exv10w1





 Exhibit 10.1

FIRST AMENDMENT




          FIRST AMENDMENT, dated as of December 2, 2009 (this “Amendment”), to the Third Amended
and Restated Credit Agreement, dated as of May 28, 2003, as amended and restated as of November 15,
2006 (the “Credit Agreement”), among Rent-A-Center, Inc., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to time
parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (in
such capacity, the “Administrative Agent”), and the other agents parties thereto.




WITNESSETH:




          WHEREAS, pursuant to the Credit Agreement, the Lenders have extended credit to the Borrower on
the terms set forth in the Credit Agreement;




          WHEREAS, the Borrower has requested that the Lenders agree to amend certain provisions
of the Credit Agreement in the manner described herein; and




          WHEREAS, the parties hereto are willing to amend such provisions on and subject to the terms
and conditions herein;




          NOW, THEREFORE, the parties hereto hereby agree as follows:




          SECTION 1. Definitions. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement unless otherwise defined herein
or the context otherwise requires.




          SECTION 2. Amendments. The Credit Agreement is hereby amended to make all of the
changes indicated as blacklined additions or deletions in the composite conformed copy attached
hereto as Exhibit A. In the event that the aggregate Revolving Commitments of Revolving
Lenders consenting to this Amendment is less than $400,000,000, but at least $275,000,000, the
Administrative Agent is authorized, without further consent of any Lender, to make such additional
changes to said Exhibit A as it deems necessary to reflect (a) a “Revolving Existing
Facility” held by Revolving Lenders that do not so consent and having the same tenor and pricing as
are applicable to the Revolving Facility in effect prior to the First Amendment Effective Date and
(b) a “Revolving Extended Facility” held by Revolving Lenders that do so consent having the tenor
and pricing applicable to the Revolving Facility described in said Exhibit A.




          SECTION 3. Miscellaneous.




          3.1 Conditions to Effectiveness. This Amendment shall become effective on the
date (the “First Amendment Effective Date”) on which:




          (a) Amendment. The Administrative Agent shall have received this Amendment,
executed and delivered by a duly authorized officer of each of the Borrower, the Required
Lenders
(determined before giving effect to this Amendment) and the Majority Facility Lenders with
respect to
each Facility (determined before giving effect to this Amendment).




          (b) Fees. The Administrative Agent shall have received, for the account of each
Lender that executes and delivers to the Administrative Agent this Amendment on or before 5:00
p.m.,
New York time, November 24, 2009, (i) an amendment fee equal to 0.05% of each such Lender’s










 



2



Revolving Commitment and outstanding Term Loans under the Credit Agreement (as in effect
immediately after the effectiveness of this Amendment) and (ii) in the case of each such Lender
that is a Revolving Lender, an upfront fee equal to 1.0% of each such Lender’s Revolving Commitment
under the Credit Agreement (as in effect immediately after the effectiveness of this Amendment).




          (c) Acknowledgment and Confirmation. The Administrative Agent shall have
received an Acknowledgment and Confirmation, substantially in the form of Exhibit B
attached hereto,
executed and delivered by an authorized officer of the Borrower and each other Loan Party.




          (d) Legal Opinion. The Administrative Agent shall have received the executed legal
opinion of Fulbright & Jaworski L.L.P., counsel to the Borrower and its Subsidiaries, in form
and
substance reasonably satisfactory to the Administrative Agent.




          3.2 Representation and Warranties. After giving effect to the amendments referred to
herein, on the First Amendment Effective Date the Borrower hereby confirms that the
representations
and warranties set forth in Section 4 of the Credit Agreement are true and correct in all
material respects
on and as of the First Amendment Effective Date with the same effect as though made on and as
of the
First Amendment Effective Date, except to the extent such representations and warranties
expressly
relate to an earlier date (in which case such representations and warranties were true and
correct in all
material respects on and as of such earlier date).




          3.3 Continuing Effect; No Other Waivers or Amendments. This Amendment shall not
constitute an amendment or waiver of or consent to any provision of the Credit Agreement and
the other
Loan Documents except as expressly stated herein and shall not be construed as an amendment,
waiver
or consent to any action on the part of the Borrower that would require an amendment, waiver
or
consent of the Administrative Agent or the Lenders except as expressly stated herein. Except
as
expressly amended hereby, the provisions of the Credit Agreement and the other Loan Documents
are
and shall remain in full force and effect in accordance with their terms.




          3.4 Counterparts. This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said counterparts taken
together
shall be deemed to constitute one and the same instrument. Delivery of an executed signature
page of
this Amendment by facsimile transmission, by electronic mail in “portable document format”
(“.pdf”)
form, or by any other electronic means intended to preserve the original graphic and
pictorial appearance
of a document, or by a combination of such means, shall be effective as delivery of a
manually executed
counterpart hereof.




          3.5 Payment of Fees and Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its reasonable out-of-pocket costs and reasonable
out-of-pocket expenses
incurred in connection with this Amendment, any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees,
charges and
disbursements of counsel to the Administrative Agent.




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










 



3




          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and
delivered by their respective duly authorized officers as of the date first above written.




	 	 	 	 	 
	 	RENT-A-CENTER, INC.

 	 
	 	By:  	/s/ Robert D. Davis
 	 
	 	 	Name:  	Robert D. Davis 	 
	 	 	Title:  	EVP — Finance, CFO and Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent

 	 
	 	By:  	/s/ Scott Harvey
 	 
	 	 	Name:  	Scott Harvey 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature page to Rent-A-Center First Amendment]










 





EXECUTION COPYEXHIBIT A TO FIRST AMENDMENT




COMPOSITE CONFORMED COPY

REFLECTING FIRST AMENDMENT




 

 






$1,322,500,000




THIRD AMENDED AND RESTATED CREDIT AGREEMENT




among




RENT-A-CENTER, INC.,




as Borrower,




The Several Lenders from Time to Time Parties Hereto,




BRANCH BANKING AND TRUST COMPANY, FIFTH THIRD BANK,

WELLS FARGO BANK, N.A., UNION BANK OF CALIFORNIA, N.A. and COMPASS BANK,

as Documentation Agent,

LEHMAN COMMERCIAL PAPER INCAgents,




BANK OF AMERICA, N.A.,

as Syndication Agent,




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




Dated as of May 28, 2003,

as Amended and Restated as of November 15, 2006




J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,




as SoleJoint Lead ArrangerArrangers and Sole BookrunnerJoint Bookrunners




 

 




 









 








TABLE OF CONTENTS1/




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 1.
	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	1.1.
	 	Defined Terms	 	 	1	 
	1.2.
	 	Other Definitional Provisions	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	AMOUNT AND TERMS OF FACILITIES	 	 	2728
	 
	 
	 	 	 	 	 	 
	2.1.
	 	Term Commitments; Term Loans; Incremental Term Loans	 	 	2728
	 
	2.2.
	 	Revolving Commitments; Revolving Loans; Incremental Revolving Loans	 	 	29	 
	2.3.
	 	Swingline Commitment	 	 	30	 
	2.4.
	 	Procedure for Term Loan Borrowing	 	 	30	 
	2.5.
	 	Procedure for Revolving Loan Borrowing	 	 	3130
	 
	2.6.
	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans	 	 	31	 
	2.7.
	 	Repayment of Loans	 	 	32	 
	2.8.
	 	Commitment Fees, Etc	 	 	34	 
	2.9.
	 	Termination or Reduction of Revolving Commitments	 	 	34	 
	
	 	
 	 	 		 
	2.10.
	 	Optional Prepayments	 	 	34	 
	2.11.
	 	Mandatory Prepayments	 	 	3435
	 
	2.12.
	 	Conversion and Continuation Options	 	 	3536
	 
	2.13.
	 	Limitations on Eurodollar Tranches	 	 	36	 
	2.14.
	 	Interest Rates and Payment Dates	 	 	36	 
	2.15.
	 	Computation of Interest and Fees	 	 	3637
	 
	2.16.
	 	Inability to Determine Interest Rate	 	 	37	 
	2.17.
	 	Pro Rata Treatment and Payments	 	 	3738
	 
	2.18.
	 	Requirements of Law	 	 	3839
	 
	2.19.
	 	Taxes	 	 	40	 
	2.20.
	 	Indemnity	 	 	4142
	 
	2.21.
	 	Change of Lending Office	 	 	42	 
	2.22.
	 	Replacement of Lenders	 	 	4243
	 
	2.23.
	 	Illegality	 	 	4243
	 
	2.24.
	 	Defaulting Revolving Lenders	 	 	43	 
	 
	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	LETTERS OF CREDIT	 	 	4246
	 
	3.1.
	 	LC Commitments	 	 	4246
	 
	3.2.
	 	Procedure for Issuance of Letter of Credit	 	 	4346
	 
	3.3.
	 	Fees and Other Charges	 	 	4346
	 
	3.4.
	 	LC Participations	 	 	4347
	 
	3.5.
	 	Reimbursement Obligation of the Borrower	 	 	4548
	 
	3.6.
	 	Obligations Absolute	 	 	4649
	 
	3.7.
	 	Letter of Credit Payments	 	 	4649
	 
	3.8.
	 	Applications	 	 	4649
	 








 




			
	1/	 	Does not reflect actual pagination.




i 









 










	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES	 	 	4649
	 
	 
	 	 	 	 	 	 
	4.1.
	 	Financial Condition	 	 	4649
	 
	4.2.
	 	No Change	 	 	4750
	 
	4.3.
	 	Existence; Compliance with Law	 	 	4750
	 
	4.4.
	 	Power; Authorization; Enforceable Obligations	 	 	4850
	 
	4.5.
	 	No Legal Bar	 	 	4850
	 
	4.6.
	 	Litigation	 	 	4851
	 
	4.7.
	 	No Default	 	 	4851
	 
	4.8.
	 	Ownership of Property; Liens	 	 	4851
	 
	4.9.
	 	Intellectual Property	 	 	4951
	 
	4.10.
	 	Taxes	 	 	4951
	 
	4.11.
	 	Federal Regulations	 	 	4951
	 
	4.12.
	 	Labor Matters	 	 	4952
	 
	4.13.
	 	ERISA	 	 	4952
	 
	4.14.
	 	Investment Company Act; Other Regulations	 	 	5052
	 
	4.15.
	 	Subsidiaries	 	 	5052
	 
	4.16.
	 	Use of Proceeds	 	 	5052
	 
	4.17.
	 	Environmental Matters	 	 	5052
	 
	4.18.
	 	Accuracy of Information, etc 51.	 	 	53
	 
	4.19.
	 	Security Documents	 	 	5154
	 
	4.20.
	 	Solvency	 	 	5254
	 
	4.21.
	 	Senior Indebtedness	 	 	5255
	 
	4.22.
	 	Regulation H	 	 	5255
	 
	4.23.
	 	Insurance	 	 	5255
	 
	4.24.
	 	Lease Payments	 	 	5255
	 
	4.25.
	 	Certain Documents	 	 	53	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	CONDITIONS PRECEDENT	 	 	5355
	 
	 
	 	 	 	 	 	 
	5.1.
	 	Conditions to Effectiveness	 	 	53	 
	5.1.
	 	[INTENTIONALLY OMITTED]	 	 	55	 
	 
	 
	5.2.
	 	Conditions to Each Extension of Credit	 	 	55	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	AFFIRMATIVE COVENANTS	 	 	56	 
	 
	 	 	 	 	 	 
	6.1.
	 	Financial Statements	 	 	56	 
	6.2.
	 	Certificates; Other Information	 	 	56	 
	6.3.
	 	Payment of Obligations	 	 	57	 
	6.4.
	 	Maintenance of Existence; Compliance	 	 	5857
	 
	6.5.
	 	Maintenance of Property; Insurance	 	 	5857	 
	6.6.
	 	Inspection of Property; Books and Records;
Discussions.


	 	 	58	 
	 	 	 	 
	6.7.
	 	Notices	 	 	58	 
	6.8.
	 	Environmental Laws	 	 	59	 
	6.9.
	 	Additional Collateral, etc.

	 	 	59	 
	6.10.
	 	Permitted Acquisitions and Permitted Foreign Acquisitions	 	 	61	 
	6.11.
	 	Further Assurances	 	 	61	 
	6.12.
	 	Conditions Subsequent	 	 	61	 






ii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	NEGATIVE COVENANTS	 	 	6261
	 
	 
	 	 	 	 	 	 
	7.1.
	 	Financial Condition Covenants 62.	 	 	61
	 
	7.2.
	 	Indebtedness	 	 	6261
	 
	7.3.
	 	Liens	 	 	63	 
	7.4.
	 	Fundamental Changes	 	 	6564
	 
	7.5.
	 	Disposition of Property	 	 	6564
	 
	7.6.
	 	Restricted Payments	 	 	6665
	 
	7.7.
	 	Capital Expenditures	 	 	6766
	 
	7.8.
	 	Investments	 	 	6866
	 
	7.9.
	 	Payments and Modifications of Certain Debt Instruments and Qualified Preferred Stock	 	 	6968
	 
	7.10.
	 	Transactions with Affiliates	 	 	69	 
	7.11.
	 	Sales/Leaseback Transactions	 	 	7069
	 
	7.12.
	 	Changes in Fiscal Periods	 	 	7069
	 
	7.13.
	 	Negative Pledge Clauses	 	 	7069
	 
	7.14.
	 	Clauses Restricting Subsidiary Distributions	 	 	7069
	 
	7.15.
	 	Lines of Business	 	 	70	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	EVENTS OF DEFAULT	 	 	7170
	 
	 
	 	 	 	 	 	 
	SECTION 9.
	 	THE AGENTS	 	 	7473
	 
	 
	 	 	 	 	 	 
	9.1.
	 	Appointment	 	 	7473
	 
	9.2.
	 	Delegation of Duties	 	 	7473
	 
	9.3.
	 	Exculpatory Provisions	 	 	7473
	 
	9.4.
	 	Reliance by Administrative Agent	 	 	7574
	 
	9.5.
	 	Notice of Default	 	 	7574
	 
	9.6.
	 	Non-Reliance on Agents and Other Lenders	 	 	7574
	 
	9.7.
	 	Indemnification	 	 	7675
	 
	9.8.
	 	Agent in Its Individual Capacity	 	 	7675
	 
	9.9.
	 	Successor Administrative Agent	 	 	7675
	 
	9.10.
	 	Authorization to Release Guarantees and Liens	 	 	7776
	 
	9.11.
	 	Documentation AgentAgents and Syndication Agent	 	 	7776
	 
	 
	 	 	 	 	 	 
	SECTION 10.
	 	MISCELLANEOUS	 	 	7776
	 
	 
	 	 	 	 	 	 
	10.1.
	 	Amendments and Waivers	 	 	7776
	 
	10.2.
	 	Notices	 	 	7877
	 
	10.3.
	 	No Waiver; Cumulative Remedies	 	 	7978
	 
	10.4.
	 	Survival of Representations and Warranties	 	 	8079
	 
	10.5.
	 	Payment of Expenses and Taxes	 	 	8079
	 
	10.6.
	 	Successors and Assigns; Participations and Assignments	 	 	8180
	 
	10.7.
	 	Adjustments; Setoff	 	 	8382
	 
	10.8.
	 	Counterparts	 	 	8483
	 
	10.9.
	 	Severability	 	 	8483
	 
	10.10.
	 	Integration	 	 	8483
	 
	10.11.
	 	GOVERNING LAW	 	 	8483	 
	10.12.
	 	Submission To Jurisdiction; Waivers	 	 	8483
	 
	10.13.
	 	Acknowledgements	 	 	8584
	 
	10.14.
	 	Confidentiality	 	 	8584
	 
	10.15.
	 	WAIVERS OF JURY TRIAL	 	 	85	 






iii 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	10.16.
	 	USA PATRIOT Act	 	 	8685
	 
	10.17.
	 	No Novation, etc.	 	 	8685
	 







iv 









 








	 	 	 
	ANNEX:
	 	 
	 
	 	 
	A
	 	Revolving Commitments
and Tranche A Term Commitments
Loans on First Amendment Effective Date


	 
	 	 
	SCHEDULES:
	 	 
	 
	 	 
	1.1
	 	Existing Letters of Credit
	4.6
	 	Litigation
	4.15
	 	Subsidiaries
	4.19(a)
	 	UCC and Other Filings / Jurisdictions and Offices
	4.19(b)
	 	Mortgaged Properties
	7.2(d)
	 	Existing Indebtedness
	7.3(f)
	 	Existing Liens
	7.14
	 	Existing Restrictions
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	A-1
	 	Guarantee and Collateral Agreement
	A-2
	 	Form of Reaffirmation
	B
	 	Form of Compliance Certificate
	C
	 	Form of Closing Certificate
	D
	 	Form of Assignment and Assumption
	E
	 	Form of Legal Opinion of Fulbright & Jaworski L.L.P.
	F
	 	Form of Exemption CertificateG-1Form of Increased Facility Activation Notice
	GE-2
	 	Form of Increased Revolving Facility Activation Notice
	HF
	 	Form of New Lender Supplement
	I
	 	Form of Addendum







v 













 





          THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 28, 2003, as amended and restated
as of November 15, 2006, among RENT-A-CENTER, INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”), BRANCH BANKING AND TRUST COMPANY, FIFTH
THIRD BANK, WELLS FARGO BANK, N.A., UNION BANK OF CALIFORNIA, N.A. and COMPASS BANK, as
documentation agentagents (in such capacity, the “Documentation Agent”), LEHMAN
COMMERCIAL PAPER INCAgents”), BANK OF AMERICA, N.A., as syndication agent (in such
capacity, the “Syndication Agent”), and JPMORGAN CHASE BANK, N.A., as administrative agent.




WITNESSETH:




          WHEREAS, the Borrower entered into the Credit Agreement, dated as of May 28, 2003, as amended
and restated as of July 13, 2006 (the “Existing Credit Agreement”), among the Borrower, the
several banks and other financial institutions or entities party thereto and the agents named
therein;




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




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




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




SECTION 1. DEFINITIONS




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




          “ABR”: for any day, a
rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatergreatest of (a) the Prime Rate in effect on such day
and, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c)
the Eurodollar Rate that would be calculated as of such day (or, if such day is not a Business Day,
as of the next preceding Business Day) in respect of a proposed Eurodollar Loan with a one-month
Interest Period plus 1.0%. Any change in the ABR due to a change in the Prime Rate or,
the Federal Funds Effective Rate or such Eurodollar Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or, the Federal
Funds Effective Rate or such Eurodollar Rate, respectively.




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




          “Acquired Company”: Rent-Way, Inc., a Pennsylvania corporation.




          “Acquisition”: as defined in Section 5.1(e).




 









 








          “Acquisition Agreement”: the Agreement and Plan of Merger, dated as of August 7,
2006, among the Borrower, Vision Acquisition Corp., a Pennsylvania corporation and an indirect
wholly owned Subsidiary of the Borrower, and the Acquired Company.




          “Acquisition Documentation”: collectively, the Acquisition Agreement and all
schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms
thereof or entered into in connection therewith, in each case as amended, supplemented or otherwise
modified from time to time in accordance with Section 5.1(e).




          “Addendum”: an instrument, substantially in the form of Exhibit I, by which a
Lender consents to the amendment and restatement of the Existing Credit Agreement pursuant hereto
or becomes a party to this Agreement as of the Restatement Effective Date.




          “Adjustment Date”: as defined in the Applicable Pricing Grid.the acquisition by
the Borrower of all of the outstanding common stock of the Acquired Company.




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




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




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




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




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




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




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




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




          “Alternative Currency LC Exposure”: at any time, the sum of (a) the Dollar Equivalent
of the aggregate undrawn and unexpired amount (that is available for drawing) of all outstanding
Alternative Currency Letters of Credit at such time plus (b) the Dollar Equivalent of the
aggregate


2









 







principal amount of all LC Disbursements in respect of Alternative Currency Letters of Credit
that have not yet been reimbursed at such time.




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




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




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




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




          “Applicable Existing Pricing Grid”:




	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin	 	Applicable Margin
	 	 	for Eurodollar	 	for ABR 
	 	 	Tranche A 	 	Tranche A
	 	 	Existing	 	Existing
	 	 	 	
 

	 	 	 	
 

	 
	 	 	Term Loans, 	 	Term Loans,
	Consolidated	 	Revolving Loans and 	 	Revolving Loans and 
	Leverage Ratio	 	Swingline Loans	 	Swingline Loans
	≥3.0 to 1.0
	 	 	1.75	%	 	 	0.75	%
	<3.0 to 1.0 and
≥ 2.5 to 1.0
	 	 	1.50	%	 	 	0.50	%
	<2.5 to 1.0 and
≥  2.0 to 1.0
	 	 	1.25	%	 	 	0.25	%
	<2.0 to 1.0 and
≥  1.5 to 1.0
	 	 	1.00	%	 	 	0	%
	<1.5 to 1.0 and
≥  1.0 to 1.0
	 	 	0.875	%	 	 	0	%
	<1.0 to 1.0
	 	 	0.750	%	 	 	0	%







3









 







ChangesFor purposes of the Applicable Existing Pricing Grid, changes in the Applicable
Margin or in the Commitment Fee Rate resulting from changes in the Consolidated Leverage Ratio
shall become effective on the date (the “Adjustment Date”) on which financial statements
are delivered to the Lenders pursuant to Section 6.1 (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year or the 90th day
after the end of each fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements referred to above
are not delivered within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed to be greater than 3.0 to
1.0. In addition, at all times while an Event of Default shall have occurred and be continuing,
the Consolidated Leverage Ratio shall for the purposes of this definition be deemed to be greater
than 3.0 to 1.0. Each determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal quarters of the Borrower ending
at the end of the period covered by the relevant financial statements.




          “Applicable Extended Pricing Grid”: 




	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin
	 	 	Applicable Margin
	 
	 	 	for Eurodollar Tranche A
	 	 	for ABR Tranche A
	 
	 	 	Extended Term Loans,
	 	 	Extended Term Loans,
	 
	 	 	Revolving Loans and
	 	 	Revolving Loans and
	 
	Consolidated Leverage Ratio
	 	Swingline Loans
	 	 	Swingline Loans
	 
	≥ 2.0 to 1.0
	 	 	3.00%
	 	 	 	2.00%
	 
	   
	 	 	 
	 	 	 	 
	 
	<2.0 to 1.0 and
≥1.5 to 1.0
	 	 	2.75%
	 	 	 	1.75%
	 
	   
	 	 	 
	 	 	 	 
	 
	<1.5 to 1.0
	 	 	2.50%
	 	 	 	1.50%	 
	   
	 	 	 
	 	 	 	 
	 






For purposes of the Applicable Extended Pricing Grid, changes in the Applicable Margin
resulting from changes in the Consolidated Leverage Ratio shall become effective on the date on
which financial statements are delivered to the Lenders pursuant to Section 6.1 (but in any event
not later than the 45th day after the end of each of the first three quarterly periods of each
fiscal year or the 90th day after the end of each fiscal year, as the case may be) and shall remain
in effect until the next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Consolidated Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of this definition be
deemed to be greater than 2.0 to 1.0. In addition, at all times while an Event of Default shall
have occurred and be continuing, the Consolidated Leverage Ratio shall for the purposes of this
definition be deemed to be greater than 2.0 to 1.0. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the period of four
consecutive fiscal quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.




          “Applicable Margin”: (a) with respect to Revolving Loans, Swingline Loans and Tranche A
Term Loans (other than Incremental Tranche A Extended Term Loans), the per annum rate determined
pursuant to the Applicable Existing Pricing Grid or the Applicable Extended Pricing Grid, as
applicable; (b) with respect to Tranche B Term Loans (other than Incremental Tranche B Extended
Term Loans), the rate per annum set forth under the relevant column heading below:




4









 








	 	 	 	 	 
	 	 	ABR
	 	 	Eurodollar

	 	 	Loans
	 	 	Loans

	 Tranche B Existing Term Loans	 	0.75%	 	 	1.75%
	 	 	 
	 	 	 

	Tranche B Extended Term Loans	 	2.00%	 	 	3.00%;
	 	 	 
	 	 	 






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




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




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




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




          “Asset Sale”: any Disposition of property or series of related Dispositions of
property (excluding any such Disposition permitted by clause (a), (b), (c), (d), (f), (g), (h),
(i), (j) or (kj) of Section 7.5 and any Disposition of Cash Equivalents) that yields gross
proceeds to the Borrower or any of its Subsidiaries (valued at the initial principal amount thereof
in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair
market value in the case of other non-cash proceeds) in excess of $5,000,000.




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




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




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




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




          “Available Revolving Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender’s


5









 







Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving
Commitment pursuant to Section 2.8(a), the aggregate principal amount of Swingline Loans then
outstanding shall be deemed to be zero.




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




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




          “Borrower”: as defined in the preamble hereto.




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




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




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




          “Calculation Date”: two Business Days prior to the last Business Day of each calendar
quarter (or any other day selected by the Administrative Agent in its discretion); provided
that each date that is on or about the date of any issuance, drawdown, expiration or extension of
an Alternative Currency Letter of Credit shall also be a “Calculation Date” with respect to the
relevant Alternative Currency.




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




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




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




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




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





6











 





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




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




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




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




          
“Commitment Fee Rate”: 0.50% per annum; provided, that on and after the first
Adjustment Date occurring after the Restatement Effective Date, the Commitment Fee Rate will be
determined pursuant to the Applicable Pricing Grid.




          
“Commitment Fee Rate”: on any date, (a) 0.50% if the Revolving Utilization is greater
than or equal to 33-1/3% on such date and (b) otherwise, 0.625%.




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




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




7









 








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




          “Confidential Information Memorandum”: the Confidential Information Memorandum dated
October 2006 and furnished to certain Lenders.




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




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




          
“Consolidated EBITDA”: for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge or reduction in the
statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
interest expense, amortization or writeoff of debt discount and debt issuance costs and commissions
and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation
(excluding depreciation of rental merchandise) and amortization expense, including, without
limitation, amortization of intangibles (including, but not limited to, goodwill) and organization
costs, (d) any extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such Consolidated Net
Income for such period, non-cash losses on sales of assets outside of the ordinary course of
business) and (e) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary, unusual or non-recurring income or gains (including, (i) whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business) and (ii) gains
resulting from below-par purchases of Term Loans), (c) any other non-cash income earned outside
the ordinary course of business and (d) any cash payments made during such period in respect of
items described in the immediately preceding clause (d) or (e) above subsequent to the fiscal
quarter in which the relevant non-cash expenses, losses or charges were reflected as a charge in
the statement of Consolidated Net Income, all as determined on a consolidated basis. For the
purposes of calculating Consolidated EBITDA for any Reference Period pursuant to any determination
of the Consolidated Leverage Ratio, if during such Reference Period the Borrower or any Subsidiary
shall have made a Material Disposition or Material Acquisition, Consolidated EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto as if
such Material Disposition or Material Acquisition (including any indebtedness incurred


8









 







or acquired in connection therewith) occurred on the first day of such Reference Period. As
used in this definition, “Material Acquisition” means any acquisition of property or series of
related acquisitions of property that (a) constitutes assets comprising all or substantially all of
an operating unit of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Borrower and its Subsidiaries in excess
of $15,000,000 (or such lesser amount as the Borrower may determine in its discretion); and
“Material Disposition” means any Disposition of property or series of related Dispositions of
property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of
$15,000,000 (or such lesser amount as the Borrower may determine in its discretion).
Notwithstanding anything to the contrary herein, if at any time the Permitted Non-Guarantor
Subsidiaries represent (1) more than 10% of the consolidated total assets of the Borrower and its
Subsidiaries as of the most recently ended fiscal quarter of the Borrower, (2) more than 10% of the
consolidated total revenues of the Borrower and its Subsidiaries for the four fiscal quarters of
the Borrower most recently ended, or (3) more than 10% of the Consolidated EBITDA of the Borrower
and its Subsidiaries for the four fiscal quarters of the Borrower most recently ended, in each case
as determined on a consolidated basis in conformity with GAAP consistently applied, then the
Consolidated EBITDA attributable to such Permitted Non-Guarantor Subsidiaries shall be disregarded
for purposes of calculating “Consolidated EBITDA” hereunder except to the extent actually
distributed to the Borrower or a Domestic Subsidiary that is not a Permitted Non-Guarantor
Subsidiary.




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




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




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




          “Consolidated Interest Expense”: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations), net of cash interest income, of the
Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers’ acceptance financing, commitment fees payable
pursuant to Section 2.8 and net costs under Hedge Agreements in respect of such Indebtedness to the
extent such net costs are allocable to such period in accordance with GAAP).




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




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




9









 








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




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




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




          
“Consolidated Net Income Amount”: at any date of determination, an amount equal to
cumulative Consolidated Net Income from AprilOctober 1, 2006
2009 through the last
day of the most recent fiscal quarter for which financial statements have been delivered pursuant
to Section 6.1.




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




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




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




          
“Continuing Directors”: the directors of the Borrower on the RestatementFirst
Amendment Effective Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director of the Borrower, if, in each case, such other
director’s election, nomination for election or appointment
to the board of
directors of the Borrower is or was recommended or approved by at least
66-2/3%a majority of the then Continuing Directors at the time of such director’s
election, nomination for election or appointment to the board of directors of the Borrower.




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




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




10









 








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




          “Defaulting Lender”: any Lender, as
reasonably determined by the Administrative Agent and
the Borrower, that (a) in the case of any Revolving Lender, has (i) failed to fund any portion of
its Revolving Loans or participations in Letters of Credit or Swingline Loans within three Business
Days of the date required to be funded by it hereunder, (ii) notified the Borrower, the
Administrative Agent, the Issuing Lender, the Swingline Lender or any Lender in writing that it
does not intend to comply with any of its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its funding obligations under
this Agreement or under other agreements in which it commits to extend credit, (iii) failed, within
three Business Days after request by the Administrative Agent, to confirm that it will comply with
the terms of this Agreement relating to its obligations to fund prospective Revolving Loans and
participations in then outstanding Letters of Credit and Swingline Loans or (iv) otherwise failed
to pay over to the Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within three Business Days of the date when due, unless the subject of a good faith
dispute, or (b) in the case of any Lender, has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such
proceeding or appointment.




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




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




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




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




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




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




          
“dPi Teleconnect”: dPi Teleconnect, L.L.C., a Delaware limited liability company that
is a Subsidiary of the Borrower.




11









 








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




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




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




          “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan (other than any Eurodollar Loan having a seven-day Interest
Period), the rate per annum determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of such Interest Period appearing
on the Reuters Screen LIBOR01 Page 3750 of the British Bankers Association
Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period,
provided that if such rate does not appear on Page 3750 of the British Bankers Association
Telerate screensuch page (or otherwise on such screen) the “Eurodollar Base Rate”
shall be determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent. If no such rate is available or
if the Eurodollar Base Rate is being determined in connection with any Eurodollar Loan having a
seven-day Interest Period, such rate shall be determined by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the interbank eurodollar market
where its eurodollar and foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days comprised therein.
Notwithstanding the foregoing, if the Borrower selects an Interest Period of one or two months for
a Eurodollar Tranche B Extended Term Loan, the Eurodollar Base Rate with respect thereto shall be
determined by reference to the rate that would apply as set forth above to a Eurodollar Loan with
an Interest Period of three months.




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




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




Eurodollar Base Rate 

1.00 - Eurocurrency Reserve Requirements




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




12









 








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




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




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




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




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




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




13









 








          
“Existing Senior Subordinated Notes”: the subordinated notes of the Borrower
outstanding on the Restatement Restated Credit Agreement”: this Agreement as in effect
immediately prior to the First Amendment Effective Date.




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




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




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




          
“Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.




          
“First Amendment Effective Date”: as defined in the First Amendment, dated as of December
2, 2009, to this Agreement, which date is December 3, 2009.




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




          
“Funded Debt”: as to any Person, on any date, (a) all Indebtedness of such Person
that matures more than one year from the date of its creation or matures within one year from such
date but is renewable or extendible, at the option of such Person, to a date more than one year
from such date or arises under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans and the Reimbursement Obligations (but excluding, in the case
of the Borrower, any Guarantee Obligations of the Borrower in respect of Indebtedness of
franchisees, to the extent permitted by Section 7.2(h)), minus (b) the aggregate amount of
cash and Cash Equivalents on the consolidated balance sheet of the Borrower and its Subsidiaries on
such date that is in excess of $25,000,000 and not subject to any Lien (other than pursuant to the
Loan Documents).




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




          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1 and the calculations of the Consolidated
Leverage Ratio in respect of the Applicable Pricing Grid, GAAP shall be determined on the basis of
such principles


14









 







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




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




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




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




          “Hedge Agreements”: all swaps, caps, collars or similar arrangements providing for
protection against fluctuations in interest rates (whether from floating to fixed or from fixed to
floating),


15









 







currency exchange rates or commodities prices or the exchange of nominal interest obligations,
either generally or under specific contingencies.




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




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




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




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




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




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




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




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




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




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




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




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as an account party under
acceptance, letter of credit or similar facilities, (g) the liquidation value of all redeemable
preferred Capital Stock of such Person (other than any Qualified Preferred Stock) and all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above; (i) all
obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts


16









 







and contract rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation; (j) all Attributable Indebtedness of such Person and (k)
for the purposes of Section 8(e) only, all obligations of such Person in respect of Hedge
Agreements (which, for purposes of such Section 8(e), will be deemed to have an outstanding
principal amount equal to the net amount which would be payable (or would permit the counterparty
thereto to cause to become payable) by the Borrower or Subsidiary party thereto (including any net
termination payment) upon the occurrence of any default, event or condition specified in such
Section 8(e)).




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




          “Insolvent”: pertaining to a condition of Insolvency.




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




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




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




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




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





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



17









 






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




     (iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of a calendar month; and




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


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




          “Investments”: as defined in Section 7.8.




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




          “LC Disbursement”: as defined in Section 3.5.




          
“LC Exposure”: with respect to any Revolving Lender, such Lender’s Revolving Percentage
of the LC Obligations then outstanding.




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




          
“LC Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount available for drawing of the then outstanding Letters of Credit and
(b) the aggregate amount of LC Disbursements that have not then been reimbursed pursuant to Section
3.5. For purposes of computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.2(f). For all
purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the
International Standby Practices 1998 published by the Institute of International Banking and Law
Practice (or such latest version thereof as may be in effect at the time of issuance), such Letter
of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.




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




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




          
“Lenders”: as defined in the preamble hereto.




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




          
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any


18









 







conditional sale or other title retention agreement and any capital lease having substantially
the same economic effect as any of the foregoing) or any purchase option, call option, right of
first refusal or similar right.




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




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




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




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




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




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




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




          “Moody’s”: as defined in the definition of Cash Equivalents.




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




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




          “Multiemployer Plan”: a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were


19









 







terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




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




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




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




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




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




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




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




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




20









 








          “Other Taxes”: any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.




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




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




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




          “Permitted Foreign Acquisition”: any acquisition, consisting of a single transaction
or a series of related transactions, by the Borrower or any one or more of its Wholly Owned
Subsidiary Guarantors (or Subsidiaries who will concurrently with such acquisition become Wholly
Owned Subsidiary Guarantors) or Foreign Subsidiaries (that are Wholly Owned Subsidiaries) of all of
the Capital Stock of, or all or a substantial part of the assets of, or of a business, unit or
division of, any Person organized under the laws of any governmental instrumentality other than the
United States or any state thereof (or a business, unit or division of any Person organized under
the laws of the United States or any state thereof, which business unit or division operates
entirely outside of the United States) (such business, unit or division, the “Acquired Foreign
Business”), provided that (a) the consideration paid by the Borrower or such Subsidiary
or Subsidiaries pursuant to such acquisition shall be solely in a form referred to in clause (a),
(b), (c) or (d) of the definition of “Purchase Price” (or some combination thereof), (b) the
requirements of Section 6.10 have been satisfied with respect to such acquisition, (c) the Borrower
shall be in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Section 7.1, in each case recomputed as at the last
day of the most recently ended


21









 








fiscal quarter of the Borrower as if such acquisition had occurred on the first day of each
relevant period for testing such compliance, (d) no Default or Event of Default shall have occurred
and be continuing, or would occur after giving effect to such acquisition, (e) all actions required
to be taken with respect to any acquired or newly formed Subsidiary or otherwise with respect to
the Acquired Foreign Business in such acquisition under Section 6.9 and 6.10 shall have been taken,
(f) the aggregate Purchase Prices in respect of such acquisition and all other Permitted Foreign
Acquisitions consummated in accordance with this Agreement shall not exceed $150,000,000 in any
single fiscal year of the Borrower and shall not exceed $300,000,000 from and after the Restatement
Effective Date through the remaining term of this Agreement, and (g) any such acquisition shall
have been approved by the Board of Directors or such comparable governing body of the Person (or
whose business, unit or division is, as the case may be) being acquired.




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




          “Permitted Non-Guarantor Subsidiary”: as defined in Section 6.9(c).




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




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




          
“PPA”: the Pension Protection Act of 2006.




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




          “Pro Forma Financial Statements”: as defined in Section 4.1(a).




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




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




          “Purchase Price”: with respect to any Permitted Acquisition or Permitted Foreign
Acquisition, the sum (without duplication) of (a) the amount of cash paid by the Borrower and its
Subsidiaries in connection with such acquisition, (b) the value (as determined for purposes of such
acquisition in accordance with the applicable acquisition agreement) of all Capital Stock of the
Borrower issued or given as consideration in connection with such acquisition, (c) the Qualified
Net Cash Equity Proceeds applied to finance such acquisition and (d) the principal amount (or, if
less, the accreted value) at the time of such acquisition of all Assumed Indebtedness with respect
thereto.




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





22











 





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




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




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




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




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




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




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




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




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




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




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




23









 








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




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




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




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




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




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




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




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




          “Restatement Effective Date”: the date on which the conditions precedent set forth in
Section 5.1 shall have been satisfied, which date is the date of closing of the
Acquisition.November 15, 2006.




          “Restricted Payments”: as defined in Section 7.6.




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




24









 







pursuant to the terms hereof. The original aggregate amount of the Revolving Commitments is 
$400,000,000. as of the First Amendment Effective Date is $350,000,000.




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




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




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




          “Revolving Loans”: as defined in Section 2.2.




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




          “Revolving Scheduled Commitment Termination Date”: July 13, 2011.September 30,
2013.




          “Revolving Utilization”: on any date, the quotient, expressed as a percentage, of the
Total Revolving Extensions of Credit (determined excluding any Swingline Loans then outstanding) on
such date divided by the Total Revolving Commitments on such date. 




          “S&P”: as defined in the definition of Cash Equivalents.




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




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




          “SEC Reports”: as defined in Section 4.18(b).




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




25









 








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




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




          “Senior Subordinated Notes”:




          “Senior Subordinated Notes”: any subordinated notes of the Borrower issued after the
First Amendment Effective Date pursuant to Section 7.2(f). 




          “Senior Unsecured Note Indenture”: the collective reference to (a) the Existing Senior
Subordinated Notes and (b) any other subordinated notes of the Borrower issued pursuant to Section
7.2(f).each indenture, if any, entered into by the Borrower or any of its Subsidiaries in
connection with any issuance of Senior Unsecured Notes, together with all instruments and other
agreements entered into by the Borrower or any of its Subsidiaries in connection therewith, as the
same may be amended, supplemented or otherwise modified from time to time in accordance with
Section 7.9.




          “Senior Unsecured Notes”: any senior unsecured notes of the Borrower that (a) have no
scheduled principal payments prior to the date that is one year after the latest maturity date for
Loans hereunder that is in effect on the date of issuance of such senior unsecured notes and (b)
have terms (excluding the interest rate) no less favorable in any material respect to the Borrower
and its Subsidiaries (taken as a whole) and the Lenders (taken as a whole) than those applicable to
offerings of “high-yield” senior unsecured debt by similar issuers of similar debt at or about the
same time, as evidenced by written advice of the Borrower’s financial advisors of recognized
national standing. For avoidance of doubt, senior unsecured notes of the Borrower shall only
constitute “Senior Unsecured Notes” if any one or more Subsidiaries of the Borrower has a Guarantee
Obligation in respect thereof.




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




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




26









 








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




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




          “Specified Subsidiaries”: the collective reference to the Insurance Subsidiary,
Legacy Trust, any Excluded Foreign Subsidiary, and any Permitted Non-Guarantor Subsidiary
and, so long as it is not a Wholly Owned Subsidiary, dPi Teleconnect.




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




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




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




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




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




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




          “Swingline Exposure”: with respect to any Revolving Lender, such Lender’s Revolving
Percentage of the aggregate principal amount of Swingline Loans then outstanding.




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




          “Swingline Loans”: as defined in Section 2.3.




27









 








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




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




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




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




          “Term
Lenders”: the collective reference to the Tranche Aeach holder of a
Term Lenders and the Tranche B Term LendersLoan.




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




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




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




          “Tranche A Term Commitment”: as to any Lender, the obligation of such Lender, if any,
(i) to make a Tranche A Term Loan to the Borrower in a principal amount not to exceed the amount
set forth under the heading “Tranche A Term Commitment” opposite such Lender’s name on Annex A and
(ii) to make Tranche A Term Loans pursuant to Section 2.1(a)(i) and in accordance with an
applicable Increased Facility Activation Notice. The original aggregate amount of the Tranche A
Term Commitments is $197,500,000.




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




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




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




          “Tranche B Term Commitment”: as to any Lender, the obligation of such Lender, if any,
(i) to make a Tranche B Term Loan to the Borrower in a principal amount not to exceed the amount of
its “Tranche B Commitment”, as advised to such Lender by the Admin Agent, and (ii) to make Tranche
B Term Loans pursuant to Section 2.1(a)(ii) and in accordance with an applicable Increased Facility
Activation Notice. The original aggregate amount of the Tranche B Term Commitments is
$725,000,000.




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




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




28









 








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




          “Tranche A Existing Term Loan”: each Term Loan that amortizes as described in Section
2.7(a).




          “Tranche A Extended Term Loan”: (a) each Term Loan that amortizes as described in Section
2.7(b) and (b) each Incremental Tranche A Extended Term Loan.




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




          “Tranche B Existing Term Loan”: each Term Loan that amortizes as described in Section
2.7(c).




          “Tranche B Extended Term Loan”: (a) each Term Loan that amortizes as described in Section
2.7(d) and (b) each Incremental Tranche B Extended Term Loan.




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




          “Transferee”: any Assignee or Participant.




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




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




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




          “United States”: the United States of America.




          “U.S. Tax Compliance Certificate”: as defined in Section 2.19(d).




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




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




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




29









 








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




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




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




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




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




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




SECTION 2. AMOUNT AND TERMS OF FACILITIES




     2.1.
Term Commitments; Term Loans; Incremental Term Loans. (a) Subject to the terms and
conditions set forth herein, (i) each Tranche A Term Lender severally agrees, as applicable, (A) to
convert all or a part of such Lender’s Existing Tranche A Term Loan into a principal amount of term
loan (together with the Incremental Tranche A Term Loans defined below and the loans pursuant to
paragraph (b) below, the “Tranche A Term Loans”) hereunder equal to the principal amount so
converted and/or (B) pursuant to paragraph (b) below, to make a term loan to the Borrower, in each
case on the Restatement Effective Date, in a principal amount equal to its Tranche A Term
Commitment, (ii) each Tranche B Term Lender agrees, as applicable, (A) to convert all or a part of
such Lender’s Existing Tranche B Term Loan into a principal amount of term loan (together
with the Incremental Tranche B Term Loans defined below and the loans pursuant to paragraph
(c) below, the “Tranche B Term Loans”) hereunder equal to the principal amount so converted and/or
(B) pursuant to paragraph (c) below, to make a term loan to the Borrower, in each case on the
Restatement Effective Date, in a principal amount equal



30









 




to its Tranche B Term Commitment and (iii)
each Incremental Term Lender agrees to make one or more term loans to the extent provided in
Section 2.1(d). Effective on the First Amendment Effective Date, each Tranche A Term Loan
outstanding under the Existing Restated Credit Agreement shall either be maintained hereunder as a
Tranche A Existing Term Loan or converted to a Tranche A Extended Term Loan, in each case in
amounts for each relevant Term Lender as specified on Annex A hereto.




          (b)
Effective on the First Amendment Effective Date, each Tranche B Term Loan
outstanding under the Existing Restated Credit Agreement shall either be maintained hereunder as a
Tranche B Existing Term Loan or converted to a Tranche B Extended Term Loan, in each case in
amounts for each relevant Term Lender as specified to such Term Lender in a notice from the
Administrative Agent delivered on or about the First Amendment Effective Date.




          (c) The Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.4
and 2.12.




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




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




          (d) The Borrower and any one or more Term Lenders may from time to time agree that such Term
Lenders shall increase the amount of their Tranche A Extended Term Loans (“Incremental
Tranche A Extended Term Loan”) or Tranche B
Extended Term Loans
(“Incremental Tranche B 
Extended Term Loan”), as applicable, by executing and delivering to the
Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such
increase and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing
Date, (iii) the applicable maturity date for such Loans, (iv) the amortization schedule for such
Incremental Term Loans, which shall comply with





31









 







the next succeeding sentence, and (v) the
Applicable Margin for such Incremental Term Loans. The amortization schedule for any Incremental
Term Loans shall be either (i) identical, on a percentage basis, to the then remaining amortization
schedule for the Tranche A Extended Term Loans (in which case such Incremental Term Loans
shall constitute “Incremental Tranche A Extended Term Loans”) and such Incremental Tranche
A Extended Term Loans shall mature on June
September 30, 2011
2013 or (ii)
identical to or longer than, on a percentage basis, the then remaining amortization schedule for
the Tranche B Extended Term Loans (in which case such Incremental Term Loans shall
constitute “Incremental Tranche B Extended Term Loans”) and such Incremental Tranche B
Extended Term Loans shall mature on or after June 30, 2012.March 31, 2015. Other than
with respect to the pricing, amortization and final maturity date applicable thereto, the
Incremental Term Loans shall otherwise have the same terms as are applicable to the then
outstanding Tranche A Extended Term Loans or Tranche B Extended Term Loans, as
applicable. Notwithstanding the foregoing, without the consent of the Required Lenders, the
aggregate amount of Incremental Term Loans plus Incremental Revolving Commitments obtained pursuant
to Section 2.2(b) shall not exceed $150,000,000. No Term Lender shall have any obligation to
participate in any increase described in this paragraph unless it agrees to do so in its sole
discretion. The Borrower agrees to take all actions reasonably requested by the Administrative
Agent such that, as promptly as practicable after any borrowing of Incremental Term Loans, each
relevant Term Lender shall hold a ratable portion of each Eurodollar Tranche applicable to the
Tranche A Extended Term Loans or the Tranche B Extended Term Loans, as the case may
be.




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




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




          (b) The Borrower and any one or more Revolving Lenders may agree that each such Lender shall
increase the amount of its existing Revolving Commitment (the “Incremental Revolving
Commitment”) to make incremental revolving credit loans (the “Incremental Revolving
Loans”) by executing and delivering to the Administrative Agent an Increased Revolving Facility
Activation Notice
specifying (i) the amount of such increase and (ii) the Increased Revolving Facility Closing
Date. Notwithstanding the foregoing, without the consent of the Required Lenders, (i) the
aggregate amount of Incremental Revolving Commitments obtained pursuant to this paragraph plus
Incremental Term Loans obtained pursuant to Section 2.1(d) shall not exceed $150,000,000 and (ii)
no more than three Increased Revolving Facility Closing Dates may be selected by the Borrower
during the term of this Agreement.




32









 







No Lender shall have any obligation to participate in any
increase described in this paragraph unless it agrees to do so in its sole discretion.




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




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




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




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




33









 







such Lender. The Administrative Agent shall make available to the Borrower the aggregate
of the amounts made available to the Administrative Agent by the Term Lenders in like funds.




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




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




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




          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may (and, not later than 10 Business Days after the making of a Swingline Loan, shall)
on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its
behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00 Noon, New
York City time (with a copy of such notice being provided to the Borrower), request each Revolving
Lender to make, and each Revolving Lender hereby agrees to make, a Revolving Loan, in an amount
equal to such Revolving Lender’s Revolving Percentage of the aggregate amount of the Swingline
Loans (the “Refunded




34









 







Swingline Loans”) outstanding on the date of such notice, to repay the
Swingline Lender. Each Revolving Lender shall make the amount of such Revolving Loan available to
the Administrative Agent at the Funding Office in immediately available funds, not later than 10:00
A.M., New York City time, one Business Day after the date of such notice. The proceeds of such
Revolving Loans shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loans.
The Borrower irrevocably authorizes the Swingline Lender to charge the Borrower’s accounts with the
Administrative Agent (up to the amount available in each such account) in order to immediately pay
the amount of such Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans (with notice of such
charge being provided to the Borrower, provided that the failure to give such notice shall
not affect the validity of such charge).




          (c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section
2.6(b), one of the events described in Section 8(f) shall have occurred and be continuing with
respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its
sole discretion, Revolving Loans may not be made as contemplated by Section 2.6(b), each Revolving
Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred
to in Section 2.6(b) (the “Refunding Date”), purchase for cash an undivided participating
interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the
“Swingline Participation Amount”) equal to (i) such Revolving Lender’s Revolving Percentage
times (ii) the sum of the aggregate principal amount of Swingline Loans then outstanding
that were to have been repaid with such Revolving Loans.




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




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




          2.7. Repayment
of Loans. (a) The Tranche A Existing Term Loans (other than the
Incremental Tranche A Term Loans) shall mature in 19 consecutive quarterly installments in the
respective amounts set forth below opposite the applicable installment date (provided, that
the aggregate amount of the final installment shall in any event equal the aggregate then
outstanding principal amount of such Tranche A Existing Term Loans):





35









 








	 	 	 	 	 
	Installment	 	Principal Amount
	 

	 		$  2,500,000.00	 
	December 31, 2006

	 		$  2,500,000.00	 
	March 31, 2007

	 		$  2,500,000.00	 
	June 30, 2007

	 		$  2,500,000.00	 
	September 30, 2007

	 		$  2,500,000.00	 
	December 31, 2007

	 		$  2,500,000.00	 
	March 31, 2008

	 		$  2,500,000.00	 
	June 30, 2008

	 		$  2,500,000.00	 
	September 30, 2008

	 		$  2,500,000.00	 
	December 31, 2008

	 		$  2,500,000.00	 
	March 31, 2009

	 		$  2,500,000.00	 
	June 30, 2009

	 		$  5,000,000.00	 
	September 30, 2009

	 		$  5,000,000.00	 
	December 31, 2009

	 		$  5,000,000.00	 
	March 31, 2010

	 		$  5,000,000.00	 
	June 30, 2010

	 		$37,500,000.00	 
	September 30, 2010

	 		$37,500,000.00	 
	December 31, 2010

	 		$37,500,000.00	 
	March 31, 2011

	 		$37,500,000.00	 
	June 30, 2011

	 		$       2,500,000	 
	 

	 	 	 	 
	 

	 		$       2,500,000	 
	 

	 	 	 	 
	 

	 		$       2,500,000	 
	 

	 	 	 	 
	 

	 		$      18,750,000	 
	 

	 	 	 	 
	 

	 		$      18,750,000	 
	 

	 	 	 	 
	 

	 		$      18,750,000	 
	 

	 	 	 	 
	 

	 		$      18,750,000	 
	 

	 	 	 	 






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





36











 





	 	 	 	 	 
	Installment	 	Principal Amount	 
	 
	December 31, 2009
	 	$	2,500,000	 
	 
	 	 	 
	March 31, 2010
	 	$	2,500,000	 
	 
	 	 	 
	June 30, 2010
	 	$	2,500,000	 
	 
	 	 	 
	September 30, 2010
	 	$	2,500,000	 
	 
	 	 	 
	December 31, 2010
	 	$	2,500,000	 
	 
	 	 	 
	March 31, 2011
	 	$	2,500,000	 
	 
	 	 	 
	June 30, 2011
	 	$	2,500,000	 
	 
	 	 	 
	September 30, 2011
	 	$	2,500,000	 
	 
	 	 	 
	December 31, 2011
	 	$	2,500,000	 
	 
	 	 	 
	March 31, 2012
	 	$	2,500,000	 
	 
	 	 	 
	June 30, 2012
	 	$	2,500,000	 
	 
	 	 	 
	September 30, 2012
	 	$	2,500,000	 
	 
	 	 	 
	December 31, 2012
	 	$	13,125,000	 
	 
	 	 	 
	March 31, 2013
	 	$	13,125,000	 
	 
	 	 	 
	June 30, 2013
	 	$	13,125,000	 
	 
	 	 	 
	September 30, 2013
	 	$	13,125,000	 
	 
	 	 	 






          (b) (c) The Tranche B Existing Term Loans (other than the Incremental Tranche
B Term Loans) shall mature in 23 consecutive quarterly installments in the respective amounts set
forth below opposite the applicable installment date (provided, that the aggregate amount
of the final installment shall in any event equal the aggregate then outstanding principal amount
of such Tranche B Existing Term Loans):




	 	 	 	 	 
	Installment	 	Principal Amount	 
	 
	December 31, 2009
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	March 31, 2010
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	June 30, 2010
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	September 30, 2010
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	December 31, 2010
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	March 31, 2011
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	June 30, 2011
	 	$    1,817,042.61	642,266.27	 
	 
	 	 	 	 
	September 30, 2011
	 	$172,619,047.62	20,220,881.24	 
	 
	 	 	 	 
	December 31, 2011
	 	$172,619,047.62	37,332,945.06	 
	 
	 	 	 	 
	March 31, 2012
	 	$172,619,047.62	61,015,295.69	 
	 
	 	 	 	 
	June 30, 2012
	 	$172,619,047.62	61,015,295.68	 
	 
	 	 	 	 






37









 






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




	 	 	 	 	 
	Installment	 	Principal Amount	 
	 
	December 31, 2009
	 	$	750,000	 
	 
	 	 	 
	March 31, 2010
	 	$	750,000	 
	 
	 	 	 
	June 30, 2010
	 	$	750,000	 
	 
	 	 	 
	September 30, 2010
	 	$	750,000	 
	 
	 	 	 
	December 31, 2010
	 	$	750,000	 
	 
	 	 	 
	March 31, 2011
	 	$	750,000	 
	 
	 	 	 
	June 30, 2011
	 	$	750,000	 
	 
	 	 	 
	September 30, 2011
	 	$	750,000	 
	 
	 	 	 
	December 31, 2011
	 	$	750,000	 
	 
	 	 	 
	March 31, 2012
	 	$	750,000	 
	 
	 	 	 
	June 30, 2012
	 	$	750,000	 
	 
	 	 	 
	September 30, 2012
	 	$	750,000	 
	 
	 	 	 
	December 31, 2012
	 	$	750,000	 
	 
	 	 	 
	March 31, 2013
	 	$	750,000	 
	 
	 	 	 
	June 30, 2013
	 	$	750,000	 
	 
	 	 	 
	September 30, 2013
	 	$	750,000	 
	 
	 	 	 
	December 31, 2013
	 	$	750,000	 
	 
	 	 	 
	March 31, 2014
	 	$	750,000	 
	 
	 	 	 
	June 30, 2014
	 	$	71,625,000	 
	 
	 	 	 
	September 30, 2014
	 	$	71,625,000	 
	 
	 	 	 
	December 31, 2014
	 	$	71,625,000	 
	 
	 	 	 
	March 31, 2015
	 	$	71,625,000	 
	 
	 	 	 






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




          (d) (f) The Borrower shall repay all Incremental Term Loans in accordance with the
applicable Increased Facility Activation Notice and Section 2.1(d).




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




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




          2.9. Termination or Reduction of Revolving Commitments.
(a) The Borrower shall have the right, upon not less than three Business Days’
notice to the Administrative Agent, to terminate the Revolving Commitments or, from time to time,
to reduce the amount of the Revolving Commitments; provided that no such termination or reduction
of Revolving Commitments shall be





38









 







permitted if, after giving effect thereto and to any prepayments
of the Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such partial reduction
shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Commitments then in effect.




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




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




          2.11. Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or any of its Subsidiaries
(excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of
the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment
of the Term Loans.




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




          (c) If, for any fiscal year of the Borrower, commencing with the fiscal year ending December
31, 2007, there shall be Excess Cash Flow and the Consolidated Leverage Ratio as of the last day of
such fiscal year is greater than or equal to 2.75 to 1.00, the Borrower shall, on the relevant
Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the
Term Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application
Date”) no later than five Business Days after the earlier of (i) the date on which the
financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.




39









 








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




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




          2.12. Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent at least two Business Days’ prior irrevocable notice of such
election, provided that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR
Loans to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior
irrevocable notice of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be converted
into a Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined
in its or their sole discretion not to permit such conversions. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.




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




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




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




40









 








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




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




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




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




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




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





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




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



41









 




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




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




          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders; provided,
that optional prepayments shall be allocated to the installments of the relevantTranche A
Existing Term Loans, the Tranche A Extended Term Loans, the Tranche B Existing Term Loans and/or
the Tranche B Extended Term Loans as directed by the Borrower. The amount of each principal
prepayment of the Term Loans shall be applied to reduce the then remaining installments of the
Tranche A Existing Term Loans, the Tranche A Extended Term Loans, the Tranche B Existing
Term Loans and the Tranche B Extended Term Loans, as the case may be, on a pro
rata basis based upon the respective then remaining principal amounts thereof;
provided, that optional prepayments mayshall be allocated to either the Tranche A
Term Loans or the Tranche B Term Loans,the installments of the relevant Term Loans as
directed by the Borrower. Amounts repaid or prepaid on account of the Term Loans may not be
reborrowed.




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




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




          (e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such





42









 







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




          (f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment being made hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment,
and the Administrative Agent may, but shall not be required to, in reliance upon such assumption,
make available to the Lenders their respective pro rata shares of a corresponding
amount. If such payment is not made to the Administrative Agent by the Borrower within three
Business Days of such required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant to the preceding
sentence, such amount with interest thereon at the rate per annum equal to the daily average
Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




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





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




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




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


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans, issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such increased cost or
reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant
to this paragraph, it




43









 







shall promptly notify (no more frequently than quarterly) the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has become so entitled.




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




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




          2.19. Taxes. (a) Subject to the last proviso of this paragraph (a),Except as otherwise required due
to a Requirement of Law, (a) all payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority (“Taxes”). If any Taxes, excluding (i) net income taxes (including any branch
profits tax imposed by the United States of America or by the jurisdiction in which the Borrower is
located), and (ii)net income taxes and franchise taxes imposed on the Administrative Agent or any
Lender, with respect to the Administrative Agent or any Lender hereunder, (i) Taxes imposed on
(or measured by) its net income or net profits (however denominated) and franchise taxes imposed on
it by the United States, by any state thereof or by the jurisdiction (or any political subdivision
thereof) under the laws of which it is organized or in which its principal office is located (or,
in the case of such Lender, in which its applicable lending office is located) or as a result
of a present or former connection between the Administrative Agent or such Lenderit and the
jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from the Administrative
Agent or such Lenderit having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings and (ii) any branch
profits taxes imposed by the United States or any similar Tax imposed by any other jurisdiction
described in clause (i) above (“Non-Excluded Taxes”) or Other Taxes are required to be
withheld from any amounts




44









 







payable to the Administrative Agent or any Lender hereunder, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other
Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes
(i) that are attributable to such Lender’s failure to comply with the requirements of paragraph (d)
or (e) of this Section or (ii) that are United States withholding taxes imposed on amounts payable
to such Lender at the time the Lender becomes a party to this Agreement, except to the extent that
such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.




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




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




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





45











 





           (d) (e) A LenderAny Lender that is not a “United States person” as defined by
section 7701(a)(30) of the Code (a “Non-U.S. Lender”) and that is entitled to an exemption from
or reduction of non-U.S.any applicable withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreementhereunder or under any other Loan Document shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such of
withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, in the case
of any withholding tax other than the United States federal withholding tax, the completion,
execution and submission of such forms shall not be required if in the Non-U.S. Lender’s
judgment such completion, execution or submission would not materially prejudice the legal position
of such Non-U.S. Lender.



Without limiting the generality of the foregoing, any Non-U.S. Lender shall, to the extent it
is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number
of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S.
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of
the Borrower or the Administrative Agent, but only if such Non-U.S. Lender is legally entitled to
do so), whichever of the following is applicable:





          (i) in the case of any Non-U.S. Lender claiming eligibility for the
benefits of an income tax treaty to which the United States is a party, duly
completed copies of Internal Revenue Service Form W-8BEN,




          (ii) in the case of any Non-U.S. Lender claiming an exemption from United
States federal withholding tax because the payments hereunder are effectively
connected with a United States trade or business conducted by such Non-U.S. Lender,
duly completed copies of Internal Revenue Service Form W-8ECI,




          (iii) in the case of a Non-U.S. Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x) a certificate
to the effect that (A) such Non-U.S. Lender is not (i) a “bank” within the meaning
of section 881(c)(3)(A) of the Code, (ii) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Code or (iii) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (B) the
interest payment in question is not effectively connected with a United States trade
or business conducted by such Lender (a “U.S. Tax Compliance Certificate”) and (y)
duly completed copies of Internal Revenue Service Form W-8BEN, 




          (iv) to the extent a Non-U.S. Lender is not the beneficial owner (for
example, where the Non-U.S. Lender is a partnership or participating Lender granting
a typical participation), an Internal Revenue Service Form W-8IMY, accompanied by a
Form W-8ECI, W-8BEN, U.S. Tax Compliance Certificate, Form W-9, and/or other
certification documents from each beneficial owner, as applicable, or



46









 






          (v) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower or Administrative Agent to determine the
withholding or deduction required to be made.


Each Lender agrees that if any form or certification previously delivered by it expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or
promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do
so.




          (e) Each Lender shall indemnify the Administrative Agent within 10 days after
demand therefor, for the full amount of any Taxes attributable to such Lender that are payable or
paid by the Administrative Agent, and reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
any Lender by the Administrative Agent shall be conclusive absent manifest error.




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




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




          2.20. Indemnity. The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss
or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this Agreement, (b) default
by the Borrower in making any prepayment of or conversion from Eurodollar Loans after the Borrower
has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest that would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Lender) that would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.




          2.21. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.18, 2.19(a) or 2.23 with respect to such Lender, it will use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such event; provided,
that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender
and its lending office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, 


47









 






further, that nothing in this Section shall affect or postpone any of the
obligations of any Borrower or the rights of any Lender pursuant to Section 2.18, 2.19(a) or 2.23.




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




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




          2.24. Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving
Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such
Revolving Lender is a Defaulting Lender:




          (a) commitment fees shall cease to accrue on the unfunded portion of the Revolving
Commitment of such Defaulting Lender pursuant to Section 2.8(a);




          (b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting
Lender shall not be included in determining whether all Lenders or the Required Lenders have taken
or may take any action hereunder (including any consent to any amendment or waiver pursuant to
Section 10.1), provided that any waiver, amendment or modification requiring the consent of all
Lenders or each affected Lender which affects such Defaulting Lender differently than other
affected Lenders shall require the consent of such Defaulting Lender;




48









 








          (c) if any Swingline Exposure or LC Exposure exists at the time such Lender
becomes a Defaulting Lender then:





     (i) all or any part of such Swingline Exposure and LC Exposure shall be
reallocated among the non-Defaulting Revolving Lenders in accordance with their respective
Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Revolving
Lenders’ Revolving Extensions of Credit does not exceed the total of all non-Defaulting
Revolving Lenders’ Revolving Commitments and (y) the conditions set forth in Section 5.2 are
satisfied at such time; and 




     (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after
giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash
collateralize 100% of such Defaulting Lender’s LC Exposure (after giving effect to any
partial reallocation pursuant to clause (i) above) in a manner reasonably satisfactory to
the Administrative Agent for so long as such LC Exposure is outstanding, the prepayment or
cash collateralization of which may be financed with proceeds of Revolving Loans or
Swingline Loans provided that the conditions precedent set forth in Section 5.2 are
satisfied at such time; 




     (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s
LC Exposure pursuant to Section 2.24(c), the Borrower shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 3.3(a) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;




     (iv) if the LC Exposure of the non-Defaulting Revolving Lenders is reallocated
pursuant to Section 2.24(c), then the fees payable to the Revolving Lenders pursuant to
Section 2.8(a) and 3.3(a) shall be adjusted in accordance with such non-Defaulting Revolving
Lenders’ Revolving Percentages; and 




     (v) if any such Defaulting Lender’s LC Exposure is neither cash collateralized nor
reallocated pursuant to Section 2.24(c), then, without prejudice to any rights or remedies
of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under
Section 3.3(a) with respect to such Defaulting Lender’s LC Exposure shall be payable to the
Issuing Lender until such LC Exposure is cash collateralized and/or reallocated;



          (d) the Swingline Lender shall not be required to fund any Swingline Loan and the
Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is
reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of
the non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in
accordance with Section 2.24(c), and participating interests in any such newly issued or increased
Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Revolving
Lenders in a manner consistent with Section 2.24(c)(i) (and any such Defaulting Lenders shall not
participate therein); and




          (e) any amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would otherwise be payable to
such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.22) shall, in lieu of being
distributed to such Defaulting Lender and without duplication, be retained by the Administrative
Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent
and the Borrower and, subject to any applicable requirements of law, be applied at such time or
times as may be determined



49









 






by the Administrative Agent (i) first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to
the payment of any amounts owing by such Defaulting Lender to the Issuing Lender or Swingline
Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an
Issuing Lender or Swingline Lender, held in such account as cash collateral for existing or (unless
such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations
of the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no
remaining unutilized Revolving Commitment) future participating interest in any Swingline Loan or
Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and
the Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held
in such account as cash collateral for future funding obligations of the Defaulting Lender in
respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts
owing to the Issuing Lender or Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by the Issuing Lender or Swingline Lender against such Defaulting Lender as a
result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh,
to the payment of any amounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such
Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, that,
with respect to this clause (viii), if such payment is (x) a prepayment of the principal amount of
any Revolving Loans or Reimbursement Obligations in respect of LC Disbursements as to which a
Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay
the Revolving Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Lenders
pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement
Obligations owed to, any Defaulting Lender.




          (f) Upon not less than three Business Days’ prior notice to such Defaulting Lender
and the Administrative Agent (which the Administrative Agent will promptly provide to the Lenders,
the Issuing Lender and the Swingline Lender), the Borrower shall have the right to terminate the
then unused Revolving Commitment of such Defaulting Lender, after taking into account the portion
of such Revolving Commitment, if any, which theretofore has been, or substantially contemporaneous
therewith is being, assigned pursuant to Section 2.22. In the event of any such termination,
future extensions of credit under the Revolving Facility shall be allocated to the non-Defaulting
Revolving Lenders in a manner that disregards the existence of any remaining Revolving Commitment
of such Defaulting Lender. 




          In the event that the Administrative Agent, the Borrower, the Issuing Lender and the
Swingline Lender each agrees that any such Defaulting Lender has adequately remedied all matters
that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of
the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and
on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders
(other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order
for such Lender to hold such Loans in accordance with its Revolving Percentage.




          The provisions of this Agreement relating to funding, payment and other matters with
respect to the Revolving Facility may be adjusted by the Administrative Agent, in consultation with
the Borrower, to the extent necessary to give effect to the provisions of this Section 2.24. The
provisions of this Section 2.24 may not be amended, supplemented or modified without, in addition
to consents required by Section 10.1, the prior written consent of the Administrative Agent, the
Swingline Lender, the Issuing Lender and the Borrower.




50









 








SECTION 3. LETTERS OF CREDIT




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




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




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




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




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



51









 




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




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




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




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




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



52









 






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




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




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




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




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




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





53











 




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




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




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




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




SECTION 4. REPRESENTATIONS AND WARRANTIES




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




          4.1. Financial Condition. (a) The unaudited pro forma consolidated balance sheet and statement of operations of the
Borrower and its consolidated Subsidiaries as at, or for the period of 



54









 






four consecutive fiscal
quarters ended, December 31, 2006 (including the notes thereto) (the “Pro Forma Financial
Statements”), copies of which have heretofore been furnished to each Lender, have been prepared
giving effect (as if such events had occurred on such date or at the beginning of such period, as
the case may be) to (i) the consummation of the Acquisition, (ii) the Loans to be made (or
converted) on the Restatement Effective Date and the use of proceeds thereof and (iii) the payment
of fees and expenses in connection with the foregoing. The Pro Forma Financial Statements have
been prepared based on the best information available to the Borrower as of the date of delivery
thereof, and present fairly on a pro forma basis the estimated financial position of Borrower and
its consolidated Subsidiaries as at, or for the period of four consecutive fiscal quarters ended,
December 31, 2006, assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of such period, as the case may be.




          (b) The audited consolidated balance sheet of the Borrower as at December 31,
2005,2008, and the related consolidated statements of operations, stockholder’s equity and
cash flows for the fiscal year ended on such date, reported on by and accompanied by an unqualified
report from Grant Thornton LLP, present fairly the consolidated financial condition of the Borrower
as at such date, and the consolidated results of its operations and its consolidated cash flows for
the fiscal year then ended. The unaudited consolidated balance sheet of the Borrower as at
JuneSeptember
30, 2006,2009, and the related unaudited consolidated and
consolidating statements of income and cash flows for the
sixnine-month period ended on
such date, present fairly the consolidated financial condition of the Borrower as at such date, and
the consolidated results of its operations and its consolidated and consolidating cash flows for
the sixnine-month period then ended (subject to normal year-end audit adjustments and the
absence of footnotes). Such financial statements have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Borrower and its Subsidiaries do not have any material
Guarantee Obligations, contingent liabilities or liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not reflected in all
material respects in the financial statements referred to in this paragraph in accordance with
GAAP. During the period from June 30, 2006 to and including the Restatement Effective Date there
has been no Disposition by the Borrower or any Subsidiary of any material part of its business or
property.




          (c) The audited consolidated balance sheet of the Acquired Company as at September 30, 2005,
and the related consolidated statements of operations, stockholder’s equity and cash flows for the
fiscal year ended on such date, reported on by and accompanied by an unqualified report from Ernst
& Young LLP, present fairly the consolidated financial condition of the Acquired Company as at such
date, and the consolidated results of its operations and its consolidated cash flows for the fiscal
year then ended. The unaudited consolidated balance sheet of the Acquired Company as at June 30,
2006, and the related unaudited consolidated and consolidating statements of income and cash flows
for the nine-month period ended on such date, present fairly the consolidated financial condition
of the Acquired Company as at such date, and the consolidated results of its operations and its
consolidated and consolidating cash flows for the nine-month period then ended (subject to normal
year-end audit
adjustments and the absence of footnotes). Such financial statements have been prepared in
accordance with GAAP applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein). The Acquired Company and its
Subsidiaries do not have any material Guarantee Obligations, contingent liabilities or liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments, including any
interest rate or foreign currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in all material respects in the financial statements referred
to in this paragraph in accordance with GAAP. During the period from September 30, 2005 to and
including the Restatement Effective Date there has



55









 






been no Disposition by the Acquired Company or
any Subsidiary of any material part of its business or property.




          4.2. No Change. Since December 31, 20052008 there has been no development or event that has had or
could reasonably be expected to have a Material Adverse Effect.




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




          4.4. Power; Authorization; Enforceable Obligations. Each Loan Party has the power (corporate or otherwise) and authority, and the legal right,
to make, deliver and perform the Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder. Each Loan Party has taken all necessary action (corporate or
otherwise) to authorize the execution, delivery and performance of the Loan Documents to which it
is a party and, in the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required in connection with
the Acquisition and the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of this Agreement or any of the Loan Documents, except (i) consents,
authorizations, filings and notices which have been or will be obtained or made and are in full
force and effect on the RestatementFirst Amendment Effective Date, (ii) the filings
referred to in Section 4.19, (iii) filings with the SEC on Form 8-K that may be required to be made
following the execution and delivery hereof in connection herewith and in connection with the
Acquisition, (iv) landlord’s consents in connection with the Acquisition and (v(iv)
immaterial consents, authorizations, filings and notices. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and binding obligation of
each Loan Party party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).




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




          4.6. Litigation. Except as set forth on Schedule 4.6, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of the transactions



56









 






contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse
Effect.




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




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




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




          4.10.
Taxes. (a) The Borrower and each of its Subsidiaries has filed or caused to be filed all
Federal, state and other material tax returns that are required to be filed and has paid all
taxesmaterial Taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees
or other chargesmaterial Taxes
imposed on it or any of its property by any Governmental Authority to the extent due and payable
(other than any the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be); and (b) except
for Liens for Taxes not yet delinquent, no material taxTax Lien has been filed, and, to
the
knowledge of the Borrower, no claim is being asserted, with respect to any such tax, fee or
other chargethat could give rise to a material Tax Lien for any unpaid Tax on any asset or
property of the Borrower or its Subsidiaries, except to the extent that the validity thereof is
being contested in good faith pursuant to appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.




          4.11. Federal Regulations. No part of the proceeds of any Loans will be used for “buying” or “carrying” any “margin
stock” within the respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect except in compliance with the provisions of the Regulations
of the Board. If requested by any Lender or the Administrative Agent, the Borrower will furnish to
the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.




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




57









 








          4.13. ERISA. Except as, in the aggregate, would not reasonably be expected to have a Material Adverse
Effect, during the five-year period prior to the date on which this representation is made or
deemed made: (a) neither a Reportable Event nor ana non-exempt “prohibited transaction”
(within the meaning of Section 406 of ERISA or 4975(f)(e) of the Code) has occurred with respect to
any Plan; (b) prior to the effective date of the PPA, no “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA), and on and after the
effective date of the PPA, no failure to meet the minimum funding standards (within the meaning of
Sections 412 or 430 of the Code or Section 302 of ERISA) has occurred during the five year
period prior to the date on which this representation is made or deemed made with respect to any
Single Employer Plan, (bwhether or not waived; (c) each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code, (cd) no Single Employer Plan has
been determined to be, or expected to be, in “at risk” status (within the meaning of Section 430 of
the Code or Section 303 of ERISA); (e) no termination of a Single Employer Plan has occurred
, and; (df) no Lien against the Borrower or any Commonly Controlled Entity and in
favor of the PBGC or a Single Employer Plan has arisen, during the five-year period prior
to the date on which this representation is made or deemed made, (e) the aggregate; (g) the
actuarial present value of allthe accumulated plan benefits of alleach Single
Employer PlansPlan (determined utilizing the assumptions used for purposes of Financial
Accounting Standards No. 3587) did not, as of the mostdate of the recent valuation
dates reflected in the Borrower’s annual financial statements contained in the Borrower’s most
recent Form 10-Kreflecting such amounts, exceed the aggregate fair market value of the
assets of all such Single Employer Plans, except as disclosed in the Borrower’s financial
statements, (fPlan allocable to such accrued benefits; (h) neither the Borrower nor any
Commonly Controlled Entity has incurred or, to the knowledge of the Borrower, is reasonably
expected to incur, any withdrawal liabilityWithdrawal Liability under ERISA to any
Multiemployer Plan, and (g) no Multiemployer Plan in which the Borrower participates is in
Reorganization or Insolvent; and (i) neither the Borrower nor any 
Commonly Controlled Entity has received notice concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to be, in Reorganization,
Insolvent, or in endangered or critical status (within the meaning of Section 432 of the Code or
Section 305 or Title IV of ERISA).




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




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




          4.16. Use of Proceeds. The proceeds of the Term Loans (other than Term Loans constituting a conversion of Existing
Term Loans) shall be used to finance a portion of the Acquisition, refinance Indebtedness of the
Borrower under the Existing Credit Agreement, refinance certain existing Indebtedness of the
Acquired Company, repurchase or redeem preferred stock of the Acquired Company, and for general
corporate purposes, and the proceeds of the Revolving Loans and the Swingline Loans, and the
Letters of Credit, shall be used for general corporate purposes.




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




58









 









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




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




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




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




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




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




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



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





59











 




Borrower to be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact and that actual
results during the period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. As of the date hereof, the
representations and warranties of the Borrower and its Subsidiaries contained in the Acquisition
Documentation, and to the Borrower’s knowledge, those of the Acquired Company, are true and correct
in all material respects. There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the
other Loan Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan Documents.




          (b) The
Annual ReportsReport on Form 10-K of the Borrower for the year ended December
31, 2005 and of the Acquired Company for the year ended September 30, 2005 and the Quarterly
Reports on Form 10-Q of the Borrower for the quarters ended March 31, 2006 and June 30, 2006 and of
the Acquired Company for the quarters ended December 31, 2005, March 31, 2006, and June 30, 2006
(collectively 2008 (the “SEC Reports Report”) as of their
respectiveits filing datesdate complied in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as
amended, and the applicable
rules and regulations promulgated thereunder applicable
to such SEC Reports. None of the.
The SEC
ReportsReport at the time of filing containeddid not contain any untrue
statements of material fact or omitted a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made,
not misleading. Forward looking statements and other statements contained in the SEC
ReportsReport are subject to the cautionary language and risk factors contained in the SEC
ReportsReport.




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




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




60









 







or any of its Subsidiaries that has a value, in the reasonable opinion of the Borrower, in
excess of $750,000.




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




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




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





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




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




          4.25. Certain Documents. The Borrower has delivered to the Administrative Agent a
complete and correct copy of the Acquisition Documentation, including any amendments, supplements
or modifications with respect thereto.




SECTION 5. CONDITIONS PRECEDENT




     5.1.
Conditions to Effectiveness[INTENTIONALLY OMITTED]. The effectiveness
of this Agreement is subject to the satisfaction, prior to or concurrently with the making
of the Term Loans on the Restatement Effective Date, of the following conditions
precedent: Loan Documents. The Administrative Agent shall have received (i) this
Agreement (or, in the case of the Lenders, an Addendum), executed and delivered by a duly
authorized officer of the Borrower, the Required Lenders under (and as defined in) the
Existing Credit Agreement and each Tranche B Term Lender whose Tranche B Term Commitment is
being increased hereby and (ii) reaffirmation with




61









 







respect to the Guarantee and Collateral
Agreement and the Intellectual Property Security Agreement, executed and delivered by a duly
authorized officer of each relevant Loan Party..




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




          (c) Fees. (i) The Lenders, the Sole Lead Arranger and Sole Bookrunner named on
the cover page to this Agreement, and each Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including, without
limitation, the reasonable fees, disbursements and other charges of counsel to the Agents),
on or before the Restatement Effective Date and (ii) the Administrative Agent shall have
received an amendment fee for the benefit of each Lender who has executed and delivered an
Addendum on or prior to 12:00 Noon (New York City time) on October 27, 2006 in an amount
equal to 0.125% of the sum of its then outstanding Existing Tranche A Term Loans and its
Revolving Commitment then outstanding under the Existing Credit Agreement. All such amounts
will be paid with proceeds of Loans made on the Restatement Effective Date and will be
reflected in the funding instructions given by the Borrower to the Administrative Agent on
or before the Restatement Effective Date.




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




          (e) Acquisition, etc. The Acquisition Documentation shall be in full force and
effect, and no provision of the Acquisition Documentation shall have been waived, amended,
supplemented or otherwise modified in any material respect in a manner material and adverse
to the Lenders, as reasonably determined by the Administrative Agent. The Borrower and
Vision Acquisition Corp. shall have complied in all material respects with all covenants and
satisfied in all material respects all conditions set forth in the Acquisition Documentation
and concurrent with the initial funding hereunder, the Borrower shall have acquired all of
the outstanding common stock of the Acquired Company in accordance with the terms and
conditions of the Acquisition Documentation (the “Acquisition”). The sources and
uses of funds for the Acquisition shall be consistent with the sources and uses of funds set
forth in the Confidential Information Memorandum. After giving effect to the consummation
of the Acquisition, the Borrower shall own 100% of the fully diluted common stock of the
Acquired Company. The Administrative Agent shall have received satisfactory evidence that,
concurrent with the initial funding hereunder, (i) the Credit Agreement, dated as of June 2,
2003, by and among the Acquired Company and certain Subsidiaries thereof, Harris Trust and
Savings Bank, as
administrative agent, National City Bank of Pennsylvania, as syndication agent, and the
other lenders party thereto, shall have been terminated and all amounts thereunder shall
have been paid in full, (ii) the Acquired Company’s 11-7/8% Senior Secured Notes due 2010
shall have been tendered for, which tender may (but need not) be on condition that the
purchase price therefor shall be paid in part using the proceeds of the financing
contemplated herein upon consummation of the Acquisition, and (iii) satisfactory
arrangements shall have been made for the termination of all Liens granted in connection
with such credit facilities and senior secured notes.




          (f) Financial Information. The Borrower shall have delivered (i) audited
consolidated financial statements of each of the Borrower and the Acquired Company for the
2005 fiscal year and (ii) unaudited interim consolidated financial statements of the
Borrower for the quarterly periods ended March 31, 2006 and June 30, 2006 and of the
Acquired Company for the quarterly periods ended December 31, 2005, March 31, 2006 and June
30, 2006, and, in the




62









 







reasonable judgment of the Lenders, no material adverse change shall
have occurred in the consolidated financial condition of the Borrower and the Acquired
Company, taken as a whole, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.




     (g) Approvals. All governmental and material third party approvals necessary
in connection with the Acquisition, the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been obtained and be in
full force and effect except for landlord’s consents, and all applicable waiting periods
shall have expired without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse conditions on the Acquisition or
the financing contemplated hereby, except for such restraints or conditions as would not
materially and adversely detract from the value of the Acquisition.




     (h) Lien Searches. The Administrative Agent shall have received the results of
a recent lien search in each of the jurisdictions where assets of the Acquired Company and
its Subsidiaries are located, and such search shall reveal no liens on any of the assets of
the Acquired Company or any of its Subsidiaries except for liens permitted by Section 7.3 or
discharged on or prior to the Restatement Effective Date pursuant to documentation
satisfactory to the Administrative Agent.




     (i) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents or under law
or reasonably requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a perfected Lien on, and security interest in, the Collateral of the Acquired
Company and its Subsidiaries described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by Section 7.3), shall have
been duly prepared for filing, registration or recordation, as applicable, and delivered to
the Administrative Agent and shall be in form and substance reasonably satisfactory to the
Administrative Agent.




     (j) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.3 of the Guarantee and Collateral
Agreement.




     (k) Solvency Certificate. The Administrative Agent shall have received a
satisfactory solvency certificate from the chief financial officer of the Borrower that
shall document the solvency of the Borrower and its Subsidiaries after giving effect to the
Acquisition and the other transactions contemplated hereby.




     (l) Ratings. The Facilities shall have been rated by each of Moody’s and S&P.




     (m) Mortgages, etc. (i) The Administrative Agent shall have received a
Mortgage with respect to each Mortgaged Property (or, if requested by the Administrative
Agent with respect to any Mortgage executed and delivered in connection with the Existing
Credit Agreement, an amendment to such Mortgage), executed and delivered by a duly
authorized officer of each party thereto.




     (ii) If requested by the Administrative Agent, the Administrative Agent shall have
received, and the title insurance company issuing the policy referred to in clause (iii)
below (the “Title Insurance Company”) shall have received, maps or plats of an
as-built survey of the sites of the Mortgaged Properties certified to the Administrative
Agent and the Title Insurance Company




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in a manner satisfactory to them, dated a date
satisfactory to the Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the Administrative Agent and the Title
Insurance Company.




     (iii) The Administrative Agent shall have received in respect of each Mortgaged
Property a mortgagee’s title insurance policy (or policies) or marked up unconditional
binder for such insurance, in each case in form and substance satisfactory to the
Administrative Agent. The Administrative Agent shall have received evidence satisfactory to
it that all premiums in respect of each such policy, all charges for mortgage recording tax,
and all related expenses, if any, have been paid.




     (iv) The Administrative Agent shall have received a copy of all recorded documents
referred to, or listed as exceptions to title in, the title policy or policies referred to
in clause (iii) above and a copy of all other material documents affecting the Mortgaged
Properties.




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




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




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




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



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




SECTION 6. AFFIRMATIVE COVENANTS




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




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




     (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting forth in each
case in comparative




64









 







form the figures for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit, by Grant Thornton LLP or other independent certified public accountants of
nationally recognized standing; and





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



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




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




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




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




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




     (d) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a narrative discussion and analysis of the financial condition
and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and
for the period from the




65









 







beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Projections covering such periods and to the
comparable periods of the previous year; provided that delivery of the Report on
Form 10-Q filed with the SEC with respect to such fiscal quarter shall be deemed to satisfy
the foregoing requirement;




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




     (f) no later than two Business Days, if practicable (and if not practicable, then as
promptly as practicable under the circumstances) prior to the effectiveness thereof, copies
of substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Acquisition Documentation if such amendment, supplement,
waiver or other modification could reasonably be expected to be material and adverse to
Lenders, as reasonably determined by the Administrative Agent;




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




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




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




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




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




          6.6. Inspection of Property; Books and Records; Discussions. (a) Keep proper books
of records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) subject to the provisions of Section 10.14, permit representatives of any
Lender, upon reasonable prior




66









 







notice, to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.




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




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




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




          (c) any litigation or proceeding affecting the Borrower or any of its Subsidiaries in
which (x) the amount claimed is (i) $30,000,000 or more and (ii) not covered by insurance or
(y) injunctive or similar relief is sought which could reasonably be expected to be granted
and which, if granted, could reasonably be expected to have a Material Adverse Effect;




          (d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Single Employer Plan, a failure to make any required contribution to a
Plan or a Multiemployer Plan that, in each case, could reasonably be expected to have a
Material Adverse
Effect, a determination that any Single Employer Plan is in “at risk” status,
the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination of any Single Employer Plan, any withdrawal from, of the termination,
Reorganization or Insolvency of, any Multiemployer Plan orof the determination that any
Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of
the Code or Section 305 or Title IV of ERISA) (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Single Employer Plan or Multiemployer Plan; and




          
(e) promptly following receipt thereof, copies of any documents described
in Sections 101(k) or 101(l) of ERISA that Borrower or any Commonly Controlled Entity may
request with respect to any Multiemployer Plan; provided, that if the Borrower or any of its
Commonly Controlled Entities have not requested such documents or notices from the
administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request
of the Administrative Agent, the Borrower and/or its Commonly Controlled Entities shall
promptly make a request for such documents or notices from such administrator or sponsor and
the Borrower shall provide copies of such documents and notices to the Administrative
Agreement promptly after receipt thereof; and further provided, that the rights granted to
the Administrative Agent in this section shall be exercised not more than once during a
12-month period; and




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



67









 






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




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




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




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




          6.9. Additional Collateral, etc. (a) With respect to any property acquired after the
Restatement Effective Date by the Borrower or any of its Subsidiaries (other than (v) Capital Stock
issued by the Borrower, (w) any vehicles, aircraft, vessels, leasehold interests, foreign
registrations related to intellectual property, and any immaterial inventory and equipment, (x) any
property described in paragraph (b), (c) or (d) below, (y) any property subject to a Lien expressly
permitted by Section 7.3(g) or (j) and (z) property acquired by any Specified Subsidiary) as to
which the Administrative Agent, for the benefit of the Secured Parties, does
not have a perfected Lien, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative
Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in such property and (ii) take all actions necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in such property, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be requested by the Administrative Agent.




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




          (c) With respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created or
acquired after the Restatement Effective Date by the Borrower or any of its Subsidiaries (which,
for the purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be an




68









 







Excluded Foreign Subsidiary or a Permitted
Non-Guarantor Subsidiary but shall exclude Legacy Trust
and the Insurance Subsidiary), promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Capital Stock of such new Subsidiary that is owned by any
Loan Party (except Capital Stock constituting Investments permitted under Section 7.8(g) or (j)),
(ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together
with undated stock (or other transfer) powers, in blank, executed and delivered by a duly
authorized officer of such Loan Party and (iii) cause such new Subsidiary (A) to become a party to
the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to
the Administrative Agent for the benefit of the Secured Parties a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such
new Subsidiary, including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent and (C) to deliver to the Administrative Agent a certificate
of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and
attachments; provided that such new Subsidiary shall not be required to comply with the
requirements of clause (iii) above if (w) such Subsidiary is not a Wholly Owned Subsidiary, (x) the
Investment in such Subsidiary is permitted under Section 7.8(nm), (y) such Subsidiary
promptly notifies the Administrative Agent in writing of its election not to comply with the
requirements of clause (iii) above and (z) such Subsidiary, together with dPi Teleconnect and each
other Subsidiary that elects not to comply with the requirements of clause (iii) above, represents,
as of the date of such notice under the foregoing clause (y), (1) less than 10% of the consolidated
total assets of the Borrower and its Subsidiaries as of the most recently ended fiscal quarter of
the Borrower, (2) less than 10% of the consolidated total revenues of the Borrower and its
Subsidiaries for the four fiscal quarters of the
Borrower most recently ended, and (3) less than 10% of the Consolidated EBITDA of the Borrower
and its Subsidiaries for the four fiscal quarters of the Borrower most recently ended, in each case
as determined on a consolidated basis in conformity with GAAP consistently applied (any such new
Subsidiary, a “Permitted Non-Guarantor Subsidiary”).




          (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the
Restatement Effective Date by the Borrower or any of its Subsidiaries (other than any Specified
Subsidiary), promptly (i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is owned by the
Borrower or any such Subsidiaries (provided that in no event shall more than 65% of the total
outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged), and (ii)
deliver to the Administrative Agent the certificates representing such Capital Stock, together with
undated stock (or other transfer) powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, and take such other action as may
be necessary or, in the opinion of the Administrative Agent, desirable to perfect the
Administrative Agent’s security interest therein; provided that the Borrower and its
Subsidiaries shall not be required to comply with the requirements of this Section 6.9(d) if the
Administrative Agent, in its sole discretion, determines the cost of such compliance is excessive
in relation to the value of the collateral security to be afforded thereby.




          6.10. Permitted Acquisitions and Permitted Foreign Acquisitions. Deliver to the Lenders,
within 30 Business Days after the closing date of any Permitted Acquisition or Permitted Foreign
Acquisition involving a Purchase Price greater than or equal to $75,000,000, each of the following:
(a) a description of the property, assets and/or equity interest being purchased, in reasonable
detail; (b) a copy of the purchase agreement pursuant to which such acquisition was or is to be
consummated or a term sheet or other description setting forth the essential terms and the basic
structure




69









 







of such acquisition; (c) projected statements of income for the entity that is being
acquired (or the assets, if an acquisition of assets) for at least a two-year period following such
acquisition (including a summary of assumptions or pro forma adjustments for such projections); (d)
to the extent made available to the Borrower, historical financial statements for the entity that
is being acquired (or the assets, if an acquisition of assets) (including balance sheets and
statements of income, retained earnings and cash flows for at least a two-year period prior to such
acquisition); and (e) confirmation, supported by detailed calculations, that the Borrower and its
Subsidiaries would have been in compliance with all the covenants in Section 7.1 for the fiscal
quarter ending immediately prior to the consummation of such acquisition, with such compliance
determined on a pro forma basis as if such acquisition had been consummated on the first day of the
Reference Period ending on the last day of such fiscal quarter.




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




          6.12. Conditions Subsequent. Within 10 Business Days after the Restatement Effective
Date, the Administrative Agent shall have received:




          (a) (i) an assumption agreement, in substantially the form of Annex 1 to the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized officer of each of the Acquired
Company and each of its Domestic Subsidiaries, (ii) all originals of the certificates representing
the shares of Capital Stock of the Acquired Company and its Subsidiaries pledged pursuant to the
Guarantee and Collateral Agreement, together with an undated stock power or other power of transfer
for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
and (iii) all originals of each promissory note (if any) pledged by the Acquired Company or any of
its Subsidiaries to the Administrative Agent pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank
satisfactory to the Administrative Agent) by the pledgor thereof;




          (b) satisfactory evidence that all of the Acquired Company’s 11 7/8% Senior Secured Notes due
2010 shall have been paid, redeemed or repurchased in full; and




          (c) satisfactory evidence that all outstanding shares of preferred stock of the Acquired
Company shall have been redeemed or repurchased in full.




SECTION 7. NEGATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Revolving Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender
or





70









 







the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:




          7.1. Financial Condition Covenants.




          (a)
Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of the Borrower ending with any fiscal
quarter during any period set forth below to exceed the ratio set forth below opposite such period:




to exceed 3.25 to 1.00.




          (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters of the Borrower ending on or
after December 31, 2006 to be less than 1.35 to 1.00.




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




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




          (b) (i) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary, (ii) Indebtedness of the
Borrower and of any Subsidiary to the Insurance Subsidiary in an aggregate amount not to
exceed $65,000,000 at any time outstanding that cannot be subordinated to the obligations of
such Loan Party under the Loan Documents for regulatory reasons or would cause the carrying
value for regulatory valuation purposes to be decreased and (iii) Indebtedness of the
Insurance Subsidiary permitted by Section 7.8(f);




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




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




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




          (f) (i) Indebtedness of the Borrower in respect of the Existing Senior Subordinated
Notes and any refinancings thereof (without increasing the principal amount thereof) with
other unsecured subordinated notes of the Borrower that (x) have no scheduled principal
payments prior to the date that is one year after the latest maturity date for Loans
hereunder that is in effect




71









 







on the date of issuance of such refinancing Indebtedness and (y)
have terms (including subordination terms, but excluding the interest rate) no less
favorable in any material respect to the Borrower and its Subsidiaries (taken as a whole)
and the Lenders (taken as a whole) than those applicable to offerings of “high-yield”
subordinated debt by similar issuers of similar debt at or about the same time, as evidenced
by written advice of the Borrower’s financial advisors of recognized national standing, (ii)
Guarantee Obligations of any Subsidiary Guarantor in respect of Indebtedness incurred
pursuant to clause (i) above, provided that such Guarantee Obligations are
subordinated to the same extent as the obligations of the Borrower in respect of the
Existing Senior Subordinated Notes or any notes issued pursuant to a refinancing permitted
pursuant to clause (i) above, (iii) subject to pro forma compliance with
Section 7.1 (as demonstrated in a written certificate delivered to the Administrative Agent
prior to the issuance thereof), additional unsecured subordinated notes of the Borrower not
permitted pursuant to clause (i) above that (x) have no scheduled principal payments prior
to the date that is one year after the latest maturity date for Loans hereunder that is in
effect on the date of issuance of such subordinated notes and (y) have terms (including
subordination terms, but excluding the interest rate) no less favorable in any material
respect to the Borrower and its Subsidiaries (taken as a whole) and the Lenders (taken as a
whole) than those applicable to offerings of “high-yield” subordinated debt by similar
issuers of similar debt at or about the same time, as evidenced by written advice of the
Borrower’s financial advisors of recognized national standing, and (ivii) Guarantee
Obligations of
any Subsidiary Guarantor in respect of Indebtedness incurred pursuant to clause
(iiii) above, provided that such Guarantee Obligations are subordinated to
the same extent as the obligations of the Borrower in respect of the subordinated notes
issued pursuant to clause (iiii) above;




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




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




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




          (j) Indebtedness of RAC East, the Borrower and its other Subsidiaries to INTRUST Bank,
N.A. pursuant to a line of credit in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $15,000,00020,000,000 at any one time outstanding and
any refinancings, refundings, renewals or extensions thereof (without increasing, or
shortening the maturity of, the principal amount thereof); and




          (k) additional Indebtedness of the Borrower or any of its Subsidiaries in anso long
as (i) the aggregate principal amount (forof such Indebtedness incurred by the
Borrower and all Subsidiaries) shall not to exceed $150,000,000exceed
$300,000,000 at any one time outstanding and (ii) the aggregate principal amount of such
Indebtedness incurred by all Subsidiaries (excluding Guarantee Obligations of any Subsidiary
Guarantor in respect of any Senior Unsecured Notes) shall not exceed $50,000,000 at any
one time outstanding.




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





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




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




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




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




     (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not substantial in amount and
that do not in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;




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




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




     (h) Liens created pursuant to the Security Documents;




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




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




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



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




     (m) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $60,000,000 at any one time.



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





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




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




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



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





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




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




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




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



74









 






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




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




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




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




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




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




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




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



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





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




     (b) so long as no Default or Event of Default shall have occurred and be continuing or
would result therefrom, the Borrower may make Restricted Payments with respect to its
Capital Stock or repurchase the Borrower’s Capital Stock or the Insurance Subsidiary may
repurchase the Borrower’s Capital Stock (collectively, “Stock Payments”);
provided, that if, after giving pro forma effect thereto, the
Consolidated Senior Leverage Ratio as of the last day of the



75









 






most recent fiscal
quarter for which the relevant financial information is available is greater than 2.50 to
1.00 (and this proviso shall not apply to or limit Stock Payments made so long as such ratio
is less than or equal to 2.50 to 1.00), the Borrower may make additional Stock Payments so
long as the aggregate amount of such Stock Payments made during such fiscal year,on or
after October 1, 2009, when added to the aggregate amount expended on or after
October 1, 2009 to repurchase, repay or prepay Senior Subordinated Notes or Senior
Unsecured Notes pursuant to the second proviso of Section 7.9(a), shall not exceed, in
any such fiscal year (including Stock Payments made when this restriction is not
applicable), the sum of (A) $50,000,000, (B) 50% of the Consolidated Net Income Amount and
(C) 100% of the aggregate Net Cash Proceeds received by the Borrower since the
RestatementFirst Amendment Effective Date as a contribution to its common equity
capital or from the issue or sale of Capital Stock of the Borrower (other than Disqualified
Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Borrower that have been converted into or
exchanged for such Capital Stock (other than Capital Stock (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Borrower);




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




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




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




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




     (f) (g) the Borrower may, within 10 Business Days following the Restatement
Effective Date, repurchase outstanding shares of preferred stock of the Acquired Company in
connection with its acquisition of all of the issued and outstanding Capital Stock of the
Acquired Company.



          7.7. Capital Expenditures. Make or commit to make any Capital Expenditure (Expansion) if, after giving pro
forma effect thereto, the Consolidated Leverage Ratio as of the last day of the most recent
fiscal quarter for which the relevant financial information is available is greater than 2.75 to
1.0, except (a) Capital Expenditures (Expansion) of the Borrower and its Subsidiaries during such
fiscal year (including Capital Expenditures (Expansion) when this restriction is not in effect)
shall not exceed $100,000,000 in the aggregate and (b) Capital Expenditures (Expansion) made with
the proceeds of any Reinvestment Deferred Amount.




76









 








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





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




     (b) investments in Cash Equivalents;




     (c) Guarantee Obligations permitted by Section 7.2;




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




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




     (f) Investments made on or after the Restatement Effective Date in the Insurance
Subsidiary to the extent required to meet regulatory capital guidelines, policies or rules
in an amount not to exceed $35,000,000 in the aggregate;




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




     (h) Investments constituting Permitted Acquisitions or Permitted Foreign Acquisitions;




     (i) the Acquisition;




     (j) the purchase or other acquisition, within 10 Business Days following the
Restatement Effective Date, of the Acquired Company’s 11 7/8% Senior Secured Notes due 2010
in the principal amount of up to $205,000,000, which Notes were issued by the Acquired
Company pursuant to the Indenture dated June 2, 2003 among the Acquired Company, the
Subsidiary Guarantors (as defined therein) and Manufacturers and Traders Trust Company;




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




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




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




     (m) (n) other Investments not otherwise permitted by this Section, so long as
the aggregate amount expended pursuant to this clause (nm) after the Restatement
Effective Date shall not exceed the greater of (x) $100,000,000 and (y) 10% of the
Borrower’s Consolidated Net



77









 






Worth as of the last day of the most recently completed
quarterly period for which relevant financial information is available, in each case
determined net of the amount of any Net Cash Proceeds received by the Borrower and its
Subsidiaries in respect of a Disposition of any such Investment; provided, that no
more than $60,000,000 of Investments made pursuant to this clause (nm) shall be made
in Persons that are not, or do not become, Domestic Subsidiaries.



          7.9. Payments and Modifications of Certain Debt Instruments and Qualified Preferred Stock.
(a) Make or offer to make any payment, prepayment, repurchase or redemption of or otherwise
defease or segregate funds with respect to the Senior Subordinated Notes or the Senior
Unsecured Notes, other than interest payments expressly required by the terms thereof and other
than pursuant to prepayments or repayments thereof with the proceeds of Senior Subordinated
Notes or, in the case of the Senior Unsecured Notes, with the proceeds of other Senior
SubordinatedUnsecured Notes, provided, that so long as no Default or Event of
Default shall have occurred and be continuing or would result therefrom the Borrower may pay,
prepay, repurchase, redeem, or otherwise defease or segregate funds with respect to Senior
Subordinated Notes or Senior Unsecured Notes (subject to the limitations of the next
proviso); provided, further, that, if after giving pro forma
effect thereto, the Consolidated Senior Leverage Ratio as of the last day of the most recent
quarter for which the relevant financial information is available is greater than 2.50 to 1.00 (and
this second proviso shall not apply to or limit any such payment, prepayment, repurchase,
redemption, defeasance or segregation of funds so long as such ratio is less than or equal to 2.50
to 1.00), the Borrower may pay, prepay, repurchase, redeem, defease or segregate funds with respect
to Senior Subordinated Notes or Senior Unsecured Notes only so long as the aggregate amount
expended in connection with such payment, prepayment, repurchase or redemption of or defeasance or
segregation of funds made during such fiscal year,on or after October 1, 2009, when added
to the aggregate amount expended in connection with Stock Payments
made on or after October 1,
2009 pursuant to the proviso of Section 7.6(b), shall not exceed, during any such fiscal year
(including repurchases, repayments or prepayments made when this restriction is not applicable),
the sum of (A) $50,000,000, (B) 50% of the Consolidated Net Income Amount and (C) 100% of the
aggregate Net Cash Proceeds received by the Borrower since the RestatementFirst Amendment
Effective Date as a contribution to its common equity capital or from the issue or sale of Capital
Stock of the Borrower (other than Disqualified Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Borrower that
have been converted into or exchanged for such Capital Stock (other than Capital Stock (or
Disqualified Stock or debt securities) sold to a Subsidiary of the Borrower).




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




          (c) Amend, modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms of the Senior Unsecured Notes
or the Senior Unsecured Note Indenture if, after giving effect thereto, the relevant Senior
Unsecured Notes would cease to satisfy the requirements of the definition of “Senior Unsecured
Notes”.




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





78











 





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




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




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




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




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




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




79









 







Insurance Subsidiary and (vii) restrictions applicable to Foreign
Subsidiaries arising with respect to Indebtedness of Foreign Subsidiaries permitted pursuant to
Section 7.2.




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




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




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




SECTION 8. EVENTS OF DEFAULT





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




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




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




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




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




     (e) the Borrower or any of its Subsidiaries shall (i) default in making any payment of
any principal of any Indebtedness (including any Guarantee Obligation, but excluding the
Loans) on the scheduled or original due date with respect thereto; or (ii) default in making
any payment of any interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or condition relating to any
such Indebtedness



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or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause,
with the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of which exceeds in
the aggregate $30,000,000; or




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




     (g) (i) any Person shall engage in any non-exempt “prohibited transaction” (as defined
in Section 406 and 408 of ERISA or Section 4975 of the Code) involving any Plan,(ii) any
“accumulated funding deficiency” (as defined in; (ii) any failure to meet the minimum
funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302
of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity,(iii; (iii) a Single Employer Plan shall be determined to
be, or be expected to be, in “at risk” status within the meaning of Section 430 of the Code or Section
303 of ERISA); (iv) a Reportable Event shall occur with respect to, or proceedings shall
commence under Title IV of ERISA to have a trustee appointed, or a trustee shall be
appointed under Title IV of ERISA, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the termination of such
Single Employer Plan in a distress termination under Section 4041(c) of ERISA,;
(ivv) any Single Employer Plan shall terminate in a “distress termination” or an
“involuntary termination”,” as such terms are defined in Title IV of ERISA,;
(vvi) the Borrower or any Commonly Controlled Entity shall, or could reasonably be
expected to, incur any liability in connection with aany withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (viany determination that such
Multiemployer Plan is in endangered or critical status; or (vii) any other event or
condition shall occur or exist with respect to a Plan;



81









 






and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse Effect; or




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




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




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




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




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




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


then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Revolving Commitments
shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all amounts of LC
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and payable, and (B) if
such event is any




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




SECTION 9. THE AGENTS




          9.1. Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent.



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



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



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



          9.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Administrative Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.



          9.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each Lender



84









 




represents to
the Agents that it has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own decision to make its
extensions of credit hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may come into
the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.




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




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




          9.9. Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the
Lenders and the Borrower. If (a) the Administrative Agent shall resign as Administrative
Agent under this Agreement and the other Loan Documents or (b) either (i) the Administrative
Agent is a Lender and is a Defaulting Lender or (ii) the Administrative Agent is not a Lender and
satisfies the circumstances described in clause (b) of the definition of Defaulting Lender,
then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders,
which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with
respect to the Borrower shall have occurred and be continuing) be subject to approval by the
Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor
agent shall





85










 




succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative
Agent” shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that is 10 days following a retiring Administrative
Agent’s notice of resignation or its designation as a Defaulting Lender, the retiring
Administrative Agent’s resignation or removal shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as provided for above.
After any retiring Administrative Agent’s resignation or removal as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.




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




          9.11. Documentation AgentAgents and Syndication Agent. Neither theThe
Documentation Agent norAgents and the Syndication Agent shall not have any duties
or responsibilities hereunder in their respective capacities as such.




SECTION 10. MISCELLANEOUS




          10.1. Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance with the provisions
of this Section 10.1. The Required Lenders and each Loan Party party to the relevant Loan Document
may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms
and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (i) forgive, reduce, extend or waive the principal
amount or extend or waive the final scheduled date of maturity of any Loan or Reimbursement
Obligation, extend or waive the scheduled date of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable hereunder or extend or waive the
scheduled date of any payment thereof, increase the amount or extend the expiration date of any
Lender’s Commitment, in each case without the written consent of each Lender directly affected
thereby; (ii) amend, modify or waive any provision of this Section 10.1 or reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or transfer by any Loan
Party of any of its rights and obligations under this Agreement and the other Loan Documents, or
release all or substantially all of the Collateral or all or substantially all of the Subsidiary
Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case
without the written consent of all Lenders; (iii) reduce the percentage specified in the definition
of




86









 







Majority Facility Lenders with respect to any Facility without the written consent of all
Lenders under such Facility; (iv) amend, modify or waive any provision of Section 9 without the
written consent of the Administrative Agent; (v) amend, modify or waive any provision of Section
2.3 or 2.6 without the written consent of the Swingline Lender; (vi) amend, modify or waive any
provision of Section 3 without the written consent of the Issuing Lender or (vii) amend, modify or
waive any provision of Section 2.17 without the written consent of the Majority Facility Lenders in
respect of each Facility adversely affected thereby. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall be binding upon the
Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any right consequent
thereon.




          Notwithstanding the foregoing, this Agreement may be amended to the extent necessary to
facilitate the making of Incremental Loans in an aggregate principal amount of up to $150,000,000
pursuant to Sections 2.1(d) and 2.2(b) and matters related thereto upon (a) execution and delivery
by the Borrower, the Administrative Agent and each Lender providing Incremental Loans of an
Increased Facility Activation Notice or an Increased Revolving Facility Activation Notice, as the
case may be, and (b) delivery of such other documents with respect thereto as the Administrative
Agent may reasonably request.




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




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




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





	 	The Borrower: 	 	Rent-A-Center, Inc.

5700 Tennyson Parkway

Third Floor5501 Headquarters Drive 

Plano, Texas 75024

Attention: Robert D. Davis, Executive Vice President —
Finance,
                   Chief Financial Officer and
Treasurer

Telecopy: (972) 943-0113

Telephone: (972) 801-1200


	 
	 	 	 	and
	 
	 	 	 	Rent-A-Center, Inc.

5700 Tennyson Parkway

Third Floor5501 Headquarters Drive

Plano, Texas 75024

Attention: Christopher A. Korst, SeniorRonald D. DeMoss,

Executive Vice President and ,       General
                   Counsel and Secretary

Telecopy: (972) 801-1476

Telephone: (972) 801-1200
	 
	 	with copies to: 	 	Fulbright & Jaworski L.L.P.

2200 Ross Avenue, Suite 2800

Dallas, Texas 75201

Attention: Thomas W. Hughes and James R. Griffin
	 
	 	 	 	and
	 
	 	 	 	Fulbright & Jaworski L.L.P.

1301 McKinney, Suite 5100

Houston, Texas 77010

Attention: Joshua P. Agrons
	 
	 	The Administrative Agent       

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

Loan and Agency Services

10 South Dearborn, Floor 19

Chicago, IL 60603-2003

Attention: Nanette Wilson

Telecopy: (312) 385-7084

Telephone: (312) 385-7096




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




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




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




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



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foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert
and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries
to so waive, all rights for contribution or any other rights of recovery with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section 10.5 shall be
payable not later than 10 Business Days after written demand therefor. Statements payable by the
Borrower pursuant to this Section 10.5 shall be submitted to Robert D. Davis (Telephone No.
972-801-1204) (Telecopy No. 972-943-0113), at the address of the Borrower set forth in Section
10.2, or to such other Person or address as may be hereafter designated by the Borrower in a
written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.




          10.6. Successors and Assigns; Participations and Assignments. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any affiliate of the Issuing Lender that issues
any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section.




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





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




     (B) the Administrative Agent (such consent not to be unreasonably withheld),
provided that no consent of the Administrative Agent shall be required for
an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund; and




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



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





     (A) except in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s CommitmentsRevolving Commitment or Loans under any Facility, the
amount of the CommitmentsRevolving Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent)
shall not be less than $10,000,000 in the case of the Revolving Facility, the
Tranche A Existing Term Facility and the Tranche A Extended Term
Facility or $1,000,000 in the case of the Tranche B Existing Term Facility and
the Tranche B Extended Term Facility, in each case unless each of the Borrower
and the Administrative Agent otherwise consent, provided that (1) no such
consent of the Borrower shall be required if an Event of Default has occurred and



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is continuing and (2) such amounts shall be aggregated in respect of each
Lender and its Affiliates or Approved Funds, if any;




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




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


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





     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.




     (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Revolving Commitments of, and principal amount of the Loans and LC Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Lender and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.




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



               (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Revolving Commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this



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Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the
proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.18, 2.19 and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it
were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as
an agent of the Borrower, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participant’s interest in the
Loans or other obligations under this Agreement (the “Participant Register”). The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary.




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




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and including, further, in the case of
any Lender that is a Fund, any pledge or assignment to any holders of obligations owed, or
securities issued, by such Lender including to any trustee for, or any representative of, such
holders, and this Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as
a party hereto.




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




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



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expense arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.




          10.7. Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides
for payments to be allocated to a particular Lender or to the Lenders under a particular Facility,
if any Lender (a “Benefitted Lender”) shall at any time receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by setoff, pursuant to events or proceedings of the nature referred to in Section
8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest in such portion of
the Obligations owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.




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



          10.8. Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. Delivery of an executed signature page of
this Agreement by facsimile transmission, by electronic mail in “portable document format”
(“.pdf”) form, or by any other electronic means intended to preserve the original graphic and
pictorial appearance of a document, or by a combination of such means, shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed
by all the parties shall be lodged with the Borrower and the Administrative Agent.




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




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




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




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





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




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




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




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




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



          10.13. Acknowledgements. The Borrower hereby acknowledges that:





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




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




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



          10.14. Confidentiality. Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party pursuant to this Agreement
that is designated by such Loan Party as confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate or Approved Fund of any Lender, (b) to any
participant or



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assignee or prospective participant or assignee that agrees to comply with the provisions of
this Section, (c) to its employees, directors, trustees, agents, attorneys, accountants, investment
advisors and other professional advisors or those of any of its affiliates, (d) upon the request or
demand of any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if
requested or required to do so in connection with any litigation or similar proceeding, provided
that in the case of any such request or requirement, the Administrative Agent or Lender (as
applicable) so requested or required to make such disclosure shall as soon as practicable notify
the Borrower thereof, (g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in connection with ratings
issued with respect to such Lender, (i) in connection with the exercise of any remedy hereunder or
under any other Loan Document or (j) to any pledgee referred to in Section 10.6 (d) or any direct
or indirect contractual counterparty in swap agreements with the Borrower or such contractual
counterparty’s professional advisor (so long as such pledgee or contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the provisions of this
Section 10.14).




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




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





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          10.17. No Novation, etc. (a) The terms and conditions of the Existing Credit Agreement are
amended as set forth in, and restated in their entirety and superseded by, this Agreement. Nothing
in this Agreement shall be deemed to be a novation of any of the Obligations as defined in the
Existing Credit Agreement. Notwithstanding any provision of this Agreement or any other Loan
Document or instrument executed in connection herewith, the execution and delivery of this
Agreement and the incurrence of Obligations hereunder shall be in substitution for, but not in
payment of, the Obligations owed by the Loan Parties under the Existing Credit Agreement.




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





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