exv10w32



 






Exhibit 10.32




 

 






CASH AMERICA INTERNATIONAL, INC.



 




NOTE AGREEMENT



 




Dated as of December 28, 2005




$40,000,000 6.12% Senior Notes due December 28, 2015




 

 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	1. PURCHASE AND SALE OF NOTES
	 	 	1	 
	 
	 	 	 	 
	1.01 Authorization of Notes
	 	 	1	 
	1.02 Sale and Purchase of Notes
	 	 	1	 
	1.03 The Closing
	 	 	1	 
	 
	 	 	 	 
	2. DEFINITIONS AND INTERPRETATIONS
	 	 	2	 
	 
	 	 	 	 
	2.01 Definitions
	 	 	2	 
	2.02 Interpretation
	 	 	18	 
	 
	 	 	 	 
	3. CONDITIONS OF CLOSING
	 	 	20	 
	 
	 	 	 	 
	3.01 Representations and Warranties
	 	 	20	 
	3.02 Performance; No Default
	 	 	20	 
	3.03 Compliance Certificate
	 	 	21	 
	3.04 Opinions of Counsel
	 	 	21	 
	3.05 Resolutions, Etc.
	 	 	21	 
	3.06 Purchase Permitted by Applicable Laws, Etc.
	 	 	21	 
	3.07 Payment of Closing Fees
	 	 	22	 
	3.08 Private Placement Number
	 	 	22	 
	3.09 Notes
	 	 	22	 
	3.10 Guaranty; Subrogation and Contribution Agreement
	 	 	22	 
	3.11 Other Loan Documents
	 	 	22	 
	3.12 Proceedings
	 	 	22	 
	 
	 	 	 	 
	4. USE OF PROCEEDS
	 	 	22	 
	 
	 	 	 	 
	4.01 Use of Proceeds
	 	 	22	 
	4.02 Margin Regulations
	 	 	23	 
	 
	 	 	 	 
	5. PREPAYMENTS
	 	 	23	 
	 
	 	 	 	 
	5.01 Required Prepayments of the Notes
	 	 	23	 
	5.02 Optional Prepayments of the Notes
	 	 	23	 
	5.03 Notice of Optional Prepayments; Officers’ Certificate
	 	 	24	 
	5.04 Allocation of Partial Prepayments
	 	 	24	 
	5.05 Maturity; Surrender, Etc.
	 	 	24	 
	5.06 Retirement of Notes
	 	 	24	 
	 
	 	 	 	 
	6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	 	 	25	 
	 
	 	 	 	 
	6.01 Subsidiaries
	 	 	25	 
	6.02 Organization, Qualification, Authorization, Etc
	 	 	25	 
	6.03 Disclosure Documents
	 	 	26	 
	6.04 Changes, Etc.
	 	 	27	 
	6.05 Tax Returns and Payments
	 	 	27	 
	6.06 Indebtedness; Solvency
	 	 	27	 
	6.07 Permits
	 	 	28	 






i









 






	 	 	 	 	 
	 	 	Page	 
	6.08 Material Contracts
	 	 	28	 
	6.09 Title to Property, Etc.
	 	 	28	 
	6.10 Condition of Property
	 	 	29	 
	6.11 Compliance with Applicable Laws, Permits and Contracts
	 	 	29	 
	6.12 Litigation, Etc.
	 	 	30	 
	6.13 ERISA
	 	 	30	 
	6.14 No Governmental Consents Required for Overall Transaction
	 	 	30	 
	6.15 Offering of Notes
	 	 	30	 
	6.16 Use of Proceeds
	 	 	31	 
	6.17 Foreign Assets Control Regulations, Etc.
	 	 	31	 
	6.18 Status Under Certain Federal Statutes
	 	 	31	 
	6.19 Environmental Matters
	 	 	32	 
	6.20 Books and Records
	 	 	34	 
	6.21 Fiscal Year
	 	 	34	 
	6.22 Brokerage
	 	 	34	 
	6.23 Labor Matters
	 	 	35	 
	6.24 Patents, Trademarks, Etc.
	 	 	35	 
	6.25 Chief Executive Office
	 	 	35	 
	6.26 Permitted Investments
	 	 	35	 
	6.27 Liens
	 	 	35	 
	6.28 Full Disclosure
	 	 	35	 
	 
	 	 	 	 
	7. PURCHASE FOR INVESTMENT; SOURCE OF FUNDS
	 	 	36	 
	 
	 	 	 	 
	7.01 Representations of the Purchasers
	 	 	36	 
	 
	 	 	 	 
	8. AFFIRMATIVE COVENANTS
	 	 	38	 
	 
	 	 	 	 
	8.01 Financial Statements, Reports and Documents
	 	 	38	 
	8.02 Payment of Principal, Interest and Premium
	 	 	41	 
	8.03 Payment of Taxes, Claims and Indebtedness
	 	 	41	 
	8.04 Maintenance of Existence and Rights; Conduct of Business
	 	 	41	 
	8.05 Compliance with Loan Documents
	 	 	42	 
	8.06 Inspection
	 	 	42	 
	8.07 Books and Records
	 	 	42	 
	8.08 Compliance with Legal Requirements
	 	 	42	 
	8.09 Insurance
	 	 	42	 
	8.10 Maintenance of Properties
	 	 	43	 
	8.11 Further Assurances
	 	 	43	 
	 
	 	 	 	 
	9. NEGATIVE COVENANTS
	 	 	43	 
	 
	 	 	 	 
	9.01 Consolidated Indebtedness for Money Borrowed
	 	 	43	 
	9.02 Consolidated Net Worth
	 	 	44	 
	9.03 Fixed Charge Coverage
	 	 	44	 
	9.04 Restricted Payments
	 	 	44	 
	9.05 Limitation on Indebtedness
	 	 	45	 
	9.06 Assurances
	 	 	48	 
	9.07 Negative Pledge
	 	 	48	 
	9.08 Limitation on Investments
	 	 	48	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	9.09 Alteration of Contracts, Etc.
	 	 	49	 
	9.10 Transactions with Affiliates
	 	 	49	 
	9.11 Limitation on Sale or Issuance of Subsidiary Stock
	 	 	50	 
	9.12 Limitation on Sale of Properties
	 	 	50	 
	9.13 Dissolution; Liquidation; Merger; Consolidation
	 	 	50	 
	9.14 Change of Name, Fiscal Year and Method of Accounting
	 	 	51	 
	9.15 Lines of Business
	 	 	51	 
	9.16 Amendment of Organizational Documents
	 	 	51	 
	9.17 Limitation on Acquisition of New Subsidiaries
	 	 	51	 
	9.18 ERISA
	 	 	54	 
	9.19 No Inconsistent Agreements
	 	 	55	 
	 
	 	 	 	 
	10. EVENTS OF DEFAULT
	 	 	55	 
	 
	 	 	 	 
	10.01 Events of Default
	 	 	55	 
	10.02 Other Remedies
	 	 	58	 
	 
	 	 	 	 
	11. MISCELLANEOUS
	 	 	58	 
	 
	 	 	 	 
	11.01 Note Payments
	 	 	58	 
	11.02 Expenses
	 	 	59	 
	11.03 Consent to Waivers and Amendments
	 	 	60	 
	11.04 Solicitation of Holders
	 	 	60	 
	11.05 Form, Registration, Transfer and Exchange of Notes; Lost Notes
	 	 	61	 
	11.06 Persons Deemed Owners
	 	 	61	 
	11.07 Reliance on and Survival of Representations and Warranties
	 	 	62	 
	11.08 Successors and Assigns
	 	 	62	 
	11.09 Notices
	 	 	62	 
	11.10 Substitution of Purchasers
	 	 	62	 
	11.11 Satisfaction Requirement
	 	 	63	 
	11.12 Independence of Covenants
	 	 	63	 
	11.13 Remedies Cumulative
	 	 	63	 
	11.14 Reproduction of Documents
	 	 	63	 
	11.15 Notes as Securities
	 	 	64	 
	11.16 Severability of Provisions
	 	 	64	 
	11.17 Interest
	 	 	64	 
	11.18 Representations, Etc. Cumulative
	 	 	65	 
	11.19 Submission to Jurisdiction
	 	 	65	 
	11.20 Governing Law
	 	 	66	 
	11.21 Indemnification
	 	 	66	 
	11.22 Survival of Indemnities, Etc.
	 	 	67	 
	11.23 Judgment Currency
	 	 	67	 
	11.24 Liabilities of Holders
	 	 	68	 
	11.25 Taxes
	 	 	68	 
	11.26 Counterparts
	 	 	68	 
	11.27 Entire Agreement
	 	 	68	 






iii









 






Schedules and Exhibits




	 	 	 	 	 
	Schedule I
	 	–	 	Purchaser Information
	 
	 	 	 	 
	Schedule II
	 	–	 	List of Subsidiaries
	Schedule III
	 	–	 	List of Jurisdictions Where Company is Qualified to Do Business
	 
	 	 	 	as a Foreign Corporation
	Schedule IV
	 	–	 	Permitted Liens
	Schedule V
	 	–	 	Material Contracts
	Schedule VI
	 	–	 	Description of Company Financials
	Schedule VII
	 	–	 	Description of Projections
	Schedule VIII
	 	–	 	Indebtedness
	Schedule IX
	 	–	 	Labor Contracts
	Schedule X
	 	–	 	Tradenames
	Schedule XI
	 	–	 	Investments
	Schedule XII
	 	–	 	Transferee Representations
	Schedule XIII
	 	–	 	Outstanding Indebtedness for Money Borrowed
	 
	 	 	 	 
	Exhibit A
	 	–	 	Form of Note
	 
	 	 	 	 
	Exhibit B
	 	–	 	Form of Opinion of Company Counsel
	Exhibit C
	 	–	 	Form of Opinion of General Counsel
	Exhibit D
	 	–	 	Form of Opinion of Purchasers’ Counsel
	 
	 	 	 	 
	Exhibit E
	 	–	 	Form of Guaranty
	 
	 	 	 	 
	Exhibit F
	 	–	 	Form of Subrogation and Contribution Agreement
	 
	 	 	 	 
	Exhibit G
	 	–	 	Form of Existing Bank Loan Agreement






iv









 






NOTE AGREEMENT




CASH AMERICA INTERNATIONAL, INC.




As of December 28, 2005




To each of the Persons listed on Schedule I

attached hereto (collectively, the “Purchasers”)




     Ladies and Gentlemen:



     Cash America International, Inc. (the “Company”), a Texas corporation, hereby agrees with each
of you as follows:




	1.	 	PURCHASE AND SALE OF NOTES.





     1.01 Authorization of Notes.



     The Company will duly authorize the issue and sale of a series of its senior notes designated
“6.12% Senior Notes due December 28, 2015” and limited in aggregate original principal amount to
$40,000,000 (the “Notes”). The Notes will (a) be issuable as registered notes, without coupons, in
denominations permitted by Section 11.05, (b) be dated the date of issue thereof, (c) mature
December 28, 2015, (d) bear interest on the unpaid balance thereof from the date thereof to, but
excluding, the date the principal thereof shall have become due and payable at the rate of 6.12%
per annum, (e) bear interest on overdue principal, premium and (to the extent permitted by law)
interest at the Default Rate, (f) be entitled to the benefits of the Guaranty and (g) be in the
form of Exhibit A.



     1.02 Sale and Purchase of Notes.



     Subject to the terms and conditions of this Agreement, the Company agrees to sell to the
Purchasers, and the Purchasers agree to purchase from the Company, the Notes at 100% of the
principal amount thereof. Such sale and purchase is sometimes herein referred to as the “Private
Placement.” The Purchasers’ obligations hereunder are several and not joint obligations and no
Purchaser shall have any liability to any Person for the performance or non-performance of any
obligation by any other Purchaser hereunder.



     1.03 The Closing.



     The closing of the Private Placement (the “Closing”) shall take place at the offices of
Bingham McCutchen LLP, at 399 Park Avenue, New York, NY 10022 on such Business Day as may be agreed
upon by the Company and the Purchasers (the “Closing Date”). At the Closing, the Company will
deliver the Notes in the form of one or more Notes dated the date of the Closing, payable to the
respective Purchasers or their registered assigns as specified on Schedule I against payment of the
purchase price therefor by electronic funds transfer to account number 4761053503 at Wells Fargo
Bank for credit to such account as the Company may designate in writing delivered to the Purchasers
at least three Business Days prior to the Closing Date for use in accordance with Section 4.01. By
delivering payment on the Closing Date for the Notes, each



 









 




Purchaser shall be deemed to have confirmed as of the Closing Date that the representations
and warranties made by such Purchaser in Section 7 remains accurate as of the Closing Date. If, at
the Closing, the Company shall fail to tender the Notes to the Purchasers as provided above, or any
of the conditions specified in Section 3 shall not have been fulfilled to the satisfaction of the
Purchasers, the Purchasers shall, at their election, be relieved of all further obligations under
this Agreement, without thereby waiving any other rights it may have by reason of such failure or
such nonfulfillment.





	2.	 	DEFINITIONS AND INTERPRETATIONS.





     2.01 Definitions.



     For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, the following terms shall have the following respective meanings:




     “Affiliate” means (a) when used with reference to any corporation, any Person that,
directly or indirectly, owns or controls 5% or more of any class of Voting Stock of such
corporation or is a director or officer of such corporation or is a Person in which such
corporation has a 10% or greater direct or indirect equity interest, (b) when used with
reference to any partnership, any Person that, directly or indirectly, owns or controls 5%
or more of either the capital or profit interests of such partnership or is a partner of
such partnership or is a Person in which such partnership has a 5% or greater direct or
indirect equity interest, (c) when used with reference to any individual, any Person that is
related to such individual by blood or marriage or is a present or former ward or, guardian
of such individual or is a trust or estate in which such individual owns a 10% or greater
beneficial interest or of which such individual serves as trustee, executor or in any
similar capacity and (d) when used with reference to a trust or an estate, any Person that
is a trustee, executor, administrator or beneficiary thereof. Moreover, the term
“Affiliate”, when used with reference to any Person, shall also mean any other Person that,
directly or indirectly, controls or is controlled by or is under common control with such
Person. As used in the preceding sentence, the term “control” means the possession,
directly or indirectly, of the power to direct or to cause the direction of the management
and policies of the entity referred to, whether through ownership of voting securities, by
contract or otherwise, and the terms “controlling” and “controls” shall have meanings
correlative to the foregoing.




     “Agreement” means this Note Agreement, as amended, supplemented or modified from time
to time.




     “Anti-Terrorism Order” means United States Executive Order 13224, effective as of
September 24, 2001, Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism, 66 U.S. Fed. Reg. 49,079 (2001), as amended.




     “Applicable Contract” means any contract or agreement to which the Company or any
Subsidiary is a party or by which it or any of its Properties is bound or under or



2









 






pursuant to which it owns, maintains or operates any of its Properties or conducts
business.




     “Applicable Percentage” shall have the meaning set forth in §9.01 hereof.




     “Applicable Permit” means any Permit to which the Company or any Subsidiary is a party
or by which it or any of its Properties is bound or under or pursuant to which it owns,
maintains or operates any of its Properties or conducts business.




     “Assurance” means, as to any Person, any contract, agreement or understanding to
guarantee, or in effect guarantee, any indebtedness or obligation (the “Primary Obligation”)
of any other Person (the “Primary Obligor”) in any manner, whether directly or indirectly,
including agreements:




     (a) to purchase the Primary Obligation or any Property constituting security
therefor;




     (b) to advance or supply funds (i) for the purchase or payment of the Primary
Obligation or (ii) to maintain working capital or other balance sheet conditions, or
otherwise to advance or make available funds for the purchase or payment of the
Primary Obligation; or




     (c) to purchase Property, securities or services primarily for the purpose of
assuring the holder of the Primary Obligation of the ability of the Primary Obligor
to make payment of the Primary Obligation;




provided, however, that “Assurance” shall not include the endorsement by any Person, in the
ordinary course of business, of negotiable instruments or documents for deposit or
collection. The amount of any Assurance shall be deemed to be an amount equal to the stated
or determinable amount of the Primary Obligation in respect of which such Assurance is made
or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming the Person giving such Assurance is required to perform in respect
thereof) as determined by such Person in good faith.




     “Bankruptcy Law” has the meaning specified in Section 10.01(j).




     “Benefit Arrangement” means an employee benefit plan (within the meaning of Section
3(3) of ERISA) which is not a Plan and with respect to which the Company or a member of the
ERISA Group has an obligation or liability, whether or not current or contingent, to make
contributions or pay benefits.




     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banking institutions in New York, New York or Fort Worth, Texas are authorized or
required by law, regulation or executive order to be closed.




     “Called Principal” means, with respect to any Note, the principal of such Note that is
to be prepaid pursuant to Section 5.02 (any partial prepayment being applied in satisfaction
of required payments of principal in inverse order of their scheduled due



3









 






dates) or is declared to be or becomes immediately due and payable pursuant to Section
10.01, as the context requires.




     “CERCLA” means the Federal Comprehensive Environmental Response, Compensation and
Liability Act, as amended from time to time, together with all regulations and rulings
thereunder and all interpretations thereof by the Environmental Protection Agency.




     “Closing” has the meaning specified in Section 1.03.




     “Closing Date” has the meaning specified in Section 1.03.




     “Code” means the Internal Revenue Code of 1986, as amended from time to time, together
with all regulations and rulings thereunder and all interpretations thereof by the Internal
Revenue Service.




     “Company” has the meaning specified in the opening paragraph of this Agreement.




     “Company Financials” has the meaning specified in Section 6.03(a)(5).




     “Consolidated Adjusted Net Income” means, with respect to any period, consolidated net
income (after income taxes) of the Company and the Consolidated Subsidiaries for such
period, determined in accordance with GAAP (excluding, (i) any gain or loss in excess of
$1,000,000 (before income taxes) arising from the sale of capital assets during such period
and (ii) any other items during such period which would be considered extraordinary items,
in accordance with GAAP).




     “Consolidated Assets” means, as of any date, the total assets as would be reflected on
a consolidated balance sheet of the Company and the Consolidated Subsidiaries prepared as of
such date in accordance with GAAP.




     “Consolidated EBITDA” means, in respect of any period, Consolidated Adjusted Net Income
for such period plus, to the extent deducted in calculating such Consolidated Adjusted Net
Income, interest, income taxes, depreciation, amortization and any non-cash gains or losses
attributable to market fluctuations in the value of derivative contracts provided that, with
respect to any period during which a Person shall have become, or ceased to be, a
Subsidiary, or during which the Company or any Subsidiary shall have acquired or disposed of
an On-Going Business, the calculation of Consolidated EBITDA shall (a) include the EBITDA
(as defined below) for such period of each Person who shall have become a Subsidiary, and of
each On-Going Business acquired by the Company or any Subsidiary, during such period as if
such Person had been a Subsidiary or such On-Going Business had been owned by the Company or
a Subsidiary for the entire period, or (b) exclude the EBITDA for such period of each Person
who shall have ceased to be a Subsidiary, and of each On-Going Business disposed of by the
Company or any Subsidiary, during such period as if such Person had not been a Subsidiary at
any time during the entire period or such On-Going Business had not been owned or operated
by the Company or any Subsidiary at any time during such period. As used in this



4









 






definition, “EBITDA” with respect to any Person or On-Going Business for any period
shall mean, the net income (after income taxes) of such Person or On-Going Business for such
period, determined in accordance with GAAP plus, to the extent deducted in calculating such
net income, interest, income taxes, depreciation, amortization and any non-cash gains or
losses attributable to market fluctuations in the value of derivative contracts.




     “Consolidated Indebtedness for Money Borrowed” means, at any date, the Indebtedness for
Money Borrowed of the Company and the Consolidated Subsidiaries consolidated as of such date
in accordance with GAAP.




     “Consolidated Net Worth” means, as of any date, the total shareholders’ equity which
would appear on a consolidated balance sheet of the Company and the Consolidated
Subsidiaries prepared as of such date in accordance with GAAP.




     “Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which
would, in accordance with GAAP, be consolidated with those of the Company in its
consolidated financial statements as of such date.




     “Consumer Obligations” [means any Assurance by the Company or any Subsidiary entered
into in the ordinary course of business described in Section 9.15 pursuant to which the
Company or such Subsidiary guaranties financial commitments or obligations of its customers
to third party funding sources pursuant to an established customer financing program.




     “Default” means, with respect to any Loan Document, any event or condition that
constitutes, or with the giving of notice or the lapse of time or both would constitute, a
default thereunder or breach thereof. Without limitation of the foregoing, “Default” shall
include any Event of Default as well as any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.




     “Default Rate” means, at any time, a rate of interest per annum equal to the lesser of
(a) 2% above the interest rate then payable on the Notes and (b) the Highest Lawful Rate.




     “Discounted Value” means, with respect to the Called Principal of any Note, the amount
obtained by discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date with respect to
such Called Principal, in accordance with accepted financial practice and at a discount
factor (applied on a semiannual basis) equal to the Reinvestment Yield with respect to such
Called Principal.




     “Dollar Equivalent” shall have the meaning set forth in §11.23 hereof.




     “Dollars” and the sign “$” means lawful currency of the United States of America.



5









 






     “Domestic Subsidiary” means any Subsidiary other than a Non-Domestic Subsidiary.




     “Environmental Claim” shall mean any investigation, notice, violation, demand,
allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding or claim (whether administrative, judicial or private in nature) arising (a)
pursuant to, or in connection with an actual or alleged violation of, any Environmental Law,
(b) in connection with any Hazardous Material, (c) from any abatement, removal, remedial,
corrective or other response action in connection with a Hazardous Material, Environmental
Law or other order of a Governmental Authority or (d) from any actual or alleged damage,
injury, threat or harm to health, safety, natural resources or the environment.




     “Environmental Laws” means applicable laws (including the common law), regulations or
rules, and any applicable judicial or administrative interpretations thereof, as well as any
applicable judicial or administrative orders, decrees or judgments, relating to pollution,
environmental, health, safety, industrial hygiene or similar matters.




     “Environmental Permit” means any Permit required under applicable Environmental Laws.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and all rules, regulations, rulings and interpretations adopted by the Internal
Revenue Service or the Department of Labor thereunder.




     “ERISA Group” means all corporations, trades or businesses (whether or not
incorporated) and other persons or entities which, together with the Company, are treated as
a single employer under Section 414(b), (c), (m) or (o) of the Code.




     “Event of Default” has the meaning specified in Section 10.01.




     “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time in effect.




     “Executive Officer” means (a) the chairman of the board, the chief executive officer,
the chief operating officer(s), the chief financial officer, the chief accounting officer or
the chief legal officer of the Company or (b) any other officer of the Company who has been
elected by the Board of Directors of the Company and designated as an executive officer in
any Form 10-K or successor Form filed by the Company with the SEC.




     “Existing Bank Loan Agreement” means that certain First Amended and Restated Credit
Agreement dated as of February 24, 2005, among the Company, the banks party thereto, Wells
Fargo Bank, National Association, as administrative agent and JPMorgan Chase, N.A., as
syndication agent, as in effect on the Closing Date.




     “Existing Notes” means the 1995 Notes, the 1997 Notes and the 2002 Notes.



6









 






     “Fiscal Quarter” means a fiscal quarter of the Company.




     “Fiscal Year” means the fiscal year of the Company.




     “Funded Debt” means, in respect of any Person, all Indebtedness for Money Borrowed of
such Person (other than Indebtedness for Money Borrowed described in clauses (h), (i) and
(k) of the definition thereof).




     “GAAP” means generally accepted accounting principles as in effect from time to time as
set forth in the opinions, statements and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, the Financial Accounting
Standards Board and such other Persons who shall be approved by a significant segment of the
accounting profession and concurred in by the Independent Registered Public Accounting Firm.




     “Governmental Authority” means any foreign governmental authority, the United States of
America, any State of the United States or any political subdivision, agency or
instrumentality of any of the foregoing, and any agency, department, commission, board,
bureau, court or other tribunal having jurisdiction over any Loan Party, the Purchasers or
any other Holder or their respective Property, including the Texas Consumer Credit
Commissioner, the United States Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms and any other governmental authority charged with the enforcement of the Regulatory
Acts or otherwise having authority with respect to the regulation, supervision and licensing
of pawnshop activities in any jurisdiction in which the Company or any of the Subsidiaries
conducts business.




     “Guarantors” means the Subsidiaries listed in Schedule II and each other Person that
becomes bound by the Guaranty as contemplated by Section 9.17(a).




     “Guaranty” has the meaning specified in Section 3.10.




     “Hazardous Materials” means any hazardous substance, hazardous or toxic waste,
pollutant, contaminant, oil, petroleum product or other substance (a) which is listed,
regulated or designated as toxic or hazardous (or words of similar meaning and regulatory
effect), or with respect to which remedial obligations may be imposed, under any
Environmental Laws or (b) exposure to which may pose a health or safety hazard.




     “Hedging Obligations” means, in respect to any Person, the obligations of such Person
in respect of options, warrants, caps, floors, collars, swaps, swaptions, forwards and
futures which is entered into and at all times maintained to reduce: (a) the risk of
economic loss due to a change in the value, yield, price, cash flow or quantity of assets or
liabilities which such Person has acquired or incurred or anticipates acquiring or incurring
or (b) the risk of economic loss due to changes in the currency exchange rate or the degree
of exposure as to assets or liabilities denominated in a foreign currency which such Person
has acquired or incurred or anticipates acquiring or incurring.




     “Highest Lawful Rate” means the maximum nonusurious rate of interest permitted to be
charged by applicable federal or state law (whichever shall permit the



7









 






higher lawful rate, without conflict with other applicable federal or state laws) from
time to time in effect. The parties agree that, insofar as the provisions of Chapter 306 of
the Texas Finance Code are at any time applicable to the determination of the Highest Lawful
Rate, the Highest Lawful Rate shall be the “applicable ceiling” (as such term is used in
such Chapter 306) from time to time in effect, provided that, to the extent permitted by
such Chapter 306, each Holder may from time to time by notice to the Company revise the
election of such interest rate ceiling as such ceiling affects the then current or future
amounts outstanding under the Notes held by such Holder.




     “Holder” means (a) the Purchasers so long as any such Purchaser is obligated to
purchase the Notes hereunder or holds any outstanding Note and (b) any other holder from
time to time of any outstanding Note.




     “Indebtedness for Money Borrowed” means, with respect to any Person and without
duplication:




     (a) the principal amount of all indebtedness of such Person, current or funded,
secured or unsecured, incurred in connection with borrowings (including the sale of
debt securities),




     (b) all indebtedness of such Person created or arising under any conditional
sale or other title retention agreement with respect to any Property acquired by
such Person,




     (c) all indebtedness of such Person issued, incurred or assumed in respect of
the purchase price of Property or services except for accounts payable incurred in
the ordinary course of business,




     (d) all obligations of such Person evidenced by a note, bond, debenture or
similar instrument,




     (e) the present value (determined in accordance with GAAP) of all obligations
of such Person under leases which shall have been or should be recorded as
capitalized leases in accordance with GAAP or under any Synthetic Lease of such
Person,




     (f) all Assurances (other than Consumer Obligations) of such Person in respect
of indebtedness of any other Person of any of the types described in the preceding
clauses (a) through (e), provided that, when calculating the amount of any Person’s
Indebtedness for Money Borrowed, no Assurance of such Person of the type described
in this clause (f) shall be included in such calculation unless, and then only to
the extent that, the indebtedness relating to such Assurance, when aggregated with
the total indebtedness relating to all other outstanding Assurances of the Loan
Parties of the type described in this clause (f), exceeds $1,000,000,




     (g) the amount of all sinking fund payments or other mandatory redemption or
payments on any class of capital stock of such Person,



8









 






     (h) the maximum stated amount from time to time available for drawing under any
letters of credit issued at the request of such Person,




     (i) the amount of any unreimbursed drawings under letters of credit issued at
the request of such Person,




     (j) Receivables Facility Attributed Indebtedness of such Person, and




     (k) accrued obligations of such Person in respect of earnout or similar
payments which (i) are due and payable or (ii) constitute “Indebtedness” under the
Existing Bank Loan Agreement.




     For all purposes hereof, the Indebtedness for Money Borrowed of any Person shall
include the Indebtedness for Money Borrowed of any partnership or joint venture in which
such person is a general partner or a joint venturer, unless such Indebtedness for Money
Borrowed is non-recourse to such Person.




     “Indemnified Liabilities” has the meaning specified in §11.21 hereof.




     “Indemnitees” means, collectively, the Purchasers, each Transferee and each Holder and
their respective successors and assigns, and the officers, trustees, directors and employees
of each of the foregoing.




     “Independent Registered Public Accounting Firm” means PricewaterhouseCoopers LLP or
another firm of independent public accountants of recognized national standing and
registered with the Public Company Accounting Oversight Board selected by the Company.




     “Investment” means, as applied to any Person, (i) any direct or indirect purchase or
other acquisition by such Person of stocks, bonds, notes, debentures or other securities of
any other Person, (ii) any direct or indirect loan, advance, extension of credit or capital
contribution by such Person to any other Person, (iii) any Assurance by such Person of any
indebtedness of any other Person, (iv) the subordination by such Person of any claim against
any other Person to other indebtedness of such other Person and (v) any other item which
would be classified as an “investment” on a balance sheet of such Person prepared in
accordance with GAAP, including any direct or indirect contribution by such Person of
Property to a joint venture, partnership or other business entity in which such Person
retains an interest.




     “Judgment Currency” and “Judgment Currency Conversion Date” have the meanings set forth
in §11.23 hereof.




     “Legal Requirements” means any and all (a) applicable constitutional provisions, laws
(statutory, administrative, judicial or otherwise, including those established pursuant to
common law or equity) ordinances, treaties, rules, codes, standards and regulations (or any
interpretation of any of the foregoing), whether foreign or domestic, including, without
limitation, the Anti-Terrorism Order, the USA Patriot Act and Environmental Laws, (b)
judgments, orders, injunctions and decrees, (c) Permits and



9









 






(d) contracts with Governmental Authorities relating to compliance with the items
described in (a), (b) or (c) above.




     “Lien” means any mortgage, pledge, charge, encumbrance, security interest, collateral
assignment, conditional sale or title retention arrangement or other lien or restriction of
any kind, whether based on common law, constitutional provision, statute or contract.




     “Loan Documents” means, collectively, this Agreement, the Notes, the Guaranty, the
Subrogation and Contribution Agreement and all other instruments and documents executed and
delivered to the Purchasers by the Loan Parties, or any of them, pursuant to this Agreement.




     “Loan Parties” means, collectively, the Company and the Guarantors.




     “Make-Whole Premium” means, with respect to the Called Principal of any Note, a premium
equal to the excess, if any, of the Discounted Value of such Called Principal over such
Called Principal. The Make-Whole Premium shall in no event be less than zero.




     “Material Adverse Effect” means any circumstance or event of whatever nature which (a)
could reasonably be expected to have a material adverse effect on the financial condition,
business, operations or Properties of the Company and the Subsidiaries, taken as a whole,
(b) could reasonably be expected to diminish or impair in any material respect the ability
of the Company to perform any of its obligations under the Loan Documents to which it is a
party, (c) could reasonably be expected to diminish or impair in any material respect the
ability of the Purchasers or any other Holder to enforce any of the Obligations or to
exercise or enforce any of their rights and remedies under the Loan Documents, (d) causes an
Event of Default, (e) causes a Default which could reasonably be expected to become an Event
of Default or (f) could reasonably be expected to subject the Purchasers or any other Holder
to civil or criminal liability.




     “Material Contract” means any contract, agreement or instrument to which the Company or
any Subsidiary is a party (a) which calls for payments to or from the Company or such
Subsidiary of more than $10,000,000 (or its equivalent in other currencies) during any
12-month period or (b) pursuant to which the Company or such Subsidiary acquires any right
to an interest in Property or a right to obtain services if the Company’s or such
Subsidiary’s inability to obtain such interest or services, as the case may be, could
reasonably be expected to have a Material Adverse Effect, provided that “Material Contract”
shall not include any Loan Document or any agreement creating or evidencing Indebtedness for
Money Borrowed.




     “Net Equity Proceeds” means the proceeds, after payment of all underwriters fees and
other expenses, received by the Company in consideration of its sale of its equity
securities, provided that the gross amount of such proceeds shall be deemed to be the amount
of cash received or the fair value of any property received or obligations satisfied in
connection with such sale.



10









 






     “New Entity” has the meaning specified in §9.17 hereof.




     “1995 Guaranty” means that certain Joint and Several Guaranty dated as of July 7, 1995
delivered by the Company and certain of its Subsidiaries in connection with the issuance and
sale of the 1995 Notes.




     “1995 Loan Documents” means the “Loan Documents” — as defined in the 1995 Note
Agreement.




     “1995 Note Agreement” means that certain Note Agreement dated as of July 7, 1995
between the Company and Teachers Insurance and Annuity Association of America, as amended.




     “1995 Notes” means those certain 8.14% Senior Notes due July 7, 2007 issued by the
Company under and pursuant to the 1995 Note Agreement.




     “1997 Guaranty” means that certain Joint and Several Guaranty dated as of December 1,
1997 delivered by the Company and certain of its Subsidiaries in connection with the
issuance and sale of the 1997 Notes.




     “1997 Loan Documents” means the “Loan Documents” as defined in the 1997 Note
Agreement.




     “1997 Note Agreement” means that certain Note Agreement dated as of December 1, 1997
between the Company and the purchasers listed on Schedule I thereto, as amended.




     “1997 Notes” means those certain 7.10% Senior Notes due January 2, 2008 issued by the
Company under and pursuant to the 1997 Note Agreement.




     “Non-Domestic Indebtedness” means Indebtedness for Money Borrowed of one or more
Non-Domestic Subsidiaries.




     “Non-Domestic Subsidiary” means a Subsidiary which is incorporated in, or conducts a
significant portion of its business activities in, any one or more jurisdictions outside of
the United States.




     “Non-Wholly-Owned Subsidiary” means any Subsidiary (other than a Wholly-Owned
Subsidiary).




     “Notes” has the meaning specified in Section 1.01.




     “Obligations” means all obligations, liabilities and indebtedness of every nature of
the Loan Parties from time to time owing to the Purchasers and the other Holders under the
Loan Documents, including, without limitation, (a) all obligations of the Company under the
Loan Documents to pay principal, premium and interest in respect of the Notes, (b) all
obligations of the Guarantors in respect of the Guaranty, (c) all obligations of the Loan
Parties under the Loan Documents to reimburse or indemnify the



11









 






Purchasers or any other Indemnitee and (d) all obligations of the Loan Parties to pay
fees and expenses pursuant to Section 11.02 and similar sections of the other Loan
Documents.




     “Officers’ Certificate” means a certificate executed on behalf of the Company by at
least two of its Responsible Officers (in their representative capacities and not in their
individual capacities).




     “On-Going Business” means a distinct operating business, whether operated as a division
of a larger business operation or operated independently, which regardless of the form of
legal entity, owns or operates the assets and has the liabilities, of such business.




     “Organizational Documents” means (i) with reference to any Person that is a
corporation, its articles or certificate of incorporation and its bylaws and (ii) with
reference to any Person that is a partnership, its partnership agreement and all other
instruments relating to its formation, existence or governance.




     “Overall Transaction” means the Private Placement and the guarantees and other
transactions and activities contemplated by the Loan Documents.




     “Permits” means any and all permits, authorizations, certificates, approvals,
registrations, variances, licenses, franchises, exemptions or orders issued, granted or
otherwise made available by any Governmental Authority.




     “Permitted Liens” means:




     (a) Liens (if any) granted to, or for the benefit of, all of the Holders to
secure the Obligations;




     (b) Liens in existence on the date hereof and described in Schedule IV;




     (c) bonds, pledges or deposits made to secure payment of worker’s compensation
(or to participate in any fund in connection with worker’s compensation),
unemployment insurance, pensions or social security programs;




     (d) Liens imposed by mandatory provisions of law such as for materialmen’s,
mechanics, warehousemen’s and other like Liens arising in the ordinary course of
business, securing indebtedness whose payment is not yet due, and landlords liens,
whether arising through contract or by operation by law, but only if the same are
not yet due and payable or if the same are being contested in good faith and the
payment of which is not at the time required by Section 8.03,




     (e) Liens for taxes, assessments and governmental charges or levies imposed
upon a Person or upon such Person’s income or profits or property, but only if the
same are not yet due and payable or if the same are being contested in good faith
and the payment of which is not at the time required by Section 8.03;



12









 






     (f) good faith deposits in connection with tenders, leases, real estate bids or
contracts (other than contracts involving the borrowing of money), bonds, pledges or
deposits to secure insurance policies or to secure public or statutory obligations,
deposits to secure (or in lieu of) surety, stay, appeal or customs bonds and
deposits to secure the payment of taxes, assessments, customs duties or other
similar charges;




     (g) encumbrances consisting of zoning restrictions, easements, or other
restrictions on the use of real property, provided that such do not materially
impair the use of such property for the uses intended, and none of which is violated
by existing or proposed structures or land use;




     (h) Liens on Property of any Consolidated Subsidiary securing obligations of
such Consolidated Subsidiary owing to the Company or to any Wholly-Owned Subsidiary;




     (i) Liens created to secure (A) purchase money indebtedness incurred to finance
the purchase price of the Property acquired in the ordinary course of business, but
only if each such Lien shall secure only the purchase money indebtedness incurred to
purchase the Property so acquired and shall be confined solely to such Property and
(B) the indebtedness permitted by Section 9.05(b)(11); provided, however, that the
aggregate amount, without duplication, of all obligations at any time secured by all
Liens referred to in this clause (i) and Liens referred to in clause (l) and clause
(m) of this definition of Permitted Liens does not exceed the greater of $10,000,000
or 2% of Consolidated Assets];




     (j) Liens on Temporary Cash Investments, but only if (A) such Liens secure
short-term indebtedness owed by the Company or a Consolidated Subsidiary to the
broker or investment banking firm which is holding such Temporary Cash Investments
for the account of the Company or a Consolidated Subsidiary and (B) such
indebtedness is to be repaid, in the ordinary course of business, by the collection
or liquidation of such Temporary Cash Investments at the maturity of such Temporary
Cash Investments;




     (k) Liens arising by operation of law (and not by contract) in connection with
judgments being appealed to the extent such judgment or judgments would not
otherwise result in an Event of Default described in Section 10.01(p)




     (l) Liens on property of a Person existing at the time such Person is merged
with or into or consolidated with the Company or any Subsidiary of the Company;
provided that (i) such Liens were not incurred in contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or the Subsidiary and (ii) the aggregate
amount, without duplication, of all obligations at any time secured by Liens
referred to in this clause (l) and Liens referred to in clause (i) and clause



13









 






     (m) of this definition of Permitted Liens does not exceed the greater of (i)
$10,000,000 or (ii) 2% of Consolidated Assets;




     (m) Liens on property existing at the time of acquisition thereof by the
Company or any Subsidiary of the Company, provided (i) that such Liens were not
incurred in contemplation of such acquisition and (ii) the aggregate amount, without
duplication, of all obligations at any time secured by Liens referred to in this
clause (m) and Liens referred to in clause (i) and clause (l) of this definition of
Permitted Liens does not exceed the greater of (i) $10,000,000 or (ii) 2% of
Consolidated Assets;




     (n) Liens securing Permitted Refinancing Indebtedness in respect of any
Indebtedness for Money Borrowed secured by Liens referred to in the foregoing
clauses (b), (i), (l) and (m) of this definition, provided that such Liens do not
extend to any other property of the Company or any Subsidiary of the Company and the
principal amount of the Permitted Refinancing Indebtedness secured by such Lien is
not increased; and




     (r) Liens securing other Indebtedness for Money Borrowed not exceeding
$2,500,000 at any time outstanding.




     “Permitted Refinancing Indebtedness” means any Indebtedness for Money Borrowed of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund other Indebtedness for Money
Borrowed of the Company or any of its Subsidiaries (other than intercompany indebtedness);
provided that: (i) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus accrued interest or premium (including any make-whole premium), if any,
on, the Indebtedness for Money Borrowed so extended, refinanced, renewed, replaced, defeased
or refunded (plus the amount of reasonable expenses incurred in connection therewith), (ii)
such Permitted Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness for Money Borrowed being extended,
refinanced, renewed, replaced, defeased or refunded; provided that if the original maturity
date of such Indebtedness for Money Borrowed is after the stated maturity of the Notes, then
such Permitted Refinancing Indebtedness shall have maturity at least 180 days after the
Notes, (iii) if the Indebtedness for Money Borrowed being extended, refinanced renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of the Notes and is subordinated in right of payment to the Notes on terms at least as
favorable to the Holders as those contained in the documentation governing the Indebtedness
for Money Borrowed being extended, refinanced, renewed, replaced, defeased or refunded, and
(iv) such Indebtedness for Money Borrowed is incurred either by the Company or by the
Subsidiary who is the obligor on the Indebtedness for Money Borrowed being extended,
refinanced, renewed, replaced, defeased or refunded.



14









 






     “Person” means and includes an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a Governmental Authority.




     “Plan” means an employee pension benefit plan (within the meaning of Section 3(3) of
ERISA) which is or has been established or maintained, or to which contributions are or have
been made, by the Company, any Subsidiary or any Related Person or as to which the Company,
any Subsidiary or any Related Person would be treated as a contributing sponsor under
Section 4069 of ERISA if such plan were to be terminated.




     “Private Placement” has the meaning specified in Section 1.02.




     “Projections” has the meaning specified in Section 6.03(a)(6).




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




     “Purchasers” has the meaning specified in the opening paragraph of this Agreement.




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




     “Regulatory Acts” means (a) the Texas Pawnshop Act and (b) all other foreign, Federal
or state laws (statutory, administrative, judicial or otherwise) relating to pawnshops and
activities incidental thereto in any jurisdiction in which the Company or any Subsidiary
conducts business.




     “Reinvestment Yield” means with respect to the Called Principal of any Note, the sum of
50 basis points (0.50%) over the yield to maturity implied by (a) the yields reported, as of
10:00 A.M. (New York City time) two Business Days next preceding the Settlement Date with
respect to such Called Principal, on the display designated as page PX1 as reported by the
Bloomberg Financial Markets (or such other display as may replace page PX1 on Bloomberg
Financial Markets), or if Page PX1 (or its successor screen on Bloomberg Financial Markets)
is unavailable, the Telerate Access Service screen which corresponds most closely to Page
PX1, for the most recently issued traded U.S. Treasury securities having a maturity equal to
the Remaining Average Life of such Called Principal as of such Settlement Date, or, if such
yields shall not be reported as of such time or the yields reported as of such time shall
not be ascertainable, (b) the Treasury Constant Maturity Series yields reported, for the
latest day for which such yields shall have been so reported as of the Business Day next
preceding the Settlement Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor publication) for actively traded
U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date. Such implied yield shall be determined,
if necessary, by (i) converting U.S. Treasury bill quotations to bond equivalent yields in



15









 






accordance with accepted financial practice and (ii) interpolating linearly between
reported yields. The Reinvestment Yield shall be rounded to the number of decimal places as
appears in the interest rate of the applicable Note.




     “Related Person” means any trade or business, whether or not incorporated, which,
together with the Company, would be treated as a single employer under Section 414 of the
Code.




     “Release” has the meaning specified in CERCLA § 101(22) (42 U.S.C. § 9601(22)).




     “Remaining Average Life” means, with respect to the Called Principal of any Note, the
number of years (calculated to the nearest one-twelfth year) obtained by dividing (a) such
Called Principal into (b) the sum of the products obtained by multiplying (i) the principal
component of each Remaining Scheduled Payment of such Called Principal (but not of interest
thereon) by (ii) the number of years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called Principal and the respective
scheduled due date of such Remaining Scheduled Payment of such Called Principal.




     “Remaining Dollar-Years” means, with respect to any Indebtedness for Money Borrowed at
any time, the amount obtained by (1) multiplying the amount of each then remaining required
repayment, including repayment at final maturity, by the number of years (calculated at the
nearest one-twelfth) which shall elapse between such time and the date of that required
repayment, and (2) totaling all the products obtained in (1).




     “Remaining Scheduled Payments” means, with respect to the Called Principal of any Note,
all payments of such Called Principal and interest thereon that would be due on or after the
Settlement Date with respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date provided that, if such Settlement Date is not a
date on which interest payments are due to be made under the terms of the Notes, the amount
of the next succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to
Section 5.02 or Section 10.01, as the case may be.




     “Required Holders” means, at any time, the Holder or Holders of at least 51% of the
aggregate principal amount of the Notes then outstanding.




     “Responsible Officer” means, as to any Loan Party, the chairman of the board, the chief
executive officer, the president, the chief operating officer(s), the chief financial
officer, the principal accounting officer, the chief legal officer, the vice president of
finance or the treasurer of such Loan Party.




     “SEC” means the Securities and Exchange Commission.




     “Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations promulgated thereunder from time to time in effect.



16









 






     “Settlement Date” means, with respect to the Called Principal of any Note, the date on
which such Called Principal is to be prepaid pursuant to Section 5.02 or is declared to be
or becomes immediately due and payable pursuant to Section 10, as the context requires.




     “Stock” means (i) in the case of any corporation, capital stock of any class of such
corporation (however designated) and warrants or options to purchase such capital stock,
(ii) in the case of any partnership, partnership interests of such partnership (however
designated) and warrants or options to purchase such partnership interests and (iii) in the
case of any other entity, equity interests of such entity (however designated) and warrants
or options to purchase such equity interests.




     “Subrogation and Contribution Agreement” means the Subrogation and Contribution
Agreement of even date herewith among the Company and the Guarantors substantially in the
form of Exhibit F.




     “Subsidiary” means, at any time, (a) any corporation 50% or more of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company at such time and (b)
any partnership, association, joint venture or other entity in which the Company owns,
directly or indirectly, a 50% or greater equity interest (however designated) at such time.




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




     “Temporary Cash Investment” mean any of the following investments: (a) Investments in
open market commercial paper maturing within 180 days after acquisition thereof and rated at
least A-1 (or the equivalent thereof) by Standard & Poor’s Ratings Group (or any successor
thereto which is a nationally recognized rating agency) or at least P-1 (or the equivalent
thereof) by Moody’s Investors Service, Inc. (or any successor thereto which is a nationally
recognized rating agency), (b) Investments in marketable obligations, maturing within 180
days after acquisition thereof, issued or unconditionally guaranteed by the United States of
America or an instrumentality or agency thereof and entitled to the full faith and credit of
the United States of America, (c) Investments in money market funds that invest solely in
the types of Investments permitted under clauses (a) and (b) above, (d) Investments in
repurchase agreements of any financial institution or brokerage firm acceptable to the
Required Holders which are fully secured by securities described in clause (b) above, (e)
certificates of deposit and time deposits (including Eurodollar deposits), maturing within
180 days from the date of deposit thereof, with a domestic office of (i) any national or
state bank or trust company organized under the laws of the United States of America or any
state therein and having capital, surplus and undivided profits of at least $100,000,000 or
(ii) any other national or state bank so long as all such deposits are federally insured and
(f) in the case of any



17









 






Non-Domestic Subsidiary, certificates of deposit and other instruments substantially
equivalent to a certificate of deposit maturing within 180 days from the date of acquisition
and issued by a bank or trust company organized and located in the jurisdiction where such
Non-Domestic Subsidiary maintains its headquarters having capital, surplus and undivided
profits of at least $100,000,000 (or its equivalent in other currencies).




     “Transferee” means any direct or indirect transferee of all or any part of any Note
purchased by the Purchasers under this Agreement.




     “2002 Guaranty” means that certain Joint and Several Guaranty dated as of August 12,
2002, delivered by the Company and certain of its Subsidiaries in connection with the
issuance and sale of the 2002 Notes.




     “2002 Loan Documents” means the “Loan Documents” as defined in the 2002 Note
Agreement.




     “2002 Note Agreement” means that certain Note Agreement dated as of August 12, 2002
between the Company and the purchasers listed on Schedule I thereto, as amended.




     “2002 Notes” means those certain 7.20% Senior Notes due August 12, 2009 issued by the
Company under and pursuant to the 2002 Note Agreement.




     “USA Patriot Act” means United States Public Law 107-56, Uniting and Strengthening
America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA
Patriot Act) Act of 2001, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.




     “Voting Stock” means, when used with respect to any Person, any Stock of such Person
having general voting power under ordinary circumstances to elect a majority of the board of
directors (or other governing body) of such Person (irrespective of whether at the time any
Stock of such Person shall have or might have voting power by reason of the happening of any
contingency).




     “Weighted Average Life to Maturity” means, with respect to any Indebtedness for Money
Borrowed, as at the time of the determination thereof the number of years obtained by
dividing the then Remaining Dollar-Years of such indebtedness at such time by the then
outstanding principal amount of such indebtedness.




     “Wholly-Owned Subsidiary” means a Consolidated Subsidiary, all of the outstanding Stock
(other than directors’ qualifying shares, if required by law) of which are at the time owned
directly by the Company or by one or more Wholly-Owned Subsidiaries or by the Company and
one or more Wholly-Owned Subsidiaries.




     2.02 Interpretation.




     (a) In this Agreement, unless a clear contrary intention appears:



18









 






     (1) the singular number includes the plural number and vice versa;




     (2) reference to any gender includes each other gender;




     (3) the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Agreement as a whole and not to any particular Section or other
subdivision;




     (4) 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,
and reference to a Person in a particular capacity excludes such Person in any other
capacity or individually, provided that nothing in this clause (4) is intended to
authorize any assignment not otherwise permitted by this Agreement;




     (5) reference to any agreement, document, instrument or report means, unless
the context otherwise requires, such agreement, document, instrument or report as in
effect when delivered to the Purchasers pursuant to this Agreement and as the same
may thereafter be amended, supplemented or modified in accordance with the terms
thereof and hereof, and reference to any Note includes any note issued pursuant
hereto in renewal, rearrangement, reinstatement, enlargement, amendment,
modification, extension, substitution or replacement therefor;




     (6) reference to any Section, Schedule or Exhibit means such Section hereof or
such Schedule or Exhibit hereto;




     (7) the words “including” (and with correlative meaning “include”) means
including, without limiting the generality of any description preceding such term;




     (8) with respect to the determination of any period of time, the word “from”
means “from and including” and the word “to” means “to but excluding”;




     (9) reference to any Legal Requirement means such Legal Requirement as amended,
modified, codified or reenacted, in whole or in part, and in effect from time to
time;




     (10) accounting terms used but not defined herein shall be construed in
accordance with GAAP, and whenever the character or amount of any asset or liability
or item of income or expense is required to be determined, or any consolidation or
accounting computation is required to be made, for purposes hereof, such
determination or computation shall be made in accordance with GAAP;




     (11) the word “knowledge”, when used in any representation or warranty of the
Company contained herein, means the actual knowledge of any Responsible Officer;



19









 






     (12) where any provision of this Agreement refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person; and




     (13) if any action or failure to act by the Company violates any covenant or
obligation of the Company contained herein, such violation shall not be excused by
the fact that such action or failure to act is permitted by any other covenant or
obligation of the Company contained herein.




     (b) Should there be a change in GAAP following the date of this Agreement and should
either (i) the Company determine (in good faith) that the requirements of one or more of the
covenants contained in Section 9 are materially increased or made more severe as a result
thereof or (ii) the Required Holders determine (in good faith) that the requirements of one
or more of the covenants contained in Section 9 are materially reduced or relaxed as a
result thereof, then the Company and such Required Holders shall enter into good faith
negotiations with the desired result being that such covenant(s) shall be amended in such a
way that the criteria therein set forth for evaluating the financial condition of the
Company and/or the Subsidiaries shall be the same after such amendment as if such change in
GAAP had not been made.




     (c) The Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.




     (d) No provision of this Agreement shall be interpreted or construed against any Person
solely because that Person or its legal representative drafted such provision.




	3.	 	CONDITIONS OF CLOSING.





     The obligation of the Purchasers to purchase and pay for the Notes hereunder is subject to the
satisfaction of the following conditions:



     3.01 Representations and Warranties.



     The representations and warranties of the Loan Parties contained in the following instruments
shall be true and correct at the time of Closing: (i) this Agreement, (ii) the other Loan Documents
and (iii) the instruments delivered by one or more of the Loan Parties pursuant to this Section 3.



     3.02 Performance; No Default.



     The Loan Parties shall have performed and complied with all agreements and conditions
contained in this Agreement or in the other Loan Documents required to be performed or complied
with by them prior to or at the Closing. At the time of Closing, no Default shall have occurred
and be continuing or would result from the consummation of the Overall Transaction.



20









 





     3.03 Compliance Certificate.



     The Purchasers shall have received an Officers’ Certificate, dated the Closing Date and
satisfactory in form and substance to the Purchasers, certifying that the conditions specified in
Sections 3.01 and 3.02 have been fulfilled. If required by the Purchasers, such Officers’
Certificate will also certify as to such matters of fact as the Purchasers may reasonably request
to enable the Purchasers to determine compliance with such conditions.



     3.04 Opinions of Counsel.



     The Purchasers shall have received (a) a favorable opinion from Jenkens & Gilchrist, a
Professional Corporation, counsel for the Company and the Guarantors, in the form of Exhibit B, (b)
a favorable opinion of J. Curtis Linscott, General Counsel to the Company and the Guarantors, in
the form of Exhibit C and (c) a favorable opinion from Bingham McCutchen LLP, special counsel for
the Purchasers, in the form of Exhibit D. Each such opinion shall (i) be addressed to the
Purchasers, (ii) be dated the Closing Date and (iii) state that all Transferees are entitled to
rely thereon as though it were addressed to them.



     3.05 Resolutions, Etc.



     The Purchasers shall have received (a) copies of resolutions of the Board of Directors of each
Loan Party, certified as of the Closing Date by the Secretary or an Assistant Secretary of such
Loan Party, duly authorizing the Overall Transaction, (b) a certificate as to the incumbency and
authority of the Person or Persons executing and delivering Loan Documents on behalf of such Loan
Party and (c) such other documents and evidence as the Purchasers or its special counsel may
request with respect to any Loan Party or the Overall Transaction, including the taking of all
corporate proceedings in connection therewith and compliance with the conditions set forth herein,
in each case in form and substance satisfactory to the Purchasers.



     3.06 Purchase Permitted by Applicable Laws, Etc.



     The consummation of the Private Placement on the terms and conditions herein provided
(including the use of the proceeds of such Notes by the Company) shall (i) not violate any Legal
Requirement (including, without limitation, section 5 of the Securities Act or Regulation U, T or X
of the Board of Governors of the Federal Reserve System), (ii) not subject the Purchasers to
any tax (other than routine income taxes), penalty, liability or other onerous condition under
or pursuant to any Legal Requirement and (iii) constitute a legal investment under the laws and
regulations of each jurisdiction to which the Purchasers are subject, but without resort to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) which permit the making of an
investment without restriction as to the character of the particular investment being made. If
required by the Purchasers, the Purchasers shall have received an Officers’ Certificate, dated the
Closing Date, certifying as to such matters of fact as the Purchasers may reasonably specify to
enable the Purchasers to determine compliance with the conditions set forth in the preceding
sentence.



21









 





     3.07 Payment of Closing Fees.



     The Company shall have paid the fees and disbursements which it is obligated to pay pursuant
to Section 11.02 and which have been invoiced to the Company prior to the time of Closing.



     3.08 Private Placement Number.



     The CUSIP Service Bureau of Standard & Poor’s Information Group shall have issued to the
Purchasers a private placement number with respect to the Notes.



     3.09 Notes.



     The Purchasers shall have received the Notes complying with the requirements of Section 1.03.



     3.10 Guaranty; Subrogation and Contribution Agreement.



     Each Guarantor and the Company shall have duly authorized, executed and delivered to the
Purchasers a Joint and Several Guaranty, dated the Closing Date, in the form of Exhibit E (as may
be amended from time to time, the “Guaranty”) and a Subrogation and Contribution Agreement.



     3.11 Other Loan Documents.



     Each of the other Loan Documents shall (a) have been duly authorized, executed, acknowledged
(if appropriate) and delivered by the respective Loan Parties thereto, (b) be dated as of the
Closing Date, (c) be in form and substance satisfactory to the Purchasers and (d) be in full force
and effect on the Closing Date without any default existing thereunder. A counterpart of each Loan
Document executed by the Loan Parties thereto shall have been delivered to the
Purchasers or its special counsel. Each Loan Document shall constitute the valid and binding
obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with the
terms thereof.



     3.12 Proceedings.



     All proceedings taken or to be taken in connection with the Overall Transaction prior to or on
the Closing Date (and all documents incident thereto) shall be satisfactory in substance and form
to the Purchasers, and the Purchasers and its special counsel shall have received all such
counterpart originals or certified or other copies of such documents as the Purchasers may
reasonably request.



4. USE OF PROCEEDS.




     4.01 Use of Proceeds.



     The Company will apply the proceeds of the Private Placement solely to pay the costs and
expenses described in Section 11.02 and to repay indebtedness of the Company. Nothing in



22









 




this
Section 4.01 is intended to prohibit the Company from borrowing or re-borrowing under the Existing
Bank Loan Agreement.




     4.02 Margin Regulations.



     The Company will not, directly or indirectly, use any of the proceeds of the Private Placement
for the purpose, whether immediate, incidental or ultimate, of buying a “margin stock” or of
maintaining, reducing or retiring any indebtedness originally incurred to purchase a stock that is
currently a “margin stock”, or for any other purpose which might constitute the private placement
of a “purpose credit,” in each case within the meaning of Regulation U (12 C.F.R. 221, as amended)
or Regulation T (12 C.F.R. 220, as amended) of the Board of Governors of the Federal Reserve
System, or otherwise take or permit to be taken any action which would involve a violation of such
Regulation U or T or of Regulation X (12 C.F.R. 224, as amended) of the Board of Governors of the
Federal Reserve System or any other regulation of such Board.



5. PREPAYMENTS.




     5.01 Required Prepayments of the Notes.




     (a) Unless the aggregate principal amount of the then outstanding Notes shall have
become due and payable pursuant to Section 10.01, the Company shall apply to the
prepayment of the Notes, without premium, and there shall become due and payable, the
sum of $6,666,666.67 on December 28 in each of the years 2010 through 2014 (or, in the case
of any such prepayment, such lesser principal amount of the Notes as shall then be
outstanding), leaving $6,666,666.67 principal amount (or such other principal amount thereof
as then remains unpaid) of the Notes for payment at their stated maturity on December 28,
2015. Each such prepayment shall be at 100% of the principal amount of the Notes so
prepaid, together with all accrued and unpaid interest thereon to the date of prepayment.
No partial prepayment of the Notes pursuant to Section 5.02 shall relieve the Company from
its obligation to make the required prepayments provided for in this Section 5.01.




     (b) Whenever any prepayment to be made under this Section 5.01 shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and the amount of such prepayment shall bear interest at the
applicable rate during such extension.



     5.02 Optional Prepayments of the Notes.



     The Company may, at its option, upon notice as provided in Section 5.03, at any time or from
time to time, prepay any part (in a principal amount of at least $1,000,000 or an integral multiple
of $100,000 in excess thereof) or all of the Notes at 100% of the principal amount so prepaid,
together with all accrued and unpaid interest thereon to the date of prepayment, plus a premium
equal to the Make-Whole Premium, if any, on the amount so prepaid, determined as of two Business
Days prior to the date of such prepayment pursuant to this Section 5.02.



23









 





     5.03 Notice of Optional Prepayments; Officers’ Certificate.



     The Company shall give each Holder irrevocable written notice of each optional prepayment of
Notes made under Section 5.02 not less than 30 nor more than 60 days prior to the date fixed for
such prepayment (which shall be a Business Day), in each case specifying (a) such prepayment date,
(b) the aggregate principal amount of the Notes to be prepaid, (c) the aggregate principal amount
of the Notes held by such Holder to be prepaid, (d) that a Make-Whole Premium may be payable, (e)
the date when such Make-Whole Premium will be calculated, (f) the estimated Make-Whole Premium
together with a reasonably detailed calculation of such Make-Whole Premium and (g) the accrued
interest applicable to the prepayment. The Company will give each Holder, one Business Day prior
to the date scheduled for any such prepayment, an Officers’ Certificate certifying that the
conditions of Section 5.02 have been fulfilled and specifying the particulars of such fulfillment,
and setting forth the calculations used in computing such Make-Whole Premium, or stating that no
Make-Whole Premium is due and including the reason for such statement.



     5.04 Allocation of Partial Prepayments.



     Any partial prepayment of the Notes shall be allocated among all Notes at the time outstanding
in proportion, as nearly as practicable, to the respective unpaid principal amounts of the Notes so
outstanding, with adjustments, to the extent practicable, to compensate for any prior payments not
made exactly in such proportion. All partial prepayments shall be applied to the Notes in
anticipation and satisfaction of the prepayments required to be made by the provisions of Section
5.01, in inverse order of the maturity thereof.



     5.05 Maturity; Surrender, Etc.



     In the case of any prepayment of the Notes pursuant to this Section 5, the principal amount of
each Note to be prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such date and the applicable
Make-Whole Premium, if any. From and after such date, unless the Company shall fail to pay such
principal amount when due and payable, together with the interest and Make-Whole Premium, if any,
as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in
full shall, after such payment or prepayment in full, be surrendered to the Company and be
cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal
amount of any Note.



     5.06 Retirement of Notes.



     The Company shall not, and shall not permit any of its Affiliates to, prepay or otherwise
retire, in whole or in part, prior to their stated final maturity (other than by prepayment
pursuant to this Section 5 or upon acceleration of such final maturity pursuant to Section 10.01),
or purchase or otherwise acquire, directly or indirectly, Notes held by any Holder unless the
Company or such Affiliate shall have offered to prepay or otherwise retire or purchase or otherwise
acquire, as the case may be, the same proportion of the aggregate principal amount of Notes held by
each other Holder at the time outstanding upon the same terms and conditions. Any Notes prepaid
pursuant to this Section 5 or Section 10.01 or otherwise retired or purchased



24









 




or otherwise acquired
by the Company or any of its Affiliates shall not be deemed to be outstanding for any purpose under
this Agreement, provided that, with respect to each prepayment pursuant to this Section 5, all
Notes then held by the Company and its Affiliates shall nonetheless be entitled to participate in
such prepayment the same as if such Notes were deemed outstanding.




6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY




     The Company represents and warrants that:



     6.01 Subsidiaries.




     (a) The Company has no Subsidiaries on the date hereof except those listed in Schedule
II, each of which is a Consolidated Subsidiary, other than RATI Holding, Inc., a
Wholly-Owned Subsidiary.




     (b) Schedule II sets forth, with respect to each of the Subsidiaries listed therein,
(i) whether such Subsidiary is a corporation or partnership, (ii) the jurisdiction of its
incorporation or formation (as the case may be) and (iii) each jurisdiction in which it is
qualified to do business as a foreign Person.




     (c) All of the issued and outstanding Stock or partnership interests of each Subsidiary
is validly issued, fully-paid and is nonassessable and, except for
directors’ qualifying shares of partnership interests (if any), is owned (beneficially and of record) by the
Company or other Subsidiaries free and clear of any Lien.




     (d) No Subsidiary owns any Stock of the Company.



     6.02 Organization, Qualification, Authorization, Etc.




     (a) The Company and each Subsidiary (i) is a corporation or partnership (as the case
may be) duly organized or formed (as the case may be) and existing in good standing under
the laws of the jurisdiction of its organization or formation (as the case may be), (ii) is
duly qualified or registered and in good standing as a foreign Person in each jurisdiction
in which the nature of such qualification or registration is necessary and in which the
failure to so qualify or register could have a Material Adverse Effect and (iii) has the
corporate or partnership (as the case may be) power (A) to own its Properties, (B) to carry
on its business as now being conducted and (C) to consummate the Overall Transaction.
Schedule III sets forth each jurisdiction in which the Company is qualified or registered to
do business as a foreign corporation.




     (b) The execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party have been duly authorized by all necessary corporate or partnership (as
the case may be) action on the part of such Loan Party. This Agreement constitutes, and the
Notes and such other Loan Documents (when executed and delivered as contemplated hereby)
will each constitute, a legal, valid and binding obligation of each Loan Party thereto,
enforceable in accordance with its terms, except as the enforceability



25









 






thereof may be
limited by bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors’ rights.



     6.03 Disclosure Documents.




     (a) The Company has heretofore furnished the Purchasers with true, correct and complete
copies of the following documents, and each of the Purchasers has acknowledged receipt of
same:




     (1) the Organizational Documents of the Company and each Subsidiary as in
effect on the date hereof;




     (2) the Company’s Annual Reports to Stockholders for the Fiscal Years ended
December 31, 2000 through 2004 (inclusive);




     (3) the Company’s Annual Reports on Form 10-K for the Fiscal Years ended
December 31, 2000 through 2004 (inclusive), as filed with the SEC;




     (4) the Company’s Quarterly Report on Form 10-Q for the Fiscal Quarter ended
September 30, 2005 as filed with the SEC;




     (5) the consolidated financial statements of the Company and the Consolidated
Subsidiaries described in Schedule VI (the “Company Financials”);




     (6) the projections described in Schedule VII (the “Projections”); and




     (7) the Existing Bank Loan Agreement (in the form of Exhibit G).




     (b) The Company Financials (including any related schedules and/or notes) (i) were true
and correct in all material respects as at the dates thereof, (ii) were prepared in
accordance with GAAP consistently followed throughout the periods involved and (iii) show
all liabilities, direct and contingent, of the Company and the Consolidated Subsidiaries
required to be shown in accordance with GAAP. The balance sheets included in the Company
Financials fairly present the consolidated financial condition of the Company and the
Consolidated Subsidiaries as at the dates thereof, and the statements of operations and
statements of cash flows included in the Company Financials fairly present the consolidated
results of operations and cash flows of the Company and the Consolidated Subsidiaries for
the periods indicated.




     (c) The Projections are based on good faith estimates and assumptions believed by the
Company to be reasonable at the time made, it being recognized by the Purchasers that the
Projections, insofar as they relate to future events, are not to be viewed as facts and that
actual results during the period or periods covered by the Projections may differ materially
from the projected results. Since the preparation of the Projections, nothing has occurred
to cause the Company to believe that the estimates and assumptions on which the Projections
are based are no longer reasonable.



26









 





     6.04 Changes, Etc.




     (a) Since December 31, 2004, (i) neither the Company nor any Subsidiary has entered
into any material transactions not in the ordinary course of business, nor incurred any
material liabilities or obligations, direct or contingent, except for the Loan Documents,
the Existing Bank Loan Agreement and Material Contracts listed on Schedule V hereto entered
into subsequent to December 31, 2004 and (ii) except as has been disclosed in Company’s
public filings with the SEC, no events have occurred which, individually or in the
aggregate, have had, or in the future could reasonably be expected to have, a Material
Adverse Effect.




     (b) Neither the business nor the Properties of the Company or any of the Subsidiaries
are presently affected by any fire, explosion, accident, labor controversy, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty which could reasonably be expected to have a Material Adverse
Effect.



     6.05 Tax Returns and Payments.




     (a) The Company and each Subsidiary has filed all tax returns required by law to be
filed by it (or obtained extensions with respect thereto) and has paid all taxes,
assessments and other governmental charges levied upon it or any of its Properties, income
or franchises which are shown to be due and payable on such returns and all other taxes and
assessments payable by it, other than (i) those which are not past due, (ii) those which are
presently being contested in good faith by appropriate proceedings diligently conducted for
which such reserves or other appropriate provisions, if any, as shall be required by GAAP
have been made and (iii) those not reflected on such returns the non-payment of which could
not reasonably be expected to have a Material Adverse Effect. No contest referred to in the
foregoing clause (ii) could reasonably be expected to have a Material Adverse Effect.




     (b) After due inquiry, the Company knows of no proposed tax assessment against the
Company or any Subsidiary which could reasonably be expected to have a Material Adverse
Effect. In the opinion of the Company, all tax liabilities of the Company and the
Subsidiaries are adequately provided for on their respective books. The Federal income tax
returns of the Company and the Subsidiaries for 2002 and subsequent Fiscal Years are open to
examination by the IRS.



     6.06 Indebtedness; Solvency.




     (a) The Company and the Subsidiaries have no outstanding Indebtedness for Money
Borrowed other than (i) the indebtedness evidenced by the Notes and the Guaranty, (ii) the
indebtedness evidenced by the 1995 Notes and the 1995 Guaranty, (iii) the indebtedness
evidenced by the 1997 Notes and the 1997 Guaranty, (iv) the indebtedness evidenced by the
2002 Notes and the 2002 Guaranty, (v) indebtedness outstanding under the Existing Bank Loan
Agreement, (vi) the indebtedness described in



27









 






Schedule XIII, and (vii) other indebtedness permitted under Section 9.05 which
indebtedness does not exceed $500,000 in the aggregate.




     (b) Each of the Loan Parties (i) has, and after giving effect to the Overall
Transaction will have, capital sufficient to carry on its business and transactions and all
the business and transactions in which it is about to engage, (ii) is, and after giving
effect to the Overall Transaction will be, solvent and able to pay its debts as they mature
and (iii) owns, and after giving effect to the Overall Transaction will own, Property having
a value, both at fair valuation and present fair salable value, greater than the amount
required to pay the probable liability on its debts.



     6.07 Permits.



     The Company and each Subsidiary possess all Permits that are necessary or desirable in
connection with the ownership, use or operation by it of its Properties and the conduct by it, in
the ordinary course, of its business as now conducted and as currently proposed to be conducted,
except those Permits the absence of which would not have a Material Adverse Effect. None of such
Permits impose any material burden or restriction on the Company or any Subsidiary. The Company
and the Subsidiaries are in compliance with all terms of such Permits. All such Permits are valid
and in full force and effect and, to the Company’s knowledge (after due inquiry), none are
threatened to be revoked, cancelled, suspended or modified for any reason.



     6.08 Material Contracts.



     Schedule V describes all Material Contracts existing on the date hereof. Each of such
Material Contracts (a) has been duly executed and delivered by, and constitutes the legal, valid
and binding obligation of, each Loan Party thereto, enforceable against each such Loan Party in
accordance with its terms, (b) is in full force and effect and (c) except as reflected in Schedule
V, has not been amended or modified, nor any provision thereof waived, in any respect. The Company
and each Subsidiary has, and, to the Company’s knowledge, all other parties to such Material
Contracts have, performed and complied in all material respects with all of the terms and
conditions set forth therein. No default by the Company, any Subsidiary or, to the Company’s
knowledge, any such other party exists under any such Material Contract, which individually, or in
the aggregate for all such defaults, could reasonably be expected to have a Material Adverse
Effect.



     6.09 Title to Property, Etc.




     (a) The Company and each Subsidiary has good and indefeasible fee simple title to its
real property and good and defensible title to all of its other Property, including the
Property reflected in the balance sheets included in the Company Financials (other than
Properties disposed of in the ordinary course of business), subject to no Lien of any
kind except Permitted Liens which do not, individually or in the aggregate, materially
affect or interfere with, or if used or availed of will not materially affect or interfere
with, the occupancy, use or operation of such item of Property for its intended purpose or
the peaceful and quiet use and enjoyment thereof by the Company or such Subsidiary, as the
case may be.



28









 






     (b) No lease under which the Company or any Subsidiary is the lessee or is operating
contains any provision which individually or in the aggregate interferes with the ordinary
conduct of the business of the Company or such Subsidiary or otherwise could reasonably be
expected to have a Material Adverse Effect. The Company and each Subsidiary enjoys peaceful
and undisturbed possession under all leases under which it is the lessee or is operating,
except where the absence of such possession would not have a Material Adverse Effect. All
of such leases are valid and subsisting and no default by the Company, such Subsidiary or,
to the Company’s knowledge, any such other party exists thereunder, which individually, or
in the aggregate for all such defaults, could reasonably be expected to have a Material
Adverse Effect.



     6.10 Condition of Property.



     The facilities of the Company and the Subsidiaries, taken as a whole, are in a condition and
state of repair which are sufficient and adequate to operate their respective businesses in a
proper and efficient manner.



     6.11 Compliance with Applicable Laws, Permits and Contracts.




     (a) Neither the Company nor any Subsidiary is in violation of (i) any provision of its
Organizational Documents, (ii) any Applicable Permit or Applicable Contract (including the
Existing Bank Loan Agreement, the 1995 Note Agreement, the 1997 Note Agreement and the 2002
Note Agreement) or (iii) any instrument evidencing or otherwise relating to Indebtedness for
Money Borrowed (other than, in the case of the foregoing clauses (ii) and (iii), violations
which, individually or collectively, could not reasonably be expected to have a Material
Adverse Effect), and the execution, delivery and performance of the Loan Documents and the
consummation of the Overall Transaction will not result in any violation of or constitute a
default under any of the foregoing or result in the creation of (or impose any obligation on
the Company or any Subsidiary to create) any Lien that is not a Permitted Lien upon any
Property of the Company or any Subsidiary.




     (b) Neither the Company nor any Subsidiary is in violation of any Legal Requirement
other than violations which, individually or collectively, will not have a Material Adverse
Effect, and the execution, delivery and performance of the Loan Documents and the
consummation of the Overall Transaction will not result in a violation of any Legal
Requirement.




     (c) Except for this Agreement, the Existing Bank Loan Agreement, the 1995 Note
Agreement, the 1997 Note Agreement and the 2002 Note Agreement, neither the Company nor any
Subsidiary is a party to or bound by any Permit, agreement or instrument (including its
Organizational Documents) which contains any restrictions or limitations on the incurrence
by the Company or such Subsidiary of any Indebtedness for Money Borrowed.



29









 






     (d) Neither the Company nor any Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Indebtedness for
Money Borrowed of the Company or such Subsidiary.



     6.12 Litigation, Etc.



     No action, suit, investigation or proceeding is pending or, to the knowledge of the Company
(after due inquiry), threatened against or affecting the Company or any Subsidiary or any Property
of the Company or any Subsidiary which (a) individually or collectively, could reasonably be
expected to have a Material Adverse Effect or (b) questions the validity of any Loan Document or
any action taken or to be taken pursuant thereto.



     6.13 ERISA.



     Each Benefit Arrangement is (and has been) maintained and operated in compliance in all
material respects with the applicable provisions of ERISA, the Code and other Legal Requirements.
Neither the Company nor any member of the ERISA Group has failed to timely make any required
contribution or payment to or in respect of any Benefit Arrangement. No Benefit Arrangement
provides post employment health benefits except as required by Part 6 of Subtitle B of ERISA. No
litigation, investigation or claim (other than a routine claim for benefits) is pending or, to the
knowledge of the Company (after due inquiry), threatened or anticipated concerning any Benefit
Arrangement. The Company and/or the members of its ERISA Group may at any time unilaterally,
without the consent of any Person, terminate any and/or all Benefit Arrangement(s) without
incurring any material liability. The execution and delivery of this Agreement and the other Loan
Documents and the issue and sale of the Notes will not involve any transaction which is subject to
the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed
pursuant to section 4975 of the Code. The representation by the Company in the next preceding
sentence is made in reliance upon and subject to the accuracy of the representation of the
Purchasers in Section 7 as to the source of the funds to be used to pay the purchase price of the
Notes.



     6.14 No Governmental Consents Required for Overall Transaction.



     Neither the nature of the Company nor any Subsidiary, nor the business or Properties of the
Company or any Subsidiary, nor any relationship between the Company or any Subsidiary
and any other Person, nor any circumstance in connection with the offering, issuance, sale or
delivery of the Notes is such as to require any authorization, consent, approval, exemption or
other action by or notice to or filing with any Governmental Authority in connection with the
execution and delivery of this Agreement, the other Loan Documents or the consummation of the
Overall Transaction other than routine SEC filings by the Company under the Exchange Act.



     6.15 Offering of Notes.



     Neither the Company nor its Affiliates nor anyone acting on its or their behalf has, directly
or indirectly, (a) offered the Notes or any similar security of the Company for sale to, or
solicited any offers to buy the Notes or any similar security of the Company from, or otherwise
approached or negotiated with respect thereto with, any Person other than the Purchasers and not
more than 70 other institutional investors, each of which has been offered the Notes at a private




30









 





sale for investment or (b) taken or will take any action which would require the issuance or
sale of the Notes to be registered pursuant to the provisions of section 5 of the Securities Act or
pursuant to the provisions of any securities or Blue Sky law of any jurisdiction.




     6.16 Use of Proceeds.



     The Company will apply the proceeds of the sale of the Notes in accordance with Section 4. No
indebtedness being reduced or retired, directly or indirectly, out of the proceeds of the sale of
the Notes was incurred for the purpose of purchasing or carrying any stock which is currently a
“margin stock” (as defined in Section 4.02), and the Company neither owns nor has any present
intention of acquiring any amount of “margin stock.” None of the proceeds of the sale of the Notes
will be used to acquire any security in any transaction which is subject to section 13 or 14 of the
Exchange Act, including particularly sections 13(d) and 14(d) thereof.



     6.17 Foreign Assets Control Regulations, Etc.




     (a) Neither the issue and sale of the Notes by the Company nor its use of the proceeds
thereof as contemplated by this Agreement will violate the Trading with the Enemy Act, (50
U.S.C. App. §§1 et seq., as amended), or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto.




     (b) No Loan Party is a Person described or designated in the Specially Designated
Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1
of the Anti-Terrorism Order or (ii) knowingly engages in any dealings or transactions with
any such Person. The Company and its Subsidiaries are in compliance, in all material
respects, with the USA Patriot Act.




     (c) No part of the proceeds from the sale of the Notes hereunder will be used, directly
or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any improper
advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended, assuming in all cases that such Act applies to the Company.



     6.18 Status Under Certain Federal Statutes.



     No Loan Party is (a) an “investment company” or a Person “controlled” by or acting on behalf
of an “investment company,” in each case within the meaning of the Investment Company Act of 1940,
as amended, (b) a “holding company” or a “subsidiary company” of a “holding company” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended, (c) subject to
regulation under the Federal Power Act, as amended, (d) subject to the ICC Termination Act of 1995,
as amended, or (e) a “rail carrier” or a “person controlled by or affiliated with a rail carrier”,
within the meaning of Title 49, U.S.C.



31









 





     6.19 Environmental Matters.




     (a) The Company and each Subsidiary has all Environmental Permits necessary for the
conduct of its business and for the ownership, use, maintenance and operation of its assets,
and is in compliance with all material terms thereof. All such Environmental Permits are
valid and in full force and effect and, to the Company’s knowledge, none are threatened to
be revoked, cancelled, suspended or modified adversely for any reason. As to any such
Environmental Permit that is about to expire or is needed for the proposed conduct of its
business, the Company or such Subsidiary, as the case may be, has timely and properly
applied for renewal or receipt of the same or, if such Permit is not reasonably expected to
be renewed, such nonrenewal will not have a Material Adverse Effect.




     (b) Without in any manner limiting any other representations and warranties set forth
in this Agreement:




     (i) neither the Company nor any Subsidiary, nor any real property or facility
presently owned, used, maintained or operated by the Company or any Subsidiary, nor
any of the other assets of the Company or any Subsidiary is in violation of or is in
noncompliance with, any Environmental Laws, except for violations or noncompliances
which, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; and




     (ii) without in any manner limiting the generality of clause (i) above:




     (A) no Hazardous Materials have been used, generated, manufactured,
transported, stored or treated, or disposed of, landfilled or in any other
way Released by or on behalf of the Company or any Subsidiary, except for
those of the foregoing activities which, individually or in the aggregate,
could not have a Material Adverse Effect;




     (B) to the Company’s knowledge, no Hazardous Materials have been
used, generated, manufactured, stored or treated, or disposed of,
landfilled or in any other way Released (and no Release is threatened), by
any Person other than the Company or any Subsidiary on, under, about or
from any Property now or previously owned, used, maintained or operated by
the Company or any Subsidiary or any Property adjacent to any such
Property except for those of the foregoing activities (including Releases
and threatened Releases) which, individually or in the aggregate, could
not have a Material Adverse Effect;




     (C) neither the Company nor any Subsidiary is subject, as a result of
the operation or condition of its business or assets prior to or at
Closing, to any (1) contingent liability in connection with any Release or
threatened Release of any Hazardous Materials into the environment



32









 







whether on or off any Property owned, used, maintained or operated by
the Company or such Subsidiary or (2) reclamation or remediation
requirements under Environmental Laws, or any reporting requirements
related thereto, except for liabilities or requirements which,
individually or in the aggregate, could not have a Material Adverse
Effect;




     (D) neither the Company nor any Subsidiary has been named as a
potentially responsible party under, and none of its Property has been
nominated or identified as a facility which is subject to an existing or
potential claim under, CERCLA or comparable Environmental Laws, and no
such Property is subject to any Lien arising under Environmental Laws;




     (E) to the Company’s knowledge, the Company and each Subsidiary has
all environmental and pollution control equipment necessary for (1)
compliance in all material respects with all Environmental Laws (including
all applicable Permits) and (2) operation of the business of the Company
or such Subsidiary as it is presently conducted;




     (F) no Hazardous Materials have been incorporated into or contained
in any of the personal property or improvements to real property owned,
used, maintained or operated by the Company or any Subsidiary such that
such Hazardous Materials could reasonably be expected to have a Material
Adverse Effect;




     (G) none of the locations where Hazardous Materials have been used,
generated, manufactured, stored, treated, recycled, disposed of or
Released by or on behalf of the Company or any Subsidiary has been
nominated or identified as a facility which may be subject to an existing
or potential claim under CERCLA or comparable Environmental Laws;




     (H) to the knowledge of the Company, none of the offsite locations
where Hazardous Materials from any of the assets of the Company or any
Subsidiary have been stored, treated, recycled, disposed of or Released
has been nominated or identified as a facility which may be subject to an
existing or potential claim under CERCLA or comparable Environmental Laws;




     (I) neither the Company nor any Subsidiary has received any written
notices of (1) any violation of, noncompliance with or remedial obligation
under Environmental Laws relating to the ownership, use, maintenance,
operation of, or conduct of business related to, any Property of the
Company or such Subsidiary or (2) any Release or threatened Release of
Hazardous Materials, except for violations, noncompliances, obligations,
Releases or threatened Releases which,



33









 







individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect;




     (J) there are no writs, injunctions, decrees, orders or judgments
outstanding, or lawsuits, claims, proceedings or investigations pending
or, to the knowledge of the Company, threatened relating to the ownership,
use, maintenance, operation of, or conduct of business related to, any
Property of the Company or any Subsidiary arising out of or relating to
Environmental Laws, nor does the Company or any Subsidiary have knowledge
(after due inquiry) of any basis for any of the foregoing, except for
writs, injunctions, decrees, orders, judgments, lawsuits, claims,
proceedings or investigations which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect;




     (K) no underground or aboveground storage tanks or surface
impoundments are located at any Property owned, used, maintained or
operated by the Company or any Subsidiary other than those which,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect; and




     (L) there are no material obligations, undertakings or liabilities
arising out of or relating to Environmental Laws which the Company or any
Subsidiary has agreed to, assumed or retained, by contract or otherwise.



     6.20 Books and Records.



     The Company maintains books, records and accounts with respect to itself and the Subsidiaries
which, in reasonable detail, accurately and fairly reflect their transactions and dispositions of
their assets, and maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (a) transactions are executed in accordance with management’s general or
specific authorization, (b) transactions are recorded as necessary (i) to permit preparation of
financial statements in accordance with GAAP, and (ii) to maintain accountability for assets, (c)
access to assets is permitted only in accordance with management’s general or specific
authorization and (d) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any differences.



     6.21 Fiscal Year.



     The fiscal year of the Company and each Subsidiary coincides with the calendar year.



     6.22 Brokerage.



     All negotiations relative to this Agreement, the other Loan Documents and the transactions
contemplated hereby have been carried on by the Company and the other Loan



34









 




Parties without the intervention of any Person which might give rise to a valid claim against
the Purchasers for a brokerage commission or other like payment.




     6.23 Labor Matters.



     Schedule IX lists each employment, consultant or similar agreement and all labor contracts and
collective bargaining agreements to which the Company or any Subsidiary is a party or by which it
is bound. Except as otherwise listed on Schedule IX, no strikes or other labor disputes are
pending or threatened against the Company or any Subsidiary. All payments due from the Company or
any Subsidiary on account of employee health and welfare insurance have been paid or, if not due,
have been accrued as liabilities on the books of the Company or such Subsidiary.



     6.24 Patents, Trademarks, Etc.



     The Company and each Subsidiary owns, or is licensed or otherwise has the lawful right to use,
all patents, trademarks, tradenames, copyrights, technology, know-how and processes necessary for
the conduct of its business as now conducted and as proposed to be conducted. All tradenames used
by the Company or any Subsidiary are listed on Schedule X. Assumed name certificates have been
duly filed of record with appropriate Governmental Authorities for each of such tradenames, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect..



     6.25 Chief Executive Office.



     The chief executive office of the Company and the office where it maintains its records is
located at 1600 West 7th Street, Fort Worth, Texas 76102-2599.



     6.26 Permitted Investments.



     Schedule XI specifies the aggregate amount of each investment held by the Company and any of
its Subsidiaries on the date hereof other than those permitted by clauses (a) through (k) of
Section 9.08.



     6.27 Liens.



     None of the Properties of the Company or any Subsidiary is subject to any Lien other than
Permitted Liens.



     6.28 Full Disclosure.




     (a) Neither this Agreement (including the Schedules and Exhibits hereto), the other
Loan Documents, the Company Financials, the instruments described in Section 6.03(a) nor any
document delivered by the Company or any of its Affiliates pursuant to Section 3 contains
any untrue statement of a material fact or omits to state a material fact necessary in order
to make the statements contained herein or therein not misleading in light of the
circumstances under which the same were made.



35









 






     (b) There is no fact (excluding general economic or industry conditions not peculiar to
the Company or any Subsidiary) which (i) has had a Material Adverse Effect or, in the
opinion of any Responsible Officer of the Company, could reasonably be expected in the
future to have a Material Adverse Effect and (ii) has not been set forth in this Agreement
(including the Schedules and Exhibits hereto) or in the Company Financials.




	7.	 	PURCHASE FOR INVESTMENT; SOURCE OF FUNDS





     7.01 Representations of the Purchasers.




     (a) Each of the Purchasers hereby represents to the Company that it (i) is purchasing
the Notes for its own account for investment and not with a view to, or for sale in
connection with, the distribution thereof or with any present intention of distributing or
selling any of the Notes, provided that the disposition of the Purchaser’s property shall at
all times be within its control, (ii) is an “accredited investor”, as defined in Regulation
D under the Securities Act, and (iii) (x) has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of the
investment in the Notes and (y) is able to bear the economic risk of such investment. Each
of the Purchasers understands that the Notes have not been registered under the Securities
Act and may not be sold or otherwise transferred by the Purchasers except pursuant to an
effective registration statement under such Act or pursuant to an available exemption
therefrom under such Act.




     (b) Each of the Purchasers further represents to the Company that at least one of the
following statements is an accurate representation as to each source of funds (a “Source”)
to be used by it to pay the purchase price of the Notes to be purchased by it hereunder:




     (i) the Source is an “insurance company general account” (as the term is
defined in the United States Department of Labor’s Prohibited Transaction Exemption
(“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the
annual statement for life insurance companies approved by the National Association
of Insurance Commissioners (the “NAIC Annual Statement”)) for the general account
contract(s) held by or on behalf of any employee benefit plan together with the
amount of the reserves and liabilities for the general account contract(s) held by
or on behalf of any other employee benefit plans maintained by the same employer (or
affiliate thereof as defined in PTE 95-60) or by the same employee organization in
the general account do not exceed 10% of the total reserves and liabilities of the
general account (exclusive of separate account liabilities) plus surplus as set
forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or




     (ii) the Source is a separate account that is maintained solely in connection
with such Purchaser’s fixed contractual obligations under which the amounts payable,
or credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary



36









 







of such plan (including any annuitant)) are not affected in any manner by the
investment performance of the separate account; or




     (iii) the Source is either (1) an insurance company pooled separate account,
within the meaning of PTE 90-1 or (2) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company
in writing pursuant to this clause (iii), no employee benefit plan or group of plans
maintained by the same employer or employee organization beneficially owns more than
10% of all assets allocated to such pooled separate account or collective investment
fund; or




     (iv) (1) the Source constitutes assets of an “investment fund” (within the
meaning of Part V of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified
professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM
Exemption), (2) no employee benefit plan’s assets that are included in such
investment fund, when combined with the assets of all other employee benefit plans
established or maintained by the same employer or by an affiliate (within the
meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, (3) the conditions of Part I(c) and (g) of the QPAM
Exemption are satisfied, (4) neither the QPAM nor a person controlling or controlled
by the QPAM (applying the definition of “control” in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (5) the identity of such
QPAM and the names of all employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing pursuant to this
clause (iv); or




     (v) the Source constitutes assets of a “plan(s)” (within the meaning of Section
IV of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or
“INHAM” (within the meaning of Part IV of the 1NHAM exemption), the conditions of
Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a
person controlling or controlled by the INHAM (applying the definition of “control”
in Section IV(d) of the INHAM Exemption) owns a 5% or more interest in the Company
and (1) the identity of such INHAM and (2) the name(s) of the employee benefit
plan(s) whose assets constitute the Source have been disclosed to the Company in
writing pursuant to this clause (v); or




     (vi) the Source is a governmental plan; or




     (vii) the Source is one or more employee benefit plans, or a separate account
or trust fund comprised of one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to this clause (vii); or




     (viii) the Source does not include assets of any employee benefit plan, other
than a plan exempt from the coverage of ERISA.



37









 






     As used in this Section 7.01(b), the terms “employee benefit plan,” “governmental
plan,” and “separate account” shall have the respective meanings assigned to such terms in
section 3 of ERISA.




     (c) Purchasers have received all of the items described in Section 6.03.




	8.	 	AFFIRMATIVE COVENANTS





     8.01 Financial Statements, Reports and Documents.



     The Company shall deliver to each Holder (in duplicate):




     (a) as soon as available, and in any event within 45 days, after the end of each Fiscal
Quarter (other than the last Fiscal Quarter in any Fiscal Year), a consolidated balance
sheet of the Company and the Consolidated Subsidiaries (in reasonable detail) as of the end
of such Fiscal Quarter and the related consolidated statements of income, stockholders’
equity and cash flows of the Company and the Consolidated Subsidiaries (in reasonable
detail) for such Fiscal Quarter and for the portion of the current Fiscal Year ending on the
last day of such Fiscal Quarter, in each case (i) prepared in accordance with GAAP and (ii)
setting forth in comparative form the figures for the corresponding period of the preceding
Fiscal Year, which financial statements shall be certified (subject to normal year-end audit
adjustments) as to fairness of presentation, compliance with GAAP and consistency with prior
periods by a Responsible Officer of the Company, it being understood that no such statement
need be accompanied by complete footnotes;




     (b) as soon as available, and in any event within 90 days, after the end of each Fiscal
Year, a consolidated balance sheet of the Company and the Consolidated Subsidiaries (in
reasonable detail) as of the end of such Fiscal Year and the related consolidated statements
of income, stockholders’ equity and cash flows of the Company and the Consolidated
Subsidiaries (in reasonable detail) for such Fiscal Year, in each case (i) prepared in
conformity with GAAP and (ii) setting forth in comparative form the figures for the
preceding Fiscal Year, which financial statements shall be accompanied by an opinion thereon
(which shall not be qualified by reason of any limitation imposed by the Company) of the
Independent Registered Public Accounting Firm stating that such financial statements, in the
opinion of the Independent Registered Public Accounting Firm, present fairly, in all
material respects, the consolidated financial position of the Company and the Consolidated
Subsidiaries as at the end of such year, and the results of their operations and their cash
flows for such period in conformity with accounting principles generally accepted in the
United States of America (except for noted changes in which the Independent Registered
Public Accounting Firm concurs) and that the examination of the Independent Registered
Public Accounting Firm in connection with such financial statements has been made in
accordance with the standards of the Public Company Accounting Oversight Board (United
States), and such examination includes examining, on a test basis, evidence supporting the
amounts and disclosures in the



38









 







financial statements, assessing the accounting principles used and significant
estimates made by management, and evaluating the overall financial statement presentation;




     (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, an Officers’ Certificate (i) setting forth in reasonable detail
the calculations required to establish whether the Company was in compliance with the
requirements of Sections 9.01, 9.02, 9.03 and 9.04, on the date of such financial
statements, (ii) stating that the signers have reviewed this Agreement and the other Loan
Documents and have made, or caused to be made under their supervision, a review of the
transactions and condition of the Company during the accounting period covered by such
financial statements and (iii) stating that such review did not disclose the existence
during or at the end of such accounting period of any Default or, if any Default exists,
specifying the nature and period of existence thereof and what action the Company has taken,
is taking or proposes to take with respect thereto;




     (d) so long as the Existing Notes are outstanding, simultaneously with the delivery of
each set of financial statements referred to in clause (b) above, a written statement by the
Independent Registered Public Accounting Firm giving the opinion thereon stating (i) that
their audit has included a review of the terms of this Agreement and that such review is
sufficient to enable them to make the statement referred to in clause (iv) of this paragraph
(d) (it being understood that such Independent Registered Public Accounting Firm shall not
be required to conduct or make any special or additional audit procedures or examinations
for purposes of such written statement, other than those required by generally accepted
auditing standards, and that their audit will not have been directed primarily toward
obtaining knowledge of any Default), (ii) whether, in the course of their audit, they
obtained knowledge (and whether, as of the date of such written statement, they have
knowledge) of the existence and continuance of any Default and, if so, specifying the nature
and period of existence thereof, (iii) that they have examined the Officers’ Certificate
delivered in connection therewith pursuant to clause (c) above and (iv) that the matters set
forth in such Officers’ Certificate pursuant to subclause (i) of clause (c) above have been
properly stated in accordance with this Agreement;




     (e) so long as the Existing Notes are outstanding, promptly upon receipt thereof, a
copy of each management letter submitted to the Company by the Independent Registered Public
Accounting Firm (and each response of the Company thereto), it being understood and agreed
that all material items which are furnished to the Holders pursuant to this clause (e) shall
be treated as confidential if such items are not previously known to any Holder and if, and
so long as, such items are not generally available to the public, but nothing herein
contained shall limit or impair the right of any Holder to (i) disclose such items to any
other Holder, any prospective Transferee, the National Association of Insurance
Commissioners or any Governmental Authority pursuant to an applicable legal requirement or
agreement, (ii) disclose such items in connection with any litigation, investigation or
similar proceeding, (iii) use such information to the extent pertinent to an evaluation of
the Obligations or to enforce compliance with the terms and conditions of this Agreement,
(iv) take any action required by law or (v) take any lawful action which such Holder deems
necessary to protect its interests under this Agreement or any other



39









 







Loan Document provided that such Holder shall use reasonable efforts to provide to the
Company notice of such disclosure and a reasonable opportunity to contest or limit such
disclosure;




     (f) so long as the Existing Notes are outstanding, promptly upon becoming available, a
copy of each consolidating balance sheet and income statement of the Company and the
Consolidated Subsidiaries prepared by or on behalf of the Company after the date hereof;




     (g) promptly upon transmission thereof, a copy of each (i) financial statement, proxy
statement, notice and report sent or made available by the Company to its security holders
in compliance with the Exchange Act or any comparable federal or state laws relating to the
disclosure by any Person of information to its security holders, (ii) regular and periodic
report, registration statement (excluding exhibits) and prospectus filed by the Company with
any securities exchange or with the SEC or any Governmental Authority succeeding to any of
its functions (other than any such reports, registration statements or prospectuses
transmitted after the Existing Notes are no longer outstanding and which are not material to
the business of the Company) and (iii) press release or other statement made available by
the Company to the public concerning material developments in the business of the Company;




     (h) as soon as practicable, and in any event within two Business Days, after the
Company obtains knowledge of any Default, an Officers’ Certificate specifying the nature and
period of existence thereof and what action the Company has taken, is taking or proposes to
take with respect thereto;




     (i) as soon as practicable, and in any event within ten Business Days, after the
Company obtains knowledge of any condition (excluding general economic or industry
conditions not peculiar to the Company or any Subsidiary), happening or event which, in the
opinion of the Board of Directors or any Responsible Officer of the Company, could
reasonably be expected to have a Material Adverse Effect, an Officers’ Certificate
specifying the nature and period of existence thereof and what action the Company has taken,
is taking or proposes to take with respect thereto;




     (j) promptly, a copy of each Material Contract entered into or assumed by the Company
after the date hereof and each material amendment, supplement or modification entered into
after the date hereof in respect of any Material Contract; and




     (k) such other information concerning the business, financial condition, results of
operation, prospects or Properties of the Company or any Subsidiary as any Holder shall
reasonably request.




     Documents required to be delivered pursuant to Sections 8.01(a), 8.01(b), 8.01(c) or
8.01(g) (to the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents, or provides a link
thereto on the Company’s website on the Internet at



40









 






http://www.cashamerica.com or any other website on the Internet designated in
writing to each of the Holders or (ii) on which such documents are posted on the Company’s
behalf on http://www.sec.gov; provided that, in each case, the Company (A) shall
have notified each Holder (by telecopier or to an electronic mail address provided to the
Company by such Holder) of the posting of each of such documents and (B) shall deliver paper
copies of such documents to any Holder that requests the Company to deliver such paper
copies until a written request to cease delivering paper copies is given by such Holder.



     8.02 Payment of Principal, Interest and Premium.



     The Company will duly and punctually pay the principal of, and interest and premium (if any)
on, the Notes in accordance with the terms of the Notes and this Agreement.



     8.03 Payment of Taxes, Claims and Indebtedness.



     The Company will, and will cause each Subsidiary to, pay and discharge, as and when due and
payable, (a) all taxes, assessments and governmental charges or levies imposed upon it or any of
its Properties or in respect of any of its franchises, business, income or profits, (b) all claims
(including claims for labor, services, materials and supplies) for sums which, if unpaid, might
become a Lien upon any of its Property and (c) all of its other indebtedness in excess of
$5,000,000; provided, however, that no such tax, assessment, charge or levy, claim or indebtedness
(other than the Obligations) need be paid if and so long as (i) (A) no Default shall be in
existence, (B) the amount, applicability or validity thereof is being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and (C) such reserves or other
appropriate provision (if any) as shall be required by GAAP shall have been made therefor or (ii)
the nonpayment of all such taxes, assessments, charges or levies, claims or indebtedness in the
aggregate could not reasonably be expected to result in a Material Adverse Effect.



     8.04 Maintenance of Existence and Rights; Conduct of Business.



     The Company will, and will cause each Subsidiary to, (a) preserve and keep in full force and
effect (except as permitted by Section 9.13) its corporate or partnership, as the case may be,
existence and all of its rights, privileges and franchises necessary or desirable in the normal
conduct of its business, (b) qualify and remain qualified as a foreign Person authorized to do
business in each jurisdiction in which such qualification is required except where the failure to
be so qualified could not reasonably be expected to have a Material Adverse Effect and (c) carry on
and conduct its business (i) in the ordinary course, (ii) in an orderly and efficient manner
consistent with good business practices and (iii) in accordance, in all material respects, with all
Legal Requirements.



41









 





     8.05 Compliance with Loan Documents.



     The Company will, and will cause each Subsidiary to, promptly comply with any and all
covenants and provisions of each Loan Document to which it is a party.



     8.06 Inspection.



     The Company will, and will cause each Subsidiary to, permit any Person designated by any
Holder, at all reasonable times, to (i) visit and inspect any of its Properties, (ii) examine, copy
or make excerpts from, any and all books, records, software, documents and other information in the
possession of the Company or such Subsidiary and relating to its affairs and (iii) discuss its
affairs, finances and accounts with its directors, officers and its then current Independent
Registered Public Accounting Firm; and, by this provision, the Company (on behalf of itself and
each Subsidiary) irrevocably authorizes such accountants to discuss with such Person the affairs,
finances and accounts of the Company and such Subsidiary. All such visits and inspections shall be
at the expense of such Holder unless a Default shall exist, in which event the reasonable costs and
expenses associated with all such events and inspections shall be at the expense of the Company.



     8.07 Books and Records.



     The Company will, and will cause each Subsidiary to, (a) maintain (in accordance with good
accounting practices and all Legal Requirements) complete and accurate books, records and accounts
accurately and fairly reflecting its transactions in reasonable detail and (b) maintain a system of
internal accounting controls sufficient to provide reasonable assurances that its transactions are
recorded as necessary (i) to permit preparation of financial statements in accordance with GAAP and
(ii) to maintain accountability for its assets.



     8.08 Compliance with Legal Requirements.



     The Company will, and will cause each Subsidiary to, comply with all Legal Requirements
applicable to it or any of its Properties, business, operations or transactions except for
noncompliances which, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.



     8.09 Insurance.



     The Company will, and will cause each Subsidiary to, maintain in full force and effect, with
sound and reputable insurers, such insurance on its Properties and business against such
casualties, risks, liabilities and contingencies, and in such types and amounts, as are consistent
with customary practices and standards of companies engaged in similar businesses; provided,
however, except as may be required by any Legal Requirement, neither the Company nor any Subsidiary
shall be required to maintain (i) business interruption insurance, (ii) insurance on its
inventories, (iii) plate glass insurance, or (iv) flood or earthquake insurance.



42









 





     8.10 Maintenance of Properties.



     The Company will, and will cause each of its Subsidiaries to, maintain and keep, or cause to
be maintained and kept, their respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in connection therewith may be
properly conducted at all times, provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company has concluded that such
discontinuance could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.



     8.11 Further Assurances.



     The Company will, and will cause each Subsidiary to, promptly take all such actions as the
Required Holders may, at any time or from time to time, reasonably request in order to (i) further
carry out and consummate the Overall Transaction or (ii) comply with or accomplish the covenants
and agreements of the Loan Parties in any of the Loan Documents.




	9.	 	NEGATIVE COVENANTS





     Until payment in full of the Notes and all other Obligations, the Company covenants and agrees
as follows:



     9.01 Consolidated Indebtedness for Money Borrowed.




     (a) The Company will not permit Consolidated Indebtedness for Money Borrowed, as of the
last day of any Fiscal Quarter ending on or after the Closing Date, to be greater than the
amount determined by multiplying the Applicable Percentage times the sum of (a) Consolidated
Indebtedness for Money Borrowed as of such date and (b) Consolidated Net Worth as of such
date. As used in this Section 9.01, “Applicable Percentage” means 75%.




     (b) The Company will not permit the ratio of




     (i) Consolidated Indebtedness for Money Borrowed, minus an amount equal to what
would be classified as cash or cash equivalents on a consolidated balance sheet of
the Company and the Consolidated Subsidiaries prepared in accordance with GAAP, in
each case determined as of the end of each Fiscal Quarter, to




     (ii) Consolidated EBITDA for the period of four (4) consecutive Fiscal Quarters
ending with such Fiscal Quarter



     to be greater than 3.0 to 1.00, as of each Fiscal Quarter ending after the Closing Date.



43









 





     9.02 Consolidated Net Worth.



     The Company will not permit Consolidated Net Worth at any time to be less than the sum of (a)
$270,000,000 plus (b) 50% of Consolidated Adjusted Net Income (but only if positive) for each
Fiscal Quarter ending on or after September 30, 2005 plus (c) 100% of Net Equity Proceeds received
after the Closing Date.



     9.03 Fixed Charge Coverage.



     The Company will not at any time permit the ratio of (a) the sum of Consolidated EBITDA for
the period of four consecutive Fiscal Quarters then most recently ended plus the aggregate amount
of all rents and leases deducted in the calculation of such Consolidated EBITDA to (b) the
aggregate amount of (i) all such rents, leases and interest expenses deducted in the calculation of
such Consolidated EBITDA plus (ii) all regularly scheduled principal payments on Funded Debt of the
Company and the Consolidated Subsidiaries (after elimination of intercompany items) made in such
period to be less than 1.75 to 1.



     9.04 Restricted Payments.




     (a) The Company will not, and will not permit any Subsidiary to, (i) declare or make
any dividends or distributions on any of its Stock (other than dividends payable in shares
of its Stock), (ii) purchase, redeem or acquire for value any of the Company’s or any
Subsidiary’s Stock, (iii) make any principal payment on (or make any payment, transfer or
deposit for the purpose of canceling, extinguishing, satisfying or defeasing) any
indebtedness of the Company which is subordinate in right of payment to the Notes or any
other Obligation, (iv) set aside funds for any such purposes or (v) become liable to do any
of the foregoing (in each case, a “Restricted Payment”) unless, immediately after giving
effect thereto, (A) no Default shall exist and (B) the aggregate amount of all Restricted
Payments made by the Company and all Subsidiaries on or after August 12, 2002 does not
exceed the sum of $42,000,000 plus 50% of Consolidated Adjusted Net Income for the period
(treated as one accounting period) from August 12, 2002 to the end of the calendar month
then most recently ended.




     (b) Notwithstanding the foregoing provisions of this Section 9.04, the Company may, so
long as no Default shall be in existence or shall result therefrom, purchase, redeem or
acquire shares of the Company’s capital stock with the net cash proceeds received by the
Company during the immediately preceding 18-month period from the sale of other shares of
the Company’s capital stock, in which event both the receipt and expenditure of such
proceeds shall be excluded from any calculation under paragraph (a) above.




     (c) Nothing in this Section 9.04 shall prohibit any Subsidiary from making any
Restricted Payment to the Company or any Wholly-Owned Subsidiary, and no such Restricted
Payment shall be taken into account in any calculation under paragraph (a) above.



44









 





     9.05 Limitation on Indebtedness.



     (a) The Company will not incur, create, assume or have outstanding any indebtedness,
except:




     (1) (A) indebtedness of the Company arising out of this Agreement and the other
Loan Documents, (B) indebtedness of the Company arising out of the 1995 Note
Agreement and the other 1995 Loan Documents, (C) indebtedness of the Company arising
out of the 1997 Note Agreement and the other 1997 Loan Documents, and (D)
indebtedness of the Company arising out of the 2002 Note Agreement and the other
2002 Loan Documents;




     (2) indebtedness of the Company arising out of the Existing Bank Loan Agreement
or any extension, renewal or refinancing of the Indebtedness for Money Borrowed
outstanding thereunder;




     (3) purchase money indebtedness (not to exceed the greater of $10,000,000 or 2%
of Consolidated Assets in the aggregate for the Company and all Subsidiaries at any
time outstanding);




     (4) current liabilities for taxes and assessments incurred in the ordinary
course of business and not yet due, and other liabilities for unpaid taxes being
contested in good faith by the obligor the payment of which is not at the time
required by Section 8.03;




     (5) current indebtedness (other than Indebtedness for Money Borrowed) for
accounts payable or other claims (including claims for labor, services, materials
and supplies) incurred in the ordinary course of business, provided that all such
accounts and claims shall be promptly paid and discharged when due or in conformity
with customary trade terms, except for those being contested in good faith by the
obligor and the payment of which is not at the time required by Section 8.03;




     (6) contingent liabilities resulting from the endorsement of negotiable
instruments in the ordinary course of business;




     (7) indebtedness constituting Assurances of the Company permitted by Section
9.06;




     (8) Indebtedness for Money Borrowed of the Company owing to any Subsidiary, but
only if permitted by Section 9.08;




     (9) indebtedness secured by Liens described in clause (i), clause (l) and
clause (m) of the definition of “Permitted Liens” in Section 2.01;




     (10) Hedging Obligations of the Company, provided that (i) such obligations are
(or were) entered into by the Company in the ordinary course of business and not for
purposes of speculation, and (ii) the agreement or document



45









 







creating such obligations does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;




     (11) Indebtedness for Money Borrowed of the Company not otherwise permitted by
the foregoing provisions of this Section 9.05(a) if (A) immediately after giving
effect to the incurrence or assumption thereof by the Company, the Company is in
compliance with Sections 9.01, 9.02 and 9.03 and (B) at the time of the incurrence
or assumption thereof by the Company and immediately thereafter, no Default shall
exist;




     (12) Non-Domestic Indebtedness, so long as the aggregate amount of all such
Non-Domestic Indebtedness together with the indebtedness described in clause (10)
and clause (11) of Section 9.05(b) does not exceed the greater of $20,000,000 or
7.5% of Consolidated Net Worth, and;




     (13) Permitted Refinancing Indebtedness with respect to Indebtedness for Money
Borrowed described in each of the other clauses of this Section 9.05(a) so long as
the Company shall be in compliance with the specific limitations set forth in each
of such clauses.



     (b) The Company will not permit any Subsidiary to incur, create, assume or have
outstanding any indebtedness, except:




     (1) (A) indebtedness of Subsidiaries arising out of this Agreement and the
other Loan Documents, (B) indebtedness of Subsidiaries arising out of the 1995
Guaranty, (C) indebtedness of Subsidiaries arising out of the 1997 Guaranty, and (D)
indebtedness of Subsidiaries arising out of the 2002 Guaranty;




     (2) Assurances issued by the Subsidiaries pursuant to the Existing Bank Loan
Agreement;




     (3) purchase money indebtedness (not to exceed the greater of $10,000,000 or 2%
of the Consolidated Assets in the aggregate for the Company and all Subsidiaries at
any time outstanding);




     (4) current liabilities for taxes and assessments incurred in the ordinary
course of business and not yet due, and other liabilities for unpaid taxes being
contested in good faith by the obligor the payment of which is not at the time
required by Section 8.03;




     (5) current indebtedness (other than Indebtedness for Money Borrowed) for
accounts payable or other claims (including claims for labor, services, materials
and supplies) incurred in the ordinary course of business, provided that all such
accounts and claims shall be promptly paid and discharged when due or in conformity
with customary trade terms, except for those being contested in good faith by the
obligor and the payment of which is not at the time required by Section 8.03;



46









 






     (6) contingent liabilities resulting from the endorsement of negotiable
instruments in the ordinary course of business;




     (7) indebtedness constituting Assurances of Subsidiaries permitted by Section
9.06;




     (8) Indebtedness for Money Borrowed of any Subsidiary owing to the Company or
to any other Subsidiary, but only if permitted by Section 9.08;




     (9) indebtedness secured by Liens described in clause (i), clause (l) and
clause (m) of the definition of “Permitted Liens” in Section 2.01;




     (10) indebtedness of Non-Domestic Subsidiaries or Non-Wholly-Owned Subsidiaries
so long as the aggregate amount of all such indebtedness together with the
indebtedness described in clause (11) of this Section 9.05(b) does not at any time
exceed the greater of $20,000,000 or 7.5% of Consolidated Net Worth;




     (11) in the case of any Wholly-Owned Subsidiary acquired by the Company after
the date hereof in accordance with Section 9.17(a)(1), all indebtedness of such
Subsidiary outstanding on the date of its acquisition by the Company, but only if
(i) the amount of such indebtedness, when aggregated with the total amount of all
other indebtedness of all Persons (including such Wholly-Owned Subsidiary)
outstanding pursuant to this clause (11), and all indebtedness described in clause
(10) of this Section 9.05(b), does not exceed the greater of $20,000,000 or 7.5% of
Consolidated Net Worth and (ii) such indebtedness was incurred, created or assumed
by such Subsidiary prior to its acquisition by the Company and not in anticipation
of, or in connection with, such acquisition;




     (12) Hedging Obligations of any Subsidiary, provided that (i) such obligations
are (or were) entered into by such Subsidiary in the ordinary course of business and
not for purposes of speculation, and (ii) the agreement or document creating such
obligations does not contain any provision exonerating the non-defaulting party from
its obligation to make payments on outstanding transactions to the defaulting party;




     (13) other indebtedness of any Subsidiary not otherwise permitted by the
foregoing provisions of this Section 9.05(b), but only if such indebtedness is
outstanding on the date hereof and described in Schedule VIII and (B) excluding any
extensions, renewals and rearrangements of such indebtedness; and




     (14) Permitted Refinancing Indebtedness with respect to Indebtedness for Money
Borrowed described in each of the other clauses of this Section 9.05(b) so long as
the Company shall be in compliance with the specific limitations set forth in each
of such clauses.



47









 





     9.06 Assurances.



     The Company will not, and will not permit any Subsidiary to, enter into, assume or become or
be liable in respect of any Assurance, except for (i) Assurances by the Company of indebtedness of
Subsidiaries permitted by Section 9.05(b), (ii) Assurances by one or more Guarantors of
indebtedness (other than the Obligations) of the Company permitted by Section 9.05(a) (including,
without limitation, Hedging Obligations) but only if and so long as the Guaranty is in full force
and effect, (iii) Assurances of the Guarantors evidenced by the Guaranty, (iv) Assurances by the
Company and the Guarantors of the Non-Domestic Indebtedness, (v) Assurances under any of the
Material Contracts, (vi) Consumer Obligations, and (vii) other Assurances not otherwise permitted
by this Section 9.06 but only to the extent that the aggregate amount of all indebtedness relating
to such Assurances does not exceed $5,000,000.



     9.07 Negative Pledge.



     The Company will not, and will not permit any Subsidiary to, assume, create or suffer to exist
any Lien upon any of its Properties (whether now owned hereafter acquired) except Permitted Liens.



     9.08 Limitation on Investments.



     The Company will not, and will not permit any Subsidiary to, make or have outstanding any
Investments in any Person, except for:




     (a) pawn transactions and pawn loans made in the ordinary course of business;




     (b) travel advances and other similar advances made to employees in the ordinary course
of business;




     (c) consumer loans, advances and extensions of credit (in the form of accounts
receivable or otherwise) made to customers in the ordinary course of business;




     (d) advances and deposits made by the Company or any Subsidiary in the ordinary course
of business in connection with products or services provided to the Company or such
Subsidiary, as the case may be, or in connection with leases of real property;




     (e) in the case of the Company or any Subsidiary, Investments in Non-Domestic and
Non-Wholly Owned Subsidiaries (including Subsidiaries acquired after the date hereof in
accordance with Section 9.17(a)(1)) resulting from its acquisition or ownership of Stock of,
or capital contributions to, such Subsidiaries but, in each case, only to the extent not
prohibited by Section 9.17(a), provided that after giving effect to each such Investment the
aggregate book value of all Investments of the Company and all Subsidiaries in Non-Domestic
Subsidiaries and Non-Wholly-Owned Subsidiaries at such time does not exceed 10% of
Consolidated Net Worth;



48









 






     (f) in the case of any Subsidiary, Investments in the Company;




     (g) loans and advances by the Company to any Wholly-Owned Subsidiary;




     (h) loans and advances made by any Subsidiary to the Company or to any Wholly-Owned
Subsidiary;




     (i) Temporary Cash Investments;




     (j) to the extent permitted by applicable law, loans to officers of the Company and
Subsidiaries in an aggregate amount not exceeding $5,000,000 at any one time outstanding;




     (k) Assurances permitted in Section 9.06;




     (l) other Investments not otherwise permitted by this Section 9.08, but only if owned
by the Company and/or any Subsidiary on the date hereof and described in Schedule XI; and




     (m) other Investments made after the date hereof and not otherwise permitted by this
Section 9.08, provided that neither the Company nor any Subsidiary shall make any Investment
under this clause (m) if a Default shall be in existence immediately before or after such
Investment or if the amount of such Investment, when aggregated with the total amount of all
other Investments then outstanding under this clause (m), exceeds 7.5% of Consolidated Net
Worth as of the date of such Investment.



     9.09 Alteration of Contracts, Etc.



     The Company will not, and will not permit any Subsidiary to, (a) cancel, terminate, surrender,
release, alter, amend, modify or supplement any Material Contract or Applicable Permit, (b) waive
timely performance of any of the provisions of any Material Contract or Applicable Permit or (c)
consent or agree to, or permit, any of the foregoing, provided that any such action may be taken if
the Company shall determine in good faith that such action could not reasonably be expected to have
a Material Adverse Effect.



     9.10 Transactions with Affiliates.



     The Company will not, and will not permit any Subsidiary to, enter into any transaction with,
or pay any management fees to, any of its Affiliates except in the ordinary course of business and
then only upon terms that are no less favorable to Company or such Subsidiary, as the case may be,
than would be obtainable at the time in arms’-length transactions with Persons which are not
Affiliates of the Company or such Subsidiary, as the case may be, provided that this Section 9.10
shall not apply to transactions between the Company and any Wholly-Owned Subsidiary or to any
management fees payable by any Subsidiary to the Company or any Wholly-Owned Subsidiary.



49









 





     9.11 Limitation on Sale or Issuance of Subsidiary Stock.




     (a) The Company will not permit any Subsidiary to issue or sell any shares of Stock (or
any securities convertible into or exchangeable for or carrying rights to subscribe for shares of Stock) of such Subsidiary to any Person if after giving effect thereto the Company
would be in violation of its obligations set forth in Section 9.08.




     (b) The Company will not (i) sell, transfer or otherwise dispose of any shares of Stock
(or any securities convertible into or exchangeable for or carrying rights to subscribe for shares of Stock) of any Subsidiary or (ii) permit any Subsidiary to sell, transfer or
otherwise dispose of any shares of Stock (or any securities, convertible into or
exchangeable for or carrying rights to subscribe for shares of Stock) of any other
Subsidiary.



     9.12 Limitation on Sale of Properties.



     The Company will not, and will not permit any Subsidiary to, sell, assign, convey, exchange,
lease or otherwise dispose of any of its Properties (including accounts receivable and pawn loans),
whether now owned or hereafter acquired, except in the ordinary course of its business; provided,
however, that the Company and the Subsidiaries may sell Properties during any Fiscal Year having an
aggregate net book value (at the time of the disposition thereof) not in excess of 7.5% of
Consolidated Net Worth as at the end of the immediately previous Fiscal Year and, provided further,
that this Section 9.12 shall not operate to prevent the transactions permitted by Section 9.11 or
Section 9.13 or any sale, transfer or lease of Property by a Wholly-Owned Subsidiary to the Company
or to another Wholly-Owned Subsidiary and, provided further, that the Company will not, and will
not permit any Subsidiary to, sell, assign, discount or otherwise dispose of any accounts
receivable, except in the ordinary course of business consistent with the Company’s collection
practices as in effect from time to time and not a part of a financing.



     9.13 Dissolution; Liquidation; Merger; Consolidation.



     The Company will not, and will not permit any Subsidiary to, dissolve or liquidate or
consolidate or merge with, or sell, assign, convey, exchange, lease or otherwise dispose of its
Properties as an entirety or substantially as an entirety to, any other Person except that:




     (a) any corporation may consolidate with or merge into the Company if (i) the Company
shall be the surviving corporation, (ii) immediately after giving effect to such
transaction, (A) no Default or Event of Default shall have occurred and be continuing, (B)
the Company is solvent and no less creditworthy than immediately prior to the consummation
of such transaction and (C) the consummation of such transaction did not have, and could not
reasonably be expected to have, a Material Adverse Effect and (iii) each Holder shall have
received an Officers’ Certificate, dated not more than 10 days prior to the effective date
of such transaction, describing such transaction and stating that such transaction is
permitted by this Section 9.13;




     (b) the Company may consolidate with or merge into, or sell, assign, convey, exchange,
lease or otherwise dispose of its Properties as an entirety or substantially as an



50









 







entirety to, any Person if (i) such Person shall be a solvent corporation organized
under the laws of any state of the United States of America, (ii) such Person shall, by
written instrument in form and substance acceptable to the Required Holders, expressly and
unconditionally assume, agree to pay and perform all the Obligations and to be bound by this
Agreement and the other Loan Documents the same as if such Person had originally executed
this Agreement in place of the Company and had been the original maker of the Notes, (iii)
immediately after giving effect to such transaction, (A) no Default or Event of Default
shall have occurred and be continuing, (B) such Person is no less creditworthy than was the
Company immediately prior to the consummation of such transaction and (C) the consummation
of such transaction did not have, and could not be reasonably expected to have, a Material
Adverse Effect and (iv) each Holder shall have received an Officers’ Certificate, dated not
more than ten days prior to the effective date of such transaction, describing such
transaction and stating that such transaction is permitted by this Section 9.13;




     (c) any Wholly-Owned Subsidiary may consolidate with or merge into, or sell, assign,
convey, exchange, lease or otherwise dispose of its Properties as an entirety or
substantially as an entirety to, the Company or any other Wholly-Owned Subsidiary; and




     (d) any Wholly-Owned Subsidiary may consolidate or merge with any Person solely for the
purpose of the Company’s acquisition of such Person in accordance with Section 9.17(a)(1).



     9.14 Change of Name, Fiscal Year and Method of Accounting.



     The Company will not, and will not permit any Subsidiary to, (i) change its name, except for
Subsidiary name changes that could not be reasonably expected to have a Material Adverse Effect,
(ii) change its fiscal year, (iii) change its principal accounting firm to an accounting firm other
than an Independent Registered Public Accounting Firm or (iv) change its method of accounting
unless required under GAAP.



     9.15 Lines of Business.



     The Company will not, and will not permit any Subsidiary to, engage in any business other than
(i) the pawnshop business, (ii) the business of cashing checks and conducting related cash
dispensing transactions, (iii) the business of offering consumer loans and other consumer financial
services, and (iv) activities related to the above.



     9.16 Amendment of Organizational Documents.



     The Company will not, and will not permit any Subsidiary to, amend its Organizational
Documents if such action could reasonably be expected to have a Material Adverse Effect.



     9.17 Limitation on Acquisition of New Subsidiaries.



     (a) The Company will not, and will not permit any Subsidiary to, (i) acquire any Stock
of any Person, (ii) enter into any partnership or joint venture or (iii) take any



51









 







action which would result in the Company having any Subsidiary other than those listed
in Schedule II except that, from time to time, the Company may:




     (1) acquire (whether by purchase, merger or other similar transaction) any
Person, but only if:




	 	(A)	 	immediately after giving effect to such
acquisition, such Person shall constitute a Wholly-Owned Subsidiary or,
a Non-Wholly Owned Subsidiary subject to limits set forth in Section
9.08(e) hereof;
	 
	 	(B)	 	immediately after giving effect to such
acquisition, no Default shall be in existence, and the consummation of
such acquisition did not have, and could not be reasonably expected to
have, a Material Adverse Effect;
	 
	 	(C)	 	each Holder shall have received an Officers’
Certificate, dated not more than ten days prior to the effective date
of such acquisition, describing such acquisition (including the name of
such Person and the business conducted by it) and stating that such
acquisition is permitted by this Section 9.17, which Officers’
Certificate shall be accompanied by complete and accurate copies of the
Organizational Documents of such Person;
	 
	 	(D)	 	promptly (and in any event within 15 days)
after the consummation of such acquisition, such Person (if such Person
is organized under the laws of the United States of America or any
state or political subdivision thereof) shall duly authorize, execute
and deliver to each Holder an instrument in writing pursuant to which
such Person agrees to become a Guarantor under, and to be bound as a
Guarantor by the terms of, the Guaranty and the Subrogation and
Contribution Agreement; and
	 
	 	(E)	 	promptly (and in any event within 15 days)
after the consummation of such acquisition, if an opinion of counsel to
the Company, any Subsidiary or such Person is delivered to any other
holder of Indebtedness for Money Borrowed of the Company in connection
with such acquisition, the Company shall obtain or cause to be provided
in favor of the Holders an opinion of counsel satisfactory to the
Required Holders that opines (a) to such Person’s (i) existence and
good standing in its jurisdiction of formation, (ii) due authority to
become a Guarantor under, and to be bound as a Guarantor by the terms
of, the Guaranty and the Subrogation and Contribution Agreement and
(iii) due execution, delivery and performance of the Guaranty and the
Subrogation and Contribution Agreement, and (b) to the enforceability
of the Guaranty and the Subrogation and Contribution Agreement against
such Person; and




52









 












     (2) create or form a new corporation or limited partnership (the “New Entity”)
and thereupon cause the New Entity to become a Wholly-Owned Subsidiary, but only if:




	 	(A)	 	no Default shall exist immediately after the
New Entity becomes a Subsidiary;
	 
	 	(B)	 	subject to paragraph (b) below, promptly (and
in any event within 15 days) after its creation or formation, the New
Entity (if such New Entity is organized under the laws of the United
States of America or any state or political subdivision thereof) shall
duly authorize, execute and deliver to each Holder an instrument in
writing pursuant to which the New Entity agrees to become a Guarantor
under, and to be bound as a Guarantor by the terms of, the Guaranty and
the Subrogation and Contribution Agreement;
	 
	 	(C)	 	except as required by clause (B) above, the New
Entity shall not conduct any business prior to becoming a Subsidiary;
	 
	 	(D)	 	subject to paragraph (b) below, promptly (and
in any event within 15 days) after the creation or formation of the New
Entity, the Company shall deliver to each Holder an Officers’
Certificate notifying the Holders of the formation or creation of the
New Entity, which Officers’ Certificate shall (i) specify the name of
the New Entity and the jurisdiction of its incorporation or formation,
(ii) describe, in reasonable detail, the business proposed to be
conducted by the New Entity, (iii) state that the Company is authorized
to form or create the New Entity and to cause it to become a Subsidiary
in accordance with this Section 9.17 and (iv) be accompanied by
complete and accurate copies of the Organizational Documents of the New
Entity; and
	 
	 	(E)	 	promptly (and in any event within 15 days)
after the consummation of such acquisition, if an opinion of counsel to
the Company, any Subsidiary or such Person is delivered to any other
holder of Indebtedness for Money Borrowed of the Company in connection
with such acquisition, the Company shall obtain or cause to be provided
in favor of the Holders an opinion of counsel satisfactory to the
Required Holders that opines (a) to such Person’s (i) existence and
good standing in its jurisdiction of formation, (ii) due authority to
become a Guarantor under, and to be bound as a Guarantor by the terms
of, the Guaranty and the Subrogation and Contribution Agreement and
(iii) due execution, delivery and performance of the Guaranty and the
Subrogation and Contribution Agreement, and (b) to the enforceability
of the Guaranty and the Subrogation and Contribution Agreement against
such Person; and




53









 












     (b) In no event shall any New Entity created or formed pursuant to paragraph (a)(2)
above be required to execute and deliver a written instrument with respect to the Guaranty
as contemplated by clause (B) thereof nor shall the Company be required to deliver the
documents described with respect to such New Entity in clause (D) thereof until the earlier
of (i) the date on which the Company makes an Investment in such New Entity (other than the
incurrence of routine organizational expenses and other than capital contributions totaling
less than $250,000) and (ii) the date on which such New Entity first conducts business.




     (c) Subject to provisions of Sections 9.08(e), nothing in this Section 9.17 shall
operate to prevent any transaction permitted by Section 9.08 or Section 9.13.




     (d) If any Person becomes a Subsidiary at any time after the date hereof, such Person
shall be deemed to have incurred or made, as the case may be, at the time it becomes a
Subsidiary (i) all Assurances, indebtedness, loans, advances and Investments of such Person
which are outstanding at such time and (ii) all Liens then in effect with respect to any of
its Properties.




     (e) Notwithstanding the foregoing, in no event shall any Non-Domestic Subsidiary be
required to be or become a Guarantor so long as such Non-Domestic Subsidiary is not
obligated as a guarantor or obligor for any Indebtedness for Money Borrowed of the Company
or any Subsidiary.



     9.18 ERISA.



     The Company will not, and will not permit any Subsidiary or Related Person to,




     (a) engage in any transaction in connection with which the Company or any Subsidiary
could be subject to either a civil penalty assessed pursuant to section 502(i) of ERISA or a
tax imposed by section 4975 of the Code, terminate any Plan (other than a multiemployer
plan) in a manner, or take any other action with respect to any such Plan, which could
result in any liability of the Company or any Subsidiary to the Pension Benefit Guaranty
Corporation, fail to make full payment when due of all amounts which, under the provisions
of applicable law, or the terms of any Plan or collective bargaining agreement, the Company
or any Subsidiary is required to pay as contributions thereto, or permit to exist any
accumulated funding deficiency, whether or not waived, with respect to any Plan (other than
a multiemployer plan), if, in any such case, such penalty or tax or such liability, or the
failure to make such payment, or the existence of such deficiency, as the case may be, could
reasonably be expected to have a Material Adverse Effect;




     (b) permit the aggregate present value of all benefit liabilities under all Plans
maintained at such time by the Company, any Subsidiary and any Related Persons (other than
multiemployer plans) that are subject to Title IV of ERISA to exceed the aggregate current
value of the assets of such Plans allocable to such benefit liabilities by more than
$500,000; or



54









 






     (c) permit the aggregate complete or partial withdrawal liability under Title IV of
ERISA with respect to multiemployer plans incurred by the Company, the Subsidiaries and
Related Persons to exceed $250,000.


As used in this Section 9.18, (i) the term “accumulated funding deficiency” has the meaning
specified in section 302 of ERISA and section 412 of the Code, (ii) the terms “present value,”
“benefit liabilities” and “current value” have the respective meanings specified in sections 3 and
4001 of ERISA and (iii) “multiemployer plan” means a Plan which is a “multiemployer plan” as
defined in section 4001(a)(3) of ERISA.




     9.19 No Inconsistent Agreements.



     The Company will not enter into, assume or otherwise become obligated under any agreement or
instrument which restricts the ability of the Company to consummate the Private Placement or
perform its obligations under any Loan Document.




	10.	 	EVENTS OF DEFAULT





     10.01 Events of Default.



     If any of the following events (each such event being an “Event of Default”) shall occur and
be continuing for any reason whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about or be effected by operation of law or otherwise):




     (a) the Company shall fail to pay when due under this Agreement any principal of or
premium, if any, on any Note; or




     (b) any Loan Party shall fail to pay any interest, premium or other Obligation when due
under any Loan Document, and such failure shall have continued for five days; or




     (c) any representation or warranty made by or on behalf of any Loan Party in any Loan
Document shall prove to be untrue or inaccurate as of the date hereof or as of the Closing
Date; or




     (d) any representation or warranty made by or on behalf of any Loan Party in any
certificate, statement or other writing furnished to any Holder after the date hereof in
connection with or pursuant to any Loan Document shall prove to be untrue or inaccurate in
any material respect as of the date on which such representation or warranty is made; or




     (e) the Company shall fail to perform or observe any covenant or agreement contained in
Section 8.01(h), Sections 9.01 through 9.04 or Sections 9.10 through 9.12; or




     (f) the Company shall fail to perform or observe any other covenant, agreement, term or
condition contained in any Loan Document and such failure shall not be remedied within 30
consecutive days after the earlier of (i) the date on which such



55









 







failure became known to any Responsible Officer of the Company and (ii) the date on
which written notice thereof shall have been received by the Company from any Holder; or




     (g) any Guarantor shall fail to perform or observe any agreement contained in its
Guaranty; or




     (h) any Loan Party or any Subsidiary shall (i) default in any payment of principal of
or interest on any other indebtedness in excess of $2,500,000 (or its equivalent in another
currency) beyond any period of grace provided with respect thereto or (ii) fail to perform
or observe any other covenant or agreement contained in any agreement under which any such
indebtedness is created or outstanding within any applicable grace period provided therein
(or if any other event thereunder or under any such agreement shall occur and be continuing)
and the effect of such failure or other event is (A) to cause such indebtedness to become
due prior to its stated maturity or (B) to permit the holder or holders of such indebtedness
(or any Person acting on behalf of such holder or holders) to cause such indebtedness to
become due prior to its stated maturity; or




     (i) the Company or any Subsidiary shall make an assignment for the benefit of creditors
or shall fail to generally pay its debts as such debts become due; or




     (j) any decree or order for relief in respect of the Company or any Subsidiary shall be
entered under any bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law, whether now or hereafter in
effect, of any jurisdiction (herein called the “Bankruptcy Law”) and such decree or order
remains unstayed and in effect for more than 60 days; or




     (k) the Company or any Subsidiary petitions or applies to any tribunal for, or consents
to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator
or similar official of such Person, or of any substantial part of the assets of such Person,
or commences a voluntary case under the federal Bankruptcy Law or any proceedings relating
to such Person under the Bankruptcy Law of any other jurisdiction; or




     (l) any such petition or application is filed, or any such proceedings as described in
clause (k) above are commenced, against the Company or any Subsidiary and such Person by any
act indicates its approval thereof, consent thereto or acquiescence therein; or




     (m) an order, judgment or decree is entered appointing any such trustee, receiver,
custodian, liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in effect for more than
60 consecutive days; or




     (n) any order, judgment or decree is entered in any proceedings against the Company or
any Subsidiary decreeing the dissolution, winding-up or liquidation of such



56









 







Person and such order, judgment or decree remains unstayed and in effect for more than
60 consecutive days; or




     (o) any order, judgment or decree is entered in any proceedings against the Company or
any Subsidiary decreeing a split-up of such Person which requires the divestiture of assets
and such order, judgment or decree remains unstayed and in effect for more than 60
consecutive days; or




     (p) any final judgment or final judgments for the payment of money in excess of the sum
of $1,000,000 in the aggregate shall be rendered against the Company or any Subsidiary and
such judgment or judgments shall not be satisfied, discharged or stayed (with sufficient
reserves having been set aside by the Company or such Subsidiary to pay such judgment or
judgments) at least ten days prior to the date on which any of its assets could be lawfully
sold to satisfy such judgment; or




     (q) this Agreement or any other Loan Document shall at any time, for any reason, cease
to be in full force and effect or shall be declared to be null and void in whole or in any
material part by the final judgment of any court or other Governmental Authority having
jurisdiction in respect thereof, or the validity or the enforceability of this Agreement or
any other Loan Document shall be contested by or on behalf of any Loan Party, or any Loan
Party shall renounce this Agreement or any other Loan Document, or deny that it is bound by
the terms hereof or thereof or has any further liability hereunder or thereunder; or




     (r) the Company or any Subsidiary shall have (i) concealed or removed, or permitted to
be concealed or removed, any part of its Property with the intent to hinder, delay or
defraud its creditors or any of them or (ii) made or suffered a transfer under any
bankruptcy, fraudulent conveyance or similar law;


then (i) if such event is an Event of Default specified in clauses (i), (j), (k), (l) or (m) of
this Section 10.01, all of the Notes shall thereupon be and become automatically due and payable
together with interest accrued thereon and together with the Make-Whole Premium, if any, with
respect to each Note, without presentment, demand, protest, notice of intent to accelerate, notice
of acceleration or other notice of any kind, all of which are hereby waived by the Company, (ii) if
such event is an Event of Default specified in clause (a) or clause (b) (but only with respect to
the failure of any Loan Party to pay interest) of this Section 10.01, any Holder may at its option,
by notice in writing to the Company, declare all of the Notes held by such Holder to be, and all of
such Notes shall thereupon be and become, immediately due and payable together with interest
accrued thereon and together with the Make-Whole Premium, if any, with respect to each such Note,
without presentment, demand, protest, notice of intent to accelerate or other notice of any kind,
all of which are hereby waived by the Company, and (iii) if such event is any other continuing
Event of Default, the Holders of at least 66-2/3% of the aggregate principal amount of the Notes at
the time outstanding may at their option, by notice in writing to the Company, declare all of the
Notes to be, and all of the Notes shall thereupon be and become, immediately due and payable
together with interest accrued thereon and together with the Make-Whole Premium, if any, with
respect to each Note, without presentment, demand, protest, notice of intent to accelerate or other
notice of any kind, all of which are hereby waived by the Company;


57









 






provided that in the case of each acceleration of the Notes solely on account of any Default (other
than a payment default) described in clause (c), (d), (e), (f), (g), (h) or (p) of this Section
10.01, the Make-Whole Premium, if any, with respect to each Note shall be due and payable upon such
acceleration only if such Default is the result of an intentional or willful act of the Company or
any Affiliate of the Company.




     At any time after the principal of, and interest accrued on, any or all of the Notes are
declared due and payable pursuant to this Section 10.01, the Holders of at least 66-2/3% of the
aggregate principal amount of the Notes at the time outstanding may at their option, by written
notice to the Company, rescind and annul any such declaration and its consequences if (a) the
Company has paid all overdue interest on the Notes, the principal of and premium, if any, on any
Notes which have become due otherwise than by reason of such declaration, and interest on such
overdue principal and premium and (to the extent permitted by applicable law) any overdue interest
in respect of such Notes at a rate per annum from time to time equal to the Default Rate, (b) the
Company has paid all sums paid or advanced by any Holder under any Loan Document (other than the
loans evidenced by the Notes), (c) all Defaults, other than nonpayment of amounts which have become
due solely by reason of such declaration, have been cured or waived pursuant to Section 11.03, and
(d) no judgment or decree has been entered for the payment of any monies due pursuant to the Notes
or any other Loan Document; but no such rescission and annulment shall extend to or affect any
subsequent Default or impair any right consequent thereon.



     10.02 Other Remedies.



     If any Event of Default shall occur and be continuing, any Holder may proceed to protect and
enforce its rights under this Agreement and the other Loan Documents by exercising such remedies as
are available to such Holder in respect thereof under applicable law, either by suit in equity or
by action at law, or both, whether for specific performance of any covenant or other agreement
contained in this Agreement or any other Loan Document or in aid of the exercise of any power
granted in this Agreement or in any other Loan Document, or such Holder may proceed to enforce the
payment of all Obligations or to enforce any other legal or equitable right of such Holder.




	11.	 	MISCELLANEOUS





     11.01 Note Payments.




     (a) The Company agrees that, so long as the Purchasers or their respective nominees
shall hold any Note, it will make payments of principal thereof (and premium if any, and
interest thereon) which comply with the terms of this Agreement, by electronic funds
transfer to the account or accounts of the Purchasers as specified in Schedule I or such
other account or accounts in the United States of America as the Purchasers may designate in
writing, notwithstanding any contrary provision herein or in any Note with respect to the
place of payment.




     (b) The Purchasers agree that, before disposing of any Note, they will make a notation
thereon (or on a schedule attached thereto) of all principal payments previously



58









 







made thereon and of the date to which interest thereon has been paid, provided that the
failure to so endorse or any error in so endorsing any such amount on such schedule (or on a
continuation thereof) shall not limit or otherwise affect the obligation of the Company or
any other Loan Party to pay the Obligations.




     (c) The Company agrees to afford the benefits of paragraph (a) of this Section 11.01 to
any Transferee which shall have made the same agreement as the Purchasers have made in
paragraph (b) of this Section 11.01.




     11.02 Expenses.




     (a) Whether or not the transactions contemplated by this Agreement shall be
consummated, the Company will pay and will indemnify and hold harmless the Purchasers and
each other Indemnitee in respect of all reasonable expenses in connection with such
transactions and in connection with any amendments or waivers (whether or not the same
become effective) under or in respect of this Agreement, the Notes or any other Loan
Document, including: (i) the reasonable costs and expenses of preparing and reproducing this
Agreement, the Notes and the other Loan Documents, of furnishing all opinions of counsel
referred to herein and all certificates on behalf of the Company and the Subsidiaries, and
of the performance of and compliance with all agreements and conditions contained herein and
in the other Loan Documents on the part of the Company and the Subsidiaries to be performed
or complied with, (ii) the cost of delivering to the principal office of the Purchasers,
insured to the satisfaction of the Purchasers, the Notes originally issued to the Purchasers
hereunder and any Notes delivered to the Purchasers upon any substitution of such Notes and
of the Purchasers delivering any Notes, insured to the satisfaction of the Purchasers, upon
any such substitution, (iii) the reasonable fees, expenses and disbursements of special
counsel to the Purchasers in connection with such transactions (including the costs and
expenses incurred in connection with obtaining a private placement number) and any such
amendments or waivers (whether or not such amendments or waivers become effective), and (iv)
the reasonable costs and expenses, including attorneys’ fees, incurred by the Purchasers or
any Transferee in enforcing any rights under this Agreement or the other Loan Documents or
in responding to any subpoena or any other legal process issued in connection with this
Agreement, the other Loan Documents or the Overall Transaction or by reason of the
Purchasers’ or any Transferee’s having acquired any Note, including reasonable costs and
expenses incurred in any bankruptcy case.




     (b) The Company also will pay, and will indemnify, and hold the Purchasers and each
other Indemnitee harmless from, all claims in respect of the fees, if any, of brokers and
finders engaged by or on behalf of the Company.




     (c) In furtherance of the foregoing, at the Closing the Company will pay the reasonable
fees and disbursements of Bingham McCutchen LLP, special counsel to the Purchasers, which
are reflected as unpaid in the statement of special counsel to the Purchasers delivered to
the Company at or prior to the time of Closing.



59









 






     (d) The obligations of the Company under this Section 11.02 shall survive the transfer
of any Note or portion thereof or interest therein by the Purchasers or any Transferee and
the payment of the Notes.




     (e) In the event any Holder or Holders propose to engage special counsel in connection
with any amendments or waivers requested by the Company under or in respect of this
Agreement or any other Loan Document, such Holder or Holders agree to engage only one
special counsel for each such matter and to use reasonable efforts to cause such special
counsel to furnish the Company with an estimate of the total fees, expenses and
disbursements to be incurred by such special counsel in connection with such engagement,
provided that the failure (for any reason) of such special counsel to provide such an
estimate (nor any error therein or deviation therefrom) shall not relieve the Company of any
of its obligations under this Section 11.02.



     11.03 Consent to Waivers and Amendments.




     (a) This Agreement and the other Loan Documents may be amended, and the Company may
take any action herein or therein prohibited, or omit to perform any act herein or therein
required to be performed by it, if the Company shall obtain the written consent to such
amendment, action or omission to act, of the Required Holders except that, without the
written consent of the Holder or Holders of all Notes at the time outstanding, no amendment
to this Agreement or any other Loan Document shall change the maturity of any Note, or
change the principal of, or the rate or time of payment of interest or any premium payable
with respect to any Note, or affect the time, amount or allocation of any required
prepayments, or alter or amend the right of any Holder to declare all of the Notes held by
such Holder to be due and payable in accordance with the provisions of Section 10.01 or
change or modify any of the provisions of this Section 11.03. Each Holder of any Note at
the time or thereafter outstanding shall be bound by any consent authorized by this Section
11.03, whether or not such Note shall have been marked to indicate such consent, but any
Notes issued thereafter may bear a notation referring to any such consent.




     (b) Executed or true and correct copies of any consent, waiver and amendment effected
pursuant to the provisions of this Section 11.03 shall be delivered by the Company to each
Holder forthwith following the date on which the same shall have been executed and delivered
by the Required Holders.




     (c) No course of dealing between the Company and the Holder of any Note nor any delay
in exercising any rights hereunder or under any Note shall operate as a waiver of any rights
of any Holder of such Note.



     11.04 Solicitation of Holders.



     The Company will not solicit, request or negotiate for or with respect to any proposed
consent, waiver or amendment of any of the provisions of this Agreement or any other Loan Document
unless each Holder shall concurrently be informed thereof in writing by the Company and shall be
afforded the opportunity to consider the same and shall be supplied by the Company



60









 







with sufficient information to enable it to make an informed decision with respect thereto.
The Company will not pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Holder as consideration for or as an inducement to
the entering into by any such Holder of any waiver or amendment of any of the terms and provisions
of this Agreement or any other Loan Document unless such remuneration is concurrently paid, on the
same terms, ratably to each Holder.



     11.05 Form, Registration, Transfer and Exchange of Notes; Lost Notes.




     (a) The Notes are issuable as registered notes without coupons in minimum denominations
equal to $1,000,000 (except as may be necessary to reflect any principal amount not evenly
divisible by $1,000,000). The Company shall keep at its principal executive office a
register in which the Company shall provide for the registration of Notes and of transfers
of Notes. Upon surrender for registration of transfer of any Note at the principal
executive office of the Company, the Company shall, at its expense, execute and deliver one
or more new Notes of like tenor and of a like aggregate principal amount, registered in the
name of the designated Transferee or Transferees. Every Note surrendered for registration
of transfer shall be duly endorsed, or be accompanied by a written instrument of transfer
duly executed, by the Holder of such Note, or such Holder’s attorney, duly authorized in
writing.




     (b) At the option of any Holder, any Note held by such Holder may be exchanged for
other Notes of like tenor and of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Note to be exchanged at the principal office of the Company.
Whenever any Notes are so surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the Holder making the exchange is entitled to receive.




     (c) Any Note or Notes issued in exchange for any Note or upon transfer thereof shall
carry the rights to unpaid interest and interest to accrue which were called by the Note so
exchanged or transferred, so that neither gain nor loss of interest shall result from any
such transfer or exchange. Upon receipt of written notice from the Holder of any Note of
the loss, theft, destruction or mutilation of such Note and, in the case of any such loss,
theft or destruction, upon receipt of such Holder’s unsecured indemnity agreement, or in the
case of any such mutilation upon surrender and cancellation of such Note, the Company will
make and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Note.



     11.06 Persons Deemed Owners.



     Prior to due presentment for registration of transfer, the Company may treat the Person in
whose name any Note is registered in accordance with Section 11.05 as the owner and Holder of such
Note for the purpose of receiving payment of principal of and premium, if any, and interest on such
Note and for all other purposes whatsoever, whether or not such Note shall be overdue, and the
Company shall not be affected by notice to the contrary.



61









 





     11.07 Reliance on and Survival of Representations and Warranties.




     (a) All of the representations and warranties of the Loan Parties contained in the Loan
Documents or in any certificates or other instruments delivered by any Loan Party at or
after the Closing pursuant to any Loan Document shall (i) survive the execution and delivery
of this Agreement, the Notes and the other Loan Documents, the transfer by the Purchasers of
any Note or portion thereof or interest therein and the payment of any Note, and may be
relied upon by the Purchasers or any Transferee, regardless of any investigation made at any
time by or on behalf of the Purchasers, any Transferee or any other Person and (ii) be
deemed to be material and to have been relied upon by each Holder, notwithstanding any
investigation heretofore or hereafter made by or on behalf of any Holder.




     (b) All representations, warranties and covenants contained herein made by the
Purchasers or any Holder shall survive the execution and delivery of this Agreement, the
Notes and the other Loan Documents, and may be relied upon by the Company and its successors
and assigns. No Holder (including the Purchasers) shall be responsible for the truth,
correctness or performance of the representations or warranties of the Company, the
Guarantors or any other Holder (including any Transferee).



     11.08 Successors and Assigns.



     All covenants and other agreements in this Agreement contained by or on behalf of either of
the parties hereto shall bind and inure to the benefit of the respective successors and assigns of
the parties hereto (including, without limitation, any Transferee) whether so expressed or not.
Each Transferee, by taking any Note, shall be deemed to have made the representation contained in
Part 1 of Schedule XII and at least one of the representations contained in Part 2 of Schedule XII
and to have agreed to be bound by the terms and conditions of this Agreement.



     11.09 Notices.



     All written communications provided for hereunder shall be sent by first class mail or
nationwide overnight delivery service (with charges prepaid) and (a) if to the Purchasers,
addressed to it at the address specified for such communications in Schedule I, or at such other
address as the Purchasers shall have specified to the Company in writing, (b) if to any other
Holder, addressed to such other Holder at such address as such other Holder shall have specified to
the Company in writing or, if any such other Holder shall not have so specified an address to the
Company, then addressed to such other Holder in care of the last holder of such Note which shall
have so specified an address to the Company and (c) if to the Company, addressed to it at 1600 West
7th Street, Fort Worth, Texas 76102-2599, Attention: President, or at such other address
as the Company shall have specified to each Holder in writing.



     11.10 Substitution of Purchasers.



     The Purchasers shall have the right, by written notice to the Company, to substitute any one
of its Affiliates as the purchaser of the Notes, which notice shall be signed by both the
Purchasers and such Affiliate and shall contain such Affiliate’s agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of



62









 







the representation contained in Part 1 of Schedule XII and of at least one of the
representations set forth in Part 2 of Schedule XII. Upon receipt of such notice, wherever the
word “Purchaser” is used in this Agreement (other than in this Section 11.10) or any other Loan
Document or certificate, opinion or other instrument delivered or to be delivered pursuant hereto
or thereto, such word shall be deemed to refer to such Affiliate in lieu of the Purchaser. In the
event such Affiliate is so substituted as a purchaser hereunder and such Affiliate thereafter
transfers to the Purchaser all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, wherever the word “Purchaser” is used in this Agreement or any
other Loan Document or certificate, opinion or other instrument delivered or to be delivered
pursuant hereto or thereto, such word shall no longer be deemed to refer to such Affiliate, but
shall refer to the Purchaser, and the Purchaser shall have all the rights of an original Holder of
the Notes under this Agreement.



     11.11 Satisfaction Requirement.



     If any agreement, certificate or other writing, or any action taken or to be taken, is by the
terms of this Agreement required to be satisfactory to the Purchasers or to the Required Holders,
the determination of such satisfaction shall be made by the Purchasers or the Required Holders, as
the case may be, in the sole and exclusive judgment of the Person or Persons making such
determination unless, by the terms of this Agreement, such matter is required to be reasonably
satisfactory to the Purchasers or to the Required Holders, as the case may be, in which event the
determination of such satisfaction shall be made by the Purchasers or the Required Holders, as the
case may be, in the reasonable judgment of the Person or Persons making such determination.



     11.12 Independence of Covenants.



     All covenants contained in this Agreement shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the fact that such action
or condition would be permitted by an exception to, or otherwise be within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of Default if such action
is taken or condition exists.



     11.13 Remedies Cumulative.



     No right, power or remedy granted under any Loan Document is intended to be exclusive, but
each shall be cumulative and in addition to any other rights, powers or remedies referred to in
such Loan Document or otherwise available at law or in equity and the exercise or beginning of
exercise by any party hereto of any one or more of such rights, powers or remedies shall not
preclude the simultaneous or later exercise by such party of any or all such other rights, powers
or remedies.



     11.14 Reproduction of Documents.



     This Agreement, the Notes, and the other Loan Documents and all documents relating hereto and
thereto, including (a) consents, waivers and notifications which may hereafter be executed, (b)
documents received by the Purchasers at the Closing and (c) financial statements, certificates and
other information previously or hereafter furnished to any Holder of a Note, may



63









 







be reproduced by such Holder or the Company by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and any original document so reproduced
may be destroyed. The Company and the Purchasers agree and stipulate that, to the extent permitted
by applicable law, any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in existence and whether
or not such reproduction was made in the regular course of business) and any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in evidence.



     11.15 Notes as Securities.



     The Company and the Purchasers agree that the Notes are securities as defined in each of the
Securities Act and the Exchange Act.



     11.16 Severability of Provisions.



     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.



     11.17 Interest.




     (a) Each provision in this Agreement, the Notes and the other Loan Documents is
expressly limited so that in no event whatsoever shall the amount paid, or otherwise agreed
to be paid, to any Holder for the use, forbearance or detention of the indebtedness
evidenced by the Notes or any other Loan Document or otherwise (including any sums paid as
required by any covenant or obligation contained herein or in any other Loan Document which
is for the use, forbearance or detention of such money), exceed that amount of money which
would cause the effective rate of interest to exceed the Highest Lawful Rate, and all
amounts owed under this Agreement, the Notes and each other Loan Document shall be held to
be subject to reduction to the effect that such amounts so paid or agreed to be paid which
are for the use, forbearance or detention of money under this Agreement, the Notes or any
other Loan Documents shall in no event exceed that amount of money which would cause the
effective rate of interest to exceed the Highest Lawful Rate.




     (b) Anything in this Agreement, any Note or any other Loan Document to the contrary
notwithstanding, the Company shall never be required to pay unearned interest on any Note or
ever be required to pay interest on such Note at a rate in excess of the Highest Lawful
Rate, and if the effective rate of interest which would otherwise be payable under this
Agreement, such Note or any other Loan Document would exceed the Highest Lawful Rate, or if
the Holder of such Note shall receive any unearned interest or shall receive monies that are
deemed to constitute interest which would increase the effective rate of interest payable by
the Company under this Agreement, such Note and the other Loan Documents to a rate in excess
of the Highest Lawful Rate, then (i) the amount of interest which would otherwise be payable
by the Company under this



64









 







Agreement, such Note and the other Loan Documents shall be reduced to the amount
allowed under applicable law and (ii) any unearned interest paid by the Company or any
interest paid by the Company in excess of the Highest Lawful Rate shall be in the first
instance credited on the principal of such Note with the excess thereof, if any, refunded to
the Company.




     (c) It is further agreed that, without limitation of the foregoing, all calculations of
the rate of interest contracted for, charged or received by any Holder under the Notes held
by it, or under this Agreement or the other Loan Documents, which are made for the purpose
of determining whether such rate exceeds the Highest Lawful Rate shall be made, to the
extent permitted by usury laws applicable to such Notes (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the period of the full stated term
of the loans evidenced by said Notes all interest at any time contracted for, charged or
received by such Holder in connection therewith.




     (d) If, at any time and from time to time, (i) the amount of interest payable to any
Holder on any date shall be computed at the Highest Lawful Rate and (ii) in respect of any
subsequent interest computation period the amount of interest otherwise payable to such
holder would be less than the Highest Lawful Rate, then the amount of interest payable to
such Holder in respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate until the total amount of interest payable to such
Holder shall equal the total amount of interest which would have been payable to such Holder
if the total amount of interest had been computed without giving effect to this Section
11.17.



     11.18 Representations, Etc. Cumulative.



     All representations, covenants, agreements and indemnities contained in this Agreement shall
be in addition to and cumulative of the representations, covenants, agreements and indemnities
contained in the other Loan Documents.



     11.19 Submission to Jurisdiction.



     THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING (A) TO ENFORCE OR DEFEND
ANY RIGHT UNDER THIS AGREEMENT OR UNDER ANY OTHER LOAN DOCUMENT OR (B) ARISING FROM OR RELATING TO
ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT AND THE LOAN DOCUMENTS, AND
THE COMPANY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT. THE COMPANY HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL POSTAGE PREPAID, TO THE
COMPANY AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 11.09, SUCH SERVICE TO BECOME



65









 







EFFECTIVE 10 DAYS AFTER SUCH MAILING. EACH SUCH SERVICE IS HEREBY ACKNOWLEDGED BY THE COMPANY
TO BE SUFFICIENT, EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. IF ANY AGENT APPOINTED BY THE
COMPANY REFUSES TO ACCEPT SERVICE, THE COMPANY HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT
MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM OR VENUE TO THE MAINTENANCE OF ANY SUCH
ACTION OR PROCEEDING. THE COMPANY HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 11.19 SHALL AFFECT THE RIGHT OF
ANY HOLDER OR ANY OTHER PERSON TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST THE COMPANY OR THE PROPERTY OF THE COMPANY IN THE
COURTS OF ANY OTHER JURISDICTION.



     11.20 Governing Law.



     THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE
PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.



     11.21 Indemnification.



     The Company hereby waives any claim for contribution against any Indemnitee and agrees to
indemnify, exonerate and hold each Indemnitee free and harmless from and against any and all
actions, causes of action, suits, citations, directives, demands, assessments, losses, liabilities,
damages and expenses, including (without limitation) reasonable attorneys’ fees and disbursements
and, in the case of clause (e) below, fees and disbursements of environmental consultants
(collectively, the “Indemnified Liabilities”), incurred, suffered, sustained or required to be paid
by the Indemnitees or any of them as a result of, or arising out of, or relating to (a) any
transaction financed in whole or in part directly or indirectly with the proceeds of any of the
Notes, (b) the exercise, protection or enforcement of any Holder’s rights, remedies, powers or
privileges under this Agreement or any other Loan Document, (c) the breach of any representation or
warranty of any Loan Party contained herein or in any other Loan Document, (d) the nonfulfillment
by any Loan Party of, or its failure to perform, any of its covenants or agreements contained in
this Agreement or any of the other Loan Documents or (e) the presence of Hazardous Materials on, or
the escape, seepage, leakage, spillage, discharge, emission or release of Hazardous Materials from,
any of the real Properties of the Company or any Subsidiary or any site, facility or location to
which any material, products, waste or other substances from or attributable to the business or
operations of the Company or any Subsidiary have been transported for treatment, disposal, storage
or deposit, any violation of, or noncompliance with, any Environmental Law at any such Property,
site, facility or location, any Environmental Claim in connection with the Company or any Property
of the Company, except, in each case, for any of such Indemnified Liabilities arising on account of
such Indemnitee’s



66









 







gross negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of the Indemnified Liabilities that is permissible
under applicable law. The obligations of the Company under this Section 11.21 shall survive the
transfer and payment of the Notes.



     11.22 Survival of Indemnities, Etc.




     (a) The indemnities contained in this Agreement are cumulative and in addition to the
indemnities contained in the other Loan Documents and shall survive the termination of this
Agreement and the transfer and payment of the Notes.




     (b) THE INDEMNITIES CONTAINED IN THIS AGREEMENT SHALL COVER AND INCLUDE LOSSES, COSTS,
EXPENSES, CLAIMS, DAMAGES, PENALTIES AND OBLIGATIONS ARISING OUT OF OR RESULTING FROM THE
NEGLIGENCE OTHER THAN GROSS NEGLIGENCE OF ANY INDEMNITEE, REGARDLESS OF WHETHER SUCH
NEGLIGENCE BE ORDINARY OR SOLE.



     11.23 Judgment Currency.




     (a) The obligation of the Company hereunder and under the other Loan Documents to make
payments in Dollars shall not be discharged or satisfied by any tender or recovery pursuant
to any judgment expressed in or converted into any currency other than Dollars, except to
the extent that such tender or recovery results in the effective receipt by each Holder of
the full amount of Dollars expressed to be payable to such Holder under this Agreement or
any other Loan Documents. If for the purpose of obtaining or enforcing judgment against the
Company in any court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than Dollars (such other currency being referred to in this Section 11.23
as the “Judgment Currency”) an amount due in Dollars, the conversion shall be made, at the
Dollar Equivalent, as of the Business Day immediately preceding the day on which the
judgment is given (such Business Day being referred to in this Section 11.23 as the
“Judgment Currency Conversion Date”). For purposes of this Section 11.23, the term “Dollar
Equivalent” shall mean, with respect to any monetary amount in a currency other than
Dollars, at any time for the determination thereof, the amount of Dollars obtained by
converting such foreign currency involved in such computation into Dollars at the spot rate
for the purchase of Dollars with the applicable foreign currency as quoted to such Holder by
a nationally recognized commercial bank or investment bank, which is not affiliated with
such Holder, at approximately 10:00 A.M. (New York City time) on the date of determination
thereof specified herein.




     (b) If there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due, the Company
covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in
any event not a lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange



67









 







prevailing on the date of payment, will produce the amount of Dollars which could have
been purchased with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion Date.




     (c) For purposes of determining the Dollar Equivalent for this Section 11.23, such
amounts shall include any premium and costs payable in connection with the purchase of the
Dollars.



     11.24 Liabilities of Holders.



     Neither this Agreement nor any other Loan Documents nor any disposition of the Notes shall be
deemed to create any liability or obligation of any Holder to enforce any provision hereof or of
any other Loan Document for the benefit or on behalf of any other Person who may be the holder of
any Note.



     11.25 Taxes.



     The Company will (a) pay all taxes (including interest and penalties) that may be payable in
connection with the execution and delivery of this Agreement or any other Loan Document or any
amendment of, or waiver or consent under or with respect to, this Agreement or any other Loan
Document and (b) indemnify and hold the Purchasers and each other Holder harmless from and against
any loss or liability resulting from nonpayment or delay in payment of any such tax. The
obligations of the Company under this Section 11.25 shall survive the transfer and payment of the
Notes.



     11.26 Counterparts.



     This Agreement may be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making proof of this Agreement to produce
or account for more than one such counterpart.



     11.27 Entire Agreement.



     This Agreement and the other Loan Documents to which the Company is a party constitute the
entire contract between the parties relative to the subject matter hereof. Any previous agreement
among the parties with respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Subject to Section 11.08, nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any Person other than the parties
hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.



[Remainder of page intentionally left blank. Next page is signature page.]





68









 








     The Purchasers should indicate their agreement with the foregoing by signing the form of
acceptance on the enclosed counterpart of this letter and return the same to the Company, whereupon
this letter shall become a binding agreement between the Purchasers and the Company.



	 	 	 	 	 
	 	Very truly yours,



CASH AMERICA INTERNATIONAL, INC.

 	 
	 	By   /s/  Austin D. Nettle
 	 
	 	Name:  	Austin Nettle 	 
	 	Title:  	Vice President, Treasurer 	 
	 



The foregoing Agreement is hereby accepted

as of the date first above written




	 	 	 
	MIDLAND NATIONAL LIFE INSURANCE COMPANY
	 
	 	 
	By

	/s/Kaitlin Trinh
	 

	 
	Name:

	 	Kaitlin Trinh
	Title:

	 	Vice President
	 
	 	 
	NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE
	 
	 	 
	By

	/s/ Kaitlin Trinh
	 

	 
	Name:

	 	Kaitlin Trinh
	Title:

	 	Vice President
	 
	 	 
	THE COMMERCE INSURANCE COMPANY
	 
	 	 
	By

	/s/ John W. Hawie
	 

	 
	Name:

	 	John W. Hawie
	Title:

	 	Vice President & Chief Investment Officer
	 
	 	 
	EQUITRUST LIFE INSURANCE COMPANY
	 
	 	 
	By

	/s/ Herman L. Riva
	 

	 
	Name:

	 	Herman L. Riva
	Title:

	 	Senior Portfolio Manager
	 
	 	 
	FARM BUREAU LIFE INSURANCE COMPANY
	 
	 	 
	By

	/s/ Herman L. Riva
	 

	 
	Name:

	 	Herman L. Riva
	Title:

	 	Senior Portfolio Manager






[Signature Page to note Agreement]