Contract

EXHIBIT 10.22================================================================================ FIRST AMENDED AND RESTATED CREDIT AGREEMENT AMONG CASH AMERICA INTERNATIONAL, INC., AS THE BORROWER, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, AN L/C ISSUER AND SWING LINE LENDER, JPMORGAN CHASE BANK, N.A. AS SYNDICATION AGENT AND U. S. BANK NATIONAL ASSOCIATION, KEYBANK NATIONAL ASSOCIATION AND UNION BANK OF CALIFORNIA, N.A., AS CO-DOCUMENTATION AGENTS AND THE OTHER LENDERS PARTY HERETO Dated as of February 24, 2005================================================================================ WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Lead Arranger and Joint Book Runner J. P. MORGAN SECURITIES INC., as Co-Lead Arranger and Joint Book Runner TABLE OF CONTENTS

Section Page- ——- —- ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms………………………………………………………………………. 1 1.02 Other Interpretive Provisions………………………………………………………… 24 1.03 Accounting Terms……………………………………………………………………. 24 1.04 Rounding…………………………………………………………………………… 24 1.05 References to Agreements and Laws…………………………………………………….. 24ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS 2.01 Revolving Loans…………………………………………………………………….. 25 2.02 Borrowings, Conversions and Continuations of Loans……………………………………… 25 2.03 Letters of Credit…………………………………………………………………… 26 2.04 Swing Line Loans……………………………………………………………………. 34 2.05 Prepayments………………………………………………………………………… 36 2.06 Reduction or Termination of Revolving Commitments………………………………………. 37 2.07 Repayment of Loans………………………………………………………………….. 38 2.08 Interest…………………………………………………………………………… 38 2.09 Fees………………………………………………………………………………. 38 2.10 Computation of Interest and Fees……………………………………………………… 39 2.11 Evidence of Debt……………………………………………………………………. 39 2.12 Payments Generally………………………………………………………………….. 40 2.13 Sharing of Payments…………………………………………………………………. 41ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 Taxes……………………………………………………………………………… 42 3.02 Illegality…………………………………………………………………………. 44 3.03 Inability to Determine Rates…………………………………………………………. 44 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans……… 44 3.05 Funding Losses……………………………………………………………………… 45 3.06 Matters Applicable to all Requests for Compensation…………………………………….. 46 3.07 Survival…………………………………………………………………………… 46ARTICLE IV. CONDITIONS PRECEDENT TO Credit Extensions 4.01 Conditions of Initial Credit Extension………………………………………………… 46 4.02 Conditions to all Credit Extensions and Conversions and Continuations…………………….. 48ARTICLE V. REPRESENTATIONS AND WARRANTIES 5.01 Existence, Qualification and Power; Compliance with Laws………………………………… 48 5.02 Authorization; No Contravention………………………………………………………. 49 5.03 Governmental Authorization…………………………………………………………… 49 5.04 Binding Effect……………………………………………………………………… 49 5.05 Financial Statements; No Material Adverse Effect……………………………………….. 49

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5.06 Litigation…………………………………………………………………………. 49 5.07 No Default…………………………………………………………………………. 50 5.08 Ownership of Property; Liens…………………………………………………………. 50 5.09 Environmental Compliance…………………………………………………………….. 50 5.10 Insurance………………………………………………………………………….. 50 5.11 Taxes……………………………………………………………………………… 50 5.12 ERISA Compliance……………………………………………………………………. 50 5.13 Subsidiaries……………………………………………………………………….. 51 5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act…………….. 51 5.15 No Financing of Corporate Takeovers…………………………………………………… 51 5.16 Insider……………………………………………………………………………. 51 5.17 Disclosure…………………………………………………………………………. 52 5.18 Intellectual Property; Licenses, Etc………………………………………………….. 52 5.19 Businesses…………………………………………………………………………. 52 5.20 Common Enterprise…………………………………………………………………… 52 5.21 Solvent……………………………………………………………………………. 52ARTICLE VI. AFFIRMATIVE COVENANTS 6.01 Financial Statements………………………………………………………………… 53 6.02 Certificates; Other Information………………………………………………………. 53 6.03 Notices……………………………………………………………………………. 55 6.04 Payment of Obligations………………………………………………………………. 55 6.05 Preservation of Existence, Etc……………………………………………………….. 55 6.06 Maintenance of Properties……………………………………………………………. 56 6.07 Maintenance of Insurance…………………………………………………………….. 56 6.08 Compliance with Laws………………………………………………………………… 56 6.09 Books and Records…………………………………………………………………… 56 6.10 Inspection Rights…………………………………………………………………… 56 6.11 Compliance with ERISA……………………………………………………………….. 57 6.12 Use of Proceeds…………………………………………………………………….. 57 6.13 Further Assurances………………………………………………………………….. 57 6.14 Notice of Formation of Subsidiary…………………………………………………….. 57 6.15 New Domestic Subsidiaries……………………………………………………………. 57 6.16 Opinions Regarding Obligations of Guarantors…………………………………………… 57 6.17 Interest Rate Protection…………………………………………………………….. 58ARTICLE VII. NEGATIVE COVENANTS 7.01 Liens……………………………………………………………………………… 58 7.02 Indebtedness……………………………………………………………………….. 58 7.03 Investments………………………………………………………………………… 60 7.04 Fundamental Changes…………………………………………………………………. 61 7.05 Dispositions……………………………………………………………………….. 61 7.06 Restricted Payments…………………………………………………………………. 62 7.07 ERISA……………………………………………………………………………… 62 7.08 Change in Nature of Business…………………………………………………………. 62 7.09 Transactions with Affiliates…………………………………………………………. 63

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7.10 Burdensome Agreements……………………………………………………………….. 63 7.11 Use of Proceeds…………………………………………………………………….. 63 7.12 Amendment of Organization Documents and Fiscal Year…………………………………….. 63 7.13 Amendment of Subordinated Debt……………………………………………………….. 63 7.14 Sale and Leaseback………………………………………………………………….. 63 7.15 Alteration of Material Agreements…………………………………………………….. 64 7.16 Strict Compliance…………………………………………………………………… 64 7.17 Guaranties…………………………………………………………………………. 64 7.18 Financial Covenants…………………………………………………………………. 64ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES 8.01 Events of Default…………………………………………………………………… 64 8.02 Remedies Upon Event of Default……………………………………………………….. 66 8.03 Application of Proceeds……………………………………………………………… 67ARTICLE IX. ADMINISTRATIVE AGENT 9.01 Appointment and Authorization of Administrative Agent…………………………………… 68 9.02 Delegation of Duties………………………………………………………………… 68 9.03 Liability of Administrative Agent…………………………………………………….. 69 9.04 Reliance by Administrative Agent……………………………………………………… 69 9.05 Notice of Default…………………………………………………………………… 70 9.06 Credit Decision; Disclosure of Information by Administrative Agent……………………….. 70 9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT……………………………………………….. 70 9.08 Administrative Agent in its Individual Capacity………………………………………… 71 9.09 Successor Administrative Agent……………………………………………………….. 71 9.10 Guaranty Matters……………………………………………………………………. 72 9.11 Administrative Agent May File Proofs of Claim………………………………………….. 72 9.12 Related Obligations…………………………………………………………………. 73 9.13 Other Agents; Arrangers and Managers………………………………………………….. 74ARTICLE X. MISCELLANEOUS 10.01 Amendments, Etc…………………………………………………………………….. 74 10.02 Notices and Other Communications; Facsimile Copies……………………………………… 75 10.03 No Waiver; Cumulative Remedies……………………………………………………….. 77 10.04 Attorney Costs, Expenses and Taxes……………………………………………………. 77 10.05 INDEMNIFICATION BY THE BORROWER………………………………………………………. 77 10.06 Payments Set Aside………………………………………………………………….. 79 10.07 Successors and Assigns………………………………………………………………. 79 10.08 Confidentiality…………………………………………………………………….. 82 10.09 Set-off……………………………………………………………………………. 83 10.10 Interest Rate Limitation…………………………………………………………….. 83 10.11 Counterparts……………………………………………………………………….. 83 10.12 Integration………………………………………………………………………… 84 10.13 Survival of Representations and Warranties…………………………………………….. 84 10.14 Severability……………………………………………………………………….. 84 10.15 Foreign Lenders…………………………………………………………………….. 84 10.16 Removal and Replacement of Lenders……………………………………………………. 85

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10.17 Exceptions to Covenants……………………………………………………………… 86 10.18 Governing Law………………………………………………………………………. 86 10.19 Waiver of Right to Trial by Jury……………………………………………………… 86 10.20 USA Patriot Act Notice………………………………………………………………. 87 10.21 Amendment, Restatement, Extension, Renewal and Increase…………………………………. 87 10.22 Entire Agreement……………………………………………………………………. 87SIGNATURES…………………………………………………………………………………………. S-1

ivSCHEDULES

1.01 Subsidiary Groups (for Definitions)2.01 Revolving Commitments and Pro Rata Shares2.03 Existing Letters of Credit5.13 Subsidiaries and Other Equity Investments7.03(j) Existing Investments10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices

EXHIBITS

FORM OF A Assignment and AcceptanceB Compliance CertificateC GuarantyD Revolving Loan NoteE Revolving Loan NoticeF Swing Line NoteG Swing Line Loan NoticeH Officer’s Certificate

v FIRST AMENDED AND RESTATED CREDIT AGREEMENT This FIRST AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is enteredinto as of February 24, 2005, among CASH AMERICA INTERNATIONAL, INC., a Texascorporation (the “Borrower”), each lender from time to time party hereto(collectively, the “Lenders” and individually, a “Lender”), WELLS FARGO BANK,NATIONAL ASSOCIATION, as Administrative Agent, an L/C Issuer and Swing LineLender, JPMORGAN CHASE BANK, N.A., as Syndication Agent, and U. S. BANK NATIONALASSOCIATION, KEYBANK NATIONAL ASSOCIATION and UNION BANK OF CALIFORNIA, N.A., asCo-Documentation Agents. The Borrower, various financial institutions and Wells Fargo Bank,National Association, as the administrative agent, are parties to that certainCredit Agreement, dated as of August 14, 2002, as heretofore amended, modified,and supplemented from time to time (the “Existing Credit Agreement”). The parties hereto have agreed, subject to the terms hereof, to amend andrestate the Existing Credit Agreement so as to, among other things, (a) increasethe amount of the revolving credit facility to $250,000,000, (b) amend thepricing, certain covenants and various other provisions of the Existing CreditAgreement and (c) revise the composition of the lender group. In consideration of the mutual covenants and agreements herein contained,the Existing Credit Agreement is amended and restated in its entirety and theparties hereto covenant and agree as follows: ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1.01 DEFINED TERMS. As used in this Agreement, the following terms shallhave the meanings set forth below: “Accounting Firm” has the meaning specified in Section 6.01(b) hereof. “Acquisition” means the acquisition by any Person of (a) a majority of theCapital Stock of another Person, (b) all or substantially all of the assets ofanother Person or (c) all or substantially all of a line of business of anotherPerson, in each case whether or not involving a merger or consolidation withsuch other Person. “Acquisition Consideration” means the consideration given by the Borroweror any of its Subsidiaries for an Acquisition, including but not limited to thesum of (without duplication) (a) the fair market value of any cash, property(including Redeemable Stock) or services given, plus (b) consideration paid withproceeds of Indebtedness permitted pursuant to this Agreement, plus (c) theamount of any Indebtedness assumed, incurred or guaranteed (to the extent nototherwise included) in connection with such Acquisition by the Borrower or anyof its Subsidiaries. “Act” has the meaning set forth in Section 10.20 hereof. 1 “Additional Senior Debt” means any Indebtedness of the Borrower (otherthan Subordinated Debt) incurred after the Closing Date, the terms of whichshall be reasonably satisfactory to the Required Lenders. “Adjusted EBITDA” means, with respect to any period, EBITDA for suchperiod adjusted to (a) exclude any non-cash gain or loss recognized on theincome statement from derivative and currency value fluctuations during suchperiod, and (b) upon the acquisition of any assets or Persons permitted bySection 7.03 hereof which generate EBITDA (whether positive or negative) or thedisposition of any assets or Persons permitted by Section 7.05 hereof whichprior to such disposition generated EBITDA (whether positive or negative),include the actual trailing 12 month EBITDA of the acquired assets or Person, orexclude the actual trailing 12 month EBITDA of the disposed assets or Person, asthe case may be, with adjustments as provided in Article 11, Regulation S-X ofthe Securities Act of 1933 during such period. “Adjusted Funded Debt” means, as of any date of determination, the sum of(a) Funded Debt as of such date, minus (b) Cash on Hand as of such date. “Adjustment Date” means, for purposes of the Applicable Rate, the date ofreceipt by the Administrative Agent of the financial statements required to bedelivered pursuant to Section 6.01 hereof, and the Compliance Certificaterequired pursuant to Section 6.02(a) hereof. “Administrative Agent” means Wells Fargo in its capacity as administrativeagent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent’s Office” means the Administrative Agent’s addressand, as appropriate, account as set forth on Schedule 10.02, or such otheraddress or account as the Administrative Agent may from time to time notify theBorrower and the Lenders. “Affiliate” means, as to any Person, any other Person directly orindirectly controlling, controlled by, or under direct or indirect commoncontrol with, such Person. A Person shall be deemed to be “controlled by” anyother Person if such other Person possesses, directly or indirectly, power (a)to vote 10% or more of the Voting Shares (on a fully diluted basis) of suchPerson; or (b) to direct or cause the direction of the management and policiesof such Person whether by contract or otherwise. “Affiliated IRP Agreement” means an Interest Rate Protection Agreemententered into between the Borrower and a Lender or an Affiliate of a Lender,provided that such Lender was a Lender hereunder at the time such Interest RateProtection Agreement was entered into. “Agent Fee Letters” has the meaning specified in Section 2.09(b) hereof. “Agent-Related Persons” means the Administrative Agent (including anysuccessor administrative agent), together with its Affiliates, and the officers,directors, employees, agents and attorneys-in-fact of such Persons andAffiliates. “Aggregate Revolving Commitments” means the aggregate amount of RevolvingCommitments of the Lenders, which initially shall be $250,000,000, as the samemay be reduced from time to time pursuant to the terms of this Agreement. 2 “Agreement” means this First Amended and Restated Credit Agreement. “Applicable Law” means (a) in respect of any Person, all provisions ofLaws applicable to such Person, and all orders and decrees of all courts andarbitrators in proceedings or actions to which the Person in question is a partyand (b) in respect of contracts made or performed in the State of Texas,”Applicable Law” shall also mean the laws of the United States of America,including, without limitation the foregoing, 12 USC Sections 85 and 86, asamended to the date hereof and as the same may be amended at any time and fromtime to time hereafter, and any other statute of the United States of Americanow or at any time hereafter prescribing the maximum rates of interest on loansand extensions of credit, and the laws of the State of Texas. “Applicable Rate” means the following percentages per annum:

APPLICABLE RATE APPLICABLE APPLICABLE RATEPRICING FOR EURODOLLAR RATE FOR BASE FOR COMMITMENT LEVEL LEVERAGE RATIO RATE LOANS RATE LOANS FEE- ——- ———————————————– ————— ————- ————— 1 Less than 1.00 to 1 0.875 0.00 0.252 Greater than or equal to 1.00 to 1 but less 1.125 0.00 0.25 than 1.50 to 13 Greater than or equal to 1.50 to 1 but less 1.375 0.00 0.25 than 2.00 to 14 Greater than or equal to 2.00 to 1 but less 1.625 0.00 0.30 than 2.25 to 15 Greater than or equal to 2.25 to 1 1.875 0.00 0.30

The Applicable Rate shall be adjusted on each Adjustment Date as tested by using the Leverage Ratio set forth on the Compliance Certificate on each Adjustment Date. If the financial statements required pursuant to Section 6.01 hereof and the related Compliance Certificate required pursuant to Section 6.02(a) hereof are not received by the Administrative Agent by the date required, the Applicable Rate shall be determined using Pricing Level 5 until such time as such financial statements and Compliance Certificate are received. Notwithstanding the foregoing, the Applicable Rate in effect from and after the Closing Date through the date on which another Pricing Level would otherwise be in effect based on the receipt of the Company’s Compliance Certificate for the period ending March 31, 2005 shall be Level 3. “Approved Fund” has the meaning specified in Section 10.07(g) hereof. “Assets” means, as of any date, the assets which would be reflected on abalance sheet of the Borrower and its Subsidiaries on a combined andconsolidated basis prepared as of such date in accordance with GAAP. 3 “Assignment and Acceptance” means an Assignment and Acceptancesubstantially in the form of Exhibit A. “Attorney Costs” means and includes all reasonable fees and disbursementsof any law firm or other external counsel. “Attributable Indebtedness” means, on any date, (a) in respect of anyCapital Lease of any Person, the capitalized amount thereof that would appear ona balance sheet of such Person prepared as of such date in accordance with GAAP,and (b) in respect of any Synthetic Lease Obligation, the capitalized amount ofthe remaining lease payments under the relevant lease that would appear on abalance sheet of such Person prepared as of such date in accordance with GAAP ifsuch lease were accounted for as a capital lease. “Audited Financial Statements” means the audited consolidated balancesheet of the Borrower and its Subsidiaries for the fiscal year ended December31, 2003 and the related consolidated statements of income, stockholders’ equityand cash flows for such fiscal year of the Borrower. “Base Rate” means for any day a fluctuating rate per annum equal to thehigher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the Prime Rate ineffect for such day. Any change in such rate announced by Wells Fargo shall takeeffect at the opening of business on the day specified in the publicannouncement of such change. “Base Rate Loan” means a Loan that bears interest based on the Base Rate. “Board” means the Board of Governors of the Federal Reserve System of theUnited States of America. “Borrower” has the meaning set forth in the introductory paragraph hereto. “Borrowing” means a Revolving Borrowing or a Swing Line Borrowing, as thecontext may require. “British Pounds Sterling” and “(pound)” means the lawful currency ofEngland. “Business Day” means any day other than a Saturday, Sunday, or other dayon which commercial banks are authorized to close under the Laws of, or are infact closed in, the state where the Administrative Agent’s Office is locatedand, if such day relates to any Eurodollar Rate Loan, means any such day onwhich dealings in Dollar deposits are conducted by and between banks in theapplicable offshore Dollar interbank market. “Capital Lease” means, as of any date, any lease of property, real orpersonal, which would be capitalized on a balance sheet of the lessee preparedas of such date, in accordance with GAAP, together with any other lease by suchlessee which is in substance a financing lease, including without limitation,any lease under which (a) such lessee has or will have an option to purchase theproperty subject thereto at a nominal amount or an amount less than a reasonableestimate of the fair market value of such property as of the date such lease isentered into or 4(b) the term of the lease approximates or exceeds the expected useful life ofthe property leased thereunder. “Capital Stock” means, as to any Person, the equity interests in suchPerson, including, without limitation, the shares of each class of capital stockin any Person that is a corporation, each class of partnership interest in anyPerson that is a partnership, and each class of membership interest in anyPerson that is a limited liability company, and any right to subscribe for orotherwise acquire any such equity interests. “Cash Collateralize” means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of each of the L/C Issuers and theLenders, as collateral for the L/C Obligations, cash or deposit account balancespursuant to documentation in form and substance satisfactory to theAdministrative Agent and each L/C Issuer (which documents are hereby consentedto by the Lenders). Derivatives of such term shall have corresponding meaning.The Borrower hereby grants the Administrative Agent, for the benefit of each L/CIssuer and the Lenders, a Lien on all such cash and deposit account balances.Cash collateral shall be maintained in blocked, interest bearing depositaccounts at Wells Fargo. “Cash on Hand”, as of any date of determination, is the amount equal tothe amount of cash and cash equivalents, determined in accordance with GAAP, asit appears on the consolidated balance sheet of the Borrower and theConsolidated Subsidiaries, in each case as of such date of determination. “Cashland Seller Note” means that certain subordinated promissory note ofthe Borrower payable to the order of Schear Financial Services, LLC in theprincipal amount of $2,500,000 dated February 1, 2004, the terms of which shallat all times be subordinated to the Obligations pursuant to terms reasonablysatisfactory to the Required Lenders. “Change of Control” means, with respect to any Person, an event or seriesof events by which: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 50% or more of the equity securities of such Person entitled to vote for members of the board of directors or equivalent governing body of such Person on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person ceases to be composed of individuals (i) who were members of that board or equivalent governing 5 body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors). “Closing Date” means the first date all the conditions precedent inSection 4.01 hereof are satisfied or waived in accordance with Section 4.01hereof (or, in the case of Section 4.01(b) hereof, waived by the Person entitledto receive the applicable payment). “Code” means the Internal Revenue Code of 1986. “Commercial Letter of Credit” means, any documentary Letter of Creditwhich is drawable upon presentation of documents evidencing the sale or shipmentof goods purchased by the Borrower in the ordinary course of its business. “Commitment Fee” has the meaning specified in Section 2.09(a) hereof. “Communications” has the meaning specified in Section 10.02(c) hereof. “Compensation Period” has the meaning specified in Section 2.12(d)(ii)hereof. “Compliance Certificate” means a certificate substantially in the form ofExhibit B. “Consequential Loss” means, with respect to the Borrower’s payment of allor any portion of the then outstanding principal amount of a Lender’s EurodollarRate Loan on a day other than the last day of the Interest Period relatedthereto, any loss, cost or expense incurred by such Lender as a result of thetiming of such payment or in redepositing such principal amount, including anyexpense or penalty incurred by such Lender on redepositing such principalamount, but excluding any loss of the Applicable Rate on the relevant EurodollarRate Loans. “Consolidated Subsidiaries” means, all Subsidiaries of the Borrower whichare included in the consolidated financial statements of the Borrower. “Contractual Obligation” means, as to any Person, any provision of anysecurity issued by such Person or of any agreement, instrument or otherundertaking to which such Person is a party or by which it or any of itsproperty is bound. “Credit Extension” means each of the following: (a) a Revolving Borrowing,(b) a Swing Line Borrowing, and (c) an L/C Credit Extension. 6 “Debtor Relief Laws” means the Bankruptcy Code of the United States ofAmerica, and all other liquidation, conservatorship, bankruptcy, assignment forthe benefit of creditors, moratorium, rearrangement, receivership, insolvency,reorganization, or similar debtor relief Laws of the United States of America orother applicable jurisdictions from time to time in effect and affecting therights of creditors generally. “Default” means any event that, with the giving of any notice, the passageof time, or both, would be an Event of Default. “Default Rate” means an interest rate equal to (a) the Base Rate plus (b)the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% perannum; provided, however, that with respect to a Eurodollar Rate Loan, theDefault Rate shall be an interest rate equal to the interest rate (including anyApplicable Rate) otherwise applicable to such Eurodollar Rate Loan plus 2% perannum, in each case to the fullest extent permitted by Applicable Law. “Disposition” or “Dispose” means the sale, transfer, license or otherdisposition (including any sale and leaseback transaction, but excluding aDividend) of any property by any Person, including any sale, assignment,transfer or other disposal, with or without recourse, of any notes or accountsreceivable or any rights and claims associated therewith. “Dividends” in respect of any Person, means (a) cash distributions or anyother distributions of property, or otherwise, on, or in respect of, any classof Capital Stock of such Person (other than dividends or distributions payablesolely in common stock of such Person, or options, warrants or other rights topurchase common stock of such Person), and (b) any and all funds, cash or otherpayments made in respect of the redemption, repurchase or acquisition of suchCapital Stock (specifically including, without limitation, a Treasury StockPurchase, but excluding, purchases under employee benefit plans), unless suchCapital Stock shall be redeemed or acquired through the exchange of such CapitalStock with Capital Stock of the same class or options or warrants to purchasesuch Capital Stock. “Dollar” and “$” means lawful money of the United States of America. “Dollar Equivalent” means, on any date, the amount of Dollars into whichan amount of applicable foreign currency may be converted on such date. “Domestic Subsidiary” means any Subsidiary of the Borrower other than aForeign Subsidiary. “EBITDA” means, with respect to any period, (a) Net Income for suchperiod, plus (b) without duplication and to the extent deducted in determiningNet Income for such period, (i) Interest Expense for such period, (ii) federal,state, local and foreign income and franchise taxes of the Borrower and itsSubsidiaries for such period, (iii) depreciation and amortization expenses ofthe Borrower and its Subsidiaries for such period and other non-cash charges ofthe Borrower and its Subsidiaries, minus (c) without duplication and to theextent included in determining Net Income for such period, any extraordinarygains and extraordinary non-cash credits of the Borrower and its Subsidiariesfor such period. “Eligible Assignee” has the meaning specified in Section 10.07(g) hereof. 7 “Environmental Laws” means all Laws relating to environmental, health,safety and land use matters applicable to any property. “ERISA” means the Employee Retirement Income Security Act of 1974 and anyregulations issued pursuant thereto. “ERISA Affiliate” means any trade or business (whether or notincorporated) under common control with the Borrower within the meaning ofSection 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code forpurposes of provisions relating to Section 412 of the Code). “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan;(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plansubject to Section 4063 of ERISA during a plan year in which it was asubstantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessationof operations that is treated as such a withdrawal under Section 4062(e) ofERISA; (c) a complete or partial withdrawal by the Borrower or any ERISAAffiliate from a Multiemployer Plan or notification that a Multiemployer Plan isin reorganization; (d) the filing of a notice of intent to terminate, thetreatment of a Pension Plan amendment as a termination under Sections 4041 or4041A of ERISA, or the commencement of proceedings by the PBGC to terminate aPension Plan or Multiemployer Plan; (e) an event or condition which mightreasonably be expected to constitute grounds under Section 4042 of ERISA for thetermination of, or the appointment of a trustee to administer, any Pension Planor Multiemployer Plan; or (f) the imposition of any liability under Title IV ofERISA with respect to a Pension Plan, other than PBGC premiums due but notdelinquent under Section 4007 of ERISA, upon the Borrower or any ERISAAffiliate. “Eurodollar Rate” means for any Interest Period with respect to anyEurodollar Rate Loan (rounded upward to the next 1/16th of 1%): (a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Telerate screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or (b) if the rate referenced in the preceding subsection (a) does not appear on such page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or 8 (c) if the rates referenced in the preceding subsections (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Wells Fargo and with a term equivalent to such Interest Period would be offered by Wells Fargo’s London Branch to major banks in the offshore Dollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period. “Eurodollar Rate Loan” means a Revolving Loan that bears interest at arate based on the Eurodollar Rate. “Event of Default” means any of the events or circumstances specified inSection 8.01. “Evergreen Letter of Credit” has the meaning specified in Section2.03(b)(iii) hereof. “Exchange Act” means the Securities Exchange Act of 1934. “Existing Credit Agreement” has the meaning set forth in the secondparagraph hereto. “Existing Foreign Investments” means the 80,400,000 SEK Loan Note issuedon September 8, 2004 by Svensk Pantbelaning Holdings AB (f/k/a Guldskalen D 409AB) and made payable to Borrower and the 13,400,000 SEK Convertible DebentureCertificate issued on September 8, 2004 by Svensk Pantbelaning Holdings AB(f/k/a Guldskalen D 409 AB) to Borrower, each of which is in existence as of thedate hereof. “Existing Letters of Credit” means the letters of credit set forth onSchedule 2.03. “Federal Funds Rate” means, for any day, the rate per annum (roundedupwards to the nearest 1/100 of 1%) equal to the weighted average of the rateson overnight Federal funds transactions with members of the Federal ReserveSystem arranged by Federal funds brokers on such day, as published by theFederal Reserve Bank on the Business Day next succeeding such day; provided that(a) if such day is not a Business Day, the Federal Funds Rate for such day shallbe such rate on such transactions on the next preceding Business Day as sopublished on the next succeeding Business Day, and (b) if no such rate is sopublished on such next succeeding Business Day, the Federal Funds Rate for suchday shall be the average rate charged to Wells Fargo on such day on suchtransactions as determined by the Administrative Agent. “Fixed Charge Coverage Ratio” means, as of any date of determination, theratio of (a) the sum of (i) Adjusted EBITDA plus (ii) rent and lease expense, ineach case for the period of four consecutive fiscal quarters ending on such dateto (b) the sum of (i) Interest Expense, plus (ii) all scheduled payments onFunded Debt (specifically excluding any unscheduled mandatory prepayments andany optional prepayments on Funded Debt), plus (iii) rent and lease expense, ineach case for the four consecutive fiscal quarters ending on such date. “Foreign Lender” has the meaning specified in Section 10.15 hereof. 9 “Foreign Plan” means any pension plan or other deferred compensation plan,program or arrangement maintained by a Foreign Subsidiary which, underapplicable local law, is required to be funded through a trust or other fundingvehicle. “Foreign Subsidiary” means (a) each Subsidiary of the Borrower or anyERISA Affiliate which is organized under the laws of a jurisdiction other thanthe United States of America or any State thereof, if any, and (b) eachSubsidiary of the Borrower or any ERISA Affiliate of which a majority of therevenues, earnings or other total assets (determined on a consolidated basiswith its Subsidiaries) are located or derived from operations outside of theUnited States of America, if any. “Fund” has the meaning specified in Section 10.07(g) hereof. “Funded Debt” means, as to the Borrower and its Subsidiaries at aparticular time, all of the following (without duplication): (a) all obligations for borrowed money and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) obligations in respect of earnout or similar payments deemed earned and payable in cash or which may be payable in cash at the seller’s or obligee’s option and to the extent the same appears on the Borrower’s consolidated balance sheet; (c) obligations in respect of Capital Leases and Synthetic Lease Obligations; (d) any Receivables Facility Attributed Indebtedness; and (e) obligations in respect of any Redeemable Stock. “GAAP” means generally accepted accounting principles as in effect in theUnited States as set forth in the opinions and pronouncements of the AccountingPrinciples Board and the American Institute of Certified Public Accountants andstatements and pronouncements of the Financial Accounting Standards Board orsuch other principles as may be approved by a substantial segment of theaccounting profession, that are applicable to the circumstances as of the dateof determination, consistently applied. If at any time any change in GAAP wouldaffect the computation of any financial ratio or requirement set forth in anyLoan Document, and either the Borrower or the Required Lenders shall so request,the Administrative Agent, the Lenders and the Borrower shall negotiate in goodfaith to amend such ratio or requirement to preserve the original intent thereofin light of such change in GAAP (subject to the approval of the Required Lenderssuch approval not to be unreasonably withheld and no amendment fee will bepayable to the Lenders in connection with such amendment); provided that, untilso amended, (a) such ratio or requirement shall continue to be computed inaccordance with GAAP prior to such change therein and (b) the Borrower shallprovide to the Administrative Agent and the Lenders financial statements andother documents required under this Agreement or as reasonably requestedhereunder setting forth a reconciliation between calculations of such ratio orrequirement made before and after giving effect to such change in GAAP. 10 “Governmental Authority” means any nation or government, any state orother political subdivision thereof, any agency, authority, instrumentality,regulatory body, court, administrative tribunal, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government, and anycorporation or other entity owned or controlled, through stock or capitalownership or otherwise, by any of the foregoing. “Guarantors” means, collectively, each Domestic Subsidiary. “Guaranty” means the Guaranty made by one or more of the Guarantors,substantially in the form of Exhibit C. “Guaranty Obligation” means, as to any Person, (a) any obligation,contingent or otherwise, of such Person guarantying or having the economiceffect of guarantying any Indebtedness or other obligation payable orperformable by another Person (the “primary obligor”) in any manner, whetherdirectly or indirectly, and including any obligation of such Person, direct orindirect, (i) to purchase or pay (or advance or supply funds for the purchase orpayment of) such Indebtedness or other obligation, (ii) to purchase or leaseproperty, securities or services for the purpose of assuring the obligee inrespect of such Indebtedness or other obligation of the payment or performanceof such Indebtedness or other obligation, (iii) to maintain working capital,equity capital or any other financial statement condition or liquidity of theprimary obligor so as to enable the primary obligor to pay such Indebtedness orother obligation, or (iv) entered into for the purpose of assuring in any othermanner the obligees in respect of such Indebtedness or other obligation of thepayment or performance thereof or to protect such obligees against loss inrespect thereof (in whole or in part), or (b) any Lien on any assets of suchPerson securing any Indebtedness or other obligation of any other Person,whether or not such Indebtedness or other obligation is assumed by such Person;provided, however, that the term “Guaranty Obligation” shall not include (x) thepurchase of instruments in respect of Investments otherwise permitted by Section7.03(a) and (y) endorsements of instruments for deposit or collection in theordinary course of business. The amount of any Guaranty Obligation shall bedeemed to be an amount equal to the stated or determinable amount of the relatedprimary obligation, or portion thereof, in respect of which such GuarantyObligation is made or, if not stated or determinable, the maximum reasonablyanticipated liability in respect thereof as determined by the guarantying Personin good faith. “Highest Lawful Rate” at the particular time in question the maximum rateof interest which, under Applicable Law, any Lender is then permitted to chargeon the Obligations. If the maximum rate of interest which, under Applicable Law,any Lender is permitted to charge on the Obligations shall change after the datehereof, the Highest Lawful Rate shall be automatically increased or decreased,as the case may be, from time to time as of the effective time of each change inthe Highest Lawful Rate without notice to the Borrower. For purposes ofdetermining the Highest Lawful Rate under Applicable Law, the indicated rateceiling shall be the lesser of (a)(i) the “weekly ceiling”, as such ceiling iscomputed in Section 303.003 of the Texas Finance Code, as amended, or (ii) ifavailable in accordance with the terms thereof and at the Administrative Agent’soption after notice to the Borrower and otherwise in accordance with the termsof Section 303.103 of the Texas Finance Code, as amended, the “annualizedceiling”, as such ceiling is determined in accordance with Section 303.009 ofthe Texas Finance Code, as 11amended, and (b)(i) if the amount outstanding under this Agreement is less than$250,000, twenty-four percent (24%), or (ii) if the amount outstanding underthis Agreement is equal to or greater than $250,000, twenty-eight percent (28%)per annum. “Honor Date” has the meaning specified in Section 2.03(c)(i) hereof. “ICC” has the meaning specified in Section 2.03(h) hereof. “Indebtedness” means, as to any Person at a particular time, all of thefollowing: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) any direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, surety bonds and similar instruments; (c) net obligations under any Interest Rate Protection Agreement in an amount equal to (i) if such Interest Rate Protection Agreement has been closed out, the unpaid Termination Value thereof, or (ii) if such Interest Rate Protection Agreement has not been closed out, the mark-to-market value thereof determined on the basis of readily available quotations provided by any recognized dealer in such Interest Rate Protection Agreement; (d) whether or not so included as liabilities in accordance with GAAP, all obligations of such Person to pay the deferred purchase price of property or services, and indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (e) accrued obligations in respect of earnout or similar payments payable in cash or which may be payable in cash at the seller’s or obligee’s option; (f) Capital Lease and Synthetic Lease Obligations; (g) any Redeemable Stock of such Person; (h) any Receivables Facility Attributed Indebtedness; and (i) all Guaranty Obligations of such Person in respect of any of the foregoing.For all purposes hereof, the Indebtedness of any Person shall include theIndebtedness of any partnership or joint venture in which such Person is ageneral partner or a joint venturer, unless such Indebtedness is expressly madenon-recourse to such Person except for customary exceptions reasonablyacceptable to the Required Lenders. The amount of any Capital Lease or 12Synthetic Lease Obligation as of any date shall be deemed to be the amount ofAttributable Indebtedness in respect thereof as of such date. “Indemnified Liabilities” has the meaning set forth in Section 10.05hereof. “Indemnitees” has the meaning set forth in Section 10.05 hereof. “Information” has the meaning set forth in Section 10.08 hereof. “Interest Expense” means, with respect to any period, interest expense,whether paid or accrued (including the interest component of Capital Leases), ofthe Borrower and its Subsidiaries, all as determined in conformity with GAAP, asit appears on the consolidated income statement of the Borrower and itsConsolidated Subsidiaries as of such date of determination. “Interest Payment Date” means, (a) as to any Loan other than a Base RateLoan, the last day of each Interest Period applicable to such Loan; provided,however, that if any Interest Period for a Eurodollar Rate Loan exceeds threemonths, the respective dates that fall every three months after the beginning ofsuch Interest Period shall also be Interest Payment Dates; and (b) as to anyBase Rate Loan (including a Swing Line Loan), the first Business Day of eachQuarterly Date and the Maturity Date. “Interest Period” means as to each Eurodollar Rate Loan, the periodcommencing on the date such Eurodollar Rate Loan is disbursed or converted to orcontinued as a Eurodollar Rate Loan and ending on the date 7 or 14 days or one,two, three or six months thereafter, as selected by the Borrower in itsRevolving Loan Notice; provided that: (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period of one month or more pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (iii) no Interest Period shall extend beyond the scheduled Maturity Date. “Interest Rate Protection Agreement” means (a) any and all rate swaptransactions, basis swaps, credit derivative transactions, forward ratetransactions, commodity swaps, commodity options, forward commodity contracts,equity or equity index swaps or options, bond or bond price or bond index swapsor options or forward bond or forward bond price or forward bond indextransactions, interest rate options, forward foreign exchange transactions, captransactions, floor transactions, collar transactions, currency swaptransactions, cross-currency rate swap transactions, currency options, spotcontracts, any cancellations, buy backs, reversals, terminations or assignmentsof any of the foregoing, or any other similar transactions or any 13combination of any of the foregoing (including any options to enter into any ofthe foregoing), whether or not any such transaction is governed by or subject toany master agreement, and (b) any and all transactions of any kind, and therelated confirmations, which are subject to the terms and conditions of, orgoverned by, any form of master agreement published by the International Swapsand Derivatives Association, Inc., any International Foreign Exchange MasterAgreement, or any other master agreement (any such master agreement, togetherwith any related schedules, a “Master Agreement”), including any suchobligations or liabilities under any Master Agreement. “Interest Rate Protection Obligations” means any and all obligations ofthe Borrower to any Lender or an Affiliate of a Lender under any Affiliated IRPAgreement. “Investment” means, as to any Person, any acquisition or investment bysuch Person, whether by means of (a) the purchase or other acquisition ofcapital stock or other securities of another Person, (b) a loan, advance orcapital contribution (including a contribution of property) to, GuarantyObligation with respect to the debt of, or purchase or other acquisition of anyother debt or equity participation or interest in, another Person, including anypartnership or joint venture interest in such other Person, or (c) the purchaseor other acquisition (in one transaction or a series of transactions) of assetsof another Person that constitute a business unit. For purposes of covenantcompliance, the amount of any Investment shall be the amount actually invested,without adjustment for subsequent increases or decreases in the value of suchInvestment. “IRS” means the United States Internal Revenue Service. “Laws” means, collectively, all international, foreign, Federal, state andlocal statutes, treaties, rules, guidelines, regulations, ordinances, codes andadministrative or judicial precedents or authorities, including theinterpretation or administration thereof by any Governmental Authority chargedwith the enforcement, interpretation or administration thereof, and allapplicable administrative orders, directed duties, requests, licenses,authorizations and permits of, and agreements with, any Governmental Authority,in each case whether or not having the force of law. “L/C Advance” means, with respect to each Lender, such Lender’sparticipation in any L/C Borrowing in accordance with its Pro Rata Share. “L/C Borrowing” means an extension of credit resulting from a drawingunder any Letter of Credit which has not been reimbursed on the date when madeor refinanced as a Revolving Borrowing. “L/C Credit Extension” means, with respect to any Letter of Credit, theissuance thereof or extension of the expiry date thereof, or the renewal orincrease of the amount thereof. “L/C Issuer” means any Lender in its capacity as an issuer of Letters ofCredit hereunder, or any successor issuer of Letters of Credit hereunder. 14 “L/C Obligations” means, as of any date of determination, the aggregateundrawn face amount of all outstanding Letters of Credit plus the aggregate ofall Unreimbursed Amounts, including all L/C Borrowings. “Lender” has the meaning specified in the introductory paragraph heretoand, as the context requires, includes each L/C Issuer and the Swing LineLender. “Lending Office” means, as to any Lender, the office or offices of suchLender described as such on Schedule 10.02, or such other office or offices as aLender may from time to time notify the Borrower and the Administrative Agent. “Letter of Credit” means any letter of credit issued hereunder and shallinclude the Existing Letters of Credit. A Letter of Credit may be a CommercialLetter of Credit or a Standby Letter of Credit. “Letter of Credit Application” means an application and agreement for theissuance or amendment of a letter of credit in the form from time to time in useby any L/C Issuer. “Letter of Credit Expiration Date” means (a) with respect to StandbyLetters of Credit, the earlier of (i) the day that is ten days prior to theMaturity Date (or, if such day is not a Business Day, the next precedingBusiness Day) and (ii) one year after the date of issuance of such Letter ofCredit (or, if such day is not a Business Day, the next preceding Business Day)and (b) with respect to Commercial Letters of Credit, the earlier of (i) the daythat is 120 days after the date of issuance of such Letter of Credit (or, ifsuch day is not a Business Day, the next preceding Business Day) and (ii) theday that is ten days prior to the Maturity Date (or, if such day is not aBusiness Day, the next preceding Business Day). “Letter of Credit Sublimit” means an amount equal to the lesser of (a)$20,000,000 and (b) the Aggregate Revolving Commitments. The Letter of CreditSublimit is part of, and not in addition to, the Aggregate RevolvingCommitments. “Leverage Ratio” means, as of any date of determination, for the Borrowerand its Subsidiaries on a consolidated basis, the ratio of (a) Adjusted FundedDebt as of such date to (b) Adjusted EBITDA for the period of the fourconsecutive fiscal quarters ending on such date. “Lien” means any mortgage, pledge, hypothecation, assignment as securityfor Indebtedness, encumbrance, lien (statutory or other), charge, or preference,priority or other security interest or preferential arrangement of any kind ornature whatsoever (including any conditional sale or other title retentionagreement, any financing lease having substantially the same economic effect asany of the foregoing, and the filing of any financing statement under theUniform Commercial Code or comparable Laws of any jurisdiction), including theinterest of a purchaser of accounts receivable. “Litigation” means any proceeding, claim, lawsuit, arbitration, and/orinvestigation by or before any Governmental Authority, including, withoutlimitation, proceedings, claims, lawsuits, and/or investigations under orpursuant to any environmental, occupational, safety and health, antitrust,unfair competition, securities, tax or other Law, or under or pursuant to anycontract, agreement or other instrument. 15 “Loan” means an extension of credit by a Lender to the Borrower underArticle II in the form of a Revolving Loan or a Swing Line Loan. “Loan Documents” means this Agreement, the Notes, the Agent Fee Letters,each Guaranty, each Request for Credit Extension, each Compliance Certificate,and any other agreement executed, delivered or performable by any Loan Party inconnection herewith or as security for the Obligations. “Loan Parties” means, collectively, the Borrower and each Guarantor. “Material Adverse Effect” means any act or circumstance or event which (a)causes an Event of Default or causes a Default which could reasonably beexpected to become an Event of Default, (b) otherwise is material and adverse tothe consolidated financial condition or business operations of the Borrower andits Subsidiaries and which could reasonably be expected to result in a Defaultor an Event of Default, (c) in any manner whatsoever materially and adverselyaffects the validity or enforceability of any of the Loan Documents in a mannerthat impairs the ability of the Lenders to exercise their remedies under thisAgreement or (d) impairs the ability of the Borrower or any of its Subsidiariesto perform its obligations under any of the Loan Documents to which it is aparty. “Maturity Date” means (a) February 24, 2010, or (b) such earlier date uponwhich the Revolving Commitments may be terminated in accordance with the termshereof. “Moody’s” means Moody’s Investors Services, Inc. and any successorthereto. “Multiemployer Plan” means any employee benefit plan of the type describedin Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliatemakes or is obligated to make contributions, or during the preceding threecalendar years, has made or been obligated to make contributions. “Negative Pledge” means any agreement, contract or other arrangementwhereby the Borrower or any of its Subsidiaries is prohibited from, or wouldotherwise be in default as a result of, creating, assuming, incurring orsuffering to exist, directly or indirectly, any Lien on any of its assets. “Net Income” means, with respect to any period, the net income or loss ofthe Borrower and its Subsidiaries on a consolidated basis for such period,determined in accordance with GAAP; provided that there shall be excluded theincome or loss of any Person (other than a Subsidiary) of which the Borrower orany Subsidiary owns Capital Stock, except to the extent of the amount ofdividends or other distributions actually paid to the Borrower or any of theSubsidiaries during such period. “Net Proceeds” means, with respect to the Disposition of any Asset(including Capital Stock) by or of, or the issuance of Indebtedness to, anyPerson, the proceeds received by such Person in connection with such transactionafter deducting therefrom the aggregate, without duplication, of the followingamounts to the extent properly attributable to such transaction or to any assetthat may be the subject thereof: (i) reasonable brokerage commissions, legalfees, finder’s fees, financial advisory fees, fees for solvency opinions,fairness opinions, accounting 16fees, underwriting fees, investment banking fees, survey, title insurance,appraisals, notaries and other similar commissions and fees and expenses, ineach case, to the extent paid, payable or reimbursed by such Person; (ii)filing, recording or registration fees or charges or similar fees or chargespaid by such Person; (iii) taxes paid or payable by such Person or anyshareholder, partner or member of such Person to governmental taxing authoritiesas a result of such sale or other disposition (after taking into account anyavailable tax credits or deductions or any tax sharing arrangements to theextent actually utilized); and (iv) payment of the outstanding principal amountof, premium or penalty, if any, and interest on any Indebtedness (other than theObligations) that is secured by a Lien on or otherwise related or attributableto the stock or asset in question, to the extent required or permitted pursuantto the documentation evidencing such Indebtedness. To the extent that any noteis obtained in such Disposition, the proceeds received in respect thereof shallbe deemed to be the value of such note as determined in accordance with GAAP. Tothe extent that any securities are obtained in any such sale, lease, transfer orother disposition, the proceeds received in respect thereof shall be deemed tobe the fair market value of such securities as of the date of such disposition. “Net Worth” means, as of any date, the total shareholder’s equity(including Capital Stock, additional paid-in capital, and retained earningsafter deducting treasury stock) which would appear on a balance sheet of theBorrower and its Subsidiaries on a combined and consolidated basis prepared asof such date in accordance with GAAP, but excluding all other comprehensiveincome or losses resulting from foreign currency translation adjustments orderivative value fluctuation. “Non-renewal Notice Date” has the meaning specified in Section2.03(b)(iii) hereof. “Note Agreements” means, collectively, (a) that certain Note Agreementdated July 7, 1995, entered into by and between the Borrower and Teachers, asamended to the date of this Agreement and such other further amendments nototherwise prohibited by Section 7.15 hereof; (b) that certain Note Agreementdated December 1, 1997 among the Borrower and the “Purchasers” named therein, asamended to the date of this Agreement and such other further amendments nototherwise prohibited by Section 7.15 hereof; and (c) that certain Note Agreementdated as of August 12, 2002 entered into by and between the Borrower and the”Purchasers” named therein, as amended to the date of this Agreement and suchother further amendments not otherwise prohibited by Section 7.15 hereof.. “Notes” means, collectively, the Revolving Loan Notes and the Swing LineNote. “Notice” has the meaning set forth in Section 10.02(c) hereof. “Obligations” means all advances to, and debts, liabilities, obligations,covenants and duties of, any Loan Party arising under any Loan Document, whetherdirect or indirect (including those acquired by assumption), absolute orcontingent, due or to become due, now existing or hereafter arising. Withoutlimiting the generality of the foregoing, “Obligations” includes all amountswhich would be owed by any Loan Party or any other Person (other thanAdministrative Agent or Lenders) to Administrative Agent, Lenders or anyAffiliate of a Lender under any Loan Document, but for the fact that they areunenforceable or not allowable due to the existence of a bankruptcy,reorganization or similar proceeding involving any Loan Party or any otherPerson 17(including all such amounts which would become due or would be secured but forthe filing of any petition in bankruptcy, or the commencement of any insolvency,reorganization or like proceeding of any other Loan Party or any other Personunder any Debtor Relief Law). “Officer’s Certificate” means a certificate signed by the chief executiveofficer of the Borrower substantially in the form of Exhibit H. “Organization Documents” means, (a) with respect to any corporation, thecertificate or articles of incorporation and the bylaws; (b) with respect to anylimited liability company, the articles of formation and operating agreement;and (c) with respect to any partnership, joint venture, trust or other form ofbusiness entity, the partnership, joint venture or other applicable agreement offormation and any agreement, instrument, filing or notice with respect theretofiled in connection with its formation with the secretary of state or otherdepartment in the state of its formation, in each case as amended from time totime. “Other Taxes” has the meaning set forth in Section 3.01(b) hereof. “Outstanding Amount” means (i) with respect to Revolving Loans and SwingLine Loans on any date, the aggregate outstanding principal amount thereof aftergiving effect to any borrowings and prepayments or repayments of Revolving Loansand Swing Line Loans, as the case may be, occurring on such date; and (ii) withrespect to any L/C Obligations on any date, the amount of such L/C Obligationson such date after giving effect to any L/C Credit Extension occurring on suchdate and any other changes in the aggregate amount of the L/C Obligations as ofsuch date, including as a result of any reimbursements of outstanding unpaiddrawings under any Letters of Credit or any reductions in the maximum amountavailable for drawing under Letters of Credit taking effect on such date. “Participant” has the meaning specified in Section 10.07(d) hereof. “PBGC” means the Pension Benefit Guaranty Corporation. “Pension Plan” means any “employee pension benefit plan” (as such term isdefined in Section 3(2) of ERISA), other than a Multiemployer Plan, that issubject to Title IV of ERISA and is sponsored or maintained by the Borrower orany ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributesor has an obligation to contribute, or in the case of a multiple employer plan(as described in Section 4064(a) of ERISA) has made contributions at any timeduring the immediately preceding five plan years. “Permitted Liens” means: (a) Liens (if any) granted in favor of theLenders to secure payment of the Obligations and other Indebtedness of theBorrower specifically approved by the Lenders in writing; (b) pledges ordeposits made to secure payment of worker’s compensation (or to participate inany fund in connection with worker’s compensation), unemployment insurance,pensions or social security programs, other than any Lien imposed by ERISA; (c)Liens imposed by mandatory provisions of law such as for materialmen’s,mechanics, warehousemen’s and other like Liens arising in the ordinary course ofbusiness, securing Indebtedness whose payment is not yet due and payable or ifthe same are being contested in good faith and as to which adequate reserveshave been provided; (d) Liens for taxes, assessments and governmental charges orlevies imposed upon a Person or upon such Person’s income or profits orproperty, if the same are not 18yet due and payable or if the same are being contested in good faith and as towhich adequate reserves have been provided; (e) good faith deposits inconnection with tenders, leases, real estate bids or contracts (other thancontracts involving the borrowing of money), pledges or deposits to securepublic or statutory obligations, deposits to secure (or in lieu of) surety,stay, appeal or customs bonds and deposits to secure the payment of taxes,assessments, customs duties or other similar charges; (f) encumbrancesconsisting of zoning restrictions, easements, or other restrictions on the useof real Property, provided that such do not impair the use of such Property forthe uses intended, and none of which is violated by existing or proposedstructures or land use; (g) Liens securing purchase money Indebtedness, but onlyto the extent that (i) such Indebtedness is permitted pursuant to Section7.02(b) hereof, (ii) any such Lien secures the indebtedness incurred to purchasethe asset encumbered thereby and (iii) such Indebtedness does not exceed thecost of such asset, (h) Liens against Temporary Cash Investments, to the extentthat such Liens secure short-term indebtedness permitted under Section 7.02(j)hereof; (i) Liens arising by operation of law in connection with judgments beingappealed to the extent such Liens would not otherwise result in an Event ofDefault under Section 8.01(j); and (j) landlord’s liens arising in the ordinarycourse of the Borrower’s or the Subsidiaries’ leasing activities. “Person” means any individual, trustee, corporation, general partnership,limited partnership, limited liability company, joint stock company, trust,unincorporated organization, bank, business association, firm, joint venture orGovernmental Authority. “Plan” means any “employee benefit plan” (as such term is defined inSection 3(3) of ERISA) established by the Borrower or any ERISA Affiliate. “Platform” has the meaning set forth in Section 10.02(c) hereof. “Prime Rate” means, at any time, the rate of interest most recentlyannounced within Wells Fargo at its principal office in San Francisco as itsPrime Rate, with the understanding that Wells Fargo’s Prime Rate is one of itsbase rates and serves as the basis upon which effective rates of interest arecalculated for those loans making reference thereto, and is evidenced by therecording thereof after its announcement in such internal publication orpublications as Wells Fargo may designate. Any change in such rate announcedwithin Wells Fargo shall take effect on the opening of business on the day suchchange is announced within Wells Fargo. “Private Placement Debt” means the indebtedness of the Borrower (andGuaranty of Domestic Subsidiaries) in the aggregate original principal amount of(a) $20,000,000 under its senior notes designated “8.14% Senior Notes Due 2007”,each payable in accordance with the respective terms of such notes and the NoteAgreement entered into with respect thereto; (b) $30,000,000 under its seniornotes designated “7.10% Senior Notes Due January 2, 2008,” each payable inaccordance with the respective terms of such notes and the Note Agreemententered into with respect thereto; and (c) $42,500,000 under its senior notesdesignated “7.25% Senior Notes Due 2009”, each payable in accordance with therespective terms of such notes and the Note Agreement entered into with respectthereto. “Pro Rata Share” means, with respect to each Lender, the percentage(carried out to the ninth decimal place) of the Aggregate Revolving Commitmentsset forth opposite the name of such Lender on Schedule 2.01, as such share maybe adjusted as contemplated herein. 19 “Property” means any investment in any kind of property or asset, whetherreal, personal or mixed, tangible or intangible. “Quarterly Date” means the first Business Day of each January, April, Julyand October during the term of this Agreement. “Receivables Facility Attributed Indebtedness” means the amount ofobligations outstanding under a receivables purchase facility on any date ofdetermination that would be characterized as principal if such facility werestructured as a secured lending transaction other than a purchase. “Redeemable Stock” means the portion of any Capital Stock of the Borroweror any of its Subsidiaries which prior to the Maturity Date is or may be (a)unilaterally redeemable (by seeking final or similar payments or otherwise) uponthe occurrence of certain events or otherwise; (b) redeemable at the option ofthe holder thereof or (c) convertible into Indebtedness. “Register” has the meaning set forth in Section 10.07(c) hereof. “Release Date” shall mean the date upon which all Obligations and allInterest Rate Protection Obligations are paid in full and the RevolvingCommitments are terminated. “Reportable Event” means any of the events set forth in Section 4043(c) ofERISA, other than events for which the 30 day notice period has been waived. “Request for Credit Extension” means (a) with respect to a RevolvingBorrowing, a Revolving Loan Notice, (b) with respect to an L/C Credit Extension,a Letter of Credit Application, and (c) with respect to a Swing Line Loan, aSwing Line Loan Notice. “Required Lenders” means, as of any date of determination, two or moreLenders whose Voting Percentages aggregate more than 50%. “Responsible Officer” means the chief executive officer, president, chieffinancial officer, corporate controller, treasurer, vice president of finance orcorporate secretary of a Loan Party. Any document delivered hereunder that issigned by a Responsible Officer of a Loan Party shall be conclusively presumedto have been authorized by all necessary corporate, partnership and/or otheraction on the part of such Loan Party and such Responsible Officer shall beconclusively presumed to have acted on behalf of such Loan Party. “Restricted Payment” means, collectively, (a) Dividends, and (b) anypayment or prepayment of principal, interest, premium or penalty on anySubordinated Debt or any defeasance, redemption, purchase, repurchase or otheracquisition or retirement for value, in whole or in part, of any SubordinatedDebt (including, without limitation, the setting aside of assets or the depositof funds therefor). “Revolving Borrowing” means a borrowing consisting of simultaneousRevolving Loans of the same Type and having the same Interest Period made byeach of the Lenders pursuant to Section 2.01 hereof. 20 “Revolving Commitment” means, as to each Lender, its obligation to (a)make Revolving Loans to the Borrower pursuant to Section 2.01 hereof, (b)purchase participations in L/C Obligations, and (c) purchase participations inSwing Line Loans, in an aggregate principal amount at any one time outstandingnot to exceed the amount set forth opposite such Lender’s name on Schedule 2.01,as such amount may be reduced, increased or adjusted from time to time inaccordance with this Agreement. “Revolving Loan” has the meaning specified in Section 2.01 hereof. “Revolving Loan Note” means a promissory note made by the Borrower infavor of a Lender evidencing Revolving Loans made by such Lender, substantiallyin the form of Exhibit D. “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) aconversion of Revolving Loans from one Type to the other, or (c) a continuationof Revolving Loans as the same Type, pursuant to Section 2.02(a) hereof, which,if in writing, shall be substantially in the form of Exhibit E. “SEK” means lawful currency of Sweden. “S&P” means Standard and Poor’s Ratings Services, a division of TheMcGraw-Hill Companies, Inc. and any successor thereto. “Solvent” means, with respect to any Person, that the fair value of theassets of such Person (both at fair valuation and at present fair saleable valueon a going concern basis) is, on the date of determination, greater than thetotal amount of liabilities (including contingent and unliquidated liabilities)of such Person as of such date and that, as of such date, such Person is able topay all liabilities of such Person as such liabilities mature and such Persondoes not have unreasonably small capital with which to carry on its business. Incomputing the amount of contingent or unliquidated liabilities at any time, suchliabilities will be computed at the amount which, in light of all the facts andcircumstances existing at such time, represents the amount that can reasonablybe expected to become an actual or matured liability discounted to present valueat rates believed to be reasonable by such Person. “Standby Letter of Credit” means a Letter of Credit that is not aCommercial Letter of Credit. “Subordinated Debt” means any Indebtedness of the Borrower or anySubsidiary which is subordinated to the Obligations at all times pursuant toterms reasonably satisfactory to the Required Lenders. “Subsidiary” of a Person means a corporation, partnership, joint venture,limited liability company or other business entity of which a majority of theshares of securities or other interests having ordinary voting power for theelection of directors or other governing body (other than securities orinterests having such power only by reason of the happening of a contingency)are at the time beneficially owned by such Person. Unless otherwise specified,all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to aSubsidiary or Subsidiaries of the Borrower. 21 “Swing Line” means the revolving credit facility made available by theSwing Line Lender pursuant to Section 2.04 hereof. “Swing Line Borrowing” means a borrowing of a Swing Line Loan. “Swing Line Lender” means Wells Fargo in its capacity as provider of SwingLine Loans, or any successor swing line lender hereunder. “Swing Line Loan” has the meaning specified in Section 2.04(a) hereof. “Swing Line Note” means a promissory note made by the Borrower in favor ofthe Swing Line Lender evidencing Swing Line Loans made by such Lender,substantially in the form of Exhibit F. “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuantto Section 2.04(b) hereof, which, if in writing, shall be substantially in theform of Exhibit G. “Swing Line Sublimit” means an amount equal to the lesser of (a)$10,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimitis part of, and not in addition to, the Aggregate Revolving Commitments. “Synthetic Lease Obligation” means the monetary obligation of a Personunder (a) a so-called synthetic, off-balance sheet or tax retention lease, or(b) an agreement for the use or possession of property creating obligations thatdo not appear on the balance sheet of such Person but which, upon the insolvencyor bankruptcy of such Person, would be characterized as the indebtedness of suchPerson (without regard to accounting treatment). “Taxes” has the meaning set forth in Section 3.01(a) hereof. “Teachers” means Teachers Insurance and Annuity Association of America. “Temporary Cash Investment” means any of the following investments: (a)investments in open market investment grade commercial paper (rated at least A-1or P-1), maturing within one hundred eighty (180) days after acquisitionthereof, (b) investments in marketable obligations, maturing within one hundredeighty (180) days after acquisition thereof, issued or unconditionallyguaranteed by the United States of America or an instrumentality or agencythereof and entitled to the full faith and credit of the United States ofAmerica, (c) investments in money market funds that invest solely in the typesof investments permitted under clauses (a) and (b) hereof, (d) investments inrepurchase agreements of a domestic office of any of the Lenders which are fullysecured by securities described in clause (b) hereof, (e) short-term investmentsin investment grade auction preferred stock, (f) certificates of deposit andtime deposits (including Eurodollar deposits) maturing within one hundred eighty(180) days from the date of deposit thereof, with a domestic office of any ofthe Lenders or any bank which is a national bank organized under the laws of theUnited States of America and (i) having capital, surplus and undivided profitsof at least $100,000,000 or (ii) so long as all such deposits are federallyinsured, and (g) investments, certificates of deposit and time deposits(including Eurodollar deposits) of the types described above (but without thegrade classification required above) of or with a Lender. 22 “Termination Value” means, in respect of any one or more Interest RateProtection Agreements, after taking into account the effect of any legallyenforceable netting agreement relating to such Interest Rate ProtectionAgreements, (a) for any date on or after the date such Interest Rate ProtectionAgreements have been closed out and termination value(s) determined inaccordance therewith, such termination value(s), and (b) for any date prior tothe date referenced in clause (a) the amount(s) determined as the mark-to-marketvalue(s) for such Interest Rate Protection Agreements, as determined based uponone or more mid-market or other readily available quotations provided by anyrecognized dealer in such Interest Rate Protection Agreements (which may includeany Lender). “Treasury Stock Purchase” means any purchase, redemption, retirement,cancellation, defeasance or other acquisition (including any sinking fund orsimilar deposit for such purpose) by the Borrower or any Subsidiary of itsCapital Stock or any warrants, rights or options to acquire such Capital Stock. “Type” means with respect to a Revolving Loan, its character as a BaseRate Loan or a Eurodollar Rate Loan. “Unfunded Pension Liability” means the excess of a Pension Plan’s benefitliabilities under Section 4001(a)(16) of ERISA, over the current value of thatPension Plan’s assets, determined in accordance with the assumptions used forfunding the Pension Plan pursuant to Section 412 of the Code for the applicableplan year. “Unreimbursed Amount” has the meaning set forth in Section 2.03(c)(i)hereof. “Voting Percentage” means, as to any Lender, (a) at any time when theRevolving Commitments are in effect, such Lender’s Pro Rata Share and (b) at anytime after the termination of the Revolving Commitments, the percentage (carriedout to the ninth decimal place) which (i) the sum of (A) the Outstanding Amountof such Lender’s Revolving Loans, plus (B) such Lender’s Pro Rata Share of theOutstanding Amount of L/C Obligations, plus (C) such Lender’s Pro Rata Share ofthe Outstanding Amount of Swing Line Loans, then constitutes of (ii) theOutstanding Amount of all Loans and L/C Obligations; provided, however, that ifany Lender has failed to fund any portion of the Revolving Loans, participationsin L/C Obligations or participations in Swing Line Loans required to be fundedby it hereunder, such Lender’s Voting Percentage shall be deemed to be zero, andthe respective Pro Rata Shares and Voting Percentages of the other Lenders shallbe recomputed for purposes of this definition and the definition of “RequiredLenders” without regard to such failing Lender’s Revolving Commitment or theoutstanding amount of its Revolving Loans, L/C Advances and fundedparticipations in Swing Line Loans, as the case may be. “Voting Shares” of any Person means any class or classes of Capital Stockhaving ordinary voting power for the election of at least a majority of themembers of the Board of Directors (or other governing bodies) of such Person,other than Capital Stock having such power by reason of the happening of acontingency. “Wells Fargo” means Wells Fargo Bank, National Association. 23 1.02 OTHER INTERPRETIVE PROVISIONS. (a) The meanings of defined terms are equally applicable to the singularand plural forms of the defined terms. (b) (i) The words “herein” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof. (ii) Unless otherwise specified herein, Article, Section, Exhibit and Schedule references are to this Agreement. (iii) The term “including” is by way of example and not limitation. (iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced. (c) In the computation of periods of time from a specified date to a laterspecified date, the word “from” means “from and including;” the words “to” and”until” each mean “to but excluding;” and the word “through” means “to andincluding.” (d) Section headings herein and the other Loan Documents are included forconvenience of reference only and shall not affect the interpretation of thisAgreement or any other Loan Document. (e) Except as otherwise provided herein, for the calculation of allcovenants and other provisions contained herein, any amounts included in suchcalculation which are not Dollars shall be calculated according to its DollarEquivalent on the date of such calculation in accordance with GAAP. 1.03 ACCOUNTING TERMS. All accounting terms not specifically or completelydefined herein shall be construed in conformity with, and all financial datarequired to be submitted pursuant to this Agreement shall be prepared inconformity with, GAAP applied on a consistent basis, as in effect from time totime, applied in a manner consistent with that used in preparing the AuditedFinancial Statements, except as otherwise specifically prescribed herein. 1.04 ROUNDING. Any financial ratios required to be maintained by theBorrower pursuant to this Agreement shall be calculated by dividing theappropriate component by the other component, carrying the result to one placemore than the number of places by which such ratio is expressed herein androunding the result up or down to the nearest number (with a rounding-up ifthere is no nearest number). 1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expresslyprovided herein, (a) references to agreements (including the Loan Documents) andother contractual instruments shall be deemed to include all subsequentamendments, restatements, extensions, supplements and other modificationsthereto, but only to the extent that such amendments, restatements, extensions,supplements and other modifications are not prohibited by any Loan 24Document; and (b) references to any Law shall include all statutory andregulatory provisions consolidating, amending, replacing, supplementing orinterpreting such Law. ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS 2.01 REVOLVING LOANS. Subject to the terms and conditions set forthherein, each Lender severally agrees to make revolving loans (each such loan, a”Revolving Loan”) to the Borrower from time to time on any Business Day duringthe period from the Closing Date to the Maturity Date, in an aggregate amountnot to exceed at any time outstanding the amount of such Lender’s RevolvingCommitment; provided, however, that after giving effect to any RevolvingBorrowing, (i) the aggregate Outstanding Amount of all Revolving Loans, SwingLine Loans and L/C Obligations shall not exceed the Aggregate RevolvingCommitments and (ii) the aggregate Outstanding Amount of the Revolving Loans ofany Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of allL/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount ofall Swing Line Loans shall not exceed such Lender’s Revolving Commitment. Withinthe limits of each Lender’s Revolving Commitment, and subject to the other termsand conditions hereof, the Borrower may borrow under this Section 2.01, prepayunder Section 2.05 hereof, and reborrow under this Section 2.01. Revolving Loansmay be Base Rate Loans or Eurodollar Rate Loans, as further provided herein. 2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS. (a) Each Borrowing, each conversion of Loans from one Type to the other,and each continuation of Loans as the same Type shall be made upon theBorrower’s irrevocable notice to the Administrative Agent, which may be given bytelephone or electronic mail. Each such notice must be received by theAdministrative Agent not later than 12:00 noon, Dallas, Texas time (i) twoBusiness Days prior to the requested date of any Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or of any conversion of Eurodollar RateLoans to Base Rate Loans, and (ii) one Business Day prior to the requested dateof any Borrowing of Base Rate Loans. Each such telephonic notice or electronicmail must be confirmed promptly by delivery to the Administrative Agent of awritten Revolving Loan Notice appropriately completed and signed by aResponsible Officer of the Borrower. Each Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans shall be in a principal amount of$2,000,000 or a whole multiple of $100,000 in excess thereof. Each Borrowing ofor conversion to Base Rate Loans shall be in a principal amount of $500,000 or awhole multiple of $100,000 in excess thereof. Each Revolving Loan Notice(whether telephonic, electronic or written), shall specify (i) whether theBorrower is requesting a Borrowing, a conversion of Loans from one Type to theother, or a continuation of Loans as the same Type, (ii) the requested date ofthe Borrowing, conversion or continuation, as the case may be (which shall be aBusiness Day), (iii) the principal amount of Loans to be borrowed, converted orcontinued, (iv) the Type of Loans to be borrowed or to which existing Loans areto be converted or continued, and (v) if applicable, the duration of theInterest Period with respect thereto. If the Borrower fails to specify a Type ofLoan in a Revolving Loan Notice or if the Borrower fails to give a timely noticerequesting a conversion or continuation, then the applicable Revolving Loansshall be made or continued as, or converted to, Base Rate Loans. Any suchautomatic conversion to Base Rate Loans shall be effective as of the last day ofthe Interest Period then in effect with respect to the applicable EurodollarRate 25Loans. If the Borrower requests a Borrowing of, conversion to, or continuationof Eurodollar Rate Loans in any such Revolving Loan Notice, but fails to specifyan Interest Period, it will be deemed to have specified an Interest Period ofone month. (b) Following receipt of a Revolving Loan Notice, the Administrative Agentshall promptly notify each Lender of its Pro Rata Share of the applicable Loans,and if no timely notice of a conversion or continuation is provided by theBorrower, the Administrative Agent shall notify each Lender of the details ofany automatic conversion to Base Rate Loans described in the precedingsubsection. In the case of a Revolving Borrowing, each Lender shall make theamount of its Loan available to the Administrative Agent in immediatelyavailable funds at the Administrative Agent’s Office not later than 2:00 p.m.,Dallas, Texas time, on the Business Day specified in the applicable RevolvingLoan Notice. Upon satisfaction of the applicable conditions set forth in Section4.02 hereof (and, if such Borrowing is the initial Credit Extension, Section4.01 hereof), the Administrative Agent shall make all funds so receivedavailable to the Borrower in like funds as received by the Administrative Agenteither by (i) crediting the account of the Borrower on the books of theAdministrative Agent with the amount of such funds or (ii) wire transfer of suchfunds, in each case in accordance with instructions provided to theAdministrative Agent by the Borrower; provided, however, that if, on the date ofthe Revolving Borrowing there are Swing Line Loans and/or L/C Borrowingsoutstanding, then the proceeds of such Borrowing shall be applied, first, to thepayment in full of any such L/C Borrowings, second, to the payment in full ofany such Swing Line Loans, and third, to the Borrower as provided above. (c) Except as otherwise provided herein, a Eurodollar Rate Loan may becontinued or converted only on the last day of the Interest Period for suchEurodollar Rate Loan. During the existence of a Default or Event of Default, noLoans may be requested as, converted to or continued as Eurodollar Rate Loanswithout the consent of the Required Lenders, and during the existence of anEvent of Default, the Required Lenders may demand that any or all of the thenoutstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans. (d) The Administrative Agent shall promptly notify the Borrower and theLenders of the interest rate applicable to any Eurodollar Rate Loan upondetermination of such interest rate. The determination of the Eurodollar Rate bythe Administrative Agent shall be conclusive in the absence of manifest error. (e) After giving effect to all Borrowings, all conversions of Loans fromone Type to the other, and all continuations of Loans as the same Type, thereshall not be more than seven Interest Periods in effect with respect to allLoans. 2.03 LETTERS OF CREDIT. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the 10th day prior to the Maturity Date, to issue Letters of Credit for the account of the 26 Borrower or its Domestic Subsidiaries, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued (or deemed issued in respect of Existing Letters of Credit) for the account of the Borrower; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Outstanding Amount of all L/C Obligations, Swing Line Loans and all Revolving Loans would exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans would exceed such Lender’s Revolving Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. (ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it; (B) subject to Section 2.03(b)(iii) hereof, the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date; or (C) such Letter of Credit is to be denominated in a currency other than Dollars. (iii) No L/C Issuer shall be under any obligation to amend any Letter of 27 Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (b) Procedures for Issuance and Amendment of Letters of Credit; EvergreenLetters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer of such Letter of Credit (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such L/C Application must be received by each such L/C Issuer and the Administrative Agent not later than 12:00 noon, Dallas, Texas time, at least three Business Days (or such later date and time as such L/C Issuer may agree in a particular instance in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as such L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such L/C Issuer may require. (ii) Promptly after receipt of any Letter of Credit Application, each such L/C Issuer receiving such Letter of Credit Application will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or one of its Subsidiaries or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer of such Letter of Credit a participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit. (iii) If the Borrower so requests in any applicable Letter of Credit Application, any L/C Issuer may, in it sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Evergreen Letter of Credit”); provided that any such Evergreen Letter of Credit must permit such L/C Issuer to prevent any such 28 renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-renewal Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued, such date to be at least forty-five (45) days prior to the Letter of Credit Expiration Date of said Letter of Credit. Unless otherwise directed by such L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such renewal. Once an Evergreen Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) such L/C Issuer to permit the renewal of such Letter of Credit at any time to a date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such renewal if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof, or (B) it has received notice (which may be by telephone, electronic mail or in writing) on or before the Business Day immediately preceding the Non-renewal Notice Date from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 hereof is not then satisfied. (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer of such Letter of Credit will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements; Funding of Participations. (i) Upon any drawing under any Letter of Credit, the L/C Issuer of such Letter of Credit shall notify the Borrower and the Administrative Agent thereof. Promptly after any payment by a L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. Notice of a drawing shall be deemed to be a notice of the Honor Date. If the Borrower fails to so reimburse such L/C Issuer by 10:00 a.m., Dallas, Texas time, on the first Business Day after the Honor Date, the Administrative Agent (provided it has been notified of such a failure by the L/C Issuer) shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and such Lender’s Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to have been disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 hereof for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Commitments. Any notice given by a L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) Each Lender (including any Lender acting as a L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) hereof make funds available to the Administrative Agent for the account of the L/C Issuer issuing such Letter of Credit at the 29 Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 12:00 noon, Dallas, Texas time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) hereof, each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to such L/C Issuer. (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 hereof cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer issuing such Letter of Credit an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section 2.03(c)(ii) hereof shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03. (iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse a L/C Issuer for any amount drawn under any Letter of Credit issued by such L/C Issuer, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of such L/C Issuer. (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse each L/C Issuer for amounts drawn under Letters of Credit issued by such L/C Issuer, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against any L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrower to reimburse each L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit issued by such L/C Issuer, together with interest as provided herein. (vi) If any Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) hereof, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of any L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing to such L/C Issuer under this clause (vi) shall be conclusive absent manifest error. 30 (d) Repayment of Participations. (i) At any time after any L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) hereof, if the Administrative Agent receives for the account of such L/C Issuer any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), or any payment of interest thereon, the Administrative Agent will distribute to such Lender its Pro Rata Share thereof in the same funds as those received by the Administrative Agent. (ii) If any payment received by the Administrative Agent for the account of any L/C Issuer pursuant to Section 2.03(c)(i) hereof is required to be returned, each Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. (e) Obligations Absolute. The obligation of the Borrower to reimburse eachL/C Issuer for each drawing under each Letter of Credit issued by such L/CIssuer, and to repay each L/C Borrowing and each drawing under a Letter ofCredit issued by such L/C Issuer that is refinanced by a Borrowing of RevolvingLoans, shall be absolute, unconditional and irrevocable, and shall be paidstrictly in accordance with the terms of this Agreement under all circumstances,including the following: (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto; (ii) the existence of any claim, counterclaim, set-off, defense or other right that the Borrower or any other Loan Party may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; (iv) any payment by such L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any 31 beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any other Loan Party, other than the L/C Issuer’s gross negligence, bad faith or willful misconduct.The Borrower shall promptly examine a copy of each Letter of Credit and eachamendment thereto that is delivered to it and, in the event of any claim ofnoncompliance with the Borrower’s instructions or other irregularity, theBorrower will immediately notify the L/C Issuer of such Letter of Credit. TheBorrower shall be conclusively deemed to have waived any such claim against anyL/C Issuer and its correspondents unless such notice is given as aforesaid. (f) Role of a L/C Issuer. Each Lender and the Borrower agree that, inpaying any drawing under a Letter of Credit, the L/C Issuer issuing such Letterof Credit shall not have any responsibility to obtain any document (other thanany sight draft, certificates and documents expressly required by such Letter ofCredit) or to ascertain or inquire as to the validity or accuracy of any suchdocument or the authority of the Person executing or delivering any suchdocument. No Agent-Related Person nor any of the respective correspondents,participants or assignees of any L/C Issuer shall be liable to any Lender for(i) any action taken or omitted in connection herewith at the request or withthe approval of the Lenders or the Required Lenders, as applicable; (ii) anyaction taken or omitted in the absence of gross negligence, bad faith or willfulmisconduct; or (iii) the due execution, effectiveness, validity orenforceability of any document or instrument related to any Letter of Credit orLetter of Credit Application. The Borrower hereby assumes all risks of the actsor omissions of any beneficiary or transferee with respect to its use of anyLetter of Credit; provided, however, that this assumption is not intended to,and shall not, preclude the Borrower’s pursuing such rights and remedies as itmay have against the beneficiary or transferee at law or under any otheragreement. No Agent-Related Person, nor any of the respective correspondents,participants or assignees of any L/C Issuer, shall be liable or responsible forany of the matters described in clauses (i) through (v) of Section 2.03(e)hereof; provided, however, that anything in such clauses to the contrarynotwithstanding, the Borrower may have a claim against a L/C Issuer, and a L/CIssuer may be liable to the Borrower, to the extent, but only to the extent, ofany direct, as opposed to consequential or exemplary, damages suffered by theBorrower which the Borrower proves were caused by such L/C Issuer’s willfulmisconduct, bad faith or gross negligence or such L/C Issuer’s willful failureto pay under any Letter of Credit issued by such L/C Issuer after thepresentation to it by the beneficiary of a sight draft and certificate(s) anddocuments strictly complying with the terms and conditions of a Letter ofCredit. In furtherance and not in limitation of the foregoing, any L/C Issuermay accept documents that appear on their face to be in order, withoutresponsibility for further investigation, regardless of any notice orinformation to the contrary, and any L/C Issuer shall not be responsible for thevalidity or sufficiency of any instrument transferring or assigning orpurporting to transfer or assign a Letter of Credit issued by such L/C Issuer orthe rights or benefits thereunder or proceeds thereof, in whole or in part,which may prove to be invalid or ineffective for any reason, except in the caseof gross negligence, bad faith, or willful misconduct on the part of such L/CIssuer. 32 (g) Cash Collateral. Upon the occurrence of an Event of Default and demandby the Administrative Agent pursuant to Section 8.02(c) hereof (except in thecase of an Event of Default specified in Section 8.01(g) or (h) hereof, withoutdemand or taking of any other action by the Administrative Agent or a Lender)the Borrower shall immediately Cash Collateralize the then Outstanding Amount ofall L/C Obligations (in an amount equal to such Outstanding Amount). (h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by aL/C Issuer and the Borrower when a Letter of Credit is issued (including anysuch agreement applicable to an Existing Letter of Credit), (i) the rules of the”International Standby Practices 1998″ published by the Institute ofInternational Banking Law & Practice (or such later version thereof as may be ineffect at the time of issuance) shall apply to each Standby Letter of Credit,and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,as most recently published by the International Chamber of Commerce (the “ICC”)at the time of issuance (including the ICC decision published by the Commissionon Banking Technique and Practice on April 6, 1998 regarding the European singlecurrency (euro)) shall apply to each Commercial Letter of Credit. (i) Standby Letter of Credit Fees. The Borrower shall pay to theAdministrative Agent for the account of each Lender in accordance with its ProRata Share a Letter of Credit fee for each Standby Letter of Credit on theactual daily maximum amount available to be drawn under each Standby Letter ofCredit at a per annum percentage equal to the Applicable Rate for EurodollarRate Loans as in effect from time to time. Such fee for each Standby Letter ofCredit shall be due and payable on each Quarterly Date, commencing with thefirst Quarterly Date to occur after the issuance of such Standby Letter ofCredit, and ending on the Letter of Credit Expiration Date. If there is anychange in the Applicable Rate during any quarter, the actual daily amount ofeach Letter of Credit shall be computed and multiplied by the Applicable Rateseparately for each period during such quarter that such Applicable Rate was ineffect. In addition, the Borrower shall pay directly to each L/C Issuer for itsown account the customary fronting, issuance, presentation, amendment and otherprocessing fees, and other standard costs and charges, of such L/C Issuerrelating to standby letters of credit issued by it as from time to time ineffect. Such fees and charges are due and payable on demand and arenonrefundable. (j) Commercial Letter of Credit Fees. The Borrower shall pay directly tothe Administrative Agent for the account of each Lender in accordance with itsPro Rata Share a Letter of Credit fee for each Commercial Letter of Credit,equal to 1/5 of 1% per annum of the amount of such Commercial Letter of Credit(but in no event less than $150), due and payable on the issuance thereof. Inaddition, the Borrower shall pay directly to each L/C Issuer for its own accountthe customary fronting, presentation, amendment and other processing fees, andother standard costs and charges, of such L/C Issuer relating to commercialletters of credit issued by it as from time to time in effect. Such fees andcharges are due and payable on demand and are nonrefundable. (k) Conflict with Letter of Credit Application. In the event of anyconflict between the terms hereof and the terms of any Letter of CreditApplication, the terms hereof shall control. 33 2.04 SWING LINE LOANS. (a) The Swing Line. Subject to the terms and conditions set forth herein,the Swing Line Lender agrees to make loans (each such loan, a “Swing Line Loan”)to the Borrower from time to time on any Business Day during the period from theClosing Date to the Maturity Date in an aggregate amount not to exceed at anytime outstanding the amount of the Swing Line Sublimit, notwithstanding the factthat such Swing Line Loans, when aggregated with the Outstanding Amount ofRevolving Loans of the Swing Line Lender in its capacity as a Lender ofRevolving Loans, may exceed the amount of such Lender’s Revolving Commitment;provided, however, that after giving effect to any Swing Line Loan, (i) theaggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/CObligations shall not exceed the Aggregate Revolving Commitments and, (ii) theaggregate Outstanding Amount of the Revolving Loans of any Lender, plus suchLender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plussuch Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loansshall not exceed such Lender’s Revolving Commitment, and provided, that theSwing Line Lender shall not make any Swing Line Loan to refinance an outstandingSwing Line Loan. Within the foregoing limits, and subject to the other terms andconditions hereof, the Borrower may borrow under this Section 2.04, prepay underSection 2.05 hereof, and reborrow under this Section 2.04. Each Swing Line Loanshall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan,each Lender shall be deemed to, and hereby irrevocably and unconditionallyagrees to, purchase from the Swing Line Lender a risk participation in suchSwing Line Loan in an amount equal to the product of such Lender’s Pro RataShare times the amount of such Swing Line Loan. (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon theBorrower’s irrevocable notice to the Swing Line Lender and the AdministrativeAgent, which may be given by telephone or electronic mail. Each such notice mustbe received by the Swing Line Lender and the Administrative Agent not later than2:00 p.m., Dallas, Texas time, on the requested borrowing date, and shallspecify (i) the amount to be borrowed, which shall be a minimum of $100,000, and(ii) the requested borrowing date, which shall be a Business Day. Each suchtelephonic or electronic notice must be confirmed promptly by delivery to theSwing Line Lender and the Administrative Agent of a written Swing Line LoanNotice, appropriately completed and signed by a Responsible Officer of theBorrower. Promptly after receipt by the Swing Line Lender of any telephonic orelectronically mailed Swing Line Loan Notice, the Swing Line Lender will confirmwith the Administrative Agent (by telephone or in writing) that theAdministrative Agent has also received such Swing Line Loan Notice and, if not,the Swing Line Lender will notify the Administrative Agent (by telephone or inwriting) of the contents thereof. Unless the Swing Line Lender has receivednotice (by telephone or in writing) from the Administrative Agent (including atthe request of any Lender) prior to 3:00 p.m., Dallas, Texas time, on the dateof the proposed Swing Line Borrowing (A) directing the Swing Line Lender not tomake such Swing Line Loan as a result of the limitations set forth in the firstproviso to the first sentence of Section 2.04(a) hereof, or (B) that one or moreof the applicable conditions specified in Article IV is not then satisfied,then, subject to the terms and conditions hereof, the Swing Line Lender will,not later than 4:00 p.m., Dallas, Texas time, on the borrowing date specified insuch Swing Line Loan Notice, make the amount of its Swing Line Loan available tothe Borrower at its office by crediting the account of the Borrower on the booksof the Swing Line Lender in immediately available funds; provided, however, thatthis Section 2.04(b) shall 34not apply if Swing Line Borrowings are made automatically pursuant to a creditsweep in accordance with Swing Line Lender’s treasury management system, ifavailable. (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably requests the Swing Line Lender to act on its behalf in connection with Swing Line Loans), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in accordance with the requirements of Section 2.02 hereof, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in Section 4.02 hereof. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 12:00 noon, Dallas, Texas time, on the day specified in such Loan notice, whereupon, subject to Section 2.04(c)(ii) hereof, each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Revolving Borrowing cannot be requested in accordance with Section 2.04(c)(i) hereof or any Swing Line Loan cannot be refinanced by such a Revolving Borrowing, the Revolving Loan Notice submitted by the Swing Line Lender shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) hereof shall be deemed payment in respect of such participation. (iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) hereof, the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. (iv) Each Lender’s obligation to make Revolving Loans or to purchase and fund participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have 35 against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. Any such purchase of participations shall not relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein. (d) Repayment of Participations. (i) At any time after any Lender has purchased and funded a participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participation was outstanding and funded) in the same funds as those received by the Swing Line Lender. (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender, each Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shallbe responsible for invoicing the Borrower for interest on the Swing Line Loans.Until each Lender funds its Base Rate Loan or participation pursuant to thisSection 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan,interest in respect of such Pro Rata Share shall be solely for the account ofthe Swing Line Lender. (f) Payments Directly to Swing Line Lender. The Borrower shall make allpayments of principal and interest in respect of the Swing Line Loans directlyto the Swing Line Lender. 2.05 PREPAYMENTS. (a) The Borrower may, upon notice to the Administrative Agent, at any timeor from time to time voluntarily prepay Revolving Loans in whole or in partwithout premium or penalty; provided that (i) such notice must be received bythe Administrative Agent not later than 12:00 noon, Dallas, Texas time, (A) twoBusiness Days prior to any date of prepayment of Eurodollar Rate Loans, and (B)one Business Day prior to the date of prepayment of Base Rate Loans; (ii) anyprepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000or a whole multiple of $500,000 in excess thereof; and (iii) any prepayment ofBase Rate Loans shall be in a principal amount of $500,000 or a whole multipleof $100,000 in excess thereof. Each such notice shall specify the date andamount of such prepayment and the Type(s) of Loans to be prepaid. TheAdministrative Agent will promptly notify each Lender of its receipt of eachsuch notice, and of such Lender’s Pro Rata Share of such prepayment. If suchnotice is given by the Borrower, the Borrower shall make such prepayment and thepayment 36amount specified in such notice shall be due and payable on the date specifiedtherein. Any voluntary or mandatory prepayment of a Eurodollar Rate Loan shallbe accompanied by all accrued interest thereon, together with any additionalamounts required pursuant to Section 3.05 hereof. Each such prepayment shall beapplied to the Revolving Loans of the Lenders in accordance with theirrespective Pro Rata Shares. Any mandatory prepayment required pursuant toSection 2.05(c) or (d) hereof shall not be subject to any notice or minimumpayment provisions of this Section 2.05(a). (b) The Borrower may, upon notice to the Swing Line Lender (with a copy tothe Administrative Agent), at any time or from time to time, voluntarily prepaySwing Line Loans in whole or in part without premium or penalty; provided that(i) such notice must be received by the Swing Line Lender and the AdministrativeAgent not later than 2:00 p.m., Dallas, Texas time, on the date of theprepayment, and (ii) any such prepayment shall be in a minimum principal amountof $100,000. Each such notice shall specify the date and amount of suchprepayment. If such notice is given by the Borrower, the Borrower shall makesuch prepayment and the payment amount specified in such notice shall be due andpayable on the date specified therein. (c) If for any reason the Outstanding Amount of all Revolving Loans, SwingLine Loans and L/C Obligations at any time exceeds the Aggregate RevolvingCommitments then in effect, the Borrower shall immediately prepay RevolvingLoans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in anaggregate amount equal to such excess. (d) Within 10 Business Days of the receipt of Net Proceeds from theDisposition by the Borrower or any of its Subsidiaries of any Assets other thanany Dispositions permitted under clauses (a) through (e) of Section 7.05 hereof,and clause (f) of Section 7.05 hereof to the extent that a prepayment under thisSection 2.05(d) is not required, the Borrower shall prepay Revolving Loans in anaggregate principal amount equal to 50% of such Net Proceeds. Each suchmandatory prepayment shall be made and applied as provided in Section 2.06(c)hereof. 2.06 REDUCTION OR TERMINATION OF REVOLVING COMMITMENTS. (a) The Borrower may, upon notice to the Administrative Agent, terminatethe Aggregate Revolving Commitments, or permanently reduce the AggregateRevolving Commitments to an amount not less than the then Outstanding Amount ofall Revolving Loans, Swing Line Loans and L/C Obligations; provided that (i) anysuch notice shall be received by the Administrative Agent not later than 11:00a.m., five Business Days prior to the date of termination or reduction, (ii) anysuch partial reduction shall be in an aggregate amount of $5,000,000 or anywhole multiple of $1,000,000 in excess thereof, and (iii) if, after givingeffect to any reduction of the Aggregate Revolving Commitments, the Letter ofCredit Sublimit or the Swing Line Sublimit exceeds the amount of the AggregateRevolving Commitments, such Sublimit shall be automatically reduced by theamount of such excess. The Administrative Agent shall promptly notify theLenders of any such notice of reduction or termination of the AggregateRevolving Commitments. 37 (b) The Aggregate Revolving Commitments shall also be permanently reducedby the amount of Revolving Loans required to be prepaid (whether or not anyRevolving Loans are then outstanding) pursuant to Section 2.05(d) hereof. (c) Any reduction of the Aggregate Revolving Commitments shall be appliedto the Revolving Commitment of each Lender according to its Pro Rata Share. Allfees accrued until the effective date of any termination of the AggregateRevolving Commitments shall be paid on the effective date of such termination.Once reduced in accordance with this Section, the Aggregate RevolvingCommitments may not be increased except pursuant to Section 2.14. 2.07 REPAYMENT OF LOANS. (a) The Borrower shall repay to the Lenders on the Maturity Date theaggregate principal amount of Revolving Loans outstanding on such date. (b) The Borrower shall repay each Swing Line Loan on the earlier to occurof (i) the date ten days after such Swing Line Loan is made and (ii) theMaturity Date. 2.08 INTEREST. (a) Subject to the provisions of subsection (b) below, (i) each EurodollarRate Loan shall bear interest on the outstanding principal amount thereof foreach Interest Period at a rate per annum equal to the lesser of (y) the HighestLawful Rate or (z) the Eurodollar Rate for such Interest Period plus theApplicable Rate for Eurodollar Rate Loans; and (ii) each Base Rate Loan(including each Swing Line Loan) shall bear interest on the outstandingprincipal amount thereof from the applicable borrowing date at a rate per annumequal to the lesser of (y) the Highest Lawful Rate or (z) the Base Rate plus theApplicable Rate for Base Rate Loans. (b) Upon the request of the Required Lenders, while any Event of Defaultexists or after acceleration, the Borrower shall pay interest on the principalamount of all outstanding Obligations at a fluctuating interest rate per annumat all times equal to the lesser of (y) the Highest Lawful Rate or (z) theDefault Rate, to the fullest extent permitted by Applicable Law. Accrued andunpaid interest on past due amounts (including interest on past due interest)shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on eachInterest Payment Date applicable thereto and at such other times as may bespecified herein. Interest hereunder shall be due and payable in accordance withthe terms hereof before and after judgment, and before and after thecommencement of any proceeding under any Debtor Relief Law. 2.09 FEES. In addition to certain fees described in subsections (i) and(j) of Section 2.03: (a) Commitment Fee. The Borrower shall pay to the Administrative Agent forthe account of each Lender in accordance with its Pro Rata Share, a per annumCommitment Fee (herein so called) equal to the Applicable Rate for CommitmentFees times the actual daily amount by which the Aggregate Revolving Commitmentsexceed the sum of (i) the Outstanding 38Amount of Revolving Loans, (ii) the Outstanding Amount of Swing Line Loans and(iii) the Outstanding Amount of L/C Obligations. The Commitment Fee shall accrueat all times from the Closing Date until the Maturity Date and shall be due andpayable quarterly in arrears on each Quarterly Date, commencing with the firstQuarterly Date to occur after the Closing Date, and on the Maturity Date. TheCommitment Fee shall be calculated quarterly in arrears and shall accrue at alltimes, including at any time during which one or more of the conditions inArticle IV is not met. (b) Agent Fee Letter. The Borrower shall pay to (i) the AdministrativeAgent for the Administrative Agent’s own account, the fees in the amounts and atthe times specified in the letter agreement, dated December 23, 2004 between theBorrower and Wells Fargo, (ii) JPMorgan Chase Bank, N.A., for its own account,the fees in the amounts and at the times specified in the letter agreement,dated December 23, 2004, between the Borrower and JPMorgan Chase Bank, N.A.(collectively, the “Agent Fee Letters”). Such fees shall be fully earned whenpaid and shall be nonrefundable for any reason whatsoever. 2.10 COMPUTATION OF INTEREST AND FEES. Subject to Section 10.10 hereof,computation of interest on Eurodollar Rate Loans shall be calculated on thebasis of a year of 360 days and the actual number of days elapsed. Computationof all other types of interest and all fees shall be calculated on the basis ofa year of 365 or 366 days, as the case may be, and the actual number of dayselapsed. Interest shall accrue on each Loan for the day on which the Loan ismade, and shall not accrue on a Loan, or any portion thereof, for the day onwhich the Loan or such portion is paid, provided that any Loan that is repaid onthe same day on which it is made shall bear interest for one day. 2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender shall be evidenced by one ormore accounts or records maintained by such Lender and by the AdministrativeAgent in the ordinary course of business. The accounts or records maintained bythe Administrative Agent and each Lender shall be conclusive absent manifesterror of the amount of the Credit Extensions made by the Lenders to the Borrowerand the interest and payments thereon. Any failure so to record or any error indoing so shall not, however, limit or otherwise affect the obligation of theBorrower hereunder to pay any amount owing with respect to the Loans and L/CObligations. In the event of any conflict between the accounts and recordsmaintained by any Lender and the accounts and records of the AdministrativeAgent in respect of such matters, the accounts and records of such Lender shallcontrol. Upon the request of any Lender made through the Administrative Agent,such Lender’s Loans may be evidenced by a Revolving Loan Note and/or a SwingLine Note, as applicable, in addition to such accounts or records. Each Lendermay attach schedules to its Note(s) and endorse thereon the date, Type (ifapplicable), amount and maturity of the applicable Loans and payments withrespect thereto. (b) In addition to the accounts and records referred to in subsection (a),each Lender and the Administrative Agent shall maintain in accordance with itsusual practice accounts or records evidencing the purchases and sales by suchLender of participations in Letters of Credit and Swing Line Loans. In the eventof any conflict between the accounts and records maintained 39by the Administrative Agent and the accounts and records of any Lender inrespect of such matters, the accounts and records of the Administrative Agentshall control. 2.12 PAYMENTS GENERALLY. (a) All payments to be made by the Borrower shall be made withoutcondition or deduction for any counterclaim, defense, recoupment or setoff.Except as otherwise expressly provided herein, all payments by the Borrowerhereunder shall be made to the Administrative Agent, for the account of therespective Lenders to which such payment is owed, at the Administrative Agent’sOffice in Dollars and in immediately available funds not later than 2:00 p.m.,Dallas, Texas time, on the date specified herein. The Administrative Agent willpromptly, and in any event within the same business day, distribute to eachLender its Pro Rata Share (or other applicable share as provided herein) of suchpayment in like funds as received by wire transfer to such Lender’s LendingOffice. All payments received by the Administrative Agent after 2:00 p.m.,Dallas, Texas time, shall be deemed received on the next succeeding Business Dayand any applicable interest or fee shall continue to accrue. The Borrowerauthorizes the Administrative Agent to charge the account of the Borrowermaintained with Wells Fargo (as of the Closing Date, such account is number#4761053503) for each payment of principal, interest and fees as it becomes duehereunder. (b) Subject to the definition of “Interest Period,” if any payment to bemade by the Borrower shall come due on a day other than a Business Day, paymentshall be made on the next following Business Day, and such extension of timeshall be reflected in computing interest or fees, as the case may be. (c) If, at any time after an Event of Default (but prior to (A) theexercise of remedies provided for in Section 8.02 or (B) the Loans becomingautomatically due and payable and the L/C Obligations becoming automaticallyrequired to be cash collateralized as set forth in the proviso to Section 8.02),insufficient funds under this Agreement are received by and available to theAdministrative Agent to pay fully all amounts of principal, L/C Borrowings,interest and fees then due hereunder, such funds shall be applied (i) first,toward costs and expenses (including Attorney Costs and amounts payable underArticle III) incurred by the Administrative Agent and each Lender in respect ofthis Agreement, (ii) second, toward repayment of interest and fees then duehereunder, ratably among the parties entitled thereto in accordance with theamounts of interest and fees then due to such parties, and (iii) third, towardrepayment of principal and L/C Borrowings then due hereunder, ratably among theparties entitled thereto in accordance with the amounts of principal and L/CBorrowings then due to such parties. (d) Unless the Borrower or any Lender has notified the AdministrativeAgent prior to the date any payment is required to be made by it to theAdministrative Agent hereunder, that the Borrower or such Lender, as the casemay be, will not make such payment, the Administrative Agent may assume that theBorrower or such Lender, as the case may be, has timely made such payment andmay (but shall not be so required to), in reliance thereon, make available acorresponding amount to the Person entitled thereto. If and to the extent thatsuch payment was not in fact made to the Administrative Agent in immediatelyavailable funds, then: 40 (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds, at the Federal Funds Rate from time to time in effect; and (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefore, the Administrative Agent may make a demand therefore upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.A notice of the Administrative Agent to any Lender with respect to any amountowing under this subsection (d) shall be conclusive, absent manifest error. (e) If any Lender makes available to the Administrative Agent funds forany Loan to be made by such Lender as provided in the foregoing provisions ofthis Article II, and the conditions to the applicable Credit Extension set forthin Article IV are not satisfied or waived in accordance with the terms hereof,the Administrative Agent shall return such funds (in like funds as received fromsuch Lender) to such Lender, without interest. (f) The obligations of the Lenders hereunder to make Loans and to fundparticipations in Letters of Credit and Swing Line Loans are several and notjoint. The failure of any Lender to make any Loan or to fund any suchparticipation on any date required hereunder shall not relieve any other Lenderof its corresponding obligation to do so on such date, and no Lender shall beresponsible for the failure of any other Lender to so make its Revolving Loan orpurchase its participation. (g) Nothing herein shall be deemed to obligate any Lender to obtain thefunds for any Loan in any particular place or manner or to constitute arepresentation by any Lender that it has obtained or will obtain the funds forany Loan in any particular place or manner. 2.13 SHARING OF PAYMENTS. If, other than as expressly provided elsewhereherein, any Lender shall obtain on account of any Loans made by it, or theparticipations in L/C Obligations 41or in Swing Line Loans held by it, any payment (whether voluntary, involuntary,through the exercise of any right of set-off, or otherwise) in excess of itsratable share (or other share contemplated hereunder) thereof, such Lender shallimmediately (a) notify the Administrative Agent of such fact, and (b) purchasefrom the other Lenders such participations in the Loans made by them and/or suchsubparticipations in the participations in L/C Obligations or Swing Line Loansheld by them, as the case may be, as shall be necessary to cause such purchasingLender to share the excess payment in respect of such Loan or suchparticipations, as the case may be, pro rata with each of them; provided,however, that if all or any portion of such excess payment is thereafterrecovered from the purchasing Lender, such purchase shall to that extent berescinded and each other Lender shall repay to the purchasing Lender thepurchase price paid therefore, together with an amount equal to such payingLender’s ratable share (according to the proportion of (i) the amount of suchpaying Lender’s required repayment to (ii) the total amount so recovered fromthe purchasing Lender) of any interest or other amount paid or payable by thepurchasing Lender in respect of the total amount so recovered. The Borroweragrees that any Lender so purchasing a participation from another Lender may, tothe fullest extent permitted by law, exercise all its rights of payment(including the right of set-off, but subject to Section 10.09 hereof withrespect to such participation) as fully as if such Lender were the directcreditor of the Borrower in the amount of such participation. The AdministrativeAgent will keep records (which shall be conclusive and binding in the absence ofmanifest error) of participations purchased under this Section and will in eachcase notify the Lenders following any such purchases or repayments. Each Lenderthat purchases a participation pursuant to this Section shall from and aftersuch purchase have the right to give all notices, requests, demands, directionsand other communications under this Agreement with respect to the portion of theObligations purchased to the same extent as though the purchasing Lender werethe original owner of the Obligations purchased. ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 TAXES. (a) Any and all payments by the Borrower to or for the account of theAdministrative Agent or any Lender under any Loan Document shall be made freeand clear of and without deduction for any and all present or future taxes,duties, levies, imposts, deductions, assessments, fees, withholdings or similarcharges, and all liabilities with respect thereto, excluding, in the case of theAdministrative Agent and each Lender, taxes imposed on or measured by its netincome, and franchise taxes imposed on it by the jurisdiction (or any politicalsubdivision thereof) under the Laws of which the Administrative Agent or suchLender, as the case may be, is organized or maintains a lending office or anyother jurisdictions in which the Administrative Agent or such Lender transactsbusiness (all such non-excluded taxes, duties, levies, imposts, deductions,assessments, fees, withholdings or similar charges, and liabilities beinghereinafter referred to as “Taxes”). If the Borrower shall be required by anyLaws to deduct any Taxes from or in respect of any sum payable under any LoanDocument to the Administrative Agent or any Lender, (i) the sum payable shall beincreased as necessary so that after making all required deductions (includingdeductions applicable to additional sums payable under this Section), theAdministrative Agent and such Lender receives an amount equal to the sum itwould have received had no such deductions been made, (ii) the Borrower shallmake such deductions, 42(iii) the Borrower shall pay the full amount deducted to the relevant taxationauthority or other authority in accordance with applicable Laws, and (iv) within30 days after the date of such payment, the Borrower shall furnish to theAdministrative Agent (which shall forward the same to such Lender) the originalor a certified copy of a receipt evidencing payment thereof. (b) In addition, the Borrower agrees to pay any and all present or futurestamp, court or documentary taxes and any other excise or property taxes orcharges or similar levies which arise from any payment made under any LoanDocument or from the execution, delivery, performance, enforcement orregistration of, or otherwise with respect to, any Loan Document (hereinafterreferred to as “Other Taxes”). (c) If the Borrower shall be required to deduct or pay any Taxes or OtherTaxes from or in respect of any sum payable under any Loan Document to theAdministrative Agent or any Lender, the Borrower shall also pay to theAdministrative Agent (for the account of such Lender) or to such Lender, at thetime interest on the Obligations is paid, such additional amount that suchLender specifies as reasonably necessary to preserve the after-tax yield (afterfactoring in all taxes, including taxes imposed on or measured by net income)such Lender would have received if such Taxes or Other Taxes had not beenimposed, with the computation of such additional amount to be set forth inwriting, certified by such Lender, and delivered to the Borrower. (d) The Borrower agrees to indemnify the Administrative Agent and eachLender for (i) the full amount of Taxes and Other Taxes (including any Taxes orOther Taxes imposed or asserted by any jurisdiction on amounts payable underthis Section) paid by the Administrative Agent and such Lender, (ii) amountspayable under Section 3.01(c) hereof and (iii) any liability (includingpenalties, interest and expenses) arising therefrom or with respect thereto, ineach case whether or not such Taxes or Other Taxes were correctly or legallyimposed or asserted by the relevant Governmental Authority. Payment under thissubsection (d) shall be made within 30 days after the date the Lender or theAdministrative Agent makes a demand therefore. (e) Each Lender (and the Administrative Agent with respect to payments tothe Administrative Agent for its own account) agrees that (i) it will take allreasonable actions by all usual means to maintain all exemptions, if any,available to it from United States withholding taxes (whether available bytreaty, existing administrative waiver, or by virtue of the location of anyLender’s Lending Office) and (ii) otherwise cooperate with the Borrower tominimize amounts payable by the Borrower under this Section 3.01; provided,however, the Lenders and the Administrative Agent shall not be obligated byreason of this Section 3.01(e) to contest the payment of any Taxes or OtherTaxes or to disclose any information regarding its tax affairs or taxcomputation or reorder its tax or other affairs or tax or other planning.Subject to the foregoing, to the extent the Borrower pays sums pursuant to thisSection 3.01 and the Lender or the Administrative Agent receives a refund of anyor all of such sums, such refund shall be applied to reduce any amounts then dueand owing under this Agreement or, to the extent that no amounts are due andowing under this Agreement at the time such refunds are received, the partyreceiving such refund shall promptly pay over all such refunded sums to theBorrower, provided no Default or Event of Default is in existence at such time. 43 3.02 ILLEGALITY. If any Lender determines that any Law has made itunlawful, or that any Governmental Authority has asserted that it is unlawful,for any Lender or its applicable Lending Office to make, maintain or fundEurodollar Rate Loans, or materially restricts the authority of such Lender topurchase or sell, or to take deposits of, Dollars in the applicable offshoreDollar market, or to determine or charge interest rates based upon theEurodollar Rate, then, on notice thereof by such Lender to the Borrower throughthe Administrative Agent, any obligation of such Lender to make or continueEurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loansshall be suspended until such Lender notifies the Administrative Agent and theBorrower that the circumstances giving rise to such determination no longerexist. Upon receipt of such notice, with the computation of such additionalamount to be set forth in writing, certified by such Lender, and delivered tothe Borrower, the Borrower shall, upon demand from such Lender (with a copy tothe Administrative Agent), prepay or, if applicable, convert all Eurodollar RateLoans of such Lender to Base Rate Loans, either on the last day of the InterestPeriod thereof, if such Lender may lawfully continue to maintain such EurodollarRate Loans to such day, or immediately, if such Lender may not lawfully continueto maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,the Borrower shall also pay interest then accrued on the amount so prepaid orconverted. Each Lender agrees to designate a different Lending Office if suchdesignation will avoid the need for such notice and will not, in the good faithjudgment of such Lender, otherwise be materially disadvantageous to such Lender. 3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent determinesin connection with any request for a Eurodollar Rate Loan or a conversion to orcontinuation thereof that (a) Dollar deposits are not being offered to banks inthe applicable offshore Dollar market for the applicable amount and InterestPeriod of such Eurodollar Rate Loan, (b) adequate and reasonable means do notexist for determining the Eurodollar Rate for such Eurodollar Rate Loan, or (c)the Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairlyreflect the cost to the Lenders of funding such Eurodollar Rate Loan, theAdministrative Agent will promptly notify the Borrower and all Lenders.Thereafter, the obligation of the Lenders to make or maintain Eurodollar RateLoans shall be suspended until the Administrative Agent revokes such notice.Upon receipt of such notice, the Borrower may revoke any pending request for aRevolving Borrowing, conversion or continuation of Eurodollar Rate Loans or,failing that, will be deemed to have converted such request into a request for aRevolving Borrowing of Base Rate Loans in the amount specified therein, providedthat the Borrower shall not be liable for any Consequential Loss in connectionwith any such deemed conversion. 3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ONEURODOLLAR RATE LOANS. (a) If any Lender determines that as a result of the introduction of orany change in or in the interpretation of any Law, or such Lender’s compliancetherewith, there shall be any increase in the cost to such Lender of agreeing tomake or making, funding or maintaining Eurodollar Rate Loans or (as the case maybe) issuing or participating in Letters of Credit, or a reduction in the amountreceived or receivable by such Lender in connection with any of the foregoing(excluding for purposes of this subsection (a) any such increased costs orreduction in amount resulting from (i) Taxes or Other Taxes (as to which Section3.01 hereof shall govern), (ii) changes in the basis of taxation of overall netincome or overall gross income by the United 44States or any foreign jurisdiction or any political subdivision of eitherthereof under the Laws of which such Lender is organized or has its LendingOffice, and (iii) reserve requirements contemplated by Section 3.04(c) hereof),then from time to time upon demand of such Lender (with a copy of such demand tothe Administrative Agent), the Borrower shall pay to such Lender such additionalamounts as will compensate such Lender for such increased cost or reduction,with the computation of such additional amount to be set forth in writing,certified by such Lender, and delivered to the Borrower. The affected Lenderwill as soon as practicable notify the Borrower of any event of which it hasknowledge, occurring after the date hereof, which will entitle such Lender tocompensation pursuant to this Section and designate a different Lending Officeif such designation will avoid the need for, or reduce the amount of, suchcompensation and will not, in the good faith judgment of such Lender, bematerially disadvantageous to such Lender. (b) If any Lender determines that the introduction of any Law regardingcapital adequacy or any change therein or in the interpretation thereof, orcompliance by such Lender (or its Lending Office) therewith, has the effect ofreducing the rate of return on the capital of such Lender or any corporationcontrolling such Lender with respect to this Agreement as a consequence of suchLender’s obligations hereunder (taking into consideration its policies withrespect to capital adequacy and such Lender’s desired return on capital), thenfrom time to time upon demand of such Lender, with the computation of suchadditional amount to be set forth in writing, certified by such Lender, anddelivered to the Borrower (with a copy of such demand to the AdministrativeAgent), the Borrower shall pay to such Lender such additional amounts as willcompensate such Lender for such reduction. (c) The Borrower shall pay to each Lender, as long as such Lender shall berequired under regulations of the Board to maintain reserves with respect toliabilities or assets consisting of or including Eurocurrency funds or deposits(currently known as “Eurocurrency liabilities”), additional costs on the unpaidprincipal amount of each Eurodollar Rate Loan equal to the actual costs of suchreserves allocated to such Loan by such Lender (as determined by such Lender ingood faith, which determination shall be controlling, in absence of error),which shall be due and payable on each date on which interest is payable on suchLoan, provided the Borrower shall have received at least 15 days’ prior notice(with a copy to the Administrative Agent) of such additional interest from suchLender, with the computation of such additional amount to be set forth inwriting, certified by such Lender, and delivered to the Borrower. If a Lenderfails to give notice 15 days prior to the relevant Interest Payment Date, suchadditional interest shall be due and payable 15 days from receipt of suchnotice. (d) Notwithstanding anything to the contrary in this Section 3.04, theBorrower shall not be liable with respect to any amounts that were incurred oraccrued more than (90) days prior to the date of the sending of the notice tothe Borrower under subsection (a), (b) or (c) of this Section 3.04, as the casemay be. 3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to theAdministrative Agent) from time to time, the Borrower shall promptly compensatesuch Lender for the Consequential Loss incurred by it as a result of: 45 (a) any continuation, conversion, payment or prepayment of any EurodollarRate Loan on a day other than the last day of the Interest Period for suchEurodollar Rate Loan (whether voluntary, mandatory, automatic, by reason ofacceleration, or otherwise); (b) any failure by the Borrower (for a reason other than the failure ofsuch Lender to make a Loan) to prepay, borrow, continue or convert anyEurodollar Rate Loan on the date or in the amount notified by the Borrower; or (c) any assignment of a Eurodollar Rate Loan on a day other than the lastday of the Interest Period therefore as a result of a request by the Borrowerpursuant to Section 10.16 hereof.For purposes of calculating amounts payable by the Borrower to the Lenders underthis Section 3.05, each Lender shall be deemed to have funded each EurodollarRate Loan made by it at the Eurodollar Rate for such Loan by a matching depositor other borrowing in the applicable offshore Dollar interbank market for acomparable amount and for a comparable period, whether or not such EurodollarRate Loan was in fact so funded. 3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. (a) A certificate of the Administrative Agent or any Lender claimingcompensation under this Article III and setting forth the additional amount oramounts to be paid to it hereunder and the detailed computation of such amountor amounts shall be conclusive in the absence of manifest error. In determiningsuch amount, the Administrative Agent or such Lender may use any reasonableaveraging and attribution methods. (b) Upon any Lender’s making a claim for compensation under Section 3.01,3.02 or 3.04 hereof, the Borrower may remove or replace such Lender inaccordance with Section 10.16 hereof. 3.07 SURVIVAL. All of the Borrower’s obligations under this Article IIIshall survive termination of the Revolving Commitments and payment in full ofall the other Obligations. ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each Lenderto make its initial Credit Extension hereunder is subject to satisfaction of thefollowing conditions precedent: (a) Unless waived by all the Lenders (or by the Administrative Agent withrespect to immaterial matters or items specified in clause (v) or (vi) belowwith respect to which the Borrower has given assurances satisfactory to theAdministrative Agent that such items shall be delivered promptly following theClosing Date), the Administrative Agent’s receipt of the following, each ofwhich shall be originals or facsimiles (followed promptly by originals) unlessotherwise specified, each properly executed by a Responsible Officer of thesigning Loan Party, each dated the Closing Date (or, in the case of certificatesof governmental officials, a recent date 46before the Closing Date) and each in form and substance reasonably satisfactoryto the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) Revolving Loan Notes executed by the Borrower in favor of each Lender, each in a principal amount equal to such Lender’s Revolving Commitment; (iii) a Swing Line Note executed by the Borrower in favor of the Swing Line Lender in the principal amount of the Swing Line Sublimit; (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (v) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party’s Organization Documents, certificates of good standing and/or qualification to engage in business and tax clearance certificates; (vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) hereof have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has or could be reasonably expected to have a Material Adverse Effect; (vii) opinions of counsel to each Loan Party in form and substance reasonably satisfactory to the Administrative Agent; (viii) evidence that any Indebtedness not otherwise permitted hereunder has been or concurrently with the Closing Date is being terminated and all obligations thereunder have been or concurrently with the Closing Date are being paid in full; (ix) the Officer’s Certificate executed by the chief executive officer of the Borrower; and (x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, each L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require. (b) All fees under the Agent Fee Letters required to be paid on or beforethe Closing Date shall have been paid. 47 (c) Unless waived by the Administrative Agent, the Borrower shall have paidall Attorney Costs of the Administrative Agent to the extent invoiced at leasttwo days prior to the Closing Date, plus such additional amounts of AttorneyCosts as shall constitute its reasonable estimate of Attorney Costs incurred orto be incurred by it through the closing proceedings (provided that suchestimate shall not thereafter preclude a final settling of accounts between theBorrower and the Administrative Agent). 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS AND CONVERSIONS ANDCONTINUATIONS. The obligation of each Lender to honor any Request for CreditExtension is subject to the following conditions precedent: (a) The representations and warranties of the Borrower contained inArticle V, or which are contained in any document furnished at any time under orin connection herewith, shall be true and correct on and as of the date of suchCredit Extension, except to the extent that such representations and warrantiesspecifically refer to an earlier date, in which case they shall be true andcorrect as of such earlier date, and except for purposes of this Section 4.02,the representations and warranties contained in subsections (a) and (b) ofSection 5.05 hereof shall be deemed to refer to the most recent financialstatements furnished pursuant to clauses (a) and (b), respectively, of Section6.01 hereof. (b) No Default or Event of Default shall exist, or would result from suchproposed Credit Extension. (c) After giving effect to any Request for Credit Extension, the aggregateamount of outstanding Indebtedness of the Borrower and its Subsidiaries ispermitted under the Note Agreements. (d) The Administrative Agent and, if applicable, a L/C Issuer or the SwingLine Lender shall have received a Request for Credit Extension in accordancewith the requirements hereof.Each Request for Credit Extension submitted by the Borrower shall be deemed tobe a representation and warranty that the conditions specified in Sections4.02(a) and (b) hereof have been satisfied on and as of the date of theapplicable Credit Extension. ARTICLE V. REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Administrative Agent and theLenders that: 5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each LoanParty (a) is a corporation, partnership or limited liability company dulyorganized or formed, validly existing and in good standing under the Laws of thejurisdiction of its incorporation or organization, (b) has all requisite powerand authority and all governmental licenses, authorizations, consents andapprovals necessary to (i) own its assets, carry on its business and (ii)execute, deliver, and perform its obligations under the Loan Documents to whichit is a party, (c) is duly qualified and is licensed and in good standing underthe Laws of each jurisdiction where its ownership, lease or operation ofproperties or the conduct of its business requires such 48qualification or license, and (d) is in compliance with all Laws (including,without limitation, all federal and state registrations required by anyanti-money laundering Laws), except in each case referred to in clause (b)(i),(c) or this clause (d), to the extent that failure to do so could not reasonablybe expected to have a Material Adverse Effect. 5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery andperformance by each Loan Party of each Loan Document to which such Person isparty, have been duly authorized by all necessary corporate or otherorganizational action, and do not and will not (a) contravene the terms of anyof such Person’s Organization Documents; (b) materially conflict with or resultin any breach or contravention of, or the creation of any Lien under, anymaterial Contractual Obligation to which such Person is a party or any order,injunction, writ or decree of any Governmental Authority to which such Person orits property is subject; or (c) violate any Law. 5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,authorization, or other action by, or notice to, or filing with, anyGovernmental Authority is necessary or required in connection with theexecution, delivery or performance by, or enforcement against, any Loan Party ofthis Agreement or any other Loan Document. 5.04 BINDING EFFECT. This Agreement has been, and each other LoanDocument, when delivered hereunder, will have been duly executed and deliveredby each Loan Party that is party thereto. This Agreement constitutes, and eachother Loan Document when so delivered will constitute, a legal, valid andbinding obligation of such Loan Party, enforceable against each Loan Party thatis party thereto in accordance with its terms, subject as to enforcement ofremedies to (a) any Debtor Relief Laws and (b) general principles of equity,whether applied by a court of law or equity. 5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. (a) The Audited Financial Statements (i) were prepared in accordance withGAAP consistently applied throughout the period covered thereby, except asotherwise expressly noted therein; (ii) fairly present the financial conditionof the Borrower and its Subsidiaries as of the date thereof and their results ofoperations for the period covered thereby in accordance with GAAP consistentlyapplied throughout the period covered thereby, except as otherwise expresslynoted therein; and (iii) show all material indebtedness and other liabilities,direct or contingent, of the Borrower and its Subsidiaries as of the datethereof, including liabilities for taxes, material commitments and Indebtednessin accordance with GAAP consistently applied throughout the period coveredthereby. (b) Since the date of the Audited Financial Statements, there has been noevent or circumstance that has or could reasonably be expected to have aMaterial Adverse Effect. 5.06 LITIGATION. There are no actions, suits, proceedings, claims ordisputes pending or, to the knowledge of the Borrower, threatened orcontemplated, at law, in equity, in arbitration or before any GovernmentalAuthority, by or against the Borrower or any of its Subsidiaries or against anyof their properties or revenues which (a) purport to affect or pertain to this 49Agreement or any other Loan Document, or any of the transactions contemplatedhereby, or (b) individually or collectively, could reasonably be expected tohave a Material Adverse Effect. 5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in defaultunder or with respect to any Contractual Obligation which in the Borrower’sreasonable judgment would have a Material Adverse Effect. No Default or Event ofDefault has occurred and is continuing or would result from the consummation ofthe transactions contemplated by this Agreement or any other Loan Document. 5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary hasgood record and marketable title in fee simple to, or valid leasehold interestsin, all real property necessary or used in the ordinary conduct of its business,except for such defects in title as would not, individually or in the aggregate,have a Material Adverse Effect. As of the Closing Date, the property of theBorrower and its Subsidiaries will be subject to no Liens, other than PermittedLiens. 5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries conductin the ordinary course of business a review of the effect of existingEnvironmental Laws and claims alleging potential liability or responsibility forviolation of any Environmental Law on their respective businesses, operationsand properties, and as a result thereof the Borrower has reasonably concludedthat such Environmental Laws and claims would not, individually or in theaggregate, have a Material Adverse Effect. 5.10 INSURANCE. The properties of the Borrower and its Subsidiaries areinsured with reputable national insurance companies, not Affiliates of theBorrower, in such amounts (after giving effect to any self-insurance compatiblewith the following standards), with such deductibles and covering such risks asare customarily carried by companies of similar financial condition and strengthengaged in similar businesses and owning similar properties in localities wherethe Borrower or its Subsidiaries operate. 5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,state and other material tax returns and reports required to be filed, and havepaid all Federal, state and other material taxes, assessments, fees and othergovernmental charges levied or imposed upon them or their properties, income orassets otherwise due and payable, except those which are being contested in goodfaith by appropriate proceedings and for which adequate reserves have beenprovided in accordance with GAAP. There is no proposed tax assessment againstthe Borrower or any Subsidiary that would, if made, have a Material AdverseEffect. 5.12 ERISA COMPLIANCE. (a) Each Plan is in compliance in all material respects with theapplicable provisions of ERISA, the Code and other Federal or state Laws. EachPlan that is intended to qualify under Section 401(a) of the Code has received afavorable determination letter from the IRS or an application for such a letteris currently being processed by the IRS with respect thereto and, to the bestknowledge of the Borrower, nothing has occurred which would prevent, or causethe loss of, such qualification. The Borrower and each ERISA Affiliate have madeall required contributions to each Plan subject to Section 412 of the Code, andno application for a funding 50waiver or an extension of any amortization period pursuant to Section 412 of theCode has been made with respect to any Plan. Each Foreign Plan is in compliancewith applicable laws of any applicable foreign jurisdictions, except to theextent that failure to do so could not reasonably be expected to have a MaterialAdverse Effect. (b) There are no pending or, to the best knowledge of the Borrower,threatened claims, actions or lawsuits, or action by any Governmental Authority,with respect to any Plan that could be reasonably be expected to have a MaterialAdverse Effect. There has been no prohibited transaction or violation of thefiduciary responsibility rules with respect to any Plan that has resulted orcould be reasonably expected to result in a Material Adverse Effect. (c) (i) No ERISA Event has occurred or is reasonably expected to occur;(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither theBorrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,any liability under Title IV of ERISA with respect to any Pension Plan (otherthan premiums due and not delinquent under Section 4007 of ERISA); (iv) neitherthe Borrower nor any ERISA Affiliate has incurred, or reasonably expects toincur, any liability (and no event has occurred which, with the giving of noticeunder Section 4219 of ERISA, would result in such liability) under Sections 4201or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither theBorrower nor any ERISA Affiliate has engaged in a transaction that could besubject to Sections 4069 or 4212(c) of ERISA. 5.13 SUBSIDIARIES. As of the Closing Date, the Borrower has noSubsidiaries other than those specifically disclosed in Schedule 1.01 and has noequity investments in any other corporation or entity other than thosespecifically disclosed in Schedule 5.13. 5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDINGCOMPANY ACT. (a) The Borrower is not engaged and will not engage, principally or as oneof its important activities, in the business of purchasing or carrying marginstock (within the meaning of Regulation U issued by the Board), or extendingcredit for the purpose of purchasing or carrying margin stock. (b) None of the Borrower, any Person controlling the Borrower, or anySubsidiary (i) is a “holding company,” or a “subsidiary company” of a “holdingcompany,” or an “affiliate” of a “holding company” or of a “subsidiary company”of a “holding company,” within the meaning of the Public Utility Holding CompanyAct of 1935, or (ii) is or is required to be registered as an “investmentcompany” under the Investment Company Act of 1940. 5.15 NO FINANCING OF CORPORATE TAKEOVERS. No proceeds of any CreditExtension will be used to acquire any security in any transaction which issubject to Section 13 or 14 of the Exchange Act, including particularly (butwithout limitation) Sections 13(d) and 14(d) thereof, except as otherwisepermitted pursuant to Section 7.03(f) hereof. 5.16 INSIDER. The Borrower is not, and no Person having “control” (as thatterm is defined in 12 U.S.C. Section 375(b)(5) or in regulations promulgatedpursuant thereto) of the Borrower is, an “executive officer”, “director”, or”person who directly or indirectly or in concert with one or more persons owns,controls, or has the power to vote more than 10% of any class of voting 51securities” (as those terms are defined in 12 U.S.C. Section 375(b) or inregulations promulgated pursuant thereto) of any Lender, of a bank holdingcompany of which any Lender is a subsidiary, or of any bank at which Lendermaintains a correspondent account. 5.17 DISCLOSURE. No statement, information, report, representation, orwarranty made by any Loan Party in any Loan Document or furnished to theAdministrative Agent or any Lender by or on behalf of any Loan Party inconnection with any Loan Document contains any untrue statement of a materialfact or omits any material fact required to be stated therein or necessary tomake the statements therein, in light of the circumstances under which they weremade and at the time at which they were made, not misleading. There is no fact(excluding economic conditions not peculiar to the Borrower or any Subsidiary)known to the Borrower or any of its Subsidiaries and not known to the publicgenerally which materially adversely affects its assets or in the future mayreasonably be expected to (so far as the Borrower or any of its Subsidiaries cannow foresee) result in a Material Adverse Effect, which has not been disclosedto the Administrative Agent and the Lenders by or on behalf of the Borrower orany of its Subsidiaries prior to the Closing Date in connection with thetransactions contemplated hereby. 5.18 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and itsSubsidiaries own, or possess the right to use, all of the trademarks, servicemarks, trade names, copyrights, patents, patent rights, franchises, licenses andother rights that are reasonably necessary for the operation of their respectivebusinesses, without conflict with the rights of any other Person, except to theextent that failure to do so could not reasonably be expected to have a MaterialAdverse Effect. 5.19 BUSINESSES. The Borrower is presently engaged directly or throughwholly-owned Subsidiaries in (a) the pawn shop business, (b) the business ofcashing checks and conducting related cash dispensing transactions, (c) thebusiness of making and collecting short term consumer loans, (d) the business ofoffering money order, wire transfer and pre-paid card related services to itscustomers and (e) other activities related to short term consumer financing andgeneral consumer financial services. 5.20 COMMON ENTERPRISE. The Borrower and its Subsidiaries are engaged inthe businesses set forth in Section 5.19 hereof as of the Closing Date, as wellas in certain other businesses. These operations require financing on a basissuch that the credit supplied can be made available from time to time to theBorrower and various of its Subsidiaries, as required for the continuedsuccessful operation of the Borrower and its Subsidiaries as a whole. TheBorrower has requested the Lender to make credit available hereunder primarilyfor the purposes of financing the operations of the Borrower and itsSubsidiaries. The Borrower and each of its Subsidiaries expects to derivebenefit (and the Board of Directors of the Borrower and each of its Subsidiarieshas determined that such Subsidiary may reasonably be expected to derivebenefit), directly or indirectly, from the credit extended by the Lendershereunder, both in its separate capacity and as a member of the group ofcompanies, since the successful operation and condition of the Borrower and eachof its Subsidiaries is dependent on the continued successful performance of thefunctions of the group as a whole. 5.21 SOLVENT. The Borrower is, and the Borrower and its Subsidiaries areon a consolidated basis, Solvent. 52 ARTICLE VI. AFFIRMATIVE COVENANTS So long as any Lender shall have any Revolving Commitment hereunder, anyLoan or other Obligation shall remain unpaid or unsatisfied, or any Letter ofCredit shall remain outstanding: 6.01 FINANCIAL STATEMENTS. The Borrower shall deliver to theAdministrative Agent and each Lender, in form and detail satisfactory to theAdministrative Agent and the Required Lenders: (a) as soon as available, but in any event within 45 days after the end ofeach of the first three (3) quarterly fiscal periods of each fiscal year of theBorrower, a consolidated balance sheet of the Borrower and its ConsolidatedSubsidiaries as of the end of such fiscal period, and consolidated statements ofincome, retained earnings and cash flows of the Borrower and its ConsolidatedSubsidiaries for that quarterly fiscal period and for that portion of the fiscalyear then ended, in each case setting forth in comparative form the figures forthe corresponding period of the preceding fiscal year, all in reasonable detailand certified by a Responsible Officer of the Borrower as fairly presenting thefinancial condition, results of operations and cash flows of the Borrower andits Subsidiaries in accordance with GAAP, subject only to normal year-end auditadjustments and the absence of footnotes; and (b) as soon as available, but in any event within 90 days after the end ofeach fiscal year of the Borrower, a consolidated balance sheet of the Borrowerand its Consolidated Subsidiaries as of the close of such fiscal year, andconsolidated statements of income, retained earnings and cash flows of theBorrower and its Consolidated Subsidiaries for such fiscal year, in each casesetting forth in comparative form the figures for the preceding fiscal year, allin reasonable detail and accompanied by a report and opinion of an independentcertified public accountant of nationally recognized standing reasonablyacceptable to the Required Lenders (the “Accounting Firm”), which report andopinion shall be prepared in accordance with GAAP and shall not be subject toany qualifications or exceptions as to the scope of the audit nor to anyqualifications and exceptions not reasonably acceptable to the Required Lenders. 6.02 CERTIFICATES; OTHER INFORMATION. The Borrower shall deliver to theAdministrative Agent and each Lender, in form and detail satisfactory to theAdministrative Agent and the Required Lenders: (a) concurrently with the delivery of the financial statements referred toin Sections 6.01(a) and (b) hereof, a duly completed Compliance Certificatesigned by a Responsible Officer of the Borrower; (b) promptly after requested by the Administrative Agent or any Lender,copies of any detailed audit reports or management letters submitted to theboard of directors (or the audit committee of the board of directors) of theBorrower by independent accountants in connection with the accounts or books ofthe Borrower or any Subsidiary, or any audit of any of them; (c) promptly after the same are available, copies of each annual report,proxy or financial statement or other report or communication sent to thestockholders of the Borrower, 53and copies of all annual, regular, periodic and special reports and registrationstatements which the Borrower may file or be required to file with theSecurities and Exchange Commission under Section 13 or 15(d) of the ExchangeAct, and not otherwise required to be delivered to the Administrative Agentpursuant hereto; (d) as soon as available, but in any event not later than the earlier of(i) 90 days after the end of each fiscal year of the Borrower or (ii) promptlyafter receiving board approval, projected annual consolidated balance sheets,and statements of income of the Borrower and its Consolidated Subsidiaries forthe immediately succeeding fiscal year; (e) simultaneously with the providing to Teachers or any other Person inconnection with the Note Agreements, or any of the “Loan Documents” as referredto therein, or any Additional Senior Debt, of each notice of default orpotential default, and each request for amendment, consent or waiver, providethe Lenders with a copy of such notice or request, together with any otherinformation reasonably requested by Administrative Agent or the Required Lenderswith respect thereto; (f) concurrently with the delivery of the financial statements referred toin Section 6.01(b), an Officer’s Certificate signed by the chief executiveofficer of the Borrower; and (g) promptly, such additional information regarding the business,financial or corporate affairs of the Borrower or any Subsidiary as theAdministrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 6.01(a) or (b) orSection 6.02(c) (to the extent any such documents are included in materialsotherwise filed with the SEC) may be delivered electronically and if sodelivered, shall be deemed to have been delivered on the date (i) on which theBorrower posts such documents, or provides a link thereto on the Borrower’swebsite on the Internet at the website address listed on Schedule 10.02; or (ii)on which such documents are posted on the Borrower’s behalf onhttp://www.sec.gov; provided that: (i) the Borrower shall deliver paper copiesof such documents to the Administrative Agent or any Lender that requests theBorrower to deliver such paper copies until a written request to ceasedelivering paper copies is given by the Administrative Agent or such Lender and(ii) the Borrower shall notify the Administrative Agent (by telecopier orelectronic mail) of the posting of any such documents. Notwithstanding anythingcontained herein, in every instance the Borrower shall be required to providepaper copies of the Compliance Certificates required by Section 6.02(a) to theAdministrative Agent. Except for such Compliance Certificates, theAdministrative Agent shall have no obligation to request the delivery or tomaintain copies of the documents referred to above, and in any event shall haveno responsibility to monitor compliance by the Borrower with any such requestfor delivery, and each Lender shall be solely responsible for requestingdelivery to it or maintaining its copies of such documents. In addition, documents delivered by the Borrower to the AdministrativeAgent pursuant to clauses (a), (b), and (d) through (f) of Section 6.02 may bemade available to the Lenders through the Platform in accordance with theprovisions of Section 10.02(c). 54 6.03 NOTICES. The Borrower shall promptly notify the Administrative Agentand each Lender: (a) of the occurrence of any Default or Event of Default; (b) of any matter that has resulted or could reasonably be expected toresult in a Material Adverse Effect, including (i) any changes in itsconsolidated financial condition or its business (ii) breach or non-performanceof, or any default under, a Contractual Obligation of the Borrower or anySubsidiary; (iii) any dispute, litigation, investigation, proceeding orsuspension between the Borrower or any Subsidiary and any GovernmentalAuthority; or (iv) the commencement of, or any material development in, anylitigation, investigation, or proceeding affecting the Borrower or anySubsidiary, including pursuant to any applicable Environmental Laws; (c) of any litigation, investigation or proceeding affecting any LoanParty in which the damages, penalties, fines or other sanctions could reasonablybe expected to exceed $5,000,000 (to the extent not covered by independentthird-party insurance); (d) of the occurrence of any ERISA Event; and (e) of any material change in accounting policies or financial reportingpractices by the Borrower or any Subsidiary.Each notice pursuant to this Section shall be accompanied by a statement of aResponsible Officer of the Borrower setting forth details of the occurrencereferred to therein and stating what action the Borrower has taken and proposesto take with respect thereto. Each notice pursuant to Section 6.03(a) hereofshall describe with particularity any and all provisions of this Agreement orother Loan Document that have been breached. 6.04 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause each ofits Subsidiaries to, pay and discharge as the same shall become due and payable,all its material obligations and liabilities, including (a) all tax liabilities,assessments and governmental charges or levies upon it or its properties orassets; (b) all lawful claims which, if unpaid, would by law become a Lien uponits property; and (c) all Indebtedness, as and when due and payable, but subjectto any subordination provisions contained in any instrument or agreementevidencing such Indebtedness; provided, however, that the Borrower and eachSubsidiary shall not be required to pay any such amount if and so long as theamount, applicability or validity thereof shall currently be contested in goodfaith by appropriate proceedings and appropriate accruals and reserves thereforhave been established in accordance with GAAP. 6.05 PRESERVATION OF EXISTENCE, ETC. The Borrower shall, and shall causeeach of its Subsidiaries to, preserve, renew and maintain in full force andeffect its legal existence and good standing under the Laws of the jurisdictionof its organization; take all reasonable action to maintain all rights,privileges, permits, licenses and franchises necessary or desirable in thenormal conduct of its business, except in a transaction permitted by Section7.04 or 7.05 hereof or except to the extent that failure to do so could notreasonably be expected to have a Material Adverse Effect; and preserve or renewall of its registered patents, trademarks, trade names and 55service marks, the non-preservation of which could reasonably be expected tohave a Material Adverse Effect. 6.06 MAINTENANCE OF PROPERTIES. Except where the failure to do so couldnot reasonably be expected to have a Material Adverse Effect, the Borrowershall, and shall cause each of its Subsidiaries to, (a) maintain, preserve andprotect all of its material properties and equipment necessary in the operationof its business in good working order and condition, ordinary wear and tearexcepted; (b) make all necessary repairs thereto and renewals and replacementsthereof; and (c) use the standard of care typical in the industry in theoperation and maintenance of its facilities. 6.07 MAINTENANCE OF INSURANCE. The Borrower shall, and shall cause each ofits Subsidiaries to, maintain with reputable national insurance companies notAffiliates of the Borrower, insurance with respect to its properties andbusiness against loss or damage of the kinds customarily insured against byPersons of similar financial condition and strength engaged in the same orsimilar business and owning similar properties in localities where the Borroweror its Subsidiaries operate, of such types and in such amounts (it beingacknowledged by the Lenders that the Borrower maintains self-insurance withrespect to inventory which the Borrower has represented pursuant to Section 5.10is compatible with the standards set forth herein) as are customarily carriedunder similar circumstances by such other Persons. 6.08 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause each of itsSubsidiaries to, comply in all material respects with the requirements of allLaws applicable to it or to its business or property (including, withoutlimitation, all federal and state registrations required by anti-moneylaundering Laws), except in such instances in which (i) such requirement of Lawis being contested in good faith or a bona fide dispute exists with respectthereto; or (ii) the failure to comply therewith could not be reasonablyexpected to have a Material Adverse Effect. 6.09 BOOKS AND RECORDS. The Borrower shall, and shall cause each of itsSubsidiaries to, maintain books, records and accounts with respect to itself andthe Subsidiaries which, in reasonable detail, accurately and fairly reflecttheir transactions and dispositions of their assets, and maintain a system ofinternal accounting controls sufficient to provide reasonable assurances that(a) transactions are executed in accordance with management’s general orspecific authorization, (b) transactions are recorded as necessary (i) to permitpreparation of financial statements in accordance with GAAP, and (ii) tomaintain accountability for assets, (c) access to assets is permitted only inaccordance with management’s general or specific authorization and (d) therecorded accountability for assets is compared with the existing assets atreasonable intervals and appropriate action is taken with respect to anydifferences. 6.10 INSPECTION RIGHTS. The Borrower shall, and shall cause each of itsSubsidiaries to, subject to Section 10.08 hereof, permit representatives andindependent contractors of the Administrative Agent and each Lender to visit andinspect any of its properties, to examine its corporate, financial and operatingrecords, and make copies thereof or abstracts therefrom, and to discuss itsaffairs, finances and accounts with its directors, officers, and independentpublic accountants, all at the expense of the Lenders and at such reasonabletimes during normal business hours and as often as may be reasonably desired,upon request of the Required Lenders 56or the Administrative Agent and reasonable advance notice to the Borrower;provided, however, that when an Event of Default exists the Administrative Agentor any Lender (or any of their respective representatives or independentcontractors) may do any of the foregoing at the expense of the Borrower at anytime during normal business hours and without advance notice. 6.11 COMPLIANCE WITH ERISA. The Borrower shall do, and cause each of itsERISA Affiliates to do, each of the following: (a) maintain each Plan incompliance in all material respects with the applicable provisions of ERISA, theCode and other Federal or state law and maintain each Foreign Plan in compliancein all material respects with all applicable laws; (b) preclude each Plan whichis qualified under Section 401(a) of the Code from being determined to bedisqualified in any final assessment by the IRS; (c) make all requiredcontributions to any Plan subject to Section 412 of the Code; and (d) make allcontributions required under its Foreign Plans, except to the extent thatfailure to do so could not reasonably be expected to have a Material AdverseEffect. 6.12 USE OF PROCEEDS. The Borrower shall use the proceeds of the CreditExtensions (i) to consummate Acquisitions permitted hereunder, (ii) to refinancecertain existing indebtedness of the Borrower and (iii) for working capital andother general corporate purposes not in contravention of any Law or of any LoanDocument. 6.13 FURTHER ASSURANCES. Upon the reasonable request of the AdministrativeAgent, the Borrower will duly execute and deliver to the Administrative Agentany and all such further instruments and documents (in form and substancereasonably satisfactory to the Borrower) as may be necessary or advisable, inthe opinion of the Administrative Agent, to obtain the full benefits of the LoanDocuments. 6.14 NOTICE OF FORMATION OF SUBSIDIARY. Promptly upon the formation of anySubsidiary and in any event within 30 days after such formation, the Borrowershall give the Administrative Agent written notice thereof. 6.15 NEW DOMESTIC SUBSIDIARIES. The Borrower shall cause each DomesticSubsidiary which the Borrower or any of its Subsidiaries forms or acquiresduring the term of this Agreement to execute and deliver to the AdministrativeAgent a Guaranty, together with a certified copy of a resolution of the board ofdirectors (or other authorizing document of the appropriate governing body orPerson) of such Domestic Subsidiary authorizing the execution and delivery ofthe Guaranty and the performance of its terms, together with such otheropinions, certificates, and documents as the Administrative Agent may reasonablyrequest. 6.16 OPINIONS REGARDING OBLIGATIONS OF GUARANTORS. Within forty-five (45)days after written request by the Required Lenders, which the Required Lendersshall be entitled to make at any time, the Borrower shall obtain or cause to beprovided in favor of Lenders an opinion of local counsel satisfactory to theRequired Lenders for any of the Guarantors that opines (a) to such Guarantor’s(i) existence and good standing in its jurisdiction of formation, (ii) dueauthority to execute the Guaranty, and (iii) due execution, delivery andperformance of the Guaranty and (b) to the enforceability of the Guarantyagainst such Guarantor; provided that Borrower shall be obligated to provide nomore than one opinion of local counsel as to each Guarantor at any time duringthe period in which this Agreement is in effect. 57 6.17 INTEREST RATE PROTECTION. The Borrower shall maintain in effect atall times after the Closing Date, one or more Interest Rate ProtectionAgreements on such terms and with parties as shall be reasonably satisfactory tothe Administrative Agent, the effect of which (when taken together with theother fixed rate debt and interest rate protection agreements) shall be to fixor limit the interest cost to the Borrower with respect to at least 40% of theoutstanding Funded Debt of the Borrower. ARTICLE VII. NEGATIVE COVENANTS So long as any Lender shall have any Revolving Commitment hereunder, anyLoan or other Obligation shall remain unpaid or unsatisfied, or any Letter ofCredit shall remain outstanding: 7.01 LIENS. The Borrower shall not, and shall not permit any Subsidiaryto, create, incur, assume or suffer to exist, any Lien upon any of its property,assets or revenues, whether now owned or hereafter acquired, other than (a)Permitted Liens, and (b) Liens on assets securing Indebtedness permitted to beassumed pursuant to Section 7.02(n) hereof, provided that such Liens are fullypaid and released within sixty (60) days after any such Acquisition. TheBorrower shall not, and shall not permit any Subsidiary to, become subject to aNegative Pledge Agreement except pursuant to the Private Placement Debt, and anyAdditional Senior Debt permitted by Section 7.02(l). 7.02 INDEBTEDNESS. The Borrower shall not, and shall not permit anySubsidiary to, incur, create, contract, waive, assume, have outstanding,guarantee or otherwise be or become liable, directly or indirectly, in respectof any Indebtedness, except for (a) the Obligations arising out of or in connection with this Agreementand the other Loan Documents, (b) Capital Leases and purchase money Indebtedness, provided that theaggregate amount of such Indebtedness which is purchase money Indebtedness plusthe aggregate amount of Capital Leases shall not exceed $15,000,000 at any time, (c) current liabilities for taxes and assessments incurred in the ordinarycourse of business, and other liabilities for unpaid taxes being contested ingood faith by the Borrower or any Subsidiary for which sufficient reserves havebeen established, (d) current amounts payable or accrued for other claims (other than forborrowed funds or purchase money obligations) incurred in the ordinary course ofbusiness, provided that all such liabilities, accounts and claims shall bepromptly paid and discharged when due or in conformity with customary tradeterms, except for those being contested in good faith by the Borrower or aSubsidiary for which sufficient reserves have been established, (e) contingent liabilities resulting from the endorsement of negotiableinstruments in the ordinary course of business, 58 (f) intercompany loans and advances, provided that the aggregate amount ofoutstanding loans and advances by the Borrower and Domestic Subsidiaries toForeign Subsidiaries after the Closing Date shall not exceed $10,000,000 inaggregate principal amount at any time, and provided further that suchintercompany loans and advances may exceed $10,000,000 in aggregate principalamount so long as an amount equal to such excess amount is re-invested by one ormore Foreign Subsidiaries in the Borrower or a Guarantor within a maximum of 30days after to the making of such loan or advance; (g) obligations (contingent or otherwise) of the Borrower or anySubsidiary existing or arising under any Interest Rate Protection Agreement,provided that (i) such obligations are (or were) entered into by such Person inthe ordinary course of business for the purpose of directly mitigating risksassociated with liabilities, commitments, investments, assets, or property heldor reasonably anticipated by such Person, or changes in the value of securitiesissued by such Person and not for purposes of speculation; and (ii) suchInterest Rate Protection Agreement does not contain any provision exoneratingthe non-defaulting party from its obligation to make payments on outstandingtransactions to the defaulting party, (h) Guaranty Obligations permitted under Section 7.17 hereof, (i) the Private Placement Debt, (j) with respect to Temporary Cash Investments, short term Indebtednessnot constituting “margin loans” and not exceeding $5,000,000 at any time in theaggregate owed by the Borrower or a Consolidated Subsidiary to the broker orinvestment firm which is holding assets for the account of the Borrower or aConsolidated Subsidiary, but only to the extent that such Indebtedness is to berepaid, in the ordinary course of business, by the collection or liquidation ofsuch assets at the maturity of such assets, (k) Subordinated Debt, provided that prior to the issuance thereof, theBorrower has delivered to the Administrative Agent a Compliance Certificatewhich indicates that on a pro forma basis after taking into account the issuanceof such Subordinated Debt and the use of the proceeds thereof, there shall occurno Default or Event of Default, (l) Additional Senior Debt of the Borrower, provided that prior to theincurrence thereof, the Borrower has delivered to the Administrative Agent aCompliance Certificate which indicates that on a pro forma basis after takinginto account the incurrence of such Additional Senior Debt and the use of theproceeds thereof, there shall occur no Default or Event of Default, (m) intercompany payables for the purchase of goods and services in theordinary course of business, (n) Indebtedness assumed in Acquisitions permitted pursuant to Section7.03(f) hereof not to exceed $10,000,000 in aggregate principal amount, provided(i) at the time of the assumption thereof and immediately thereafter aftergiving effect thereto, no Default or Event of Default shall exist and (ii) suchIndebtedness shall be paid in full within sixty (60) days of such Acquisition, 59 (o) Guaranty Obligations of the Borrower and the Subsidiaries in respectof Indebtedness otherwise permitted under this Section 7.02, (p) intercompany loans and advances among Foreign Subsidiaries, (q) Indebtedness of the Borrower in respect of the Cashland Seller Note; (r) obligations in respect of earnout or similar payments payable in cashor which may be payable in cash at the seller’s or obligee’s option; and (s) surety bonds delivered by the Borrower or any Subsidiary in theordinary course of business. 7.03 INVESTMENTS. The Borrower shall not, and shall not permit anySubsidiary to, make or have outstanding Investments in or to any Person, exceptfor (a) pawn transactions, pawn loans and other short-term consumer loans inthe ordinary course of its day to day business, (b) ownership of Capital Stock of Domestic Subsidiaries which, promptlyafter the formation or acquisition thereof, execute a Guaranty, (c) ownership of Capital Stock of Foreign Subsidiaries, provided that theaggregate amount of such Investments made after the Closing Date, andAcquisitions made pursuant to Section 7.03(f) hereof, which are of assets orentities which are outside the United States, shall not exceed 10% of Net Worthin aggregate principal amount at any time, (d) Temporary Cash Investments and such other “cash equivalent”investments as the Required Lenders may from time to time approve, (e) Investments for the purchase of real estate, provided that (x) suchInvestments shall only be for the purpose of operating one or more of the typesof business permitted under clauses (a) through (c) of Section 5.19 located orto be located on such real estate, (y) the cumulative amount of such Investmentsmade after the Closing Date, shall not exceed $15,000,000, and (z) clause (y)immediately preceding notwithstanding, the maximum amount of such Investmentsmade for the purchase of real estate where one or more of the types of businesspermitted under clauses (a) through (c) of Section 5.19 are not existing thereonat the time of such purchase or cannot reasonably be expected to be establishedthereon within twelve months following such purchase, shall not exceed$7,500,000; (f) Acquisitions, provided (i) at time of such Acquisition and aftergiving effect thereto, no Default or Event of Default shall exist, (ii) theassets, property or business being acquired shall be in one or more of the typesof businesses described in clauses (a) through (c) of Section 5.19 hereof, (iii)such Acquisition shall not be opposed by the board of directors (or othergoverning body) of the Person being acquired, (iv) promptly upon becomingavailable and in any event within five (5) days prior to any proposedAcquisition for which the aggregate Acquisition Consideration for suchAcquisition is equal to or greater than $15,000,000, the Administrative Agentshall have received a pro forma Compliance Certificate setting forth the 60covenant calculations both immediately prior to and after giving effect to theproposed Acquisition and certifying that no Default or Event of Default existsor would occur as a result therefrom, and (v) the Acquisition Consideration forany single Acquisition shall not exceed 17.5% of Net Worth immediately precedingthe Acquisition without the Required Lenders approval, (g) Investments after the Closing Date by the Borrower in DomesticSubsidiaries, (h) intercompany receivables as a result of the transfer of goods andproperty in the ordinary course of business, (i) other Investments permittedunder Section 7.04 hereof, (j) Investments in existence as of the Closing Date, (including existingloans to officers of the Borrower and Subsidiaries for the purchase of CapitalStock of the Borrower to the extent not otherwise prohibited by Applicable Law),and listed on Schedule 7.03(j), (k) Investments as a result of intercompany loans and advances to ForeignSubsidiaries permitted under Section 7.02(f) hereof; (l) the Existing Foreign Investments; and (m) other Investments in activities directly related to the types ofbusiness permitted under Section 5.19 hereof, provided that such Investmentsshall not exceed $7,500,000 in aggregate principal amount at any time. 7.04 FUNDAMENTAL CHANGES. The Borrower shall not, and shall not permit anySubsidiary to, merge, consolidate with or into, or convey, transfer, lease orotherwise dispose of (whether in one transaction or in a series of transactions)all or substantially all of its Assets (whether now owned or hereafter acquired)to or in favor of any Person, except that, so long as no Default or Event ofDefault exists or would result therefrom: (a) any Subsidiary may merge with (i) the Borrower, provided that theBorrower shall be the continuing or surviving Person, (ii) any Guarantor, or(iii) in the case of any such Subsidiary that is a Foreign Subsidiary, anySubsidiary; (b) any Subsidiary may sell all or substantially all of its assets (uponvoluntary liquidation or otherwise) to the Borrower or to a Guarantor; and (c) the Borrower and any Subsidiary may make Dispositions permittedpursuant to Section 7.05 hereof. 7.05 DISPOSITIONS. The Borrower shall not, and shall not permit anySubsidiary to, make any Disposition or enter into any agreement to make anyDisposition, except: (a) Dispositions of obsolete or worn out property, whether now owned orhereafter acquired, in the ordinary course of business; 61 (b) Dispositions of inventory and other property in the ordinary course ofbusiness for fair consideration; (c) Dispositions permitted under Section 7.04 and Dispositions to awholly-owned Domestic Subsidiary which is a Guarantor; (d) Dispositions of Capital Stock of the Borrower and Dispositions ofCapital Stock of a Subsidiary to the Borrower or to another Subsidiary; (e) Dispositions permitted under Section 7.14; (f) Dispositions of Assets (including Capital Stock of a Subsidiary otherthan to the Borrower or another Subsidiary) not otherwise permitted in clauses(a) through (e) above, so long as (i) at the time of such Disposition and aftergiving effect thereto, no Default or Event of Default shall exist and (ii) tothe extent the aggregate Net Proceeds of Dispositions during any fiscal yearexceed 7.5% of Net Worth as of the last day of the immediately preceding fiscalyear, the mandatory prepayments required pursuant to Section 2.05(d) hereof aremade; provided, however, notwithstanding anything in this Section 7.05(f) to thecontrary, in no event shall the aggregate Net Proceeds of Dispositions nototherwise permitted in clauses (a) through (e) above during any fiscal yearexceed 15% of Net Worth as of the last day of the immediately preceding fiscalyear without the prior consent of the Required Lenders;provided, however, that any Disposition pursuant to clauses (a) through (f)shall be for fair market value. 7.06 RESTRICTED PAYMENTS. The Borrower shall not, and shall not permit anySubsidiary to, directly or indirectly pay any Restricted Payment; provided,however, (a) any Subsidiary may declare and pay Dividends to or for the benefitof the Borrower or any Guarantor, (b) the Borrower may (i) declare Dividends(including the repurchase of Capital Stock of the Borrower), and (ii) makeregularly scheduled principal payments on Subordinated Debt in existence as ofthe Closing Date in both cases taken together in an aggregate amount not toexceed the sum of (A) $16,500,000 plus (B) 50% of cumulative Net Income afterthe Closing Date, and (c) the Borrower may repay the Cashland Seller Note andany repayments on the Cashland Seller Note shall not apply against the dollarlimitations set forth in (ii)(A) and (B) above; provided, further, the Borrowershall make no Restricted Payments unless there shall exist no Default or Eventof Default prior to or after giving effect to any proposed Restricted Payment. 7.07 ERISA. The Borrower shall not, and shall not permit any Subsidiaryto, at any time engage in a transaction which could be subject to Section 4069or 4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt”prohibited transaction” (as defined in Section 4975 of the Code); (b) fail tocomply in any material respect with ERISA or any other applicable Laws; or (c)incur any material “accumulated funding deficiency” (as defined in Section 302of ERISA), which, with respect to each event listed above, could be reasonablyexpected to have a Material Adverse Effect. 7.08 CHANGE IN NATURE OF BUSINESS. The Borrower shall not, and shall notpermit any Subsidiary to, engage in any material line of business substantiallydifferent from those lines of 62business conducted by the Borrower and its Subsidiaries on the date hereof andbusinesses reasonably related thereto. 7.09 TRANSACTIONS WITH AFFILIATES. The Borrower shall not, and shall notpermit any Subsidiary to, enter into any transaction of any kind with anyAffiliate of the Borrower, other than arm’s-length transactions with Affiliates,transactions otherwise permitted hereunder and transactions with Affiliates inthe ordinary course of business. 7.10 BURDENSOME AGREEMENTS. The Borrower shall not, and shall not permitany Subsidiary to enter into any Contractual Obligation that limits the abilityof any Subsidiary to make Dividends or other Dispositions to the Borrower or tootherwise transfer property to the Borrower. 7.11 USE OF PROCEEDS. The Borrower shall not, directly or indirectly, usethe proceeds of any Credit Extension, whether directly or indirectly, andwhether immediately, incidentally or ultimately, to purchase or carry marginstock (within the meaning of Regulation U of the Board) or to extend credit toothers for the purpose of purchasing or carrying margin stock or to refundindebtedness originally incurred for such purpose. 7.12 AMENDMENT OF ORGANIZATION DOCUMENTS AND FISCAL YEAR. The Borrowershall not, and shall not permit any Subsidiary to, amend, modify, or waive anyof its rights under any Organization Documents in a manner adverse to theLenders. The Borrower shall not, and shall not permit any Subsidiary to, changeits fiscal quarters or fiscal year, except after providing 30 days prior writtennotice to Lenders and provided such change does not have the effect of delayingor otherwise curing a Default or Event of Default that would have otherwiseexisted. 7.13 AMENDMENT OF SUBORDINATED DEBT. The Borrower shall not, and shall notpermit any Subsidiary to, change or amend (or take any action or fail to takeany action the result of which is an effective amendment or change) or acceptany waiver or consent with respect to, any document, instrument, or agreementrelating to any Subordinated Debt that would result in (a) an increase in theprincipal, interest, overdue interest, fees or other amounts payable under anySubordinated Debt, (b) an acceleration in any date fixed for payment orprepayment of principal, interest, fees or other amounts payable under anySubordinated Debt (including, without limitation, as a result of anyredemption), (c) a change in any of the subordination provisions of anySubordinated Debt, (d) a change in any defined term, covenant, term or provisionin any Subordinated Debt which would result in such term or provision being morerestrictive than the existing terms of such Subordinated Debt or the terms ofthis Agreement, or (e) a change in any term or provision of any SubordinatedDebt that could reasonably be expected to have a material adverse effect on theinterest of the Lenders. 7.14 SALE AND LEASEBACK. The Borrower shall not, and shall not permit anySubsidiary to, enter any arrangement whereby it sells or transfers any of itsAssets, and thereafter rents or leases those Assets except for the sale andleaseback of operating facilities so long as the aggregate amount of such saleand leasebacks made after the Closing Date, shall not exceed $25,000,000. 63 7.15 ALTERATION OF MATERIAL AGREEMENTS. The Borrower will not, and willnot permit any Subsidiary to, consent to or permit any alterations, amendments,modifications, releases, waivers or terminations of any material agreement towhich it is a party, including but not limited to the Note Agreements, thePrivate Placement Debt and the Additional Senior Debt, if such alterations,amendments, modification, releases, waivers or terminations would have aMaterial Adverse Effect. 7.16 STRICT COMPLIANCE. If any action or failure to act by the Borrowerviolates any covenant or obligation of the Borrower contained herein, then suchviolation shall not be excused by the fact that such action or failure to actwould otherwise be permitted by any covenant (or exception to any covenant)other than the covenant violated. 7.17 GUARANTIES. The Borrower will not, and will not permit any Subsidiaryto, become or be liable in respect of any Guaranty Obligation, except for (i)the Guaranty, (ii) guaranties of Indebtedness to extent such Indebtedness ispermitted pursuant to Section 7.02 hereof), and (iii) additional limitedguaranties of the Borrower, provided that the aggregate Indebtedness guaranteedby such additional limited guaranties at any time shall not exceed $5,000,000,and provided further that within five (5) days after the execution of eachguaranty by the Borrower for Indebtedness in excess of $2,500,000, the Borrowershall provide each of the Lenders with a copy of such executed guaranty. 7.18 FINANCIAL COVENANTS. (a) Maximum Leverage Ratio. The Borrower shall not permit the LeverageRatio as of the end of any fiscal quarter of the Borrower to be greater than2.75 to 1.00: (b) Minimum Fixed Charge Coverage Ratio. The Borrower shall not permit theFixed Charge Coverage Ratio as of the end of any fiscal quarter of the Borrowerto be less than 1.75 to 1.00. (c) Minimum Net Worth. The Borrower shall not permit Net Worth to be lessthan the sum of (i) $270,000,000, plus (ii) 50% of Net Income (with no deductionfor net losses during any quarterly period) earned after September 30, 2004,plus (iii) 100% of the Net Proceeds received by the Borrower and itsSubsidiaries from the issuance and sale of Capital Stock of the Borrower or anySubsidiary (other than issuance to the Borrower or a wholly-owned Subsidiary),including any conversion of debt securities of the Borrower into such CapitalStock after September 30, 2004. ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES 8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event ofDefault: (a) The Borrower fails to pay when due (i) any principal of, or intereston any Loan or any L/C Obligation or (ii) any fee, expense, reimbursementobligation or any other amount due in connection herewith or with any other LoanDocument, and such failure with respect to clause (ii) shall have continued forthree (3) Business Days after receipt from the Administrative Agent of notice ofsuch failure on any Loan or on any L/C Obligation; or 64 (b) Any representation or warranty made under this agreement, or any ofthe other Loan Papers, or in any certificate or statement furnished or made tothe Lenders pursuant hereto or in connection herewith or with any Loan or L/CObligation hereunder, shall prove to be untrue or inaccurate in any materialrespect as of the date on which such representation or warranty is made; or (c) The Borrower or any Subsidiary fails to perform or observe any term,covenant or agreement contained in any of Section 6.03(a) or (b), 6.05, 6.10,6.12, or Article VII hereof (but only to the extent that the failure to performor observe the covenants in Section 7.01, 7.02 and/or 7.03 involves an aggregateamount in excess of $500,000); or (d) The Borrower or any Subsidiary shall fail to perform or observe anyother term or covenant contained herein or in any of the Loan Documents (otherthan those specified in subsection (a), or (c) above), on its part to beperformed or observed and such failure shall not be remedied within thirty (30)days following the earlier of knowledge thereof by the Borrower or anySubsidiary or written notice by the Administrative Agent to the Borrower; or (e) (i) The Borrower or any Subsidiary (A) fails to make any payment whendue (whether by scheduled maturity, required prepayment, acceleration, demand,or otherwise) in respect of any Indebtedness or any Guaranty Obligation (otherthan Indebtedness hereunder and Indebtedness under Interest Rate ProtectionAgreements) having an aggregate principal amount (including undrawn committed oravailable amounts and including amounts owing to all creditors under anycombined or syndicated credit arrangement) of more than $2,500,000, or (B) failsto observe or perform any other agreement or condition relating to any suchIndebtedness or contained in any instrument or agreement evidencing, securing orrelating thereto, or any other event occurs, the effect of which default orother event is to cause, or to permit the holder or holders of such Indebtednessor the beneficiary or beneficiaries of any Guaranty Obligation with respect tosuch Indebtedness (or a trustee or agent on behalf of such holder or holders orbeneficiary or beneficiaries) to cause, with the giving of notice if required,such Indebtedness to be demanded or to become due or to be repurchased orredeemed (automatically or otherwise) or such Guaranty Obligation to becomepayable or cash collateral in respect thereof to be demanded; or (ii) thereoccurs under any Interest Rate Protection Agreement an Early Termination Date(as defined in such Interest Rate Protection Agreement) resulting from (A) anyevent of default (or, if such Interest Rate Protection Agreement is a forwardgold transaction, any event of default which has not been cured within five (5)days after the occurrence of such event of default) under such Interest RateProtection Agreement as to which the Borrower or any Subsidiary is theDefaulting Party (as defined in such Interest Rate Protection Agreement) or (B)any Termination Event (as so defined) under such Interest Rate ProtectionAgreement as to which the Borrower or any Subsidiary is an Affected Party (as sodefined) and, in either event, the Termination Value owed by the Borrower orsuch Subsidiary as a result thereof is greater than $1,000,000; or (f) Any material portion of any Loan Document shall cease to be legal,valid, binding agreements enforceable against any party executing the same inaccordance with the respective terms thereof or shall in any way be terminatedor become or be declared ineffective or inoperative or shall in any waywhatsoever cease to give or provide the respective rights, remedies, powers orprivileges intended to be created hereby; or 65 (g) The Borrower or any Subsidiary institutes or consents to theinstitution of any proceeding under any Debtor Relief Law, or makes anassignment for the benefit of creditors; or applies for or consents to theappointment of any receiver, trustee, custodian, conservator, liquidator,rehabilitator or similar officer for it or for all or any material part of itsproperty; or (h) Any receiver, trustee, custodian, conservator, liquidator,rehabilitator or similar officer is appointed without the application or consentof the Borrower or any Subsidiary, or any proceeding under any Debtor Relief Lawrelating to the Borrower or any Subsidiary, or to all or any part of itsproperty is instituted without the consent of such Person, and such appointmentor proceeding shall remain undismissed and unstayed for a period of 60consecutive days; or (i) (i) The Borrower or any Subsidiary becomes unable or admits in writingits inability or fails generally to pay its debts as they become due, or (ii)any writ or warrant of attachment or execution or similar process is issued orlevied against all or any material part of the property of any such Person andis not released, vacated or fully bonded within 30 days after its issue or levy;or (j) There is entered against the Borrower or any Subsidiary a finaljudgment or order for the payment of money in an aggregate amount exceeding$2,500,000, and such judgment shall not be satisfied, discharged or stayed (withsufficient reserves having been set aside by the Borrower or such Subsidiary topay such judgment) at least ten (10) days prior to the date on which any of itsassets could be lawfully sold to satisfy such judgment; or (k) (i) An ERISA Event occurs with respect to a Pension Plan orMultiemployer Plan which has resulted or could reasonably be expected to resultin liability of the Borrower under Title IV of ERISA to the Pension Plan,Multiemployer Plan or the PBGC in an aggregate amount in excess of $2,500,000,(ii) the Borrower or any ERISA Affiliate fails to pay when due, after theexpiration of any applicable grace period, any installment payment with respectto its withdrawal liability under Section 4201 of ERISA under a MultiemployerPlan in an aggregate amount in excess of $2,500,000 or (iii) any Foreign Planshall be terminated or the Borrower or any Foreign Subsidiary shall becomeobligated to pay any obligation with respect to any Foreign Plan which in eithercase could reasonably be expected to have a Material Adverse Effect; or (l) A Change of Control of the Borrower shall have occurred; or (m) There shall occur any event which, in the reasonable opinion of theRequired Lenders, will have a Material Adverse Effect. 8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs, theAdministrative Agent shall, at the request of, or may, with the consent of, theRequired Lenders, (a) declare the commitment of each Lender to make Loans and any obligationof any L/C Issuer to make L/C Credit Extensions to be terminated, whereupon suchcommitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, allinterest accrued and unpaid thereon, and all other amounts owing or payablehereunder or under any other Loan 66Document to be immediately due and payable, without presentment, demand, protestor other notice of any kind, all of which are hereby expressly waived by theBorrower; (c) require that the Borrower Cash Collateralize the L/C Obligations (inan amount equal to the then Outstanding Amount thereof); and (d) exercise on behalf of itself and the Lenders all rights and remediesavailable to it and the Lenders under the Loan Documents or applicable law;provided, however, that upon the occurrence of any event specified insubsections (g) or (h) of Section 8.01 hereof, the obligation of each Lender tomake Loans and any obligation of a L/C Issuer to make L/C Credit Extensionsshall automatically terminate, the unpaid principal amount of all outstandingLoans and all interest and other amounts as aforesaid shall automatically becomedue and payable, and the obligation of the Borrower to Cash Collateralize theL/C Obligations as aforesaid shall automatically become effective, in each casewithout further act of the Administrative Agent or any Lender. 8.03 APPLICATION OF PROCEEDS. After the exercise of remedies provided forin Section 8.02 (or after the Loans have automatically become immediately dueand payable and the L/C Obligations have automatically been required to be CashCollateralized as set forth in the proviso to Section 8.02), any amountsreceived on account of the Obligations shall be applied by the AdministrativeAgent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including Attorney Costs and amounts payable under Article III) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the Administrative Agent for the account of any applicable L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; Sixth, to payment of Interest Rate Protection Obligations, ratably among the Guarantied Parties (as defined in the Guaranty) in proportion to the respective amounts described in this clause Sixth held by them; and 67 Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.Subject to Section 2.04(c), amounts used to Cash Collateralize the aggregateundrawn amount of Letters of Credit pursuant to clause Fifth above shall beapplied to satisfy drawings under such Letters of Credit as they occur. If anyamount remains on deposit as Cash Collateral after all Letters of Credit haveeither been fully drawn or expired, such remaining amount shall be applied toother Obligations, if any, in the order set forth above. ARTICLE IX. ADMINISTRATIVE AGENT 9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. (a) Each Lender hereby irrevocably appoints, designates and authorizes theAdministrative Agent to take such action on its behalf under the provisions ofthis Agreement and each other Loan Document and to exercise such powers andperform such duties as are expressly delegated to it by the terms of thisAgreement or any other Loan Document, together with such powers as arereasonably incidental thereto. Notwithstanding any provision to the contrarycontained elsewhere herein or in any other Loan Document, the AdministrativeAgent shall not have any duties or responsibilities, except those expressly setforth herein, nor shall the Administrative Agent have or be deemed to have anyfiduciary relationship with any Lender or participant, and no implied covenants,functions, responsibilities, duties, obligations or liabilities shall be readinto this Agreement or any other Loan Document or otherwise exist against theAdministrative Agent. Without limiting the generality of the foregoing sentence,the use of the term “agent” herein and in the other Loan Documents withreference to the Administrative Agent is not intended to connote any fiduciaryor other implied (or express) obligations arising under agency doctrine of anyapplicable law. Instead, such term is used merely as a matter of market custom,and is intended to create or reflect only an administrative relationship betweenindependent contracting parties. (b) Each L/C Issuer shall act on behalf of the Lenders with respect to anyLetters of Credit issued by it and the documents associated therewith until suchtime (and except for so long) as the Administrative Agent may agree at therequest of the Required Lenders to act for such L/C Issuer with respect thereto;provided, however, that each L/C Issuer shall have all of the benefits andimmunities (i) provided to the Administrative Agent in this Article IX withrespect to any acts taken or omissions suffered by each such L/C Issuer inconnection with Letters of Credit issued by it or proposed to be issued by itand the application and agreements for letters of credit pertaining to theLetters of Credit as fully as if the term “Administrative Agent” as used in thisArticle IX included each L/C Issuer with respect to such acts or omissions, and(ii) as additionally provided herein with respect to each L/C Issuer. 9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of itsduties under this Agreement or any other Loan Document by or through agents,employees or attorneys-in-fact and shall be entitled to advice of counsel(including counsel to any Loan Party) and other consultants or expertsconcerning all matters pertaining to such duties. The 68Administrative Agent shall not be responsible for the negligence or misconductof any agent or attorney-in-fact that it selects in the absence of grossnegligence or willful misconduct. 9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)be liable for any action taken or omitted to be taken by any of them under or inconnection with this Agreement or any other Loan Document or the transactionscontemplated hereby (except for its own gross negligence or willful misconductin connection with its duties expressly set forth herein), or (b) be responsiblein any manner to any Lender or participant for any recital, statement,representation or warranty made by any Loan Party or any officer thereof,contained herein or in any other Loan Document, or in any certificate, report,statement or other document referred to or provided for in, or received by theAdministrative Agent under or in connection with, this Agreement or any otherLoan Document, or the validity, effectiveness, genuineness, enforceability orsufficiency of this Agreement or any other Loan Document, or for any failure ofany Loan Party or any other party to any Loan Document to perform itsobligations hereunder or thereunder. No Agent-Related Person shall be under anyobligation to any Lender or participant to ascertain or to inquire as to theobservance or performance of any of the agreements contained in, or conditionsof, this Agreement or any other Loan Document, or to inspect the properties,books or records of any Loan Party or any Affiliate thereof. 9.04 RELIANCE BY ADMINISTRATIVE AGENT. (a) The Administrative Agent shall be entitled to rely, and shall be fullyprotected in relying, upon any writing, communication, signature, resolution,representation, notice, consent, certificate, affidavit, letter, telegram,facsimile, electronic mail, telex or telephone message, statement or otherdocument or conversation believed by it to be genuine and correct and to havebeen signed, sent or made by the proper Person or Persons, and upon advice andstatements of legal counsel (including counsel to any Loan Party), independentaccountants and other experts selected by the Administrative Agent. TheAdministrative Agent shall be fully justified in failing or refusing to take anyaction under any Loan Document unless it shall first receive such advice orconcurrence of the Required Lenders as it deems appropriate and, if it sorequests, it shall first be indemnified to its satisfaction by the Lendersagainst any and all liability and expense which may be incurred by it by reasonof taking or continuing to take any such action. The Administrative Agent shallin all cases be fully protected in acting, or in refraining from acting, underthis Agreement or any other Loan Document in accordance with a request orconsent of the Required Lenders or all the Lenders, if required hereunder, andsuch request and any action taken or failure to act pursuant thereto shall bebinding upon all the Lenders and participants. Where this Agreement expresslypermits or prohibits an action unless the Required Lenders otherwise determine,the Administrative Agent shall, and in all other instances, the AdministrativeAgent may, but shall not be required to, initiate any solicitation for theconsent or a vote of the Lenders. (b) For purposes of determining compliance with the conditions specifiedin Section 4.01 hereof, each Lender that has signed this Agreement shall bedeemed to have consented to, approved or accepted or to be satisfied with, eachdocument or other matter either sent by the Administrative Agent to such Lenderfor consent, approval, acceptance or satisfaction, or required thereunder to beconsented to or approved by or acceptable or satisfactory to a Lender. 69 9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed tohave knowledge or notice of the occurrence of any Default or Event of Default,except with respect to defaults in the payment of principal, interest and feesrequired to be paid to the Administrative Agent for the account of the Lenders,unless the Administrative Agent shall have received written notice from a Lenderor the Borrower referring to this Agreement, describing such Default or Event ofDefault and stating that such notice is a “notice of default.” TheAdministrative Agent will notify the Lenders of its receipt of any such notice.The Administrative Agent shall take such action with respect to such Default orEvent of Default as may be directed by the Required Lenders in accordance withArticle VIII; provided, however, that unless and until the Administrative Agenthas received any such direction, the Administrative Agent may (but shall not beobligated to) take such action, or refrain from taking such action, with respectto such Default or Event of Default as it shall deem advisable or in the bestinterest of the Lenders. 9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.Each Lender acknowledges that no Agent-Related Person has made anyrepresentation or warranty to it, and that no act by the Administrative Agenthereinafter taken, including any consent to and acceptance of any assignment orreview of the affairs of any Loan Party or any Affiliate thereof, shall bedeemed to constitute any representation or warranty by any Agent-Related Personto any Lender as to any matter, including whether Agent-Related Persons havedisclosed material information in their possession. Each Lender represents tothe Administrative Agent that it has, independently and without reliance uponany Agent-Related Person and based on such documents and information as it hasdeemed appropriate, made its own appraisal of and investigation into thebusiness, prospects, operations, property, financial and other condition andcreditworthiness of the Loan Parties and their respective Subsidiaries, and allapplicable bank or other regulatory Laws relating to the transactionscontemplated hereby, and made its own decision to enter into this Agreement andto extend credit to the Borrower hereunder. Each Lender also represents that itwill, independently and without reliance upon any Agent-Related Person and basedon such documents and information as it shall deem appropriate at the time,continue to make its own credit analysis, appraisals and decisions in taking ornot taking action under this Agreement and the other Loan Documents, and to makesuch investigations as it deems necessary to inform itself as to the business,prospects, operations, property, financial and other condition andcreditworthiness of the Borrower and the other Loan Parties. Except for notices,reports and other documents expressly required to be furnished to the Lenders bythe Administrative Agent herein, the Administrative Agent shall not have anyduty or responsibility to provide any Lender with any credit or otherinformation concerning the business, prospects, operations, property, financialand other condition or creditworthiness of any of the Loan Parties or any oftheir respective Affiliates which may come into the possession of anyAgent-Related Person. 9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. WHETHER OR NOT THETRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE LENDERS SHALL INDEMNIFYUPON DEMAND EACH AGENT-RELATED PERSON (TO THE EXTENT NOT REIMBURSED BY OR ONBEHALF OF ANY LOAN PARTY AND WITHOUT LIMITING THE OBLIGATION OF ANY LOAN PARTYTO DO SO), PRO RATA, AND HOLD HARMLESS EACH AGENT-RELATED PERSON FROM ANDAGAINST ANY AND ALL INDEMNIFIED LIABILITIES INCURRED BY IT (WHETHER 70OR NOT ARISING OUT OF THE NEGLIGENCE OF SUCH AGENT-RELATED PERSON); PROVIDED,HOWEVER, THAT NO LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY AGENT-RELATEDPERSON OF ANY PORTION OF SUCH INDEMNIFIED LIABILITIES RESULTING FROM SUCHPERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, HOWEVER, THAT NOACTION TAKEN IN ACCORDANCE WITH THE DIRECTIONS OF THE REQUIRED LENDERS SHALL BEDEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT FOR PURPOSES OF THISSECTION. WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER SHALL REIMBURSE THEADMINISTRATIVE AGENT UPON DEMAND FOR ITS RATABLE SHARE OF ANY COSTS OROUT-OF-POCKET EXPENSES (INCLUDING ATTORNEY COSTS) INCURRED BY THE ADMINISTRATIVEAGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION,MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGALPROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS ORRESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY DOCUMENTCONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT THE ADMINISTRATIVEAGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF THE BORROWER. THEUNDERTAKING IN THIS SECTION SHALL SURVIVE TERMINATION OF THE REVOLVINGCOMMITMENTS, THE PAYMENT OF ALL OBLIGATIONS HEREUNDER AND THE RESIGNATION ORREPLACEMENT OF THE ADMINISTRATIVE AGENT. THE FOREGOING INDEMNITY SHALL APPLY TOTHE NEGLIGENCE OF THE AGENT-RELATED PERSON (BUT NOT THE GROSS NEGLIGENCE ORWILLFUL MISCONDUCT OF THE AGENT-RELATED PERSON). 9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The AdministrativeAgent, acting in any capacity other than pursuant to this Agreement, and itsAffiliates may make loans to, issue letters of credit for the account of, acceptdeposits from, acquire equity interests in and generally engage in any kind ofbanking, trust, financial advisory, underwriting or other business with each ofthe Loan Parties and their respective Affiliates as though it were not theAdministrative Agent or one of the L/C Issuers hereunder and without notice toor consent of the Lenders. The Lenders acknowledge that, pursuant to suchactivities, the Administrative Agent, acting in any capacity other than pursuantto this Agreement, or its Affiliates may receive information regarding any LoanParty or its Affiliates (including information that may be subject toconfidentiality obligations in favor of such Loan Party or such Affiliate) andacknowledge that the Administrative Agent shall be under no obligation toprovide such information to them. With respect to its Loans, the AdministrativeAgent, acting in its capacity as a Lender, shall have the same rights and powersunder this Agreement as any other Lender and may exercise such rights and powersas though it were not the Administrative Agent or one of the L/C Issuers, andthe terms “Lender” and “Lenders” include the Administrative Agent in itsindividual capacity. 9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent (i) mayresign as Administrative Agent upon 30 days’ notice to the Lenders and theBorrower and (ii) if the Administrative Agent, acting in its capacity as aLender, assigns all of its Revolving Commitments and Loans pursuant to Section10.07(b), shall resign upon receiving a written request therefor from theBorrower, with such resignation to be effectuated by the Administrative Agentsending 30 days advance notice of such resignation to the Borrower and theLenders, such 71resignation notice to be delivered by the Administrative Agent tothe Borrower and the Lenders upon the Administrative Agent’s receipt of theabove-described written notice from the Borrower requesting such resignation. Ifthe Administrative Agent resigns under this Agreement, the Required Lendersshall appoint from among the Lenders a successor administrative agent for theLenders which successor administrative agent shall require the consent of theBorrower at all times other than during the existence of an Event of Default(which consent of the Borrower shall not be unreasonably withheld or delayed).If no successor administrative agent is appointed prior to the effective date ofthe resignation of the Administrative Agent, the Administrative Agent mayappoint, after consulting with the Lenders and the Borrower, a successoradministrative agent from among the Lenders. Upon the acceptance of itsappointment as successor administrative agent hereunder, such successoradministrative agent shall succeed to all the rights, powers and duties of theretiring Administrative Agent and the term “Administrative Agent” shall meansuch successor administrative agent, and the retiring Administrative Agent’sappointment, powers and duties as Administrative Agent shall be terminated.After any retiring Administrative Agent’s resignation hereunder asAdministrative Agent, the provisions of this Article IX and Sections 10.04 and10.05 hereof shall inure to its benefit as to any actions taken or omitted to betaken by it while it was Administrative Agent under this Agreement. If nosuccessor administrative agent has accepted appointment as Administrative Agentby the date which is 30 days following a retiring Administrative Agent’s noticeof resignation, the retiring Administrative Agent’s resignation shallnevertheless thereupon become effective and the Lenders shall perform all of theduties of the Administrative Agent hereunder until such time, if any, as theRequired Lenders appoint a successor agent as provided for above. Any resignation by an Administrative Agent pursuant to this Section shallalso constitute its resignation as an L/C Issuer and Swing Line Lender. Upon theacceptance of a successor’s appointment as Administrative Agent hereunder, (a)such successor shall succeed to and become vested with all of the rights,powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender,(b) the retiring L/C Issuer and Swing Line Lender shall be discharged from allof their respective duties and obligations hereunder or under the other LoanDocuments, and (c) the successor L/C Issuer shall issue letters of credit insubstitution for the Letters of Credit, if any, outstanding at the time of suchsuccession or make other arrangement satisfactory to the retiring L/C Issuer toeffectively assume the obligations of the retiring L/C Issuer with respect tosuch Letters of Credit. 9.10 GUARANTY MATTERS. The Lenders irrevocably authorize theAdministrative Agent, at its option and in its discretion, to release anyGuarantor from its obligations under the Guaranty if such Person ceases to be aSubsidiary as a result of a transaction permitted hereunder. Upon request by theAdministrative Agent at any time, the Required Lenders will confirm in writingthe Administrative Agent’s authority to release any Guarantor from itsobligations under the Guaranty pursuant to this Section 9.10. 9.11 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of thependency of any receivership, insolvency, liquidation, bankruptcy,reorganization, arrangement, adjustment, composition or other judicialproceeding relative to any Loan Party, the Administrative Agent (irrespective ofwhether the principal of any Loan or L/C Obligation shall then be due andpayable as herein expressed or by declaration or otherwise and irrespective ofwhether the 72Administrative Agent shall have made any demand on the Borrower)shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal andinterest owing and unpaid in respect of the Loans, L/C Obligations and all otherObligations that are owing and unpaid and to file such other documents as may benecessary or advisable in order to have the claims of the Lenders and theAdministrative Agent (including any claim for the reasonable compensation,expenses, disbursements and advances of the Lenders and the Administrative Agentand their respective agents and counsel and all other amounts due the Lendersand the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 10.04)allowed in such judicial proceedings; and (b) to collect and receive any monies or other property payable ordeliverable on any such claims and to distribute the same;and any custodian, receiver, assignee, trustee, liquidator, sequestrator orother similar official in any such judicial proceeding is hereby authorized byeach Lender to make such payments to the Administrative Agent and, in the eventthat the Administrative Agent shall consent to the making of such paymentsdirectly to the Lenders, to pay to the Administrative Agent any amount due forthe reasonable compensation, expenses, disbursements and advances of theAdministrative Agent and its agents and counsel, and any other amounts due theAdministrative Agent under Sections 2.09 and 10.04 hereof. 9.12 RELATED OBLIGATIONS. The benefit of the Loan Documents and of theprovisions of this Agreement and the Guaranty shall extend to and be availablein respect of any obligation arising under any Affiliated IRP Agreement or thatis otherwise owed to Persons other than the Administrative Agent and the Lenderspursuant to the Loan Documents or the Affiliated IRP Agreements (collectively,”Related Obligations”) solely on the condition and understanding, as among theAdministrative Agent and the Lenders, that (a) the Related Obligations shall beentitled to the benefit of the Loan Documents to the extent expressly set forthin this Agreement and the other Loan Documents and to such extent theAdministrative Agent shall hold, and have the right and power to act withrespect to, the Guaranty on behalf and as agent for the holders of the RelatedObligations, but the Administrative Agent is otherwise acting solely as agentfor the Lenders and shall have no fiduciary duty, duty of loyalty, duty of care,duty of disclosure or other obligation whatsoever to any holder of RelatedObligations; (b) all matters, acts and omissions relating in any manner to theGuaranty shall be governed solely by the provisions of this Agreement and theGuaranty and no separate Lien, right, power or remedy shall arise or exist infavor of any Guarantied Party (as defined in the Guaranty) under any separateinstrument or agreement or in respect of any Related Obligation; (c) eachGuarantied Party shall be bound by all actions taken or omitted, in accordancewith the terms of this Agreement and the Guaranty, by the Administrative Agentand the Required Lenders, each of whom shall be entitled to act at its solediscretion and exclusively in its own interest given its own RevolvingCommitment and its own interest in the Loans, L/C Obligations and otherObligations to it arising under this Agreement or the other Loan Documents,without any duty or liability to any other Guarantied Party or as to any RelatedObligation and without regard to whether any Related Obligation remainsoutstanding or is otherwise affected or put in jeopardy thereby; (d) no holderof Related Obligations and no other Guarantied Party (except the AdministrativeAgent and the Lenders, to 73the extent set forth in this Agreement) shall have any right to be notified of,or to direct, require or be heard with respect to, any action taken or omittedunder this Agreement or the other Loan Documents; and (e) no holder of anyRelated Obligation shall exercise any right of setoff, banker’s lien or similarright, except as expressly provided in Section 10.09 hereof. 9.13 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or otherPersons identified on the facing page or signature pages of this Agreement as a”syndication agent,” “documentation agent,” “co-agent,” “book manager,” “leadmanager,” “arranger, ” “lead arranger” or “co-arranger” shall have any right,power, obligation, liability, responsibility or duty under this Agreement otherthan, in the case of such Lenders, those applicable to all Lenders as such.Without limiting the foregoing none of the Lenders or other Persons soidentified shall have or be deemed to have any fiduciary relationship with anyLender. Each Lender acknowledges that it has not relied, and will not rely, onany of the Lenders or other Persons so identified in deciding to enter into thisAgreement or in taking or not taking action hereunder. ARTICLE X. MISCELLANEOUS 10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of thisAgreement or any other Loan Document, and no consent to any departure by theBorrower or any other Loan Party therefrom, shall be effective unless in writingsigned by the Required Lenders and the Borrower or the applicable Loan Party, asthe case may be, and acknowledged by the Administrative Agent, and each suchwaiver or consent shall be effective only in the specific instance and for thespecific purpose for which given; provided, however, that no such amendment,waiver or consent shall: (a) extend or increase the Revolving Commitment of any Lender (orreinstate any Revolving Commitment terminated pursuant to Section 8.02 hereof)or subject the Lenders to any additional obligations, without the writtenconsent of such Lender; (b) postpone any scheduled date fixed by this Agreement or any other LoanDocument for any payment (excluding mandatory prepayments) of principal,interest, fees or other amounts due to the Lenders (or any of them) hereunder orunder any other Loan Document or waive any Event of Default occurring pursuantto Section 8.01(a) hereof, without the written consent of each Lender directlyaffected thereby; (c) reduce or subordinate the principal of, or the rate of interestspecified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) ofthe proviso below) any fees or other amounts payable hereunder or under anyother Loan Document, or change the manner of computation of the Leverage Ratio(including any change in any defined terms used therein) that would result in areduction of any interest rate on any Loan or fee payable hereunder, without thewritten consent of each Lender directly affected thereby; (d) change the percentage of the Aggregate Revolving Commitments or of theaggregate unpaid principal amount of the Loans and L/C Obligations which isrequired for the Lenders or any of them to take any action hereunder, withoutthe written consent of each Lender; 74 (e) change the Pro Rata Share or Voting Percentage of any Lender, withoutthe written consent of each Lender; (f) amend this Section, or any provision herein providing for consent orother action by all the Lenders, without the written consent of each Lender; or (g) release any Guarantor from any Guaranty or subordinate any obligationof any Guarantor under any Guaranty, except as otherwise provided in Section9.10 hereof, without the written consent of each Lender;and, provided further, that (i) no amendment, waiver or consent shall, unless inwriting and signed by each L/C Issuer in addition to the Required Lenders or allthe Lenders, as the case may be, affect the rights or duties of such L/C Issuerunder this Agreement or any Letter of Credit Application relating to any Letterof Credit issued or to be issued by it; (ii) no amendment, waiver or consentshall, unless in writing and signed by the Swing Line Lender in addition to theRequired Lenders or all the Lenders, as the case may be, affect the rights orduties of the Swing Line Lender under this Agreement; (iii) no amendment, waiveror consent shall, unless in writing and signed by the Administrative Agent inaddition to the Required Lenders or all the Lenders, as the case may be, affectthe rights or duties of the Administrative Agent under this Agreement or anyother Loan Document; and (iv) no Agent Fee Letter may be amended, or rights orprivileges thereunder waived, except in a writing executed by the parties tosuch Agent Fee Letter. Notwithstanding anything to the contrary herein, anyLender that has failed to fund any portion of the Loans, participations in L/CObligations or participations in Swing Line Loans required to be funded by ithereunder shall not have any right to approve or disapprove any amendment,waiver or consent hereunder, except that the Pro Rata Share of such Lender maynot be increased without the consent of such Lender. 10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES. (a) General. Unless otherwise expressly provided herein, all notices andother communications provided for hereunder shall be in writing (including byfacsimile transmission) and mailed, faxed or delivered, to the address,facsimile number or (subject to subsection (c) below) electronic mail addressspecified for notices on Schedule 10.02; or, in the case of the Borrower, theAdministrative Agent, each L/C Issuer or the Swing Line Lender, to such otheraddress as shall be designated by such party in a notice to the other parties,and in the case of any other party, to such other address as shall be designatedby such party in a notice to the Borrower, the Administrative Agent, each L/CIssuer and the Swing Line Lender. All such notices and other communicationsshall be deemed to be given or made upon the earlier to occur of (i) actualreceipt by the intended recipient and (ii) (A) if delivered by hand or bycourier, when signed for by the intended recipient; (B) if delivered bycertified mail, three Business Days after deposit in the mails, postage prepaidfor certified delivery with return receipt requested; (C) if delivered byfacsimile, when sent and receipt has been confirmed by telephone; and (D) ifdelivered by electronic mail (which form of delivery is subject to theprovisions of subsection (c) below), when delivered; provided, however, thatnotices and other communications to the Administrative Agent, each L/C Issuerand the Swing Line Lender pursuant to Article II shall not be effective untilactually received by such Person. Any notice or other communication permitted tobe given, made or 75confirmed by telephone hereunder shall be given, made or confirmed by means of atelephone call to the intended recipient at the number specified on Schedule10.02, it being understood and agreed that a voicemail message shall in no eventbe effective as a notice, communication or confirmation hereunder. (b) Effectiveness of Facsimile Documents and Signatures. Loan Documentsmay be transmitted and/or signed by facsimile. The effectiveness of any suchdocuments and signatures shall, subject to applicable Law, have the same forceand effect as manually-signed originals and shall be binding on all LoanParties, the Administrative Agent and the Lenders. The Administrative Agent mayalso require that any such documents and signatures be confirmed by amanually-signed original thereof; provided, however, that the failure to requestor deliver the same shall not limit the effectiveness of any facsimile documentor signature. (c) Other Communications. Notwithstanding anything in this Section 10.02or elsewhere in this Agreement to the contrary, the Borrower agrees that theAdministrative Agent may make any material delivered by the Borrower to theAdministrative Agent, as well as any amendments, waivers, consents, and otherwritten information, documents, instruments and other materials relating to theBorrower, any of its Subsidiaries, or any other materials or matters relating tothis Agreement, the Notes or any of the transactions contemplated hereby(collectively, the “Communications”) available to the Lenders by posting suchnotices on an electronic delivery system (which may be provided by theAdministrative Agent, an Affiliate of the Administrative Agent, or any Personthat is not an Affiliate of the Administrative Agent), such as IntraLinks, or asubstantially similar electronic system (the “Platform”). The Borroweracknowledges that (i) the distribution of material through an electronic mediumis not necessarily secure and that there are confidentiality and other risksassociated with such distribution, (ii) the Platform is provided “as is” and “asavailable” and (iii) neither the Administrative Agent nor any of its Affiliateswarrants the accuracy, completeness, timeliness, sufficiency, or sequencing ofthe Communications posted on the Platform. The Administrative Agent and itsAffiliates expressly disclaim with respect to the Platform any liability forerrors in transmission, incorrect or incomplete downloading, delays in postingor delivery, or problems accessing the Communications posted on the Platform andany liability for any losses, costs, expenses or liabilities that may besuffered or incurred in connection with the Platform. No warranty of any kind,express, implied or statutory, including, without limitation, any warranty ofmerchantability, fitness for a particular purpose, non-infringement of thirdparty rights or freedom from viruses or other code defects, is made by theAdministrative Agent or any of its Affiliates in connection with the Platform.Each Lender agrees that notice to it (as provided in the next sentence) (a”Notice”) specifying that any Communication has been posted to the Platformshall for purposes of this Agreement constitute effective delivery to suchLender of such information, documents or other materials comprising suchCommunication. Each Lender agrees (i) to notify, on or before the date suchLender becomes a party to this Agreement, the Administrative Agent in writing ofsuch Lender’s e-mail address to which a Notice may be sent (and from time totime thereafter to ensure that the Agent has on record an effective e-mailaddress for such Lender) and (ii) that any Notice may be sent to such e-mailaddress. (d) Reliance by Administrative Agent and Lenders. The Administrative Agentand the Lenders shall be entitled to rely and act upon any notices (includingtelephonic or electronically mailed Revolving Loan Notices and Swing Line LoanNotices) purportedly given by or on behalf of the Borrower even if (i) suchnotices were not made in a manner specified 76herein, were incomplete or were not preceded or followed by any other form ofnotice specified herein, or (ii) the terms thereof, as understood by therecipient, varied from any confirmation thereof. The Borrower shall indemnifyeach Agent-Related Person and each Lender from all losses, costs, expenses andliabilities resulting from the reliance by such Person on each noticepurportedly given by or on behalf of the Borrower. All telephonic orelectronically mailed notices to and other communications with theAdministrative Agent may be recorded by the Administrative Agent, and each ofthe parties hereto hereby consents to such recording. 10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or theAdministrative Agent to exercise, and no delay by any such Person in exercising,any right, remedy, power or privilege hereunder shall operate as a waiverthereof; nor shall any single or partial exercise of any right, remedy, power orprivilege hereunder preclude any other or further exercise thereof or theexercise of any other right, remedy, power or privilege. The rights, remedies,powers and privileges herein or therein provided are cumulative and notexclusive of any rights, remedies, powers and privileges provided by law. 10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to payor reimburse the Administrative Agent for all reasonable costs and expensesincurred in connection with the development, preparation, negotiation andexecution of this Agreement and the other Loan Documents and any amendment,waiver, consent or other modification of the provisions hereof and thereof(whether or not the transactions contemplated hereby or thereby areconsummated), and the consummation and administration of the transactionscontemplated hereby and thereby, including all Attorney Costs, (b) to pay orreimburse the Administrative Agent for all reasonable costs and expensesincurred in connection with the enforcement, attempted enforcement, orpreservation of any rights or remedies under this Agreement or the other LoanDocuments (including all such costs and expenses incurred during any “workout”or restructuring in respect of the Obligations and during any legal proceeding,including any proceeding under any Debtor Relief Law), including all AttorneyCosts, and (c) to pay or reimburse each Lender for all reasonable costs andexpenses incurred after an Event of Default in connection with the enforcement,attempted enforcement, or preservation of any rights or remedies under thisAgreement or the other Loan Documents (including all such costs and expensesincurred during any “workout” or restructuring in respect of the Obligations andduring any legal proceeding, including any proceeding under any Debtor ReliefLaw), including all Attorney Costs. The foregoing costs and expenses shallinclude all reasonable search, filing, recording, title insurance and appraisalcharges and fees and taxes related thereto, and other reasonable out-of-pocketexpenses incurred by the Administrative Agent and the reasonable cost ofindependent public accountants and other outside experts retained by theAdministrative Agent or any Lender. The agreements in this Section shall survivethe termination of the Revolving Commitments and repayment of all the otherObligations. 10.05 INDEMNIFICATION BY THE BORROWER. (a) WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED,THE BORROWER AGREES TO INDEMNIFY, SAVE AND HOLD HARMLESS EACH AGENT-RELATEDPERSON, EACH LENDER AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS,EMPLOYEES, COUNSEL, AGENTS AND ATTORNEYS-IN-FACT (COLLECTIVELY THE”INDEMNITEES”) FROM AND 77AGAINST: (a) ANY AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION THAT MAYAT ANY TIME (INCLUDING AT ANY TIME FOLLOWING REPAYMENT OF THE OBLIGATIONS ANDTHE RESIGNATION OR REMOVAL OF THE ADMINISTRATIVE AGENT OR THE REPLACEMENT OF ANYLENDER) BE ASSERTED OR IMPOSED AGAINST ANY INDEMNITEE, ARISING OUT OF, OR IN ANYWAY CONNECTED WITH, OR AS A RESULT OF (1) THE EXECUTION OR PERFORMANCE OF THISAGREEMENT OR ANY OTHER LOAN DOCUMENT, (2) ANY VIOLATION BY THE BORROWER OR ANYOF ITS SUBSIDIARIES OR ANY AFFILIATES OF ANY LAWS, INCLUDING WITHOUT LIMITATIONENVIRONMENTAL LAWS, OR ANY ENVIRONMENTAL CLAIM AGAINST ANY INDEMNITEE, (3) ANYFAILURE BY THE BORROWER OR ANY OF ITS SUBSIDIARIES TO COMPLY WITH ANY COVENANTOR AGREEMENT CONTAINED IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, (4) ANYMISREPRESENTATION BY THE BORROWER OR ITS SUBSIDIARIES UNDER THIS AGREEMENT ORANY OTHER LOAN DOCUMENTS OR (5) THE USE OR CONTEMPLATED USE OF THE PROCEEDS OFANY CREDIT EXTENSION; (b) ANY ADMINISTRATIVE OR INVESTIGATIVE PROCEEDING BY ANYGOVERNMENTAL AUTHORITY ARISING OUT OF OR RELATED TO A CLAIM, DEMAND, ACTION ORCAUSE OF ACTION DESCRIBED IN SUBSECTION (a) ABOVE; AND (c) ANY AND ALLLIABILITIES (INCLUDING LIABILITIES UNDER INDEMNITIES), LOSSES, COSTS OR EXPENSES(INCLUDING ATTORNEY COSTS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OFTHE ASSERTION OF ANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION ORPROCEEDING, OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITHANY FOREGOING CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING, IN ALLCASES, WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNITEE, AND,WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OFACTION OR PROCEEDING (ALL THE FOREGOING, COLLECTIVELY, THE “INDEMNIFIEDLIABILITIES”); PROVIDED THAT NO INDEMNITEE SHALL BE ENTITLED TO INDEMNIFICATIONFOR (i) ANY CLAIM CAUSED BY ITS OWN GROSS NEGLIGENCE, BAD FAITH OR WILLFULMISCONDUCT, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENTJURISDICTION OR (ii) FOR ANY LOSS ASSERTED AGAINST IT BY ANOTHER INDEMNITEE. THEFOREGOING INDEMNITY SHALL APPLY TO THE NEGLIGENCE OF THE INDEMNITEE (BUT NOT THEGROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF THE INDEMNITEE). THEAGREEMENTS IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THE REVOLVINGCOMMITMENTS AND REPAYMENT OF ALL THE OTHER OBLIGATIONS. (b) EACH INDEMNITEE AGREES WITH RESPECT TO ANY ACTION AGAINST IT INRESPECT OF WHICH INDEMNITY MAY BE SOUGHT UNDER THIS SECTION 10.05, THAT SUCHINDEMNITEE WILL GIVE WRITTEN NOTICE OF THE COMMENCEMENT OF SUCH ACTION TO THEBORROWER WITHIN A REASONABLE TIME AFTER SUCH INDEMNITEE IS MADE A PARTY TO SUCHACTION. UPON RECEIPT OF ANY SUCH NOTICE BY THE BORROWER, THE BORROWER, UNLESSSUCH INDEMNITEE SHALL BE ADVISED BY ITS COUNSEL THAT THERE ARE OR MAY BE LEGALDEFENSES AVAILABLE TO SUCH INDEMNITEE THAT ARE 78DIFFERENT FROM, IN ADDITION TO, OR IN CONFLICT WITH, THE DEFENSES AVAILABLE TOTHE BORROWER, MAY PARTICIPATE WITH THE INDEMNITEE IN THE DEFENSE OF SUCHINDEMNIFIED MATTER, INCLUDING THE EMPLOYMENT OF COUNSEL CONSENTED TO BY SUCHINDEMNITEE (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD); PROVIDED,HOWEVER, NOTHING PROVIDED HEREIN SHALL (i) ENTITLE THE BORROWER TO ASSUME THEDEFENSE OF SUCH INDEMNIFIED MATTER OR (ii) REQUIRE THE CONSENT OF THE BORROWERFOR ANY SETTLEMENT OR ACTION IN RESPECT OF SUCH INDEMNIFIED MATTER, ALTHOUGHEACH INDEMNITEE AGREES TO CONFER AND CONSULT WITH THE BORROWER BEFORE MAKING ANYSETTLEMENT OF SUCH INDEMNIFIED MATTER. 10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a paymentto the Administrative Agent or any Lender, or the Administrative Agent or anyLender exercises its right of set-off, and such payment or the proceeds of suchset-off or any part thereof is subsequently invalidated, declared to befraudulent or preferential, set aside or required (including pursuant to anysettlement entered into by the Administrative Agent or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Debtor Relief Law or otherwise, then(a) to the extent of such recovery, the obligation or part thereof originallyintended to be satisfied shall be revived and continued in full force and effectas if such payment had not been made or such set-off had not occurred, and (b)each Lender severally agrees to pay to the Administrative Agent upon demand itsapplicable share of any amount so recovered from or repaid by the AdministrativeAgent, plus interest thereon from the date of such demand to the date suchpayment is made at a rate per annum equal to the Federal Funds Rate from time totime in effect. 10.07 SUCCESSORS AND ASSIGNS. (a) The provisions of this Agreement shall be binding upon and inure tothe benefit of the parties hereto and their respective successors and assignspermitted hereby, except that the Borrower may not assign or otherwise transferany of its rights or obligations hereunder without the prior written consent ofeach Lender (and any attempted assignment or transfer by the Borrower withoutsuch consent shall be null and void). Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby and, to theextent expressly contemplated hereby, the Indemnitees) any legal or equitableright, remedy or claim under or by reason of this Agreement. (b) Any Lender may assign to one or more Eligible Assignees all or aportion of its rights and obligations under this Agreement (including all or aportion of its Revolving Commitment and the Loans (including for purposes ofthis subsection (b), participations in L/C Obligations and in Swing Line Loans)at the time owing to it); provided that (i) except in the case of an assignmentof the entire remaining amount of the assigning Lender’s Revolving Commitmentand the Loans at the time owing to it or in the case of an assignment to aLender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,the aggregate amount of the Revolving Commitment (which for this purposeincludes Loans outstanding thereunder) subject to each such assignment,determined as of the date the Assignment and Acceptance with 79respect to such assignment is delivered to the Administrative Agent, shall notbe less than $5,000,000 unless each of the Administrative Agent and, so long asno Event of Default has occurred and is continuing, the Borrower otherwiseconsents (each such consent not to be unreasonably withheld or delayed), (ii)each partial assignment shall be made as an assignment of a proportionate partof all the assigning Lender’s rights and obligations under this Agreement withrespect to the Loans or the Revolving Commitments assigned, except that thisclause (ii) shall not apply to rights in respect of outstanding Swing LineLoans, (iii) the parties to each assignment shall execute and deliver to theAdministrative Agent an Assignment and Acceptance, together with a processingand recordation fee of $3,500 (provided no such fee shall be required for anassignment to an Affiliate of a Lender) and (iv) in the case of an assignment toan Affiliate of a Lender or to an Approved Fund, the assigning Lender shallensure that all of the Borrower’s dealings with the assignee shall be conductedthrough the same Lender. Subject to acceptance and recording thereof by theAdministrative Agent pursuant to subsection (c) of this Section, from and afterthe effective date specified in each Assignment and Acceptance, the EligibleAssignee thereunder shall be a party hereto and, to the extent of the interestassigned by such Assignment and Acceptance, have the rights and obligations of aLender under this Agreement, and the assigning Lender thereunder shall, to theextent of the interest assigned by such Assignment and Acceptance, be releasedfrom its obligations under this Agreement (and, in the case of an Assignment andAcceptance covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto but shall continueto be entitled to the benefits of Sections 3.07 (which accrued to such Lenderprior to such assignment), 10.04 and 10.05 hereof). Upon request and at noexpense to the Borrower, the Borrower shall execute and deliver new orreplacement Notes to the assigning Lender and the assignee Lender. Anyassignment or transfer by a Lender of rights or obligations under this Agreementthat does not comply with this subsection shall be treated for purposes of thisAgreement as a sale by such Lender of a participation in such rights andobligations in accordance with subsection (d) of this Section. (c) The Administrative Agent, acting solely for this purpose as an agentof the Borrower, shall maintain at the Administrative Agent’s Office a copy ofeach Assignment and Acceptance delivered to it and a register for therecordation of the names and addresses of the Lenders, and the RevolvingCommitments of, and principal amount of the Loans and L/C Obligations owing to,each Lender pursuant to the terms hereof from time to time (the “Register”). Theentries in the Register shall be conclusive, and the Borrower, theAdministrative Agent and the Lenders may treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Lender hereunder forall purposes of this Agreement, notwithstanding notice to the contrary. TheRegister shall be available for inspection by the Borrower and any Lender, atany reasonable time and from time to time upon reasonable prior notice. (d) Any Lender may, without the consent of, or notice to, the Borrower orthe Administrative Agent, sell participations to one or more banks or otherentities (a “Participant”) in all or a portion of such Lender’s rights and/orobligations under this Agreement (including all or a portion of its RevolvingCommitments and/or the Loans (including such Lender’s participations in L/CObligations and/or Swing Line Loans) owing to it); provided that (i) suchLender’s obligations under this Agreement shall remain unchanged, (ii) suchLender shall remain solely responsible to the other parties hereto for theperformance of such obligations and (iii) the 80Borrower, the Administrative Agent and the other Lenders shall continue to dealsolely and directly with such Lender in connection with such Lender’s rights andobligations under this Agreement. Any agreement or instrument pursuant to whicha Lender sells such a participation shall provide that such Lender shall retainthe sole right to enforce this Agreement and to approve any amendment,modification or waiver of any provision of this Agreement; provided that suchagreement or instrument may provide that such Lender will not, without theconsent of the Participant, agree to any amendment, waiver or other modificationthat would (i) postpone any date upon which any payment of money is scheduled tobe paid to such Participant, (ii) reduce the principal, interest, fees or otheramounts payable to such Participant, or (iii) release any Guarantor from theGuaranty except as permitted under Section 9.10. Subject to subsection (e) ofthis Section, the Borrower agrees that each Participant shall be entitled to thebenefits of Sections 3.01, 3.04 and 3.05 hereof to the same extent as if it werea Lender and had acquired its interest by assignment pursuant to subsection (b)of this Section. To the extent permitted by law, each Participant also shall beentitled to the benefits of Section 10.09 hereof as though it were a Lender,provided such Participant agrees to be subject to Section 2.13 hereof as thoughit were a Lender. (e) A Participant shall not be entitled to receive any greater paymentunder Section 3.01, 3.02 or 3.04 hereof than the applicable Lender would havebeen entitled to receive with respect to the participation sold to suchParticipant, unless the sale of the participation to such Participant is madewith the Borrower’s prior written consent. A Participant that would be a ForeignLender if it were a Lender shall not be entitled to the benefits of Section 3.01hereof unless the Borrower is notified of the participation sold to suchParticipant and such Participant agrees, for the benefit of the Borrower, tocomply with Section 10.15 hereof as though it were a Lender. (f) Any Lender may at any time pledge or assign a security interest in allor any portion of its rights under this Agreement (including under its Notes, ifany) to secure obligations of such Lender, including any pledge or assignment tosecure obligations to a Federal Reserve Bank, without the requirement for noticeto or consent of any Person or the payment of any fee; provided that no suchpledge or assignment shall release a Lender from any of its obligationshereunder or substitute any such pledgee or assignee for such Lender as a partyhereto. (g) As used herein, the following terms have the following meanings: “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by the Administrative Agent, each L/C Issuer, the Swing Line Lender and, unless (x) such Person is taking delivery of an assignment in connection with physical settlement of a credit derivative transaction or (y) an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed). “Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. 81 “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. (h) Notwithstanding anything to the contrary contained herein, if at anytime the Administrative Agent, acting in its capacity as a Lender, assigns allof its Revolving Commitment and Loans pursuant to subsection (b) above, theAdministrative Agent may, and shall if requested by the Borrower, (i) upon 30days’ notice to the Borrower and the Lenders, resign as a L/C Issuer and/or (ii)upon five Business Days’ notice to the Borrower and the Lenders, terminate theSwing Line. In the event of any such termination of the Swing Line, the Borrowershall be entitled to appoint from among the Lenders a successor Swing LineLender hereunder and upon acceptance of such appointment the Swing Line shallautomatically be reinstated and such appointed Lender shall automatically assumeall the rights and obligations of the Swing Line Lender hereunder; provided,however, that no failure by the Borrower to appoint any such successor shallaffect the termination of the Swing Line, as the case may be. The resigning L/CIssuer shall retain all the rights and obligations of a L/C Issuer hereunderwith respect to all Letters of Credit issued by it that are outstanding as ofthe effective date of its resignation as a L/C Issuer and all L/C Obligationswith respect thereto (including the right to require the Lenders to make BaseRate Loans or fund participations in Unreimbursed Amounts pursuant to Section2.03(c) hereof); provided that a successor L/C Issuer shall issue letters ofcredit in substitution for the Letters of Credit, if any, outstanding at thetime of such resignation or make other arrangement satisfactory to the retiringL/C Issuer to effectively assume the obligations of the retiring L/C Issuer withrespect to such Letters of Credit. If the resigning Administrative Agent, actingin its capacity as a Swing Line Lender, terminates its Swing Line, it shallretain all the rights of the Swing Line Lender provided for hereunder withrespect to Swing Line Loans made by it and outstanding as of the effective dateof such termination, including the right to require the Lenders to make BaseRate Loans or fund participations in outstanding Swing Line Loans pursuant toSection 2.04(c) hereof. 10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lendersagrees to maintain the confidentiality of the Information (as defined below),except that Information may be disclosed (a) to its and its Affiliates’directors, officers, employees and agents, including accountants, legal counseland other advisors (it being understood that the Persons to whom such disclosureis made will be informed of the confidential nature of such Information andrequired to keep such Information confidential) with respect to the monitoringand administration of this Agreement or any other Loan Documents; (b) to theextent required by any regulatory authority; (c) to the extent required byapplicable laws or regulations or by any subpoena or similar legal process; (d)to any other party to this Agreement; (e) in connection with the exercise of anyremedies hereunder or any suit, action or proceeding relating to this Agreementor the enforcement of rights hereunder; (f) subject to an agreement containingprovisions substantially the same as those of this Section, to (i) any EligibleAssignee of or Participant in, or any prospective Eligible Assignee of orParticipant in, any of its rights or obligations under this Agreement or (ii)any direct or indirect contractual counterparty or prospective counterparty (orsuch contractual counterparty’s or prospective counterparty’s professionaladvisor) to any credit derivative transaction relating to obligations of theBorrower; (g) with the written consent of the Borrower; (h) to the extent suchInformation (i) becomes publicly available other than as a result of a breach ofthis Section or (ii) becomes available to the Administrative Agent or any Lender 82on a nonconfidential basis from a source other than the Borrower; or (i) only tothe extent required, to the National Association of Insurance Commissioners orany other similar organization or any nationally recognized rating agency thatrequires access to information about a Lender’s or its Affiliates’ investmentportfolio in connection with ratings issued with respect to such Lender or itsAffiliates. For the purposes of this Section, “Information” means allinformation received from the Borrower relating to the Borrower, its Affiliatesor their respective businesses, other than any such information that isavailable to the Administrative Agent or any Lender on a nonconfidential basisprior to disclosure by the Borrower; provided that, in the case of informationreceived from the Borrower after the date hereof, such information is clearlyidentified at the time of disclosure as confidential. Any Person required tomaintain the confidentiality of Information as provided in this Section shall beconsidered to have complied with its obligations to do so if such Person hasexercised the same degree of care to maintain the confidentiality of suchInformation as such Person would accord to its own confidential Information. 10.09 SET-OFF. In addition to any rights and remedies of the Lendersprovided by law, upon the occurrence and during the continuance of any Event ofDefault, each Lender is authorized at any time and from time to time, withoutprior notice to the Borrower or any other Loan Party, any such notice beingwaived by the Borrower (on its own behalf and on behalf of each Loan Party) tothe fullest extent permitted by law, to set off and apply any and all deposits(general or special (except trust and escrow accounts), time or demand,provisional, final or otherwise) at any time held by, and other indebtedness atany time owing by, such Lender to or for the credit or the account of therespective Loan Parties against any and all Obligations owing to such Lender,now or hereafter existing, irrespective of whether or not the AdministrativeAgent or such Lender shall have made demand under this Agreement or any otherLoan Document and although such Obligations may be contingent or unmatured. EachLender agrees promptly to notify the Borrower and the Administrative Agent afterany such set-off and application made by such Lender; provided, however, thatthe failure to give such notice shall not affect the validity of such set-offand application. 10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrarycontained in any Loan Document, the interest paid or agreed to be paid under theLoan Documents shall not exceed the Highest Lawful Rate. If the AdministrativeAgent or any Lender shall receive interest in an amount that exceeds the HighestLawful Rate, the excess interest shall be applied to the principal of the Loansor, if it exceeds such unpaid principal, refunded to the Borrower. Indetermining whether the interest contracted for, charged, or received by theAdministrative Agent or a Lender exceeds the Highest Lawful Rate, such Personmay, to the extent permitted by applicable Law, (a) characterize any paymentthat is not principal as an expense, fee, or premium rather than interest, (b)exclude voluntary prepayments and the effects thereof, and (c) amortize,prorate, allocate, and spread in equal or unequal parts the total amount ofinterest throughout the contemplated term of the Obligations. 10.11 COUNTERPARTS. This Agreement may be executed in one or morecounterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument. A counterpart hereof (orsignature page thereto) signed and transmitted by any Person party hereto to theAdministrative Agent (or its counsel) by facsimile machine, telecopier orelectronic mail is to be treated as an original. The signature of such Personthereon, for 83purposes hereof, is to be considered as an original signature, and thecounterpart (or signature page thereto) so transmitted is to be considered tohave the same binding effect as an original signature on an original document. 10.12 INTEGRATION. In the event of any conflict between the provisions ofthis Agreement and those of any other Loan Document, the provisions of thisAgreement shall control; provided that the inclusion of supplemental rights orremedies in favor of the Administrative Agent or the Lenders in any other LoanDocument shall not be deemed a conflict with this Agreement. Each Loan Documentwas drafted with the joint participation of the respective parties thereto andshall be construed neither against nor in favor of any party, but rather inaccordance with the fair meaning thereof. 10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations andwarranties made hereunder and in any other Loan Document or other documentdelivered pursuant hereto or thereto or in connection herewith or therewithshall survive the execution and delivery hereof and thereof. Suchrepresentations and warranties have been or will be relied upon by theAdministrative Agent and each Lender, regardless of any investigation made bythe Administrative Agent or any Lender or on their behalf and notwithstandingthat the Administrative Agent or any Lender may have had notice or knowledge ofany Default or Event of Default at the time of any Credit Extension, and shallcontinue in full force and effect as long as any Loan or any other Obligationshall remain unpaid or unsatisfied or any Letter of Credit shall remainoutstanding. 10.14 SEVERABILITY. Any provision of this Agreement and the other LoanDocuments to which the Borrower is a party that is prohibited or unenforceablein any jurisdiction shall, as to such jurisdiction, be ineffective to the extentof such prohibition or unenforceability without invalidating the remainingprovisions thereof, and any such prohibition or unenforceability in anyjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction. 10.15 FOREIGN LENDERS. Each Lender that is a “foreign corporation,partnership or trust” within the meaning of the Code (a “Foreign Lender”) shalldeliver to the Administrative Agent, prior to receipt of any payment subject towithholding under the Code (or after accepting an assignment of an interestherein), two duly signed completed copies of either IRS Form W-8BEN or anysuccessor thereto (relating to such Person and entitling it to an exemptionfrom, or reduction of, withholding tax on all payments to be made to such Personby the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successorthereto (relating to all payments to be made to such Person by the Borrowerpursuant to this Agreement) or such other evidence satisfactory to the Borrowerand the Administrative Agent that such Person is entitled to an exemption from,or reduction of, U.S. withholding tax. Thereafter and from time to time, eachsuch Person shall (a) promptly submit to the Administrative Agent suchadditional duly completed and signed copies of one of such forms (or suchsuccessor forms as shall be adopted from time to time by the relevant UnitedStates taxing authorities) as may then be available under then current UnitedStates laws and regulations to avoid, or such evidence as is satisfactory to theBorrower and the Administrative Agent of any available exemption from orreduction of, United States withholding taxes in respect of all payments to bemade to such Person by the Borrower pursuant to this Agreement, (b) promptlynotify the Agent of any change in circumstances which 84would modify or render invalid any claimed exemption or reduction, and (c) takesuch steps as shall not be materially disadvantageous to it, in the reasonablejudgment of such Lender, and as may be reasonably necessary (including there-designation of its Lending Office) to avoid any requirement of applicableLaws that the Borrower make any deduction or withholding for taxes from amountspayable to such Person. If such Person fails to deliver the above forms or otherdocumentation, then the Administrative Agent may withhold from any interestpayment to such Person an amount equivalent to the applicable withholding taximposed by Sections 1441 and 1442 of the Code, without reduction. If anyGovernmental Authority asserts that the Administrative Agent did not properlywithhold any tax or other amount from payments made in respect of such Person,such Person shall indemnify the Administrative Agent therefore, including allpenalties and interest, any taxes imposed by any jurisdiction on the amountspayable to the Agent under this Section, and costs and expenses (includingAttorney Costs) of the Administrative Agent. The obligation of the Lenders underthis Section shall survive the payment of all Obligations and the resignation orreplacement of the Administrative Agent. 10.16 REMOVAL AND REPLACEMENT OF LENDERS. (a) Under any circumstances set forth herein providing that the Borrowershall have the right to remove or replace a Lender as a party to this Agreement,the Borrower may, upon notice to such Lender and the Administrative Agent, (i)remove such Lender by terminating such Lender’s Revolving Commitments or (ii)replace such Lender by causing such Lender to assign its Revolving Commitments(without payment of any assignment fee) pursuant to Section 10.07(b) hereof toone or more other Lenders or Eligible Assignees procured by the Borrower;provided, however, that if the Borrower elects to exercise such right withrespect to any Lender pursuant to Section 3.06(b) hereof, it shall be obligatedto remove or replace, as the case may be, all Lenders that have made similarrequests for compensation pursuant to Section 3.01, 3.02 or 3.04 hereof. In suchevent, the Borrower shall (x) pay in full all principal, interest, fees andother amounts owing to such Lender through the date of termination or assignment(including any amounts payable pursuant to Section 3.05 hereof), (y) provideappropriate assurances and indemnities (which may include letters of credit) toeach L/C Issuer and the Swing Line Lender as each may reasonably require withrespect to any continuing obligation to purchase participation interests in anyL/C Obligations or any Swing Line Loans then outstanding, and (z) release suchLender from its obligations under the Loan Documents. Any Lender being replacedshall execute and deliver an Assignment and Acceptance with respect to suchLender’s Revolving Commitments and outstanding Credit Extensions. TheAdministrative Agent shall distribute an amended Schedule 2.01, which shall bedeemed incorporated into this Agreement, to reflect changes in the identities ofthe Lenders and adjustments of their respective Revolving Commitments and/or ProRata Shares resulting from any such removal or replacement. (b) In order to make all the Lenders’ interests in any outstanding CreditExtensions ratable in accordance with any revised Pro Rata Shares after givingeffect to the removal or replacement of a Lender, the Borrower shall pay orprepay, if necessary, on the effective date thereof, all outstanding Loans ofall Lenders, together with any amounts due under Section 3.05 hereof. TheBorrower may then request Loans from the Lenders in accordance with theirrevised Pro Rata Shares. The Borrower may net any payments required hereunderagainst any funds being provided by any Lender or Eligible Assignee replacing aterminating Lender. The effect 85for purposes of this Agreement shall be the same as if separate transfers offunds had been made with respect thereto. (c) This Section shall supersede any provision in Section 10.01 hereof tothe contrary. 10.17 EXCEPTIONS TO COVENANTS. Neither the Borrower nor any Subsidiaryshall be deemed to be permitted to take any action or fail to take any actionwhich is permitted as an exception to any of the covenants contained herein orwhich is within the permissible limits of any of the covenants contained hereinif such action or omission would result in the breach of any other covenantcontained herein. 10.18 GOVERNING LAW. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,THE LAW OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMEDENTIRELY WITHIN SUCH STATE; PROVIDED THAT EACH PARTY SHALL RETAIN ALL RIGHTSARISING UNDER FEDERAL LAW. (b) The parties hereto agree that Chapter 346 (other than 346.004) of theTexas Finance Code (which regulates certain revolving credit accounts andrevolving tri-party accounts) shall not apply to Loans under this Agreement. (c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANYOTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTINGIN DALLAS COUNTY, TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERNDISTRICT OF TEXAS (DALLAS DIVISION), AND BY EXECUTION AND DELIVERY OF THISAGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FORITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OFTHOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLYWAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ONTHE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THEBRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOANDOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVEAGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHERPROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCHSTATE. 10.19 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENTHEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTIONOR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITHOR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEMWITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACHCASE WHETHER NOW EXISTING OR HEREAFTER 86ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTYHEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OFACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TOTHIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITHANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THEWAIVER OF THEIR RIGHT TO TRIAL BY JURY. 10.20 USA PATRIOT ACT NOTICE. Each Lender and the Administrative Agent(for itself and not on behalf of any Lender) hereby notifies the Borrower thatpursuant 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 informationincludes the name and address of the Borrower and other information required bythe Act or any regulation promulgated pursuant to the Act that will allow suchLender or the Administrative Agent, as applicable, to identify the Borrower inaccordance with the Act 10.21 AMENDMENT, RESTATEMENT, EXTENSION, RENEWAL AND INCREASE. ThisAgreement is an amendment, restatement, extension, renewal and increase of theExisting Credit Agreement, and, as such, except for the “Obligations” as definedin the Existing Credit Agreement (which shall survive to the extent renewed andrestated by the terms of this Agreement), all other terms and provisions of thisAgreement supersede in their entirety the Existing Credit Agreement. 10.22 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTSREPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BYEVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THEPARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. REMAINDER OF PAGE LEFT INTENTIONALLY BLANK 87 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beduly executed as of the date first above written. CASH AMERICA INTERNATIONAL, INC. By: /s/ David J. Clay —————————- David J. Clay Vice President and Treasurer 88 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent By: /s/ Daniel T. Brown ——————————– Name: Daniel T. Brown ——————————– Title: Vice President ——————————– WELLS FARGO BANK, NATIONAL ASSOCIATION, as an L/C Issuer, a Lender and Swing Line Lender By: /s/ Daniel T. Brown ——————————– Name: Daniel T. Brown ——————————– Title: Vice President ——————————– 89 JPMORGAN CHASE BANK, N.A., as Syndication Agent and a Lender By: /s/ Robert Humphreys ——————————– Name: Robert Humphreys ——————————– Title: Vice President ——————————– 90 U. S. BANK NATIONAL ASSOCIATION, as a Co-Documentation Agent and a Lender By: /s/ John Holland ——————————– Name: John Holland ——————————– Title: Senior Vice President ——————————– 91 KEYBANK NATIONAL ASSOCIATION, as a Co- Documentation Agent and a Lender By: /s/ Joanne Bramanti ——————————– Name: Joanne Bramanti ——————————– Title: Senior Vice President ——————————– 92 UNION BANK OF CALIFORNIA, N.A., as a Co- Documentation Agent and a Lender By: /s/ Albert W. Kelley ——————————– Name: Albert W. Kelley ——————————– Title: Vice President ——————————– 93 THE HUNTINGTON NATIONAL BANK, as a Lender By: /s/ Cheryl L. Razon ———————————— Name: Cheryl L. Razon —————————— Title: Assistant Vice President —————————– 94 FIRST TENNESSEE BANK NATIONAL ASSOCIATION, as a Lender By: /s/ Stephen R. Deaton ———————————— Name: Stephen R. Deaton —————————— Title: Senior Vice President —————————– 95 SOUTHWEST BANK OF TEXAS, N.A., as a Lender By: /s/ Melinda N. Jackson ———————————— Name: Melinda N. Jackson —————————— Title: Senior Vice President —————————– 96 BANK OF TEXAS, N.A., as a Lender By: /s/ Eric L. Kraft ———————————— Name: Eric L. Kraft —————————— Title: Vice President —————————– 97 TEXAS CAPITAL BANK, N.A., as a Lender By: /s/ Barry Kromann ———————————— Name: Barry Kromann —————————— Title: _____________________________ 98