERISA; (vii) the
Borrower or any other member of the ERISA Group shall withdraw completely or
partially from a Multiemployer


 


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Plan or a Multiple
Employer Plan; (viii) the Borrower or any other member of the ERISA Group
shall withdraw (or shall be deemed under Section 4062(e) of ERISA to
withdraw) from a Multiple Employer Plan; or (ix) any applicable Law is
adopted, changed or interpreted by any Official Body with respect to or
otherwise affecting one or more Plans, Multiemployer Plans, Multiple Employer
Plans or Benefit Arrangements and, with respect to any of the events specified
in (v), (vi), (vii), (viii) or (ix), the occurrence of which would be
reasonably likely to result in a Material Adverse Change;


 


8.1.12.               Cessation
of Business.


 


Any Loan Party or Subsidiary of a Loan Party ceases to
conduct its business as contemplated, except as expressly permitted under Section 7.2.5
[Liquidations, Mergers, Etc.] or 7.2.7 [Dispositions of Assets or
Subsidiaries], or any Loan Party or Subsidiary of a Loan Party is enjoined,
restrained or in any way prevented by court order from conducting all or any
material part of its business and such injunction, restraint or other
preventive order is not dismissed within thirty (30) days after the entry
thereof;


 


8.1.13.               Change
of Control.


 


(i)                                     Any
person or group of persons (within the meaning of Section 13(d) or Section 14(a) of
the Securities Exchange Act of 1934, as amended) other than John H. Schnatter
(or his estate or beneficiaries) shall have acquired beneficial ownership of
(within the meaning of Rule 13d-3 promulgated by the SEC under said Act)
twenty percent (20%) or more of the voting capital stock of the Borrower, or (ii) within
a period of twelve (12) consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period, together with any
directors whose election by such board of directors or whose nomination for
election by the shareholders was approved by a vote of the majority of the
directors then in office shall cease to constitute a majority of the board of
directors of the Borrower.


 


8.1.14.               Involuntary
Proceedings.


 


A proceeding shall have been instituted in a court
having jurisdiction in the premises seeking a decree or order for relief in
respect of any Loan Party or Subsidiary of a Loan Party in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar
Law now or hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar
official) of any Loan Party of Subsidiary of a Loan Party for any substantial
part of its property, or for the winding-up or liquidation of its affairs, and
such proceeding shall remain undismissed or unstayed and in effect for a period
of thirty (30) consecutive days or such court shall enter a decree or order
granting any of the relief sought in such proceeding; or


 


8.1.15.               Voluntary
Proceedings.


 


Any Loan Party of Subsidiary of a Loan Party shall
commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent
to the entry of an order for relief in an involuntary case under


 


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any such law, or shall
consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of its property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any action in furtherance of any of
the foregoing.


 


8.2                                 Consequences of Event of Default.


 


8.2.1.                     Events
of Default Other Than Bankruptcy or Reorganization Proceedings.


 


If an Event of Default specified under
Sections 8.1.1 [Payments Under Loan Documents] through 8.1.13 [Change of
Control] shall occur and be continuing, the Banks, and the Administrative Agent
shall be under no further obligation to make Revolving Credit Loans or issue
Letters of Credit, as the case may be, and the Administrative Agent may, and
upon the request of the Required Banks, shall by written notice to the
Borrower:  (i) terminate the
Commitments and thereupon the Commitments shall be terminated and of no further
force and effect, (ii) declare the unpaid principal amount of the
Revolving Credit Notes then outstanding and all interest accrued thereon, any
unpaid fees and all other Indebtedness of the Borrower to the Banks hereunder
and thereunder to be forthwith due and payable, and the same shall thereupon
become and be immediately due and payable to the Administrative Agent for the
benefit of each Bank without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived, and/or (iii) require
the Borrower to, and the Borrower shall thereupon, deposit in a
non-interest-bearing account with the Administrative Agent, as cash collateral
for its Obligations under the Loan Documents, an amount equal to the maximum amount
currently or at any time thereafter available to be drawn on all outstanding
Letters of Credit, and the Borrower hereby pledges to the Administrative Agent
and the Banks, and grants to the Administrative Agent and the Banks a security
interest in, all such cash as security for such Obligations.  Upon the curing of all existing Events of
Default to the satisfaction of the Required Banks, the Administrative Agent
shall return such cash collateral to the Borrower; and


 


8.2.2.                     Bankruptcy
or Reorganization Proceedings.


 


If an Event of Default specified under Section 8.1.14
[Involuntary Proceedings] or 8.1.15 [Voluntary Proceedings] shall occur, the
Commitments shall automatically terminate and be of no further force and
effect, the Banks and the Administrative Agent shall be under no further
obligations to make Revolving Credit Loans or issue Letters of Credit, as the
case may be, hereunder and the unpaid principal amount of the Loans then
outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Banks hereunder and thereunder shall be
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived; and


 


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8.2.3.                     Set-off.


 


If an Event of Default shall occur and be continuing,
any Bank to whom any Obligation is owed by any Loan Party or RSC hereunder or
under any other Loan Document or any participant of such Bank which has agreed
in writing to be bound by the provisions of Section 9.13 [Equalization of
Banks] and any branch, Subsidiary or Affiliate of such Bank or participant
anywhere in the world shall have the right, in addition to all other rights and
remedies available to it, without notice to such Loan Party or RSC, to set-off
against and apply to the then unpaid balance of all the Loans and all other
Obligations of the Borrower, the other Loan Parties and RSC hereunder or under
any other Loan Document any debt owing to, and any other funds held in any
manner for the account of, the Borrower, such other Loan Party or RSC by such
Bank or participant or by such branch, Subsidiary or Affiliate, including all
funds in all deposit accounts (whether time or demand, general or special,
provisionally credited or finally credited, or otherwise) now or hereafter
maintained by the Borrower, such other Loan Party or RSC for its own account
(but not including funds held in custodian or trust accounts) with such Bank or
participant or such branch, Subsidiary or Affiliate.  Such right shall exist whether or not any
Bank or the Administrative Agent shall have made any demand under this
Agreement or any other Loan Document, whether or not such debt owing to or
funds held for the account of the Borrower, such other Loan Party or RSC is or
are matured or unmatured and regardless of the existence or adequacy of any
Guaranty or any other security, right or remedy available to any Bank or the
Administrative Agent; and


 


8.2.4.                     Suits,
Actions, Proceedings.


 


If an Event of Default shall occur and be continuing,
and whether or not the Administrative Agent shall have accelerated the maturity
of Loans pursuant to any of the foregoing provisions of this Section 8.2
[Consequences of Event of Default], the Administrative Agent or any Bank, if
owed any amount with respect to the Loans, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement or the other Loan Documents, including as permitted
by applicable Law the obtaining of the ex
parte appointment of a receiver, and, if such amount shall have
become due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of the Administrative Agent or such Bank;
and


 


8.2.5.                     Application
of Proceeds.


 


From and after the date on which the Administrative
Agent has taken any action pursuant to this Section 8.2 [Consequences of
Event of Default] and until all Obligations of the Loan Parties and RSC have
been paid in full, any and all proceeds received by the Administrative Agent
from the exercise of any remedy by the Administrative Agent, shall be applied
as follows:


 


(i)                                     first,
to reimburse the Administrative Agent and the Banks for out-of-pocket costs,
expenses and disbursements, including reasonable attorneys’ and paralegals’
fees and legal expenses, incurred by the Administrative Agent or the Banks in


 


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connection with
collection of any Obligations of any of the Loan Parties and RSC under any of
the Loan Documents;


 


(ii)                                  second,
to the repayment of all Obligations then due and unpaid of the Loan Parties and
RSC to the Banks incurred under this Agreement or any of the other Loan
Documents or a Bank-Provided Hedge, whether of principal, interest, fees,
expenses or otherwise, in such manner as the Administrative Agent may determine
in its discretion; and


 


(iii)                               the balance, if any, as
required by Law.


 


8.2.6.                     Other
Rights and Remedies.


 


In addition to all of the rights and remedies
contained in this Agreement or in any of the other Loan Documents, the
Administrative Agent shall have all of the rights and remedies under applicable
Law, all of which rights and remedies shall be cumulative and non-exclusive, to
the extent permitted by Law.  The
Administrative Agent may, and upon the request of the Required Banks shall,
exercise all post-default rights granted to the Administrative Agent and the
Banks under the Loan Documents or applicable Law.


 


9.                                       THE ADMINISTRATIVE AGENT


 


9.1                                 Appointment.


 


Each Bank hereby
irrevocably designates, appoints and authorizes PNC Bank to act as
Administrative Agent for such Bank under this Agreement and to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents.  Each Bank hereby irrevocably authorizes, and
each holder of any Note by the acceptance of a Note shall be deemed irrevocably
to authorize, the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and any other
instruments and agreements referred to herein, and to exercise such powers and
to perform such duties hereunder as are specifically delegated to or required
of the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto.  PNC
Bank agrees to act as the Administrative Agent on behalf of the Banks to the
extent provided in this Agreement.


 


9.2                                 Delegation of Duties.


 


The Administrative Agent
may perform any of its duties hereunder by or through agents or employees (provided
such delegation does not constitute a relinquishment of its duties as
Administrative Agent) subject to Sections 9.5 [Reimbursement of
Administrative Agent by Loan Parties, Etc.] and 9.6 [Exculpatory Provisions,
Etc.], shall be entitled to engage and pay for the advice or services of any
attorneys, accountants or other experts concerning all matters pertaining to
its duties hereunder and to rely upon any advice so obtained.


 


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9.3                                 Nature of Duties; Independent Credit
Investigation.


 


The Administrative Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants, functions, responsibilities, duties,
obligations, or liabilities shall be read into this Agreement or otherwise
exist.  The duties of the Administrative
Agent shall be mechanical and administrative in nature; the Administrative
Agent shall not have by reason of this Agreement a fiduciary or trust
relationship in respect of any Bank; and nothing in this Agreement, expressed
or implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement except as
expressly set forth herein.  Without
limiting the generality of the foregoing, the use of the term “agent” in this
Agreement 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.  Each Bank expressly
acknowledges (i) that the Administrative Agent has not made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of any of the Loan Parties
or RSC, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank; (ii) that it has made and will continue
to make, without reliance upon the Administrative Agent, its own independent
investigation of the financial condition and affairs and its own appraisal of
the creditworthiness of each of the Loan Parties and RSC in connection with
this Agreement and the making and continuance of the Loans hereunder; and (iii) except
as expressly provided herein, that the Administrative Agent shall have no duty
or responsibility, either initially or on a continuing basis, to provide any
Bank with any credit or other information with respect thereto, whether coming
into its possession before the making of any Loan or at any time or times
thereafter.


 


9.4                                 Actions in Discretion of Administrative
Agent; Instructions From the Banks.


 


The Administrative Agent
agrees, upon the written request of the Required Banks, to take or refrain from
taking any action of the type specified as being within the Administrative
Agent’s rights, powers or discretion herein, provided that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or applicable Law.  In the absence of a request by the Required
Banks, the Administrative Agent shall have authority, in its sole discretion,
to take or not to take any such action, unless this Agreement specifically
requires the consent of the Required Banks or all of the Banks.  Any action taken or failure to act pursuant
to such instructions or discretion shall be binding on the Banks, subject to Section 9.6
[Exculpatory Provisions, Etc.].  Subject
to the provisions of Section 9.6 [Exculpatory Provisions, Etc.], no Bank
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder
in accordance with the instructions of the Required Banks, or in the absence of
such instructions, in the absolute discretion of the Administrative Agent.


 


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9.5                                 Reimbursement and
Indemnification of Administrative Agent by the Loan Parties and RSC.


 


Each Loan Party and RSC jointly, severally and
unconditionally agrees to pay or reimburse the Administrative Agent and hold
the Administrative Agent harmless against (a) liability for the payment of
all reasonable out-of-pocket costs, expenses and disbursements, including fees
and expenses of counsel (including the allocated costs of staff counsel),
appraisers and environmental consultants, incurred by the Administrative Agent
(i) in connection with the development, negotiation, preparation,
printing, execution, administration, syndication, interpretation and
performance of this Agreement and the other Loan Documents, (ii) relating
to any requested amendments, waivers or consents pursuant to the provisions
hereof, (iii) in connection with the enforcement of this Agreement or any
other Loan Document or collection of amounts due hereunder or thereunder or the
proof and allowability of any claim arising under this Agreement or any other
Loan Document, whether in bankruptcy or receivership proceedings or otherwise,
(iv) in any workout or restructuring or in connection with the protection,
preservation, exercise or enforcement of any of the terms hereof or of any rights
hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy proceedings, and (v) in connection with
any Environmental Complaint threatened or asserted against the Administrative
Agent or the Banks in any way relating to or arising out of this Agreement or
any other Loan Documents (including the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings or in any workout or restructuring), and (b) all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent, in
its capacity as such, in any way relating to or arising out of (i) this
Agreement or any other Loan Documents or any action taken or omitted by the
Administrative Agent hereunder or thereunder, and (ii) any Environmental
Complaint in any way relating to or arising out of this Agreement or any other
Loan Document or any action taken or omitted by the Administrative Agent
hereunder or thereunder, provided that no Loan Party or RSC shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements if the same results
from the Administrative Agent’s gross negligence or willful misconduct, or if
the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that each Loan Party
and RSC shall remain liable to the extent such failure to give notice does not
result in a loss to such Loan Party or RSC), or if the same results from a
compromise or settlement agreement entered into without the consent of the
Borrower, which shall not be unreasonably withheld. In addition, the Loan
Parties and RSC, jointly and severally, agree to reimburse and pay all
reasonable out-of-pocket expenses of the Administrative Agent’s regular
employees and agents engaged periodically to perform audits of the Loan Parties’
and RSC’s books, records and business properties.


 


9.6                                 Exculpatory
Provisions; Limitation of Liability.


 


Neither the Administrative Agent nor any of its
directors, officers, employees, agents, attorneys or Affiliates shall
(a) be liable to any Bank for any action taken or omitted to be taken by
it or them hereunder, or in connection herewith including pursuant to any Loan


 


89

















 


Document, unless caused by its or their own gross
negligence or willful misconduct, (b) be responsible in any manner to any
of the Banks for the effectiveness, enforceability, genuineness, validity or
the due execution of this Agreement or any other Loan Documents or for any
recital, representation, warranty, document, certificate, report or statement
herein or made or furnished under or in connection with this Agreement or any other
Loan Documents, or (c) be under any obligation to any of the Banks to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions hereof or thereof on the part of the Loan
Parties or RSC, or the financial condition of the Loan Parties or RSC, or the
existence or possible existence of any Event of Default or Potential Default.
No claim may be made by any of the Loan Parties, RSC, any Bank, the
Administrative Agent or any of their respective Subsidiaries against the
Administrative Agent, any Bank or any of their respective directors, officers,
employees, agents, attorneys or Affiliates, or any of them, for any special,
indirect or consequential damages or, to the fullest extent permitted by Law,
for any punitive damages in respect of any claim or cause of action (whether
based on contract, tort, statutory liability, or any other ground) based on,
arising out of or related to any Loan Document or the transactions contemplated
hereby or any act, omission or event occurring in connection therewith,
including the negotiation, documentation, administration or collection of the
Loans, and each of the Loan Parties, (for itself and on behalf of each of its
Subsidiaries), the Administrative Agent and each Bank hereby waive, release and
agree never to sue upon any claim for any such damages, whether such claim now
exists or hereafter arises and whether or not it is now known or suspected to
exist in its favor. Each Bank agrees that, except for notices, reports and
other documents expressly required to be furnished to the Banks by the
Administrative Agent hereunder or given to the Administrative Agent for the
account of or with copies for the Banks, the Administrative Agent and each of
its directors, officers, employees, agents, attorneys or Affiliates shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties or RSC which
may come into the possession of the Administrative Agent or any of its
directors, officers, employees, agents, attorneys or Affiliates.


 


9.7                                 Reimbursement and
Indemnification of Administrative Agent by Banks.


 


Each Bank agrees to reimburse and indemnify the
Administrative Agent (to the extent not reimbursed by the Loan Parties or RSC
and without limiting the Obligation of any Loan Party or RSC to do so) in
proportion to its Ratable Share from and against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements, including attorneys’ fees and disbursements (including the
allocated costs of staff counsel), and costs of appraisers and environmental
consultants, of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Administrative Agent, in its capacity as such, in
any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Administrative Agent hereunder
or thereunder, provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements (a) if the same results from the
Administrative Agent’s gross negligence or willful misconduct, or (b) if
such Bank was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that such Bank shall
remain liable to the extent such failure to give notice does not result in a
loss to the Bank), or (c) if the same results from a compromise and


 


90

















 


settlement agreement entered into without the consent
of such Bank, which shall not be unreasonably withheld. In addition, each Bank
agrees promptly upon demand to reimburse the Administrative Agent (to the
extent not reimbursed by the Loan Parties or RSC and without limiting the
Obligation of any Loan Party or RSC to do so) in proportion to its Ratable
Share for all amounts due and payable by the Loan Parties and RSC to the
Administrative Agent in connection with the Administrative Agent’s periodic
audit of the Loan Parties’ and RSC’s books, records and business properties.


 


9.8                                 Reliance by
Administrative Agent.


 


The Administrative Agent shall be entitled to rely
upon any writing, facsimile, telex or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon
the advice and opinions of counsel and other professional advisers selected by
the Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder unless it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.


 


9.9                                 Notice of Default.


 


The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Potential Default or Event of
Default unless the Administrative Agent has received written notice from a Bank
or the Borrower referring to this Agreement, describing such Potential Default
or Event of Default and stating that such notice is a “notice of Event of
Default” or a “notice of Potential Default”, as the case may be.


 


9.10                           Notices.


 


The Administrative Agent shall promptly send to each
Bank a copy of all notices received from the Borrower pursuant to the
provisions of this Agreement or the other Loan Documents promptly upon receipt
thereof. The Administrative Agent shall promptly notify the Borrower and the
other Banks of each change in the Base Rate and the effective date thereof.


 


9.11                           Banks in Their Individual
Capacities; Administrative Agent in its Individual Capacity.


 


With respect to the Revolving Credit Commitment, the
Revolving Credit Loans made by it and any other rights and powers given to it
as a Bank hereunder or under any of the other Loan Documents, the
Administrative Agent shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not the Administrative
Agent, and the term “Bank” and “Banks” shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. PNC
Bank and its Affiliates and each of the Banks and their respective Affiliates
may, without liability to account, except as prohibited herein, make loans to,
issue letters of credit for the account of, acquire equity interests in, accept


 


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deposits from, discount drafts for, act as trustee
under indentures of, and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with, the Loan Parties and
their Affiliates, in the case of the Administrative Agent, as though it were
not acting as Administrative Agent hereunder and in the case of each Bank, as
though such Bank were not a Bank hereunder, in each case without notice to or
consent of the other Banks. The Banks acknowledge that, pursuant to such
activities, the Administrative Agent or its Affiliates may (i) receive
information regarding the Loan Parties or any of their Subsidiaries or
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Loan Parties or such Subsidiary or Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them, and (ii) accept fees and other
consideration from the Loan Parties or RSC for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.


 


9.12                           Holders of Notes.


 


The Administrative Agent may deem and treat any payee
of any Note as the owner thereof for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Administrative Agent. Subject to the foregoing, any request, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.


 


9.13                           Equalization of Banks.


 


The Banks and the holders of any participations in any
Notes agree among themselves that, with respect
to all amounts received by any Bank or any such holder for application on any
Obligation hereunder or under any Note or under any such participation, whether
received by voluntary payment, by realization upon security, by the exercise of
the right of set-off or banker’s lien, by counterclaim or by any other non-pro
rata source, equitable adjustment will be made in the manner stated in the
following sentence so that, in effect, all such excess amounts will be shared
ratably among the Banks and such holders in proportion to their interests in
payments under the Notes, except as otherwise provided in Section 3.4.3
[Administrative Agent’s and Bank’s Rights], 4.4.2 [Replacement of a Bank] or
4.6 [Additional Compensation in Certain Circumstances]. The Banks or any such
holder receiving any such amount shall purchase for cash from each of the other
Banks an interest in such Bank’s Loans in such amount as shall result in a
ratable participation by the Banks and each such holder in the aggregate unpaid
amount under the Notes, provided that if all or any portion of such excess
amount is thereafter recovered from the Bank or the holder making such
purchase, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, together with interest or other amounts, if any,
required by Law (including court order) to be paid by the Bank or the holder
making such purchase.


 


9.14                           Successor Administrative
Agent.


 


The Administrative Agent (i) may resign as
Administrative Agent or (ii) shall resign if such resignation is requested
by the Required Banks (if the Administrative Agent is a


 


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Bank, the Administrative Agent’s Loans and its
Commitment shall be considered in determining whether the Required Banks have
requested such resignation) or required by Section 4.4.2 [Replacement of a
Bank], in either case of (i) or (ii) by giving not less than thirty (30) days’
prior written notice to the Borrower. If the Administrative Agent shall resign
under this Agreement, then either (a) the Required Banks shall appoint from
among the Banks a successor agent for the Banks, subject to the consent of the
Borrower, such consent not to be unreasonably withheld, or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following the Administrative Agent’s notice to the Banks of its
resignation, then the Administrative Agent shall appoint, with the consent of
the Borrower, such consent not to be unreasonably withheld, a successor agent
who shall serve as Administrative Agent until such time as the Required Banks
appoint and the Borrower consents to the appointment of a successor agent,
provided that the consent of the Borrower shall not be required if any Event of
Default then exists. Upon its appointment pursuant to either clause (a) or (b)
above, such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent, effective upon its appointment,
and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement. After the resignation of any Administrative Agent hereunder,
the provisions of this Section 9 [The Administrative Agent] shall inure to
the benefit of such former Administrative Agent and such former Administrative
Agent shall not by reason of such resignation be deemed to be released from
liability for any actions taken or not taken by it while it was an
Administrative Agent under this Agreement.


 


9.15                           Administrative Agent’s
Fee.


 


The Borrower shall pay to the Administrative Agent a
nonrefundable fee (the “Administrative Agent’s Letter”) between the Borrower
and Administrative Agent, as amended from time to time.


 


9.16                           Availability of Funds.


 


The Administrative Agent may assume that each Bank has
made or will make the proceeds of a Loan available to the Administrative Agent
in the applicable currency unless the Administrative Agent shall have been
notified by such Bank on or before the later of (1) the close of Business
on the Business Day preceding the Borrowing Date with respect to such Loan or
two (2) hours before the time on which the Administrative Agent actually funds
the proceeds of such Loan to the Borrower (whether using its own funds pursuant
to this Section 9.16 [Availability of Funds] or using proceeds deposited
with the Administrative Agent by the Banks and whether such funding occurs
before or after the time on which Banks are required to deposit the proceeds of
such Loan with the Administrative Agent). The Administrative Agent may, in
reliance upon such assumption (but shall not be required to), make available to
the Borrower a corresponding amount in the applicable currency. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Bank in the applicable currency, the Administrative Agent shall be
entitled to recover such amount on demand from such Bank (or, if such Bank fails
to pay such amount forthwith upon such demand from the Borrower) together with
interest thereon, in respect of each day during the period commencing on the
date such amount was made available


 


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to the Borrower and ending on the date the
Administrative Agent recovers such amount, at a rate per annum equal to (i) the
Federal Funds Effective Rate during the first three (3) days after such
interest shall begin to accrue and (ii) the applicable interest rate in respect
of such Loan after the end of such three-day period.


 


9.17                           Calculations.


 


In the absence of gross negligence or willful
misconduct, the Administrative Agent shall not be liable for any error in
computing the amount payable to any Bank whether in respect of the Loans, fees
or any other amounts due to the Banks under this Agreement. In the event an
error in computing any amount payable to any Bank is made, the Administrative
Agent, the Borrower and each affected Bank shall, forthwith upon discovery of
such error, make such adjustments as shall be required to correct such error,
and any compensation therefor will be calculated at the Federal Funds Effective
Rate or the Overnight Rate if such computation relates to a Loan made in an
Optional Currency.


 


9.18                           No Reliance on
Administrative Agent’s Customer Identification Program.


 


Each Bank acknowledges and agrees that neither such
Bank, nor any of its Affiliates, participants or assignees, may rely on the
Administrative Agent to carry out such Bank’s, Affiliate’s, participant’s or
assignee’s customer identification program, or other obligations required or
imposed under or pursuant to the USA Patriot Act or the regulations thereunder,
including the regulations contained in 31 CFR 103.121 (as hereafter amended or
replaced, the “CIP Regulations”), or any other Anti-Terrorism Law, including
any programs involving any of the following items relating to or in connection
with any of the Loan Parties, their Affiliates or their agents, the Loan
Documents or the transactions hereunder or contemplated hereby: (1) any
identity verification procedures, (2) any record keeping, (3) comparisons with
government lists, (4) customer notices or (5) other procedures required under
the CIP Regulations or such other Laws.


 


9.19                           Beneficiaries.


 


Except as expressly provided herein, the provisions of
this Section 9 [The Administrative Agent] are solely for the benefit of
the Administrative Agent and the Banks, and neither the Loan Parties nor RSC
shall have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Administrative
Agent shall act solely as agent of the Banks and does not assume and shall not
be deemed to have assumed any obligation toward or relationship of agency or
trust with or for any of the Loan Parties or RSC.


 


9.20                           Syndication Agent,
Co-Documentation Agents, Lead Arranger and Sole Bookrunner.


 


The parties hereto acknowledge and agree that no
Person shall have, solely by reason of its designation as syndication agent,
co-documentation agent, lead arranger or sole


 


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bookrunner, any power, duty, responsibility or
liability whatsoever under this Agreement or any other Loan Document.


 


10.                                 MISCELLANEOUS


 


10.1                           Modifications, Amendments
or Waivers.


 


With the written consent of the Required Banks, the
Administrative Agent, acting on behalf of all the Banks, and the Borrower, on
behalf of the Loan Parties and RSC, may from time to time enter into written
agreements amending or changing any provision of this Agreement or any other
Loan Document or the rights of the Banks, the Loan Parties or RSC hereunder or
thereunder, or may grant written waivers or consents to a departure from the
due performance of the Obligations of the Loan Parties and RSC hereunder or
thereunder. Any such agreement, waiver or consent made with such written
consent shall be effective to bind all the Banks, the Loan Parties and RSC; provided,
that, without the written consent of all the Banks, no such agreement, waiver
or consent may be made which will:


 


10.1.1.               Increase
of Commitment; Extension of Expiration Date,


 


Increase the amount of the Revolving Credit Commitment
of any Bank hereunder or extend the Expiration Date;


 


10.1.2.               Extension
of Payment; Reduction of Principal Interest or Fees; Modification of Terms of
Payment.


 


Whether or not any Loans are outstanding, extend the
time for payment of principal or interest of any Loan, the Commitment Fee or
any other fee payable to any Bank, or reduce the principal amount of or the
rate of interest borne by any Loan or reduce the Commitment Fee or any other
fee payable to any Bank, or otherwise affect the terms of payment of the
principal of or interest of any Loan, the Commitment Fee or any other fee
payable to any Bank;


 


10.1.3.               Release of Guarantor.


 


Except in connection with the dissolution of a Loan
Party permitted pursuant to Section 7.2.5 [Liquidations, Mergers,
Consolidations, Acquisitions], release any Guarantor from its Obligations under
the Guaranty Agreements, the Borrower/RSC Guaranty Agreement or any other
security for any of the Loan Parties’ or RSC’s Obligations; or


 


10.1.4.               Miscellaneous.


 


Amend Section 4.2 [Pro Rata Treatment of Banks],
9.6 [Exculpatory Provisions, Etc.] or 9.13 [Equalization of Banks] or this
Section 10.1 [Modifications, Amendments or Waivers], alter any provision
regarding the pro rata treatment of the Banks, change the definition of
Required Banks, or change any requirement providing for the Banks or the Required
Banks to authorize the taking of any action hereunder;


 


95

















 


provided, further, that no
agreement, waiver or consent which would modify the interests, rights or
obligations of (i) the Administrative Agent in its capacity as Administrative
Agent shall be effective without the written consent of the Administrative
Agent or (ii) the Administrative Agent in its capacity as issuer of Letters of
Credit shall be effective without the written consent of the Administrative
Agent.


 


10.2                           No Implied Waivers;
Cumulative Remedies; Writing Required.


 


No course of dealing and no delay or failure of the
Administrative Agent or any Bank in exercising any right, power, remedy or
privilege under this Agreement or any other Loan Document shall affect any
other or future exercise thereof or operate as a waiver thereof, nor shall any
single or partial exercise thereof or any abandonment or discontinuance of
steps to enforce such a right, power, remedy or privilege preclude any further
exercise thereof or of any other right, power, remedy or privilege. The rights
and remedies of the Administrative Agent and the Banks under this Agreement and
any other Loan Documents are cumulative and not exclusive of any rights or
remedies which they would otherwise have. Any waiver, permit, consent or
approval of any kind or character on the part of any Bank of any breach or
default under this Agreement or any such waiver of any provision or condition
of this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing.


 


10.3                           Reimbursement and
Indemnification of Banks by the Loan Parties and RSC; Taxes.


 


The Loan Parties and RSC, jointly and severally, agree
unconditionally upon demand to pay or reimburse to each Bank (other than the
Administrative Agent, as to which the Loan Parties’ and RSC’s Obligations are
set forth in Section 9.5 [Reimbursement of Administrative Agent By Loan
Parties, Etc.]) and to save such Bank harmless against (i) liability for
the payment of all reasonable out-of-pocket costs, expenses and disbursements
(including fees and expenses of counsel (including allocated costs of staff
counsel) for each Bank except with respect to (a) and (b) below), incurred by
such Bank (a) in connection with the negotiation, preparation, execution,
administration and interpretation of this Agreement, and other instruments and
documents to be delivered hereunder, (b) relating to any amendments,
waivers or consents pursuant to the provisions hereof, (c) in connection
with the enforcement of this Agreement or any other Loan Document, or
collection of amounts due hereunder or thereunder or the proof and allowability
of any claim arising under this Agreement or any other Loan Document, whether
in bankruptcy or receivership proceedings or otherwise, (d) in any workout
or restructuring or in connection with the protection, preservation, exercise
or enforcement of any of the terms hereof or of any rights hereunder or under
any other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings, and (e) in connection with any Environmental Complaint
threatened or asserted against the Administrative Agent or the Banks in any way
relating to or arising out of this Agreement or any other Loan Documents
(including the protection, preservation, exercise or enforcement of any of the
terms hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings or in any
workout or restructuring), or (ii) all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or


 


96

















 


asserted against such Bank, in its capacity as such,
in any way relating to or arising out of (y) this Agreement or any other Loan
Documents or any action taken or omitted by such Bank hereunder or thereunder
and (z) any Environmental Complaint in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by
such Bank hereunder or thereunder, provided that no Loan Party or RSC
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
(A) if the same results from such Bank’s gross negligence or willful
misconduct, or (B) if the Borrower was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that each Loan Party and RSC shall remain liable to the extent such
failure to give notice does not result in a loss to such Loan Party or RSC), or
(C) if the same results from a compromise or settlement agreement entered
into without the consent of the Borrower, which shall not be unreasonably
withheld. The Banks will attempt to minimize the fees and expenses of legal
counsel for the Banks which are subject to reimbursement by the Borrower
hereunder by considering the usage of one law firm to represent the Banks and
the Administrative Agent if appropriate under the circumstances. Each Loan
Party and RSC, jointly and severally, agrees unconditionally to pay all stamp,
document, transfer, recording or filing taxes or fees and similar impositions
now or hereafter determined by the Administrative Agent or any Bank to be
payable in connection with this Agreement or any other Loan Document, and each
Loan Party and RSC, jointly and severally, agrees unconditionally to save the
Administrative Agent and the Banks harmless from and against any and all
present or future claims, liabilities or losses with respect to or resulting
from any omission to pay or delay in paying any such taxes, fees or impositions.


 


10.4                           Holidays.


 


Whenever payment of a Loan to be made or taken
hereunder shall be due on a day which is not a Business Day such payment shall
be due on the next Business Day (except as provided in Section 3.2
[Interest Periods] with respect to Interest Periods under the Euro-Rate Option)
and such extension of time shall be included in computing interest and fees,
except that the Loans shall be due on the Business Day preceding the Expiration
Date if the Expiration Date is not a Business Day. Whenever any payment or
action to be made or taken hereunder (other than payment of the Loans) shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day, and such extension of
time shall not be included in computing interest or fees, if any, in connection
with such payment or action.


 


10.5                           Funding by Branch,
Subsidiary or Affiliate.


 


10.5.1.               Notional Funding.


 


Each Bank shall have the right from time to time,
without notice to the Borrower, to deem any branch, Subsidiary or Affiliate
(which for the purposes of this Section 10.5 [Funding by Branch,
Subsidiary or Affiliate] shall mean any corporation or association which is
directly or indirectly controlled by or is under direct or indirect common
control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies


 


97

















 


at any time, provided
that immediately following (on the assumption that a payment were then due from
the Borrower to such other office), and as a result of such change, the
Borrower would not be under any greater financial obligation pursuant to
Section 4.6 [Additional Compensation in Certain Circumstances] than it
would have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to such Bank’s actual methods of making,
maintaining or funding the Loans or any sources of funding actually used by or
available to such Bank.


 


10.5.2.               Actual Funding.


 


Each Bank shall have the right from time to time to
make or maintain any Loan by arranging for a branch, Subsidiary or Affiliate of
such Bank to make or maintain such Loan subject to the last sentence of this
Section 10.5.2 [Actual Funding]. If any Bank causes a branch, Subsidiary
or Affiliate to make or maintain any part of the Loans hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Loans to the same extent as if
such Loans were made or maintained by such Bank, but in no event shall any Bank’s
use of such a branch, Subsidiary or Affiliate to make or maintain any part of
the Loans hereunder cause such Bank or such branch, Subsidiary or Affiliate to
incur any cost or expenses payable by the Borrower hereunder or require the
Borrower to pay any other compensation to any Bank (including any expenses
incurred or payable pursuant to Section 4.6 [Additional Compensation in
Certain Circumstances]) which would otherwise not be incurred.


 


10.6                           Notices; Lending Offices.


 


Any notice, request, demand, direction or other
communication (for purposes of this Section 10.6 [Notices] only, a “Notice” to
be given to or made upon any party hereto under any provision of this Agreement
shall be given or made by telephone or in writing (which includes means of
electronic transmission (i.e., “e-mail”) or facsimile transmission or by
setting forth such Notice on a site on the World Wide Web (a “Website Posting”)
if Notice of such Website Posting (including the information necessary to
access such site) has previously been delivered to the applicable parties
hereto by another means set forth in this Section 10.6 [Notices]) in accordance
with this Section 10.6 [Notices]. Any such Notice must be delivered to the
applicable parties hereto at the addresses and numbers set forth under their
respective names on Schedule 1.1(B) hereof or in accordance with any subsequent
unrevoked Notice from any such party that is given in accordance with this
Section 10.6 [Notices]. Any Notice shall be effective:


 


(i)                                     In
the case of hand-delivery, when delivered;


 


(ii)                                  If
given by mail, four (4) days after such Notice is deposited with the United
States Postal Service, with first-class postage prepaid, return receipt
requested;


 


(iii)                               In the case of a
telephonic Notice, when a party is contacted by telephone, if delivery of such
telephonic Notice is confirmed no later than the next Business Day


 


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by hand delivery,
a facsimile or electronic transmission, a Website Posting or overnight courier
delivery of a confirmatory notice (received at or before noon on such next
Business Day);


 


(iv)                              In
the case of a facsimile transmission, when sent to the applicable party’s
facsimile machine’s telephone number if the party sending such Notice receives
confirmation of the delivery thereof from its own facsimile machine;


 


(v)                                 In
the case of electronic transmission, when actually received;


 


(vi)                              In
the case of a Website Posting, upon delivery of a Notice of such posting
(including the information necessary to access such web site) by another means
set forth in this Section 10.6 [Notices]; and


 


(vii)                           If given by any other means
(including by overnight courier), when actually received.


 


Any Bank giving a Notice to a Loan Party or RSC shall
concurrently send a copy thereof to the Administrative Agent, and the
Administrative Agent shall promptly notify the other Banks of its receipt of
such Notice. Schedule 1.1(B) lists the lending offices of each Bank. Each Bank
may change its lending office by written notice to the other parties hereto.


 


10.7                           Severability.


 


The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.


 


10.8                           Governing Law.


 


Each Letter of Credit and Section 2.9 [Letter of
Credit Subfacility] shall be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be revised or amended from time to time,
and to the extent not inconsistent therewith, the internal laws of the State of
New York without regard to its conflict of laws principles, and the balance of
this Agreement shall be deemed to be a contract under the Laws of the State of
New York and for all purposes shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York without regard to
its conflict of laws principles.


 


10.9                           Prior Understanding.


 


This Agreement and the other Loan Documents supersede
all prior understandings and agreements, whether written or oral, between the
parties hereto and thereto relating to the transactions provided for herein and
therein, including any prior confidentiality agreements and commitments.


 


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10.10                     Duration; Survival.


 


All representations and warranties of the Loan Parties
and RSC contained herein or made in connection herewith shall survive the
making of Loans and issuance of Letters of Credit and shall not be waived by
the execution and delivery of this Agreement, any investigation by the
Administrative Agent or the Banks, the making of Loans, issuance of Letters of
Credit, or payment in full of the Loans. All covenants and agreements of the
Loan Parties and RSC contained in Sections 7.1 [Affirmative Covenants],
7.2 [Negative Covenants] and 7.3 [Reporting Requirements] herein shall continue
in full force and effect from and after the date hereof so long as the Borrower
may borrow or request Letters of Credit hereunder and until termination of the
Commitments and payment in full of the Loans and expiration or termination of
all Letters of Credit. All covenants and agreements of the Borrower contained
herein relating to the payment of principal, interest, premiums, additional
compensation or expenses and indemnification, including those set forth in the
Notes, Section 4 [Payments] and Sections 9.5 [Reimbursement of
Administrative Agent by Loan Parties, Etc.], 9.7 [Reimbursement of
Administrative Agent by Banks, Etc.] and 10.3 [Reimbursement of Banks by Loan
Parties; Etc.], shall survive payment in full of the Loans, expiration or
termination of the Letters of Credit and termination of the Commitments.


 


10.11                     Successors and Assigns.


 


(i)                                     This
Agreement shall be binding upon and shall inure to the benefit of the Banks,
the Administrative Agent, the Loan Parties, RSC and their respective successors
and assigns, except that none of the Loan Parties or RSC may assign or transfer
any of its rights and Obligations hereunder or any interest herein. Each Bank
may, at its own cost, make assignments of or sell participations in all or any
part of its Commitments and the Loans made by it to one or more banks or other
entities subject to the consent of the Borrower and the Administrative Agent
with respect to any assignee, such consent not to be unreasonably withheld,
delayed or conditioned, provided that (i) no consent of the Borrower
shall be required (A) if an Event of Default exists and is continuing, or (B)
in the case of an assignment by a Bank to an Affiliate of such Bank, and (2)
any assignment by a Bank to a Person other than an Affiliate of such Bank may
not be made in amounts less than the lesser of Two Million Five Hundred
Thousand and 00/100 Dollars ($2,500,000.00) or the amount of the assigning Bank’s
Commitment. In the case of an assignment, upon receipt by the Administrative
Agent of the Assignment and Assumption Agreement, the assignee shall have, to
the extent of such assignment (unless otherwise provided therein), the same
rights, benefits and obligations as it would have if it had been a signatory
Bank hereunder, the Commitments shall be adjusted accordingly, and upon
surrender of any Note subject to such assignment, the Borrower shall execute
and deliver a new Note to the assignee in an amount equal to the amount of the
Revolving Credit Commitment assumed by it and a new Revolving Credit Note to
the assigning Bank in an amount equal to the Revolving Credit Commitment
retained by it hereunder. Any Bank which assigns any or all of its Commitment
or Loans to a Person other than an Affiliate of such Bank shall pay to the
Administrative Agent a service fee in the amount of Three Thousand Five Hundred
and 00/100 Dollars ($3,500.00) for each assignment. In the case of a
participation, the participant shall only have the rights specified in Section 8.2.3
[Set-off] (the participant’s rights against such Bank in respect of such
participation to be those set forth in the agreement


 


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executed by such
Bank in favor of the participant relating thereto and not to include any voting
rights except with respect to changes of the type referenced in
Sections 10.1.1 [Increase of Commitment, Etc.], 10.1.2 [Extension of
Payment, Etc.], or 10.1.3 [Release of Guarantor]), all of such Bank’s
obligations under this Agreement or any other Loan Document shall remain
unchanged, and all amounts payable by any Loan Party or RSC hereunder or
thereunder shall be determined as if such Bank had not sold such participation.


 


(ii)                                  Any
assignee or participant which is not incorporated under the Laws of the United
States of America or a state thereof shall deliver to the Borrower and the
Administrative Agent the form of certificate described in Section 10.17.1
[Tax Withholding Clause] relating to federal income tax withholding. Each Bank
may furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Bank from time to time to assignees and
participants (including prospective assignees or participants), provided
that such assignees and participants agree to be bound by the provisions of
Section 10.12 [Confidentiality].


 


(iii)                               Notwithstanding any
other provision in this Agreement, any Bank may at any time pledge or grant a
security interest in all or any portion of its rights under this Agreement, its
Note and the other Loan Documents to any Federal Reserve Bank in accordance
with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
Section 203.14 without notice to or consent of the Borrower or the
Administrative Agent. No such pledge or grant of a security interest shall
release the transferor Bank of its obligations hereunder or under any other
Loan Document.


 


10.12                     Confidentiality.


 


10.12.1.         General.


 


The Administrative Agent and the Banks each agree to
keep confidential all information obtained from any Loan Party or its
Subsidiaries which is nonpublic and confidential or proprietary in nature
(including any information such Loan Party or Subsidiary specifically
designates as confidential), except as provided below, and to use such
information only in connection with their respective capacities under this
Agreement and for the purposes contemplated hereby. The Administrative Agent
and the Banks shall be permitted to disclose such information (i) to their
respective officers, directors, employees, agents, outside legal counsel,
accountants and other professional advisors who need to know such information
in connection with the administration and enforcement of this Agreement,
subject to agreement of such Persons to maintain the confidentiality,
(ii) to assignees and participants (including prospective assignees and
participants) as contemplated by Section 10.11 [Successors and Assigns],
(iii) to the extent requested by any bank regulatory authority, as
otherwise required by applicable Law or by any subpoena or similar legal
process, or in connection with any investigation or proceeding arising out of
the transactions contemplated by this Agreement, (iv) if it becomes
publicly available other than as a result of a breach of this Agreement or
becomes available from a source not known to be subject to confidentiality
restrictions, or (v) if the Borrower shall have consented to such
disclosure.


 


101

















 


10.12.2.                                                         Sharing
Information With Affiliates of the Banks.


 


Each Loan Party and RSC acknowledges that from time to
time financial advisory, investment banking and other services may be offered
or provided to any Loan Party or one or more of its Affiliates (in connection
with this Agreement or otherwise) by any Bank or by one or more Subsidiaries or
Affiliates of such Bank and each of the Loan Parties hereby authorizes each
Bank to share any information delivered to such Bank by such Loan Party and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Bank to enter into this Agreement, to any such Subsidiary or Affiliate of
such Bank, it being understood that any such Subsidiary or Affiliate of any
Bank receiving such information shall be bound by the provisions of Section
10.12.1 [General] as if it were a Bank hereunder. Such authorization shall
survive the repayment of the Loans and other Obligations and the termination of
the Commitments.


 


10.13                     Counterparts.


 


This Agreement may be executed by different parties
hereto on any number of separate counterparts, each of which, when so executed
and delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.


 


10.14                     Administrative Agent’s or Bank’s
Consent.


 


Unless otherwise provided herein, whenever the
Administrative Agent’s or any Bank’s consent is required to be obtained under
this Agreement or any of the other Loan Documents as a condition to any action,
inaction, condition or event, the Administrative Agent and each Bank shall be
authorized to give or withhold such consent in its sole and absolute discretion
and to condition its consent upon the giving of collateral, the payment of money
or any other matter.


 


10.15                     Exceptions.


 


The representations, warranties and covenants
contained herein shall be independent of each other, and no exception to any
representation, warranty or covenant shall be deemed to be an exception to any
other representation, warranty or covenant contained herein unless expressly
provided, nor shall any such exceptions be deemed to permit any action or
omission that would be in contravention of applicable Law.


 


10.16                     CONSENT
TO FORUM; WAIVER OF JURY TRIAL.


 


EACH LOAN PARTY AND RSC HEREBY IRREVOCABLY
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF NEW YORK
COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS
THAT ALL SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL
DIRECTED TO SUCH LOAN PARTY OR RSC AT THE ADDRESSES PROVIDED FOR IN
SECTION 10.6 [NOTICES] AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED


 


102

















 


UPON ACTUAL RECEIPT THEREOF. EACH LOAN PARTY AND
RSC WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON
LACK OF JURISDICTION OR VENUE. EACH LOAN PARTY, RSC, THE ADMINISTRATIVE AGENT
AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT TO THE FULL EXTENT PERMITTED BY LAW.


 


10.17                     Certifications From Banks and
Participants


 


10.17.1.         Tax Withholding Clause.


 


Each Bank or assignee or participant of a Bank that is
not incorporated under the Laws of the United States of America or a state
thereof (and, upon the written request of the Agent, each other Bank or
assignee or participant of a Bank) agrees that it will deliver to each of the
Borrower and the Administrative Agent two (2) duly completed appropriate valid
Withholding Certificates (as defined under § 1.1441-1(c)(16) of the Income Tax
Regulations (the “Regulations”)) certifying its status (i.e. U.S. or foreign
person) and, if appropriate, making a claim of reduced, or exemption from, U.S.
withholding tax on the basis of an income tax treaty or an exemption provided
by the Internal Revenue Code. The term “Withholding Certificate” means a Form
W-9; a Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and
certifications as required under § 1.1441-1(e)(2) and/or (3) of the
Regulations; a statement described in § 1.871-14(c)(2)(v) of the Regulations;
or any other certificates under the Internal Revenue Code or Regulations that
certify or establish the status of a payee or beneficial owner as a U.S. or
foreign person. Each Bank, assignee or participant required to deliver to the
Borrower and the Agent a Withholding Certificate pursuant to the preceding
sentence shall deliver such valid Withholding Certificate as follows:  (A) each Bank which is a party hereto on
the Closing Date shall deliver such valid Withholding Certificate at least five
(5) Business Days prior to the first date on which any interest or fees are
payable by the Borrower hereunder for the account of such Bank; (B) each
assignee or participant shall deliver such valid Withholding Certificate at least
five (5) Business Days before the effective date of such assignment or
participation (unless the Administrative Agent in its sole discretion shall
permit such assignee or participant to deliver such valid Withholding
Certificate less than five (5) Business Days before such date in which case it
shall be due on the date specified by the Administrative Agent). Each Bank,
assignee or participant which so delivers a valid Withholding Certificate
further undertakes to deliver to each of the Borrower and the Administrative
Agent two (2) additional copies of such Withholding Certificate (or a successor
form) on or before the date that such Withholding Certificate expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent Withholding Certificate so delivered by it, and such amendments
thereto or extensions or renewals thereof as may be reasonably requested by the
Borrower or the Administrative Agent. Notwithstanding the submission of a
Withholding Certificate claiming a reduced rate of or exemption from U.S.
withholding tax, the Administrative Agent shall be entitled to withhold United
States federal income taxes at the full thirty percent (30%) withholding rate
if in its reasonable judgment it is required to do so under the due diligence
requirements imposed upon a withholding agent under § 1.1441-7(b) of the


 


103

















 


Regulations. Further, the Administrative Agent is
indemnified under § 1.1461-1(e) of the Regulations against any claims and
demands of any Bank or assignee or participant of a Bank for the amount of any
tax it deducts and withholds in accordance with regulations under § 1441 of the
Internal Revenue Code.


 


10.17.2.                                                         USA
Patriot Act.


 


Each Bank or assignee or participant of a Bank that is
not incorporated under the Laws of the United States of America or a state
thereof (and is not excepted from the certification requirement contained in
Section 313 of the USA Patriot Act and the applicable regulations because it is
both (i) an affiliate of a depository institution or foreign bank that
maintains a physical presence in the United States or foreign country, and (ii)
subject to supervision by a banking authority regulating such affiliated
depository institution or foreign bank) shall deliver to the Administrative
Agent the certification, or, if applicable, recertification, certifying that
such Bank is not a “shell” and certifying to other matters as required by
Section 313 of the USA Patriot Act and the applicable regulations: (1) within
ten (10) days after the Closing Date, and (2) as such other times as are
required under the USA Patriot Act.


 


10.18                     Joinder of Guarantors.


 


Any Subsidiary of the Borrower which is required to
join this Agreement as a Guarantor pursuant to Section 7.2.9
[Subsidiaries, Partnerships and Joint Ventures] and which has not yet done so
shall execute and deliver to the Administrative Agent (i) a Guarantor
Joinder in substantially the form attached hereto as Exhibit 1.1(G)(1)
pursuant to which it shall join as a Guarantor each of the documents to which
the Guarantors are parties; and (ii) documents in the forms described in
Section 6.1 [First Loans] modified as appropriate to relate to such
Subsidiary. The Loan Parties shall deliver such Guarantor Joinder and related
documents to the Administrative Agent within five (5) Business Days after the
date of (a) the filing of such Subsidiary’s articles of incorporation if the
Subsidiary is a corporation, (b) the filing of its certificate of limited
partnership if it is a limited partnership or (c) if it is an entity other than
a limited partnership or corporation, its organization.


 


[INTENTIONALLY LEFT
BLANK]


 


104

















 


IN WITNESS WHEREOF, the parties hereto, by their
officers thereunto duly authorized, have executed this Agreement on the day and
year first above written.


 


	
  BORROWER:

  	
   

  	
  PAPA JOHN’S INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  /s/ J. David Flanery

  	
   

  
	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Senior Vice President, Chief Financial
  Officer

  	
   

  
	
   

  	
   

  	
  and Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
   

  	
  PAPA JOHN’S USA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  /s/ J. David Flanery

  	
   

  
	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Senior Vice President, Chief Financial Officer

  	
   

  
	
   

  	
   

  	
  and Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PAPA JOHN’S SUPPORT SERVICES, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  /s/ J. David Flanery

  	
   

  
	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CAPITAL DELIVERY, LTD.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  /s/ J. David Flanery

  	
   

  
	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RISK SERVICES CORP.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  /s/ J. David Flanery

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PJ FOOD SERVICE, INC.

  	
   

  
	
  WITNESS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kenneth M. Cox

  	
   

  	
  By:

  	
  J. David Flanery

  	
   

  
	
   

  	
   

  	
  Name: J. David Flanery

  	
   

  
	
   

  	
   

  	
  Title: Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Acknowledged and accepted this 31st day of January,
  2006, solely with respect to the Reimbursement Obligations with respect to
  the RSC Letter of Credit and all other Obligations of RSC hereunder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  RSC INSURANCE SERVICES LTD.

  
	
  WITNESS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Carol Bray

  	
   

  	
  By:

  	
  D.B. Adderley

  	
   

  
	
   

  	
   

  	
  Name:  D.B.
  Adderley

  	
   

  
	
   

  	
   

  	
  Title:  Director

  	
   

  
	
   

  	
   

  	
   

  
						



 

















 


	
   

  	
   

  	
  PNC BANK, NATIONAL ASSOCIATION,

  as a Bank and as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard M. Ellis

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard M. Ellis

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMORGAN CHASE BANK, N.A., as a

  Bank and as Syndication Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s J. Duffy Baker, Jr.

  	
   

  
	
   

  	
   

  	
  Name:

  	
  J. Duffy Baker, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NATIONAL CITY BANK OF

  KENTUCKY, as a Bank and as Co-

  Documentation Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Judy Byron

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Judy Byron

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK OF AMERICA, N.A., as a Bank and

  as Co-Documentation Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas C. Kilcrease, Jr.

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Thomas C. Kilcrease, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  	
   

  
							



 

















 


	
   

  	
   

  	
  FIFTH THIRD BANK, as a Bank and as Co-

  Documentation Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jeffery
  G. Goodwin

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeffery G.
  Goodwin

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK,
  NATIONAL ASSOCIATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael
  V. Rehm

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael V.
  Rehm

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BRANCH
  BANKING AND TRUST

  COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Johnny
  L. Perry

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Johnny L.
  Perry

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
									



 

















 


SCHEDULE 1.1(A)


 


PRICING GRID—

VARIABLE PRICING AND FEES BASED ON LEVERAGE RATIO


 


	
  Pricing Level

  	
   

  	
  Leverage

  Ratio*

  	
   

  	
  Euro-Rate

  Margin

  	
   

  	
  Commitment Fee

  Percentage

  	
   

  	
  Letter of Credit

  Fee Percentage

  	
   

  
	
  I

  	
   

  	
  If the Leverage Ratio is less than or equal
  to 1.00 to 1.00

  	
   

  	
  0.500

  	
  %

  	
  0.125

  	
  %

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II

  	
   

  	
  If the Leverage Ratio is greater than 1.00
  to 1.00, but less than or equal to 1.50 to 1.00

  	
   

  	
  0.625

  	
  %

  	
  0.150

  	
  %

  	
  0.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  If the Leverage Ratio is greater than 1.50
  to 1.00, but less than or equal to 2.00 to 1.00

  	
   

  	
  0.750

  	
  %

  	
  0.175

  	
  %

  	
  0.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
   

  	
  If the Leverage Ratio is greater than or
  equal to 2.00 to 1.00

  	
   

  	
  1.000

  	
  %

  	
  0.200

  	
  %

  	
  1.000

  	
  %

  



 






*Until the last day of
the fiscal quarter of the Borrower and its Subsidiaries ending March 31, 2006,
the Euro-Rate Margin, the Commitment Fee Percentage and the Letter of Credit
Fee Percentage shall be calculated based upon Level I Pricing set forth above. Any
change thereafter shall be based upon the financial statements and compliance
certificates provided pursuant to Section 7.3 and shall become effective on the
date such financial statements and compliance certificates are due in accordance
with Section 7.3; provided, however, with respect to Loans in an Optional
Currency only, no change in pricing shall become effective until the end of the
Interest Period applicable to each such Loan.


 


1

















 


SCHEDULE 1.1(B)


 


COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES;
LENDING OFFICES


 


Part 1 - Commitments of Banks and Addresses for
Notices to Banks; Lending Offices


 




	
  Bank

  	
   

  	
  Amount of

  Commitment for

  Revolving Credit

  Loans

  	
   

  	
  Ratable Share

  	
   

  
	
  PNC Bank,
  National Association

  2nd Floor

  500 West Jefferson Street

  Louisville, Kentucky 40202

  Attn: Richard Ellis

  Telephone: (502) 581-7427

  Telecopy: (502) 581-3355

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  20.000000001

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.

  416 W. Jefferson

  Louisville, KY 40202

  Attn: Duffy Baker

  Telephone: (502) 566-3677

  Telecopy: (502) 566-8339

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  20.000000000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National
  City Bank of Kentucky

  101 South Fifth Street

  Louisville, KY 40202

  Attn: Judy Byron

  Telephone: (502) 581-5612

  Telecopy: (502) 581-5149

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  14.285714286

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of
  America, N.A.

  414 Union Street

  TN1-100-04-04

  Nashville, TN 37219

  Attn: Thomas Kilcrease

  Telephone: (615) 749-3926

  Telecopy: (615) 749-4762

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  14.285714286

  	
  %

  






 


1

















 




	
  Fifth Third
  Bank

  401 S. 4th Street

  Louisville, KY 40202

  Attn: Jeffery G. Goodwin

  Telephone: (502) 562-8228

  Telecopy: (502) 562-5540

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  14.285714286

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  U.S. Bank,
  National Association

  One Financial Square

  Louisville, KY 40202

  Attn: Michael V. Rehm

  Telephone: (502) 562-6486

  Telecopy: (502) 562-6460

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  11.428571429

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Branch
  Banking and Trust

  Company

  401 West Main Street, Suite 100

  Louisville, KY 40202

  Attn: Johnny L. Perry

  Telephone: (502) 562-5877

  Telecopy: (502) 562-6990

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  5.714285713

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  175,000,000.00

  	
   

  	
  100.000000000

  	
  %

  






 


2

















 


SCHEDULE 1.1(B)


 


COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES;
LENDING OFFICES


 


Part 2 - Addresses for Notices to Borrower and
Guarantors:


 


ADMINISTRATIVE AGENT


 


Name:  PNC Bank, National Association

Address:  2nd Floor

500 West Jefferson Street

Louisville, Kentucky 40202

Attention:  Richard Ellis

Telephone:  (502) 581-7427


 


Name:  PNC Bank

Address:  Firstside Center

500 First Avenue

4th Floor

Pittsburgh, Pennsylvania 15219

Attention:  Rini Davis

Telephone:            (412)
762-7638

Telecopy:                   (412) 762-8672




BORROWER:


 


Name:  Papa John’s International, Inc.

Address:  2002 Papa John’s Blvd.

Louisville, Kentucky 40299

Attention:  J. David Flanery

Telephone:            (502)
261-4753

Telecopy:                   (502) 261-4190




GUARANTORS:


 


If to less than all Guarantors:




Name:  [Name of applicable Guarantor]

Address:  2002 Papa John’s Boulevard

Louisville, KY 40299 

Attention:    J. David Flanery

Telephone: (502) 261-4753

Telecopy:  (502) 261-4190




3

















 


If to all Guarantors:




Name:  Papa John’s International, Inc.

Address:  2002 Papa John’s Boulevard

Louisville, KY 40299 

Attention:    J. David Flanery

Telephone: (502) 261-4753

Telecopy:  (502) 261-4190




RSC:


 


Name:  RSC Insurance Services Ltd.

Address:  2002 Papa John’s Boulevard

Louisville, KY 40299

Attention:  Joe Smith

Telephone: (502) 261-4593

Telecopy:  (502) 261-4190




4

















 


EXHIBIT 1.1(A)


 


FORM OF


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


Reference is made to the Credit Agreement, dated January 31, 2006
(as amended, supplemented or modified from time to time, the “Credit Agreement”),
by and among Papa John’s International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors party thereto, RSC Insurance Services Ltd., a Bermuda company,
PNC Bank, National Association (“PNC”), various other financial institutions
which are now or hereafter become a party thereto (PNC and such other financial
institutions are each, a “Bank” and collectively, the “Banks”) and PNC, as
administrative agent for the Banks (in such capacity, the “Agent”).  Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein with the same meanings.


 


                                            
(the “Assignor”) and                                                     
(the “Assignee”), intending to be legally bound hereby, make this Assignment
and Assumption Agreement (“Assignment and Assumption”) this         
day of                             ,
200     and hereby agree as follows:


 


1.               The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
WITHOUT RECOURSE to the Assignor and without any representations and warranties
except as set forth in Section 2 below, a               
percent (      %) interest in and to all of the
Assignor’s rights and obligations under the Credit Agreement as of the
Effective Date (as defined below) including, without limitation, such
percentage interest in the Assignor’s Commitments as in effect on the Effective
Date, the Loans owing to the Assignor on the Effective Date and the Notes
evidencing the outstanding Loans held by the Assignor.


 


2.               The Assignor (i) represents and
warrants that, as of the date hereof, its Revolving Credit Commitment is $                            ,
the unpaid principal amount of the Revolving Credit Loans owing to the Assignor
is $                          ;
(ii) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of
the Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any of the Loan
Documents or any other instrument or document furnished pursuant thereto; (iv) makes
no representations or warranties and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any of the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (v) attaches the Notes referred to in paragraph 1 above and requests
that the Agent exchange such Notes for new Notes as follows:


 


[INSERT ASSIGNOR’S INSTRUCTIONS]


 

















 


3.               The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements (if any) referred to in Section 5.1.9 [Financial
Statements] and Section 7.3 [Reporting Requirements] of the Credit
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption; (ii) agrees that it will, independently and without reliance
upon the Agent, the Assignor or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints
and authorizes the Agent to take such actions on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
thereof; (iv) agrees that it will become a party to and be bound by the
Credit Agreement on the Effective Date (including without limitation, the
provisions of Section 10.11 [Successors and Assigns]) as if it were an
original Bank thereunder and will have all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Bank; and
(v) specifies as its address for notices the office set forth beneath its
name on the signature page hereof.


 


4.               The effective date of this Assignment
and Assumption shall be the             
day of                                           ,
20         (the “Effective Date”).  Following the execution of this Assignment
and Assumption, it will be delivered to the Agent for acceptance and recording
by the Agent.


 


5.               Upon such acceptance and recording, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Assumption, have
the rights and obligations of a Bank thereunder and under the Loan Documents
and (ii) the Assignor shall, to the extent provided in this Assignment and
Assumption, relinquish its rights and be released from its obligations under
the Credit Agreement, and the Commitments of the Assignor and the Assignee
shall be as set forth in Schedule I hereto.


 


6.               Upon such acceptance and recording, from
and after the Effective Date, the Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
Commitment Fees with respect thereto) to the Assignee.  The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes
for periods prior to the Effective Date directly between themselves.


 


7.               The Assignor makes this assignment to
the Assignee in consideration of the payment by the Assignor to the Agent of
Three Thousand Five Hundred and 00/100 Dollars ($3,500.00), receipt of which is
hereby acknowledged by the Agent.


 


8.               This Assignment and Assumption shall be
governed by and construed in accordance with the internal Law, and not the Law
of conflicts, of the State of New York.


 


9.               Each of the parties to this Assignment
and Assumption agrees that at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Assignment and Assumption.


 

















 


10.         The Assignee hereby agrees to indemnify and
hold the Assignor harmless from and against any and all losses, costs and
expenses (including, without limitation, attorneys’ fees) and liabilities
incurred by the Assignor in connection with or arising in any manner from the
Assignee’s performance or non-performance of obligations assumed under this
Assignment and Assumption.


 


11.         This Assignment and Assumption embodies the
entire agreement and understanding between the parties hereto and supersedes
all prior agreements and understandings between the parties hereto relating to
the subject matter hereof.


 


12.         [This section is
applicable only if the Assignee is incorporated outside of the United States.]  [The Assignee has delivered at least five (5) Business
Days prior to the Effective Date two (2) duly completed copies of Internal
Revenue Service Form W-9, W-8BEN or W-8IMY, or other applicable form
prescribed by the Internal Revenue Service, certifying that such Assignee is
entitled to receive payments under the Credit Agreement and the other Loan
Documents without deduction or withholding of any United States federal income
taxes, or is subject to such tax at a reduced rate under an applicable tax
treaty.]


 


[INTENTIONALLY LEFT BLANK]


 

















 


IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption by their duly authorized officers on the date first above written.


 


	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  	
   

  
	
   

  	
  Telecopier No.:

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  
	
   

  	
  Email Address:

  	
   

  
								



 


CONSENTED TO
this         


day of                             ,
            


 


	
  PNC Bank, National Association, as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 


[CONSENTED TO
this         


day of                             ,
             [If
Required]


 


	
  Papa John’s International, Inc.

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  ]

  	
   

  
						



 


 

















 


SCHEDULE I


 




	
   

  	
   

  	
  Amount of Revolving

  Credit Commitment as

  of the Effective Date

  	
   

  	
  Amount of Revolving

  Credit Loans held as of

  the Effective Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Assignor]

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Assignee]

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  






 

















 


EXHIBIT 1.1(E)


 


FORM OF


EXCLUDED VIE APPROVAL FORM


 


Papa John’s International, Inc.


2002 Papa John’s Boulevard


Louisville, Kentucky 40299


 


January 31, 2006


 


PNC Bank, National Association


Administrative Agent


2nd Floor


500 West Jefferson Street


Louisville, Kentucky 40202


Attention:  Richard Ellis


 


each of the Banks identified


on the signature page hereto


 


Re:                               Request for Approval
of Additional Excluded VIE


 


Ladies and Gentlemen:


 


This letter constitutes a formal request for approval by the Required
Banks as defined in and pursuant to the Credit Agreement, dated the 31st
day of January, 2006 (as it may be hereafter amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among
Papa John’s International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors party thereto, RSC Insurance Services Ltd., a Bermuda company,
the Banks party thereto (the “Banks”) and PNC Bank, National Association, as
administrative agent for the Banks (in such capacity, the “Agent”), for the
entities identified below to be deemed to be Excluded VIEs effective as of the         
day of                         ,
20    .  The entity
or entities for which approval as Excluded VIE is being requested are as
follows:


 




	
  Legal Name of Entity

  	
   

  	
  Jurisdiction of Formation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  






 


If you are in agreement with our request, kindly so indicate by having
a duly authorized representative of your institution sign this letter where provided
below and send a copy of the same to PNC Bank, National Association, as
Administrative Agent under the Credit Agreement.  By your signature below you agree that the
signatures to this letter shall be effective


 

















 


notwithstanding that this letter is executed in counterpart and that
facsimile signature of any signatory to this letter shall be effective to the
same extent as the manual signature of such signatory.


 


Sincerely,


 


Papa John’s International, Inc.


 


	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


2

















 


Acknowledged and accepted


on the         
day of                         ,
20    .


 


 


	
  PNC BANK, NATIONAL ASSOCIATION,

  
	
  as a Bank and as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A., as a

  
	
  Bank and as Syndication Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  NATIONAL CITY BANK OF

  
	
  KENTUCKY, as a Bank and as Co-

  
	
  Documentation Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  BANK OF AMERICA, N.A., as a Bank and

  
	
  as Co-Documentation Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 

















 


	
  FIFTH THIRD BANK, as a Bank and as

  
	
  Co-Documentation Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  U.S. BANK, NATIONAL ASSOCIATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  
	
  BRANCH BANKING AND TRUST

  
	
  COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 

















 


EXHIBIT 1.1(G)(1)


 


FORM OF


JOINDER AND ASSUMPTION AGREEMENT


 


This Joinder and Assumption Agreement (“Joinder”) is made the 31st
day of January, 2006, by                                                     ,
a(n)                                 
[limited liability company/limited partnership/general partnership/corporation]
(the “New Guarantor”).


 


Background


 


Reference is made to (i) the Credit Agreement, dated January 31,
2006, as the same may be modified, supplemented or amended from time to time
(the “Agreement”) by and among Papa John’s International, Inc., a Delaware
corporation (the “Borrower”), the Guarantors as defined therein, RSC Insurance
Services Ltd., a Bermuda company, the Banks party to the Agreement and PNC
Bank, National Association, in its capacity as Administrative Agent for the
Banks (the “Agent”) , (ii) the Form of Guaranty and Suretyship
Agreement referred to in the Agreement and attached thereto as Exhibit 1.1(G)(2),
as the same may be modified, supplemented or amended (the “Guaranty”), and (iii) the
other Loan Documents referred to in the Agreement, as the same may be modified,
supplemented or amended.


 


Agreement


 


Capitalized terms defined in the Agreement are used herein as defined
therein.  In consideration of the New
Guarantor becoming a Guarantor under the terms of the Agreement and in
consideration of the value of the synergistic benefits received by New
Guarantor as a result of becoming affiliated with Borrower and the Guarantors,
the New Guarantor hereby agrees that effective as of the date hereof, it hereby
is, and shall be deemed to be, a Guarantor under the Agreement, the Guaranty
and each of the other Loan Documents to which the Guarantors are a party and
agrees that from the date hereof and so long as any Loan or any Commitment of
any Bank shall remain outstanding and until the payment in full of the Loans
and the Notes and the performance of all other obligations of the Borrower
under the Loan Documents, the New Guarantor has assumed the obligations of a
Guarantor under, and the New Guarantor shall perform, comply with and be
subject to and bound by, jointly and severally, with each of the other
Guarantors, each of the terms, provisions and waivers of the Agreement, the
Guaranty, the Intercompany Subordination Agreement and each of the other Loan
Documents which are stated to apply to or are made by a Guarantor.  Without limiting the generality of the
foregoing, the New Guarantor hereby represents and warrants that (i) each
of the representations and warranties with respect to the Guarantors set forth
in Article 5 of the Agreement is true and correct as to the New Guarantor
on and as of the date hereof as if made on and as of the date hereof by the New
Guarantor (except representations and warranties which relate solely to an
earlier date or time which representations and warranties shall be true and
correct in all material respects on and as of the specific date or times
referred to in said representations and warranties) and (ii) the New
Guarantor has heretofore received a true and correct copy of the Agreement and
each of the other Loan Documents (including any modifications thereof or
supplements or waivers thereto) as in effect on the date hereof.


 

















 


The New Guarantor hereby makes, affirms, and ratifies in favor of the
Banks and the Agent the Agreement, the Guaranty, the Intercompany Subordination
Agreement and each of the other Loan Documents given by the Guarantors to the
Agent and any of the Banks.


 


The New Guarantor is simultaneously delivering to the Agent the
following documents together with this Joinder required under Section 7.2.9
[Subsidiaries, Partnerships and Joint Ventures] and Section 10.18 [Joinder
of Guarantors] of the Agreement.


 




	
  Document

  	
   

  	
  Delivered

  	
   

  	
  Not

  Delivered

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Opinion of Counsel (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Officer’s Certificate (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Secretary’s Certificate (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  






 




	
  Schedule No. and
  Description

  	
   

  	
  Delivered

  	
   

  	
  Not

  Delivered

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1(P)(1) Permitted Investments (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1(P)(2) Permitted Liens (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.1 Qualifications to do Business (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.2 Capitalization and Ownership (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.3 Subsidiaries (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.7 Litigation (mandatory)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.16 Insurance Policies (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.20 Employee Benefit Plan Disclosures (if
  applicable)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.1.22 Environmental Disclosures (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 7.2.1 Permitted Indebtedness (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  






 


2

















 




	
  Schedule 7.2.3 Existing Guaranties (if applicable)

  	
   

  	
  o

  	
   

  	
  o

  






 


[Note: updates to schedules do not cure any
breach of warranties unless

expressly agreed in accordance with the terms of the Agreement.]


 


In furtherance of the foregoing, the New Guarantor shall execute and
deliver or cause to be executed and delivered at any time and from time to time
such further instruments and documents and do or cause to be done such further
acts as may be reasonably necessary or proper in the opinion of the Agent to
carry out more effectively the provisions and purposes of this Joinder and the
other Loan Documents.


 


[INTENTIONALLY LEFT BLANK]


 


3

















 


IN WITNESS WHEREOF, the New Guarantor has duly executed this Joinder
and delivered the same to the Agent for the benefit of the Banks, on the date
and year first above written.


 


	
   

  	
  [NEW GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  	
   

  
	
   

  	
  Telecopier No.:

  	
   

  	
   

  
	
   

  	
  Attn:

  	
   

  	
   

  
	
   

  	
  Email address:

  	
   

  	
   

  
							



 


 


	
  Acknowledged and accepted:

  
	
  PNC BANK, NATIONAL ASSOCIATION,

  
	
  as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
					



 

















 


ACKNOWLEDGMENT


 


STATE/COMMONWEALTH OF                                  )


                                                                                         )                             SS:


COUNTY OF                                                                  )


 


[On this, the           
day of                         ,
        , before me, a Notary Public,
the undersigned officer, personally appeared                                 ,
who acknowledged himself/herself to be the                             
of                                                     ,
a                                           
(the “Company”), and that he/she as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the Company as such officer.]


 


[On this, the           
day of                         ,
        , before me, a Notary Public,
the undersigned officer, personally appeared                               ,
an individual, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he/she
executed the same for the purposes therein contained.]


 


[On this, the          day of                   ,
        , before me, a Notary Public,
personally appeared                         
who acknowledged himself/herself to be the                                 
of                                   ,
a                         
(the “General Partner”), the general partner of                     ,
a                                       
(the “Partnership”), and that he/she, as such officer of the General Partner,
executed the foregoing instrument for the purposes therein contained by signing
his/her name on behalf of the Partnership.]


 


IN WITNESS WHEREOF, I hereunto set my hand and official seal.


 


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary Public

  	
   

  



 


 


My Commission Expires:


 

















 


EXHIBIT 1.1(G)(2)


 


FORM OF


GUARANTY AND SURETYSHIP AGREEMENT


 


IN CONSIDERATION of credit granted or to be granted by PNC Bank,
National Association (“PNC Bank”) and various other financial institutions from
time to time (PNC Bank and such other financial institutions are each a “Bank”
and collectively, the “Banks”) pursuant to that certain Credit Agreement, dated
the 31st day of January, 2006, by and among Papa John’s
International, Inc., a Delaware corporation (the “Borrower”), the
Guarantors (as defined in the Credit Agreement), RSC Insurance Services Ltd., a
Bermuda company (“RSC”), the
Banks, and PNC Bank, as Administrative Agent for the Banks (in such capacity,
the “Agent”) (as amended, modified or supplemented from time to time, the “Credit
Agreement”), intending to be legally bound hereby, and to induce the Banks to
maintain or extend credit to the Borrower and RSC (the Borrower and RSC are
each a “Debtor” and collectively, the “Debtors”), each of the undersigned
parties (individually, a “Guarantor” and collectively, the “Guarantors”), this
31st day of January, 2006, hereby jointly and severally with each of
the other Guarantors (as defined in the Credit Agreement):


 


1.                                                               Become absolute and unconditional guarantors
and sureties as though they were a primary obligor to the Agent and the Banks,
their respective successors, endorsees and assigns, for (i) the prompt
payment and performance when due (whether at maturity, by declaration,
acceleration or otherwise) of all Reimbursement Obligations (as defined in the
Credit Agreement) and all Obligations (as defined in the Credit Agreement)
including, without limitation, all extensions, modifications, renewals thereof
and substitutions therefor, whether absolute or contingent, direct or indirect,
matured or unmatured, sole, joint or several, of any nature whatsoever, without
regard to the validity, enforceability or regularity thereof including, without
limitation, continuing interest thereon in accordance with the terms thereof
and all expenses (including any reasonable costs of legal expenses) incurred by
the Agent or any Bank in enforcing any rights with regard to or collecting
against the Guarantors under this Guaranty and Suretyship Agreement (“Agreement”)
and (ii) the due and punctual performance of and/or compliance with all of
the terms, conditions and covenants contained in each of the Credit Agreement,
the Notes (as defined in the Credit Agreement) and the other Loan Documents (as
defined in the Credit Agreement) to be performed or complied with by the
Debtors and the accuracy of the Debtors’ representations and warranties
contained in each of the Loan Documents (hereinafter collectively referred to
as the “Debtor Liabilities”), whether or not such Debtor Liabilities or any
portion thereof shall hereafter be released or discharged or is for any reason
invalid or unenforceable (capitalized terms used in this Agreement that are
defined in the Credit Agreement shall have the meanings assigned to them therein
unless otherwise defined in this Agreement);


 


2.                                                               Assent to all agreements made or to be made
between the Agent or any Bank and any other Person(s) liable, either absolutely
or contingently, on any of the Debtor Liabilities, including any and all such agreements
made by the Debtors and any co-maker, endorser, pledgor, surety or guarantor
(any such Person being hereinafter referred to as an “Obligor”), and


 





















 


further agrees that the
Guarantors’ liability hereunder shall not be reduced or diminished by such
agreements in any way;


 


3.                                                               Consent and agree that their obligations and
liabilities hereunder shall in no way be reduced, limited, waived or released
if any other Person or Persons is presently or in the future becomes a surety
or guarantor in regard to the Debtor Liabilities or any other liabilities among
any Debtor, the Agent and the Banks;


 


4.                                                               Consent that the Agent and the Banks may, at
their option, without in any way affecting the Guarantors’ liability
hereunder:  (i) exchange, surrender
or release any or all collateral security of any endorsement, guaranty or
surety held by the Agent or the Banks for any of the Debtor Liabilities; (ii) renew,
extend, modify, supplement, amend, release, alter or compromise the terms of
any or all of the Debtor Liabilities; and (iii) waive or fail to perfect
the Agent’s and the Banks’ rights or remedies against any Debtor or the
collateral security for any of the Debtor Liabilities; and


 


5.                                                               Warrant that the address specified on the
signature page hereof, immediately below each Guarantor’s name, is such
Guarantor’s true and correct address, and agrees to notify the Agent, in the
manner hereinafter specified, within three (3) days after any change in
such Guarantor’s address.


 


CONTINUING
GUARANTORS.  This
Agreement shall be a continuing one and shall continue in full force and effect
until (subject to the terms and conditions of the Section of this
Agreement entitled Bankruptcy of the Debtors), all Debtor Liabilities
and all other amounts payable under the Loan Documents have been paid and
performed in full, and all Commitments have terminated.  Without limiting the generality of the
foregoing, the Guarantors hereby irrevocably waive any right to terminate or
revoke this Agreement.


 


EXTENT OF GUARANTOR’S LIABILITY.  This Agreement shall be and is intended to be
an absolute and unconditional guaranty and suretyship for the aggregate of the
Debtor Liabilities, including, but not limited to, the Indebtedness evidenced
by the Notes; provided, however that the Guarantors’ liability hereunder shall
be limited as set forth below.  The
obligations of the Guarantors under this Agreement, when construed collectively
with the obligations of (i) the Borrower under that certain Borrower/RSC
Guaranty and Suretyship Agreement, dated of even date herewith, made by the
Borrower for the benefit of the Agent and the Banks, and (ii) any other
Person that becomes a Guarantor in accordance with the terms of the Credit
Agreement, are intended to be the joint and several obligations of the
Guarantors, the Borrower and such other Persons that become Guarantors under
the Credit Agreement, and this Agreement, when construed in connection with
such other Guaranty and Suretyship Agreements, is intended to be an absolute
and unconditional guaranty and suretyship for the aggregate of the Debtor
Liabilities.


 


Subject to the remainder of this paragraph, but otherwise
notwithstanding anything to the contrary contained in this Agreement, the
maximum liability of each Guarantor under this Agreement shall not exceed the
sum of (i) that portion of the Debtor Liabilities, the proceeds of which
are used by the Debtors to make Valuable Transfers (as hereinafter defined) to
such Guarantor, plus (ii) ninety-five percent (95%) of the Adjusted Net
Worth (as hereinafter


 


2

















 


defined), but only to the extent that Adjusted Net Worth is a positive
number, of such Guarantor at the date of this Agreement.  For purposes of this paragraph:


 


“Adjusted Net Worth” shall mean, as of any
date of determination thereof, the excess of (i) the amount of the fair
saleable value of the assets of such Guarantor as of the date of such
determination, determined in accordance with applicable federal and state laws
governing determinations of insolvency of debtors, over (ii) the amount of
all liabilities of such Guarantor, contingent or otherwise, as of the date of
such determination, determined on the basis provided in the preceding clause
(i), in all events prior to giving effect to Valuable Transfers.


 


“Valuable Transfers” shall mean the Dollar
Equivalent amount of the following:  (a) all
loans, advances, other credit accommodations, or capital contributions made to
such Guarantor with proceeds of the Loans, (b) Letters of Credit
Outstanding with respect to the Letters of Credit issued to support the
obligations or Indebtedness of such Guarantor, (c) all debt securities or
other obligations or Indebtedness of such Guarantor acquired from such
Guarantor or retired, redeemed, purchased or acquired by such Guarantor with
proceeds of any Loans or of any Letters of Credit issued to support the
obligations or Indebtedness of such Guarantor, (d) all equity securities
of such Guarantor acquired from such Guarantor with the proceeds of any Loans
or of any drawings on Letters of Credit issued to support the obligations of
such Guarantor, (e) the fair market value of all property acquired with
proceeds of the Loans or of any drawings on Letters of Credit issued to support
the obligations or Indebtedness of such Guarantor and transferred to such
Guarantor, (f) the interest on and the fees in respect of the Loans, the
proceeds of which are used to make such a Valuable Transfer, and (g) the
value of any quantifiable economic benefits not included in clauses (a) through
(f) above, but includable in accordance with applicable federal and state
Laws governing determinations of the insolvency of debtors, accruing to such
Guarantor as a result of the Loans or the Letters of Credit Outstanding.


 


The Guarantors agree that the Debtor Liabilities may at any time and
from time to time exceed the maximum liability of the Guarantors hereunder
without impairing this Agreement or affecting the rights and remedies of the
Agent and the Banks hereunder.  No
payment or payments made by the Debtors or any other Person or received or
collected by the Agent or any Bank from the Debtors, the Guarantors or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Debtor Liabilities shall be deemed to modify, reduce,
release or otherwise affect the liability of the Guarantors under this
Agreement, and the Guarantors shall, notwithstanding any such payment or
payments (other than payments made to the Agent or any Bank by the Guarantors
or payments received or collected by the Agent or any Bank from the
Guarantors), remain liable for the Debtor Liabilities up to the maximum
liability amount of the Guarantors set forth in this paragraph until the Debtor
Liabilities are indefeasibly paid in full in cash, the Commitments are
terminated according to the terms of the Credit Agreement and all Letters of
Credit have either expired or have been cancelled and all Bank-Provided Hedges
have either expired or have been canceled; provided, however,
that, anything herein to the contrary notwithstanding, in no event shall the
Guarantors’ liability under this paragraph exceed the maximum amount that,
after giving effect to the incurring of the obligations hereunder and to


 


3

















 


any rights to contribution of the Guarantors from the Debtors and other
Affiliates of the Debtors, would not render the Agent’s and the Banks’ right to
payment hereunder void, voidable or avoidable under any applicable fraudulent
transfer law; and further provided that if a greater amount of the Debtor
Liabilities than the maximum liability set forth in this paragraph could be
repaid by the Guarantors as a result of an increase in any Guarantor’s Adjusted
Net Worth subsequent to the date of this Agreement, without rendering the Agent’s
and the Banks’ right to payment hereunder void, voidable or avoidable under any
applicable fraudulent transfer law, then the amount of such Guarantor’s maximum
liability calculated in the first sentence of this paragraph shall be
calculated based upon such Guarantor’s Adjusted Net Worth on such later date,
rather than the date of execution of this Agreement.


 


UNCONDITIONAL
LIABILITY.  The
Guarantors’ liability hereunder is absolute and unconditional and shall not be
reduced, limited, waived, or released in any way by reason of:  (i) any failure of the Agent or any Bank
to obtain, retain, preserve, perfect or enforce any rights against any Person
(including without limitation, any Obligor) or in any property securing any or
all of the Debtor Liabilities; (ii) the invalidity or irregularity of any
such rights that the Agent and the Banks may attempt to obtain; (iii) any
delay in enforcing or any failure to enforce such rights, even if such rights
are thereby lost; (iv) any delay in making demand on any Obligor for
payment or performance of any or all of the Debtor Liabilities; or (v) from
time to time, the payment in full and subsequent incurring of any Debtor Liabilities.


 


RIGHT OF SET-OFF.  If any liability of any Guarantor hereunder
is not paid to the Agent when due, the Agent and the Banks may forthwith, at
any time and from time to time without notice to any Guarantor, any right to
such notice being hereby expressly waived by each Guarantor: set-off,
appropriate and apply against the liabilities of the Guarantors hereunder (i) any
and all deposits (general or special, time or demand, provisional or final,
excluding, however, trust accounts for Benefit Arrangements), in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held by the Agent or any Bank, not to exceed the amount
then due, as the Agent or such Bank may elect, whether or not the Agent or such
Bank shall have made any demand for payment and (ii) any and all moneys
owed by the Agent or any Bank to any Guarantor in any capacity, whether or not
then due, and whether provisionally or finally credited upon the Agent’s and
the Banks’ books and records.


 


WAIVER.  The Guarantors hereby waive all notice with
respect to the present existence or future incurrence of any Debtor Liabilities
including, but not limited to, the amount, terms and conditions thereof.  The Guarantors hereby consent to the taking
of, or failure to take, from time to time, any action of any nature whatsoever
permitted by Law with respect to the Debtor Liabilities and with respect to any
rights against any Person or Persons (including, without limitation, any
Obligor), or in any property including, without limitation, any renewals,
extensions, modifications, postponements, compromises, indulgences, waivers,
surrenders, exchanges and releases, and the Guarantors will remain fully liable
hereunder notwithstanding any or all of the foregoing.  The granting of an express written release of
any Guarantor’s liability hereunder or any other Obligor’s liability shall be
effective only with respect to the liability hereunder of such Guarantor or
Obligor who is specifically so expressly released but shall in no way affect
the liability hereunder of such Guarantor or any Obligor not so expressly
released.  The dissolution of any
Guarantor, or any other Obligor, shall in no way affect the liability hereunder
or that of any other Obligor.  The Guarantors
hereby expressly waive:  (i)


 


4

















 


notices of
acceptance hereof; (ii) any presentment, demand, protest, notice of
default in connection with the Debtor Liabilities, dishonor or notice of
dishonor; (iii) any right of indemnification; and (iv) any defense
arising by reason of any disability or other defense whatsoever to the
liability of the Debtors, or any other circumstance which might otherwise
constitute a defense available to, or in discharge of, the Guarantors with
respect to their obligations hereunder.


 


No payment by any
Guarantor shall entitle any other Obligor, by subrogation, contribution,
indemnification or otherwise, to succeed to any to the rights of the Agent and
the Banks, including rights to any payment made on account of the Debtor
Liabilities, regardless of the source of such payment until all of the Debtors’
obligations to the Agent and the Banks under the Loan Documents are satisfied
in full and are not subject to any right of disgorgement.  The Guarantors hereby waive any benefit of
and any right to participate in any collateral security now or hereafter held
by the Agent and the Banks or any failure or refusal by the Agent and the Banks
to perfect an interest in any collateral security.


 


BANKRUPTCY OF A
DEBTOR.  Neither the
Guarantors’ obligations to make payment in accordance with the terms of this
Agreement nor any remedy for the enforcement hereof shall be impaired,
modified, changed, released or limited in any manner whatsoever by any Debtor’s
bankruptcy or by any impairment, modification, change, release or limitation of
(i) the liability of any Debtor, any Person assuming the obligations of
any Debtor under the Credit Agreement or any of the other Loan Documents or any
Debtor’s estate in bankruptcy or (ii) any remedy for the enforcement of
the Debtor Liabilities, either of which result from the operation of any
present or further provision of any bankruptcy act, Law or equitable cause or
from the decision of any court.  The
Guarantors agree that to the extent that a Debtor or any other Obligor makes a
payment or payments to the Agent or any Bank, which payment or payments or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be paid to a trustee, receiver or
any other Person under any bankruptcy act, Law or equitable cause, then to the
extent of such payment, the Debtor Liabilities or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if said
payment had not been made.


 


PAYMENT OF COSTS.  In addition to all other liabilities of the
Guarantors hereunder, the Guarantors also agree to pay to the Agent on demand
all reasonable costs and expenses (including reasonable attorneys’ fees and
legal expenses) which may be incurred in the enforcement or collection of the
liabilities of the Guarantors hereunder.


 


PRIMARY LIABILITY
OF THE GUARANTORS.  The
Guarantors agree that this Agreement may be enforced by the Agent and the Banks
without the necessity at any time of resorting to or exhausting any other
security or collateral and without the necessity at any time of having recourse
to the Credit Agreement and the other Loan Documents, or any collateral now or
hereafter securing the Debtor Liabilities or otherwise, and the Guarantors
hereby waive the right to require the Agent and the Banks to proceed against
any other Obligor or to require the Agent and the Banks to pursue any other
remedy or enforce any other right.  The
Guarantors further agree that nothing contained herein shall prevent the Agent
and the Banks from suing on the Credit Agreement and the other Loan Documents,
or any of them, or foreclosing their Lien, if any, on any collateral hereafter
securing the Debtor Liabilities or from exercising any other


 


5

















 


rights available
under the Credit Agreement and the other Loan Documents, or any other
instrument of security if neither the Debtors nor the Guarantors satisfy the
Debtor Liabilities thereunder, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any of the obligations of the Guarantors thereunder; it being the
purpose and intent of the Guarantors that the obligations of the Guarantors
hereunder shall be absolute, independent and unconditional.  Neither the obligations of the Guarantors
under this Agreement nor any remedy for the enforcement thereof shall be impaired,
modified, changed or released in any manner whatsoever by an impairment,
modification, change, release or limitation of the liability of the Debtors or
by reason of the bankruptcy or insolvency of any Debtor.  If acceleration of the time for payment of
any amount payable by each Debtor is stayed upon the insolvency or bankruptcy
of such Debtor, amounts otherwise subject to acceleration under the terms of
the Credit Agreement and the other Loan Documents including, without
limitation, interest at the rates set forth in the Credit Agreement occurring
after the date of such bankruptcy or insolvency, shall nonetheless be payable
by the Guarantors hereunder forthwith on demand by the Agent.  The Guarantors acknowledge that the term “Debtor
Liabilities” as used herein includes any payments made by the Debtors to the
Agent or the Banks and subsequently recovered by the Debtors or a trustee for
any Debtor pursuant to bankruptcy or insolvency proceedings.


 


ACCELERATION OF
THE GUARANTORS’ LIABILITIES. 
Upon the occurrence of any of the following events, all of the Debtor
Liabilities, at the Agent’s and the Banks’ option, shall be deemed to be
forthwith due and payable for the purposes of this Agreement and for
determining the liability of the Guarantors hereunder, whether or not the Agent
and the Banks have any such rights against any other Obligor, and whether or
not the Agent and the Banks elect to exercise any rights or remedies against
any other Person or property including, without limitation, any other
Obligor:  (1) the failure of any
Guarantor to perform any covenant or obligation hereunder; (2) the
occurrence of an Event of Default under the Credit Agreement; (3) except
as otherwise permitted pursuant to the terms of the Credit Agreement, the sale
of all or substantially all of the assets, or change in ownership, or the
dissolution, merger, consolidation or reorganization of any Guarantor; (4) any
information or signature heretofore or hereafter furnished to the Agent or any
Bank by any Guarantor, or delivered to the Agent or any Bank by an Obligor in
connection with any of the Debtor Liabilities, is materially false or incorrect
at the time when made; or (5) the failure of any Guarantor or any Obligor
to furnish the Agent and the Banks such financial and other information as
required by the Loan Documents.


 


RIGHTS OF THE
GUARANTORS.  All rights
and remedies of the Guarantors against the Debtors or any property of the
Debtors or any collateral security for any of the Debtor Liabilities, whether
arising by promissory note, subrogation, security agreement, mortgage or
otherwise, shall in all respects be and remain subordinate and junior in right
of payment and priority to the prior and indefeasible payment in full to the
Agent and the Banks of all Debtor Liabilities and to the priority of the Agent and
the Banks in any property of the Debtors and any collateral security for any of
the Debtor Liabilities.  Any amount which
may have been paid to the Guarantors on account of any Indebtedness of the
Debtors to the Guarantors, or on account of any subrogation or other rights of
the Guarantors against the Debtors, when all of the Debtor Liabilities shall
not have been indefeasibly paid in full, shall be held by the undersigned in
trust for the benefit of the Banks and shall forthwith be paid to the Agent to
be credited and applied upon the Debtor Liabilities, whether matured or
unmatured.


 


6

















 


NOTICE TO THE AGENT AND THE BANKS BY THE GUARANTORS.  Any notice to the Agent or the Banks by the
Guarantors pursuant to the provisions hereof shall be given as provided in the
Credit Agreement and such notice shall be effective as provided in the Credit
Agreement.


 


Notice by the
Guarantors shall not, in any way, reduce, diminish or release the liability of
any other Obligor.  In the event that
this Agreement is preceded or followed by any other guaranty or surety
agreement(s) regarding the Debtors or any other Person, all rights granted to
the Agent and the Banks in such agreement(s) shall be deemed to be cumulative
and this Agreement shall not, in such event, be deemed to be cancelled,
superseded, terminated or in any way limited.


 


COUNTERPARTS.  This
Agreement may be signed in any number of counterpart copies and by the parties
hereto on separate counterparts, but all such copies shall constitute one and
the same instrument.  Delivery of an
executed counterpart of signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed
counterpart.  Any party so executing this
Agreement by facsimile transmission shall promptly deliver a manually executed
counterpart, provided that any failure to do so shall not affect the validity
of the counterpart executed by facsimile transmission.


 


MISCELLANEOUS.  This Agreement shall be binding upon the
Guarantors and the Guarantors’ successors and assigns, and shall inure to the
benefit of the Agent and the Banks, their respective endorsers, successors and
assigns forever.  If any provision of
this Agreement shall for any reason be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provision
hereof, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.  All matters arising hereunder shall be
governed by the Laws of the State of New York without regard to the conflicts
of laws thereof, and the parties hereto agree to the jurisdiction and venue of
the Supreme Court of New York County and the United States District Court for
the Southern District of New York with respect to any suit arising in
connection herewith.


 


WAIVER OF
TRIAL BY JURY.  THE
UNDERSIGNED HEREBY EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL BENEFIT AND
ADVANTAGE OF ANY RIGHT TO A TRIAL BY JURY, AND THEY WILL NOT AT ANY TIME INSIST
UPON, OR PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION ARISING IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.


 


[INTENTIONALLY LEFT BLANK]


 


7

















 


IN WITNESS
WHEREOF, the undersigned Guarantors, intending to be legally bound, have
executed and delivered this Agreement on the day and year first above written.


 


	
  WITNESS:

  	
  PAPA JOHN’S USA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
  PAPA JOHN’S SUPPORT SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
  CAPITAL DELIVERY, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 

















 


	
  WITNESS:

  	
  RISK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
  PJ FOOD SERVICE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
								



 






 













 


EXHIBIT 1.1(G)(3)


 


FORM OF


BORROWER/RSC GUARANTY AND SURETYSHIP
AGREEMENT


 


IN CONSIDERATION of credit granted or to be granted by PNC Bank,
National Association (“PNC Bank”) and various other financial institutions from
time to time (PNC Bank and such other financial institutions are each a “Bank”
and collectively, the “Banks”) pursuant to that certain Credit Agreement, dated
the 31st day of January, 2006, by and among Papa John’s
International, Inc., a Delaware corporation, as Borrower, the Guarantors
(as defined in the Credit Agreement), RSC Insurance Services Ltd., a Bermuda
company (“RSC”), the Banks and PNC Bank, as Administrative Agent for the Banks
(in such capacity, the “Agent”) (as amended, modified or supplemented from time
to time, the “Credit Agreement”), intending to be legally bound hereby, and to
induce the Banks to issue letters of credit for the account of RSC (the “Debtor”),
Papa John’s International, Inc. a Delaware corporation (the “Borrower/RSC
Guarantor”), this 31st day of January, 2006, hereby jointly and
severally with each of the Guarantors (as defined in the Credit Agreement):


 


1.                                       Becomes an
absolute and unconditional guarantor and surety as though it were a primary
obligor to the Agent and the Banks, their respective successors, endorsees and
assigns, for (i) the prompt payment and performance when due (whether at
maturity, by declaration, acceleration or otherwise) of all Reimbursement
Obligations (as defined in the Credit Agreement) of the Debtor and all other
Obligations (as defined in the Credit Agreement) of the Debtor including,
without limitation, all extensions, modifications, renewals thereof and
substitutions therefor, whether absolute or contingent, direct or indirect,
matured or unmatured, sole, joint or several, of any nature whatsoever, without
regard to the validity, enforceability or regularity thereof including, without
limitation, continuing interest thereon in accordance with the terms thereof
and all expenses (including any reasonable costs of legal expenses) incurred by
the Agent or any Bank in enforcing any rights with regard to or collecting
against the Borrower/RSC Guarantor under this Guaranty and Suretyship Agreement
(“Agreement”) and (ii) the due and punctual performance of and/or
compliance with all of the terms, conditions and covenants contained in the
Credit Agreement to be performed or complied with by the Debtor and the
accuracy of the Debtor’s representations and warranties contained in each of
the Loan Documents (hereinafter collectively referred to as the “Debtor
Liabilities”), whether or not such Debtor Liabilities or any portion thereof
shall hereafter be released or discharged or is for any reason invalid or
unenforceable (capitalized terms used in this Agreement that are defined in the
Credit Agreement shall have the meanings assigned to them therein unless
otherwise defined in this Agreement);


 


2.                                       Assents to all
agreements made or to be made between the Agent or any Bank and any other
Person(s) liable, either absolutely or contingently, on any of the Debtor
Liabilities, including any and all such agreements made by the Debtor and any
co-maker, endorser, pledgor, surety or guarantor (any such Person being
hereinafter referred to as an “Obligor”), and further agrees that the
Borrower/RSC Guarantor’s liability hereunder shall not be reduced or diminished
by such agreements in any way;


 

















 


3.                                       Consents
and agrees that its obligations and liabilities hereunder shall in no way be
reduced, limited, waived or released if any other Person or Persons is presently
or in the future becomes a surety or guarantor in regard to the Debtor
Liabilities or any other liabilities among the Debtor, the Agent and the Banks;


 


4.                                       Consents
that the Agent and the Banks may, at their option, without in any way affecting
the Borrower/RSC Guarantor’s liability hereunder:  (i) exchange, surrender or release any
or all collateral security of any endorsement, guaranty or surety held by the
Agent or the Banks for any of the Debtor Liabilities; (ii) renew, extend,
modify, supplement, amend, release, alter or compromise the terms of any or all
of the Debtor Liabilities; and (iii) waive or fail to perfect the Agent’s
and the Banks’ rights or remedies against the Debtor or the collateral security
for any of the Debtor Liabilities; and


 


5.                                       Warrants
that the address specified on the signature page hereof, immediately below
the Borrower/RSC Guarantor’s name, is the Borrower/RSC Guarantor’s true and
correct address, and agrees to notify the Agent, in the manner hereinafter
specified, within three (3) days after any change in the Borrower/RSC
Guarantor’s address.


 


CONTINUING
GUARANTOR.  This
Agreement shall be a continuing one and shall continue in full force and effect
until (subject to the terms and conditions of the Section of this
Agreement entitled Bankruptcy of the Debtor), all Debtor Liabilities and
all other amounts payable under the Credit Agreement have been paid and
performed in full, and all Commitments thereunder have terminated.  Without limiting the generality of the
foregoing, the Borrower/RSC Guarantor hereby irrevocably waives any right to
terminate or revoke this Agreement.


 


EXTENT OF THE BORROWER/RSC GUARANTOR’S LIABILITY.  This Agreement shall be and is intended to be
an absolute and unconditional guaranty and suretyship for the aggregate of the
Debtor Liabilities.  The Agent may apply
any payment received on account of the Debtor Liabilities in such order as the
Banks, in their sole discretion, may elect. 
The obligations of the Borrower/RSC Guarantor under this Agreement, when
construed collectively with the obligations of (i) the Guarantors under
that certain Guaranty and Suretyship Agreement, dated of even date herewith,
and made by the Guarantors for the benefit of the Agent and the Banks, and (ii) any
other Person that becomes a Guarantor in accordance with the terms of the
Credit Agreement, are intended to be the joint and several obligations of the
Borrower/RSC Guarantor, the Guarantors and such other Persons that become
Guarantors under the Credit Agreement, and this Agreement, when construed in
connection with such other Guaranty and Suretyship Agreements, is intended to
be an absolute and unconditional guaranty and suretyship for the aggregate of
the Debtor Liabilities.


 


UNCONDITIONAL
LIABILITY.  The
Borrower/RSC Guarantor’s liability hereunder is absolute and unconditional and
shall not be reduced, limited, waived, or released in any way by reason
of:  (i) any failure of the Agent or
any Bank to obtain, retain, preserve, perfect or enforce any rights against any
Person (including without limitation, any Obligor) or in any property securing
any or all of the Debtor Liabilities; (ii) the invalidity or irregularity
of any such rights that the Agent and the Banks may attempt to obtain; (iii) any
delay in enforcing or any failure to enforce such rights, even if such rights
are thereby lost; (iv) any delay in making demand on any


 


2

















 


Obligor for
payment or performance of any or all of the Debtor Liabilities; or (v) from
time to time, the payment in full and subsequent incurring of any Debtor
Liabilities.


 


RIGHT OF SET-OFF.  If any liability of the Borrower/RSC
Guarantor hereunder is not paid to the Agent when due, the Agent and the Banks
may forthwith, at any time and from time to time without notice to the
Borrower/RSC Guarantor, any right to such notice being hereby expressly waived
by the Borrower/RSC Guarantor: set-off, appropriate and apply against the
liabilities of the Borrower/RSC Guarantor hereunder (i) any and all
deposits (general or special, time or demand, provisional or final, excluding,
however, trust accounts for Benefit Arrangements), in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held by the Agent or any Bank, not to exceed the amount then due,
as the Agent or such Bank may elect, whether or not the Agent or such Bank
shall have made any demand for payment and (ii) any and all moneys owed by
the Agent or any Bank to the Borrower/RSC Guarantor in any capacity, whether or
not then due, and whether provisionally or finally credited upon the Agent’s
and the Banks’ books and records.


 


WAIVER.  The Borrower/RSC Guarantor hereby waives all
notice with respect to the present existence or future incurrence of any Debtor
Liabilities including, but not limited to, the amount, terms and conditions
thereof.  The Borrower/RSC Guarantor
hereby consents to the taking of, or failure to take, from time to time, any
action of any nature whatsoever permitted by Law with respect to the Debtor
Liabilities and with respect to any rights against any Person or Persons
(including, without limitation, any Obligor), or in any property including,
without limitation, any renewals, extensions, modifications, postponements,
compromises, indulgences, waivers, surrenders, exchanges and releases, and the
Borrower/RSC Guarantor will remain fully liable hereunder notwithstanding any
or all of the foregoing.  The granting of
an express written release of the Borrower/RSC Guarantor’s liability hereunder
or any other Obligor’s liability shall be effective only with respect to the
liability hereunder of the Borrower/RSC Guarantor or Obligor who is
specifically so expressly released but shall in no way affect the liability
hereunder of the Borrower/RSC Guarantor or any Obligor not so expressly
released.  The dissolution of the
Borrower/RSC Guarantor, or any other Obligor, shall in no way affect the
liability hereunder or that of any other Obligor.  The Borrower/RSC Guarantor hereby expressly
waives:  (i) notices of acceptance
hereof; (ii) any presentment, demand, protest, notice of default in
connection with the Debtor Liabilities, dishonor or notice of dishonor; (iii) any
right of indemnification; and (iv) any defense arising by reason of any
disability or other defense whatsoever to the liability of the Debtor, or any
other circumstance which might otherwise constitute a defense available to, or
in discharge of, the Borrower/RSC Guarantor with respect to its obligations
hereunder.


 


No payment by the
Borrower/RSC Guarantor shall entitle any other Obligor, by subrogation,
contribution, indemnification or otherwise, to succeed to any of the rights of
the Agent and the Banks, including rights to any payment made on account of the
Debtor Liabilities, regardless of the source of such payment until all of the
Debtor’s obligations to the Agent and the Banks under the Credit Agreement are
satisfied in full and are not subject to any right of disgorgement.  The Borrower/RSC Guarantor hereby waives any
benefit of and any right to participate in any collateral security now or
hereafter held by the Agent and the Banks or any failure or refusal by the
Agent and the Banks to perfect an interest in any collateral security.


 


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BANKRUPTCY OF THE
DEBTOR.  Neither the
Borrower/RSC Guarantor’s obligations to make payment in accordance with the
terms of this Agreement nor any remedy for the enforcement hereof shall be
impaired, modified, changed, released or limited in any manner whatsoever by
the Debtor’s bankruptcy or by any impairment, modification, change, release or
limitation of (i) the liability of the Debtor, any Person assuming the
obligations of the Debtor under the Credit Agreement or the Debtor’s estate in
bankruptcy or (ii) any remedy for the enforcement of the Debtor
Liabilities, either of which result from the operation of any present or
further provision of any bankruptcy act, Law or equitable cause or from the
decision of any court.  The Borrower/RSC
Guarantor agrees that to the extent that the Debtor or any other Obligor makes
a payment or payments to the Agent or any Bank, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be paid to a trustee, receiver or
any other Person under any bankruptcy act, Law or equitable cause, then to the
extent of such payment, the Debtor Liabilities or part thereof intended to be
satisfied shall be revived and continued in full force and effect as if said
payment had not been made.


 


PAYMENT OF COSTS.  In addition to all other liabilities of the
Borrower/RSC Guarantor hereunder, the Borrower/RSC Guarantor also agrees to pay
to the Agent on demand all reasonable costs and expenses (including reasonable
attorneys’ fees and legal expenses) which may be incurred in the enforcement or
collection of the liabilities of the Borrower/RSC Guarantor hereunder.


 


PRIMARY LIABILITY
OF THE BORROWER/RSC GUARANTOR.  The Borrower/RSC Guarantor agrees that this
Agreement may be enforced by the Agent and the Banks without the necessity at
any time of resorting to or exhausting any other security or collateral and
without the necessity at any time of having recourse to the Credit Agreement,
or any collateral now or hereafter securing the Debtor Liabilities or
otherwise, and the Borrower/RSC Guarantor hereby waives the right to require
the Agent and the Banks to proceed against any other Obligor or to require the
Agent and the Banks to pursue any other remedy or enforce any other right.  The Borrower/RSC Guarantor further agrees
that nothing contained herein shall prevent the Agent and the Banks from suing
on the Credit Agreement, or any of them, or foreclosing their Lien, if any, on
any collateral hereafter securing the Debtor Liabilities or from exercising any
other rights available under the Credit Agreement, or any other instrument of
security if neither the Debtor nor the Borrower/RSC Guarantor satisfy the
Debtor Liabilities thereunder, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any of the obligations of the Borrower/RSC Guarantor thereunder;
it being the purpose and intent of the Borrower/RSC Guarantor that the obligations
of the Borrower/RSC Guarantor hereunder shall be absolute, independent and
unconditional.  Neither the obligations
of the Borrower/RSC Guarantor under this Agreement nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Debtor or by reason of the bankruptcy or insolvency of
the Debtor.  If acceleration of the time
for payment of any amount payable by the Debtor is stayed upon the insolvency
or bankruptcy of the Debtor, amounts otherwise subject to acceleration under
the terms of the Credit Agreement including, without limitation, interest at
the rates set forth in the Credit Agreement occurring after the date of such
bankruptcy or insolvency, shall nonetheless be payable by the Borrower/RSC
Guarantor hereunder forthwith on demand by the


 


4

















 


Agent.  The Borrower/RSC Guarantor acknowledges that
the term “Debtor Liabilities” as used herein includes any payments made by the
Debtor to the Agent or the Banks and subsequently recovered by the Debtor or a
trustee for the Debtor pursuant to bankruptcy or insolvency proceedings.


 


ACCELERATION OF
THE BORROWER/RSC GUARANTOR’S LIABILITIES.  Upon the occurrence of any of the following
events, all of the Debtor Liabilities, at the Agent’s and the Banks’ option,
shall be deemed to be forthwith due and payable for the purposes of this
Agreement and for determining the liability of the Borrower/RSC Guarantor
hereunder, whether or not the Agent and the Banks have any such rights against
any other Obligor, and whether or not the Agent and the Banks elect to exercise
any rights or remedies against any other Person or property including, without
limitation, any other Obligor:  (1) the
failure of the Borrower/RSC Guarantor to perform any covenant or obligation
hereunder; (2) the occurrence of an Event of Default under the Credit
Agreement; (3) except as otherwise permitted pursuant to the terms of the
Credit Agreement, the sale of all or substantially all of the assets, or change
in ownership, or the dissolution, merger, consolidation or reorganization of
any Guarantor; (4) any information or signature heretofore or hereafter
furnished to the Agent or any Bank by the Borrower/RSC Guarantor, or delivered
to the Agent or any Bank by an Obligor in connection with any of the Debtor
Liabilities, is materially false or incorrect at the time when made; or (5) the
failure of the Borrower/RSC Guarantor or any Obligor to furnish the Agent and
the Banks such financial and other information as required by the Loan
Documents.


 


RIGHTS OF THE
BORROWER/RSC GUARANTOR. 
All rights and remedies of the Borrower/RSC Guarantor against the Debtor
or any property of the Debtor or any collateral security for any of the Debtor
Liabilities, whether arising by promissory note, subrogation, security
agreement, mortgage or otherwise, shall in all respects be and remain
subordinate and junior in right of payment and priority to the prior and
indefeasible payment in full to the Agent and the Banks of all Debtor
Liabilities and to the priority of the Agent and the Banks in any property of
the Debtor and any collateral security for any of the Debtor Liabilities.  Any amount which may have been paid to the
Borrower/RSC Guarantor on account of any Indebtedness of the Debtor to the
Borrower/RSC Guarantor, or on account of any subrogation or other rights of the
Borrower/RSC Guarantor against the Debtor, when all of the Debtor Liabilities
shall not have been indefeasibly paid in full, shall be held by the undersigned
in trust for the benefit of the Banks and shall forthwith be paid to the Agent
to be credited and applied upon the Debtor Liabilities, whether matured or
unmatured.


 


NOTICE TO THE AGENT AND THE BANKS BY THE BORROWER/RSC GUARANTOR.  Any notice to the Agent or the Banks by the
Borrower/RSC Guarantor pursuant to the provisions hereof shall be given as
provided in the Credit Agreement and such notice shall be effective as provided
in the Credit Agreement.


 


Notice by the
Borrower/RSC Guarantor shall not, in any way, reduce, diminish or release the
liability of any other Obligor.  In the
event that this Agreement is preceded or followed by any other guaranty or
surety agreement(s) regarding the Debtor or any other Person, all rights
granted to the Agent and the Banks in such agreement(s) shall be deemed to be
cumulative and this Agreement shall not, in such event, be deemed to be
cancelled, superseded, terminated or in any way limited.


 


5

















 


MISCELLANEOUS.  This Agreement shall be binding upon the
Borrower/RSC Guarantor and the Borrower/RSC Guarantor’s successors and assigns
and shall inure to the benefit of the Agent and the Banks, their respective
endorsers, successors and assigns forever. 
If any provision of this Agreement shall for any reason be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, but this Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.  All matters arising hereunder shall be
governed by the Laws of the State of New York without regard to the conflicts of
laws thereof, and the parties hereto agree to the jurisdiction and venue of the
Supreme Court of New York County and the United States District Court for the
Southern District of New York with respect to any suit arising in connection
herewith.


 


WAIVER OF
TRIAL BY JURY.  THE
UNDERSIGNED HEREBY EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVES ALL BENEFIT AND
ADVANTAGE OF ANY RIGHT TO A TRIAL BY JURY, AND IT WILL NOT AT ANY TIME INSIST
UPON, OR PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION ARISING IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.


 


[INTENTIONALLY LEFT BLANK]


 


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IN WITNESS
WHEREOF, the undersigned, intending to be legally bound, has executed and
delivered this Agreement on the day and year first above written.


 


 


	
  WITNESS:

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (SEAL)

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
									



 

















 


EXHIBIT 1.1(I)


 


FORM OF


INTERCOMPANY SUBORDINATION AGREEMENT


 


THIS INTERCOMPANY SUBORDINATION AGREEMENT (the “Agreement”)
is dated the 31st day of January, 2006 and is made by and among the
entities listed on the signature page hereto (or subsequently joining this
Agreement) (each being individually referred to herein as a “Company” and
collectively as the “Companies”).


 


WITNESSETH THAT:


 


WHEREAS, each capitalized term used herein shall,
unless otherwise defined herein, have the meaning specified in the Credit
Agreement, dated the 31st day of January, 2006 (as it may be
hereafter amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among Papa John’s International, Inc.,
a Delaware corporation (the “Borrower”), the Guarantors party thereto, RSC
Insurance Services Ltd., a Bermuda company, the Banks party thereto (the “Banks”)
and PNC Bank, National Association, as administrative agent (the “Agent”) for
the Banks; and


 


WHEREAS, pursuant to the Credit Agreement and the
other Loan Documents, the Banks intend to make Loans to the Borrower; and


 


WHEREAS, the Companies are or may become indebted to
each other (the Indebtedness of each of the Companies to any other Company, now
existing or hereafter incurred (whether created directly or acquired by
assignment or otherwise), and interest and premiums, if any, thereon and other
amounts payable in respect thereof are hereinafter collectively referred to as
the “Intercompany Indebtedness”); and


 


WHEREAS, the obligations of the Banks to maintain the
Commitments and make Loans to the Borrower from time to time are subject to the
condition, among others, that the Companies subordinate the Intercompany
Indebtedness to the Indebtedness and all other Obligations of the Borrower or
any other Company to the Agent or the Banks or any Affiliate of any Bank pursuant
to the Credit Agreement or the other Loan Documents (collectively, the “Senior
Debt”) in the manner set forth herein.


 


NOW, THEREFORE, intending to be legally bound hereby,
the parties hereto covenant and agree as follows:


 


1.                                       Intercompany Indebtedness Subordinated to
Senior Debt.  The recitals set forth above are hereby
incorporated by reference.  All
Intercompany Indebtedness shall be subordinate and subject in right of payment
to the prior indefeasible payment in full of all Senior Debt pursuant to the
provisions contained herein.


 


2.                                       Payment Over of Proceeds Upon Dissolution,
Etc.  Upon any distribution of assets of any
Company in the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection


 

















 


therewith,
relative to any such Company or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of any such Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
marshalling of assets and liabilities of any such Company (a Company
distributing assets as set forth herein being referred to in such capacity as a
“Distributing Company”), then and in any such event, the Agent shall be
entitled to receive, for the benefit of the Agent and the Banks as their
respective interests may appear, indefeasible payment in full of all amounts
due or to become due (whether or not an Event of Default has occurred under the
terms of the Loan Documents or the Senior Debt has been declared due and
payable prior to the date on which it would otherwise have become due and
payable) on or in respect of any and all Senior Debt before the holder of any
Intercompany Indebtedness owed by the Distributing Company is entitled to
receive any payment on account of the principal of or interest on such
Intercompany Indebtedness, and to that end, the Agent shall be entitled to
receive, for application to the payment of the Senior Debt, any payment or
distribution of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Intercompany Indebtedness
owed by the Distributing Company in any such case, proceeding, dissolution,
liquidation or other winding up event.


 


If, notwithstanding the foregoing provisions of this
Section, a Company which is owed Intercompany Indebtedness by a Distributing
Company shall have received any payment or distribution of assets from the
Distributing Company of any kind or character, whether in cash, property or
securities, then and in such event such payment or distribution shall be held
in trust for the benefit of the Agent and the Banks as their respective
interests may appear, shall be segregated from other funds and property held by
such Company, and shall be forthwith paid over to the Agent in the same form as
so received (with any necessary endorsement) to be applied (in the case of
cash) to or held as collateral (in the case of noncash property or securities)
for the payment or prepayment of the Senior Debt in accordance with the terms
of the Credit Agreement.


 


3.                                       No Commencement of Any Proceeding.  Each
Company agrees that, so long as the Senior Debt shall remain unpaid, it will
not commence, or join with any creditor other than the Banks and the Agent in
commencing any proceeding referred to in the first paragraph of Section 2
against any other Company which owes it any Intercompany Indebtedness.


 


4.                                       Prior Payment of Senior Debt Upon
Acceleration of Intercompany Indebtedness.  If any
portion of the Intercompany Indebtedness owed by any Company becomes or is
declared due and payable before its stated maturity, then and in such event the
Agent and the Banks shall be entitled to receive indefeasible payment in full
of all amounts due and to become due on or in respect of the Senior Debt
(whether or not an Event of Default has occurred under the terms of the Loan
Documents or the Senior Debt has been declared due and payable prior to the
date on which it would otherwise have become due and payable) before the holder
of any such Intercompany Indebtedness is entitled to receive any payment
thereon.


 


If, notwithstanding the foregoing, any Company shall
make any payment of Intercompany Indebtedness prohibited by the foregoing
provisions of this Section, such payment shall be paid over and delivered
forthwith to the Agent, for the benefit of the Agent and the Banks as their
respective interests may appear.


 


2

















 


The provisions of this Section shall not apply
to any payment with respect to which Section 2 hereof would be applicable.


 


5.                                       No Payment When Senior Debt in Default.  If
any Event of Default shall have occurred and be continuing, or such an Event of
Default or Potential Default would result from or exist after giving effect to
a payment with respect to any portion of the Intercompany Indebtedness, unless
the Required Banks shall have consented to or waived the same, so long as any
of the Senior Debt shall remain outstanding, no payment shall be made by any
Company owing such Intercompany Indebtedness on account of principal or
interest on any portion of the Intercompany Indebtedness.


 


If, notwithstanding the foregoing, any Company shall
make any payment of the Intercompany Indebtedness to another Company prohibited
by the foregoing provisions of this Section, such payment shall be paid over
and delivered forthwith to the Agent, for the benefit of the Agent and the
Banks as their respective interests may appear.


 


The provisions of this Section shall not apply
to any payment with respect to which Section 2 hereof would be applicable.


 


6.                                       Payment Permitted if No Default. 
Nothing contained in this Agreement shall prevent any of the Companies,
at any time except during the pendency of any of the conditions described in
Sections 2, 4 and 5, from making payments at any time of principal of or
interest on any portion of the Intercompany Indebtedness, or the retention
thereof by any of the Companies of any money deposited with them for the
payment of or on account of the principal of or interest on the Intercompany
Indebtedness.


 


7.                                       Rights of Subrogation.  Each
Company agrees that no payment or distribution to the Agent or the Banks pursuant
to the provisions of this Agreement shall entitle it to exercise any rights of
subrogation in respect thereof until the Senior Debt shall have been
indefeasibly paid in full and the Commitments shall have terminated.


 


8.                                       Instruments Evidencing Intercompany
Indebtedness.  Each Company shall cause each instrument
which now or hereafter evidences all or a portion of the Intercompany
Indebtedness to be conspicuously marked as follows:


 


“This instrument is
subject to the terms of an Intercompany Subordination Agreement dated January 31,
2006, in favor of PNC Bank, National Association, as administrative agent for
the Banks referred to therein, which Intercompany Subordination Agreement is
incorporated herein by reference. 
Notwithstanding any contrary statement contained in the within
instrument, no payment on account of the principal thereof or interest thereon
shall become due or payable except in accordance with the express terms of said
Intercompany Subordination Agreement.”


 


Each
Company will further mark its books of account in such a manner as shall be
effective to give proper notice to the effect of this Agreement.


 


3

















 


9.                                       Agreement Solely to Define Relative Rights.  The
purpose of this Agreement is solely to define the relative rights of the
Companies, on the one hand, and the Agent and the Banks, on the other
hand.  Nothing contained in this
Agreement is intended to or shall impair, as between any of the Companies and
their creditors other than the Agent and the Banks, the obligation of the
Companies to each other to pay the principal of and interest on the
Intercompany Indebtedness as and when the same shall become due and payable in
accordance with its terms, or is intended to or shall affect the relative
rights among the Companies and their creditors other than the Agent and the
Banks, nor shall anything herein prevent any of the Companies from exercising
all remedies otherwise permitted by applicable Law upon default under any
agreement pursuant to which the Intercompany Indebtedness is created, subject
to the rights, if any, under this Agreement of the Agent and the Banks to
receive cash, property or securities otherwise payable or deliverable with
respect to the Intercompany Indebtedness.


 


10.                                 No Implied Waivers of Subordination.  No
right of the Agent or any Bank to enforce subordination, as herein provided,
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of any Company or by any act or failure to act by the Agent or
any Bank, or by any non-compliance by any Company with the terms, provisions
and covenants of any agreement pursuant to which the Intercompany Indebtedness
is created, regardless of any knowledge thereof the Agent or any Bank may have
or be otherwise charged with.  Each
Company by its acceptance hereof shall agree that, so long as there is Senior
Debt outstanding or Commitments in effect under the Credit Agreement, such
Company shall not agree to sell, assign, pledge, encumber or otherwise dispose
of, or to compromise, the obligations of the other Companies with respect to
their Intercompany Indebtedness, other than by means of payment of such
Intercompany Indebtedness according to its terms, without the prior written
consent of the Agent.


 


Without in any way limiting the generality of the
foregoing paragraph, the Agent or any of the Banks may, at any time and from
time to time, without the consent of or notice to the Companies except the
Borrower to the extent provided in the Credit Agreement, without incurring
responsibility to the Companies and without impairing or releasing the
subordination provided in this Agreement or the obligations hereunder of the
Companies to the Agent and the Banks, do any one or more of the following: (i) change
the manner, place or terms of payment, or extend the time of payment, renew or
alter the Senior Debt or otherwise amend or supplement the Senior Debt or the
Loan Documents; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing the Senior Debt; (iii) release
any Person liable in any manner for the payment or collection of the Senior
Debt; and (iv) exercise or refrain from exercising any rights against any
of the Companies and any other Person.


 


11.                                 Additional Subsidiaries.  The
Companies covenant and agree that they shall cause any Subsidiaries required to
join this Agreement pursuant to or otherwise under the Credit Agreement, to
execute a Joinder in the form of Exhibit 1.1(G)(1) to the
Credit Agreement, whereby such Subsidiary joins this Agreement and subordinates
all Indebtedness owed to any such Subsidiary by any of the Companies or other
Subsidiaries hereafter created or acquired to the Senior Debt.


 


12.                                 Continuing Force and Effect.  This
Agreement shall continue in force for so long as any portion of the Senior Debt
remains unpaid and any Commitments under the Credit


 


4

















 


Agreement
remain outstanding, it being contemplated that this Agreement be of a
continuing nature.


 


13.                                 Modification, Amendments or Waivers.  Any
and all agreements amending or changing any provision of this Agreement or the
rights of the Agent or the Banks hereunder, and any and all waivers or consents
to Events of Default or other departures from the due performance of the
Companies hereunder, shall be made only by written agreement, waiver or consent
signed by the Agent, acting on behalf of all the Banks, with the written
consent of the Required Banks, any such agreement, waiver or consent made with
such written consent being effective to bind all the Banks.


 


14.                                 Expenses.  The
Companies unconditionally and jointly and severally agree upon demand to pay to
the Agent and the Banks the amount of any and all reasonable and necessary
out-of-pocket costs, expenses and disbursements for which reimbursement is
customarily obtained, including fees and expenses of counsel, which the Agent
or any of the Banks may incur in connection with (a) the administration of
this Agreement, (b) the exercise or enforcement of any of the rights of
the Agent or the Banks hereunder, or (c) the failure by the Companies to
perform or observe any of the provisions hereof.


 


15.                                 Severability.  The
provisions of this Agreement are intended to be severable.  If any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.


 


16.                                 Governing Law.  This
Agreement shall be a contract under the internal Laws of the State of New York
and for all purposes shall be construed in accordance with the internal Laws of
the State of New York without giving effect to its principles of conflict of
Laws.


 


17.                                 Successors and Assigns.  This
Agreement shall inure to the benefit of the Agent and the Banks and their
respective successors and assigns, as permitted in the Credit Agreement, and
the obligations of the Companies shall be binding upon their respective
successors and assigns.  The duties and
obligations of the Companies may not be delegated or transferred by the
Companies without the written consent of the Required Banks and any such
delegation or transfer without such consent shall be null and void.  Except to the extent otherwise required by
the context of this Agreement, the word “Banks” when used herein shall include,
without limitation, any holder of a Note or an assignment of rights therein
originally issued to a Bank under the Credit Agreement, and each such holder of
a Note or assignment shall have the benefits of this Agreement to the same
extent as if such holder had originally been a Bank under the Credit Agreement.


 


18.                                 Counterparts.  This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which, when executed and
delivered, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.


 


5

















 


19.                                 Attorneys-in-Fact.  Each
of the Companies hereby authorizes and empowers the Agent, at its election and
in the name of either itself, for the benefit of the Agent and the Banks as
their respective interests may appear, or in the name of each such Company as
is owed Intercompany Indebtedness, to execute and file proofs and documents and
take any other action the Agent may deem advisable to completely protect the
Agent’s and the Banks’ interests in the Intercompany Indebtedness and their
right of enforcement thereof, and to that end each of the Companies hereby
irrevocably makes, constitutes and appoints the Agent, its officers, employees
and agents, or any of them, with full power of substitution, as the true and
lawful attorney-in-fact and agent of such Company, and with full power for such
Company, and in the name, place and stead of such Company for the purpose of
carrying out the provisions of this Agreement, and taking any action and
executing, delivering, filing and recording any instruments which the Agent may
deem necessary or advisable to accomplish the purposes hereof, which power of
attorney, being given for security, is coupled with an interest and is
irrevocable.  Each Company hereby
ratifies and confirms, and agrees to ratify and confirm, all action taken by
the Agent, its officers, employees or agents pursuant to the foregoing power of
attorney.


 


20.                                 Application of Payments.  In
the event any payments are received by the Agent under the terms of this
Agreement for application to the Senior Debt at any time when the Senior Debt
has not been declared due and payable and prior to the date on which it would
otherwise become due and payable, such payment shall constitute a voluntary
prepayment of the Senior Debt for all purposes under the Credit Agreement.


 


21.                                 Remedies.  In the
event of a breach by any of the Companies in the performance of any of the
terms of this Agreement, the Agent, on behalf of the Banks, may demand specific
performance of this Agreement and seek injunctive relief and may exercise any
other remedy available at law or in equity, it being recognized that the
remedies of the Agent on behalf of the Banks at law may not fully compensate
the Agent on behalf of the Banks for the damages they may suffer in the event
of a breach hereof.


 


22.                                 Consent to Jurisdiction, Waiver of Jury Trial.  Each
of the Companies hereby irrevocably consents to the non-exclusive jurisdiction
of the Supreme Court of New York County and the United States District Court
for the Southern District of New York, waives personal service of any and all
process upon it and consents that all such service of process be made by
certified or registered mail directed to the Companies at the addresses
referred to in Section 23 hereof and service so made shall be deemed to be
completed upon actual receipt thereof. 
Each of the Companies waives any objection to jurisdiction and venue of
any action instituted against it as provided herein and agrees not to assert
any defense based on lack of jurisdiction or venue, AND EACH OF THE COMPANIES
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
TO THE FULL EXTENT PERMITTED BY LAW.


 


23.                                 Notices.  All
notices, statements, requests and demands and other communications given to or
made upon the Companies, the Agent or the Banks in accordance with the
provisions of this Agreement shall be given or made as provided in Section 10.6
[Notices] of the Credit Agreement.


 


[INTENTIONALLY LEFT BLANK]


 


6

















 


WITNESS the due execution hereof as of the day and
year first above written.


 


	
  BORROWER:

  	
  PAPA JOHN’S INTERNATIONAL, INC.

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  PAPA JOHN’S USA, INC.

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  PAPA JOHN’S SUPPORT SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  CAPITAL DELIVERY, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS:

  	
  RISK SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


	
  WITNESS:

  	
  PJ FOOD SERVICE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


EXHIBIT 1.1(R)


 


FORM OF


REVOLVING CREDIT NOTE


 


	
  $                                       

  	
   

  	
  Pittsburgh, Pennsylvania

  
	
   

  	
   

  	
  January 31, 2006

  



 


FOR VALUE RECEIVED, the undersigned, Papa John’s International, Inc.,
a Delaware corporation (the “Borrower”), hereby promises to pay to the order of
                                                                          
(“                                ”),
the lesser of (i) the principal sum of                                                                                  
and 00/100 US Dollars (US $                           .00),
or (ii) the Dollar Equivalent amount of the aggregate unpaid principal
balance of all Revolving Credit Loans made by                                   
to the Borrower pursuant to Section 2.1.1 of the Credit Agreement dated
the 31st day of January, 2006 (as amended, restated, modified or
supplemented from time to time, the “Credit Agreement”) by and among the
Borrower, the Guarantors party thereto, RSC Insurance Services Ltd., a Bermuda
company, the Banks party thereto, and PNC Bank, National Association, as
administrative agent for the Banks (the “Agent”), payable on the Expiration
Date.  All capitalized terms used herein
shall, unless otherwise defined herein, have the same meanings given to such
terms in the Credit Agreement.


 


The Borrower shall pay interest on the unpaid principal balance hereof
from time to time outstanding from the date hereof at the rate per annum
specified by the Borrower pursuant to Section 3.1 [Interest Rate Options]
of, or as otherwise provided in, the Credit Agreement.


 


Upon the occurrence of an Event of Default, the Borrower shall pay
interest on the entire principal amount of the then outstanding Revolving
Credit Loans evidenced by this Revolving Credit Note at a rate per annum
specified by Section 3.3 [Interest After Default] of, or as otherwise
provided in, the Credit Agreement.  Such
interest rate will accrue before and after any judgment has been entered.


 


Subject to the provisions of the Credit Agreement, interest on this
Revolving Credit Note will be payable on the dates set forth in Section 4.3
[Interest Payment Dates] of the Credit Agreement and on the Expiration Date.


 


Subject to the provisions of the Credit Agreement, if any payment or
action to be made or taken hereunder shall be stated to be or become due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.


 


Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Agent located at One PNC Plaza,
249 Fifth Avenue, Pittsburgh, Pennsylvania 15222, in lawful money of the United
States of America or the applicable Optional Currency in immediately available
funds.


 

















 


This Revolving Credit Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement and
other Loan Documents, including the representations, warranties, covenants and
conditions contained or granted therein. 
The Credit Agreement among other things contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayment in certain circumstances, on account of principal
hereof prior to maturity upon the terms and conditions therein specified.


 


The Borrower waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Revolving Credit Note.


 


This Revolving Credit Note shall bind the Borrower and its successors
and assigns, and the benefits hereof shall inure to the benefit of the Agent
and the Banks and their respective successors and assigns.  All references herein to the “Borrower”, “Agent”
and the “Banks” shall be deemed to apply to the Borrower, the Agent and the
Banks, respectively, and their respective successors and assigns.


 


This Revolving Credit Note and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all purposes be governed by and construed and enforced in
accordance with the internal Laws of the State of New York without giving effect
to its conflicts of law principles.


 


                                        
may at any time pledge all or a portion of its rights under the Loan Documents
including any portion of this Revolving Credit Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C. § 341.  No such
pledge or enforcement thereof shall release                                   
from its obligations under any of the Loan Documents.


 


[INTENTIONALLY LEFT BLANK]


 


2

















 


IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit
Note by its duly authorized officer with the intention that it constitute a
sealed instrument.


 


	
  WITNESS:

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 

















 


EXHIBIT 1.1(S)


 


FORM OF


SWING NOTE


 


	
  $10,000,000.00

  	
   

  	
  Pittsburgh, Pennsylvania

  
	
   

  	
   

  	
  January 31, 2006

  



 


FOR VALUE RECEIVED, the undersigned, Papa John’s International, Inc.,
a Delaware corporation (the “Borrower”), hereby promises to pay to the order of
PNC Bank, National Association (“PNC”) the lesser of (i) the principal sum
of Ten Million and 00/100 Dollars ($10,000,000.00), or (ii) the aggregate
unpaid principal balance of all Swing Loans made by the Bank to the Borrower
pursuant to Section 2.1.2 [Swing Loans] of the Credit Agreement dated of
even date herewith (as may be amended, restated, modified or supplemented from
time to time, the “Credit Agreement”), by and among the Borrower, the
Guarantors party thereto, RSC Insurance Services Ltd., a Bermuda company, the
Banks party thereto and PNC Bank, National Association, as administrative agent
for the Banks (the “Agent”).  All
capitalized terms used herein shall, unless otherwise defined herein, have the
same meanings given to such terms in the Credit Agreement.


 


The Borrower shall pay interest on the unpaid principal balance hereof
from time to time outstanding from the date hereof at the rate per annum
specified by the Borrower pursuant to Section 3.1 [Interest Rate Options]
of, or as otherwise provided in, the Credit Agreement.


 


Upon the occurrence of an Event of Default, the Borrower shall pay
interest on the entire principal amount of the then outstanding Swing Loans
evidenced by this Swing Note at a rate per annum specified by Section 3.3
[Interest After Default] of, or as otherwise provided in, the Credit
Agreement.  Such interest rate will
accrue before and after any judgment has been entered.


 


Subject to the provisions of the Credit Agreement, interest on this
Swing Note will be payable on the dates set forth in Section 4.3 [Interest
Payment Dates] of the Credit Agreement and on the Expiration Date.


 


Subject to the provisions of the Credit Agreement, if any payment or
action to be made or taken hereunder shall be stated to be or become due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.


 


Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Agent located at One PNC Plaza,
249 Fifth Avenue, Pittsburgh, Pennsylvania 15222, in lawful money of the United
States of America in immediately available funds.


 

















 


This Swing Note is the Swing Note referred to in, and is entitled to
the benefits of, the Credit Agreement and other Loan Documents, including the
representations, warranties, covenants and conditions contained or granted
therein.  The Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayment in certain
circumstances, on account of principal hereof prior to maturity upon the terms
and conditions therein specified.


 


The Borrower waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Swing Note.


 


This Swing Note shall bind the Borrower and its successors and assigns,
and the benefits hereof shall inure to the benefit of the Agent and the Banks
and their respective successors and assigns. 
All references herein to the “Borrower”, “Agent” and the “Banks” shall
be deemed to apply to the Borrower, the Agent and the Banks, respectively, and
their respective successors and assigns.


 


This Swing Note and any other documents delivered in connection
herewith and the rights and obligations of the parties hereto and thereto shall
for all purposes be governed by, and construed and enforced in accordance with,
the internal Laws of the State of New York without giving effect to its
conflicts of law principles.


 


PNC may at any time pledge all or a portion of its rights under the
Loan Documents including any portion of this Swing Note to any of the twelve
(12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. § 341.  No
such pledge or enforcement thereof shall release PNC from its obligations under
any of the Loan Documents.


 


[INTENTIONALLY LEFT BLANK]


 


2

















 


IN WITNESS WHEREOF, the undersigned has executed this Swing Note by its
duly authorized officer with the intention that it constitutes a sealed
instrument.


 


	
  WITNESS:

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 

















 


EXHIBIT 2.4.1


 


FORM OF


REVOLVING CREDIT LOAN REQUEST


 


	
  TO:

  	
   

  	
  PNC Bank, National Association, as Administrative Agent

  
	
   

  	
   

  	
  Firstside Center

  
	
   

  	
   

  	
  500 First Avenue, 4th Floor

  
	
   

  	
   

  	
  Pittsburgh, Pennsylvania 15219

  
	
   

  	
   

  	
  Telephone No.:  (412) 762-7638

  
	
   

  	
   

  	
  Telecopier No.:  (412) 762-8672

  
	
   

  	
   

  	
  Attention:  Rini Davis

  
	
   

  	
   

  	
   

  
	
  FROM:

  	
   

  	
  Papa John’s International, Inc., a Delaware corporation (the “Borrower”)

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit Agreement (as it may be amended, restated, modified or
  supplemented, the “Agreement”), dated the 31st day of January,
  2006, by and among the Borrower, the Guarantors (as defined in the Credit
  Agreement) party thereto, RSC Insurance Services Ltd., a Bermuda company, the
  Banks (as defined in the Credit Agreement) party thereto and PNC Bank,
  National Association, as administrative agent for the Banks (in such
  capacity, the “Agent”).

  



 


Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them by the Agreement.


 


A.                                   Pursuant to Section 2.4.1 [Revolving Credit Loan Requests] and 3.2
[Interest Periods] of the Agreement, the undersigned Borrower irrevocably
requests [check one box under 1(a) below
and fill in blank space next to the box as appropriate]:


 


	
  1.(a)

  	
  o

  	
   

  	
  New
  Revolving Credit Loans OR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
   

  	
  Renewal
  of the Euro-Rate Option applicable to an outstanding Revolving Credit Loan,
  originally made on
                           
  OR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
   

  	
  Conversion
  of the Base Rate Option applicable to an outstanding Revolving Credit Loan
  originally made on
                     
  Loan to which the Euro-Rate Option applies, OR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
   

  	
  Conversion
  of the Euro-Rate Option applicable to an outstanding Revolving Credit Loan
  originally made on
                      
  to a Loan to which the Base Rate Option applies, OR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
   

  	
  New
  Revolving Credit Loans in an Optional Currency, OR

  



 

















 


	
   

  	
  o

  	
   

  	
  Renewal
  of the Euro-Rate Option applicable to an outstanding Revolving Credit Loan in
  an Optional Currency, originally made on
                           ,
  OR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  o

  	
   

  	
  Conversion
  of the Base Rate Option applicable to an outstanding Revolving Credit Loan
  originally made on                    
  to a Loan in an Optional Currency to which the Euro-Rate Option applies, OR

  



 


SUCH NEW, RENEWED OR
CONVERTED LOAN SHALL BEAR INTEREST:


 


[Check one box under 1(b) below and fill in
blank spaces in line next to box]:


 


	
  1.(b)(i)

  	
   

  	
  o

  	
   

  	
  Under
  the Base Rate Option.  Such Loan shall
  have a Borrowing Date of
                                      
  (which date shall be (i) one (1) Business Day subsequent to the
  Business Day of receipt by the Agent by 10:00 a.m. Pittsburgh time of
  this Loan Request for making a new Revolving Credit Loan to which the Base
  Rate Option applies, or (ii) the last day of the preceding Euro-Rate
  Interest Period if a Loan to which the Euro-Rate Option applies is being
  converted to a Loan to which the Base Rate Option applies), OR

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  o

  	
   

  	
  Under
  the Euro-Rate Option.  Such Loan shall
  have a Borrowing Date of
                                     
  (which date shall be (a) three (3) Business Days subsequent to the
  Business Day of receipt by the Agent by 10:00 a.m. Pittsburgh time of
  this Loan Request for making a new Revolving Credit Loan in Dollars to which
  the Euro-Rate Option applies, renewing a Loan in Dollars to which the
  Euro-Rate Option applies, or converting a Loan in Dollars to which the Base
  Rate Option applies to a Loan in Dollars to which the Euro-Rate Option
  applies, or (b) four (4) Business Days subsequent to the Business
  Day of receipt by the Agent by 10:00 a.m., Pittsburgh time, of this Loan
  Request for making a new Revolving Credit Loan in an Optional Currency or
  renewing a Revolving Credit Loan in an Optional Currency).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Such
  Loan is in the principal amount of
  $                                               or the principal amount to be renewed or converted in
  $                                             [(a) for each
  Borrowing Tranche to which the Euro-Rate Option applies, not to be less than
  One Million and 00/100 Dollars ($1,000,000.00) and in increments of Five
  Hundred Thousand and 00/100 Dollars ($500,000.00) if in excess of One Million
  and 00/100 Dollars ($1,000,000.00); and (b) for each Borrowing Tranche
  to which the Base Rate Option applies, not to be less than the lesser of Five
  Hundred Thousand and 00/100 Dollars ($500,000.00) or the maximum amount
  available and in increments of One Hundred Thousand and 00/100 Dollars
  ($100,000.00)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  [This paragraph A.3 applies if the Borrower is selecting a
  Revolving Credit Loan in an Optional Currency]: 
  Such Revolving Credit Loan shall be made in the following Optional
  Currency: 
                                                      

  



 


2

















 


	
  4.

  	
   

  	
  [This paragraph A.4 applies if the Borrower is selecting
  the Euro-Rate Option]:  Such Loans shall have an Interest Period of
  one (1), two (2), three (3), six (6) or twelve (12) Months.

  



 


B.                                     As of the date hereof and the date of making of the above-requested Loans
(and after giving effect thereto):  the
Loan Parties have performed and complied in all material respects with all
covenants and conditions of the Agreement; all of Loan Parties’ representations
and warranties therein are true and correct in all material respects (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties were true and correct in all material
respects on and as of the specific dates or times referred to therein); no
Event of Default or Potential Default has occurred and is continuing or shall
exist; and the making of any Revolving Credit Loan shall not cause the
aggregate Dollar Equivalent amount of Revolving Credit Loans outstanding plus
Swing Loans plus the Dollar Equivalent amount of Letters of Credit Outstanding
to exceed the aggregate Revolving Credit Commitments.


 


[INTENTIONALLY LEFT BLANK]


 


3

















 


The undersigned certifies to the Agent and the Banks as to the accuracy
of the foregoing.


 


	
   

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date: 
                                         ,
  20       

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


EXHIBIT 2.4.2


 


FORM OF

SWING LOAN REQUEST


 


	
  TO:

  	
   

  	
  PNC Bank, National Association, as Administrative Agent

  
	
   

  	
   

  	
  Firstside Center

  
	
   

  	
   

  	
  500 First Avenue, 4th Floor

  
	
   

  	
   

  	
  Pittsburgh, Pennsylvania 15219

  
	
   

  	
   

  	
  Telephone No.:  (412) 762-7638

  
	
   

  	
   

  	
  Telecopier No.:  (412) 762-8672

  
	
   

  	
   

  	
  Attention:  Rini Davis

  
	
   

  	
   

  	
   

  
	
  FROM:

  	
   

  	
  Papa John’s International, Inc., a Delaware corporation (the “Borrower”)

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit Agreement (as it may be amended, restated, modified or
  supplemented, the “Agreement”), dated the 31st day of January,
  2006, by and among the Borrower, the Guarantors (as defined in the Credit
  Agreement) party thereto, RSC Insurance Services Ltd., a Bermuda company, the
  Banks (as defined in the Credit Agreement) party thereto and PNC Bank,
  National Association, as administrative agent for the Banks (in such
  capacity, the “Agent”).

  



 


Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them by the Agreement.


 


A.                                   Pursuant to Section 2.4.2 [Swing Loan Requests] of the Agreement,
the undersigned Borrower irrevocably requests:


 


1.                                       New Swing Loans.  Such Loan shall have a Borrowing Date of                             
(which date shall be the Business Day of receipt by the Agent by 10:00 a.m.
Pittsburgh time of this Swing Loan Request for making a new Swing Loan.


 


2.                                       Such Loan is in the principal amount of US $                                        
[for each Borrowing
Tranche, not to be less than the lesser of One Hundred Thousand and 00/100
Dollars ($100,000.00) or the maximum amount available and in increments of One
Hundred Thousand and 00/100 Dollars ($100,000.00)].


 


B.                                     As of the date hereof and the date of making of the above-requested Swing
Loans (and after giving effect thereto): 
the Loan Parties have performed and complied with all covenants and
conditions of the Agreement; all of Loan Parties’ representations and
warranties therein are true and correct in all material respects (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties were true and correct in all
material respects on and as of the specific dates or times referred to
therein); no Event of Default or Potential Default has occurred and is
continuing or shall exist.


 

















 


The undersigned certifies to the Agent and the Banks as to the accuracy
of the foregoing.


 


	
   

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date: 
                                         ,
  20       

  	
  By:

  	
   

  	
  (Seal)

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


EXHIBIT 7.3.3


 


FORM OF

COMPLIANCE CERTIFICATE


 


[For the Fiscal Year Ended
                ,
20    ]


 


Or


 


[For the Fiscal Quarter Ended
              ,
20    ]


 


PNC Bank, National Association, as Agent


2nd Floor


500 West Jefferson Street


Louisville, Kentucky 40202


 


Ladies and Gentlemen:


 


We refer to the Credit Agreement, dated the 31st
day of January, 2006 (the “Credit Agreement”), by and among Papa John’s
International, Inc., a Delaware corporation (the “Borrower”), the
Guarantors party thereto, RSC Insurance Services Ltd., a Bermuda company, the
Banks party thereto and PNC Bank, National Association, in its capacity as
administrative agent for the Banks (the “Agent”).  Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein with the same meanings.


 


I, the
                                                  ,
[Chief Executive Officer/President/Chief Financial Officer/Vice President of
Corporate Finance] of the Borrower, do hereby certify on behalf of the Borrower
as of the [quarter/year ended
[                  
        ,] 20[    ]
(the “Report Date”), as follows:


 


1.                                      CHECK ONE:


 


	
  o

  	
  The audited annual financial statements of the Borrower being
  delivered to the Agent with this Compliance Certificate (a) present
  fairly the financial position of the Borrower and its Subsidiaries and their
  results of operations and cash flows for the fiscal year set forth above
  determined and consolidated for the Borrower and its Subsidiaries in
  accordance with GAAP consistently applied and (b) comply with the
  reporting requirements for such financial statements as set forth in Section 7.3.2
  [Annual Financial Statements] of the Credit Agreement.

  
	
   

  	
   

  
	
   

  	
  OR

  
	
   

  	
   

  
	
  o

  	
  The quarterly financial statements of the Borrower being delivered to
  the Agent with this Compliance Certificate (a) present fairly the
  financial position of the Borrower and its Subsidiaries and their results of
  operations and cash flows for the fiscal quarter set forth above determined
  and consolidated for the 

  



 

















 


	
   

  	
  Borrower and its Subsidiaries in accordance with GAAP consistently
  applied, subject to normal year-end audit adjustments (except that such
  statements do not contain all of the footnotes required by GAAP) and (b) comply
  with the reporting requirements for such financial statements as set forth in
  Section 7.3.1 [Quarterly Financial Statements] of the Credit
  Agreement.

  



 


2.                                       The
representations and warranties of the Loan Parties contained in Section 5
of the Credit Agreement and in each of the other Loan Documents to which they
are a party are true and accurate in all material respects on and as of the
report date (except representations and warranties which expressly relate
solely to an earlier date or time, which representations and warranties are
true and correct in all material respects on and as of the specific dates or
times referred to therein).  The Loan
Parties are in compliance with, and since the date of the previously delivered
Compliance Certificate have performed and complied with, in all material
respects, all covenants and conditions contained in the Credit Agreement.


 


3.                                       In accordance
with Section 5.2 [Updates to Schedules], attached hereto as Exhibit A
are updates to the Schedules to the Credit Agreement, if applicable (the
“Updated Schedules”).  Notwithstanding
the foregoing, the Borrower hereby acknowledges and agrees that no schedule shall
be deemed to have been amended, modified or superseded by the Updated
Schedules, nor shall any breach of warranty or representation resulting from
the inaccuracy or incompleteness of any such Schedule be deemed to have
been cured by the Updated Schedules, unless and until the Required Banks, in
their sole and absolute discretion, shall have accepted in writing the Updated
Schedules.


 


4.                                       No Event of
Default or Potential Default exists on the Report Date; no Event of Default or
Potential Default has occurred or is continuing since the date of the
previously delivered Compliance Certificate; no Material Adverse Change has
occurred since the date of the previously delivered Compliance Certificate; and
no event has occurred or is continuing since the date of the previously
delivered Compliance Certificate that may reasonably be expected to result in a
Material Adverse Change.


 


[NOTE:  If any Event of Default,
Potential Default, Material Adverse Change or event which may reasonably be
expected to result in a Material Adverse Change has occurred or is continuing,
set forth on an attached sheet the nature thereof and the action which the Loan
Parties have taken, are taking or propose to take with respect thereto.]


 


2

















 


5.                                       Maximum
Leverage Ratio (Section 7.2.14). 
The ratio of (a) the sum of (i) Consolidated Total
Indebtedness (excluding Indebtedness under the Jeffersontown IRB so long as
such Indebtedness is owed to a Subsidiary of the Borrower), to (b) Consolidated
EBITDA is            to 1.0
for the four (4) fiscal quarters of the Borrower ending as of the Report
Date, which is not greater than the permitted ratio of 2.50 to 1.00 for the
relevant period.


 


(A)                              Consolidated Total
Indebtedness (excluding (i) Indebtedness under the Jeffersontown IRB so
long as such Indebtedness is owed to a Subsidiary of the Borrower and (ii) the
Excluded VIE’s) for the four (4) fiscal quarters ending as of the Report
Date equals
$                ,
the numerator of the Leverage Ratio.


 


(B)                                Consolidated EBITDA
(excluding the Excluded VIE’s) for the four (4) fiscal quarters ending as
of the Report Date equals
$                ,
and is computed as follows:


 


	
  (i)

  	
   

  	
  net
  income

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  depreciation

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  amortization

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  other non-cash charges to net income

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  Consolidated Interest Expense

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (vi)

  	
   

  	
  income tax expense

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  sum of items 5(B)(i) through 5(B)(vi)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  non-cash credits to net income

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ix)

  	
   

  	
  item 5(B)(vii) less item 5(B)(viii) equals)

  Consolidated EBITDA, the denominator of the

  Leverage Ratio

  	
   

  	
  $

  	
   

  	
   

  



 


(C)                                The ratio of item 5(A) to
item 5(B)(ix) equals the Leverage Ratio.                                              to 1.0


 


6.                                       Minimum
Interest Coverage Ratio (Section 7.2.15).  The ratio of (a) the sum of (i) Consolidated
EBITDA and (ii) Consolidated Rental Expense to (b) the sum of (i) Consolidated
Interest Expense and (ii) Consolidated Rental Expense is
           to 1.0 for the
four (4) fiscal quarters of the Borrower ending as of the Report Date,
which is not less than the permitted ratio of 3.50 to 1.00 for the relevant
period:


 


(A)                              Consolidated EBITDA
(excluding the Excluded VIE’s) (from item 5(B)(ix) above) for the four (4) most
recently completed fiscal quarters equals
$                          .


 


3

















 


(B)                                Consolidated Rental
Expense (excluding the Excluded VIE’s) for the four (4) most recently
completed fiscal quarters equals
$                            .


 


(C)                                The sum of item 6(A) plus
item 6(B) equals
$                  ,
the numerator of the Interest Coverage Ratio.


 


(D)                               Consolidated Interest
Expense (excluding the Excluded VIE’s) for the four (4) most recently
completed fiscal quarters equals
$                            .


 


(E)                                 The sum of item 6(B) plus
item 6(D) equals
$                  ,
the denominator of the Interest Coverage Ratio.


 


(F)                                 The ratio of item 6(C) to
item 6(E) equals the Interest Coverage Ratio.                   to 1.0


 


7.                                       Other
Covenants.


 


(A)                              7.2.1.  Indebtedness.


 


(i)                         7.2.1.(iii)  Indebtedness in the
form of capitalized leases or secured by Purchase Money Security Interests


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $25,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(ii)                      7.2.1.(vi)  Indebtedness arising
from Hedge Agreements consisting of bona fide hedging contracts intended to
protect against material fluctuations in the cost of energy, milk and other
commodities used in the ordinary course of the Borrower’s business


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $15,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(iii)                   7.2.1.(vii)(c)  Contingent
liabilities arising out of Guaranties by any Loan Party or any Subsidiary of a
Loan Party for all Loan Parties and Subsidiaries of Loan Parties


 


4

















 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $15,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(iv)                  7.2.1.(vii)(d) 
Contingent liabilities arising out of reimbursement obligations (including any
Guaranty thereof) with respect to any portion of the RSC Letter of Credit that
has not been drawn against


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $18,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(B)                                7.2.4.  Loans and Investments.


 


(i)                         7.2.4.(v) 
Loans, advances and
investments in or to Foreign Subsidiaries and foreign joint ventures for all
such Foreign Subsidiaries and foreign joint ventures


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $50,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(ii)                      7.2.4.(vi) 
Loans, advances and
investments in or to franchisees of any Loan Party, the Papa John’s Marketing
Fund and BIBP (including all amounts as of the Closing Date as set forth on Schedule 1.1(P)(1) to
the Credit Agreement) for all such parties


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $50,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(iii)                   7.2.4.(vii)  Loans, advances and investments in or to
domestic joint ventures (including, but not limited to, CLL and SPL) (including
all amounts as of the Closing Date as set forth on Schedule 1.1(P)(1) to
the Credit Agreement) for all such domestic joint ventures


 

















 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $30,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(iv)                  7.2.4.(ix) 
Investments
consisting of notes payable to any Loan Party or any Subsidiary in connection
with the sale by such Loan Party or such Subsidiary of any properties or assets
as permitted by Section 7.2.7(v) of the Credit Agreement, for all
such investments


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $5,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(v)                     7.2.4.(x)  Loans, advances and investments (including, but not
limited to, the RSC/Borrower Letter of Credit) in or to RSC


 


	
  Requirement

  	
   

  	
  Actual

  
	
  Not Greater than
  $18,000,000

  (in the aggregate at any time)

  	
   

  	
   

  



 


(C)                                7.2.7.  Dispositions of Assets or Subsidiaries.


 


(i)                         7.2.7.(v)(b)  Any sale, transfer or
lease of properties or assets, provided that: (a) there shall not exist
any Event of Default or Potential Default immediately prior to and after giving
effect to such sale; and (b) the aggregate value of such assets sold,
transferred or leased by the Loan Parties and their Subsidiaries during the
term of this Agreement shall not exceed


 


	
  Requirement

  	
   

  	
  Actual

  
	
  $65,000,000

  (for any period from the Closing Date
  through the date immediately preceding the first anniversary of the Closing
  Date)

  	
   

  	
   

  



 

















 


	
  The difference
  between $65,000,000 and the greater of (i) $15,000,000.00 and (ii) the
  aggregate value of the assets sold, transferred or leased by the Loan Parties
  and their Subsidiaries during the period from the Closing Date through the
  date immediately preceding the first anniversary of the Closing Date

  (for the first anniversary of the Closing
  Date and any time thereafter)

  	
   

  	
   

  



 


[INTENTIONALLY
LEFT BLANK]


 

















 


IN WITNESS
WHEREOF, the undersigned has executed this Certificate this
         day of
                              ,
20      .


 


	
  ATTEST/WITNESS:

  	
  Papa John’s International, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
  (Seal)

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
										



 

















 


Certain schedules referenced in this document
were omitted from this filing. The material terms of the agreement are included
within the document filed.