Exhibit 4.1

SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT

Dated as of January 8, 2010

among

THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Lenders,

BANK OF AMERICA, N.A.,
 as Administrative Agent,

WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent and as Syndication Agent,

AHERN RENTALS, INC.,
as the Obligated Party,

and

BANC OF AMERICA SECURITIES LLC and
WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arrangers

TABLE OF CONTENTS

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SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

This Second Amended and Restated Loan and Security Agreement, dated as of January 8, 2010, is among the lending institutions from time to time party hereto as Lenders (as hereinafter defined), Bank of America, N.A. (“BofA”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), Wachovia Bank, National Association (“Wachovia”), as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), Ahern Rentals, Inc. (“Ahern”), each of its subsidiaries party from time to time hereto that becomes a borrower hereunder with the prior written consent of all the Revolving Lenders (such subsidiaries, together with Ahern, are referred to hereinafter each individually as a “Borrower” and collectively as the “Borrowers”) and each of the other Obligated Parties (as hereinafter defined) signatory to this Agreement.

RECITALS:

WHEREAS, the Borrowers, the Agents and certain of the Lenders party hereto were party to a certain Loan and Security Agreement, dated as of October 29, 2004, as amended to but excluding August 18, 2005 (as so amended, the “Original Loan and Security Agreement”);

WHEREAS, the Borrowers, the Agents and certain of the Lenders party hereto amended and restated the Original Loan and Security Agreement pursuant to an Amended and Restated Loan and Security Agreement, dated as of August 18, 2005 (as amended to but excluding the date hereof, the “First Amended and Restated Loan and Security Agreement”); and

WHEREAS, the parties hereto desire to amend and restate the First Amended and Restated Loan and Security Agreement in its entirety, but not as a novation, on the terms and subject to the conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree that the First Amended and Restated Loan and Security Agreement shall be, and hereby is, amended and restated in its entirety as follows, effective on and as of the Closing Date.

ARTICLE 1

DEFINITIONS, ACCOUNTING TERMS, AND INTERPRETIVE PROVISIONS

Section 1.1             Definitions.  Capitalized terms wherever used in this Agreement and the other Loan Documents, unless otherwise defined therein, shall have the meanings specified in this Section 1.1.

“Accelerated Delivery Date” means any date on which the Unused Availability is less than $15,000,000.

“Accelerated Delivery Period” means the period commencing on an Accelerated Delivery Date and ending on the first day after any full Fiscal Quarter of Ahern, occurring after an

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Accelerated Delivery Date, during which the Unused Availability equals or exceeds $15,000,000 for each day during such Fiscal Quarter and no Event of Default has occurred or existed.

“Accommodation Payment” has the meaning specified in Section 15.19.

“Account Debtor” means each Person obligated in any way on or in connection with an Account, Chattel Paper, or General Intangible (including a payment intangible).

“Accounts” means “accounts”, as such term is defined in the UCC, and any rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance.

“Accounts Payable” means all trade accounts payable of the Obligated Parties and all Debt and other obligations owing by the Obligated Parties with respect to Inventory or Equipment.

“ACH Transactions” means any cash management, disbursement, or related services, including overdrafts and the automated clearinghouse transfer of funds, by BofA or Wachovia for the account of any Obligated Party.

“Additional Mortgaged Property” has the meaning specified in Section 8.28.

“Adjusted Net Earnings from Operations” means, with respect to any fiscal period of Ahern, net income of Ahern and its Subsidiaries on a consolidated basis after provision for state and local income taxes (if any) for such fiscal period, as determined in accordance with GAAP and reported on the Financial Statements for such fiscal period, excluding any and all of the following included in the determination of such net income:  (a) gain or loss arising from the sale of any capital assets (which shall not include, in any event, Inventory); (b) gain arising from any write-up in the book value of any asset or non-cash loss arising from any write-down or write-off in the book value of any non-operating asset; (c) earnings of any other Person, substantially all the assets of which have been acquired by Ahern or any of its Subsidiaries in any manner, to the extent realized by such other Person prior to the date of acquisition; (d) earnings of any other Person (other than a Subsidiary of Ahern) in which Ahern or any of its Subsidiaries has an ownership interest unless (and only to the extent) such earnings shall actually have been received by Ahern or any of its Subsidiaries in the form of cash distributions; (e) earnings of any Person to which assets of Ahern or any of its Subsidiaries shall have been sold, transferred, or disposed of, or into which Ahern or any of its Subsidiaries shall have been merged, or which has been a party with Ahern or any of its Subsidiaries to any consolidation or other form of reorganization, prior to the date of such transaction; (f) gain arising from the acquisition of debt or equity securities of Ahern or any of its Subsidiaries or from cancellation or forgiveness of Debt; and (g) gain or non-cash loss generated or arising from extraordinary items, as determined in accordance with GAAP, or from any other non-recurring transaction; provided that any non-cash loss generated from the write-down or write-off of operating assets shall not be included in this clause (g).

“Administrative Agent” means BofA, solely in its capacity as administrative agent for the Lenders, and any successor administrative agent.

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“Affiliate” means, as to any Person (the “subject Person”), any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, the subject Person or which owns, directly or indirectly, 5.0% or more of the outstanding Capital Stock of the subject Person.  A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise.

“Agent” means each of the Administrative Agent and the Collateral Agent, individually, and “Agents” means both of such Persons, collectively.

“Agent Advances” has the meaning specified in Section 2.2(j).

“Agent-Related Persons” means the Collateral Agent and the Administrative Agent, together with their respective Affiliates, and the officers, directors, employees, counsel, representatives, agents, and attorneys-in-fact of the Collateral Agent and the Administrative Agent and their respective Affiliates.

“Agent’s Liens” means the Liens in the Collateral granted to the Collateral Agent, for the benefit of the Credit Providers, pursuant to the terms of this Agreement (and, for the avoidance of doubt, the Original Loan and Security Agreement and the First Amended and Restated Loan and Security Agreement) and the other Loan Documents.

“Aggregate Revolver Outstandings” means, at any time, the sum of (a) the aggregate unpaid balance of the Revolving Loans, (b) the aggregate undrawn amount of all outstanding Letters of Credit, and (c) the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit.

“Agreement” means this Second Amended and Restated Loan and Security Agreement, as it may be further amended, restated, or otherwise modified from time to time.

“Ahern” means Ahern Rentals, Inc., a Nevada corporation.

“Aircraft Mortgage” means the Aircraft Security Agreement, dated as of the Original Closing Date, by and between Ahern and the Collateral Agent, by which the Collateral Agent, for the benefit of the Credit Providers, acquired a Lien on a certain 1979 Hughes model 369D helicopter bearing Serial Number 790544D and FAA Registration Number N58341.

“Allocable Amount” has the meaning specified in Section 15.19.

“Anniversary Date” means an anniversary of the Closing Date.

“Applicable Margin” means, as of the Closing Date,

(a)           with respect to Base Rate Revolving Loans and all other Obligations (other than LIBOR Rate Revolving Loans and Term Loan Obligations), 3.00% per annum, and

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(b)           with respect to LIBOR Rate Revolving Loans, 4.00%,

in each case subject to adjustment from time to time thereafter to the applicable percentage specified corresponding to the Fixed Charge Coverage Ratio, as set forth below, respectively:

For the purpose of determining any such adjustments to the Applicable Margin, the Fixed Charge Coverage Ratio shall be determined, beginning with the Fiscal Quarter ending June 30, 2010, based upon the Financial Statements of Ahern and its Subsidiaries for the immediately preceding four (4) Fiscal Quarters of Ahern, and for each Fiscal Quarter of Ahern ending thereafter, delivered to the Agents as required by Section 6.2(a) (with respect to the Financial Statements as of the last day of each Fiscal Year) or Section 6.2(b)(i) (with respect to the Financial Statements for each of the other Fiscal Quarters of each Fiscal Year), and any such adjustment, if any, shall become effective prospectively on and after the first day of the calendar month following the date of delivery of such Financial Statements to the Agents.  Concurrently with the delivery of such Financial Statements, Ahern shall deliver to the Agents a certificate, signed by a Responsible Officer, setting forth in reasonable detail the basis for the continuance of, or any change in, the Applicable Margin.  In the event the Obligated Parties fail to timely deliver any such Financial Statements, in addition to any other remedy provided for in this Agreement, the Applicable Margin shall be deemed to be equal to the highest level set forth in the preceding table, until the first day of the calendar month following the date of delivery of such Financial Statements to the Agents, at which time the Applicable Margin shall be determined, prospectively, in accordance with the terms hereof.  If a Default or an Event of Default exists at the time any reduction in the Applicable Margin is to be implemented, such reduction shall not occur until the first day of the calendar month following the date on which such Default or Event of Default is Waived or cured.

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“Applicable Unused Line Fee Percentage” means, with respect to the Unused Line Fee payable for any calendar month or a portion of any calendar month, the percentage per annum set forth below opposite the respective Level (i.e., Level 1 or Level 2, as the case may be) of Average Usage for the immediately preceding calendar month.

Notwithstanding anything to the contrary contained above in this definition, Level 1 pricing shall apply at all times during which there shall exist any Default or Event of Default.

“Assigned Contracts” means, collectively, all of each Obligated Party’s rights and remedies under, and all moneys and claims for money due or to become due to such Obligated Party under, those contracts set forth on Schedule 1.1(D) and any other material contracts, and any and all amendments, supplements, extensions, renewals, and other modifications thereof including all rights and claims of such Obligated Party now or hereafter existing:  (a) under any insurance, indemnities, warranties, and guaranties provided for or arising out of or in connection with any of the foregoing agreements; (b) for any damages arising out of or for breach or default under or in connection with any of the foregoing contracts; (c) to all other amounts from time to time paid or payable under or in connection with any of the foregoing agreements; or (d) to exercise or enforce any and all covenants, remedies, powers, and privileges thereunder.

“Assignee” has the meaning specified in Section 13.2(a).

“Assignment and Acceptance” has the meaning specified in Section 13.2(a).

“Attorney Costs” means and includes (a) all reasonable fees, expenses, and disbursements of (i) any law firm or other counsel engaged by the Collateral Agent or the Administrative Agent, (ii) one law firm or other external counsel engaged by the Revolving Lenders and (iii) one law firm or other external counsel engaged by the Term Lenders and (b) the reasonably allocated costs and expenses of internal legal services of the Collateral Agent and the Administrative Agent.

“Average Usage” means, for any period, an amount, expressed as a percentage, equal to (i) the quotient of (x) the Aggregate Revolver Outstandings for each day during such period, divided by (y) the number of days in such period, divided by (ii) the quotient of (x) the sum of the Revolving Credit Commitments of all Lenders for each day during such period, divided by (y) the number of days in such period, all as determined by the Administrative Agent.

“Bank Product Reserves” means all reserves which either or both of the Agents from time to time establish in its or their reasonable credit judgment for the Bank Products then provided or outstanding.

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“Bank Products” means each and any of the following types of services or facilities extended to any of the Obligated Parties by (I) in the case of (b) below, BofA or Wachovia or any Affiliate of BofA or Wachovia and (II) in the case of (a), (c) and (d) below, any Revolving Lender or any Affiliate of any Revolving Lender:  (a) commercial credit cards; (b) cash management services (including controlled disbursement services, ACH Transactions, and interstate depository network services), (c) Hedge Agreements; and (d) foreign exchange.

“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.).

“Base Rate” means, for any day, the greatest of (a) the rate of interest in effect for such day as publicly announced from time to time by BofA in Charlotte, North Carolina as its “prime rate” (the “prime rate” being a rate set by BofA based upon various factors including BofA’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate); (b) the Federal Funds Rate in effect for such day, plus 0.50% per annum; and (c) the LIBOR Rate for a 30-day interest period as determined for such day, plus 1.00% per annum, provided, that, in the Agents’ sole discretion, such amount is subject to change at any time without notice to the Borrowers.  With respect to any determination of any Interest Rate which is based on the Base Rate, any change in the prime rate announced by BofA shall take effect at the opening of business on the day specified in the public announcement of such change, and any change in the Federal Funds Rate shall take effect as of the date of such change.

“Base Rate Revolving Loan” means any portion of the Revolving Loans during any period in which such portion bears interest based on the Base Rate.

“Blocked Availability Amount” means $10,000,000.

“BofA” has the meaning specified in the introductory paragraph of this Agreement.

“Borrower” means, separately and individually, any of Ahern and any other Person who becomes a party to this Agreement as a “Borrower” pursuant to the terms hereof, jointly, severally, and collectively, and “Borrowers” means more than one or all of the foregoing Persons, jointly, severally, and collectively, as the context requires.

“Borrowing” means (a) a borrowing hereunder consisting of Revolving Loans made available to the Borrowers, or any of them, on the same day (i) by the Revolving Lenders, (ii) by BofA (in the case of a Borrowing funded as a Non-Ratable Loan), or (iii) by the Administrative Agent (in the case of a Borrowing consisting of an Agent Advance), (b) the issuance of a Letter of Credit hereunder or (c) the borrowing of the Term Loans hereunder on the Closing Date.

“Borrowing Base” means, at any time, (a) an amount equal to the lesser of (i) the Maximum Revolver Amount or (ii) the sum of, without duplication, (1) up to eighty-five percent (85%) of the Net Amount of Eligible Accounts, plus (2) up to the lesser of (A) ninety-five percent (95%) of the Net Book Value of Eligible Rental and Sale Equipment and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Rental and Sale Equipment, plus (3) up to the lesser of (A) ninety-five percent (95%) of the Net Book Value of Eligible Transportation Equipment and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Transportation Equipment, plus (4) up to the lesser of (A) sixty percent (60%)

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of the value (at the lower of cost, on an average cost basis, or market) of Eligible Spare Parts Inventory and (B) eighty-five percent (85%) of the Net Orderly Liquidation Value of Eligible Spare Parts Inventory, minus (5) if the sum of the Aggregate Revolver Outstandings and the aggregate unpaid principal balance of the Term Loans exceeds or will exceed the difference of $435,000,000 minus the Supplemental Blocked Availability Amount as in effect from time to time, the amount of such excess, minus (6) the aggregate amount, if any, by which the Revolving Credit Commitments and the Maximum Revolver Amount have been permanently reduced in accordance with Section 4.3(f) or the Term Loans have been paid in accordance with Section 4.3(f),  minus (b) such Reserves as are established from time to time by either or both of the Agents in its or their reasonable credit judgment (including in any event the Reserve established pursuant to the last sentence of the definition of Reserves) minus (c) the sum of the Blocked Availability Amount and the Supplemental Blocked Availability Amount.

“Borrowing Base Certificate” means a certificate by a Responsible Officer of the Borrowers, or Ahern on behalf of the Borrowers, substantially in the form of Exhibit B (or another form acceptable to the Agents) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including to the extent a Borrower has received notice of any Reserve from an Agent, any of the Reserves included in such calculation pursuant to clause (b) of the definition of Borrowing Base), all in such detail as shall be satisfactory to the Agents.  All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall originally be made by the Borrowers, or Ahern on behalf of the Borrowers, and certified to the Agents; provided that each of the Agents shall have the right to review and adjust, in the exercise of its credit judgment, any such calculation (a) to reflect its estimate of declines in value of any of the Collateral described therein, (b) to reflect the receipt of proceeds of the Collateral, and (c) to the extent that such calculation is not made in accordance with the terms of this Agreement.

“Business Day” means (a) any day that is not a Saturday, Sunday, Nevada Day or a day on which banks in New York, New York or Charlotte, North Carolina are required or permitted to be closed and (b) with respect to all notices, determinations, fundings, and payments in connection with the LIBOR Rate or LIBOR Rate Revolving Loans, any day that is a Business Day pursuant to clause (a) preceding and that is also a day on which trading in Dollars is carried on by and between banks in the London interbank market.  “Nevada Day” means the holiday celebrating the admission of Nevada into statehood, which occurs on or about October 31st of each year.

“Capital Adequacy Regulation” means any guideline, request, or directive of any central bank or other Governmental Authority, or any other law, rule, or regulation, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.

“Capital Expenditures” means, with respect to any Person, all payments made by such Person with respect to the cost of any Inventory (other than spare parts Inventory and other than Inventory at all times held for sale and not rental), Fixed Asset or improvement, or replacement, substitution, or addition thereto, which has a useful life of more than one year, including those costs arising in connection with the direct or indirect acquisition of such asset or improvement by way of increased product or service charges or in connection with a Capital Lease, excluding

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(a) expenditure of insurance proceeds to rebuild or replace any asset or improvement after a casualty loss and (b) leasehold improvement expenditures for which such Person is reimbursed promptly by the lessor.

“Capital Lease” means any lease of property by a Person which, in accordance with GAAP, should be reflected as a capital lease on the balance sheet of such Person.

“Capital Stock” means any and all corporate stock, units, shares, partnership interests, membership interests, equity interests, rights, securities, or other equivalent evidences of ownership (howsoever designated) issued by any Person.

“Change of Control” means the occurrence of any of the following:  (a) except as allowed by Section 8.9, the adoption of a plan relating to the liquidation or dissolution of any Obligated Party; (b) (i) Don Ahern shall cease to own, directly or indirectly, at least 51% of the outstanding voting Capital Stock of Ahern, (ii) Don Ahern, any member of his immediate family and any trust established for the benefit of Don Ahern and/or any member of his immediate family shall cease to own, directly or indirectly, at least 75.0% of the outstanding voting Capital Stock of Ahern, (iii) Don Ahern shall, by agreement or otherwise, cease to have the right to exercise voting control of Ahern or (iv) Don Ahern shall die or shall become incapacitated or disabled such that Don Ahern is unable to properly perform the duties for Ahern that he performs for Ahern on the Original Closing Date; provided, that if Don Ahern shall die or become so incapacitated or disabled, a Change of Control under this clause (b) shall not occur as a result of such death, incapacitation or disability if, within 90 days after the occurrence of his death or such incapacity or disability and at all times thereafter, Ahern shall have employed one or more Persons with requisite experience that are reasonably satisfactory to the Agents to perform those duties for Ahern that Don Ahern performed for Ahern on the Original Closing Date; (c) except as allowed by Section 8.9, any Obligated Party (other than Ahern) shall cease to be a Wholly-Owned Subsidiary of Ahern or (d) there shall occur a “Change of Control” or a “Change in Control” as defined in any Second Lien Debt Document, any Refinancing Second Lien Debt Document or any other document governing material Debt of any Obligated Party.

“Chattel Paper” means “chattel paper”, as such term is defined in the UCC, and any electronic chattel paper.

“Clearing Account” means each bank account maintained with BofA or a Clearing Bank, subject to a Deposit Account Control Agreement providing for the Collateral Agent’s dominion and control of such bank account, to which the funds of an Obligated Party (including proceeds of Accounts and other Collateral) are deposited or credited, and which is maintained in the name of the Collateral Agent or such Obligated Party (as the Agents may determine) on terms acceptable to the Agents.  For purposes of this Agreement, “Clearing Account” includes any Clearing Accounts opened by any Obligated Party with BofA and pledged in accordance with Article 10, and any renewals or rollovers thereof, any successor or substitute deposit accounts, including any such deposit account as it may have been renumbered or retitled, any proceeds thereof (including any interest paid thereon), and any general intangibles and choses in action arising therefrom or related thereto.  Whenever there is more than one Clearing Account, the term “Clearing Account” shall refer to all such Clearing Accounts, collectively.

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“Clearing Bank” means any banking institution reasonably acceptable to the Agents with whom a Clearing Account has been established.

“Closing Date” means the date of this Agreement.

“Code” means the Internal Revenue Code of 1986, as amended.

“Co-Lead Arrangers” means Banc of America Securities LLC and Wachovia Capital Markets, LLC, solely in their respective capacities as co-lead arrangers.

“Collateral” has the meaning specified in Section 10.1.

“Collateral Agent” means Wachovia, solely in its capacity as collateral agent for the Lenders, and any successor collateral agent.

“Collateral Documents” means this Agreement, the Intercreditor Agreement, the Proprietary Rights Security Agreements, any Mortgages, any Aircraft Mortgage, any Guaranty Agreements, and any other agreements, instruments, and documents heretofore, now or hereafter executed and delivered in connection with this Agreement, the Original Loan and Security Agreement or the First Amended and Restated Loan and Security Agreement, pursuant to which liens and security interests are granted to the Collateral Agent in the Collateral for the benefit of the Credit Providers.

“Collateral Waiver Agreement” means any agreement, in form and substance reasonably satisfactory to the Agents, between the Collateral Agent (or the Collateral Agent and the Second Lien Agent) and any landlord of any Obligated Party for any Real Estate where any Collateral is located or any third party (including any bailee, consignee, customs broker, processor, warehouseman, or other similar Person) in possession of any Collateral, as such agreement may be amended, restated, or otherwise modified from time to time.

“Commitment” means, at any time with respect to a Lender, the sum of the Term Loan Commitment and Revolving Credit Commitment of such Lender.

“Compliance Certificate” has the meaning specified in Section 6.2(d).

“Contaminant” means any material defined as waste, pollutant, hazardous substance, toxic substance, hazardous waste, or special waste under any Environmental Law (including petroleum or petroleum-derived substance or waste, asbestos in any form or condition, and polychlorinated biphenyls), or any constituent of any such substance or waste.

“Continuation/Conversion Date” means the effective date of (a) any continuation of LIBOR Rate Revolving Loans as LIBOR Rate Revolving Loans and (b) any conversion of LIBOR Rate Revolving Loans to Base Rate Revolving Loans or of Base Rate Revolving Loans to LIBOR Rate Revolving Loans.

“Credit Facility” has the meaning specified in Section 2.1.

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“Credit Providers” means, collectively, the Collateral Agent, the Administrative Agent (in its capacity as administrative agent for the Lenders and, additionally, as provider of Agent Advances), the Lenders, BofA, in its capacity as provider of Non-Ratable Loans, each of BofA, Wachovia and each other Revolving Lender and their respective Affiliates as a provider of Bank Products, the Letter of Credit Issuer, and the Indemnified Persons, and “Credit Provider” means any of the foregoing, individually.

“Debt” means, without duplication, with respect to any Person (the “subject Person”) all liabilities, obligations, and indebtedness of the subject Person to any other Person, of any kind or nature, now or hereafter owing, arising, due, or payable, howsoever evidenced, created, incurred, acquired, or owing, whether primary, secondary, direct, contingent, fixed, or otherwise, consisting of indebtedness for borrowed money or the deferred purchase price of property, excluding trade payables and the endorsement of checks and other similar instruments in the ordinary course of business, but including, in any event and without in any way limiting the generality of the foregoing:  (a) in the case of the Obligated Parties, the Obligations; (b) all such indebtedness, liabilities, and obligations of any Person secured by any Lien on the subject Person’s property, even if the subject Person shall not have assumed or become liable for the payment thereof; provided that all such indebtedness, liabilities, and obligations which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the subject Person prepared in accordance with GAAP; (c) all such indebtedness, liabilities, and obligations created or arising under any Capital Lease or conditional sale or other title retention agreement with respect to property used or acquired by the subject Person, even if the rights and remedies of the lessor, seller, or lender thereunder are limited to repossession of such property; provided that all such indebtedness, liabilities, and obligations which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the subject Person prepared in accordance with GAAP; (d) all indebtedness, liabilities, and obligations under Guaranties of Debt; (e) the present value (discounted at the implicit interest rate in such transaction) of lease payments due under synthetic leases; (f) net obligations in respect of Hedge Agreements; (g) all indebtedness, liabilities and obligations of the subject Person evidenced by notes, bonds, debentures or similar instruments; (h) all preferred capital stock issued by the subject Person that is required to be repurchased or redeemed by the subject Person or is repurchaseable or redeemable at the option of the holder thereof; and (i) all indebtedness, liabilities and obligations of the subject Person in respect of letters of credit or instruments serving a similar function issued or accepted for the account of the subject Person (whether or not representing obligations for borrowed money).  Debt of any Person shall include all obligations of such Person of the character described in clauses (a) through (i) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.  Debt of any Person shall include the Debt of any partnership or Joint Venture in which such Person is a general partner or a joint venturer, unless such Debt is, by its terms, non-recourse to the assets of such Person other than as a result of customary exclusions.

“Default” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, Waived, or otherwise remedied during such time) constitute an Event of Default.

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“Default Rate” means a fluctuating per annum interest rate at all times equal to the sum of (a) the otherwise applicable Interest Rate, plus (b) 2.00% per annum.  The Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate.

“Defaulting Lender” has the meaning specified in Section 14.15(c).

“Deposit Account Control Agreement” means an agreement, including a blocked account agreement, in form and substance satisfactory to each Agent, among an Obligated Party, a banking institution holding funds of such Obligated Party, the Collateral Agent (or the Collateral Agent and the Second Lien Agent) and the Administrative Agent with respect to collection and control of all deposits and balances held in a Deposit Account maintained by such Obligated Party with such banking institution.

“Deposit Accounts” means “deposit accounts”, as such term is defined in the UCC.

“Dilution” means, at the time of any relevant determination, the average amount for the twelve (12) consecutive Fiscal Month period most recently ended prior to such time of determination, by which the amount of Eligible Accounts is reduced due to returns, discounts, claims, credits, allowances, accrued rebates, offsets, deductions, counterclaims, disputes and other defenses of any nature at any time issued, owing, granted, outstanding, available or claimed.

“Disposition” or “Dispose” means the sale, transfer, license, lease, or other disposition (including any sale and leaseback transaction) of any property by any Person.

“Distribution” means, with respect to any Person (other than a natural person) (a) the payment or making of any dividend or other distribution of property by such Person in respect of its Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock), other than distributions solely in such Person’s Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock) of the same class or (b) the redemption, repurchase, retirement, or other acquisition by such Person of any Capital Stock (or any options or warrants for, or other rights with respect to, such Capital Stock) of such Person.

“Documents” means “documents”, as such term is defined in the UCC, and bills of lading, warehouse receipts, and other documents of title.

“DOL” means the United States Department of Labor or any successor department or agency.

“Dollar” and “$” mean dollars in the lawful currency of the U.S.  Unless otherwise specified, all payments under any Loan Document shall be made in Dollars.

“Dollar Utilization” means, with respect to any Fiscal Quarter of Ahern, an annualized ratio, the numerator of which is the sum of revenues from all equipment rentals and related revenues of the Obligated Parties, as reported by Ahern on its statement of income and retained earnings for such Fiscal Quarter, multiplied by four (4), and the denominator of which is the average original cost of the fleet of rental equipment owned by the Obligated Parties during such Fiscal Quarter.

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“Early Term Loan Prepayment Fee” has the meaning specified in Section 4.2.

“EBITDA” means, with respect to any fiscal period of Ahern, Adjusted Net Earnings from Operations, plus, to the extent deducted in the determination of Adjusted Net Earnings from Operations for such fiscal period, (a) Interest Expense, (b) federal, state, local, and foreign income taxes, and (c) depreciation and amortization, in each case for Ahern and its Subsidiaries on a consolidated basis.

“Eligible Accounts” means the Accounts of the Borrowers that both of the Agents in the exercise of their reasonable credit judgment determine to be Eligible Accounts.  Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Accounts shall not include any Account (except as may be otherwise specified below):

(a)           that does not arise from the sale or lease of Goods or rendition of services in the ordinary course of business of a Borrower;

(b)           that is not subject to the Agent’s Liens which are perfected as to such Account, or that is subject to any other Lien (other than the Lien permitted under clause (i) of the defined term Permitted Liens);

(c)           with respect to which either (i) any payment, or part thereof, remains unpaid for more than 90 days from the original due date therefor, or (ii) more than 120 days have elapsed from the date of the original invoice therefor, or no invoice has been issued;

(d)           with respect to which any of the representations, warranties, covenants, and agreements contained in this Agreement are incorrect or have been breached;

(e)           with respect to which (or any other Account due from the applicable Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other instrument for the payment of money has been received, presented for payment, and returned uncollected for any reason;

(f)            that is the subject of any debit memo or charge-back, but only to the extent of such debit memo or charge-back;

(g)           that represents a progress billing (for the purposes hereof, “progress billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon such Borrower’s completion of any further performance under such contract or agreement, other than, in the case of a lease of Inventory in the ordinary course of business, the performance of any covenant of quiet enjoyment);

(h)           with respect to which any one or more of the following events has occurred to the Account Debtor on such Account:  (i) death or judicial declaration of incompetency of such Account Debtor who is a natural person; (ii) the filing by or against such Account Debtor of a request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt, winding-up, or other relief

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under the Bankruptcy Code or any other Requirement of Law, now or hereafter in effect; (iii) the making of any general assignment by such Account Debtor for the benefit of creditors; (iv) the appointment of a receiver or trustee for such Account Debtor or for any of the assets of such Account Debtor, including the appointment of or taking possession by a “custodian,” as defined in the Bankruptcy Code; (v) the institution by or against such Account Debtor of any other type of insolvency proceeding (under the Bankruptcy Code or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of, such Account Debtor; (vi) the sale, assignment, or transfer of all or any material part of the assets of such Account Debtor; (vii) the nonpayment generally by such Account Debtor of its debts as they become due; or (viii) the cessation of the business of such Account Debtor as a going concern;

(i)            with respect to which 50% or more of the aggregate Dollar amount of outstanding Accounts owed at such time to the Borrowers by the Account Debtor thereon is classified as ineligible pursuant to the other provisions of this definition;

(j)            owed by an Account Debtor that:  (i) does not maintain its chief executive office in the U.S.; (ii) is not organized under the laws of the U.S. or any political subdivision, state or territory thereof; or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, except to the extent that such Account is secured or payable by a letter of credit the terms of which are satisfactory to the Agents in their reasonable credit judgment and which is in the possession of the Collateral Agent and which, together with all related Letter-of-Credit Rights, is subject to a first priority Lien in favor of the Collateral Agent, for the benefit of the Credit Providers;

(k)           owed by an Account Debtor that is an Affiliate, officer, director, or employee of any Borrower or any Affiliate of any Borrower;

(l)            except as provided in clause (n) following, with respect to which either the perfection or validity of the Agent’s Liens in such Account, or the Collateral Agent’s right or ability to obtain direct payment to the Collateral Agent of the proceeds of such Account, is governed by any federal, state, or local statutory requirements other than those of the UCC;

(m)          owed by an Account Debtor to which an Obligated Party or any of its Affiliates, is indebted in any way (including accrued liabilities), or which is subject to any right of setoff or recoupment by the Account Debtor, unless the Account Debtor has entered into an agreement acceptable to the Agents to waive setoff rights, or if the Account Debtor thereon has disputed liability or made any claim with respect to any other Account due from such Account Debtor, but in each such case only to the extent of such indebtedness, setoff, recoupment, dispute, or claim;

(n)           owed by (i) the government of the U.S., or any department, agency, public corporation, or other instrumentality thereof, unless the Federal Assignment of Claims

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Act of 1940, as amended (31 U.S.C. § 3727 et seq.), and any other steps necessary to perfect the Agent’s Liens therein, have been complied with to the Agents’ reasonable satisfaction with respect to such Account or (ii) any state, municipality, or other political subdivision of the U.S., or any department, agency, public corporation, or other instrumentality thereof and as to which either of the Agents determines that the Agent’s Lien therein is not or cannot be perfected;

(o)           that represents a sale on a (i) cash or C.O.D. basis or (ii) bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment, or other repurchase or return basis;

(p)           [Intentionally Omitted];

(q)           that is evidenced by a promissory note or other instrument or by Chattel Paper;

(r)            with respect to which either Agent believes, in the exercise of its reasonable credit judgment, that the prospect of collection of such Account is impaired or that such Account may not be paid by reason of the Account Debtor’s financial inability to pay;

(s)           except as may be permitted by the Agents in their reasonable credit judgment, with respect to which the Account Debtor is located in any state requiring the filing of a Notice of Business Activities Report or similar report in order to permit the applicable Borrower to seek judicial enforcement in such state of payment of such Account, unless such applicable Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year;

(t)            to the extent constituting finance or similar charges or sales or use tax;

(u)           with respect to which the goods giving rise to such Account have not been shipped and delivered to and accepted by, or have been rejected or objected to by, the Account Debtor or to the extent the services giving rise to such Account have not been performed by the applicable Borrower, and, if applicable, accepted by the Account Debtor, or the Account Debtor revokes its acceptance of such goods or services;

(v)           owed by an Account Debtor, or group of affiliated Account Debtors, which is obligated to the Borrowers respecting Accounts the aggregate unpaid balance of which exceeds 10% of the aggregate unpaid balance of all Eligible Accounts owed to the Borrowers at such time by all of the Borrowers’ Account Debtors, but only to the extent of such excess;

(w)          that is the subject of any unreconciled variance between the aging of Accounts delivered to either Agent, the general ledger of the applicable Borrower, and the applicable Borrowing Base Certificate; or

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(x)            that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.

“Eligible Assignee” means (i) with respect to an assignment of all or a portion of a Revolving Lender’s Revolving Loans and/or Revolving Credit Commitment, (a) a commercial bank, commercial finance company, or other asset based lender having total assets in excess of One Billion Dollars ($1,000,000,000), (b) any Revolving Lender, (c) any Affiliate of any Revolving Lender, and (d) if an Event of Default has occurred and is continuing, any Person reasonably acceptable to the Agents and (ii) with respect only to an assignment of all or a portion of a Term Lender’s Term Loans, (a) any Lender, (b) any Affiliate of any Lender, (c) with respect to any Term Lender that is an investment fund that invests in commercial loans, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Term Lender or by an Affiliate of such investment advisor, and (d) any commercial bank, savings and loan association or savings bank or any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933) which extends credit or buys loans as one of its businesses, including insurance companies, mutual funds, investment funds, lease financing companies and commercial finance companies.

“Eligible Inventory” means Inventory of the Borrowers which both of the Agents, in their reasonable credit judgment, determine to be Eligible Inventory.  Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Inventory shall not include any Inventory (except as may be otherwise specified below):

(a)           that is not owned by a Borrower, including goods held by a Borrower on consignment;

(b)           that is not subject to the Agent’s Liens, which are perfected as to such Inventory, or that is subject to any Lien (other than the Liens described in clauses (a), (c), (e) and (i) of the definition of Permitted Liens; provided that such Permitted Liens (i) are junior in priority to the Agent’s Liens or subject to Reserves and (ii) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral);

(c)           that is not finished goods or raw materials;

(d)           that consists of work-in-process, chemicals, samples, prototypes, supplies, or packing and shipping materials;

(e)           that is not in good condition, is unmerchantable or not rentable in the ordinary course of business of a Borrower, or does not meet all standards imposed by any Governmental Authority having regulatory authority over such goods or their use or sale;

(f)            that is obsolete or defective;

(g)           consisting of airplanes, helicopters or other aircraft or spare parts therefor;

(h)           that is located outside the U.S. or that is in transit from vendors or suppliers or to buyers; provided that the Agents may in their discretion include as Eligible

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Inventory any Inventory which is in transit within the U.S. or Canada to a Borrower’s place of business and any Inventory held for lease which is in transit to lessees shall not be excluded by this clause (h), provided that upon the request of either Agent the Borrowers shall deliver to the Agents a listing of all such Inventory and its location;

(i)            that is consigned to third parties or is subject to any bill-and-hold, guaranteed sale, sale on approval, or other repurchase or return basis;

(j)            that is located in a public warehouse or in possession of a bailee or in a facility leased by a Borrower, if the applicable warehouseman, bailee, or lessor has not delivered to the Agents a Collateral Waiver Agreement or if, in lieu of such Collateral Waiver Agreement, a Reserve for rents or storage charges (in an amount for any location not to exceed at any time three (3) months’ rent or storage charges plus any then unpaid rent or storage charges owing with respect to such location) has not been established to the extent the Agents deem appropriate in their reasonable credit judgment for Inventory at that location;

(k)           that contains or bears any Proprietary Rights licensed to a Borrower by any Person, if either of the Agents is not satisfied that the Collateral Agent may sell or otherwise dispose of such Inventory in accordance with the terms of this Agreement (including Section 11.2) without infringing the rights of the licensor of such Proprietary Rights or violating any contract with such licensor (and without payment of any royalties other than any royalties due with respect to the sale or disposition of such Inventory pursuant to the existing license agreement), and, if either of the Agents deems it necessary, as to which such Borrower has not delivered to the Agents a consent or sublicense agreement from such licensor in form and substance acceptable to the Agents;

(l)            that is not reflected in the details of a current perpetual inventory report;

(m)          that is leased to any Person which is not in compliance with the terms of the lease agreement relating to such lease and as to which there is any restriction or impediment (legal or otherwise), as determined by either of the Agents in its reasonable credit judgment, on the ability of the Collateral Agent to obtain access thereto in order to repossess same; or

(n)           that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.

“Eligible Rental and Sale Equipment” means Eligible Inventory consisting of Inventory (other than spare parts and merchandise Inventory) held for sale or lease in the ordinary course of a Borrower’s business, which is marked with an identifiable serial number.

“Eligible Spare Parts Inventory” means Eligible Inventory consisting of unused spare parts and merchandise inventory located on premises owned or leased by a Borrower, which spare parts and merchandise inventory are held for sale by a Borrower in the ordinary course of its business or for the repair or maintenance of Inventory of a Borrower that is held for sale or lease by such Borrower in the ordinary course of its business.

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“Eligible Transportation Equipment” means Transportation Equipment of the Borrowers marked with an identifiable serial number which both of the Agents, in their reasonable credit judgment, determine to be Eligible Transportation Equipment.  Without limiting the discretion of the Agents to establish other criteria of ineligibility, Eligible Transportation Equipment shall not include any Transportation Equipment (except as may be otherwise specified below):

(a)           that is not owned by a Borrower, including goods held by a Borrower on consignment;

(b)           that is not subject to the Agent’s Liens, which are perfected as to such Transportation Equipment, or that is subject to any Lien (other than the Liens described in clauses (a), (c), (e) and (i) of the definition of Permitted Liens; provided that such Permitted Liens (i) are junior in priority to the Agent’s Liens or subject to Reserves and (ii) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral);

(c)           that is not in good condition or does not meet all standards imposed by any Governmental Authority having regulatory authority over such goods or their use or sale;

(d)           that is obsolete or defective;

(e)           consisting of airplanes, helicopters or other aircraft or spare parts therefore;

(f)            that is located outside the U.S.; provided that the Agents may in their discretion include as Eligible Transportation Equipment any Transportation Equipment which is in transit within Canada moving Inventory to or from a customer of a Borrower in the ordinary course of such Borrower’s business;

(g)           that is consigned to third parties or is subject to any bill-and-hold, guaranteed sale, sale on approval, or other repurchase or return basis;

(h)           that is located in a public warehouse or in possession of a bailee or in a facility leased by a Borrower, if the applicable warehouseman, bailee, or lessor has not delivered to the Agents a Collateral Waiver Agreement or if, in lieu of such Collateral Waiver Agreement, a Reserve for rents or storage charges (in an amount for any location not to exceed at any time three (3) months’ rent or storage charges plus any then unpaid rent or storage charges owing with respect to such location) has not been established to the extent the Agents deem appropriate in their reasonable credit judgment for Transportation Equipment at that location;

(i)            that contains or bears any Proprietary Rights licensed to a Borrower by any Person, if either of the Agents is not satisfied that the Collateral Agent may sell or otherwise dispose of such Transportation Equipment in accordance with the terms of this Agreement (including Section 11.2) without infringing the rights of the licensor of such Proprietary Rights or violating any contract with such licensor (and without payment of any royalties), and, if either of the Agents deems it necessary, as to which such Borrower

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has not delivered to the Agents a consent or sublicense agreement from such licensor in form and substance acceptable to the Agents; or

(j)            that either of the Agents determines in its reasonable credit judgment is ineligible for any other reason.

“Engagement Letter” means the engagement letter agreement, dated December 14, 2009, among Ahern, BofA and Banc of America Securities LLC.

“Environmental Claim” means any claim, however asserted, by any Governmental Authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for a Release or injury to the environment.

“Environmental Compliance Reserve” means any reserve that either of the Agents establishes from time to time in its reasonable credit judgment after prior written notice to the Borrowers for amounts that are reasonably likely to be expended by an Obligated Party in order for such Obligated Party and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with any Environmental Law or (b) to correct any non-compliance identified in a report delivered to the Agents pursuant to Section 8.7.

“Environmental Law” means any Requirement of Law relating to environmental, health, safety, and land use matters.

“Environmental Lien” means a Lien in favor of any Governmental Authority or any other Person for (a) any liability under any Environmental Law or (b) damages arising from, or costs incurred by such Governmental Authority or other Person in response to, a Release or threatened Release of a Contaminant into the environment.

“Equipment” means “equipment”, as such term is defined in the UCC, and all machinery, equipment, furniture, furnishings, fixtures, and other tangible personal property (except Inventory), including embedded software, motor vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds, and office equipment, as well as all of such types of property leased by the applicable Person and all of such Person’s rights and interests with respect thereto under such leases (including options to purchase), together with all present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and rights with respect thereto.

“Equipment Appraisal” means, with respect to a Borrower, the most recently delivered appraisal of the Transportation Equipment of such Borrower delivered to the Agents pursuant to Section 10.4.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with an Obligated Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).  Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to

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be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could be liable under the Code or ERISA.

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

“Event of Default” has the meaning specified in Section 11.1.

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

“Exchanged Term Loan Amount” has the meaning specified in Section 2.3(a).

“Excluded Asset” means any lease (including any fixtures or improvements on the property subject to the lease), license, contract or agreement to which Ahern or any Guarantor is a party or any of its rights or interests thereunder (including any rights or interests in tangible property in which Ahern or any Guarantor grants a Lien pursuant to any such agreement), in each instance, if and only for so long as the grant of a security interest under this Agreement therein shall constitute or result in a breach, termination or default under any such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to the Uniform Commercial Code of any relevant jurisdiction (including, without limitation, under Sections 9-406, 9-407, 9-408 or 9-409 thereof) or any other applicable law or principles of equity); provided that notwithstanding the foregoing (i) no lease, license, contract or agreement or any right or interest thereunder, in each instance, existing on the Closing Date shall constitute an Excluded Asset unless described on Schedule 1.1(E), (ii) no Account or money or other amounts due or to become due to Ahern or any Guarantor under or with respect to any such lease, license, contract or agreement or right or interest thereunder (other than amounts constituting proceeds from the sale of Inventory (other than Eligible Inventory) or Equipment (other than Eligible Transportation Equipment), in each instance, subject to purchase money financing permitted hereunder) shall constitute an Excluded Asset, (iii) no item of tangible property owned by Ahern or any Guarantor shall constitute an Excluded Asset unless such item is subject to purchase money Debt or other financing permitted under this Agreement or is an aircraft (other than the helicopter subject to the Aircraft Mortgage), (iv) any interest of Ahern or any Guarantor, as lessee, in a lease of real property shall constitute an Excluded Asset and (v) such lease, license, contract or agreement or right or interest thereunder shall be an

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Excluded Asset only to the extent and for so long as the consequences specified above shall result and shall cease to be an Excluded Asset and shall become subject to the security interest granted under this Agreement, immediately and automatically, at such time as such consequences shall no longer result (including, without limitation and in any event, in the case of any item of tangible property which is the subject of purchase money Debt or other financing permitted hereunder when such financing has been paid in full).

“FDIC” means the Federal Deposit Insurance Corporation, and any Governmental Authority succeeding to any of its principal functions.

“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/8th of 1.00%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to BofA on such day on such transactions as determined by BofA.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any successor thereto.

“Fee Letters” means (i) that certain fee and payment agreement, dated August 18, 2005, entered into among the Administrative Agent, the Collateral Agent and the Borrowers and (ii) that certain fee and payment agreement, dated the Closing Date, entered into between the Administrative Agent and the Borrowers,  in each case, as amended, supplemented or otherwise modified from time to time.

“Financial Statements” means, according to the context in which used, the financial statements referred to in Section 6.2 and Section 7.6 or any other financial statements required to be given to either of the Agents pursuant to this Agreement.

“First Amended and Restated Loan and Security Agreement” has the meaning specified in the recitals of this Agreement.

“Fiscal Month” means a calendar month.  There are twelve Fiscal Months in each Fiscal Year.

“Fiscal Quarter” means a period of three calendar months (with respect to Ahern beginning on the first day of each January, April, July, and October) constituting a Person’s fiscal quarter for financial accounting purposes, with the first of such measurement periods beginning on the first day of each Fiscal Year and the last of such measurement periods ending on the last day of such Fiscal Year.

“Fiscal Year” means, with respect to any Person, such Person’s fiscal year for financial accounting purposes.  The current Fiscal Year of Ahern will end on December 31, 2010, and each Fiscal Year of Ahern is the relevant calendar year.

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“Fixed Assets” means, with respect to any Person, the Equipment and Real Estate of such Person.

“Fixed Charge Coverage Ratio” means, as of the end of any Fiscal Quarter of Ahern, determined for Ahern and its Subsidiaries on a consolidated basis for the preceding four Fiscal Quarters, the ratio of EBITDA, divided by Fixed Charges.

“Fixed Charge Rental Fleet CapEx Percentage” means, at any time, that percentage which is (x) 100% minus (y) 85% of the Net Orderly Liquidation Percentage at such time with respect to rental fleet Inventory.

“Fixed Charge Rental Fleet Depreciation Percentage” means, at any time, that percentage which is (x) 100% minus (y) the Fixed Charge Rental Fleet CapEx Percentage at such time.

“Fixed Charges” means, with respect to any fiscal period, determined for Ahern and its Subsidiaries on a consolidated basis, without duplication, the sum of:

(a)           cash Interest Expense,

(b)           an amount equal to the product of (x) the Fixed Charge Rental Fleet CapEx Percentage in effect on the last day of such fiscal period times (y) the aggregate amount of Capital Expenditures made or incurred during such fiscal period with respect to Inventory which was in the rental fleet of Ahern or any of its Subsidiaries at any time on or prior to the last day of such fiscal period (excluding, in the case of the Obligated Parties, any such Capital Expenditures to the extent funded with proceeds from the sale of Inventory in the rental fleet of any Obligated Party permitted hereunder),

(c)           an amount equal to the product of (x) the Fixed Charge Transportation CapEx Percentage in effect on the last day of such fiscal period times (y) the aggregate amount of Capital Expenditures made or incurred during such fiscal period with respect to Transportation Equipment (excluding, in the case of the Obligated Parties, any such Capital Expenditures to the extent (1) funded with Debt other than Revolving Loans, but including, without duplication, principal payments with respect to any such Debt or (2) funded with proceeds from the sale of Transportation Equipment of any Obligated Party permitted hereunder),

(d)           an amount equal to the product of (x) the Fixed Charge Rental Fleet Depreciation Percentage in effect on the last day of such fiscal period times (y) depreciation expense taken in such fiscal period with respect to any Inventory which was in the rental fleet of Ahern or any of its Subsidiaries at any time on or prior to the last day of such fiscal period,

(e)           an amount equal to the product of (x) the Fixed Charge Transportation Depreciation Percentage in effect on the last day of such fiscal period times (y) depreciation expense taken in such fiscal period with respect to Transportation Equipment owned by Ahern or any of its Subsidiaries at any time on or prior to the last day of such fiscal period,

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(f)            cash Distributions in respect of any Capital Stock,

(g)           scheduled principal payments of Debt, plus

(h)           federal, state, local, and foreign cash income taxes (not less than zero), excluding deferred taxes.

“Fixed Charge Transportation CapEx Percentage” means, at any time, that percentage which is (x) 100% minus (y) 85% of the Net Orderly Liquidation Percentage at such time with respect to Transportation Equipment.

“Fixed Charge Transportation Depreciation Percentage” means, at any time, that percentage which is (x) 100% minus (y) the Fixed Charge Transportation CapEx Percentage at such time.

“Funding Account” has the meaning specified in Section 2.2(d).

“Funding Date” means the date on which a Borrowing occurs.

“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, generally accepted accounting principles and practices set forth from time to time in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession) that are applicable to the circumstances as of the date of determination.

“GE Intercreditor Agreement” means the intercreditor agreement entered into by the Collateral Agent and General Electric Capital Corporation relating to that certain Master Lease Agreement between Ahern and General Electric Capital Corporation dated as of February 14, 2003, both of which agreements have been terminated prior to the date hereof.

“General Intangibles” means, with respect to any Person, “general intangibles”, as such term is defined in the UCC, and all other choses in action and causes of action, intangible personal property of every kind and nature (other than Accounts), including all contract rights, payment intangibles, Proprietary Rights, corporate or other business records, inventions, designs, blueprints, plans, specifications, patents, patent applications, trademarks, service marks, trade names, trade secrets, goodwill, copyrights, computer software, customer lists, registrations, licenses, franchises, tax refund claims, any funds that may become due to such Person in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to such Person from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the lives of key employees on which such Person is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged equity interests or Investment Property and any letter of credit, guarantee, claim, security interest or other security held by or granted to such Person.

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“Goods” means “goods” as such term is defined in the UCC.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, and any department, agency, board, commission, tribunal, committee, or instrumentality of any of the foregoing.

“Guarantor” means each of (a) the Borrowers and (b) each other Person who becomes a party to any Guaranty Agreement pursuant to the terms of this Agreement, and “Guarantors” means two or more of the foregoing Persons, collectively.

“Guaranty” means, with respect to any Person, all obligations of such Person that in any manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any indebtedness, dividend, or other obligations of any other Person (the “guaranteed obligations”), or assure or in effect assure the holder of the guaranteed obligations against loss in respect thereof, excluding the endorsement of checks and other similar instruments in the ordinary course of business, but including any such obligations incurred through an agreement, contingent or otherwise:  (a) to purchase the guaranteed obligations or any property constituting security therefor; (b) to advance or supply funds for the purchase or payment of the guaranteed obligations or to maintain a working capital or other balance sheet condition; or (c) to lease property or to purchase any debt or equity securities or other property or services.  In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.

“Guaranty Agreement” means each guaranty agreement in favor of the Collateral Agent to which any Person becomes a party pursuant to the terms of this Agreement, and “Guaranty Agreements” means all of such agreements, collectively.

“Hedge Agreement” means any and all transactions, agreements, or documents now existing or hereafter entered into, which provide for an interest rate, credit, commodity, or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging a Person’s exposure to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency valuations, or commodity prices.

“Incremental Commitment Agreements” means the incremental commitment agreements contemplated under the First Amended and Restated Loan and Security Agreement, which were entered into by the Obligated Parties and certain of the Revolving Lenders (each, an “Incremental Lender”) pursuant to which each such Incremental Lender committed (such commitment, an “Incremental Commitment”) to increase its Commitment or provide a new Commitment, in each instance, to make Revolving Loans (the aggregate amount of which increased or new Commitments are included in the aggregate Revolving Credit Commitments on the Closing Date).

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“Indemnified Liabilities” has the meaning specified in Section 15.11(a).

“Indemnified Person” has the meaning specified in Section 15.11(a).

“Instruments” means “instruments”, as such term is defined in the UCC.

“Intercompany Accounts” means all assets and liabilities, however arising, which are due to Ahern or a Subsidiary of Ahern from, which are due from Ahern or a Subsidiary of Ahern to, or which otherwise arise from any transaction by Ahern or a Subsidiary of Ahern with, any Affiliate of Ahern or a Subsidiary of Ahern.

“Intercreditor Agreement” means the Intercreditor Agreement, dated as of August 18, 2005, by and among the Obligated Parties, the Collateral Agent, the Second Lien Agent and Wachovia, as control agent, as amended, restated, supplemented or otherwise modified from time to time.

“Interest Expense” means with respect to Ahern and its Subsidiaries for any fiscal period, the aggregate amount of interest required to be paid or accrued on all Debt of Ahern and its Subsidiaries during such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including payments consisting of interest in respect of Capital Leases or synthetic leases, and including unused commitment fees, facility fees, and similar fees and expenses in connection with the borrowing of money (including all fees and expenses incurred in connection with Hedge Agreements entered into with respect to any Debt).

“Interest Payment Date” means (a) the first day of each calendar month, (b) additionally, in the case of interest on any Obligations (other than Term Loan Obligations), the Revolving Termination Date and (c) additionally, in the case of interest on any Term Loan Obligations, the Term Loan Termination Date.

“Interest Period” means, with respect to any LIBOR Rate Revolving Loan, the period commencing on the Funding Date of such Loan or on the Continuation/Conversion Date on which such Loan is continued as or converted into a LIBOR Rate Revolving Loan, and ending on the date one, two, or three months thereafter as selected by a Borrower in a Notice of Borrowing or Notice of Continuation/Conversion, provided that:

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

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

(c)           no Interest Period shall extend beyond the Stated Revolving Termination Date.

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“Interest Rate” means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.

“Inventory” means “inventory”, as such term is defined in the UCC, and inventory, goods, and merchandise to be furnished under any contract of service or held for sale or lease, returned goods, raw materials, work-in-process, finished goods (including embedded software), other materials and supplies of any kind, nature, or description which are used or consumed in a Person’s business or used in connection with the packing, shipping, advertising, selling, or finishing of such goods, merchandise, and all documents of title or other Documents representing them.

“Inventory Appraisal” means with respect to a Borrower (a) on the Closing Date and until the first appraisal of the relevant class of Inventory of such Borrower is delivered to the Agents pursuant to Section 10.4, (i) the appraisal of Inventory of such Borrower consisting of spare parts and merchandise inventory or (ii) the appraisal of Inventory of such Borrower (other than Inventory consisting of spare parts and merchandise inventory), or both such appraisals, as the context may require, in each case prepared by Rouse Asset Services and dated September 30, 2009 and (b) thereafter, each appraisal of the relevant class of Inventory of such Borrower delivered to the Agents pursuant to Section 10.4.

“Investment” means any acquisition by an Obligated Party of property in exchange for cash or other property, whether in the form of an acquisition of Capital Stock, Debt, or other indebtedness or obligation, or the purchase or acquisition of any other assets or property, or a loan, advance, capital contribution, or subscription, excluding acquisitions in the ordinary course of business of such Obligated Party of Real Estate, Equipment, and Inventory to be used in the business of such Obligated Party.  The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment (other than adjustments for the repayment of, or the refund of capital with respect to, the original principal amount of any such Investment).

“Investment Property” means “investment property”, as such term is defined in the UCC, and any (a) securities, whether certificated or uncertificated, (b) securities entitlements, (c) securities accounts, (d) commodity contracts, and (e) commodity accounts.

“IRS” means the Internal Revenue Service and any Governmental Authority succeeding to any of its principal functions under the Code.

“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.

“Latest Projections” means:  (a) on the Closing Date and thereafter until the  Agents receive new projections pursuant to Section 6.2(e), the monthly projections of the Obligated Parties’ financial condition, results of operations, cash flow, Borrowing Base, and Unused Availability, in each case for the period commencing on January 1, 2010 and ending on December 31, 2013 (for the period commencing on January 1, 2009 and ending on December 31, 2012 for purposes of Section 6.2(b)(ii) with respect to any Financial Statements for any Fiscal

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Month included in the 2009 Fiscal Year of Ahern) and the annual financial projections for Fiscal Years 2010-2013 (for Fiscal Years 2009-2012 for purposes of Section 6.2(d) with respect to the Financial Statements for the 2009 Fiscal Year of Ahern), each as delivered to the Agents prior to the Closing Date; and (b) thereafter, the projections most recently received by the Agents pursuant to Section 6.2(e).

“Leasehold Property” means any leasehold interest of any Obligated Party as lessee under any lease of real property.

“Lender” means any of the lending institutions signatory to this Agreement as specified on the signature pages hereto or in any Assignment and Acceptance as a “Lender”, any Non-Executing Revolving Lender, the Administrative Agent to the extent of any Agent Advance outstanding, and BofA to the extent of any Non-Ratable Loan outstanding, and “Lenders” means any two or more of such Persons, collectively; provided, however, that until the Revolving Facility Payment In Full (x) for purposes of the second sentence of Section 2.2(a), Section 4.6(b) and Section 13.1, each reference therein to a “Lender” or the “Lenders” shall be deemed to be solely a reference to a “Revolving Lender” or the “Revolving Lenders”, respectively, and (y) for purposes of the definition of “Majority Lenders” when used in Section 13.1 or in connection with such Section or when used in the Intercreditor Agreement, each reference in such definition to a “Lender” or “Lenders” shall be deemed to be solely a reference to a “Revolving Lender” or “Revolving Lenders”, respectively, and consequently Pro Rata Share shall be determined for such purposes solely in the context of the revolving credit facility provided under this Agreement.

“Letter of Credit” has the meaning specified in Section 2.4(a).

“Letter of Credit Fee” has the meaning specified in Section 3.5.

“Letter of Credit Fee Percentage” means with respect to any Letter of Credit, on any date of determination, a per annum percentage equal to the Applicable Margin for LIBOR Rate Revolving Loans as of such date of determination, plus, during the existence of any Event of Default, an additional 2.00% per annum.

“Letter of Credit Issuer” means BofA or Wachovia or any Affiliate of BofA or Wachovia.

“Letter-of-Credit Rights” means “letter-of-credit rights”, as such term is defined in the UCC, and any rights to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is entitled to demand payment or performance.

“Letter of Credit Subfacility” means $10,000,000.

“LIBOR Rate” means, for any Interest Period, with respect to LIBOR Rate Revolving Loans, the per annum rate of interest (rounded up, if necessary, to the nearest 1/8th of 1%), determined by the Administrative Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest Period, for a term comparable to such Interest Period, equal to (a) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source designated by the Administrative

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Agent); or (b) if BBA LIBOR is not available for any reason, the interest rate at which Dollar deposits in the approximate amount of the LIBOR Rate Revolving Loan would be offered by BofA’s London branch to major banks in the London interbank Eurodollar market.  If the Federal Reserve Board imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR Rate shall be the foregoing rate, divided by 1 minus the Reserve Percentage.

“LIBOR Rate Revolving Loan” means any portion of the Revolving Loans during any period in which such portion bears interest based on the LIBOR Rate.

“Lien” means (a) any interest in property securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute, or contract, and including a security interest, charge, claim, or lien arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment, deposit arrangement, agreement, security agreement, conditional sale or trust receipt or a lease, consignment, or bailment for security purposes, (b) to the extent not included under clause (a) preceding, any reservation, exception, encroachment, easement, right-of-way, covenant, condition, restriction, lease, or other title exception or encumbrance affecting property, and (c) any contingent or other agreement to provide any of the foregoing.

“Loan Account” means the loan account of the Borrowers, which account shall be maintained by the Administrative Agent.

“Loan Documents” means, collectively, this Agreement, the Intercreditor Agreement, the Proprietary Rights Security Agreements, any Term Loan Notes, any Mortgages, any Aircraft Mortgage, any Guaranty Agreements, any agreements providing for Bank Products, the Fee Letters and any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing, guaranteeing, or otherwise relating to any of the Obligations, any of the Collateral, or any other aspect of the transactions contemplated by this Agreement.

“Loans” means, collectively, all loans and advances provided for in Article 2.

“Majority Lenders” means, at any time, Lenders whose Pro Rata Shares aggregate more than 50%; provided, that the Commitment, Loans and other Obligations of any Defaulting Lender and such Defaulting Lender’s right to vote on any issue shall be excluded for the purpose of making any determination of Majority Lenders.

“Majority Revolving Lenders” means, at any time, Revolving Lenders whose Pro Rata Shares (as determined in such definition solely in the context of the revolving credit facility provided under this Agreement) aggregate more than 50.0%; provided, that the Revolving Credit Commitment, Revolving Loans and other Revolving Obligations of any Defaulting Lender and such Defaulting Lender’s right to vote on any issue shall be excluded for the purpose of making any determination of Majority Revolving Lenders; provided, further, that so long as BofA and Wachovia are the Agents and the Pro Rata Shares (as determined in such definition solely in the context of the revolving credit facility provided under this Agreement) of BofA and Wachovia aggregate more than 50.0%, “Majority Revolving Lenders” means at least three (3) Revolving Lenders whose Pro Rata Shares (as determined in such definition solely in the context of the revolving credit facility provided under this Agreement) aggregate more than 50.0%.

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“Majority Term Lenders” means, at any time, Term Lenders whose Pro Rata Shares (as determined in such definition solely in the context of the Term Loans) aggregate more than 50%; provided, that the Term Loan Commitment and Term Loans of any Defaulting Lender and such Defaulting Lender’s right to vote on any issue shall be excluded for the purpose of making any determination of Majority Term Lenders.

“Management Agreement” means (a) with respect to any corporation, its bylaws, (b) with respect to any limited liability company or other similar entity, its operating agreement, (c) with respect to any limited partnership, its partnership agreement, and (d) with respect to any other entity, any agreement or other document similar in nature to any of the foregoing.

“Margin Stock” means “margin stock” as such term is defined in Regulation T, U, or X of the Federal Reserve Board.

“Material Adverse Effect” means:  (a) a material adverse change in, or a material adverse effect upon, (i) the Collateral or (ii) the operations, business, properties, prospects or condition (financial or otherwise) of Ahern and its Subsidiaries, taken as a whole; (b) a material impairment of the ability of any Obligated Party or any Affiliate of any Obligated Party to perform under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect, or enforceability against any Obligated Party or any Affiliate of any Obligated Party of any Loan Document to which it is a party.

“Material Contract” means any contract or other arrangement to which Ahern or any of its Subsidiaries is a party (other than the Loan Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.

“Maximum Rate” means, at any time with respect to any Obligation, the highest rate of interest the Lenders holding such Obligation may legally contract for, charge, or receive in respect of such Obligation as allowed by any Requirement of Law.

“Maximum Revolver Amount” means $350,000,000 as such amount shall be reduced in accordance with Section 4.3(f).

“Mortgage” means and includes any mortgage, deed of trust, deed to secure debt, assignment, or other instrument executed and delivered by any Obligated Party to or for the benefit of the Collateral Agent by which the Collateral Agent, for the benefit of the Credit Providers, acquires a Lien on any Real Estate of such Obligated Party, and all amendments, modifications, and supplements thereto, and “Mortgages” means two or more of such mortgages, deeds of trust, deeds to secure debt, assignments, and other instruments, as the context requires.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that is or was at any time during the current calendar year or the immediately preceding six calendar years contributed to by an Obligated Party or any ERISA Affiliate.

“Negative Pledge” means any agreement, contract, or other arrangement whereby any Obligated Party is prohibited from, or would otherwise be in default as a result of, creating, assuming, incurring, or suffering to exist, directly or indirectly, any Lien on any of its assets in favor of the Collateral Agent under the Loan Documents.

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“Net Amount of Eligible Accounts” means, at any time, without duplication, the gross amount of Eligible Accounts, less sales, excise, or other similar taxes, and less returns, discounts, claims, credits, allowances, accrued rebates, offsets, deductions, counterclaims, disputes, and other defenses of any nature at any time issued, owing, granted, outstanding, available, or claimed.

“Net Book Value” means, with respect to any item of Eligible Rental and Sale Equipment or Eligible Transportation Equipment of a Borrower, the cost to such Borrower of such item of Eligible Rental and Sale Equipment or Eligible Transportation Equipment, as the case may be, less the accumulated depreciation taken by such Borrower thereon, all as reflected in the books and records of such Borrower.

“Net Orderly Liquidation Percentage” means (a) with respect to any class of Inventory of a Borrower at any time, the ratio (expressed as a percentage) computed by dividing (i) (x) if such percentage is being determined on the Closing Date or on any date prior to the first delivery of an Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) required pursuant to Section 10.4, the net recovery value of such class of Inventory of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) most recently delivered to the Agents prior to the Closing Date and (y) if such percentage is being determined on or after the date of the first delivery of an Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) required pursuant to Section 10.4, the net recovery value of such class of Inventory of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Inventory Appraisal of such Borrower’s Inventory (containing such class of Inventory) most recently delivered to the Agents pursuant to Section 10.4 by (ii) the value of such class of Inventory of such Borrower, valued at net book value, as set forth in the corresponding Inventory Appraisal and (b) with respect to Transportation Equipment of a Borrower at any time, the ratio (expressed as a percentage) computed by dividing (i) (x) if such percentage is being determined on the Closing Date or on any date prior to the first delivery of an Equipment Appraisal of such Borrower’s Transportation Equipment pursuant to Section 10.4, the net recovery value of the Transportation Equipment of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Equipment Appraisal of such Borrower’s Transportation Equipment most recently delivered to the Agents prior to the Closing Date, and (y) if such percentage is being determined on or after the date of the first delivery of an Equipment Appraisal of such Borrower’s Transportation Equipment pursuant to Section 10.4, the net recovery value of the Transportation Equipment of such Borrower (which in any event shall give effect to all costs and expenses of liquidation), as set forth in the Equipment Appraisal of such Borrower’s Transportation Equipment most recently delivered to the Agents pursuant to Section 10.4 by (ii) the value of the Transportation Equipment of such Borrower, valued at net book value, as set forth in the corresponding Equipment Appraisal.

“Net Orderly Liquidation Value” means (x) with respect to the applicable class of Eligible Inventory of a Borrower at any time, an amount equal to the product of (i) the value of such class of Eligible Inventory of such Borrower at such time valued at the lower of Net Book Value (or average cost in the case of Eligible Spare Parts Inventory) or market, multiplied by (ii) the Net Orderly Liquidation Percentage for such class of Eligible Inventory of such Borrower

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in effect at such time and (y) with respect to the Eligible Transportation Equipment of a Borrower at any time, an amount equal to the product of (i) the value of the Eligible Transportation Equipment of such Borrower at such time valued at the lower of Net Book Value or market, multiplied by (ii) the Net Orderly Liquidation Percentage for the Eligible Transportation Equipment of such Borrower in effect at such time.

“New Aircraft” means a Cessna Citation CJ3 that was ordered by Ahern prior to the Original Closing Date, with a purchase price of approximately $6,000,000.

“New Term Loan Funding Amount” has the meaning specified in Section 2.3(a).

“Non-Consenting Lender” has the meaning specified in Section 13.1(d).

“Non-Consenting Lender Party” has the meaning specified in Section 13.3(g).

“Non-Executing Revolving Lender” means any lending institution party to the First Amended and Restated Loan and Security Agreement as a “Lender” thereunder immediately prior to the effectiveness of the amendment and restatement thereof pursuant to this Agreement that does not execute and deliver to either Agent its counterpart signature page to this Agreement prior to or at the time of such effectiveness.  For the avoidance of doubt, each Non-Executing Revolving Lender is a party to and bound by this Agreement on the effectiveness of the amendment and restatement of the First Amended and Restated Loan and Security Agreement pursuant to this Agreement notwithstanding its failure to execute and deliver to either Agent its counterpart signature page to this Agreement prior to or at the time of such effectiveness.

“Non-Ratable Loan” and “Non-Ratable Loans” have the meanings specified in Section 2.2(i).

“Notice of Borrowing” has the meaning specified in Section 2.2(c).

“Notice of Continuation/Conversion” has the meaning specified in Section 3.2(b).

“Obligated Party” means each of the Borrowers and the Guarantors, individually, and “Obligated Parties” means two or more of such Persons, collectively.

“Obligations” means (a) all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by the Obligated Parties, or any of them, to the Administrative Agent, the Collateral Agent, BofA, Wachovia, the Letter of Credit Issuer, each Indemnified Person, and the Lenders, or any of them, arising under or pursuant to this Agreement or any of the other Loan Documents, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, loan, guaranty, indemnification, or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys’ fees (including Attorney Costs), filing fees, and any other sums chargeable to any Obligated Party hereunder or under any of the other Loan Documents, including, without limitation, post-petition interest whether or not such interest is an allowable claim in a bankruptcy, (b) all debts, liabilities, and obligations owing by the Obligated Parties, or any of them, now or hereafter arising from or in connection with the Letters of Credit

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and (c) all debts, liabilities, and obligations owing by the Obligated Parties, or any of them, now or hereafter arising from or in connection with Bank Products.

“Operating Lease”, as applied to any Person, means any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease other than any such lease under which that Person is the lessor and excluding Re-Rental Leases.

“Organization Certificate” means, (a) with respect to any corporation, its articles or certificate of incorporation, (b) with respect to any limited liability company or other similar entity, its certificate of formation or organization, (c) with respect to any limited partnership, its certificate of limited partnership, and (d) with respect to any other entity, any certificate or other document similar in nature to any of the foregoing.

“Original Closing Date” means October 29, 2004.

“Original Loan and Security Agreement” has the meaning specified in the recitals of this Agreement.

“Other Taxes” means any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies (excluding, in the case of each Lender and each Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by such Lender’s or such Agent’s gross or net income) that arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any other Loan Documents.

“Participant” means any commercial bank, financial institution, or other Person that is not an Affiliate of the Obligated Parties who shall have been granted the right by any Lender to participate in the financing provided by such Lender under this Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender.

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001)).

“PBGC” means the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to the functions thereof.

“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA that any Obligated Party or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or in the case of a Multiemployer Plan has made contributions at any time during the immediately preceding five plan years.

“Permitted Distributions” means with respect to a period during which Ahern is or was an S Corporation or a substantially similar pass-through entity for federal income tax purposes, the making of any Distribution in an amount equal to the aggregate net federal, state and local income and alternative minimum taxes (including federal and state estimated income taxes then

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payable) attributable to income from Ahern and any Subsidiaries for such period allocated to the holders of Capital Stock of Ahern (after taking into account the reduction in (i) federal income tax liability that will result from the payment of such state and local income taxes, and (ii) federal, state and local income and alternative minimum tax liability that has previously, or will for such tax period, result from the utilization of losses from prior periods attributable to the operations of Ahern and any Subsidiaries that has been allocated to the holders of Capital Stock of Ahern) and, if required to maintain such S Corporation or similar pass-through status, a proportionate distribution to all such holders.

“Permitted Investment” means any Investment made by an Obligated Party at a time when no Default or Event of Default exists or would result therefrom consisting of:  (a) Investments in direct obligations of the U.S., or any agency thereof, or obligations guaranteed by the U.S., provided that such obligations mature within one year from the date of acquisition thereof; (b) Investments in certificates of deposit maturing within one year from the date of investment, bankers’ acceptances, Eurodollar bank deposits, or overnight bank deposits, in each case issued by, created by, or with, a bank or trust company organized under the laws of the U.S. or any state thereof having capital and surplus aggregating at least One Hundred Million Dollars ($100,000,000); (c) Investments in commercial paper given a rating of “A2” or better by Standard & Poor’s Corporation or “P2” or better by Moody’s Investors Service, Inc. and maturing not more than 90 days from the date of creation thereof; (d) Investments in Hedge Agreements entered into for the purpose of limiting the amount of interest payable under this Agreement; (e) Investments in mutual funds substantially all of the assets of which are comprised of securities of the types described in clause (a), clause (b), and clause (c) preceding; (f) Investments by any Obligated Party in any Borrower; (g) existing Investments listed on Schedule 1.1(B); (h) loans to executive officers and employees of the Obligated Parties (that are not also holders of equity of any Obligated Party); provided that (x) at the time of such loan no Default or Event of Default shall exist or result therefrom, (y) the aggregate amount of such loans made by the Obligated Parties and outstanding at any one time does not exceed $100,000, and (z) such loan does not violate any Requirement of Law; and (i) other Investments not included in clause (a) through clause (h) preceding in an aggregate amount at any time not exceeding $100,000.

“Permitted Liens” means:

(a)           the Agent’s Liens;

(b)           Liens, if any, that are described on Schedule 1.1(C) and Liens that secure Debt permitted pursuant to clause (c) of Section 8.12, provided that any Liens securing refunded, renewed, or extended Debt pursuant to such clause (c) shall not attach to any assets other than those assets securing the Debt being refunded, renewed, or extended;

(c)           Liens for (i) taxes, fees, assessments, or other charges of a Governmental Authority that are not delinquent and (ii) taxes, fees, assessments, or other charges of a Governmental Authority in an amount not in excess of $250,000, provided that the payment of such taxes, fees, assessments, or other charges of a Governmental Authority referenced in this clause (ii) that are due and payable is being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves

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have been established in accordance with GAAP on the applicable Obligated Party’s books and records and a stay of enforcement of any such Lien is in effect;

(d)           Liens consisting of deposits made in the ordinary course of business in connection with, or to secure payment of, obligations under worker’s compensation, unemployment insurance, social security, and other similar laws, or to secure the performance of bids, tenders, or contracts (other than for the repayment of Debt) or to secure indemnity, performance, or other similar bonds for the performance of bids, tenders, or contracts (other than for the repayment of Debt) or to secure statutory obligations (other than Liens arising under ERISA or Environmental Liens) or surety or appeal bonds, or to secure indemnity, performance, or other similar bonds;

(e)           Liens securing the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords, and other similar Persons, provided that if any such Lien arises from the nonpayment of such claims or demands when due, such claims or demands do not exceed $250,000 in the aggregate and are being contested in good faith and by appropriate proceedings diligently pursued and as to which adequate financial reserves have been established in accordance with GAAP on the applicable Obligated Party’s books and records and a stay of enforcement of any such Lien is in effect;

(f)            Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, rights of way, covenants running with the land, and other similar title exceptions or encumbrances affecting any Real Estate, provided that any such Liens do not in the aggregate materially interfere with the use of such Real Estate in the ordinary conduct of an Obligated Party’s business;

(g)           Liens (i) arising from rights of setoff, but excluding any requirement for provision of cash collateral, in favor of BofA or Wachovia or any of their respective Affiliates arising from any agreement entered into in connection with any Obligated Party obtaining Bank Products from BofA or Wachovia or any of their respective Affiliates and (ii) arising in favor of the Letter of Credit Issuer under the applicable application and reimbursement agreement delivered to the Letter of Credit Issuer in connection with each Letter of Credit;

(h)           Liens arising from judgments and attachments in connection with court proceedings, provided that (i) the attachment or enforcement of such Liens would not otherwise result in an Event of Default hereunder, (ii) such Liens are being contested in good faith by appropriate proceedings diligently pursued, (iii) adequate financial reserves have been established on the applicable Obligated Party’s books and records in accordance with GAAP, (iv) no material Collateral is subject to a material risk of loss or forfeiture, and (v) a stay of execution pending appeal or proceeding for review is in effect;

(i)            Liens granted in favor of the Second Lien Agent to secure the repayment of the Second Lien Debt (or if all of the Second Lien Debt is repaid with proceeds of Refinancing Second Lien Debt, in favor of the holders of the Refinancing Second Lien Debt or an agent or trustee therefor to secure the repayment of the Refinancing Second

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Lien Debt), which Liens are junior and subordinate to the Agent’s Liens and are subject to the terms of the Intercreditor Agreement (or in the case of Liens securing Refinancing Second Lien Debt, an intercreditor agreement substantially identical to the Intercreditor Agreement or otherwise satisfactory to the Agents and the Majority Revolving Lenders (or after the Revolving Facility Payment In Full, the Majority Term Lenders));

(j)            [Intentionally Omitted];

(k)           Liens that constitute purchase money Liens and secure Debt permitted under clause (h) of Section 8.12 including the lessors’ interests under Capital Leases permitted under clause (h) of Section 8.12, but only to the extent such Liens attach only to the Transportation Equipment, aircraft or computer or office equipment acquired by the incurrence of such Capital Leases and purchase money secured Debt, and Liens securing refinancings of such Debt permitted under clause (c) of Section 8.12; provided that such Liens are not extended to property other than the Transportation Equipment, aircraft or computer or office equipment securing the Debt being refinanced; and

(l)            Liens that constitute purchase money Liens and secure Debt permitted under clause (i) of Section 8.12, but only to the extent such Liens attach only to the Inventory acquired by the incurrence of such purchase money secured Debt and not to any Account, including, in any event, any rental proceeds of any such Inventory;

provided that (i) none of such Liens listed in clause (b) through clause (h) or clause (k) through clause (l) preceding may attach to any Accounts of a Borrower, (ii) none of such Liens listed in clause (b) through clause (h) or clause (k) preceding, other than such Liens of a type and to the extent provided by clause (c) and clause (e) preceding, may attach to any Inventory owned by a Borrower and (iii) none of such Liens listed in clause (b) through clause (h) or clause (l) preceding, other than such Liens of a type and to the extent provided by clause (c) and clause (e) preceding, may attach to any Transportation Equipment owned by a Borrower.

“Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity.

“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) that any Obligated Party sponsors or maintains or to which any Obligated Party makes, is making, or is obligated to make contributions and includes any Pension Plan.

“Pro Rata Share” means, with respect to a Lender at any time, a fraction (expressed as a percentage), the numerator of which is the sum of (x) the amount of such Lender’s Commitment at such time plus (y) the aggregate unpaid principal balance of the Term Loans owing to such Lender at such time and the denominator of which is the sum of (x) the amounts of all of the Lenders’ Commitments at such time plus (y) the aggregate unpaid principal balance of the Term Loans owing to all of the Lenders at such time (or if no Commitments are outstanding at such time, a fraction (expressed as a percentage), the numerator of which is the amount of Obligations owed to such Lender at such time and the denominator of which is the aggregate amount of the Obligations owed to all Lenders at such time); provided, that references to Pro Rata Share in the

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context solely of the revolving credit facility provided hereunder (including, without limitation, with respect to Revolving Loans and participations in Revolving Loans and Letters of Credit) means, with respect to a Lender at any time, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Revolving Credit Commitment at such time and the denominator of which is the sum of the amounts of all of the Lenders’ Revolving Credit Commitments at such time, or if no Revolving Credit Commitments are outstanding at such time, a fraction (expressed as a percentage), the numerator of which is the amount of Obligations owed to such Lender at such time with respect to the revolving credit facility provided hereunder and the denominator of which is the aggregate amount of the Obligations owed to all Lenders at such time with respect to the revolving credit facility provided hereunder; and provided, further, that references to Pro Rata Share in the context solely of the Term Loans means, with respect to a Lender at any time, a fraction (expressed as a percentage), the numerator of which is the aggregate unpaid principal balance of the Term Loans owing to such Lender at such time and the denominator of which is the aggregate unpaid principal balance of the Term Loans owing to all of the Lenders at such time.

“Proprietary Rights” means licenses, franchises, permits, patents, patent rights, copyrights, works that are the subject matter of copyrights, trademarks, service marks, trade names, trade styles, patent applications, copyright applications, trademark and service mark applications, and licenses and rights related to any of the foregoing, and any other rights under any of the foregoing, extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing, and any rights to sue for past, present and future infringement of any of the foregoing.  With respect to the Obligated Parties, “Proprietary Rights” includes, without limitation, all of the items listed on Schedule 7.11.

“Proprietary Rights Security Agreements” means the assignments for security and special powers of attorney executed and delivered by one or more of the Obligated Parties to the Collateral Agent, for the benefit of the Credit Providers, to evidence the Agent’s Liens in each such Obligated Party’s present and future patents, trademarks, copyrights and related licenses and rights and/or provide certain rights with respect to such Liens.

“Real Estate” means, with respect to any Person, such Person’s now or hereafter owned or leased estates in real property (as applicable), including fees, leaseholds, and future interests, together with such Person’s now or hereafter owned or leased interests in the improvements thereon, the fixtures attached thereto, and the easements appurtenant thereto.

“Refinancing Second Lien Debt” has the meaning specified in Section 8.12.

“Refinancing Second Lien Debt Documents” has the meaning specified in Section 8.12.

“Release” means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of a Contaminant into the indoor or outdoor environment or into or out of any Real Estate or other property, including the movement of Contaminants through or in the air, soil, surface water, groundwater, or Real Estate or other property.

“Report” has the meaning specified in Section 14.18(a).

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“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder, other than any such event for which the 30 day notice requirement under ERISA has been waived in regulations issued by the PBGC.

“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule, or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject.

“Re-Rental Lease” means any lease of property entered into by Ahern as lessee which property is immediately subleased by Ahern to another Person in the ordinary course of business of Ahern.

“Reserve Percentage” means the reserve percentage (expressed as a decimal, rounded up to the nearest 1/8th of 1%) applicable to member banks under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).

“Reserves” means any and all reserves that either of the Agents deems necessary in the exercise of its reasonable credit judgment to maintain with respect to the Collateral or any Obligated Party that limit the availability of Borrowings hereunder or that represent amounts the Administrative Agent, the Collateral Agent or any Lender may be obligated to pay in the future on behalf of an Obligated Party (including, without limitation, (a) Bank Product Reserves, (b) reserves for accrued, unpaid interest on the Obligations, (c) reserves for rent at each leased location where any Collateral or the books and records of an Obligated Party are maintained or kept, except to the extent a Collateral Waiver Agreement is delivered to the Agents for such leased location, (d) reserves for Inventory shrinkage, (e) Environmental Compliance Reserves, (f) reserves for customs charges and shipping charges relating to any Inventory in transit, (g) reserves for warehousemen’s or bailees’ charges, except to the extent a Collateral Waiver Agreement is delivered to the Agents by the applicable warehouseman or bailee, (h) reserves for taxes, fees, assessments, and other governmental charges, (i) a dilution reserve equal to the difference (if a positive number) between Dilution and 5% of the Net Amount of Eligible Accounts and (j) reserves for any amounts reflected in any Borrower’s ledger accounts under any of the following categories: “Equipment Down Long Term” or “Rebate Accrual”).  Reserves shall in any event include a reserve for interest on the Term Loans in an amount equal to two (2) months interest on the original aggregate principal amount thereof, which reserve may only be released (in whole or in part) with the written consent of the Agents and the Majority Revolving Lenders.

“Responsible Officer” means, with respect to any Obligated Party, the chief executive officer, the president, the chief financial officer, the treasurer, the director of finance, any vice president, or any other officer having substantially the same authority and responsibility as any of the foregoing.

“Revolving Credit Commitment” means, at any time with respect to a Lender, the principal amount set forth beside such Lender’s name under the heading “Revolving Credit

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Commitment” on Schedule 1.1(A) or as set forth as such Lender’s Revolving Credit Commitment in the most recent Assignment and Acceptance to which such Lender is a party, as such Revolving Credit Commitment may be adjusted from time to time in accordance with the provisions of this Agreement, and “Revolving Credit Commitments” means the aggregate amount of the Revolving Credit Commitments of all of the Lenders.

“Revolving Facility Payment In Full” means the following have occurred:  (a) all the Revolving Credit Commitments have expired or have been terminated, (b) all Letters of Credit have expired, have been terminated or cancelled or have been collateralized as provided in Section 2.4(g) and (c) all Revolving Obligations have been paid in full in cash.

“Revolving Lender” means each Lender that has a Revolving Credit Commitment or that holds Revolving Loans.  References herein or in any other Loan Document to “Revolving Lender” shall not include a Lender in its capacity, if any, as a Term Lender.

“Revolving Loans” has the meaning specified in Section 2.2(a) and includes each Agent Advance and Non-Ratable Loan.

“Revolving Obligations” means all Obligations other than Term Loan Obligations.

“Revolving Termination Date” means the earliest to occur of (a) the Stated Revolving Termination Date, (b) the date the Revolving Credit Commitments are terminated (i) by the Borrowers pursuant to Section 4.2 or (ii) pursuant to Section 11.2, and (c) the date this Agreement is otherwise terminated for any reason whatsoever pursuant to the terms of this Agreement.

“Second Lien Agent” means Wells Fargo Bank, N.A., as Trustee, in its capacity as collateral trustee for the Second Lien Lenders and its successors and assigns in such capacity from time to time.

“Second Lien Debt” means the Debt issued by the Borrower pursuant to the terms of the Second Lien Debt Agreement and the other Second Lien Debt Documents and evidenced by the Second Lien Notes.

“Second Lien Debt Agreement” means the Indenture, dated as of August 18, 2005, between Ahern and Wells Fargo Bank, N.A., as Trustee, providing for the issuance by Ahern of the Second Lien Notes, as such agreement may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.

“Second Lien Debt Documents” means the Second Lien Debt Agreement, the Second Lien Notes, any security agreements in favor of the Second Lien Agent securing the payment of the Second Lien Debt and any other agreements between any of the Obligated Parties and the Second Lien Agent executed from time to time in connection with the Second Lien Debt Agreement, if any.

“Second Lien Lenders” means the holders of the Second Lien Debt.

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“Second Lien Notes” means the senior secured notes due 2013 issued by Ahern pursuant to the Second Lien Debt Agreement, as amended, restated, supplemented or substituted for from time to time in accordance with the terms thereof and hereof.

“Settlement” has the meaning specified in Section 14.15(a)(i).

“Settlement Date” has the meaning specified in Section 14.15(a)(i).

“Software” means “software”, as such term is defined in the UCC, other than software embedded in any category of Goods, including all computer programs and all supporting information provided in connection with a transaction related to any program.

“Solvent” means, when used with respect to any Person, that at the time of determination:

(a)           the assets of such Person, at a fair valuation, are in excess of the total amount of its debts (including contingent liabilities);

(b)           the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured;

(c)           it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and

(d)           it has capital sufficient to carry on its business as conducted and as proposed to be conducted.

For purposes of determining whether a Person is Solvent, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Stated Revolving Termination Date” means August 21, 2011, as such date may be extended pursuant to Section 4.1(a) or Article 13.

“Stated Term Loan Termination Date” means December 15, 2012, as such date may be extended pursuant to Article 13.

“Subsidiary” means, with respect to any Person (the “subject Person”), any corporation, association, partnership, limited liability company, joint venture, or other business entity of which more than 50.0% of the voting Capital Stock is owned or controlled directly or indirectly by the subject Person, or one or more of the Subsidiaries of the subject Person, or a combination thereof.  Unless the context otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of an Obligated Party.

“Supermajority Revolving Lenders” means, at any time, Revolving Lenders whose Pro Rata Shares (as determined in such definition solely in the context of the revolving credit facility provided under this Agreement) aggregate more than 85.0%; provided, that the Revolving Credit Commitment, Revolving Loans and other Obligations of any Defaulting Lender and such

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Defaulting Lender’s right to vote on any issue shall be excluded for the purpose of making any determination of Supermajority Revolving Lenders.

“Supplemental Blocked Availability Amount” means $30,000,000 or such lesser amount (but in no event less than $20,000,000) as the Supermajority Revolving Lenders may agree to in writing in their sole discretion.

“Supporting Cash Deposit” has the meaning specified in Section 2.4(g).

“Supporting Letter of Credit” has the meaning specified in Section 2.4(g).

“Supporting Obligations” means “supporting obligations”, as such term is defined in the UCC, including letters of credit and guaranties issued in support of Accounts, Chattel Paper, Documents, General Intangibles, Instruments, or Investment Property.

“Syndication Agent” means Wachovia, solely in its capacity as a syndication agent.

“Taxes” means any and all present or future taxes, levies, imposts, deductions, charges, or withholdings, and all liabilities with respect thereto, excluding, in the case of the Administrative Agent, each Lender and the Collateral Agent, such taxes (including income taxes or franchise taxes) as are imposed on or measured by the Administrative Agent’s, such Lender’s or the Collateral Agent’s net income (or on gross income where such tax is in lieu of a tax on net income and is not a withholding tax) in any jurisdiction (whether federal, state, or local and including any political subdivision thereof) under the laws of which the Administrative Agent, such Lender or the Collateral Agent, as the case may be, is organized or maintains a lending office or where the contacts with such jurisdiction (other than the Loan Documents or events contemplated by the Loan Documents) would otherwise subject the Administrative Agent, such Lender or the Collateral Agent, as the case may be, to taxes on such net income.

“Term Closing Fee” has the meaning specified in Section 3.7.

“Term Lender” means each Lender that has a Term Loan Commitment or is the holder of a Term Loan.  References herein or in any other Loan Document to “Term Lender” shall not include a Lender in its capacity, if any, as a Revolving Lender.

“Term Loan” and “Term Loans” have the meanings specified in Section 2.3(a).

“Term Loan Commitment” means, with respect to a Lender, the principal amount set forth beside such Lender’s name under the heading “Term Loan Commitment” on Schedule 1.1(A), and “Term Loan Commitments” means the aggregate amount of the Term Loan Commitments of all of the Lenders.  Effective immediately after the making of the Term Loans on the Closing Date, the Term Loan Commitment of each Lender shall be permanently reduced to zero.

“Term Loan Note” and “Term Loan Notes” have the meanings specified in Section 2.3(c).

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“Term Loan Obligations” means all principal of and interest on the Term Loans, the Early Term Loan Prepayment Fee and any and all other Obligations owing to any Term Lender.

“Term Loan Termination Date” means the earliest to occur of (a) the Stated Term Loan Termination Date, (b) the date the Credit Facility is terminated (i) by the Borrowers pursuant to Section 4.2 or (ii) pursuant to Section 11.2, and (c) the date this Agreement is otherwise terminated for any reason whatsoever pursuant to the terms of this Agreement.

“Time Utilization” means the ratio, calculated on a monthly basis for Ahern and its Subsidiaries, of (i) the average number of units of aerial lift rental equipment on rent during such month divided by (ii) the average number of units of aerial lift rental equipment available for rent during such month; provided, however, that such calculation of such equipment which is available for rent shall exclude (1) for purposes of Section 8.21(a), any unit of rental equipment that (a) is in transit to, from or between rental locations and (b) is not available for rental because it is being maintained or serviced, such maintenance or service period not to extend longer than ninety (90) days, and (2) for purposes of Section 6.2(k)(ix), any unit of rental equipment while such unit is reflected in Ahern’s ledger accounts under “Equipment Down Long Term”.

“Title Company” means one of more title insurance companies reasonably satisfactory to the Agents.

“Transaction Documents” means, collectively, the Loan Documents, the Second Lien Debt Documents, the Refinancing Second Lien Debt Documents (if any) and all other documents, instruments and agreements executed and/or delivered in connection therewith.

“Transportation Equipment” means each of the following types of licensed vehicles and trailers owned by any Obligated Party so long as they are not included in the rental fleet available for rental to third parties:  (a) vehicles and trailers used for delivery, (b) vehicles used for service and (c) vehicles used by employees for transportation.

“UCC” means the Uniform Commercial Code (or any successor statute), as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests; provided that to the extent that the UCC is used to define any term herein or in any other documents and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term as contained in Article or Division 9 shall govern.

“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“Unused Availability” means, at any time, the Borrowing Base minus the Aggregate Revolver Outstandings.

“Unused Letter of Credit Subfacility” means an amount equal to the Letter of Credit Subfacility, minus the sum of (a) the aggregate undrawn amount of all outstanding Letters of

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Credit, plus, without duplication, (b) the aggregate unpaid reimbursement obligations with respect to all Letters of Credit.

“Unused Line Fee” has the meaning specified in Section 3.4.

“U.S.” means the United States of America.

“Wachovia” has the meaning specified in the introductory paragraph of this Agreement.

“Waived” means waived in accordance with Article 13.

“Wholly-Owned Subsidiary” means, with respect to any Person (the “subject Person”), a Subsidiary all of the issued and outstanding Capital Stock (other than directors’ qualifying shares) of which are owned by the subject Person or one or more of the subject Person’s other Wholly-Owned Subsidiaries or by the subject Person and one or more of the subject Person’s Wholly-Owned Subsidiaries.

Section 1.2            Accounting Terms.  Any accounting term used in this Agreement shall have, unless otherwise specifically provided herein, the meaning customarily given to such term in accordance with GAAP, and all financial computations in this Agreement shall be computed, unless otherwise specifically provided herein, in accordance with GAAP as consistently applied and using the same method for inventory valuation as used in the preparation of the Financial Statements.  If at any time any change in GAAP would affect the computation of any financial covenant or requirement set forth in any Loan Document, and any of the Obligated Parties, either of the Agents or the Majority Revolving Lenders (or after the Revolving Facility Payment In Full, the Majority Term Lenders) shall request, the Agents, the Revolving Lenders (or after the Revolving Facility Payment In Full, the Term Lenders) and the Obligated Parties shall negotiate in good faith to amend such covenant or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Majority Revolving Lenders (or after the Revolving Facility Payment In Full, the Majority Term Lenders) and the Agents); provided that, until so amended, (a) such covenant or requirement shall continue to be determined in accordance with GAAP prior to such change and (b) the Obligated Parties shall provide to the Agents (with sufficient copies to the Administrative Agent for distribution to each Lender) Financial Statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

Section 1.3            Interpretive Provisions.

(a)           The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.  Terms used herein that are defined in the UCC and are not otherwise defined herein shall have the meanings specified therefor in the UCC.

(b)           The words “hereof,” “herein,” “hereunder,” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement.  Section, Schedule, and Exhibit references are to this Agreement unless otherwise specified.  The term “documents” includes any and all instruments, documents, agreements, certificates, indentures, notices, and other writings, however evidenced.  The term “including” is not

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limiting and means “including, without limitation.”  In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”  The word “or” is not exclusive.

(c)           Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, and other modifications thereto, but only to the extent such amendments, restatements, and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation.

(d)           The captions and headings of this Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation of this Agreement and the other Loan Documents.

(e)           This Agreement and the other Loan Documents may use several different limitations, tests, or measurements to regulate the same or similar matters.  All such limitations, tests, and measurements are cumulative and shall each be performed in accordance with their terms.

(f)            For purposes of Section 11.1, a breach of a financial covenant contained in Section 8.21 shall be deemed to have occurred as of any date of determination thereof by either of the Agents or as of the last day of any specified measuring period, regardless of when the Financial Statements reflecting such breach are delivered to either of the Agents.

(g)           Certain amendments have been made to the defined terms “GE Intercreditor Agreement”, “Incremental Commitment Agreements” and “Lender” to preserve certain rights of the Revolving Lenders under the First Amended and Restated Loan and Security Agreement as in effect immediately prior to the effectiveness of the amendment and restatement thereof pursuant to this Agreement.

Section 1.4             No Strict Construction.  This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, each Agent, each Lender, and the Obligated Parties and are the products of all parties.  Accordingly, this Agreement and the other Loan Documents shall not be construed against the Administrative Agent, the Collateral Agent, the Lenders, or the Obligated Parties merely because of their respective involvement in their preparation.

Section 1.5             No Novation.  It is the intent of the parties hereto that this Agreement does not constitute a novation of the rights, obligations and liabilities of the respective parties (including the Obligations) existing under the First Amended and Restated Loan and Security Agreement or evidence payment of all or any of such obligations and liabilities, and such rights, obligations and liabilities shall continue and remain outstanding under the terms and conditions of, and as amended and restated by, this Agreement, and that this Agreement amends and restates

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in its entirety the First Amended and Restated Loan and Security Agreement.  Without limiting the generality of the foregoing (i) all Revolving Loans outstanding under the First Amended and Restated Loan and Security Agreement shall on the Closing Date become Revolving Loans hereunder, (ii) all Letters of Credit under the First Amended and Restated Loan and Security Agreement shall on the Closing Date become Letters of Credit hereunder and (iii) all other Obligations outstanding under the First Amended and Restated Loan and Security Agreement shall on the Closing Date be Obligations under this Agreement.  Each of the Borrowers and the other Obligated Parties hereby ratifies and confirms its grant of security interests and Liens in the Collateral (including, without limitation, any and all Collateral granted under the Original Loan and Security Agreement, the First Amended and Restated Loan and Security Agreement and the other Loan Documents) in which it has rights and confirms and agrees that such Collateral secures any and all of the Obligations, including, without limitation, the Revolving Loans.

The Borrowers acknowledge and agree that as of the close of business on January 7, 2010, the Aggregate Revolver Outstandings under and as defined in the First Amended and Restated Loan and Security Agreement (excluding the aggregate undrawn amount of all outstanding Letters of Credit under the First Amended and Restated Loan and Security Agreement) is $317,482,878.43.  As of the date hereof, none of the Obligated Parties or any of their respective Affiliates has offset rights, counterclaims or defenses of any kind against any of their obligations, indebtedness or liabilities under the First Amended and Restated Loan and Security Agreement.  As of the date hereof immediately prior to the amendment and restatement of the First Amended and Restated Loan and Security Agreement contemplated herein, there exists no Default or Event of Default under and as defined in the First Amended and Restated Loan and Security Agreement.  The Obligated Parties hereby irrevocably and unconditionally release the Agents and the other Credit Providers from any and all actions, causes of action, damages, judgments, executions and claims arising on or prior to the Closing Date under or with respect to the First Amended and Restated Loan and Security Agreement, any of the other Loan Documents (as defined in the First Amended and Restated Loan and Security Agreement) or any of the transactions contemplated thereby.

ARTICLE 2

LOANS AND LETTERS OF CREDIT

Section 2.1            Credit Facility.  Subject to the terms and conditions of this Agreement, the Lenders agree to make available a credit facility for use by any one or more of the Borrowers from time to time during the term of this Agreement (the “Credit Facility”).  The Credit Facility shall be composed of a revolving credit facility consisting of Revolving Loans and Letters of Credit as described in Section 2.2 and Section 2.4 and a term loan facility consisting of Term Loans as described in Section 2.3.

Section 2.2            Revolving Loans.

(a)           Amounts.  Subject to the terms and conditions of this Agreement, each Revolving Lender severally, but not jointly, agrees, upon a Borrower’s request from time to time on any Business Day during the period from the Original Closing Date to the Revolving Termination Date, to make revolving loans (the “Revolving Loans”) to the

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Borrowers in amounts not to exceed such Revolving Lender’s Pro Rata Share of the Revolving Credit Commitments.  The Lenders, however, in their unanimous discretion, may elect to make Revolving Loans that would cause the Aggregate Revolver Outstandings to exceed the Borrowing Base on one or more occasions, but if they do so, neither the Agents nor the Lenders shall be deemed thereby to have changed the limits of the Borrowing Base or to be obligated to exceed such limits on any other occasion.  If any requested Revolving Loan exceeds the Unused Availability then the Revolving Lenders may refuse to make or may otherwise restrict the making of such Revolving Loan, subject to the authority of the Administrative Agent, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.2(j).

(b)           [Intentionally Omitted.]

(c)           Procedure for Borrowing.

(i)            Each Borrowing of Revolving Loans shall be made upon a Borrower’s irrevocable written notice delivered to the Administrative Agent, in the form of a notice of borrowing in the form of Exhibit D or such other form as may be acceptable to the Agents in their sole discretion (any such notice being referred to herein as a “Notice of Borrowing”), which must be received by the Administrative Agent prior to 1:00 p.m. (New York time) (y) three Business Days prior to the requested Funding Date, in the case of LIBOR Rate Revolving Loans or (z) on the requested Funding Date, in the case of Base Rate Revolving Loans, specifying:

(A)                              the amount of the Borrowing, which in the case of LIBOR Rate Revolving Loans shall be in an amount that is not less than One Million Dollars ($1,000,000) or an integral multiple of One Million Dollars ($1,000,000) in excess thereof;

(B)                                the requested Funding Date, which must be a Business Day;

(C)                                whether the Revolving Loans requested are to be Base Rate Revolving Loans or LIBOR Rate Revolving Loans; provided that if such Borrower fails to specify whether any Revolving Loans are to be Base Rate Revolving Loans or LIBOR Rate Revolving Loans, such request shall be deemed a request for Base Rate Revolving Loans;

(D)                               if the requested Revolving Loans are to be LIBOR Rate Revolving Loans, the duration of the Interest Period; provided that if such Borrower fails to select the duration of the Interest Period with respect to any requested LIBOR Rate Revolving Loans, such Borrower shall be deemed to have requested such Revolving Loans be made as LIBOR Rate Revolving Loans with an Interest Period of one month in duration; and

(E)                                 whether the proceeds of such Borrowing are to be deposited to the Funding Account or sent by wire transfer to a third party,

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in which case such Borrower shall provide the Administrative Agent with written wire transfer instructions satisfactory to the Administrative Agent;

provided that with respect to the Borrowing to be made on the Original Closing Date, such Borrowing will consist of Base Rate Revolving Loans only.

(ii)           With respect to any request for Base Rate Revolving Loans, in lieu of delivering a Notice of Borrowing, a Borrower may give the Administrative Agent telephonic notice of such request for advances to the Funding Account not later than the required time specified in clause (i) preceding.  The Administrative Agent at all times shall be entitled to rely on such telephonic notice in making any such Revolving Loans, regardless of whether any written confirmation is received by it.

(iii)          Whenever checks or other items are presented to BofA for payment against the Funding Account or any other Deposit Account maintained by a Borrower with BofA in an amount greater than the then available balance in the Funding Account or such other Deposit Account, such presentation may, at the election of the Administrative Agent in its sole discretion, be deemed to be a request by the Borrowers for a Base Rate Revolving Loan on the date of such presentation in an amount sufficient to cover all such items presented in the Funding Account or such other Deposit Account on such date.

(iv)          At the election of either of the Agents or the Majority Revolving Lenders, the Borrowers shall have no right to request LIBOR Rate Revolving Loans during the existence of any Default or Event of Default.

(d)           Disbursement.  On or prior to the Closing Date, the Borrowers shall have delivered to the Administrative Agent a notice setting forth the deposit account maintained with BofA (the “Funding Account”) to which the Administrative Agent is authorized by the Borrowers to transfer the proceeds of the Revolving Loans requested hereunder.  Each of the Borrowers agrees that the Funding Account may be established in the name of any other Borrower, and hereby agrees that the Funding Account has been established for the benefit of all of the Borrowers for receipt of the proceeds of Revolving Loans hereunder.  Each Borrower hereby appoints each other Borrower as its agent with respect to receipt of the proceeds of Revolving Loans in the Funding Account as contemplated herein.  The Borrowers may designate a replacement Funding Account from time to time by written notice to the Administrative Agent.  Any designation by the Borrowers of the Funding Account must be reasonably acceptable to the Administrative Agent.

(e)           Reliance Upon Authority; No Liability.  The Administrative Agent is entitled to rely conclusively on any individual’s request for Revolving Loans on behalf of a Borrower, as long as the proceeds thereof are to be transferred to the Funding Account or according to such other instructions as may be provided to the Administrative Agent pursuant to Section 2.2(c)(i)(E).  The Administrative Agent has no duty to verify the identity of any individual representing himself or herself as a person authorized by any

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Borrower to make such requests on its behalf.  The Administrative Agent shall not incur any liability to the Borrowers as a result of acting upon any notice referred to in Section 2.2(c) or Section 2.2(d) which the Administrative Agent reasonably believes to have been given by an officer or other person duly authorized by a Borrower to request Revolving Loans on its behalf or for otherwise acting under this Section 2.2.  The crediting of Revolving Loans to the Funding Account or wire transfer to such Person as a Borrower shall direct shall conclusively establish the obligation of the Borrowers to repay such Revolving Loans as provided herein.

(f)            Notice Irrevocable.  Any Notice of Borrowing (or telephonic notice in lieu thereof) made pursuant to Section 2.2(c) shall be irrevocable and the Borrowers shall be bound to borrow the funds requested therein in accordance therewith.

(g)           Administrative Agent’s Election.  Promptly after receipt of a Notice of Borrowing (or telephonic notice in lieu thereof), the Administrative Agent shall elect in its sole discretion to have the terms of Section 2.2(h), Section 2.2(i), or Section 2.2(j) apply to such requested Borrowing.  If BofA declines in its sole discretion to make a Non-Ratable Loan pursuant to Section 2.2(i), the terms of Section 2.2(h) shall apply to the requested Borrowing unless such requested Borrowing is to be made by the Administrative Agent as an Agent Advance pursuant to Section 2.2(j).

(h)           Making of Revolving Loans.  If the Administrative Agent elects to have the terms of this Section 2.2(h) apply to a requested Borrowing, then promptly after receipt of a Notice of Borrowing or telephonic notice in lieu thereof, the Administrative Agent shall notify the Revolving Lenders by telecopy, telephone, or e-mail of the requested Borrowing.  Each Revolving Lender shall transfer its Pro Rata Share of the requested Borrowing to the Administrative Agent, in immediately available funds, to the account from time to time designated by the Administrative Agent not later than 3:30 p.m. (New York time) on the applicable Funding Date.  After receipt by the Administrative Agent of all proceeds of such requested Borrowing, it shall make the proceeds of such requested Borrowing available to the applicable Borrower on the applicable Funding Date by transferring same day funds to the Funding Account or as otherwise requested by such Borrower in accordance with Section 2.2(c)(i)(E).  Unless the Revolving Lenders in their unanimous discretion consent otherwise, no Borrowing under this clause (h) shall be permitted if the requested Borrowing exceeds the Unused Availability on the applicable Funding Date prior to giving effect to such requested Borrowing.

(i)            Making of Non-Ratable Loans.  If the Administrative Agent elects, with the consent of BofA, in its capacity as a Revolving Lender, to have the terms of this Section 2.2(i) apply to a requested Borrowing, BofA shall make a Revolving Loan in the amount of such requested Borrowing available to the Borrowers on the applicable Funding Date by transferring same day funds to the Funding Account or as otherwise requested by the applicable Borrower in accordance with Section 2.2(c)(i)(E).  Each Revolving Loan made solely by BofA pursuant to this Section 2.2(i) is referred to hereinafter as a “Non-Ratable Loan,” and such Revolving Loans are collectively referred to as the “Non-Ratable Loans.”  Each Non-Ratable Loan shall be subject to all the terms

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and conditions applicable to other Revolving Loans except that all payments of principal and interest thereon shall be payable to BofA solely for its own account.  The aggregate amount of Non-Ratable Loans outstanding at any time shall not exceed $10,000,000.  The Administrative Agent shall not request BofA to make any Non-Ratable Loan if (A) the Administrative Agent has received written notice from any Revolving Lender that one or more of the applicable conditions precedent set forth in Article 9 will not be satisfied on the requested Funding Date for the applicable Borrowing or (B) the Administrative Agent has actual knowledge (based solely on the Borrowing Base Certificate most recently delivered to it or written notice from any Revolving Lender thereof) that the requested Borrowing exceeds the Unused Availability on the applicable Funding Date prior to giving effect to such requested Borrowing.  The Non-Ratable Loans shall be secured by the Agent’s Liens in and to the Collateral and shall constitute Base Rate Revolving Loans and Obligations hereunder.

(j)            Agent Advances.  Subject to the limitations set forth below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in its sole discretion in such capacity, after the occurrence of a Default or an Event of Default or at any time that any of the other conditions precedent set forth in Article 9 have not been satisfied, to make Base Rate Revolving Loans to the Borrowers or any Borrower on behalf of the Revolving Lenders in an aggregate amount outstanding at any time not to exceed $10,000,000 which the Administrative Agent, in its reasonable business judgment, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations (including through the Borrowers using any proceeds of such Revolving Loans to pay payroll and associated tax obligations), or (iii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including costs, fees, and expenses as described in Section 15.7 (any of such advances are herein referred to as “Agent Advances”); provided that after giving effect to the making of any Agent Advance, the Aggregate Revolver Outstandings shall not exceed the Maximum Revolver Amount.  The Majority Revolving Lenders may at any time revoke the authorization of the Administrative Agent to make Agent Advances.  Any such revocation must be in writing and shall become effective prospectively upon the receipt by the Administrative Agent thereof.  The Agent Advances shall be secured by the Agent’s Liens in and to the Collateral and shall constitute Base Rate Revolving Loans and Obligations hereunder.

Section 2.3            Term Loans.

(a)           Amounts of Term Loans.  Each Term Lender severally agrees to make a term loan (any such term loan being referred to as a “Term Loan” and such term loans being referred to collectively as the “Term Loans”) to the Borrowers on the Closing Date, upon the satisfaction of the conditions precedent set forth in Article 9, in an amount equal to such Term Lender’s Term Loan Commitment.  A portion of the Term Loan of each Term Lender to be made on the Closing Date shall be made as new funds to the Borrowers in the amount set forth beside such Term Lender’s name under the heading “New Term Loan Funding Amount” on Schedule 1.1(A) (such amount for any Term Lender, its “New Term Loan Funding Amount”), with the remaining portion of the Term

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Loan of such Term Lender to be made on the Closing Date (such portion for any Term Lender, its “Exchanged Term Loan Amount”) to be deemed made as an exchange for cancellation of certain of the Second Lien Debt held by such Term Lender immediately prior to such Borrowing (the amount of such Second Lien Debt of any Term Lender to be so cancelled to be equal to such Term Lender’s Exchanged Term Loan Amount multiplied by 4/3).

(b)           Making of Term Loans.  Each Term Lender shall make the amount of such Term Lender’s New Term Loan Funding Amount available to the Administrative Agent in same day funds, to the Administrative Agent’s designated account, not later than 12:00 noon (New York time) on the Closing Date.  After the Administrative Agent’s receipt of the New Term Loan Funding Amounts of all the Term Lenders, upon satisfaction of the conditions precedent set forth in Article 9, the Administrative Agent shall make such amounts available to the Borrowers on such Funding Date by transferring same day funds equal to the aggregate New Term Loan Funding Amounts received by the Administrative Agent to a Clearing Account designated in writing by the Borrowers or as the Borrowers shall otherwise instruct in writing.

(c)           Term Loan Notes.  The Borrowers shall execute and deliver to the Administrative Agent on behalf of each Term Lender, on the Closing Date, a promissory note, substantially in the form of Exhibit A attached hereto and made a part hereof (such promissory notes, together with any new promissory notes issued pursuant to Section 13.2 upon the assignment of any portion of any Term Lender’s Term Loan, being hereinafter referred to collectively as the “Term Loan Notes” and each of such promissory notes being hereinafter referred to individually as a “Term Loan Note”). The Term Loan Notes shall evidence each Term Lender’s Term Loan, in an original principal amount equal to that Term Lender’s Term Loan Commitment and with other appropriate insertions. Each Term Loan Note shall be dated the Closing Date and be stated to mature on the Stated Term Loan Termination Date.  The Borrowers shall repay the outstanding principal balance of the Term Loans, plus all accrued but unpaid interest thereon, on the Term Loan Termination Date.  Payments or prepayments of the Term Loans may not be reborrowed.  The liability of the Borrowers with respect to the Term Loans shall be joint and several.

Section 2.4            Letters of Credit.

(a)           Agreement to Cause to Issue.  Subject to the terms and conditions of this Agreement, the Agents agree to cause the Letter of Credit Issuer to issue for the account of any of the Borrowers (whether one or more) one or more commercial/documentary and standby letters of credit (each a “Letter of Credit” and collectively, the “Letters of Credit”) from time to time prior to the Revolving Termination Date.

(b)           Amounts; Outside Expiration Date.  The Agents shall not cause to be issued any Letter of Credit at any time if:  (i) the maximum face amount of the requested Letter of Credit is greater than the Unused Letter of Credit Subfacility at such time; (ii) the maximum undrawn amount of the requested Letter of Credit and all commissions, fees, and charges due from such Borrower in connection with the opening thereof

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exceeds the Unused Availability prior to giving effect to issuance of such requested Letter of Credit; (iii) such Letter of Credit has an expiration date later than 30 days prior to the Stated Revolving Termination Date; or (iv) such Letter of Credit has an expiration date later than twelve calendar months from the date of issuance for standby letters of credit and six calendar months from the date of issuance for commercial/documentary letters of credit, provided that any Letter of Credit issued hereunder may, subject to this clause (iv) and the other provisions of this Section 2.4, include an “evergreen” or automatic renewal provision of the type referenced in Section 2.4(d)(iii) without contravening the requirement contained in this Section 2.4(b).

(c)           Other Conditions.  In addition to being subject to the satisfaction of the applicable conditions precedent contained in Article 9, the obligation of the Agents to cause any Letter of Credit to be issued is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agents and the Letter of Credit Issuer:

(i)            the Borrowers shall have delivered to the Letter of Credit Issuer, at such times and in such manner as the Letter of Credit Issuer may prescribe, an application in form and substance satisfactory to the Letter of Credit Issuer and reasonably satisfactory to each Agent for the issuance of the Letter of Credit and such other documents as may be required pursuant to the terms thereof, and the form, terms, and purpose of the proposed Letter of Credit shall be reasonably satisfactory to each Agent and the Letter of Credit Issuer (provided that in the event any term of such application or any other document is inconsistent with the terms of this Agreement and the Letter of Credit Issuer is either the same Person as an Agent or any Revolving Lender, then the terms of this Agreement shall be controlling); and

(ii)           as of the date of issuance, no order of any court, arbitrator, or Governmental Authority shall purport by its terms to enjoin or restrain money center banks generally from issuing letters of credit of the type and in the amount of the proposed Letter of Credit, and no law, rule, or regulation applicable to money center banks generally and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over money center banks generally shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letter of Credit.

(d)           Issuance of Letters of Credit.

(i)            Request for Issuance.  Any Borrower that wishes to cause the issuance of a Letter of Credit shall notify each Agent and the Letter of Credit Issuer of such request for issuance at least three Business Days prior to the proposed issuance date.  Such notice shall be irrevocable and must specify the original face amount of the Letter of Credit requested, the Business Day of issuance of such requested Letter of Credit, whether such Letter of Credit may be drawn in a single or in partial draws, the Business Day on which the requested

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Letter of Credit is to expire, the purpose for which such Letter of Credit is to be issued, and the beneficiary of the requested Letter of Credit.  The applicable Borrower shall attach to such notice the proposed form of the Letter of Credit.

(ii)           Responsibilities of the Agents; Issuance.  As of the Business Day immediately preceding the requested issuance date of the Letter of Credit set forth in the notice from a Borrower pursuant to Section 2.3(d)(i), the Agents shall determine (A) the amount of the Unused Letter of Credit Subfacility and (B) the Unused Availability (based solely on the Borrowing Base Certificate most recently delivered to the Agents).  If the face amount of the requested Letter of Credit is not greater than the Unused Letter of Credit Subfacility (prior to giving effect to issuance of such requested Letter of Credit) and the amount of such requested Letter of Credit and all commissions, fees, and charges due from the Borrower in connection with the opening thereof do not exceed the Unused Availability (prior to giving effect to issuance of such requested Letter of Credit and based solely on the Borrowing Base Certificate most recently delivered to the Agents), the Agents shall cause the Letter of Credit Issuer to issue the requested Letter of Credit on the requested issuance date if the other conditions hereof and of the application for such requested Letter of Credit are met.

(iii)          Extensions and Amendments.  The Agents shall not be obligated to cause the Letter of Credit Issuer to extend, renew, or amend any Letter of Credit issued pursuant hereto unless the requirements of this Section 2.4 are met as though a new Letter of Credit were being requested and issued.  With respect to any Letter of Credit that contains any “evergreen” or automatic renewal provision, each Revolving Lender shall be deemed to have consented to any such extension or renewal unless such Revolving Lender shall have provided to each Agent written notice that such Revolving Lender declines to consent to any such extension or renewal at least 30 days prior to the date on which the Letter of Credit Issuer is entitled to decline to extend or renew such Letter of Credit; provided that, notwithstanding the foregoing, if all of the requirements of this Section 2.4 are met and no Default or Event of Default exists, no Revolving Lender may decline to consent to any such extension or renewal.

(e)           Payments Pursuant to Letters of Credit.  The Borrowers agree to reimburse the Letter of Credit Issuer immediately for any draw under any Letter of Credit and to pay the Letter of Credit Issuer the amount of all other charges and fees payable to the Letter of Credit Issuer under or in connection with any Letter of Credit immediately when due, irrespective of any claim, setoff, defense, or other right that any Borrower may have at any time against the Letter of Credit Issuer or any other Person.  Each drawing under any Letter of Credit shall constitute a request by the Borrower for whose account such Letter of Credit was issued for a Borrowing of a Base Rate Revolving Loan in the amount of such drawing.  The Funding Date with respect to such Borrowing shall be the date of such drawing.

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(f)            Indemnification; Exoneration; Power of Attorney.

(i)            Indemnification.  In addition to amounts payable as elsewhere provided in this Section 2.4, each Borrower agrees to protect, indemnify, pay, and save the Revolving Lenders, the Agents, and the Letter of Credit Issuer harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges, and expenses (including reasonable attorneys’ fees) that any Revolving Lender, either Agent, or the Letter of Credit Issuer may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit.  The foregoing indemnity shall not apply to the Letter of Credit Issuer to the extent of any wrongful honor or dishonor of a drawing against any Letter of Credit or to the extent of any gross negligence or willful misconduct of the Letter of Credit Issuer as determined in a final, nonappealable judgment by a court of competent jurisdiction.  The Borrowers’ obligations under this Section 2.4(f) shall survive payment of all other Obligations.

(ii)           Assumption of Risk by the Borrowers.  As among the Borrowers, the Revolving Lenders, the Agents, and the Letter of Credit Issuer, the Borrowers assume all risks of the acts and omissions of, or misuse of any of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, the Revolving Lenders, the Agents, and the Letter of Credit Issuer shall not be responsible for:  (A) the form, validity, sufficiency, accuracy, genuineness, or legal effect of any document submitted by any Person in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of Credit, even if it should prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent, or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) the failure of the beneficiary of any Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; (D) errors, omissions, interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, or otherwise, whether or not they be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (G) the misapplication by the beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; (H) any consequences arising from causes beyond the control of any of the Revolving Lenders, either of the Agents, or the Letter of Credit Issuer, including any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority; or (I) the Letter of Credit Issuer’s honor of a draw for which the draw or any certificate fails to comply in any respect with the terms of the Letter of Credit.  None of the foregoing shall affect, impair, or prevent the vesting of any rights or powers of either Agent, any Revolving Lender, or, subject to Section 2.4(f)(iv), the Letter of Credit Issuer under this Section 2.4(f).

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(iii)          Exoneration.  Without limiting the foregoing, no action or omission whatsoever by either Agent, any Revolving Lender, or the Letter of Credit Issuer under or in connection with any of the Letters of Credit or any related matters shall result in any liability of either Agent, any Revolving Lender, or the Letter of Credit Issuer to any Borrower, or relieve any Borrower of any of its obligations hereunder to any such Person.

(iv)          Rights Against the Letter of Credit Issuer.  Nothing contained in this Section 2.4(f) is intended to limit any Borrower’s rights, if any, with respect to the Letter of Credit Issuer that arise as a result of the letter of credit application and related documents executed by and between such Borrower and the Letter of Credit Issuer.

(v)           Account Party.  Each Borrower hereby authorizes and directs the Letter of Credit Issuer to name any Borrower as the “Account Party” in any Letter of Credit and to deliver to the Agents all instruments, documents, and other writings and property received by the Letter of Credit Issuer pursuant to each such Letter of Credit, and to accept and rely upon either Agent’s instructions and agreements with respect to all matters arising in connection with each such Letter of Credit or the application therefor.

(g)           Supporting Letter of Credit; Cash Collateral.  If, notwithstanding the provisions of Section 2.4(b) and Section 12.1, any Letter of Credit is outstanding on the Revolving Termination Date, then on the Revolving Termination Date the Borrowers shall deposit with the Collateral Agent, for the benefit of the Agents, the Letter of Credit Issuer, and the Revolving Lenders, with respect to each such Letter of Credit then outstanding, either (i) a standby letter of credit (a “Supporting Letter of Credit”) in form and substance satisfactory to each Agent, issued by an issuer satisfactory to the Agents in their sole discretion in an amount equal to 105% of the maximum undrawn amount of such Letter of Credit, plus any fees and expenses associated with such Letter of Credit, under which Supporting Letter of Credit the Collateral Agent is entitled to draw amounts necessary to reimburse the Agents, the Letter of Credit Issuer, and the Revolving Lenders for payments to be made by either of the Agents, the Letter of Credit Issuer, and any of the Revolving Lenders under or with respect to such Letter of Credit and any fees and expenses associated with such Letter of Credit or (ii) cash (a “Supporting Cash Deposit”) in an amount equal to 105% of the maximum undrawn amount of such Letter of Credit, plus any fees and expenses associated with such Letter of Credit.  Such Supporting Letter of Credit or Supporting Cash Deposit shall be held by the Collateral Agent, for the benefit of the Agents, the Letter of Credit Issuer, and the Revolving Lenders, as security for, and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining outstanding and the fees and expenses associated with such Letters of Credit.

Section 2.5            Bank Products.  Any Obligated Party may obtain Bank Products from BofA or Wachovia or any of BofA’s or Wachovia’s Affiliates, or, subject to the definition of Bank Products, another Revolving Lender or any of such Revolving Lender’s Affiliates, although no Obligated Party is required to do so.  To the extent Bank Products are provided by

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an Affiliate of BofA, Wachovia or another Revolving Lender, the Obligated Parties agree to indemnify and hold the Agents and BofA, Wachovia or such other Revolving Lender, as applicable, harmless from any and all costs and obligations now or hereafter incurred by any of the Credit Providers which arise from any indemnity given by BofA, Wachovia or such other Revolving Lender, as applicable, to its Affiliates related to such Bank Products; provided, however, nothing contained herein is intended to limit any Obligated Party’s rights, with respect to BofA, Wachovia or such other Revolving Lender, as applicable, or its Affiliates, if any, that arise as a result of the execution of documents by and between such Obligated Party and BofA, Wachovia or such other Revolving Lender, as applicable, or its Affiliates that relate to Bank Products.  The agreement contained in this Section 2.5 shall survive termination of this Agreement.  Each Obligated Party acknowledges and agrees that the obtaining of Bank Products from BofA, Wachovia , any other Revolving Lender or any of their respective Affiliates (a) is in the sole and absolute discretion of BofA, Wachovia, such other Revolving Lender or such Affiliate, and (b) is subject to all rules and regulations of BofA, Wachovia, such other Revolving Lender or such Affiliate.

ARTICLE 3

INTEREST AND FEES

Section 3.1            Interest.

(a)           Interest Rates.  All outstanding Obligations (other than Term Loans and other Term Loan Obligations) shall bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on accrued interest thereon not paid when due) from the date made or incurred until paid in full in cash at a rate determined by reference to the Base Rate or the LIBOR Rate, as applicable, plus the Applicable Margin as set forth below, but not to exceed the Maximum Rate.  All Term Loans and other Term Loan Obligations shall bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on accrued interest thereon not paid when due) from the date made or incurred until paid in full in cash at the interest rate set forth in clause (iii) below.  If at any time Revolving Loans are outstanding with respect to which a Borrower has not delivered to the Administrative Agent a notice specifying the basis for determining the interest rate applicable thereto in accordance herewith, such Revolving Loans shall be Base Rate Revolving Loans and bear interest at a rate determined by reference to the Base Rate until notice to the contrary has been given to the Administrative Agent in accordance with this Agreement and such notice has become effective.  Except as otherwise provided herein, the outstanding Obligations shall bear interest as follows:

(i)            for all Base Rate Revolving Loans and other Obligations (other than LIBOR Rate Revolving Loans, Term Loans and other Term Loan Obligations) at a fluctuating per annum rate equal to the lesser of (A) the Base Rate, plus the Applicable Margin or (B) the Maximum Rate;

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(ii)           for all LIBOR Rate Revolving Loans at a per annum rate equal to the lesser of (A) the LIBOR Rate, plus the Applicable Margin or (B) the Maximum Rate; and

(iii)          for all Term Loans and other Term Loan Obligations at a per annum rate equal to the lesser of (A) 16% or (B) the Maximum Rate.

Each change in the Base Rate shall be reflected in the interest rate described in clause (i) preceding as of the effective date of such change.  Subject to Section 3.3, all interest charges on the Obligations shall be computed on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a 365-day year).

(b)           Interest Payments.  The Borrowers shall pay to the Administrative Agent, for the benefit of the applicable Lenders, accrued interest in arrears on each Interest Payment Date, as applicable.

(c)           Default Rate.  During the existence of any Default or Event of Default if either of the Agents or the Majority Revolving Lenders (in the case of Revolving Obligations) or the Majority Term Lenders (in the case of Term Loan Obligations) in their discretion so elect (in the case of the Majority Revolving Lenders or the Majority Term Lenders, upon written notice to the Agents), the applicable Obligations shall, subject to Section 3.3, bear interest at a rate per annum equal to the lesser of (i) the Default Rate applicable thereto or (ii) the Maximum Rate.

(d)           Interest Periods.  After giving effect to any Borrowing of any LIBOR Rate Revolving Loan, there may not be more than ten (10) different Interest Periods in effect hereunder.

Section 3.2            Continuation and Conversion Elections.

(a)           A Borrower may upon irrevocable written notice to the Administrative Agent in accordance with Section 3.2(b):

(i)            provided that Borrowing of LIBOR Rate Revolving Loans is permitted pursuant to Section 2.2, elect, as of any Business Day, in the case of Base Rate Revolving Loans to convert any such Base Rate Revolving Loans (or any part thereof in an amount not less than One Million Dollars ($1,000,000), or that is in an integral multiple of One Million Dollars ($1,000,000) in excess thereof) into LIBOR Rate Revolving Loans;

(ii)           provided that Borrowing of LIBOR Rate Revolving Loans is permitted pursuant to Section 2.2, elect, as of the last day of the applicable Interest Period, to continue any LIBOR Rate Revolving Loans having Interest Periods expiring on such day (or any part thereof) in an amount not less than One Million Dollars ($1,000,000), or that is in an integral multiple of One Million Dollars ($1,000,000) in excess thereof as LIBOR Rate Revolving Loans; or

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(iii)          elect, as of any Business Day subject to Section 5.4, in the case of LIBOR Rate Revolving Loans to convert any such LIBOR Rate Revolving Loans (or any part thereof not being continued pursuant to clause (ii) preceding) into Base Rate Revolving Loans;

provided that if at any time the aggregate amount of LIBOR Rate Revolving Loans in respect of any Borrowing is reduced, by payment, prepayment, or conversion of part thereof to be less than One Million Dollars ($1,000,000), such LIBOR Rate Revolving Loans shall automatically convert into Base Rate Revolving Loans; provided, further, that if the notice shall fail to specify the duration of the Interest Period of any LIBOR Rate Revolving Loan to result from any such continuation or conversion, such Interest Period shall be one month in duration.

(b)           For any continuation or conversion pursuant to clause (a) preceding, the Borrowers shall deliver a notice of continuation/conversion in the form of Exhibit E or such other form as may be acceptable to the Agents, in their sole discretion (any such notice being referred to herein as a “Notice of Continuation/ Conversion”) to the Administrative Agent not later than 1:00 p.m. (New York time) at least three Business Days in advance of the Continuation/Conversion Date specifying:

(i)             the proposed Continuation/Conversion Date;

(ii)           the aggregate amount of such Revolving Loans to be continued or converted and, if continuing LIBOR Rate Revolving Loans, the specific Revolving Loans (or portions thereof) to be continued or converted;

(iii)          the type of Revolving Loans resulting from the proposed continuation or conversion; and

(iv)          the duration of any requested Interest Period, provided, however, the Borrowers may not select an Interest Period that ends after the Stated Revolving Termination Date.

(c)           If upon the expiration of any Interest Period applicable to LIBOR Rate Revolving Loans, the Borrowers have failed to timely select a new Interest Period to be applicable to such LIBOR Rate Revolving Loans, the Borrowers shall be deemed to have elected to convert such LIBOR Rate Revolving Loans into Base Rate Revolving Loans effective as of the expiration date of such Interest Period.

(d)           On or before the deadline set forth in clause (b) preceding, in lieu of delivering a Notice of Continuation/Conversion, the Borrowers may give the Administrative Agent telephonic notice of any request for a continuation or conversion.  The Administrative Agent shall be entitled to rely on such telephonic notice in continuing or converting such Revolving Loans, regardless of whether any written confirmation is received.

(e)           The Administrative Agent will promptly notify each Revolving Lender of its receipt of a Notice of Continuation/Conversion.  All continuations and conversions

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shall be made ratably according to the respective outstanding principal amounts of the Revolving Loans held by each Revolving Lender with respect to which such notice was given.

(f)            After giving effect to any continuation or conversion of any LIBOR Rate Revolving Loan, there may not be more than ten (10) different Interest Periods in effect hereunder.

(g)           At the election of either of the Agents or the Majority Revolving Lenders, the Borrowers shall have no right to convert any Base Rate Revolving Loans into LIBOR Rate Revolving Loans or to continue any LIBOR Rate Revolving Loans as LIBOR Rate Revolving Loans during the existence of any Default or Event of Default.

Section 3.3             Maximum Interest Rate.  In no event shall the Interest Rate provided for in this Agreement applicable to any Obligation exceed the Maximum Rate.  If the Interest Rate applicable to any Obligation, absent the limitation set forth in this Section 3.3, would otherwise exceed the Maximum Rate, then such Interest Rate shall be the Maximum Rate, and, if in the future, such Interest Rate would otherwise be less than the Maximum Rate, then such Interest Rate shall remain at the Maximum Rate until such time as the amount of interest paid hereunder in respect of such Obligation equals the amount of interest which would have been paid in respect of such Obligation if the Interest Rate for such Obligation had not been limited to the Maximum Rate.  In the event that, upon payment in full of the applicable Obligation, the total amount of interest paid or accrued under the terms of this Agreement in respect of such Obligation is less than the total amount of interest which would, but for this Section 3.3, have been charged, paid, or accrued in respect of such Obligation if the Interest Rate for such Obligation otherwise set forth in this Agreement had at all times been in effect, then the Borrowers shall, to the extent permitted by applicable law, pay the Administrative Agent, for the account of the applicable Lenders, an amount equal to the excess of (a) the lesser of (i) the amount of interest which would have been charged, paid, or accrued in respect of such Obligation if the Maximum Rate had, at all times, been in effect or (ii) the amount of interest which would have been charged, paid, or accrued in respect of such Obligation had the Interest Rate for such Obligation otherwise set forth in this Agreement, at all times, been in effect over (b) the amount of interest actually charged, paid, or accrued under this Agreement in respect of such Obligation.  If a court of competent jurisdiction determines that either Agent and/or any Lender has charged, received, or demanded interest and other charges hereunder in respect of any Obligation in excess of the Maximum Rate, such excess shall be deemed charged, received, or demanded on account of, and shall automatically be applied to reduce, the applicable Obligation other than interest, in the inverse order of maturity, and if there is no applicable Obligation outstanding, the applicable Agent and/or such Lender shall refund to the Borrowers (as applicable) such excess.

Section 3.4             Unused Line Fee.  Subject to Section 3.3, until the Revolving Facility Payment In Full, the Borrowers agree to pay to the Administrative Agent, for the account of the Revolving Lenders in accordance with their respective Pro Rata Shares, on the first day of each calendar month and on the Revolving Termination Date, an unused line fee (the “Unused Line Fee”) computed at a rate per annum equal to the Applicable Unused Line Fee Percentage, multiplied by the amount by which (A) the average daily Maximum Revolver Amount exceeded

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(B) the sum of the average daily outstanding amount of the Revolving Loans other than Non-Ratable Loans and the average daily undrawn amount of all outstanding Letters of Credit during the immediately preceding calendar month or shorter period if calculated on the Revolving Termination Date.  Subject to Section 3.3, the Unused Line Fee shall be computed on the basis of a 360 day year for the actual number of days elapsed.  For purposes of calculating the Unused Line Fee pursuant to this Section 3.4, any payment received by the Administrative Agent (if received prior to 12:00 noon (New York time)) shall be deemed to be credited to the Borrowers’ Loan Account on the Business Day such payment is received by the Administrative Agent.

Section 3.5             Letter of Credit Fees and Expenses.

(a)           Subject to Section 3.3, the Borrowers agree to pay to the Administrative Agent for the account of the Revolving Lenders in accordance with their respective Pro Rata Shares a fee (the “Letter of Credit Fee”) equal to the Letter of Credit Fee Percentage, multiplied by the average undrawn amount of each Letter of Credit issued and outstanding hereunder.  The Letter of Credit Fee shall be (i) computed on the basis of a 360 day year for the actual number of days elapsed and (ii) payable monthly in arrears on the first day of each month following any month in which a Letter of Credit was issued and/or in which a Letter of Credit remained outstanding and on the Revolving Termination Date.

(b)           Subject to Section 3.3, the Borrowers agree to pay to the Letter of Credit Issuer, for its sole benefit, (i) all out-of-pocket costs, fees, and expenses incurred by the Letter of Credit Issuer in connection with the application for, processing, issuance, renewal, extension, or amendment of any Letter of Credit and (ii) a “fronting fee” in an amount equal to 0.125% of the face amount of such Letter of Credit on the date of issuance, renewal, or extension of each Letter of Credit.

Section 3.6             Other Fees.  Subject to Section 3.3, the Borrowers agree to pay the Agents when due all other fees and expenses as set forth in the Fee Letters.

Section 3.7             Term Closing Fee.  Subject to Section 3.3, the Borrowers agree to pay to the Administrative Agent for the account of each Term Lender on the Closing Date a closing fee in an amount equal to 1.632% of the New Term Loan Funding Amount of such Term Lender (the “Term Closing Fee”).

Section 3.8             Engagement Letter Fee.  Subject to Section 3.3, the Borrowers agree to pay to Banc of America Securities LLC on the Closing Date the arrangement fee described in the Fee Letter (as defined in the Engagement Letter).

ARTICLE 4

PRINCIPAL PAYMENTS AND PREPAYMENTS

Section 4.1             Repayment.

(a)           Revolving Loans.  The Borrowers shall repay the outstanding principal balance of the Revolving Loans, together with all other non-contingent Obligations (other

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than Term Loan Obligations), including all accrued and unpaid interest thereon, on the Revolving Termination Date (or with respect to any Bank Products, any applicable earlier date).  The Borrowers may prepay the Revolving Loans, in whole or in part, at any time and from time to time and, subject to the terms of this Agreement, reborrow prior to the Revolving Termination Date.  In addition, and without limiting the generality of the foregoing, the Borrowers shall immediately pay to the Administrative Agent, for the account of the Revolving Lenders, the amount, if any and without duplication, by which the Aggregate Revolver Outstandings exceed the Borrowing Base.  The Borrowers shall have the option, without the consent of the Term Lenders, to request that the Revolving Lenders extend the Stated Revolving Termination Date to a date no later than the Stated Term Loan Termination Date, subject to the approval of all of the Revolving Lenders in their sole discretion.  In the event that the Borrowers wish to obtain a revolving credit facility on terms that, in the reasonable judgment of the Majority Term Lenders, are no less adverse taken as a whole to the Term Lenders than those contained in this Agreement with revolving credit lenders that are commercial banks, commercial finance companies or other asset-based lenders that provide asset-based revolving credit loans in the ordinary course of business, the Term Lenders agree to amend this Agreement or enter into a new loan agreement to provide for such replacement revolving credit facility on such terms; provided that in no event shall the foregoing obligate the Term Lenders to consent to any amendment to this Agreement or enter into a new loan agreement in respect of such replacement revolving credit facility which in the reasonable judgment of the Majority Term Lenders would be adverse to the Term Lenders taken as a whole; provided further that the Borrowers shall pay all of the Term Lenders’ reasonable fees and expenses (including reasonable fees and expenses of counsel) incurred in connection with the negotiation of such replacement revolving credit facility.

(b)           Term Loans.  The Borrowers shall repay the outstanding principal balance of the Term Loans, together with all other non-contingent Obligations, including all accrued and unpaid interest thereon and the Early Term Loan Prepayment Fee, if any, on the Term Loan Termination Date.

(c)           Payments.  All payments to be made by the Borrowers with respect to the Loans shall be made without setoff, recoupment, or counterclaim.  Unless otherwise expressly provided herein, all payments by the Borrowers shall be made to the Administrative Agent, for the account of the applicable Lenders, to the account designated by the Administrative Agent and shall be made in Dollars and in immediately available funds, no later than 12:00 noon (New York time) on the date specified herein.  Any payment received by the Administrative Agent after such time shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue.

(d)           LIBOR Rate Revolving Loan Payment Dates.  Subject to the provisions set forth in the definition of Interest Period, whenever any payment is due on a day other than a Business Day, such payment shall be due on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.

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Section 4.2             Termination of Credit Facility; Prepayment or Termination of Term Loans.  The Borrowers may, at any time, terminate this Agreement upon at least ten Business Days’ prior written notice thereof to the Agents, upon (a) the payment in full of all outstanding Loans, together with accrued and unpaid interest thereon, and the cancellation and return of all outstanding Letters of Credit (or alternatively with respect to each such Letter of Credit, the furnishing to the Collateral Agent of either a Supporting Cash Deposit or a Supporting Letter of Credit as required by Section 2.4(g)), (b) the payment of the Early Term Loan Prepayment Fee provided below (if applicable), and (c) the payment in full of all reimbursable expenses and other Obligations (including any amount due under Section 5.4) together with accrued and unpaid interest thereon; provided that this Agreement may not be terminated as to the Term Loans prior to the first Anniversary Date.  The Maximum Revolver Amount shall not be reduced except in connection with termination of the Revolving Credit Commitments and payment in full of all Revolving Obligations as provided by this Section 4.2 or as otherwise provided in Section 4.3(f) or Section 11.2.  For the avoidance of doubt, the Maximum Revolver Amount shall be reduced to zero and the Revolving Credit Commitments shall be terminated upon the termination, in accordance with this Section 4.2, of the revolving credit facility provided hereunder (whether or not the Term Loans or any other Term Loan Obligations have been paid as provided in this Section 4.2).  Subject to Section 3.3, if this Agreement is terminated or all or any portion of the Term Loans are prepaid or repaid at any time prior to the date that is thirty months after the Closing Date, whether pursuant to Section 4.3 or pursuant to Section 11.2 or otherwise, the Borrowers shall pay to the Administrative Agent, for the account of the Term Lenders, a fee (the “Early Term Loan Prepayment Fee”) in an amount determined in accordance with the following table and allocated to each Term Lender pro rata based upon the amount of its Term Loans being so repaid, prepaid or terminated:

No Term Loans may be voluntarily prepaid prior to the Revolving Facility Payment In Full.

Section 4.3             Mandatory Prepayment of the Loans.  Without limiting Section 4.1, each of the Borrowers agrees to make a prepayment with respect to the outstanding Loans and other Obligations as follows:

(a)           On any Business Day, if the Aggregate Revolver Outstandings exceed the Borrowing Base, the Borrowers shall immediately pay to the Administrative Agent, for the account of the Revolving Lenders, the amount (if any) of such excess for application to the principal amount of the Revolving Loans and, if after such application there

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remains any portion of such excess, such remaining unapplied amount shall be delivered to and held by the Collateral Agent as cash collateral for the Obligations (contingent or otherwise) with respect to outstanding Letters of Credit.

(b)           All cash proceeds received by any Borrower from the Disposition or sale of Inventory or collection of Accounts in the ordinary course of business shall be applied to repayment of the applicable Obligations promptly (and in any event within one Business Day of receipt) as specified in Section 4.6(c).

(c)           The Borrowers shall pay to the Administrative Agent, for the account of the applicable Lenders, promptly (and in any event within one Business Day of receipt) all net cash proceeds received by an Obligated Party in connection with any Disposition, excluding proceeds received pursuant to clause (b) preceding, for application to the applicable Obligations as provided in Section 4.6(c).  As used in this Section 4.3(c), “net cash proceeds” means the proceeds of any applicable Disposition, minus (i) commissions and other reasonable and customary transaction costs, fees, and expenses properly attributable to such transaction and payable by such Obligated Party in connection therewith (in each case, paid to non-Affiliates), (ii) transfer taxes and (iii) amounts payable to holders of Liens (to the extent such Liens constitute Permitted Liens hereunder and such Liens are senior to the Agent’s Liens), if any, on the property subject to such Disposition to the extent the documentation governing such senior Liens required such payment to such holders upon such Disposition.

(d)           All cash payments or other cash proceeds received by any Obligated Party constituting proceeds of a Distribution, loan, or other advance (other than a Distribution, loan or advance by an Obligated Party to an Obligated Party) to such Obligated Party, excluding proceeds of Revolving Loans, Term Loans, the Second Lien Debt or the Refinancing Second Lien Debt, such proceeds which are proceeds of a loan or advance from one Borrower to another Obligated Party, and other than such proceeds which are proceeds of a loan or advance permitted under clause (c) through clause (j) of Section 8.12, shall be paid to the Administrative Agent promptly upon such receipt, for application to the applicable Obligations as specified in Section 4.6(c).

(e)           Upon any issuance of any Capital Stock of any Obligated Party, no later than two Business Days after such issuance, the Borrowers shall make a prepayment in an amount equal to the proceeds of such issuance, net of underwriting discounts, commissions, and other reasonable and customary transaction costs, fees, and expenses properly attributable to such transaction and payable by such Obligated Party in connection therewith (in each case paid to Persons who are not Affiliates of any Obligated Party) for application to the applicable Obligations in accordance with Section 4.6(c).

(f)            In any event, if any Obligated Party receives (i) net cash proceeds in connection with any Disposition, (ii) cash payments or other cash proceeds of a Distribution, loan, or other advance to such Obligated Party or (iii) proceeds of any issuance of Capital Stock, on or after the Closing Date, any such proceeds or payments shall be applied to the payment of the Revolving Loans (and after the payment in full of

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the Revolving Loans and so long as no Event of Default is then continuing, to the payment of the Term Loans) to the extent necessary to avoid any requirement under any Second Lien Debt Documents or Refinancing Second Lien Debt Documents to prepay or redeem (or to make any offer to prepay or redeem) any portion of the Second Lien Debt or Refinancing Second Lien Debt, together with a permanent reduction of the Revolving Credit Commitments and the Maximum Revolver Amount in the amount of any such application to the Revolving Loans (such reduction to result in each Revolving Lender’s Revolving Credit Commitment being permanently reduced by its Pro Rata Share of such reduction).  Any payment of the Term Loans made pursuant to this Section 4.3(f) and prior to the date that is thirty months after the Closing Date shall be accompanied by the Early Term Loan Prepayment Fee in accordance with Section 4.2.  For the avoidance of doubt, no Early Term Loan Prepayment Fee shall be payable in connection with any prepayments or payments on the Term Loans made at any time after thirty months after the Closing Date.

No provision contained in this Section 4.3 shall constitute a consent to an asset disposition, Distribution, loan, advance or equity issuance that is otherwise not permitted by the terms of this Agreement.

Section 4.4             LIBOR Rate Revolving Loan Prepayments.  In connection with any prepayment, if any LIBOR Rate Revolving Loans are prepaid prior to the expiration date of the Interest Period applicable thereto, the Borrowers shall pay to the Administrative Agent, for the benefit of the Revolving Lenders, the amounts described in Section 5.4, provided that the Borrowers shall not be required to pay the amounts described in Section 5.4 in connection with any Revolving Lender’s entering into an Assignment and Acceptance.

Section 4.5             Payments as Revolving Loans.  At the election of the Administrative Agent, all payments of principal, interest, reimbursement obligations in connection with Letters of Credit, fees, premiums, reimbursable expenses (including all reimbursement for expenses pursuant to Section 15.7), other sums payable under the Loan Documents, and any and all amounts equal to the excess of checks and other items presented to BofA for payment against the Funding Account or any other Deposit Account maintained by a Borrower with BofA in an amount greater than the then available balance in such Deposit Account may be paid with the proceeds of Revolving Loans made hereunder whether made following a request for such purpose by the Borrowers pursuant to Section 2.2 or pursuant to a deemed request as provided in this Section 4.5.  The Borrowers hereby irrevocably authorize the Administrative Agent to charge the Loan Account for the purpose of paying all amounts from time to time due under the Loan Documents (including as described in this Section 4.5) and agree that all such amounts charged shall constitute Revolving Loans (including Non-Ratable Loans and Agent Advances) and that all such Revolving Loans shall be deemed to have been requested pursuant to Section 2.2; provided that, except as set forth in the succeeding sentence, so long as no Event of Default exists, the Administrative Agent shall not charge the Loan Account for expenses until 10 days have elapsed since the Administrative Agent has sent an invoice therefor to Ahern.  In the event the Collateral Agent is required to make any payment to Wells Fargo Bank, N.A. (“WFB”) pursuant to the payoff letter delivered by WFB to Ahern and the Collateral Agent on the Original Closing Date with respect to that certain Credit and Security Agreement, dated as of July 25, 2003, the Administrative Agent shall immediately charge the Loan Account for the purpose of

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reimbursing the Collateral Agent for all such payments and all such amounts charged shall constitute Revolving Loans.

Section 4.6             Apportionment, Application, and Reversal of Payments.

(a)           Principal and interest payments shall be apportioned ratably among the applicable Lenders (according to the unpaid principal balance of the Loans to which such payments relate held by each applicable Lender) and payments of the fees shall, as applicable, be apportioned ratably among the applicable Lenders, except for fees payable solely to BofA, Wachovia, the Agents, either of them, Banc of America Securities LLC and the Letter of Credit Issuer and except as provided in Article 13.

(b)           Except as provided otherwise in this Agreement, all payments shall be remitted to the Administrative Agent or, if applicable, to the Collateral Agent, and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of any Obligated Party’s Accounts or any other Collateral received by the Administrative Agent or the Collateral Agent, shall be applied, ratably, subject to the other provisions of this Agreement, FIRST, to pay any fees, indemnities, or expense reimbursements then due to either of the Agents from any Obligated Party, SECOND, to pay any fees, indemnities, or expense reimbursements then due to any of the Credit Providers other than the Agents from any Obligated Party, THIRD, to pay interest then due in respect of the Loans, including Non-Ratable Loans and Agent Advances, FOURTH, to pay or prepay principal of the Non-Ratable Loans and the Agent Advances, FIFTH, to pay or prepay principal of the Revolving Loans (other than the Non-Ratable Loans and the Agent Advances) and unpaid reimbursement obligations in respect of Letters of Credit, SIXTH, during the existence of a Default or an Event of Default, to pay an amount to the Collateral Agent equal to 105% of the aggregate undrawn amount of all outstanding Letters of Credit and the aggregate amount of any unpaid reimbursement obligations in respect of Letters of Credit, to be held as cash collateral for such Obligations, and SEVENTH, to the payment of any other Obligation including any amounts relating to Bank Products due to BofA, Wachovia, any other Lender or any of their respective Affiliates by any of the Obligated Parties.  Subject to items “first” through “seventh” preceding, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations.

(c)           Payments received pursuant to Section 4.3(b), Section 4.3(c), Section 4.3(d) and Section 4.3(e) shall be applied, ratably, subject to the other provisions of this Agreement (including, without limitation, Section 4.3(f) and Section 4.6(e)), in the order of priority set forth for items “first” through “fifth” of clause (b) preceding at any time other than during the existence of a Default or an Event of Default, and during the existence of any Default or Event of Default, as specified in clause (b) preceding but with such payments to be applied first, to payment or cash collateralization, as applicable, of the Revolving Obligations in accordance with the allocation arrangements prescribed in such clause (b) until fully paid or cash collateralized, as applicable, and thereafter to payment of the Term Loan Obligations.

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(d)           Notwithstanding anything to the contrary contained in this Agreement, unless so directed by a Borrower, or unless an Event of Default is in existence, neither the Administrative Agent nor any Revolving Lender shall apply any payment which it receives to any LIBOR Rate Revolving Loan, except (i) on the expiration date of the Interest Period applicable to any such LIBOR Rate Revolving Loan or (ii) in the event, and only to the extent, that there are no outstanding Base Rate Revolving Loans and, in any such event, the Borrowers shall pay the LIBOR breakage losses in accordance with Section 5.4.

(e)           Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, (i) subject to clause (iii) of this Section 4.6(e), on the Stated Term Loan Termination Date, the Administrative Agent shall apply Collateral and proceeds of Collateral remitted to it (other than Collateral and proceeds of Collateral described in the last sentence of Section 10.1) to pay the outstanding Term Loan Obligations, (ii) the Administrative Agent shall allocate amounts received by it to Term Loan Obligations in accordance with and to the extent provided in Section 4.3(f), and (iii) with respect to all Collateral and proceeds of Collateral received by the Collateral Agent or the Administrative Agent from and after the acceleration of the Obligations under this Agreement or the commencement of any bankruptcy or similar proceeding by or against any Obligated Party, such Collateral and proceeds of Collateral shall be applied first, to pay or cash collateralize, as applicable, the Revolving Obligations in accordance with the allocation arrangements prescribed in Section 4.6(b) until fully paid or cash collateralized, as applicable, and thereafter to pay the Term Loan Obligations.

Section 4.7             Indemnity for Returned Payments.  If after receipt of any payment or of any proceeds of Collateral that is applied to the payment of all or any part of the Obligations, any Credit Provider is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Credit Provider and the Borrowers shall be liable to pay to the Administrative Agent, for the benefit of the applicable Credit Providers, and each Borrower hereby indemnifies the applicable Credit Providers and holds the applicable Credit Providers harmless for the amount of such payment or proceeds surrendered.  The provisions of this Section 4.7 shall be and remain effective notwithstanding any release of Collateral or guarantors, cancellation or return of Loan Documents, or other contrary action that may have been taken by any Credit Provider in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the Credit Providers’ rights under this Agreement and the other Loan Documents and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable.  The provisions of this Section 4.7 shall survive the termination of this Agreement.

Section 4.8             Administrative Agent’s and the Lenders’ Books and Records; Monthly Statements.  The Administrative Agent shall record the principal amount of the Loans, the undrawn amount of all outstanding Letters of Credit, and the aggregate amount of unpaid reimbursement obligations outstanding with respect to the Letters of Credit from time to time on

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its books.  In addition, each Lender may note the date and amount of each payment or prepayment of principal of such Lender’s Loans in its books and records.  Failure by the Administrative Agent or any Lender to make any such notation shall not affect the obligations of the Borrowers with respect to the Loans or the Letters of Credit.  The Borrowers agree that the Administrative Agent’s and each Lender’s books and records showing the Obligations and the transactions pursuant to this Agreement and the other Loan Documents shall be admissible in any action or proceeding arising therefrom, and shall constitute presumptive proof thereof, irrespective of whether any Obligation is also evidenced by a promissory note or other instrument.  The Administrative Agent will provide to the Borrowers and the Revolving Lenders (and, if requested in writing by any Term Lender, such Term Lender) a monthly statement of Loans, payments, and other transactions pursuant to this Agreement.  Such statement shall be deemed correct, accurate, and binding on the Borrowers and an account stated (except for reversals and reapplications of payments made as provided in Section 4.6 and corrections of errors discovered by either of the Agents), unless a Borrower notifies the Administrative Agent in writing to the contrary within 30 days after such statement is rendered.  In the event a timely written notice of objections is given by a Borrower, only the items to which exception is expressly made will be considered to be disputed by the Borrowers.  Each Term Lender agrees to provide the Administrative Agent with such information as to the Term Loans and other Term Loan Obligations owing to such Term Lender and as to such Term Lender (including, without limitation, wire transfer information) as the Administrative Agent may reasonably request in order for the Administrative Agent to properly and accurately perform its duties under this Section 4.8, Section 4.6 and the other relevant provisions of this Agreement.

ARTICLE 5

TAXES, YIELD PROTECTION AND ILLEGALITY

Section 5.1             Taxes.

(a)           Any and all payments by the Obligated Parties, or any of them, to either Agent or any Lender under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any Taxes.  In addition, subject to Section 14.10(c), the Obligated Parties shall pay all Other Taxes.

(b)           The Obligated Parties agree to indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 5.1) paid by the Administrative Agent, the Collateral Agent or any Lender and any liability (including penalties, interest, additions to tax, and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.  Payment under this indemnification shall be made within 30 days after the date the Administrative Agent, the Collateral Agent or any Lender makes written demand therefor.

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(c)                                  If an Obligated Party shall be required by law to deduct or withhold any Taxes or Other Taxes from or in respect of any sum payable hereunder to the Administrative Agent, the Collateral Agent or any Lender, then:

(i)                                     the sum payable shall be increased as necessary so that after making all required deductions and withholdings (including, without limitation, deductions and withholdings applicable to additional sums payable under this Section 5.1) the Administrative Agent, the Collateral Agent or such Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made;

(ii)                                  such Obligated Party shall make such deductions and withholdings;

(iii)                               such Obligated Party shall pay the full amount deducted or withheld to the relevant taxing authority or other authority in accordance with any applicable Requirement of Law; and

(iv)                              such Obligated Party shall also pay to the Administrative Agent, for the account of each Lender, or each Lender at the time interest is paid, all additional amounts that the respective Lender specifies as necessary to preserve the after-tax yield such Lender would have received if such Taxes or Other Taxes had not been imposed.

(d)                                 Within 30 days after the date of any payment by any Obligated Party of Taxes or Other Taxes, such Obligated Party shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof or other evidence of payment satisfactory to the Administrative Agent.

(e)                                  If the Obligated Parties are required to pay additional amounts to any Lender pursuant to Section 5.1(c), then such Lender shall use reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction of its lending office so as to eliminate any such additional payment by the Obligated Parties that may thereafter accrue, if such change in the judgment of such Lender is not otherwise disadvantageous to such Lender.

Section 5.2                                      Illegality.

(a)                                  If any Revolving Lender determines that, after the date of this Agreement, the introduction of any Requirement of Law, or any change in any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has made it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for such Revolving Lender or its applicable lending office to make LIBOR Rate Revolving Loans, then, on notice thereof by such Revolving Lender to the Borrowers through the Administrative Agent, any obligation of such Revolving Lender to make LIBOR Rate Revolving Loans shall be suspended until such Revolving Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist.

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(b)                                 If a Revolving Lender determines that it is unlawful to maintain any LIBOR Rate Revolving Loan, the Borrowers shall, upon receipt of notice of such fact and demand from such Revolving Lender (with a copy to the Administrative Agent), prepay in full such LIBOR Rate Revolving Loans of such Revolving Lender then outstanding, together with accrued and unpaid interest thereon and amounts required under Section 5.4, either on the last day of the Interest Period thereof, if such Revolving Lender may lawfully continue to maintain such LIBOR Rate Revolving Loans to such day, or immediately, if such Revolving Lender may not lawfully continue to maintain such LIBOR Rate Revolving Loans.  If the Borrowers are required to so prepay any LIBOR Rate Revolving Loans, then concurrently with such prepayment, the Borrowers shall borrow from the affected Revolving Lender, in the amount of such repayment, a Base Rate Revolving Loan.  Each Revolving Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the judgment of such Revolving Lender, otherwise be disadvantageous to such Revolving Lender.

Section 5.3                                      Increased Costs and Reduction of Return.

(a)                                  If any Revolving Lender determines that due to either (i) the introduction of or any change in the interpretation of any law or regulation after the date of this Agreement or (ii) the compliance by such Revolving Lender with any guideline or request from any central bank or other Governmental Authority (whether or not having the force of law) made after the date of this Agreement, there shall be any increase in the cost to such Revolving Lender of agreeing to make or making, funding, or maintaining any LIBOR Rate Revolving Loans, then the Borrowers shall be liable for, and shall from time to time, within three Business Days of demand by such Revolving Lender (with a copy of such demand to be sent to the Administrative Agent), pay to the Administrative Agent, for the account of such Revolving Lender, additional amounts as are sufficient to compensate such Revolving Lender for such increased costs.

(b)                                 If any Revolving Lender shall have determined that (to the extent it occurs after the date of this Agreement) (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the interpretation or administration thereof, or (iv) compliance by such Revolving Lender or any corporation or other entity controlling such Revolving Lender with any Capital Adequacy Regulation, affects or would affect the amount of capital required or expected to be maintained by such Revolving Lender or any corporation or other entity controlling such Revolving Lender and (taking into consideration such Revolving Lender’s or such corporation’s or other entity’s policies with respect to capital adequacy and such Revolving Lender’s desired return on capital) determines that the amount of such capital is increased as a consequence of its Commitment, loans, credits, or obligations under this Agreement, then, within three Business Days of demand by such Revolving Lender (with a copy of such demand to be sent to the Administrative Agent), the Borrowers shall pay to the Administrative Agent, for the account of such Revolving Lender, from time to time as specified by such

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Revolving Lender, additional amounts sufficient to compensate such Revolving Lender for such increase.

Section 5.4                                      Funding Losses.  The Borrowers shall reimburse each Revolving Lender and hold each Revolving Lender harmless from any loss or expense that such Revolving Lender may sustain or incur as a consequence of:

(a)                                  the failure of the Borrowers to make on a timely basis any payment of principal of any LIBOR Rate Revolving Loan;

(b)                                 except as permitted by Section 5.5, the failure of the Borrowers to (i) borrow any requested LIBOR Rate Revolving Loan, (ii) continue any LIBOR Rate Revolving Loan, or (iii) convert a Base Rate Revolving Loan to a LIBOR Rate Revolving Loan, in each case, after any Borrower has given (or is deemed to have given) a Notice of Borrowing, a Notice of Continuation/Conversion, or any telephonic notice in lieu thereof with respect thereto; or

(c)                                  the prepayment or other payment (including after acceleration thereof) of any LIBOR Rate Revolving Loans on a day that is not the last day of the relevant Interest Period;