Exhibit 10.(a)


 


EXECUTION COPY




 





 


$215,000,000


 


CREDIT AGREEMENT


 


Dated as of February 27, 2009


 


by and among


 


BRINKER INTERNATIONAL, INC.,

as Borrower,


 


BRINKER RESTAURANT CORPORATION,

as Guarantor,


 


The Banks Party Hereto


 


and


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 






 


J.P. MORGAN SECURITIES, INC. and

BANC OF AMERICA SECURITIES LLC,

as Joint Lead Arrangers

and Bookrunners


 


BANK OF AMERICA, N.A.,

as Sole Syndication Agent


 


COMPASS BANK


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents




 





[CS&M No. 6701-797]


 

















 


TABLE
OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS AND ACCOUNTING
  TERMS

  	
  1

  
	
   

  	
   

  
	
  Section 1.01.
  Certain Defined Terms

  	
  1

  
	
  Section 1.02.
  Computation of Time Periods

  	
  15

  
	
  Section 1.03.
  Accounting Terms

  	
  15

  
	
  Section 1.04.
  Miscellaneous

  	
  16

  
	
   

  	
   

  
	
  ARTICLE II AMOUNTS AND TERMS OF THE
  ADVANCES

  	
  16

  
	
   

  	
   

  
	
  Section 2.01.
  The Advances

  	
  16

  
	
  Section 2.02.
  Requests for Advances

  	
  16

  
	
  Section 2.03.
  Borrowings; Advances; Termination of Eurodollar Rate Advances

  	
  17

  
	
  Section 2.04.
  Conversions and Continuations of Borrowings

  	
  19

  
	
  Section 2.05.
  Optional Termination and Reduction of the Commitments

  	
  21

  
	
  Section 2.06.
  Repayment and Prepayment of Advances; Notes

  	
  21

  
	
  Section 2.07.
  Interest on Advances

  	
  22

  
	
  Section 2.08.
  Interest Rate Determination

  	
  23

  
	
  Section 2.09.
  Fees

  	
  23

  
	
  Section 2.10.
  Payments; Computations; Interest on Overdue Amounts

  	
  23

  
	
  Section 2.11.
  Consequential Losses on Eurodollar Rate Advances

  	
  24

  
	
  Section 2.12.
  Increased Costs

  	
  25

  
	
  Section 2.13.
  Replacement of Banks

  	
  26

  
	
  Section 2.14.
  Illegality and Unavailability

  	
  26

  
	
  Section 2.15.
  Taxes

  	
  27

  
	
  Section 2.16.
  Payments Pro Rata

  	
  29

  
	
  Section 2.17.
  Increase in Commitments

  	
  30

  
	
  Section 2.18.
  Defaulting Banks

  	
  31

  
	
   

  	
   

  
	
  ARTICLE III CONDITIONS

  	
  32

  
	
   

  	
   

  
	
  Section 3.01.
  Conditions Precedent to Effectiveness

  	
  32

  
	
  Section 3.02.
  Conditions Precedent to Each Borrowing

  	
  34

  
	
  Section 3.03.
  Administrative Agent

  	
  34

  
	
   

  	
   

  
	
  ARTICLE IV GUARANTY

  	
  35

  
	
   

  	
   

  
	
  Section 4.01.
  Guaranty

  	
  35

  
	
  Section 4.02.
  Payment

  	
  35

  
	
  Section 4.03.
  Waiver

  	
  35

  
	
  Section 4.04.
  Acknowledgments and Representations

  	
  35

  
	
  Section 4.05.
  Subordination

  	
  36

  
	
  Section 4.06.
  Guaranty Absolute

  	
  36

  
	
  Section 4.07.
  No Waiver; Remedies

  	
  36

  



 


i

















 


	
  Section 4.08.
  Continuing Guaranty

  	
  36

  
	
  Section 4.09.
  Limitation

  	
  37

  
	
  Section 4.10.
  Effect of Bankruptcy

  	
  37

  
	
   

  	
   

  
	
  ARTICLE V REPRESENTATIONS AND
  WARRANTIES

  	
  37

  
	
   

  	
   

  
	
  Section 5.01.
  Corporate Existence

  	
  37

  
	
  Section 5.02.
  Corporate Power

  	
  38

  
	
  Section 5.03.
  Enforceable Obligations

  	
  38

  
	
  Section 5.04.
  Financial Statements

  	
  38

  
	
  Section 5.05.
  Litigation

  	
  39

  
	
  Section 5.06.
  Margin Stock; Use of Proceeds

  	
  39

  
	
  Section 5.07.
  Investment Company Act

  	
  39

  
	
  Section 5.08.
  ERISA

  	
  39

  
	
  Section 5.09.
  Taxes

  	
  39

  
	
  Section 5.10.
  Environmental Condition

  	
  40

  
	
  Section 5.11.
  Ownership of Guarantor

  	
  40

  
	
  Section 5.12.
  Solvency

  	
  40

  
	
  Section 5.13.
  Disclosure

  	
  40

  
	
   

  	
   

  
	
  ARTICLE VI AFFIRMATIVE COVENANTS

  	
  40

  
	
   

  	
   

  
	
  Section 6.01.
  Compliance with Laws, Etc

  	
  40

  
	
  Section 6.02.
  Reporting Requirements

  	
  41

  
	
  Section 6.03.
  Use of Proceeds

  	
  42

  
	
  Section 6.04.
  Maintenance of Insurance

  	
  42

  
	
  Section 6.05.
  Preservation of Corporate Existence, Etc

  	
  42

  
	
  Section 6.06.
  Payment of Taxes, Etc

  	
  43

  
	
  Section 6.07.
  Visitation Rights

  	
  43

  
	
  Section 6.08.
  Compliance with ERISA and the Code

  	
  43

  
	
   

  	
   

  
	
  ARTICLE VII NEGATIVE COVENANTS

  	
  43

  
	
   

  	
   

  
	
  Section 7.01.
  Financial Covenants

  	
  43

  
	
  Section 7.02.
  Negative Pledge

  	
  44

  
	
  Section 7.03.
  Merger and Sale of Assets

  	
  44

  
	
  Section 7.04.
  Agreements to Restrict Dividends and Certain Transfers

  	
  45

  
	
  Section 7.05.
  Transactions with Affiliates

  	
  45

  
	
  Section 7.06.
  Change of Business

  	
  45

  
	
  Section 7.07.
  Limitation on Loans, Advances and Investments

  	
  45

  
	
  Section 7.08.
  Accounting Practices

  	
  46

  
	
  Section 7.09.
  Debt

  	
  46

  
	
   

  	
   

  
	
  ARTICLE VIII DEFAULTS

  	
  47

  
	
   

  	
   

  
	
  Section 8.01.
  Defaults

  	
  47

  



 


ii

















 


	
  ARTICLE IX THE ADMINISTRATIVE AGENT

  	
  49

  
	
   

  	
   

  
	
  Section 9.01.
  Authorization and Action

  	
  49

  
	
  Section 9.02.
  Administrative Agent’s Reliance, Etc

  	
  50

  
	
  Section 9.03.
  Knowledge of Defaults

  	
  50

  
	
  Section 9.04.
  Rights of the Administrative Agent as a Bank

  	
  51

  
	
  Section 9.05.
  Bank Credit Decision

  	
  51

  
	
  Section 9.06.
  Successor Administrative Agent

  	
  51

  
	
  Section 9.07.
  Joint Lead Arrangers and Bookrunners and Syndication Agent

  	
  52

  
	
  Section 9.08.
  INDEMNIFICATION

  	
  52

  
	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
  53

  
	
   

  	
   

  
	
  Section 10.01.
  Amendments, Etc

  	
  53

  
	
  Section 10.02.
  Notices, Etc

  	
  53

  
	
  Section 10.03.
  No Waiver; Remedies

  	
  54

  
	
  Section 10.04.
  Costs, Expenses and Taxes

  	
  54

  
	
  Section 10.05.
  Right of Set-off

  	
  55

  
	
  Section 10.06.
  Bank Assignments and Participations

  	
  55

  
	
  Section 10.07.
  Governing Law

  	
  57

  
	
  Section 10.08.
  Interest

  	
  57

  
	
  Section 10.09.
  Execution in Counterparts

  	
  58

  
	
  Section 10.10.
  Survival of Agreements, Representations and Warranties, Etc

  	
  58

  
	
  Section 10.11.
  The Borrower’s Right to Apply Deposits

  	
  59

  
	
  Section 10.12.
  Confidentiality

  	
  59

  
	
  Section 10.13.
  Binding Effect

  	
  60

  
	
  Section 10.14.
  ENTIRE AGREEMENT

  	
  60

  
	
  Section 10.15.
  USA PATRIOT ACT

  	
  61

  
	
  Section 10.16.
  No Fiduciary Relationship

  	
  61

  



 


iii

















 


	
  EXHIBITS:

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of
  Note

  
	
  Exhibit B

  	
   

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit C

  	
   

  	
  Form of
  Assignment

  
	
  Exhibit D

  	
   

  	
  Form of
  Opinion of Counsel for the Borrower and the Guarantor

  
	
  Exhibit E

  	
   

  	
  Form of U.S. Tax Compliance Certificate

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
  Bank
  and Administrative Agent Addresses

  
	
  Schedule II

  	
  -

  	
  Borrower
  and Guarantor Addresses

  
	
  Schedule III

  	
  -

  	
  Permitted
  Liens

  
	
  Schedule IV

  	
  -

  	
  Agreements
  Restricting Dividends and Certain Transfers

  
	
  Schedule V

  	
  -

  	
  GAAP
  Exceptions

  
	
  Schedule VI

  	
  -

  	
  Investments

  
	
  Schedule VII

  	
  -

  	
  Permitted
  Debt

  



 


iv

















 


CREDIT AGREEMENT (this “Agreement”),
dated as of February 27, 2009, by and among BRINKER INTERNATIONAL, INC., a
Delaware corporation (the “Borrower”), BRINKER RESTAURANT CORPORATION, a
Delaware corporation (the “Guarantor”), the Banks party hereto, and
JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) for the Banks hereunder.


 


The Borrower has requested
that the Banks make loans to it in an aggregate principal amount not exceeding
$215,000,000 at any one time outstanding, and the Banks are prepared to make
such loans upon and subject to the terms and conditions hereof.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


Section 1.01.Certain
Defined Terms.  As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):


 


“Accession Agreement”
has the meaning specified in Section 2.17.


 


“Administrative Agent”
has the meaning specified in the introduction hereto.


 


“Advance”
means an advance by a Bank to the Borrower as part of a Borrowing and refers to
a Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a “Type”
of Advance.


 


“Affiliate”
means any Person that, directly or indirectly, controls, or is controlled by or
under common control with, another Person. 
For the purposes of this definition, the terms “control”, “controlled by”
and “under common control with”, as used with respect to any Person, means the
power to direct or cause the direction of the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. 
Without limiting the generality of the foregoing, a Subsidiary of a
Person is an Affiliate of that Person.


 


“Agreement” has the
meaning specified in the introduction hereto.


 


“Applicable
Lending Office” means, with respect to each Bank, such Bank’s Domestic
Lending Office in the case of a Base Rate Advance, and such Bank’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.


 


1

















 


“Applicable
Rate” means, for any day, with respect to any Eurodollar Rate Advance or
Base Rate Advance or with respect to the facility fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the
caption “Eurodollar Rate Spread”, “Base Rate Spread” or “Facility Fee Rate”, as
the case may be, based upon the Moody’s Rating and the S&P Rating:


 


	
  Rating

  Level

  	
   

  	
  Ratings (Moody’s/S&P)

  	
   

  	
  Facility Fee

  Rate

  (bps per

  annum)

  	
   

  	
  Eurodollar

  Rate Spread

  (bps per

  annum)

  	
   

  	
  Base Rate

  Spread

  (bps per

  annum)

  	
   

  
	
  Rating Level 1

  	
   

  	
  > 

  	
  Baa1 or BBB+

  	
   

  	
  25.0

  	
   

  	
  175.0

  	
   

  	
  75.0

  	
   

  
	
  Rating Level 2

  	
   

  	
   

  	
  Baa2 or BBB

  	
   

  	
  30.0

  	
   

  	
  195.0

  	
   

  	
  95.0

  	
   

  
	
  Rating Level 3

  	
   

  	
   

  	
  Baa3 and BBB-

  	
   

  	
  40.0

  	
   

  	
  235.0

  	
   

  	
  135.0

  	
   

  
	
  Rating Level 4

  	
   

  	
   

  	
  Baa3/BB+ or Ba1/BBB-

  	
   

  	
  50.0

  	
   

  	
  275.0

  	
   

  	
  175.0

  	
   

  
	
  Rating Level 5

  	
   

  	
  < 

  	
  Ba1 and BB+

  	
   

  	
  50.0

  	
   

  	
  325.0

  	
   

  	
  225.0

  	
   

  



 


For purposes of the
foregoing, (a) if a Moody’s Rating or an S&P Rating shall not be in
effect (other than by reason of the circumstances referred to in the last
sentence of this definition), then the applicable rating agency shall be deemed
to have established a rating in Rating Level 5 (as set forth in the table
above); (b) if the Moody’s Rating and the S&P Rating shall fall within
different Rating Levels, the Applicable Rate shall be based on the higher of
the two ratings unless the ratings differ by more than one Rating Level, in
which case the Applicable Rate shall be based on the Rating Level one level
above that corresponding to the lower rating; and (c) if the Moody’s
Rating or the S&P Rating shall be changed (other than as a result of a
change in the rating system of Moody’s or S&P), such change shall be
effective as of the date on which it is first publicly announced by Moody’s or
S&P.  Each change in the Applicable
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change.  If the rating system
of Moody’s or S&P shall change, or if either such rating agency shall cease
to be in the business of rating corporate debt obligations, the Borrower and
the Banks shall negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable
Rate shall be determined by reference to the rating most recently in effect
prior to such change or cessation.


 


“Applicable Usury Laws” means the Texas Finance Code,
any other law of the State of Texas limiting interest rates and any applicable
Federal law to the extent that it permits Banks to contract for, charge,
reserve or receive a greater amount of interest than under the Texas Finance
Code or other laws of the State of Texas.


 


2

















 


“Assignment”
means an assignment and acceptance entered into by a Bank and an assignee, and
accepted by the Administrative Agent, in substantially the form of the attached
Exhibit C.


 


“Banks”
means the Persons listed under the heading “Banks” on the signature pages hereof
and each other Person that shall have become a party hereto pursuant to an
Assignment or an Accession Agreement, other than any such Person that shall
have ceased to be a party hereto pursuant to an Assignment.


 


“Base
Rate” means, for any day, a fluctuating interest rate per annum in effect
from time to time which rate per annum shall at all times be equal to the
higher of:


 


(a) the rate of interest announced
publicly by JPMCB in New York, New York from time to time as JPMCB’s prime rate
on such day;


 


(b) the Federal Funds Rate for such day plus
1⁄2 of 1% per annum; and


 


(c) so long as none of the conditions
described in clauses (i), (ii) or (iii) of Section 2.03(d) shall
exist, the Eurodollar Rate for a one month interest period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus
1% per annum, provided that, for the avoidance of doubt, the Eurodollar
Rate for any day shall be based on the rate appearing on the Reuters BBA LIBOR
Rates Page 3750 at approximately 11:00 a.m. London time on such day.


 


“Base Rate Advance”
means an Advance which bears interest as provided in Section 2.07(a)(i).


 


“Base Rate Borrowing”
means a Borrowing comprised of Base Rate Advances.


 


“Board” means, as to
any Person, the Board of Directors of the Person or the Executive Committee
thereof.


 


“Borrower” has the
meaning specified in the introduction hereto.


 


“Borrowing”
means a borrowing consisting of simultaneous Advances of the same Type to the
Borrower made by each of the Banks pursuant to Section 2.01.


 


“Business
Day” means a day of the year on which banks are not required or authorized
to close in Dallas, Texas, or New York City, New York, and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the interbank eurodollar market.


 


“Capitalized
Lease” means at any time, a lease with respect to which the lessee
thereunder is required concurrently to recognize the acquisition of an asset
and the incurrence of a liability in accordance with GAAP.


 


3

















 


“Capitalized
Lease Obligations” means, with respect to any Person for any period of
determination, the amount of the obligations of such Persons under Capitalized
Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.


 


“Code”
means, as appropriate, the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code, and any reference to any statutory provision shall
be deemed to be a reference to any successor provision or provisions.


 


“Commitment”
of any Bank means at any time the amount set forth opposite such Bank’s name on
the signature pages hereof or in an Assignment, as such amount may be
terminated, reduced or increased pursuant to Section 2.05, Section 8.01
or Section 10.06.


 


“Confidential Information”
has the meaning specified in Section 10.12.


 


“Confidential
Information Memorandum” means the Confidential Information Memorandum dated
January 7, 2009, relating to the credit facility provided for herein.


 


“Consolidated”
refers to the consolidation of the accounts of any Person and its Subsidiaries
in accordance with GAAP.


 


“Controlled
Group” means any group of organizations within the meaning of Section 414(b),
(c), (m), or (o) of the Code of which the Borrower or its Subsidiaries is
a member.


 


“Corporate
Franchise” means the right or privilege granted by the state or government
to the Person forming a corporation, and their successors, to exist and do
business as a corporation and to exercise the rights and powers incidental to
that form of organization or necessarily implied in the grant.


 


“Credit
Documents” means this Agreement, the Notes, and each other agreement,
instrument or document executed by the Borrower or the Guarantor at any time in
connection with this Agreement.


 


“Debt”
means, in the case of any Person, without duplication, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (iii) Capitalized
Lease Obligations, and (iv) obligations of such Person under or relating
to letters of credit or guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses  (i) through (iii) of
this definition.  For the purposes of
this Agreement, the term Debt shall not include any obligation of the Borrower
or the Guarantor incurred by entering into, or by guaranteeing, any transaction
that is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, foreign exchange
transaction, currency swap or option or any similar transaction.


 


4

















 


“Debt to Cash Flow Ratio”
has the meaning specified in Section 7.01(b).


 


“Default” has the meaning
specified in Section 8.01.


 


“Defaulting
Bank” means any Bank that (a) shall have failed to fund its ratable
share of any Borrowing for three or more Business Days after the date of such
Borrowing (unless (i) such Bank shall have notified the Administrative
Agent and the Borrower in writing of its determination that a condition to its
obligation to make an Advance as part of such Borrowing shall not have been
satisfied and (ii) Banks representing a majority in interest of the
Commitments shall not have advised the Administrative Agent in writing of their
determination that such condition has been satisfied), (b) shall have
notified the Administrative Agent (or shall have notified the Borrower, which
shall in turn have notified the Administrative Agent) in writing that it does
not intend or is unable to comply with its funding obligations under this
Agreement, or shall have made a public statement to the effect that it does not
intend or is unable to comply with such funding obligations or its funding obligations
under other credit or similar agreements to which it is a party, (c) shall
have failed (but not for fewer than three Business Days) after a request by the
Administrative Agent to confirm that it will comply with its obligations to
make Advances hereunder or (d) shall have become the subject of a
bankruptcy or insolvency proceeding, or shall have had a receiver, conservator,
trustee or custodian appointed for it, or shall have taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or shall have a parent company that has
become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or has taken any
action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.


 


“Domestic
Lending Office” means, with respect to any Bank, the office of such Bank
specified as its “Domestic Lending Office” opposite its name on Schedule I
hereto or in an Assignment or such other office of such Bank as such Bank may
from time to time specify to the Borrower and the Administrative Agent.


 


“EBIT”
means for any period, the Consolidated earnings of a Person during such period
from continuing operations, exclusive of (i) gains on sales of assets not
in the ordinary course of business (to the extent such gains are included in
earnings from continuing operations), (ii) any non-recurring, non-cash
charges or losses not in the ordinary course of business (to the extent such
charges or losses are included in earnings from continuing operations), (iii) any
non-cash expenses for such period resulting from the grant of stock options or
other equity-based incentives to any director, officer or employee of the
Borrower or any Subsidiary pursuant to a written plan or agreement approved by
the Board of the Borrower (to the extent such expenses are included in earnings
from continuing operations) and (iv) extraordinary items, as determined
under GAAP, but without deducting federal, state, foreign and local income
taxes and Interest Expense.


 


“EBITDA”
means, for any period, the Consolidated earnings of a Person during such period
from continuing operations, exclusive of (i) gains on sales of assets


 


5
















 


not in the ordinary course
of business (to the extent such gains are included in earnings from continuing
operations), (ii) any non-recurring, non-cash charges or losses not in the
ordinary course of business (to the extent such charges or losses are included
in earnings from continuing operations), (iii) any non-cash expenses for
such period resulting from the grant of stock options or other equity-based
incentives to any director, officer or employee of the Borrower or any
Subsidiary pursuant to a written plan or agreement approved by the Board of the
Borrower (to the extent such expenses are included in earnings from continuing
operations) and (iv) extraordinary items, as determined under GAAP, but
without deducting federal, state, foreign and local income taxes, Interest
Expense, depreciation and amortization.


 


“Effective
Date” means the date on which the conditions set forth in Section 3.01
and Section 3.02(a) shall have been satisfied (or waived in
accordance with Section 10.01).


 


“Eligible
Assignee” means (i) a Bank or any Affiliate of any Bank; (ii) a
commercial bank or financial institution, in each case with an office in the
United States of America acceptable to the Administrative Agent and, unless a
Default has occurred and is continuing, the Borrower, such acceptance not to be
unreasonably withheld, and (iii) a finance company, insurance company or
other financial institution (not already covered by clause (ii) of this
definition) or fund (whether a corporation, partnership or other entity) which is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business, and having total assets in excess of
$1,000,000,000, or any other Person, in each case, acceptable to the
Administrative Agent and, unless a Default has occurred and is continuing, the
Borrower in their discretion.


 


“Environment”
has the meaning set forth in 42 U.S.C. §9601(8) (1982).


 


“Environmental
Protection Statute” means any local, state or federal law, statute,
regulation, order, consent decree or other Governmental Requirement, domestic
or foreign, arising from or in connection with or relating to the protection or
regulation of the Environment, including, without limitation, those laws,
statutes, regulations, orders, decrees and other Governmental Requirements
relating to the disposal, cleanup, production, storing, refining, handling,
transferring, processing or transporting of Hazardous Waste, Hazardous
Substances or any pollutant or contaminant, wherever located.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and rulings issued thereunder from
time to time.


 


“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.


 


6

















 


“Eurodollar
Lending Office” means, with respect to any Bank, the office of such Bank
specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in an Assignment (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Administrative Agent.


 


“Eurodollar
Rate” means, for any Interest Period, the offered rate for deposits in U.S.
Dollars for a period equal to or nearest the number of days in such Interest
Period which appears on the Reuters “LIBOR01” screen displaying British Bankers’
Association Interest Settlement Rates (or on any successor or substitute screen
provided by Reuters, or any successor to or substitute for such service,
providing rate quotations comparable to those currently provided on such
screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) as of approximately 11:00 a.m.
London time on the date two Business Days prior to the first day of such
Interest Period, provided that if such rates do not appear on any such
screen, the “Eurodollar Rate” shall mean, for any Interest Period, the rate per
annum equal to the average (rounded upwards, if necessary, to the nearest 1/16
of 1%) of the respective rates notified to the Administrative Agent by each
Reference Bank as the rate at which U.S. Dollar deposits are offered to such
Reference Bank by prime banks at or about 11:00 a.m., London time, two
Business Days prior to the beginning of such Interest Period in the London
interbank market for delivery on the first day of such Interest Period for a
period approximately equal to the number of days in such Interest Period and in
an amount comparable to the principal amount of the Advances.


 


“Eurodollar
Rate Advance” means any Advance as to which the Borrower shall have
selected an interest rate based upon the Eurodollar Rate as provided in Article II.


 


“Eurodollar
Rate Borrowing” means a Borrowing comprised of Eurodollar Rate Advances.


 


“Eurodollar
Rate Reserve Percentage” of any Bank for any Interest Period for any
Eurodollar Rate Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


7

















 


“Existing
Credit Agreement” means the $300,000,000 Credit Agreement dated as of October 6,
2004, among the Borrower, the Guarantor, certain financial institutions named
therein and Citibank, N.A., as Administrative Agent, as amended.


 


“Existing
Term Loan Agreement” means the $400,000,000 Loan Agreement dated as of October 24,
2007, among the Borrower, the Guarantor, certain financial institutions named
therein and Citibank, N.A., as Administrative Agent.


 


“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.


 


“Financial
Officer” means the chief financial officer, the principal accounting
officer, any vice president or assistant vice president with accounting or
financial responsibilities, or the treasurer or any assistant treasurer of the
Borrower.


 


“Foreign
Subsidiary” means a Subsidiary of the Borrower organized under the laws of
a jurisdiction other than the United States of America.


 


“GAAP”
means generally accepted accounting principles for financial reporting as in
effect from time to time in the United States of America, applied on a
consistent basis.


 


“Governmental
Requirements” means all judgments, orders, writs, injunctions, decrees,
awards, laws, ordinances, statutes, regulations, rules, Corporate Franchises,
permits, certificates, licenses, authorizations and the like and any other
requirements of any government or any commission, board, court, agency,
instrumentality or political subdivision thereof.


 


“Guaranteed
Obligations” means all obligations of the Borrower to the Banks and the
Administrative Agent hereunder and under the Notes and any other Credit
Document to which the Borrower is a party, whether for principal, interest,
fees, expenses, indemnities or otherwise, and whether now or hereafter
existing.


 


“Guarantor”
has the meaning specified in the introduction hereto.


 


“Hazardous
Substance” has the meaning set forth in 42 U.S.C. §9601(14) and shall
also include each other substance considered to be a hazardous substance under
any Environmental Protection Statute.


 


“Hazardous
Waste” has the meaning set forth in 42 U.S.C. §6903(5) and shall
also include each other substance considered to be a hazardous waste under any
Environmental Protection Statute (including, without limitation, 40 C.F.R.
§261.3).


 


8

















 


“Increasing Bank” has
the meaning specified in Section 2.17.


 


“Indemnified Person”
has the meaning specified in Section 10.04(b).


 


“Insufficiency”
means, with respect to any Plan, the amount, if any, by which the present value
of the vested benefits under such Plan exceeds the fair market value of the
assets of such Plan allocable to such benefits.


 


“Interest
Expense” means, with respect to any Person for any period of determination,
its interest expense determined in accordance with GAAP, including, without
limitation, all interest with respect to Capitalized Lease Obligations and all
capitalized interest, but excluding deferred financing fees.


 


“Interest
Payment Dates” means, with respect to each Advance, the earlier of (i) the
last day of the applicable Interest Period related to such Advance, (ii) the
ninetieth (90th) day after the day on which the applicable Interest Period
related to such Advance begins, if such Interest Period is longer than three
months, (iii) the Termination Date, (iv) the date of demand therefor
with respect to interest accruing under Section 2.07(b) and Section 2.10(e),
and (v) the date of any prepayment of any Advance, whether or not such
prepayment is otherwise permitted hereunder.


 


“Interest Period”
means with respect to any Advance:


 


(a) if such
Advance is a Eurodollar Rate Advance, the period commencing on the date of such
Advance or on the last day of the immediately preceding Interest Period
applicable to such Advance, as the case may be, and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is one (1), two (2), three (3) or six (6) months
thereafter, as the Borrower may select, and


 


(b) if such
Advance is a Base Rate Advance, the period commencing on the date of such
Advance or on the last day of the immediately preceding Interest Period
applicable to such Advance, as the case may be, and ending ninety (90) days
later or, if earlier, on the Termination Date or the date of the prepayment of
such Advance,


 


in
each case, as selected by the Borrower, as provided in Section 2.02
with respect to Advances. 
Notwithstanding the foregoing, however:


 


(i) if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
with respect to Eurodollar Rate Advances only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day;


 


(ii) no
Interest Period may be selected for any Advance that ends later than the
Termination Date; and


 


9

















 


(iii) Interest
Periods commencing on the same date for Advances comprising the same Borrowing
shall be of the same duration.


 


Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of an Interest Period. 
The Administrative Agent shall promptly advise each Bank in writing of
each Interest Period so selected by the Borrower with respect to each
Borrowing.


 


“Investments” has the
meaning specified in Section 7.07.


 


“JPMCB” means
JPMorgan Chase Bank, N.A.


 


“Joint
Lead Arrangers” means J.P. Morgan Securities Inc. and Banc of America
Securities LLC, in their capacities as joint lead arrangers and joint
bookrunners for the credit facility provided for herein.


 


“Lien”
means any mortgage, lien, pledge, charge, deed of trust, security interest,
encumbrance or other type of preferential arrangement to secure or provide for
the payment of any obligation of any Person, whether arising by contract,
operation of law or otherwise (including, without limitation, the interest of a
vendor or lessor under any conditional sale agreement, Capitalized Lease or
other title retention agreement).


 


“Liquid Investments”
means:


 


(a) direct obligations of, or
obligations the principal of and interest on which are guaranteed or insured
by, the United States of America or any agency or instrumentality thereof;


 


(b)  (i) negotiable or
nonnegotiable certificates of deposit, time deposits, bankers’ acceptances or
other similar banking arrangements maturing within twelve (12) months from the
date of acquisition thereof (“bank debt securities”), issued by (A) any
Bank or any Affiliate of any Bank or (B) any other foreign or domestic
bank, trust company or financial institution which has a combined capital
surplus and undivided profit of not less than $100,000,000 or the U.S. Dollar
equivalent thereof, if at the time of deposit or purchase, such bank debt
securities are rated not less than “BB” (or the then equivalent) by the rating
service of S&P or of Moody’s, (ii) commercial paper issued by (A) any
Bank or any Affiliate of any Bank or (B) any other Person if at the time
of purchase such commercial paper is rated not less than “A-2” (or the then
equivalent) by the rating service of S&P or not less than “P-2” (or the
then equivalent) by the rating service of Moody’s, or upon the discontinuance
of both of such services, such other nationally recognized rating service or
services, as the case may be, as shall be selected by the Borrower or the
Guarantor, (iii) debt or other securities issued by (A) any Bank or
Affiliate of any Bank or (B) or any other Person, if at the time of
purchase such Person’s debt or equity securities are rated not less than “BB”
(or the then equivalent) by the rating service of S&P or of Moody’s, or
upon the discontinuance of both such services, such other nationally recognized
rating service or services, as the case may be, as shall be selected by the
Borrower or the 


 


10

















 


Guarantor and (iv) marketable securities of a
class registered pursuant to Section 12(b) or (g) of the
Exchange Act;


 


(c) repurchase agreements relating to
investments described in clauses (a) and (b) above with
a market value at least equal to the consideration paid in connection
therewith, with any Person who has a combined capital surplus and undivided
profit of not less than $100,000,000 or the U.S. Dollar equivalent thereof, if
at the time of entering into such agreement the debt securities of such Person
are rated not less than “BBB” (or the then equivalent) by the rating service of
S&P or of Moody’s, or upon the discontinuance of both such services, such
other nationally recognized rating service or services, as the case may be, as
shall be selected by the Borrower or the Guarantor; and


 


(d) shares of any mutual fund registered
under the Investment Company Act of 1940, as amended, which invests solely in
underlying securities of the types described in clauses (a), (b) and
(c) above.


 


“Majority
Banks” means at any time Banks holding more than fifty percent (50%) of the
then aggregate unpaid principal amount of the Advances held by the Banks, or,
if no such principal amount is then outstanding, Banks having more than fifty
percent (50%) of the Commitments.


 


“Material
Adverse Effect” means, relative to any occurrence whatsoever, any effect
which (a) is material and adverse to the financial condition or business
operations of the Borrower and its Subsidiaries, on a Consolidated basis, or (b) adversely
affects the legality, validity or enforceability of this Agreement or any Note,
or (c) causes a Default.


 


“Maximum
Rate” means at the particular time in question the maximum non-usurious
rate of interest which, under Applicable Usury Law, may then be contracted for,
taken, reserved, charged or received under this Agreement, the Notes or under
any other agreement entered into in connection with this Agreement or the
Notes.  If such maximum non-usurious rate
of interest changes after the date hereof, the Maximum Rate shall, from time to
time, be automatically increased or decreased, as the case may be, as of the
effective date of each change in such maximum rate, in each case without notice
to Borrower.


 


“Moody’s” means Moody’s
Investors Service, Inc. and any successor thereto.


 


“Moody’s
Rating” means, at any time, the Borrower’s corporate family rating then
most recently announced by Moody’s.


 


“Net
Worth” of any Person means, as of any date of determination, the excess of
total assets of such Person over total liabilities, total assets and total
liabilities each to be determined in accordance with GAAP.


 


“Non-U.S. Bank” has
the meaning specified in Section 2.15(e).


 


11

















 


“Note”
means a promissory note of the Borrower payable to the order of any Bank, in
substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Bank resulting from Advances.


 


“Notice of Borrowing”
has the meaning specified in Section 2.02.


 


“Obligated Party” has
the meaning specified in Section 4.03.


 


“Other Taxes” has the
meaning specified in Section 2.15(b).


 


“PBGC” means the
Pension Benefit Guaranty Corporation (and any successor thereto).


 


“Patriot Act” means
the USA Patriot Act, Title III of Pub. L. 107-56, signed into law on October 26,
2001.


 


“Permitted Liens”
means, with respect to any Person, Liens:


 


(a) for taxes, assessments or
governmental charges or levies on property of such Person incurred in the
ordinary course of business to the extent not required to be paid pursuant to Sections 6.01
and 6.06;


 


(b) imposed by law, such as landlords’,
carriers’, warehousemen’s and mechanics’ liens and other similar Liens arising
in the ordinary course of business securing obligations which are not overdue
for a period of more than sixty (60) days or which are being contested in
good faith and by appropriate proceedings;


 


(c) arising in the ordinary course of
business (i) out of pledges or deposits under workers’ compensation laws,
unemployment insurance, old age pensions or other social security or retirement
benefits, or similar legislation or to secure public or statutory obligations
of such Person or (ii) which were not incurred in connection with the
borrowing of money and do not in the aggregate materially detract from the
value or use of the assets of the Borrower and its Subsidiaries in the
operation of their business;


 


(d) securing Debt existing on the date
of this Agreement and listed on the attached Schedule III or reflected
in the financial statements referenced in Section 5.04, provided
that the Debt secured by such Liens shall not be renewed, refinanced or
extended if the amount of such Debt so renewed is greater than the outstanding
amount of such Debt on the date of this Agreement;


 


(e) constituting easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of property or minor imperfections
in title thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
such Person;


 


12

















 


(f) securing judgments against such Person which are being
appealed;


 


(g) on real property acquired by such
Person after the date of this Agreement and securing only Debt of such Person
incurred to finance the purchase price of such property, provided that
any such Lien is created within one hundred eighty (180) days of the
acquisition of such property; or


 


(h) other than those Liens otherwise
permitted above, Liens securing Debt of the Borrower and its Subsidiaries in an
aggregate principal amount not in excess of five percent (5.0%) of the Borrower’s
Net Worth, on a Consolidated basis, as reflected on the most recent financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the
Banks pursuant to Section 5.04 or 6.02.


 


“Person”
means an individual, partnership, corporation, limited liability company,
limited liability partnership, business trust, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.


 


“Plan”
means an employee pension benefit plan within the meaning of Title IV of ERISA
which is either (a) maintained for employees of the Borrower, of any
Subsidiary of the Borrower, or of any member of the Controlled Group, or (b) maintained
pursuant to a collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which the Borrower, any
Subsidiary of the Borrower or any member of the Controlled Group is at the time
in question making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions.


 


“Rating” means the
Moody’s Rating or the S&P Rating, as the case may be.


 


“Rating
Level” means the applicable rating level as set forth in the table under
the definition of the Applicable Rate.


 


“Reference Banks”
mean JPMCB and Bank of America, N.A.


 


“Register” has the
meaning specified in Section 10.06(c).


 


“Rent
Expense” means, for any Person for any period of determination, such Person’s
operating lease expense computed in accordance with GAAP, including, without
limitation, all contingent rentals, but excluding all common area maintenance
expenses.


 


“Revolving
Period” means the period of time commencing on the Effective Date and
ending on the Termination Date.


 


“Sale/Leaseback
Transaction” has the meaning specified in Section 7.01(c).


 


13

















 


“SEC” means the
United States Securities and Exchange Commission (and any successor thereto).


 


“SEC
Filing” means a report or statement filed with the SEC pursuant to Section 13,
14, or 15(d) of the Exchange Act and the regulations thereunder.


 


“Significant
Subsidiary” means any Subsidiary which is a “significant subsidiary” of the
Borrower within the meaning of Rule 1-02 of Regulation S-X under the
Exchange Act.


 


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


 


“S&P” means Standard &
Poor’s Rating Services or any successor thereto.


 


“S&P
Rating” means, at any time, the Borrower’s corporate credit rating then
most recently announced by S&P.


 


“Subsidiary”
means, as to any Person, any corporation, limited liability company, association
or other business entity in which such Person or one or more of its
Subsidiaries directly or indirectly through one or more intermediaries owns
sufficient equity or voting interests to enable it or them (individually or as
a group) ordinarily, in the absence of contingencies, to elect a majority of
the directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a fifty percent (50%) interest in the
profits or capital thereof is owned directly or indirectly by such Person, or
by one or more of its Subsidiaries, or collectively by such Person and one or
more of its Subsidiaries (unless such partnership can and does ordinarily take
major business actions without the prior approval of such Person or one or more
of its Subsidiaries).  Unless the context
otherwise clearly requires, any reference to a “Subsidiary” is a reference to a
direct or indirect Subsidiary of the Borrower.


 


“Taxes” has the
meaning specified in Section 2.15(a).


 


14

















 


“Termination
Date” means February 27, 2012 (being the third anniversary of the date
of this Agreement), or, if earlier, the date of termination in whole of the
Commitments pursuant to Section 2.05 or 8.01, provided
that if such date shall not be a Business Day, the Termination Date shall be
the immediately preceding Business Day.


 


“Termination
Event” means (i) a “reportable event”, as such term is described in Section 4043
of ERISA (other than a “reportable event” not subject to the provision for 30
day notice to the PBGC), or an event described in Section 4062(f) of
ERISA, or (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Plan during a plan year in which it was a “substantial
employer”, as such term is defined in Section 4001(a)(2) of ERISA, or
the incurrence of liability by the Borrower or any member of the Controlled
Group under Section 4064 of ERISA upon the termination of a Plan or Plan,
or (iii) the distribution of a notice of intent to terminate a Plan
pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate a Plan by the PBGC under Section 4042
of ERISA, or (v) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.


 


“Third Party Funds”
has the meaning specified in Section 10.05.


 


“Total
Commitment” means, at any time, the aggregate amount of the Commitments of
the Banks, as in effect at such time.


 


“Type” has the
meaning set forth in the definition of the term “Advance” above.


 


“UFCA” means the
Uniform Fraudulent Conveyance Act, as amended from time to time.


 


“UFTA” means the
Uniform Fraudulent Transfer Act, as amended from time to time.


 


“U.S. Dollars” and “$”
mean the lawful currency of the United States of America.


 


Section 1.02.Computation
of Time Periods.  In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to”
and “until” each means “to but excluding.”


 


Section 1.03.Accounting
Terms.  All accounting and financial
terms not specifically defined herein and the compliance with each covenant
contained herein with respect to financial matters (unless a different
procedure is otherwise set forth herein) shall be construed in accordance with
GAAP.  If subsequent to the date hereof
any change shall occur in GAAP or in the application thereof and such change
shall affect the calculation of any financial covenant, or any other provision,
set forth herein, then if the Borrower, by notice to the Administrative Agent,
shall request an amendment to any such


 


15
















 


financial covenant or other provision to
eliminate the effect of such change on such financial covenant or other
provision (or if the Administrative Agent or the Majority Banks, by notice to
the Borrower, shall request an amendment to any such financial covenant or
other provision for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
the parties hereto shall enter into negotiations in an effort to agree upon
such an amendment and, until such notice shall have been withdrawn or such
amendment shall have become effective in accordance herewith, such financial
covenant or other provision shall be calculated or interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective.


 


Section 1.04.Miscellaneous.  The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule and Exhibit references are to Articles and
Sections of and Schedules and Exhibits to this Agreement, unless otherwise
specified.


 


ARTICLE
II


 


AMOUNTS
AND TERMS OF THE ADVANCES


 


Section 2.01.The Advances.  Each Bank,
severally and for itself alone, on the terms and conditions hereinafter set
forth, hereby agrees to make Advances to the Borrower from time to time on any
Business Day prior to the Termination Date in an aggregate amount outstanding
not to exceed at any time such Bank’s Commitment.  Each Borrowing shall be in an aggregate
amount of not less than  $10,000,000
or an integral multiple of $1,000,000 in excess thereof, and shall consist of
Advances of the same Type made to the Borrower on the same day by the Banks
ratably according to their respective Commitments and having the same Interest
Period.  Within the limits of each Bank’s
Commitment, the Borrower may borrow, prepay pursuant to Section 2.06(b) and
reborrow.


 


Section 2.02.Requests
for Advances.  During the Revolving
Period, each Borrowing shall be made on notice, given not later than 11:00 A.M.
(New York City time) (a) in the case of a proposed Borrowing comprised of
Eurodollar Rate Advances, at least three (3) Business Days prior to
the date of the proposed Borrowing, and (b) in the case of a proposed
Borrowing comprised of Base Rate Advances, on the Business Day of the proposed
Borrowing, by the Borrower to the Administrative Agent, which shall give to
each Bank prompt notice thereof by telecopy. 
Each such notice of a Borrowing (a “Notice of Borrowing”) shall
be in writing (including by telecopy), in substantially the form of Exhibit B
hereto, executed by the Borrower.  Each
Notice of Borrowing shall refer to this Agreement and shall specify the
requested (i) date of such Borrowing (which shall be a Business Day), (ii) Type
of Advances comprising such Borrowing, (iii) aggregate principal amount of
such Borrowing, and (iv) Interest Period for such Borrowing.


 


16

















 


Section 2.03.Borrowings;
Advances; Termination of Eurodollar Rate Advances.  (a)  Advances shall be made by the Banks
ratably in accordance with their respective Commitments on the borrowing date
of the Borrowing, provided, however, that the failure of any Bank
to make any Advance shall not in itself relieve any other Bank of its
obligation to lend hereunder.


 


(b)  Each Borrowing
shall be a Eurodollar Rate Borrowing or a Base Rate Borrowing.  Each Bank may at its option make any Eurodollar
Rate Advance by causing the Eurodollar Lending Office of such Bank to make such
Advance, provided, however, that any exercise of such option
shall not affect the obligation of the Borrower to repay such Advance in
accordance with the terms of this Agreement and the applicable Note, if
any.  Advances of more than one (1) interest
rate option may be outstanding at the same time, provided, however,
that the Borrower shall not be entitled to request any Advances which, if made,
would result in an aggregate of more than ten (10) separate Advances
of any Bank being outstanding hereunder at any one time.  For purposes of the foregoing, Advances
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Advances.


 


(c)  Each Bank shall,
before 1:00 P.M. (New York City time) on the borrowing date of each
Borrowing make available at its Applicable Lending Office for the account of
the Administrative Agent at its address referred to in Section 10.02,
in immediately available funds, such Bank’s portion of such Borrowing.  After the Administrative Agent’s receipt of
such funds and upon satisfaction of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available to the Borrower not
later than 2:00 P.M. (New York City time) at such account of the Borrower
as the Borrower shall from time to time designate in a notice delivered to the
Administrative Agent that is reasonably acceptable to the Administrative
Agent.  If the applicable conditions set
forth in Article III to any such Borrowing are not met, the
Administrative Agent shall so notify the Banks making the Advances comprising
such Borrowing and return the funds so received to the respective Banks as soon
as practicable.


 


(d)  Notwithstanding anything in this Agreement
to the contrary:


 


(i) if any Bank shall, at least one (1) Business Day
before the date of any requested Borrowing to be made, notify the
Administrative Agent that the introduction of or any change in or the
interpretation of any law or regulation makes it unlawful, or that any central
bank or other governmental authority asserts that it is unlawful, for such Bank
or its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund Eurodollar Rate Advances hereunder, the
right of the Borrower to select Eurodollar Rate Advances for such Borrowing or
any subsequent Borrowing shall be suspended until such Bank shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist, and except as provided in clause (iv) below, each
Advance comprising such Borrowing shall be a Base Rate Advance;


 


17

















 


(ii) if the Majority Banks shall, on or before the date any
requested Borrowing consisting of Eurodollar Rate Advances is to be made,
notify the Administrative Agent that the Eurodollar Rate for such Eurodollar
Rate Advances will not adequately reflect the cost to such Banks of making
their respective Eurodollar Rate Advances, the right of the Borrower to select
the Eurodollar Rate for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent, at the request of the Majority Banks,
shall notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist, and except as provided in clause (iv) below,
each Advance comprising such Borrowing shall be a Base Rate Advance;


 


(iii) if, under the circumstances referred to in the proviso in
the definition of “Eurodollar Rate” in Section 1.01, the Reference
Banks fail to furnish timely information to the Administrative Agent for
determining the Eurodollar Rate for Eurodollar Rate Advances comprising any
requested Borrowing to be made, (A) the Administrative Agent shall
forthwith notify the Borrower and the Banks that the interest rate cannot be
determined for such Eurodollar Rate Advances, (B) the right of the
Borrower to select Eurodollar Rate Advances for such Borrowing or any
subsequent Borrowing shall be suspended until the Administrative Agent shall
notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist, and (C) each Advance comprising such
Borrowings shall be a Base Rate Advance;


 


(iv) if the Borrower has requested a proposed Borrowing consisting
of Eurodollar Rate Advances and as a result of circumstances referred to in clauses (i) and
(ii) above, such Borrowing would not consist of Eurodollar Rate
Advances, the Borrower may, by notice given reasonably prior to the time of
such proposed Borrowing, cancel such Borrowing, in which case such Borrowing
shall be canceled and no Advances shall be made as a result of such requested
Borrowing; and


 


(v) if the Borrower shall fail to select the duration or continuation
of any Interest Period for any Advances consisting of Eurodollar Rate Advances,
in accordance with the provisions contained in the definition of “Interest
Period”, in Section 1.01 and in this Section 2.03(d),
the Administrative Agent will promptly so notify the Borrower and the Banks and
such Advances will be made available to the Borrower on the date of such
Borrowing as Base Rate Advances.


 


(e)  Each Notice of a
Borrowing shall be irrevocable and binding on the Borrower, except as set forth
in Section 2.03(d)(iv).  In
the case of any Eurodollar Rate Advance requested by the Borrower in a Notice
of Borrowing, the Borrower shall, unless the second following sentence shall be
applicable, indemnify each Bank against any loss, cost or expense incurred by
such Bank if such Eurodollar Rate Advance is not made, including as a result of
any failure to fulfill, on or before the date specified in such Notice 


 


18





















 


of Borrowing for such Borrowing, the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund such Advance to be made by such Bank as
part of such Borrowing when such Advance, as a result of such failure, is not
made on such date.  A certificate in
reasonable detail as to the basis for and the amount of such loss, cost or expense
submitted to the Borrower and the Administrative Agent by such Bank shall be
prima facie evidence of the amount of such loss, cost or expense.  If a Borrowing requested by the Borrower to
be comprised of Eurodollar Rate Advances is not made as a Borrowing comprised
of Eurodollar Rate Advances as a result of Section 2.03(d), the
Borrower shall indemnify each Bank against any loss (excluding loss of
profits), cost or expense incurred by such Bank by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank (prior to the
time such Bank is actually aware that such Borrowing will not be so made), to
fund the Advance to be made by such Bank as part of such Borrowing.  A certificate in reasonable detail as to the
basis for and the amount of such loss, cost or expense submitted to the
Borrower and the Administrative Agent by such Bank shall be prima facie
evidence of the amount of such loss, cost or expense.


 


(f)  Unless the
Administrative Agent shall have received notice from a Bank prior to the date
of any Borrowing that such Bank will not make available to the Administrative
Agent such Bank’s ratable portion of such Borrowing, the Administrative Agent
may assume that such Bank has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with Section 2.02
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower requesting such Borrowing on such date a
corresponding amount.  If and to the
extent that such Bank shall not have so made such ratable portion available to
the Administrative Agent, such Bank and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Bank, the Federal Funds Rate. 
If such Bank shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Bank’s Advance as part of
such Borrowing for purposes of this Agreement.


 


(g)  The failure of any
Bank to make the Advance to be made by it as part of any Borrowing shall not
relieve any other Bank of its obligation, if any, hereunder to make its Advance
on the date of such Borrowing, but no Bank shall be responsible for the failure
of any other Bank to make the Advance to be made by such other Bank on the date
of any Borrowing.


 


Section 2.04.Conversions
and Continuations of Borrowings.  (a) 
Subject to the limitations set forth in Section 2.03(d), the
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (i) not later than 11:00 A.M. (New York City
time) on the last day of the Interest Period therefor, to 


 


19

















 


convert any Borrowing which
constitutes a Eurodollar Rate Borrowing into a Base Rate Borrowing or to
continue any Base Rate Borrowing for an additional Interest Period and (ii) not
later than 10:00 A.M. (New York City time) three (3) Business
Days prior to the date of conversion or continuation, to convert any Borrowing which
constitutes a Base Rate Borrowing into a Eurodollar Rate Borrowing or to
continue any Borrowing constituting a Eurodollar Rate Borrowing for an
additional Interest Period, subject in each case to the following:


 


(A) each conversion or continuation shall be made pro rata among
the Banks in accordance with the respective principal amounts of the Advances
comprising the converted or continued Borrowing;


 


(B) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, the aggregate principal amount of
such Borrowing converted or continued shall be in an amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof;


 


(C) accrued interest on an Advance (or portion thereof) being
converted or continued shall be paid by the Borrower at the time of conversion
or continuation;


 


(D) if any Eurodollar Rate Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Banks pursuant to Section 2.03(e) and
Section 2.06(d) as a result of such conversion;


 


(E) no Interest Period may be selected for any Eurodollar Rate
Borrowing that would end later than the Termination Date;


 


(F) no Default shall have occurred and be continuing at the time
of, or result from, such conversion or continuation; and


 


(G) each such conversion or continuation shall constitute a
representation and warranty by the Borrower and the Guarantor that no Default (i) has
occurred and is continuing at the time of such conversion or continuation, or (ii) would
result from such conversion or continuation.


 


(b)  Each notice
pursuant to Section 2.04(a) shall be irrevocable, shall be in
writing (or telephone notice promptly confirmed in writing) and shall refer to
this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Rate Borrowing or
a Base Rate Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Rate Borrowing,
the Interest Period with respect thereto. 
If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Rate Borrowing, the Borrower
shall be deemed to have selected an Interest Period of one (1) month’s
duration.  The Administrative Agent shall
promptly advise the other Banks of any notice 


 


20

















 


given pursuant to Section 2.04(a) and
of each Bank’s portion of any converted or continued Borrowing.  If the Borrower shall not have given notice
in accordance with Section 2.04(a) to continue any Eurodollar
Rate Borrowing into a subsequent Interest Period (and shall not otherwise have
given notice in accordance with Section 2.04(a) to convert
such Eurodollar Rate Borrowing), such Eurodollar Rate Borrowing shall, at the
end of the Interest Period applicable thereto (unless repaid pursuant to the
terms hereof), automatically be continued for a new Interest Period as a Base
Rate Borrowing.


 


Section 2.05.Optional
Termination and Reduction of the Commitments.  The Borrower shall have the right, upon at
least three (3) Business Days’ notice to the Administrative Agent, to
terminate in whole or reduce in part the unused portions of the Total
Commitment of the Banks, provided that (a) each partial reduction
shall be in the aggregate amount of at least $10,000,000 and in an integral
multiple of $1,000,000 in excess thereof, (b) the aggregate amount of the
Commitments of the Banks shall not be reduced to an amount which is less than
the aggregate principal amount of the Advances then outstanding, and (c) no
Notice of Borrowing has been delivered and is in effect that would result in
Advances being outstanding in an aggregate amount in excess of the Total
Commitment thereafter.  Such notice shall
specify the date and the amount of the reduction or termination of the Total
Commitment.  Any such reduction or
termination of the Total Commitment shall be made ratably among the Banks in
accordance with their respective Commitments and shall be permanent.  Simultaneously with any termination of the
Total Commitment, the Borrower shall pay to the Administrative Agent for the
accounts of the Banks the accrued and unpaid facility fee as set forth in Section 2.09(a).


 


Section 2.06.Repayment
and Prepayment of Advances; Notes. (a)  The Borrower agrees to repay
the Advances in full on the Termination Date.


 


(b)  The Borrower may,
upon at least one (1) Business Day’s notice in respect of Base Rate
Advances, and, in respect of Eurodollar Rate Advances, upon at least
three (3) Business Days’ notice, to the Administrative Agent stating
the proposed date (which shall be a Business Day) and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall,
prepay the outstanding principal amounts of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid and amounts, if
any, required to be paid pursuant to Section 2.11 as a result of
such prepayment, provided, however, that each partial prepayment
pursuant to this Section 2.06(b) shall be in an aggregate
principal amount not less than $10,000,000 and increments of $1,000,000 in
excess thereof and in an aggregate principal amount such that after giving
effect thereto no Borrowing comprised of Base Rate Advances shall have a
principal amount outstanding of less than $5,000,000 and no Borrowing comprised
of Eurodollar Rate Advances shall have a principal amount outstanding of less
than $10,000,000.


 


(c)  Each notice of
prepayment shall specify the prepayment date and the aggregate principal amount
of each Borrowing to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein.  All 


 


21

















 


prepayments under this Section 2.06
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of prepayment.


 


(d)  In the event that
a Bank shall incur any loss or expense (including, without limitation, any loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by the Bank to fund or maintain all or any portion of the
outstanding principal amount of any Advance) as a result of the prepayment of a
Eurodollar Rate Advance or conversion of any Eurodollar Borrowing, on a date
other than the last day of any Interest Period applicable thereto, then the
Borrower shall pay to the Administrative Agent for the account of such Bank, on
demand, such amount as will reimburse the Bank for such loss or expense.  A certificate as to the amount of such loss
or expense setting forth the calculation thereof, submitted by such Bank to the
Borrower and the Administrative Agent, shall be conclusive and binding for all
purposes in the absence of error.


 


(e)  The records
maintained by the Administrative Agent and the Banks shall be prima  facie
evidence of the existence and amounts of the obligations of the Borrower in
respect of the Advances, interest and fees due or accrued hereunder, provided
that the failure of the Administrative Agent or any Bank to maintain such
records or any error therein shall not in any manner affect the obligation of
the Borrower to pay any amounts due hereunder in accordance with the terms of
this Agreement.  Any Bank may request
that Advances made by it be evidenced by a Note.  In such event, the Borrower shall prepare,
execute and deliver to such Bank a Note payable to such Bank.


 


Section 2.07.Interest
on Advances.  (a)  Interest
on Advances.  The Borrower shall pay
interest on the unpaid principal amount of each Advance made by each Bank from
the date of such Advance until such principal amount shall be paid in full, at
the following rates per annum (but subject to the provisions of Section 10.08):


 


(i) if such Advance is a Base Rate Advance, a rate per annum equal
at all times during the Interest Period for such Advance to the Base Rate in
effect from time to time during such Interest Period for such Advance plus the
Applicable Rate in effect from time to time, payable on the last day of such
Interest Period; and


 


(ii) if such Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during the Interest Period for such Advance to the sum
of the Eurodollar Rate for such Interest Period plus the Applicable Rate in
effect from time to time, payable on the last day of such Interest Period and,
if such Interest Period has a duration of more than three (3) months,
on the day which occurs during such Interest Period three (3) months
from the first day of such Interest Period.


 


(b)  Additional
Interest on Eurodollar Rate Advances. 
The Borrower shall pay to each Bank, so long as such Bank shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest 


 


22

















 


on the unpaid principal amount of each
Eurodollar Rate Advance of such Bank, from the date of such Advance until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for
each Interest Period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to one hundred percent
(100%) minus the Eurodollar Rate Reserve Percentage of such Bank for such
Interest Period, payable on each date on which interest is payable on such
Advance.  Such additional interest shall be
determined by such Bank and notified to the Borrower through the Administrative
Agent.  A certificate as to the amount of
such additional interest submitted to the Borrower and the Administrative Agent
by such Bank shall be conclusive and binding for all purposes, absent error.


 


(c)  Payment of
Interest.  All accrued but unpaid
interest on all Advances shall be due and payable on the Interest Payment Dates
related thereto.


 


(d)  Maximum
Interest.  The parties hereto agree
that the sum of (i) interest payable in accordance with this Section 2.07,
plus (ii) the fees payable as provided in Section 2.09 to the
extent they would constitute interest under Applicable Usury Law, plus (iii) other
consideration payable hereunder or under the Notes which constitutes interest
under Applicable Usury Law (whether or not denoted as interest), shall, as more
fully provided in Section 10.08, not exceed the maximum amount
allowed under Applicable Usury Law.


 


Section 2.08.Interest
Rate Determination.  The
Administrative Agent shall give prompt notice to the Borrower and the Banks of
the applicable interest rate for each Eurodollar Rate Advance determined by the
Administrative Agent for purposes of Section 2.07.


 


Section 2.09.Fees.  (a)  Facility Fee.  The Borrower agrees to pay to the
Administrative Agent, for the account of each Bank, a facility fee on such Bank’s
Commitment (regardless of usage) from the date hereof until the Termination
Date in an amount equal to the product of such Bank’s Commitment multiplied by
the Facility Fee Rate therefor (as such rate is set forth under the definition
of the Applicable Rate), payable in arrears in quarterly installments on the
last day of each calendar quarter during the term of such Bank’s Commitment, on
the effective date of any reduction or termination of the Total Commitment
pursuant to Section 2.05 and on the Termination Date.


 


(b)  Administrative
Agent’s Fees.  The Borrower agrees to
pay to the Administrative Agent, for its sole account, the fees separately
agreed upon with the Administrative Agent.


 


Section 2.10.Payments;
Computations; Interest on Overdue Amounts. 


(a)  The Borrower shall make each payment hereunder and under the Notes to
be made by it not later than 11:00 A.M. (New York City time) on the day
when due in U.S. Dollars to the Administrative Agent at its address referred to
in Section 10.02 in same day funds. 
The Administrative Agent will promptly thereafter cause to be
distributed like funds 


 


23

















 


relating to the payment of principal,
interest or fees ratably (other than amounts payable pursuant to Section 2.06(d),
2.07(b), 2.09(b), 2.11, 2.12, 2.14 or 2.15)
to the Banks for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Bank
to such Bank for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement.  In no event shall any Bank be entitled to
share any fees paid to the Administrative Agent pursuant to Section 2.09(b).


 


(b)  All interest and
fees hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Base Rate at times when the Base
Rate is based on JPMCB’s prime rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year), in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable.  Each determination by the Administrative
Agent (or, in the case of Section 2.07(b), by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent error.


 


(c)  Whenever any
payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be, provided,
however, that if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.


 


(d)  Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due by the Borrower to any Bank hereunder that the
Borrower will not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank. 
If and to the extent the Borrower shall not have so made such payment in
full to the Administrative Agent, each Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Administrative Agent,
at the Federal Funds Rate.


 


(e)  Notwithstanding
the foregoing, upon the occurrence and during the continuance of any Default,
the Applicable Rate shall automatically be increased by 2% per annum.


 


Section 2.11.Consequential
Losses on Eurodollar Rate Advances. 
If (a) any payment (or purchase pursuant to Section 2.13)
of principal of any Eurodollar Rate Advance made to the Borrower is made other
than on the last day of an Interest Period relating to such Advance, as a
result of a prepayment pursuant to Section 2.06(b) or 2.14
or acceleration of the maturity of the Advances pursuant to Section 8.01
or for 


 


24

















 


any other reason or as a result of any such
purchase; (b) a Eurodollar Rate Advance is converted pursuant to Section 2.04
at a time other than the end of an Interest Period; or (c) the Borrower
fails to make a principal or interest payment with respect to any Eurodollar
Rate Advance on the date such payment is due and payable, the Borrower shall,
upon demand by any Bank (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Bank any
amounts required to compensate such Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of any such payment or
purchase, including, without limitation, any loss (including loss of reasonably
anticipated profits, except in the case of such a purchase pursuant to Section 2.13),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund or maintain such Advance.


 


Section 2.12.Increased
Costs.  (a)  If, due to the
introduction of or any change (including without limitation, but without
duplication, any change by way of imposition or increase of reserve
requirements included, in the case of Eurodollar Rate Advances, in the
Eurodollar Rate Reserve Percentage) in or in the interpretation, application or
applicability of any law, regulation, guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or making,
funding or maintaining any Eurodollar Rate Advance to the Borrower, then the
Borrower shall from time to time, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Bank additional amounts sufficient to compensate such Bank for
such increased cost.  A certificate as to
the amount of such increased cost, submitted to the Borrower and the
Administrative Agent by such Bank, shall be prima facie evidence of the amount
of such increased cost.  Promptly after
any Bank becomes aware of any such introduction, change or proposed compliance,
such Bank shall notify the Borrower thereof, provided that the failure
to provide such notice shall not affect such Bank’s rights hereunder, except
that such Bank’s right to recover such increased costs from the Borrower for
any period prior to such notice shall be limited to the period of ninety (90)
days immediately prior to the date such notice is given to the Borrower.


 


(b)  If any Bank determines
that the introduction of or any change in any law or regulation or any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank’s Advances or commitment to lend to the
Borrower hereunder and other commitments of this type, then, upon receipt of a
demand by such Bank (with a copy of such demand to the Administrative Agent),
the Borrower shall, within ten (10) days of such demand, notify such
Bank and the Administrative Agent that the Borrower desires to replace such Bank
in accordance with Section 2.13. 
If the Borrower either fails to notify such Bank and the Administrative
Agent in accordance with the prior sentence or fails to replace such Bank
within the time periods specified in Section 2.13, the Borrower
shall promptly pay to the Administrative Agent for the account of such Bank,
from time to time as specified by such Bank, additional amounts sufficient to
compensate


 


25
















 


such Bank or such corporation in the light of
such circumstances, to the extent that such Bank reasonably determines such
increase in capital to be allocable to the existence of such Bank’s commitment
to lend hereunder.  A certificate as to
such amounts submitted to the Borrower and the Administrative Agent by such
Bank shall be conclusive and binding for all purposes, absent error.


 


Section 2.13.Replacement
of Banks.  In the event that (a) any
Bank makes a demand for payment under Section 2.07(b) or Section 2.12,
(b) the Borrower is required to make any payment in respect of Taxes or
Other Taxes pursuant to Section 2.15 or (c) any Bank becomes a
Defaulting Bank, the Borrower may within ninety (90) days of the applicable
event, if no Default then exists, replace such Bank with another commercial
bank, financial institution or other Person in accordance with all of the
provisions of Section 10.06(a) (including execution of an
appropriate Assignment), provided that (i) all obligations of such
Bank to lend hereunder shall be terminated and the Advances payable to such
Bank and all other obligations owed to such Bank hereunder shall be purchased
in full without recourse at par plus accrued interest at or prior to such
replacement, (ii) such replacement shall be reasonably satisfactory to the
Administrative Agent, (iii) if such replacement bank is not already a Bank
hereunder, the Borrower (and, for avoidance of doubt, not the replacement
bank) shall pay to the Administrative Agent an assignment fee of $3,500 in
connection with such replacement, (iv) such replacement shall, from and
after such replacement, be deemed for all purposes to be a “Bank” hereunder
with a Commitment in the amount of the respective Commitment of the assigning
Bank immediately prior to such replacement (plus, if such replacement bank is
already a Bank prior to such replacement, the respective Commitment of such
Bank prior to such replacement), as such amount may be changed from time to
time pursuant hereto, and shall have all of the rights, duties and obligations
hereunder of the Bank being replaced, and (v) such other actions shall be
taken by the Borrower, such Bank and such replacement bank as may be
appropriate to effect the replacement of such Bank with such replacement bank
on terms such that such replacement bank has the same rights, duties and
obligations hereunder as such Bank (including, without limitation, execution
and delivery of new Notes to such replacement bank if such replacement bank
shall so request, redelivery to the Borrower in due course of any Notes payable
to such Bank and specification of the information contemplated by Schedule I
as to such replacement bank).


 


Section 2.14.Illegality
and Unavailability.  (a) 
Notwithstanding any other provision of this Agreement, if any Bank shall notify
the Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is  unlawful, for such Bank or its Applicable
Lending Office to make any Eurodollar Rate Advance or to continue to fund or
maintain any Eurodollar Rate Advance hereunder, then, on notice thereof to the
Borrower by the Administrative Agent,


 


(i) the obligation of such Bank to make any Eurodollar Rate
Advance shall be suspended until the Administrative Agent shall notify the
Borrower and the Bank that the circumstances causing such suspension no longer
exist, and


 


26

















 


(ii) the Eurodollar Rate Advances then outstanding of such Bank,
together with all accrued interest thereon and all amounts payable pursuant to Section 2.11,
shall be automatically converted to Base Rate Advances, or, at the option of
the Borrower, prepaid in full, unless such Bank shall determine in good faith
in its sole opinion that it is lawful to maintain such Advances made by such
Bank to the end of the Interest Period then applicable thereto.


 


(b) 
If, with respect to any conversion of a Base Rate Advance to a Eurodollar Rate
Advance or the continuation of any Eurodollar Rate Advance pursuant to Section 2.04:


 


(i) the Administrative Agent is unable to determine the Eurodollar
Rate for the applicable Eurodollar Rate Advance in accordance with the
definition of such term (including as a result of the failure of the Reference
Banks to furnish timely information to the Administrative Agent); or


 


(ii) the Majority Banks advise the Administrative Agent that the
Eurodollar Rate as determined by the Administrative Agent will not adequately
and fairly reflect the cost to such Banks of maintaining the applicable
Eurodollar Rate Advance;


 


then the Administrative
Agent forthwith shall give notice thereof to the Borrower and the Banks,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
the Banks to convert or continue after the current Interest Period(s) any
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist.


 


Section 2.15.Taxes.  (a)  Any and all payments by the
Borrower or the Guarantor hereunder or under the Notes or any other Credit
Document shall be made in accordance with Section 2.10, and subject
to Sections 2.15(c), 2.15(e) and 2.16, free and clear
of and without deduction for any and all taxes, levies, imposts, deductions,
charges or withholdings with respect thereto, and all liabilities with respect
thereto, including any interest, additions to tax or penalties applicable
thereto, excluding in the case of each Bank and the Administrative Agent (i) taxes
imposed directly or indirectly on or measured by its income, and franchise
taxes imposed on it in lieu of net income taxes, by any jurisdiction (or
political subdivision thereof) under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or, in the case of
a Bank, maintains a lending office and at which such Bank now or hereafter does
business, and (ii) United States of America income taxes (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as “Taxes”).  If the Borrower or the Guarantor shall be
required by law to deduct any Taxes from or in respect of any sum payable by it
hereunder or under any Note or other Credit Document to any Bank or the
Administrative Agent, (x) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions 


 


27

















 


applicable to additional sums payable under
this Section 2.15) such Bank or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (y) the Borrower or the Guarantor, as the case
may be, shall make such deductions and (z) the Borrower or the Guarantor,
as the case may be, shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.


 


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


 


(c)  Within
thirty (30) days after the date of the payment of Taxes by or at the
direction of the Borrower or the Guarantor, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 10.02,
the original or a certified copy of a receipt evidencing payment thereof.  If a Bank receives from the relevant
jurisdiction imposing such Tax a refund of a specific Tax item for which it has
been indemnified by the Borrower with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall pay the
Borrower an amount equal to such refund, together with any interest paid by
such jurisdiction with respect to such refund, provided that the
Borrower, upon the request of such Bank, agrees to promptly repay the amount
(or portion thereof) paid over to the Borrower by such Bank in the event such
Bank is required to repay the refund (or portion thereof) to such jurisdiction.


 


(d)  Without prejudice
to the survival of any other agreement of the Borrower or the Guarantor
hereunder, the agreements and obligations of the Borrower and the Guarantor
contained in this Section 2.15 shall survive the payment in full of
principal and interest hereunder and under the Notes and other Credit
Documents.


 


(e)  Each Bank that is
organized under the laws of any jurisdiction other than the United States of
America or any state or political subdivision thereof (for purposes of this Section 2.15(e),
each a “Non-U.S. Bank”) shall deliver to the Borrower and the
Administrative Agent on or prior to the date of this Agreement or upon the
effectiveness of any Assignment, or at such other times prescribed by
applicable law, (i) two (2) properly completed and signed originals
of United States of America Internal Revenue Service form W-8BEN or W-8ECI, as
appropriate, or any successor applicable form, as the case may be, certifying
that such Bank is entitled to benefits under an income tax treaty to which the
United States is a party that eliminates or reduces the rate of withholding tax
on payments under this Agreement and the other Credit Documents or certifying
that the income receivable pursuant to this Agreement and the other Credit
Documents is effectively connected with the conduct of a trade or business in
the United States, or (ii) if such Non-U.S. Bank is not a “bank” or other
Person described in Code Section 881(c)(3), two properly completed and
signed originals of a statement substantially in the form of Exhibit E
hereto, together with two properly completed and 


 


28

















 


signed originals of Internal Revenue Service
form W-8BEN, upon which the Borrower is entitled to rely, from any such
Non-U.S. Bank or any successor applicable form, together with any other
certificate or statement of exemption or reduction required under the Code, in
order to establish that such Non-U.S. Bank is entitled to treat the interest
payments under this Agreement and the other Credit Documents as portfolio
interest that is exempt from withholding tax under the Code.  Thereafter, upon the reasonable request of
the Borrower or the Administrative Agent, each such Non-U.S. Bank shall (A) upon
the obsolescence of any form previously delivered by such Non-U.S. Bank,
promptly submit to the Administrative Agent and the Borrower such additional
properly completed and signed originals of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to qualify for a deduction in United States withholding taxes, or
such evidence as is satisfactory to the Borrower and the Administrative Agent
of an available exemption from United States withholding taxes, in respect of
all payments to be made to such Non-U.S. Bank by the Borrower pursuant to the
Credit Documents, and (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption.  A Non-U.S. Bank shall not be
required to deliver any form or statement pursuant to this Section 2.15
that such Non-U.S. Bank is not legally able to deliver.  The Borrower shall not be required to pay
additional amounts to any Bank pursuant to this Section 2.15 to the
extent that such Bank did not qualify for a complete exemption from United
States withholding taxes at the time such Bank became a party to this agreement
and to the extent that the obligation to pay additional amounts would not have
arisen but for the failure of such Bank to comply with this paragraph (e),
except to the extent such Bank is not able to comply as a result of a change in
law.  Any assignee of all or any portion
of any Bank’s rights and obligations under this Agreement shall be subject to
this Section 2.15(e).


 


(f)  Upon the
reasonable request of the Borrower, any Bank claiming any additional amounts
payable pursuant to this Section 2.15 shall use its reasonable
efforts (consistent with its internal policies and requirements of law) to
change the jurisdiction of its Applicable Lending Office if such a change would
reduce any such additional amounts (or any similar amount that may thereafter
accrue) and would not, in the sole determination of such Bank, be otherwise
disadvantageous to such Bank.


 


(g)  The Borrower or
the Guarantor shall indemnify the Administrative Agent and each Bank, within 10
days after written demand therefor, for the full amount of any Taxes or Other
Taxes paid by the Administrative Agent or such Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
or the Guarantor under this Section 2.15.


 


Section 2.16.Payments
Pro Rata.  Except as provided in Sections
2.06(d), 2.07(b), 2.09(b), 2.11, 2.12, 2.14
or 2.15, each of the Banks agrees that if it should receive any payment
(whether by voluntary payment, by realization upon security, by the exercise of
the right of setoff or banker’s lien, by counterclaim or cross action, by the
enforcement of any right under this Agreement or the Notes or other Credit
Documents, or otherwise) in respect of any obligation of the Borrower or
Guarantor hereunder or 


 


29

















 


under the Notes or other Credit Documents of
a sum which with respect to the related sum or sums received by other Banks is
in a greater proportion than the total amount of principal, interest, fees or
any other obligation incurred hereunder, as the case may be, then owed and due
to such Bank bears to the total amount of principal, interest, fees or any such
other obligation then owed and due to all of the Banks immediately prior to
such receipt, then such Bank receiving such excess payment shall purchase for
cash without recourse from the other Banks an interest in the obligations of
the Borrower to such Banks in such amount as shall result in a proportional
participation by all of the Banks in the aggregate unpaid amount of principal,
interest, fees or any such other obligation, as the case may be, owed to all of
the Banks, provided that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each other
Bank shall be rescinded and each such other Bank shall repay to the purchasing
Bank the purchase price to the extent of such other Bank’s ratable share
(according to the proportion of (i) the amount of the participation
purchased from such other Bank as a result of such excess payment to (ii) the
total amount of such excess payment) of such recovery together with an amount
equal to such other Bank’s ratable share (according to the proportion of (a) the
amount of such other Bank’s required repayment to (b) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered.  The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of the Borrower in the amount of such
participation.


 


Section 2.17.Increase
in Commitments.  The Borrower may at
any time and from time to time, by written notice to the Administrative Agent
(which shall promptly deliver a copy to the Banks) executed by the Borrower and
one or more financial institutions (any such financial institution referred to
in this Section being called an “Increasing Bank”), which may
include any Bank, cause the Commitments of the Increasing Banks to be increased
(or cause the Increasing Banks to extend new Commitments) in an amount for each
Increasing Bank (which shall not be less than $5,000,000) set forth in such
notice, provided that (i) no Bank shall have any obligation to
increase its Commitment pursuant to this paragraph, (ii) all new
Commitments and increases in existing Commitments becoming effective under this
paragraph during the term of this Agreement shall not exceed $85,000,000 in the
aggregate, (iii) each Increasing Bank, if not already a Bank hereunder,
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld) and (iv) each Increasing Bank, if not
already a Bank hereunder, shall become a party to this Agreement by completing
and delivering to the Administrative Agent a duly executed accession agreement
in a form reasonably satisfactory to the Administrative Agent and the Borrower
(an “Accession Agreement”).   New
Commitments and increases in Commitments shall become effective on the date
specified in the applicable notices delivered pursuant to this Section 2.17.  Upon the effectiveness of any Accession
Agreement to which any Increasing Bank is a party, such Increasing Bank shall
thereafter be deemed to be a party to this Agreement and shall be entitled to
all rights, benefits and privileges accorded a Bank hereunder and subject to
all obligations of a Bank hereunder.  


 


30

















 


Notwithstanding the foregoing, no increase in
the Commitments (or in the Commitment of any Bank) pursuant to this paragraph
shall become effective unless (i) the Administrative Agent shall have
received documents consistent with those delivered under Section 3.01(a)(ii) through
(v), giving effect to such increase and (ii) on the effective date
of such increase, the representations and warranties of the Borrower set forth
in this Agreement shall be true and correct in all material respects and no
Default shall have occurred and be continuing, and the Administrative Agent
shall have received a certificate to that effect dated such date and executed
by a Financial Officer of the Borrower. 
On the effective date of any increase in the Commitments pursuant to
this Section 2.17, to the extent there are outstanding Advances,
the parties hereto shall implement such arrangements as may be agreed upon by
the Borrower and the Administrative Agent to ensure that the proportion between
the Banks’ outstanding Advances, after giving effect to such increase, and
their respective Commitments, after giving effect to such increase, will be
re-established, and the effectiveness of such increase shall be conditioned on
the implementation of such arrangements.


 


Section 2.18.Defaulting
Banks.  (a)  Notwithstanding any
provision of this Agreement to the contrary, if one or more Banks become
Defaulting Banks, then, upon notice to such effect by the Administrative Agent
(which notice shall be given promptly after the Administrative Agent becomes
aware that any Bank shall have become a Defaulting Bank), the following
provisions shall apply for so long as any such Bank is a Defaulting Bank:


 


(i) the facility fee shall not accrue on the unused portion of the
Commitment of any Defaulting Bank pursuant to Section 2.09(a);


 


(ii) the Commitment and Advances of each Defaulting Bank shall be
disregarded in determining whether the Majority Banks shall have taken any
action hereunder or under any other Credit Document (including any consent to
any amendment, modification, termination or waiver pursuant to Section 10.01,
provided, however, that no such amendment, waiver or consent
shall do any of the following without the consent of such Defaulting Bank
except to the extent provided in clauses (i) and (iii) of
this Section 2.18(a):  (A) increase
the Commitment of such Defaulting Bank or subject such Defaulting Bank to any
additional obligations, (B) reduce the principal of, or interest on, the
Advances of such Defaulting Bank or any fees or other amounts payable to such
Defaulting Bank hereunder, (C) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder to such Defaulting Bank, (D) release the Guarantor or otherwise
change any obligation of the Guarantor to pay any amount payable by the
Guarantor hereunder to such Defaulting Bank or (E) amend this Section 2.18(a)(ii));
and


 


(iii) any amount payable to or for the account of any Defaulting
Bank in its capacity as a Bank hereunder (whether on account of principal,
interest, fees or otherwise, and including any amounts payable to such 


 


31

















 


Defaulting
Bank pursuant to Section 2.16, but excluding any amounts payable to
such Defaulting Bank pursuant to Section 2.13 or 10.04)
shall, in lieu of being distributed to such Defaulting Bank, be retained by the
Administrative Agent in a segregated account and, subject to any applicable
requirements of law, (A) be applied, at such time or times as may be
determined by the Administrative Agent, (1) first, to the payment of any
amounts owing by such Defaulting Bank to the Administrative Agent hereunder,
and (2) second, to the funding of such Defaulting Bank’s ratable share of
any Borrowing in respect of which such Defaulting Bank shall have failed to
fund such share as required hereunder, (B) to the extent not applied as
aforesaid, be held, if so determined by the Administrative Agent, as cash
collateral for funding obligations of such Defaulting Bank in respect of future
Borrowings hereunder and (C) to the extent not applied or held as
aforesaid, be distributed to such Defaulting Bank or as otherwise directed by a
court of competent jurisdiction.


 


(b)  In the event the
Administrative Agent and the Borrower shall have agreed that a Bank that is a
Defaulting Bank has adequately remedied all matters that caused such Bank to
become a Defaulting Bank, then (i) such Bank shall cease to be a
Defaulting Bank for all purposes hereof, and (ii) such Bank shall purchase
at par such of the Advances of the other Banks as the Administrative Agent
shall determine to be necessary in order for the Advances to be held by the
Banks ratably in accordance with their Commitments.


 


ARTICLE
III


 


CONDITIONS


 


Section 3.01.Conditions
Precedent to Effectiveness.  The
obligations of the Banks to make Advances hereunder shall become effective upon
the satisfaction of all of the following conditions precedent:


 


(a) Documentation. 
The Administrative Agent shall have received the following duly executed
by all the parties thereto, in form and substance satisfactory to the
Administrative Agent and the Banks, and (except for the Notes) in sufficient
copies for each Bank:


 


(i) this Agreement duly executed by the Borrower, the Guarantor,
each Bank and the Administrative Agent;


 


(ii) a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) the Borrower’s certificate of incorporation
and by-laws, (B) the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and any Notes and (C) that a
true, correct and complete copy of the resolutions of the Borrower’s Board
authorizing the transactions contemplated hereby is attached thereto and that such
resolutions are in full force and effect;


 


32

















 


(iii) a certificate of the Secretary or an Assistant Secretary of
the Guarantor certifying (A) the Guarantor’s certificate of incorporation
and by-laws, (B) the names and true signatures of the officers of the
Guarantor authorized to sign this Agreement and (C) that a true, correct
and complete copy of the resolutions of the Guarantor’s Board authorizing the
making and performance of this Agreement by the Guarantor is attached hereto
and that such resolutions are in full force and effect;


 


(iv) a favorable opinion of Jackson Walker L.L.P., legal counsel
for each of the Borrower and the Guarantor, dated the Effective Date,
substantially in the form of Exhibit D hereto; and


 


(v) certificates or telecopy confirmation as of a date reasonably
close to the date hereof from the Secretary of State of the state of
incorporation of each of the Borrower and the Guarantor as to the existence and
good standing of the Borrower and the Guarantor, as applicable.


 


(b) No Material Adverse Change.  No event or events which have or would
reasonably be expected to have a Material Adverse Effect shall have occurred
since December 24, 2008.


 


(c) No Default.  No
Default or event which, with the giving of notice, the lapse of time or both,
would constitute a Default shall have occurred and be continuing.


 


(d) Representations and Warranties.  The representations and warranties contained
in Article V hereof shall be true and correct in all material
respects on and as of the Effective Date, except to the extent that such
representations and warranties refer to an earlier date, in which case they
shall be true and correct in all material respects on and as of such earlier
date.


 


(e) No Material Litigation. 
No legal or regulatory action or proceeding shall have commenced and be
continuing against the Borrower or any of its Subsidiaries since the date of
this Agreement which has, or would reasonably be expected to have, a Material
Adverse Effect.


 


(f) Fees and Expenses. 
The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Effective Date, including fees, charges and
disbursements of counsel and all other out of pocket fees and expenses required
to be paid or reimbursed by the Borrower (which fees, charges and disbursements
of counsel and such other out of pocket fees and expenses shall be limited to
those for which invoices have been submitted prior to the Effective Date).


 


(g) Certification.  The
Administrative Agent shall have received a certificate, dated the Effective
Date and signed by a Financial Officer, confirming compliance with the
conditions set forth in paragraphs (b), (c), (d) and (e) of this
Section 3.01.


 


33

















 


(h) Patriot Act.  The
Banks shall have received all information required by the Patriot Act,
including the identity of the Borrower, the name and address of the Borrower
and other information that will allow the Administrative Agent or any Bank, as
applicable, to identify the Borrower in accordance with the Patriot Act.


 


Section 3.02.Conditions
Precedent to Each Borrowing.  The
obligation of each Bank to make an Advance on the occasion of any Borrowing
shall be subject to the further conditions precedent that on the date of such
Borrowing (a) in the case of the initial Borrowing the Administrative
Agent shall have received evidence satisfactory to it that the commitments of
the lenders under the Existing Credit Agreement have been terminated and that
all amounts owing under the Existing Credit Agreement have been paid in full or
will be paid in full simultaneously with the making of (or out of the proceeds
of) the initial Borrowing, including without limitation such amounts (if any)
as may be required to compensate each Bank for any break-funding costs
resulting from such payment, (b) the Administrative Agent shall have
received a Notice of Borrowing in accordance with Section 2.02 and (c) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that
on the date of such Borrowing such statements are true):


 


(i) the representations and warranties contained in Article V
are true and correct in all material respects on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
except to the extent that such representations and warranties refer to an
earlier date, in which case they shall be true and correct in all material
respects on and as of such earlier date;


 


(ii) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, which
constitutes or with the giving of notice, the lapse of time or both, would
constitute a Default; and


 


(iii) after giving effect to such Borrowing and all other
Borrowings which have been requested on or prior to such date but which have
not been made prior to such date, the aggregate principal amount of all
Borrowings will not exceed the aggregate of the Commitments.


 


Section 3.03.Administrative
Agent.  The Administrative Agent
shall notify the Borrower and the Banks of the Effective Date, and such notice
shall be conclusive and binding.  The
Administrative Agent shall be entitled to assume that the conditions set forth
in Sections 3.01(b), 3.01(c), 3.01(d), 3.01(e), 3.02(c)(i) and
3.02(c)(ii) have been satisfied unless the Administrative Agent has
received, at its address specified herein, actual written notice to the
contrary from the Borrower, the Guarantor or a Bank.


 


34

















 


ARTICLE
IV


 


GUARANTY


 


Section 4.01.Guaranty.  The Guarantor hereby unconditionally
guarantees the punctual payment of the Guaranteed Obligations when due, whether
at stated maturity, by acceleration or otherwise, and agrees to pay any and all
reasonable expenses (including counsel fees and expenses) incurred by the
Administrative Agent or any Bank in enforcing any rights hereunder.  Without limiting the generality of the
foregoing, the Guarantor’s liability shall extend to all amounts which constitute
part of the Guaranteed Obligations and would be owed by the Borrower under this
Agreement or any of the Notes but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.  The
guaranty set forth in this Article IV is a guaranty of payment and
not of collection.


 


Section 4.02.Payment.  At the time the Guarantor pays any sum which
may become due to the Administrative Agent for the benefit of a Bank under the
terms of this Article IV, written notice of such payment shall be
delivered to the Administrative Agent by the Guarantor, and in the absence of
such notice, any sum received by the Administrative Agent on behalf of a Bank
on account of any of the Guaranteed Obligations shall be conclusively deemed
paid by the Borrower.  All sums paid to
the Administrative Agent, on behalf of a Bank, by the Guarantor may be applied
by the Administrative Agent, on behalf of a Bank, at its discretion, to any of
the Guaranteed Obligations.


 


Section 4.03.Waiver.  The Guarantor hereby waives all notices in
connection herewith or in connection with the Guaranteed Obligations,
including, without limitation, notice of intent to accelerate and notice of
acceleration, and waives diligence, presentment, demand, protest, and suit on
the part of the Administrative Agent or any Bank in the collection of any of
the Guaranteed Obligations, and agrees that neither the Administrative Agent
nor any Bank shall be required to first endeavor to collect any of the
Guaranteed Obligations from the Borrower, or any other party liable for payment
of the Guaranteed Obligations (hereinafter referred to as an “Obligated
Party”), before requiring Guarantor to pay the full amount of the
Guaranteed Obligations.  Without
impairing the rights of the Administrative Agent or any Bank against the
Guarantor, the Borrower or any other Obligated Party, suit may be brought and
maintained against the Guarantor at the election of the Administrative Agent or
any Bank with or without joinder of the Borrower, or any other Obligated Party,
any right to any such joinder being hereby waived by the Guarantor.


 


Section 4.04.Acknowledgments
and Representations.  The Guarantor
acknowledges and represents to the Administrative Agent and each Bank that it
is receiving direct and indirect financial and other benefits as a result of
this Article IV; represents to the Administrative Agent and each
Bank that after giving effect to this Article IV and the contingent
obligations evidenced hereby it is, and will be, Solvent; acknowledges that it
will derive substantial direct and indirect benefit from the transactions
contemplated by this Agreement; acknowledges that its liability hereunder


 


35
















 


shall be cumulative and in addition to any
other liability or obligation to the Administrative Agent and each Bank,
whether the same is incurred through the execution of a note, a similar
guaranty, through endorsement, or otherwise; acknowledges that neither the
Administrative Agent, any Bank nor any officer, employee, agent, attorney or
other representative of any of them has made any representation, warranty or
statement to the Guarantor to induce it to execute this Agreement; and
acknowledges that it has made its own credit analysis and decision to enter
into this Agreement and undertake the guaranty set forth in this Article IV.


 


Section 4.05.Subordination.  Notwithstanding anything to the contrary
contained herein, any right, claim or action which the Guarantor may have
against the Borrower or any other Obligated Party arising out of or in
connection with the guaranty set forth in this Article IV or any
other document evidencing or securing the Guaranteed Obligations, including,
without limitation, any right or claim of subrogation, contribution,
reimbursement, exoneration or indemnity, shall be subordinated to the prior
payment in full of any amounts then due under this Agreement or the Notes.  If any amount shall be paid to the Guarantor
on account of any such subrogation, reimbursement, exoneration or indemnity
notwithstanding the foregoing subordination, such amount shall be held in trust
for the benefit of the Banks and shall forthwith be paid to the Administrative
Agent to be credited and applied upon the Guaranteed Obligations then due.


 


Section 4.06.Guaranty
Absolute.  The Guarantor hereby
agrees that its obligations under this Agreement shall be absolute and
unconditional, irrespective of (a) the validity or enforceability of the
Guaranteed Obligations or of the Notes, or any other Credit Document evidencing
all or any part of the Guaranteed Obligations, (b) the absence of any
attempt to collect the Guaranteed Obligations from the Borrower or any other
Obligated Party or other action to enforce the same, (c) the waiver or
consent by the Administrative Agent and/or any Bank with respect to any
provision of any instrument evidencing the Guaranteed Obligations, or any part
thereof, or any other agreement now or hereafter executed by the Borrower and
delivered to the Administrative Agent and/or any Bank, (d) the surrender,
release, exchange, or alteration by the Administrative Agent and/or any Bank of
any security or collateral for the Guaranteed Obligations, or (e) any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.


 


Section 4.07.No
Waiver; Remedies.  No failure on the
part of the Administrative Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


Section 4.08.Continuing
Guaranty.  The guaranty set forth in
this Article IV is a continuing guaranty and shall (a) remain
in full force and effect until the later of (i) the payment in full of the
Guaranteed Obligations and all other amounts payable under this guaranty and (ii) the
expiration or termination of the Commitment of each Bank, (b) be binding
upon the Guarantor, its successors and assigns, (c) inure to the 


 


36

















 


benefit of, and be enforceable by, the
Administrative Agent and each of the Banks and their respective successors,
transferees and assigns, and (d) not be terminated by the Guarantor or the
Borrower.


 


Section 4.09.Limitation.  Notwithstanding any other provision of this Article IV,
the Guarantor’s liability hereunder shall be limited to the lesser of the
following amounts minus, in either case, $100.00:


 


(a) the lowest amount which would render the guaranty pursuant to
this Article IV a fraudulent transfer under Section 548 of the
Bankruptcy Code (11 U.S.C. § 101 et seq.); or


 


(b) if the guaranty pursuant to this Article IV is
subject to the UFTA or the UFCA or any similar or analogous statute or rule of
law, then the lowest amount which would render the guaranty pursuant to this Article IV
a fraudulent transfer or fraudulent conveyance under the UFTA, the UFCA, or any
such similar or analogous statute or rule of law.


 


The amount of the limitation
imposed upon the Guarantor’s liability under the terms of the preceding
sentence shall be subject to redetermination as of each date a “transfer” is
deemed to have been made on account of the Guaranty pursuant to this Article IV
under applicable law.


 


Section 4.10.Effect
of Bankruptcy.  In the event that,
pursuant to any insolvency, bankruptcy, reorganization, receivership or other
debtor relief law, or any judgment, order or decision thereunder, any Bank must
rescind or restore any payment, or any part thereof, received by such Bank in
satisfaction of the Guaranteed Obligations, any prior release or discharge from
the terms of the guaranty set forth in this Article IV given to the
Guarantor by the Banks shall be without effect, and the guaranty set forth in
this Article IV shall remain in full force and effect.  It is the intention of the Guarantor that its
obligations hereunder shall not be discharged except by its performance of such
obligations and then only to the extent of such performance.


 


ARTICLE
V


 


REPRESENTATIONS
AND WARRANTIES


 


Each of the Borrower and the Guarantor represents
and warrants as follows:


 


Section 5.01.Corporate
Existence.  Each of the Borrower and
the Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of its respective state of incorporation.  Each of the Borrower and the Guarantor has
all corporate powers and all governmental licenses, authorizations,
certificates, consents and approvals required to carry on its business as now
conducted except where the failure to comply does not or would not reasonably
be expected to have a Material Adverse Effect. 
Each Significant Subsidiary is a Person duly organized, validly existing
and in good standing under the laws of its jurisdiction of formation.  Each Significant 


 


37

















 


Subsidiary has all corporate powers and all
governmental licenses, authorizations, certificates, consents and approvals
required to carry on its business as now conducted except where the failure to
comply does not and would not reasonably be expected to have a Material Adverse
Effect.


 


Section 5.02.Corporate
Power.  The execution, delivery and
performance by the Borrower and the Guarantor of the Credit Documents to which
each is a party and the consummation of the transactions contemplated by such
Credit Documents are within the Borrower’s and the Guarantor’s corporate
powers, respectively, have been duly authorized by all necessary corporate
action, do not contravene (a) the Borrower’s or the Guarantor’s
Certificate of Incorporation or Bylaws or (b) any law or any contractual
restriction binding on or affecting the Borrower or the Guarantor and will not
result in or require the creation or imposition of any Lien prohibited by this
Agreement.  At the time of each
Borrowing, such Borrowing and the use of the proceeds of such Borrowing will be
within the Borrower’s corporate powers, will have been duly authorized by all
necessary corporate action, will not contravene (i) the Borrower’s
Certificate of Incorporation or Bylaws or (ii) any law or any contractual
restriction binding on or affecting the Borrower and will not result in or
require the creation or imposition of any Lien prohibited by this Agreement.


 


Section 5.03.Enforceable
Obligations.  This Agreement has been
duly executed and delivered by the Borrower and the Guarantor.  This Agreement is the legal, valid and
binding obligation of the Borrower and the Guarantor enforceable against the
Borrower and the Guarantor, respectively, in accordance with its terms, except
as such enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights
generally.  The Notes are the legal,
valid and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors’ rights generally.  The making and
performance by the Borrower and the Guarantor of this Agreement and the other
Credit Documents do not require any license, consent or approval of,
registration with, or any other action by, any governmental authority.


 


Section 5.04.Financial
Statements.  (a)  The
Consolidated balance sheet of the Borrower and its Subsidiaries as of June 25,
2008 and the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, as included in an SEC Filing which has been
furnished to each Bank, fairly present the Consolidated financial condition of
the Borrower and its Subsidiaries as of such date and the Consolidated results
of operations of the Borrower and its Subsidiaries ended on such date, in
accordance with GAAP, except as disclosed therein or on Schedule V
to this Agreement.


 


(b)  Since December 24,
2008 and except as disclosed in an SEC Filing which has been delivered to each
Bank prior to the date of this Agreement or on a 


 


38

















 


Schedule to this Agreement, no event which
has or would reasonably be expected to have a Material Adverse Effect has
occurred.


 


Section 5.05.Litigation.  There is no pending or, to the knowledge of
the Borrower or the Guarantor, threatened action or proceeding affecting the
Borrower or any of its Significant Subsidiaries before any court, governmental
agency or arbitrator, which has, or would reasonably be expected to have, a
Material Adverse Effect.


 


Section 5.06.Margin
Stock; Use of Proceeds.  Neither the
Borrower nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation T, U or X issued by the Board of Governors of the
Federal Reserve System and except in connection with employee plans disclosed
to the Administrative Agent), and no proceeds of any Advance will be used for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any such margin stock under such circumstances as to involve the Borrower, the
Guarantor, any of their Subsidiaries or any Bank in a violation of
Regulation U.  None of the Borrower,
the Guarantor or any of their Subsidiaries will use the proceeds of any Advance
for the purpose of acquiring or attempting to acquire control of any Person
which is obligated to make SEC Filings unless such acquisition or attempted
acquisition (a) is pursuant to an agreement with such Person, or (b) is
not resisted by such Person.


 


Section 5.07.Investment
Company Act.  Neither the Borrower
nor any of its Subsidiaries is an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of
1940, as amended.


 


Section 5.08.ERISA.  The Borrower and its Subsidiaries are in
compliance with the applicable provisions of ERISA, except to the extent that
non-compliance thereunder does not have and would not reasonably be expected to
have a Material Adverse Effect.  Neither
the Borrower nor any of its Subsidiaries has incurred any Insufficiency or any
material liability to the PBGC in connection with any Plan established or
maintained by the Borrower or such Subsidiaries which would have, or would
reasonably be expected to have, a Material Adverse Effect.


 


Section 5.09.Taxes.  As of the date of this Agreement, the United
States of America federal income tax returns of the Borrower and its
Subsidiaries have been examined through the fiscal year ended June 25,
2005.  The Borrower and its Significant
Subsidiaries have filed all United States of America Federal income tax returns
and all other material domestic tax returns which are required to be filed by
them and have paid, or provided for the payment before the same become
delinquent of, all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any such Significant Subsidiary, other
than those taxes (a) contested in good faith by appropriate proceedings or
(b) the nonpayment of which does not have, and would not reasonably be
expected to have a Material Adverse Effect. 
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes are adequate in the aggregate.


 


39

















 


Section 5.10.Environmental
Condition.  To the best of Borrower’s
knowledge, the Borrower and its Subsidiaries are in compliance with all
Environmental Protection Statutes except to the extent that failure to comply
does not have, and would not reasonably be expected to have, a Material Adverse
Effect.


 


Section 5.11.Ownership
of Guarantor.  On the date hereof the
Borrower owns, directly or indirectly, 100% of the issued and outstanding
voting stock of the Guarantor.


 


Section 5.12.Solvency.  Each of the Borrower and the Guarantor is,
and after giving effect to the making of the Advances and to the application of
the proceeds therefrom will be, Solvent.


 


Section 5.13.Disclosure.  Neither the Confidential Information
Memorandum nor any of the other reports, financial statements or certificates
furnished by or on behalf of the Borrower to the Administrative Agent, the
Joint Lead Arrangers or the Banks in connection with the negotiation of this
Agreement or any other Credit Document or furnished hereunder or thereunder
(taken together as a whole and as modified or supplemented by other information
so furnished) contains or will contain any material misstatement of fact or
omits or will omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
materially misleading as of the date thereof and except as disclosed in an SEC
Filing which has been delivered to each Bank on or before the date of this
Agreement or on a Schedule to this Agreement, provided that, with
respect to forecasts or projected financial information, the Borrower
represents only that such information was or will be prepared in good faith
based upon assumptions believed by it to be reasonable as of the date thereof
and except as disclosed in an SEC Filing which has been delivered to each Bank
on or before the date of this Agreement or on a Schedule to this Agreement.


 


ARTICLE
VI


 


AFFIRMATIVE
COVENANTS


 


So long as any Advance shall
remain unpaid or any Bank shall have any Commitment hereunder, unless the
Majority Banks shall otherwise consent in writing:


 


Section 6.01.Compliance
with Laws, Etc.  Each of the Borrower
and the Guarantor will comply, and Borrower will cause each Significant
Subsidiary to comply, in all material respects with all applicable laws
(including, without limitation, ERISA and applicable Environmental Protection
Statutes), rules, regulations and orders, subject to the exceptions provided
elsewhere in this Agreement in provisions relating to laws, rules, regulations
and orders of the nature referenced therein and except where the failure to
comply (a) is contested in good faith by appropriate proceedings or (b) does
not have, and would not reasonably be expected to have, a Material Adverse
Effect.


 


40

















 


Section 6.02.Reporting
Requirements.  The Borrower and/or the Guarantor
will furnish to each of the Banks:


 


(a) As soon as possible and in any event within five (5) days
after a Financial Officer of the Borrower or Guarantor obtains knowledge of a
Default or an event which, with the giving of notice, the lapse of time or
both, would constitute a Default, which shall have occurred and is continuing
on the date of such statement, a statement of a Financial Officer, setting
forth the details of such Default or event and the actions, if any, which the
Borrower has taken and proposes to take with respect thereto.


 


(b) Promptly after they are available, and in any event within
sixty (60) days after the end of each of the first three (3) quarters
of each fiscal year of the Borrower, Consolidated financial statements of the
Borrower and its Consolidated Subsidiaries for such quarter showing on a
Consolidated basis the financial position, results of operations and cash flows
as of the end of and for the thirteen (13) week period of such quarter and for
the period from the beginning of the fiscal year to the end of such quarter, in
each case setting forth the comparable information for the comparable period in
the preceding fiscal year, and accompanied by a certificate of a Financial
Officer to the effect that such financial statements present fairly in all
material respects the Consolidated financial position, results of operations
and cash flows of the Borrower and its Consolidated Subsidiaries as of the end
of and for the respective period in conformity with GAAP, subject to year-end
audit adjustments and the absence of certain notes.  For any such fiscal quarter the foregoing
requirements may be satisfied by the delivery of the Borrower’s SEC Filing on Form l0-Q
for such quarter.


 


(c) Promptly after they are available, and in any event within
ninety (90) days after the end of each fiscal year of the Borrower,
Consolidated financial statements of the Borrower and its Consolidated
Subsidiaries for the fifty-two/fifty-three week period of such fiscal year
showing the financial position, results of operations and cash flows as of the
end of and for such fiscal year, in each case setting forth the comparable
information for the preceding fiscal year, and accompanied by the report of
KPMG Peat Marwick or other independent certified public accountants of
recognized national standing, to the effect that based on an audit using
generally accepted auditing standards the financial statements present fairly,
in all material respects, the Consolidated financial position, results of
operations and cash flows of the Borrower and its Consolidated Subsidiaries for
the respective periods in conformity with GAAP. 
For any fiscal year this requirement may be satisfied by the delivery of
the Borrower’s SEC Filing on Form 10-K for such fiscal year.


 


(d) Concurrently with the delivery of the financial statements
referred to in Sections 6.02(b) and (c), (i) a
certificate of a Financial Officer to the effect that no Default or an event
which, with the giving of notice, the lapse of time or both, would constitute a
Default, shall have occurred and be continuing with respect to  


 


41

















 


the
covenants contained in Section 7.01 (together with appropriate
supporting schedules setting forth the calculations relating to such covenants)
or, if such Financial Officer has knowledge that a Default or an event which,
with the giving of notice, the lapse of time or both, would constitute a
Default, has occurred and is continuing with respect to Section 7.01,
specifying the nature thereof and the actions, if any, which the Borrower has
taken and proposes to take with respect thereto, and (ii) a complete and
correct list of the Significant Subsidiaries as of the date thereof, showing,
as to each Significant Subsidiary, the correct name thereof, the jurisdiction
of its organization and such Significant Subsidiary’s proportionate share of
the Consolidated assets of the Borrower.


 


(e) Promptly after they are available, copies of (i) each SEC
Filing, (ii) any reports provided by the Borrower to its stockholders, and
(iii) any press releases or other statements made available by the
Borrower or any of its Subsidiaries to the public generally concerning material
developments in the business or affairs of the Borrower or any of its
Subsidiaries.  Any matter disclosed in a
SEC Filing or other report or press release delivered to Banks shall be deemed
disclosed in writing to Banks for all purposes of this Agreement, except with
respect to the reporting requirement set forth in Section 6.02(a).


 


(f) Promptly upon Borrower’s receipt of notice of any change in a
Rating, notice thereof to the Administrative Agent.


 


(g) Such other information respecting the financial condition of
the Borrower and its Subsidiaries, or compliance with the terms of this
Agreement, as any Bank through the Administrative Agent may from time to time
reasonably request in writing.


 


Section 6.03.Use of
Proceeds.  The Borrower will use the
proceeds of the Advances only for working capital and general corporate
purposes and not in contravention of Section 5.06.


 


Section 6.04.Maintenance
of Insurance.  The Borrower will
maintain, or cause to be maintained, insurance coverages on or in respect of
its and its Subsidiaries’ business or properties with such insurers, in such
amounts and covering such risks as are consistent with the Borrower’s normal
practices in effect from time to time. 
Such insurance arrangements may include self-insurance or insurance
through an Affiliate.


 


Section 6.05.Preservation
of Corporate Existence, Etc.  Each of
the Borrower and the Guarantor will preserve and maintain, and cause each of
its Subsidiaries to preserve and maintain, its Corporate Franchises in the
jurisdiction of its incorporation, and qualify and remain qualified, and cause
each Subsidiary to qualify and remain qualified, as a foreign corporation in
each jurisdiction in which qualification is necessary or desirable in view of
its business and operations or the ownership of its properties unless the
failure to so qualify as a foreign corporation does not have, and would not
reasonably be expected to have, a Material Adverse Effect, provided, however,
that nothing herein contained shall prevent any transaction permitted by Section 7.03.


 


42

















 


Section 6.06.Payment
of Taxes, Etc.   Each of the Borrower
and the Guarantor will pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or property that are material in amount, prior to the date on
which penalties attach thereto and (b) all lawful claims that are material
in amount which, if unpaid, might by law become a Lien upon its property unless
the failure to timely pay any of the foregoing does not have and would not
reasonably be expected to have a Material Adverse Effect, provided, however,
that neither the Borrower, the Guarantor, nor any such Subsidiary shall be
required to pay or discharge any such tax, assessment, charge, levy, or claim
which is being contested in good faith and by appropriate proceedings.


 


Section 6.07.Visitation
Rights.  The Borrower shall permit
the representatives of each Bank, at the expense of such Bank and upon
reasonable prior notice to the Borrower, to visit the principal executive
office of the Borrower, and to discuss the affairs, finances and accounts of
the Borrower and its Subsidiaries at the Borrower’s offices with Financial
Officers.


 


Section 6.08.Compliance
with ERISA and the Code.  The
Borrower and its Subsidiaries will comply, and will cause each other member of
any Controlled Group to comply, with all minimum funding requirements, and all
other material requirements, of ERISA and the Code, if applicable, to any Plan
it or they sponsor or maintain, so as not to (a) give rise to any
liability thereunder which has, or would reasonably be expected to have, a
Material Adverse Effect or (b) cause any Termination Event to occur which
has, or would reasonably be expected to have, a Material Adverse Effect.


 


ARTICLE
VII


 


NEGATIVE
COVENANTS


 


So long as any Advance shall
remain unpaid or any Bank shall have any Commitment to the Borrower hereunder,
without the written consent of the Majority Banks:


 


Section 7.01.Financial
Covenants.  The Borrower will not:


 


(a) as of the last day of any fiscal quarter for the immediately
preceding twelve (12) month period, permit the ratio of (i) the sum of (A) EBIT
of the Borrower, on a Consolidated basis, plus (B) Rent Expense of the
Borrower, on a Consolidated basis, to (ii) the sum of (A) Interest
Expense of the Borrower, on a Consolidated basis, plus (B) Rent Expense of
the Borrower, on a Consolidated basis, to be less than 1.5 to 1.0, or


 


(b) as of the last day of any fiscal quarter, permit the ratio
(the “Debt to Cash Flow Ratio”) of (i) the sum of (x) Debt of
the Borrower, on a Consolidated basis, plus (y) the product of six
multiplied by Rent Expense of the Borrower, on a Consolidated basis, for the
immediately preceding twelve-month period, to 


 


43

















 


(ii) the
sum of (a) EBITDA of the Borrower, on a Consolidated basis, for the
immediately preceding twelve-month period, plus (b) Rent Expense of
the Borrower, on a Consolidated basis, for the immediately preceding
twelve-month period to exceed 3.5 to 1.0.


 


(c) In the event that any assets of the Borrower, the Guarantor or
any of their respective Subsidiaries are sold or otherwise transferred to a
third party and the assets so sold or transferred are leased back under one or
more operating leases from the acquiror of such assets or any of its Affiliates
(any such transaction, a “Sale/Leaseback Transaction”), then for the
purposes of calculations under Sections 7.01(a) and 7.01(b),
as of the last day of the fiscal quarter in which such Sale/Leaseback
Transaction occurred and for the twelve (12) months then ended, Rent Expense of
the Borrower shall include the annualized rentals payable under the operating
lease(s) for the assets sold and leased back in connection with such
Sale/Leaseback Transaction (less any amounts otherwise included in Rent Expense
under GAAP in respect of the same operating lease(s)), provided that (i) there
shall be no such adjustment to such Rent Expense until the aggregate proceeds
received by the Borrower, the Guarantor and their respective Subsidiaries from
all Sale/Leaseback Transactions consummated after the date hereof exceeds
$50,000,000 and (ii) in the event of any such excess, the adjustment shall
be made only as to the portion of such proceeds of the Sale/Leaseback
Transaction(s) in excess of $50,000,000.


 


Section 7.02.Negative
Pledge.  Neither the Borrower nor the
Guarantor will create, assume, incur or suffer to exist, or permit any of its
respective Subsidiaries to create, assume, incur or suffer to exist, any Lien
on or in respect of any of its or their assets or property used, created or
consumed in the operation of its or their business, whether, real, personal, or
mixed, whether tangible or intangible, whether now owned or hereafter acquired,
including, without limitation, the capital stock of any Subsidiary of the
Borrower, but excluding any margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System), or assign or
otherwise convey, or permit any such Subsidiary to assign or otherwise convey,
any right to receive income, in each case to secure or provide for the payment
of any Debt of any Person, except Permitted Liens.


 


Section 7.03.Merger
and Sale of Assets.  Neither the
Borrower, the Guarantor nor any of their respective Subsidiaries will:


 


(a) merge or consolidate with or into any other Person unless (i) (A) either
the Borrower or the Guarantor is the surviving entity, (B) such merger or
consolidation is between Subsidiaries (other than the Guarantor (except as
would be permitted by clause (A) of this subclause (a))), or (C) such
merger or consolidation is between a Subsidiary (other than the Guarantor
(except as would be permitted by clause (A) of this subclause (a))) and
another Person, and (ii) no Default or an event which, with the giving of
notice, the lapse of time or both, would constitute a Default, shall have
occurred and be continuing at the time of, or shall result from, such merger or
consolidation, or


 


44

















 


(b) sell, lease or otherwise transfer all or substantially all of
the Consolidated assets of the Borrower in any transaction or series of related
transactions outside of the ordinary course of business (including, without
limitation, the merger or consolidation of a Subsidiary with a Person which
will not thereafter be a Subsidiary), unless (i) such sales, leases or
transfers are between the Borrower, the Guarantor or any of their Subsidiaries,
or (ii) the proceeds of such sales, leases and transfers are (A) applied
to the outstanding principal balance and interest of the Advances with
simultaneous pro tanto Commitment reductions, (B) used in the Borrower’s
business, or (C) utilized to fund stock repurchases by the Borrower from
time to time authorized by the Borrower’s Board, provided, further,
that, notwithstanding the foregoing, no such sale, lease or transfer shall be
permitted pursuant to this Section 7.03(b) if a Default or an
event which, with the giving of notice, the lapse of time or both, would
constitute a Default, shall have occurred and is continuing at the time of, or
result from, any such sale, lease or transfer.


 


Section 7.04.Agreements
to Restrict Dividends and Certain Transfers.  Neither the Borrower nor the Guarantor will
enter into or suffer to exist, or permit any Significant Subsidiary to enter
into or suffer to exist, any consensual encumbrance or restriction on the
ability of any Significant Subsidiary (a) to pay, directly or indirectly,
dividends or make any other distributions in respect of its capital stock or
pay any Debt or other obligation owed to the Borrower or to any Significant
Subsidiary or (b) to make loans or advances to the Borrower or any
Significant Subsidiary, except those encumbrances and restrictions existing on
the date hereof and described in Schedule IV and those now or
hereafter existing that are not more restrictive in any respect than such encumbrances
and restrictions described in Schedule IV.


 


Section 7.05.Transactions
with Affiliates.  Except as otherwise
permitted in Section 7.03, neither the Borrower nor the Guarantor
will make any material sale to, make any material purchase from, extend
material credit to, make material payment for services rendered by, or enter
into any other material transaction with, or permit any of their respective
Subsidiaries to make, any material sale to, make any material purchase from,
extend material credit to, make material payment for services rendered by, or
enter into any other material transaction with, any Affiliate of the Borrower
or the Guarantor or of such Subsidiary unless such sales, purchases, extensions
of credit, rendition of services and other transactions are (at the time such
sale, purchase, extension of credit, rendition of services or other transaction
is entered into) (a) in the ordinary course of business, or (b) on
terms and conditions believed by the Borrower to be fair in all material respects
to the Borrower or the Guarantor or such Subsidiary, as the case may be.


 


Section 7.06.Change
of Business.  The Borrower, the
Guarantor and their Subsidiaries, on an aggregate basis, will not materially
change the general nature of their primary business.


 


Section 7.07.Limitation
on Loans, Advances and Investments. 
Neither the Borrower nor the Guarantor will, or will permit any of their
respective Subsidiaries to, make or permit to exist, any loans, advances or
capital contributions to, or make any


 


45
















 


investment in, or purchase
or commit to purchase any stock or other securities or evidences of
indebtedness of or interests in any Person which is not, or which will not
become in connection with such transaction, a Subsidiary (“Investments”),
except the following:


 


(a) Liquid
Investments;


 


(b) trade and customer accounts receivable which are for goods
furnished or services rendered in the ordinary course of business and are
payable in accordance with customary trade terms;


 


(c) Investments in respect of joint ventures or similar
arrangements relating to the ownership or operation of food service businesses
in which the Borrower and its Subsidiaries in the aggregate are the beneficial
owners of not less than 50% of the outstanding equity interests;


 


(d) Investments not otherwise permitted by this Section 7.07
in any Person, provided that the aggregate amount of such Investments
made and outstanding at any time shall not exceed thirty percent (30%) of the
Consolidated assets of the Borrower as set forth on the most recent financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the
Banks pursuant to Sections 5.04 or 6.02; and


 


(e) Investments existing on the date hereof and described on Schedule VI;
and


 


(f) Investments by Foreign Subsidiaries in other Subsidiaries or
other Persons, provided that such Investments in other Persons are from
the retained earnings of a Foreign Subsidiary or other Person, and any
retention by a Subsidiary or other Person of net income.


 


Section 7.08.Accounting
Practices.  The Borrower and each of
its Significant Subsidiaries will maintain its books of record and account in
conformity with GAAP.


 


Section 7.09.Debt.  (a)   
The Borrower and the Guarantor will not, and will not permit any of
their respective Subsidiaries to, directly or indirectly, create, incur or
suffer to exist any direct, indirect, fixed or contingent liability for any
Debt, other than (i) the obligations pursuant to the Credit Documents, (ii) the
Debt described on Schedule VII, (iii) additional Debt of the
Borrower which may be guaranteed by the Guarantor (but not guaranteed by any of
the Borrower’s or the Guarantor’s Subsidiaries, other than the Guarantor in the
case of Debt of the Borrower), (iv) intercompany Debt and (v) additional
Debt of the Guarantor and the Borrower’s and the Guarantor’s Subsidiaries, provided,
however, the aggregate of all Debt of the Guarantor and all such
Subsidiaries under this clause (v), whether secured or unsecured,
must not exceed $50,000,000 in the aggregate at any one time.


 


46

















 


(b)  The Borrower and
the Guarantor will not permit any of their respective Subsidiaries to guarantee
or otherwise become directly or contingently liable for the obligations under
the Existing Term Loan Agreement or any other indebtedness of the Borrower or
the Guarantor for borrowed money in an aggregate principal amount in excess of
$25,000,000, unless such Subsidiary concurrently guarantees the Guaranteed
Obligations under a written guarantee agreement reasonably satisfactory in form
and substance to the Administrative Agent.


 


ARTICLE VIII



DEFAULTS


 


Section 8.01.Defaults.  If any of the following events (each
individually, a “Default”) shall occur and be continuing:


 


(a) the Borrower (i) shall fail to pay any principal of any
Advance when the same becomes due and payable in accordance with the terms
hereof, or (ii) shall fail to pay any interest on any Advance or any fee
or other amount to be paid by it hereunder within three (3) Business
Days of the date on which such payment is due; or


 


(b) any certification, representation or warranty made by the
Borrower or the Guarantor herein or by the Borrower or the Guarantor (or any of
their respective officers) in writing (including representations and warranties
deemed made pursuant to Sections 2.04(a)(G), or 3.02) under or in
connection with any Credit Document shall prove to have been incorrect in any
material respect when made or deemed made; or


 


(c) the Borrower or the Guarantor shall fail to perform or observe
(i) any term, covenant or agreement contained in Section 7.01
on its part to be performed or observed, (ii) any term, covenant or
agreement contained in Sections 6.03 or 6.05 (with respect to
maintaining the corporate existence of the Borrower or the Guarantor) or in Article VII
(other than Section 7.01) on its part to be performed or observed
and such failure shall continue for five (5) days after the date notice
thereof shall have been given to the Borrower or the Guarantor by the
Administrative Agent or any Bank, or (iii) any term, covenant or agreement
contained in any Credit Document (other than a term, covenant or agreement
described in clauses (i) and (ii) of this clause (c))
on its part to be performed or observed and such failure shall continue for
thirty (30) days after the date notice thereof shall have been given to
the Borrower or the Guarantor by the Administrative Agent or any Bank; or


 


(d) the Borrower, the Guarantor, or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest on any
of its Debt which is outstanding in a principal amount of at least $50,000,000
in the aggregate (excluding Debt consisting of the Advances) when the same
becomes due and 


 


47

















 


payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Debt, or any
event of default or other event shall occur or condition shall exist under any
agreement or instrument creating or evidencing such Debt in such principal
amount, and shall continue after the applicable grace period, if any, specified
in such agreement or instrument if the effect of such event or condition is to
accelerate, or to permit the holder or holders of any such Debt or any trustee
or agent on its or their behalf to accelerate, the maturity of such Debt, provided,
however, a Default or an event which, with the giving of notice, the
lapse of time or both, would constitute a Default, shall have occurred or be
continuing for purposes of this clause (d) shall not be deemed
to exist due to the acceleration of the maturity of any obligation to a Bank or
an affiliate (within the meaning of Regulation U) of a Bank solely by
reason of a default in the performance of a term or condition in any agreement
or instrument under or by which such obligation is created, evidenced or
secured, which term or condition restricts the right of the Borrower or any
other Person to sell, pledge or otherwise dispose of any margin stock (within
the meaning of Regulation U) held by the Borrower or any such other
Person; or


 


(e) the Borrower, the Guarantor, or any Significant Subsidiary
shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Borrower, the Guarantor or any Significant Subsidiary seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), shall remain
undismissed or unstayed for a period of sixty (60) days; or the Borrower,
the Guarantor or any Significant Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this clause (e); or


 


(f) any judgment or order against the Borrower, the Guarantor or
any of their respective Consolidated Subsidiaries is rendered for the payment
of money in excess of $50,000,000 over the sum of available insurance therefor
and adequate cash reserves for which have not been established and set aside
solely for the purpose of payment of such judgment or order and such judgment
or order remains unsatisfied and either (i) enforcement proceedings shall
have been commenced by the creditor upon such judgment or order or (ii) there
shall be any period of sixty (60) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or


 


48

















 


(g) the Borrower shall cease to own directly or indirectly 100% of
the issued and outstanding voting stock of the Guarantor; or


 


(h) any Person shall become, directly or indirectly, the
beneficial owner of 50% or more of the outstanding voting common stock of the
Borrower;


 


then, and in any such event,
the Administrative Agent (i) shall at the request, or may with the
consent, of the Majority Banks, after providing notice to the Borrower, declare
all of the Commitments and the obligation of each Bank to make Advances to be
terminated, whereupon all of the Commitments and each such obligation shall
forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Borrower declare the Advances,
all interest thereon and all other amounts payable by the Borrower and the
Guarantor under this Agreement to be forthwith due and payable, whereupon such
Advances, such interest and all such amounts shall become and be forthwith due
and payable, without requirement of any presentment, demand, protest, notice of
intent to accelerate, further notice of acceleration or other further notice of
any kind (other than the notice expressly provided for above), all of which are
hereby expressly waived by the Borrower and the Guarantor, provided, however,
that in the event of any Default described in Section 8.01(e) with
respect to the Borrower or the Guarantor, (A) the obligation of each Bank
to make Advances shall automatically be terminated and (B) the Advances,
all such interest and all such amounts shall automatically become and be due
and payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or any other notice of any kind, all of which
are hereby expressly waived by the Borrower and the Guarantor.


 


ARTICLE IX



THE ADMINISTRATIVE AGENT


 


Section 9.01.Authorization
and Action.  (a)  Each Bank hereby
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto.  As to any matters not expressly provided for
by this Agreement (including, without limitation, enforcement or collection of
the Advances), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks, provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law.  The
provisions of this Article are solely for the benefit of the
Administrative Agent and the Banks, and none of the Borrower or the Guarantor
shall have any rights as a third party beneficiary of any such provisions.


 


(b)    The Administrative Agent may perform any of
and all its duties and exercise its rights and powers hereunder or under any
other Credit Document by or 


 


49

















 


through any one or more
sub-agents (that is/are Affiliate(s) of the Administrative Agent)
appointed by the Administrative Agent. 
The exculpatory provisions of this Article shall apply to any such
sub-agent, and shall apply to its activities in connection with the syndication
of the credit facility provided for herein as well as activities as
Administrative Agent.


 


Section 9.02.Administrative
Agent’s Reliance, Etc.  Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Banks for any action taken or omitted to be taken by it
or them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. 
Without limitation of the generality of the foregoing, the
Administrative Agent: (i) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable to the Banks for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or representation
to any Bank and shall not be responsible to any Bank for any statements,
warranties or representations (whether written or oral) made in or in
connection with this Agreement; (iii) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower or
any of its Subsidiaries; (iv) shall not be responsible to any Bank for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (v) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing; (vi) except
as expressly set forth in the Credit Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower, any Subsidiary or any other
Affiliate of any of the foregoing that is communicated to or obtained by the
Person serving as Administrative Agent or any of its Affiliates in any
capacity; (vii) shall not be responsible for or have any duty to ascertain
or inquire into the satisfaction of any condition set forth in Article III
or elsewhere in any Credit Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent or satisfaction
of any condition that expressly refers to the matters described therein being
acceptable or satisfactory to the Administrative Agent; (viii) shall incur
no liability to the Banks under or in respect of this Agreement by acting upon
any notice, consent, certificate or other instrument or writing (which may be
by telecopier or other electronic communications) believed by it to be genuine
and signed or sent by the proper party or parties and (ix) shall incur no
liability to the Banks under or in respect of this Agreement by acting upon any
statement made to it orally or by telephone and believed by it to be made by
the proper Person (including, if applicable, a Financial Officer of such
Person).


 


Section 9.03.Knowledge
of Defaults.  The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default (other than a failure to make a payment of principal of
or interest on the Advances) unless the Administrative Agent has received
notice from a Bank or the Borrower specifying such Default and stating that
such notice is a “Notice of Default”.  In
the event that the Administrative Agent receives such a notice of a Default,
the Administrative Agent shall 


 


50

















 


give
prompt notice thereof to the Banks.  The
Administrative Agent shall (subject to Section 9.08 hereof) take
such action with respect to such Default as shall be directed by the Majority
Banks, provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interest of the
Banks except to the extent that this Agreement expressly requires that such
action be taken, or not be taken, only with the consent or upon the
authorization of the Majority Banks or all of the Banks.


 


Section 9.04.Rights
of the Administrative Agent as a Bank. 
With respect to its Commitment and the Advances made by it, the Person
serving as the Administrative Agent shall have the same rights and powers under
this Agreement as any other Bank and may exercise the same as though it were
not the Administrative Agent; and the term “Bank” or “Banks” shall, unless
otherwise expressly indicated, include such Person in its individual
capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
act as financial advisor or in any other advisory capacity and generally engage
in any kind of business with, the Borrower, any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower or any such
Subsidiary, all as if such Person was not the Administrative Agent and without
any duty to account therefor to the Banks.


 


Section 9.05.Bank
Credit Decision.  (a)  Each Bank
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank and based on the financial statements
referred to in Section 5.04 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.  Each
Bank also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.


 


(b)  Each Bank, by
delivering its signature page to this Agreement and funding its Advances
on the Effective Date, or delivering its signature page to an Assignment
or an Accession Agreement pursuant to which it shall become a Bank hereunder,
shall be deemed to have acknowledged receipt of, and consented to and approved,
each Credit Document and each other document required to be delivered to, or be
approved by or satisfactory to, the Administrative Agent or the Banks on the
Effective Date.


 


Section 9.06.Successor
Administrative Agent.  The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks and the Borrower and may be removed at any time with or without cause
by the Majority Banks.  Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Administrative Agent that, unless a Default shall have occurred and
then be continuing, is acceptable to the Borrower.  If no successor Administrative Agent shall
have been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent’s giving of
notice of 


 


51

















 


resignation or the Majority
Banks’ removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having total assets
of at least $1,000,000,000.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement.  After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of
this Article IX shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.


 


Section 9.07.Joint
Lead Arrangers and Bookrunners and Syndication Agent.  The Joint Lead Arrangers and Bookrunners and
Syndication Agent named on the cover page of this Agreement, in their
capacities as such, shall have no obligation, responsibility or required
performance hereunder and shall not become liable in any manner to any party
hereto in respect hereof.


 


Section 9.08.INDEMNIFICATION.  THE ADMINISTRATIVE AGENT SHALL NOT BE
REQUIRED TO TAKE ANY ACTION HEREUNDER OR TO PROSECUTE OR DEFEND ANY SUIT IN
RESPECT OF THIS AGREEMENT OR THE NOTES, UNLESS INDEMNIFIED TO ITS SATISFACTION
BY THE BANKS AGAINST LOSS, COST, LIABILITY AND EXPENSE.  IF ANY INDEMNITY FURNISHED TO THE
ADMINISTRATIVE AGENT SHALL BECOME IMPAIRED, IT MAY CALL FOR ADDITIONAL
INDEMNITY AND CEASE TO DO THE ACTS INDEMNIFIED AGAINST UNTIL SUCH ADDITIONAL
INDEMNITY IS GIVEN.  IN ADDITION, THE
BANKS, JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT (TO
THE EXTENT NOT REIMBURSED BY THE BORROWER OR THE GUARANTOR) FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
AGREEMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST
THE  ADMINISTRATIVE AGENT IN ANY WAY
RELATING TO OR ARISING OUT OF THE CREDIT DOCUMENTS OR ANY ACTION TAKEN OR
OMITTED BY THE ADMINISTRATIVE AGENT UNDER THE CREDIT DOCUMENTS, PROVIDED
THAT NO BANK SHALL BE LIABLE TO THE ADMINISTRATIVE AGENT FOR ANY PORTION OF
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, AGREEMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM THE ADMINISTRATIVE AGENT’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 
WITHOUT LIMITATION OF THE FOREGOING, EACH BANK EXPRESSLY AGREES TO
INDEMNIFY THE ADMINISTRATIVE AGENT FROM ITS OWN NEGLIGENCE.  EACH BANK AGREES TO REIMBURSE THE
ADMINISTRATIVE AGENT PROMPTLY UPON DEMAND FOR ITS RATABLE SHARE OF ANY
OUT-OF-POCKET EXPENSES (INCLUDING COUNSEL FEES INCURRED BY THE ADMINISTRATIVE
AGENT 


 


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IN CONNECTION WITH THE
PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION, AMENDMENT OR
ENFORCEMENT WHETHER THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE OF, OR
LEGAL ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THE CREDIT
DOCUMENTS) TO THE EXTENT THAT THE ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR
SUCH EXPENSES BY THE BORROWER OR THE GUARANTOR.


 


ARTICLE X



MISCELLANEOUS


 


Section 10.01.Amendments,
Etc.  No amendment or waiver of any
provision of any Credit Document, nor consent to any departure by the Borrower
or the Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Majority Banks and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given, provided, however, that no
amendment, waiver or consent shall do any of the following:  (a) increase the Commitment of any Bank
or subject any Bank to any additional obligations without the consent of such
Bank, (b) reduce the principal of, or interest on, the Advances of any
Bank or any fees or other amounts payable to any Bank hereunder without the
consent of such Bank, (c) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder without the consent of each affected Bank, (d) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Advances, or the number of Banks, which shall be required for the Banks or
any of them to take any action under this Agreement or any other Credit
Document without the consent of each Bank, (e) release the Guarantor or
otherwise change any obligation of the Guarantor to pay any amount payable by
the Guarantor hereunder without the consent of each Bank or (f) amend this
Section 10.01 without the consent of each Bank, provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Administrative Agent under any
Credit Document; and provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by the Guarantor in addition to
any other party required above to take such action, affect the rights or duties
of the Guarantor under any Credit Document.


 


Section 10.02.Notices,
Etc.  All notices and other
communications provided for hereunder shall be in writing (including telecopy
or email communication) and mailed, telecopied or emailed or delivered, if to
any Bank as specified on Schedule I hereto or specified pursuant to
an Assignment; if to the Borrower or the Guarantor, as specified opposite its
name on Schedule II hereto; or, as to the Borrower, the Guarantor
or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the Borrower, the Guarantor and the Administrative Agent.  All such notices and communications shall,
when mailed, telecopied or emailed, be effective when deposited in the mails,
sent by telecopier to any 


 


53

















 


party to the telecopier
number as set forth herein or on Schedule I or Schedule II
hereto (or other telecopy number specified by such party in a written notice to
the other parties hereto), or sent by email to the addresses set forth herein
or on Schedule I or Schedule II hereto, respectively,
except that notices to the Administrative Agent pursuant to Article II
or IX shall not be effective until received by the Administrative Agent
by physical delivery or telecopy.


 


Section 10.03.No
Waiver; Remedies.  No failure on the
part of any Bank or the Administrative Agent to exercise, and no delay in
exercising, any right under any Credit Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right.  The remedies provided in the Credit Documents
are cumulative and not exclusive of any remedies provided by law.


 


Section 10.04.Costs,
Expenses and Taxes.  (a)  The
Borrower agrees to pay on demand (i) all reasonable out-of-pocket costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment or waiver of
any Credit Document, including, without limitation, the reasonable fees and
out-of-pocket expenses of Cravath, Swaine & Moore LLP, special counsel
to the Administrative Agent, and Locke Lord Bissell & Liddell LLP,
special Texas counsel to the Administrative Agent, with respect to advising the
Administrative Agent and (ii) all reasonable out-of-pocket costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), of the Administrative Agent and each Bank in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise)
against the Borrower or the Guarantor of any Credit Document.


 


(b)  EACH OF THE
BORROWER AND THE GUARANTOR, JOINTLY AND SEVERALLY, AGREES, TO THE FULLEST
EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE
AGENT AND EACH BANK AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS AND CONTROLLING PERSONS (EACH, AN “INDEMNIFIED
PERSON”) FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND DISBURSEMENTS
OF COUNSEL), FOR WHICH ANY OF THEM MAY BECOME LIABLE OR WHICH MAY BE
INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNIFIED PERSON, IN EACH CASE IN
CONNECTION WITH OR ARISING OUT OF OR BY REASON OF ANY INVESTIGATION, LITIGATION,
OR PROCEEDING, WHETHER OR NOT SUCH INDEMNIFIED PERSON IS A PARTY THERETO,
ARISING OUT OF, RELATED TO OR IN CONNECTION WITH ANY CREDIT DOCUMENT OR ANY
TRANSACTION IN WHICH ANY PROCEEDS OF ALL OR ANY PART OF THE ADVANCES ARE
APPLIED, OTHER THAN ANY SUCH CLAIM, DAMAGE, LIABILITY OR EXPENSE TO THE EXTENT
ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF, OR BREACH OF ANY
LAW, REGULATION OR CREDIT DOCUMENT BY, ANY SUCH INDEMNIFIED 


 


54

















 


PERSON.  NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY
FOR ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.


 


Section 10.05.Right
of Set-off.  Upon (a) the
occurrence and during the continuance of a Default pursuant to Section 8.01(a) or
(b) the making of the request or the granting of the consent specified by Section 8.01
to authorize the Administrative Agent to declare the Advances due and payable
pursuant to the provisions of Section 8.01, each Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank or any affiliate of such Bank to or for the credit or
the account of the Borrower or the Guarantor (but not any other Person) against
any and all of the obligations of the Borrower or the Guarantor now or
hereafter existing under the Credit Documents, irrespective of whether or not
such Bank shall have made any demand under this Agreement or any Note and
although such obligations may be unmatured, provided that no Bank shall
exercise such set-off rights with respect to deposits that such Bank knows are
held by the Borrower or the Guarantor for the benefit of another Person (such
deposits, “Third Party Funds”), and each Bank agrees that if it has
exercised its set-off rights under this Section 10.05 with respect
to Third Party Funds, such Bank shall promptly return such Third Party Funds to
the Borrower or the Guarantor, as applicable. 
Each Bank agrees to notify the Borrower and the Guarantor promptly after
such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section 10.05 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.


 


Section 10.06.Bank
Assignments and Participations.  (a) 
Assignments.  Any Bank may assign
to one or more banks or other entities all or any portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it, and any Notes held by it)
with the consent, not to be unreasonably withheld, of the Administrative Agent,
provided, however, that (i) each such assignment of an
assigning Bank’s Commitment shall be of a constant, and not a varying,
percentage of all of such Bank’s rights and obligations under this Agreement in
respect of such Commitment, (ii) the amount of the resulting Commitment
and Advances of the assigning Bank (unless it is assigning all its Commitment)
and the assignee Bank pursuant to each such assignment (determined as of the
date of the Assignment with respect to such assignment) shall in no event be
less than $10,000,000 and shall be an integral multiple of $1,000,000 (unless
each of the Borrower and the Administrative Agent consents), (iii) each
such assignment shall be to an Eligible Assignee, (iv) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment, together with any Note
or Notes subject to such assignment, and shall pay all legal and other expenses
in respect of such assignment and (v) the assignor or the assignee shall
pay to the Administrative Agent an assignment fee of $3,500 in connection with
such assignment.  Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment, which effective date shall be at least three (3) Business
Days after the execution thereof, (A) the assignee thereunder shall be a


 


55
















 


party hereto for all
purposes and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment, have the rights and obligations of
a Bank hereunder and (B) such Bank thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment, relinquish its rights and be released from its obligations to lend
under this Agreement (and, in the case of an Assignment covering all or the
remaining portion of such Bank’s rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).


 


(b)  Terms of
Assignments.  By executing and
delivering an Assignment, the Bank thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto the matters
set forth in paragraphs 2 and 3 of such Assignment.


 


(c)  The Register.  The Administrative Agent shall maintain at
its address referred to on Schedule I a copy of each Assignment
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Banks and the Commitments of, and principal amount of the
Advances owing to, each Bank from time to time (the “Register”).  The entries in the Register shall be
conclusive and binding for all purposes, absent error, and the Borrower, the
Guarantor, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of this
Agreement.  The Register shall be
available for inspection by the Borrower, the Guarantor or any Bank at any
reasonable time and from time to time upon reasonable prior notice.


 


(d)  Procedures.  Upon its receipt of an Assignment executed by
a Bank and an assignee pursuant to the terms of this Agreement, the Administrative
Agent shall, if such Assignment has been completed and is in substantially the
form of the attached Exhibit C, and otherwise in conformity with
this Section 10.06, (i) accept such Assignment, (ii) record
the information contained therein in the Register, and (iii) give prompt
notice thereof to the Borrower and the Guarantor.  Within five (5) Business Days after
its receipt of such notice, the Borrower, at its own expense, shall, if the
assignee shall so request, execute and deliver to the Administrative Agent, in
exchange for any surrendered Note, a new Note to the order of such assignee in
an amount equal to the Commitment assumed by it pursuant to such Assignment
and, if such assigning Bank has retained any Commitment hereunder and so
requests, a new Note to the order of such Bank in an amount equal to the
Commitment retained by it hereunder. 
Such new Notes shall be dated the effective date of such Assignment and
shall otherwise be in substantially the form of the attached Exhibit A.


 


(e)  Participations.  Each Bank may sell participations to one or
more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it, and any Notes held by it),
provided, however, that (i) such Bank’s obligations under
this Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Bank shall remain the holder of any such Notes for
all purposes of this Agreement, 


 


56

















 


(iv) the Borrower, the
Guarantor, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank’s rights and
obligations under this Agreement and shall have no duties or responsibilities
to the participant, (v) such Bank shall not require the participant’s
consent to any matter under this Agreement, except for changes in the principal
amount of such Bank’s Commitment, any Note payable to such Bank in which the
participant has an interest, reductions in such Bank’s fees or interest, the date
any amount is due to such Bank hereunder, or extending the Termination Date,
and (vi) such Bank shall give prompt notice to the Borrower of each such
participation sold by such Bank.  No
participant shall have any rights under any provisions of any of the Credit
Documents.


 


(f)  Permitted
Assignments.  Notwithstanding any
other provision set forth in this Agreement, any Bank may assign all or any
portion of its rights under this Agreement (including, without limitation,
rights to payments of principal and/or interest under any Notes held by it) to
any subsidiary of such Bank or to any Federal Reserve Bank, without notice to
or consent from the Borrower or the Administrative Agent, provided, however,
that such Bank shall not be released from any of its obligations hereunder as a
result of such assignment.


 


Section 10.07.Governing
Law.  This Agreement, the Notes and
the other Credit Documents shall be governed by, and construed in accordance
with, the laws of the State of Texas.


 


Section 10.08.Interest.  (a)  It is the intention of the parties
hereto that the Administrative Agent and each Bank shall conform strictly to
Applicable Usury Laws from time to time in effect.  Accordingly, if the transactions with the
Administrative Agent or any Bank contemplated hereby would be usurious under
Applicable Usury Laws, then, in that event, notwithstanding anything to the
contrary in this Agreement, the Notes, or any other agreement entered into in
connection with or as security for this Agreement or the Notes, it is agreed as
follows:  (i) the aggregate of all
consideration which constitutes interest under Applicable Usury Laws that is
contracted for, taken, reserved, charged or received by the Administrative
Agent or such Bank, as the case may be, under this Agreement, the Notes, or
under any other agreement entered into in connection with or as security for
this Agreement or the Notes shall under no circumstances exceed the maximum
amount allowed by such Applicable Usury Laws and any excess shall be canceled
automatically and, if theretofore paid, shall at the option of the
Administrative Agent or such Bank, as the case may be, be credited by the
Administrative Agent or such Bank, as the case may be, on the principal amount
of the obligations owed to the Administrative Agent or such Bank, as the case
may be, by the Borrower or refunded by the Administrative Agent or such Bank,
as the case may be, to the Borrower, and (ii) in the event that the
maturity of any Advance or other obligation payable to the Administrative Agent
or such Bank, as the case may be, is accelerated or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under Applicable Usury Laws, may never include more than the maximum
amount allowed by such Applicable Usury Laws and excess interest, if any to the
Administrative Agent or such Bank, as the case may be, provided for in this
Agreement or otherwise shall be canceled automatically as of the date of such 


 


57

















 


acceleration or prepayment
and, if theretofore paid, shall, at the option of the Administrative Agent or
such Bank, as the case may be, be credited by the Administrative Agent or such
Bank, as the case may be, on the principal amount of the obligations owed to
the Administrative Agent or such Bank, as the case may be, by the Borrower or
refunded by the Administrative Agent or such Bank, as the case may be, to the
Borrower.


 


(b)  In the event that
at any time the rate of interest applicable to any Advance made by any Bank
would exceed the Maximum Rate, thereby causing the interest payable under this
Agreement or the Notes to be limited to the Maximum Rate, then any subsequent
reductions in the applicable rate of interest hereunder or under the Notes shall
not reduce the rate of interest charged hereunder or under the Notes below the
Maximum Rate until the total amount of interest accrued under this Agreement
and the Notes from and after the date hereof equals the amount of interest that
would have accrued hereon or thereon if the rates of interest otherwise
applicable to this Agreement and the Notes (without limitation by the Maximum
Rate) had at all times been in effect. 
In the event that upon the final payment of the Advances made by any
Bank and termination of the Commitment of such Bank, the total amount of
interest paid to such Bank hereunder and under the Notes is less than the total
amount of interest which would have accrued if the interest rates applicable to
such Advances pursuant to Section 2.07(a) and (b) had at
all times been in effect, then the Borrower agrees to pay to such Bank, to the
extent permitted by Applicable Usury Laws, an amount equal to the excess of (a) the
lesser of (i) the amount of interest which would have accrued on such
Advances if the Maximum Rate had at all times been in effect or (ii) the
amount of interest rates applicable to such Advances pursuant to Section 2.07(a) and
(b) had at all times been in effect over (b) the amount of
interest otherwise accrued on such Advances in accordance with this Agreement.


 


(c)  The maximum
non-usurious rate of interest shall be determined, subject to any applicable Federal law to the extent that it
permits Banks to contract for, charge, reserve or receive a greater amount of
interest than under the Texas Finance Code or other laws of the State of Texas,
by utilizing the applicable weekly ceiling from time to time in effect pursuant
to Chapter 303 of the Texas Finance Code. 
Pursuant to Section 346.004 of the Texas Finance Code, the parties hereto
agree that in no event will the provisions of Chapter 346 of the Texas
Finance Code be applicable to the transactions contemplated by the Credit
Documents.


 


Section 10.09.Execution
in Counterparts.  This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.


 


Section 10.10.Survival
of Agreements, Representations and Warranties, Etc.  All warranties, representations and covenants
made by the Borrower or the Guarantor or any officer of the Borrower or the
Guarantor herein or in any certificate or other document delivered in
connection with this Agreement shall be considered to have been relied upon by
the Banks and shall survive the issuance and delivery of the Notes 


 


58

















 


and the making of the
Advances regardless of any investigation. 
The indemnities and other obligations of the Borrower contained in this
Agreement, and the indemnities by the Banks in favor of the Agent and its
officers, directors, employees and agents, will survive the repayment of the
Advances and the termination of this Agreement.


 


Section 10.11.The
Borrower’s Right to Apply Deposits. 
In the event that any Bank is placed in receivership or enters a similar
proceeding, the Borrower may, to the full extent permitted by law, make any
payment due to such Bank hereunder, to the extent of finally collected
unrestricted deposits of the Borrower in U.S. Dollars held by such Bank, by
giving notice to the Administrative Agent and such Bank directing such Bank to
apply such deposits to such indebtedness. 
If the amount of such deposits is insufficient to pay such indebtedness
then due and owing in full, the Borrower shall pay the balance of such
insufficiency in accordance with this Agreement.


 


Section 10.12.Confidentiality.  Each Bank and the Administrative Agent agree
that they will not disclose without the prior consent of the Borrower and the
Guarantor (other than to employees, auditors, accountants, counsel or other
professional advisors of the Administrative Agent or any Bank who have a
contractual, fiduciary or professional duty to maintain the confidentiality of
the information) any information with respect to the Borrower or the Guarantor
or their Subsidiaries which is furnished pursuant to this Agreement and which
is not disclosed in an SEC Filing, a report to stockholders, a press release, or
has otherwise become generally available to the public otherwise than through a
breach hereof (the “Confidential Information”), provided that any
Bank may disclose any such Confidential Information (a) as may be required
or appropriate in any report, statement or testimony submitted to or required
by any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or submitted to or required or requested by the
Board of Governors of the Federal Reserve System or the Federal Deposit
Insurance Corporation or similar organizations (whether in the United States of
America or elsewhere) or their successors, (b) as may be required or
appropriate in response to any summons or subpoena in connection with any
litigation, (c) in order to comply with any law, order, regulation or
ruling applicable to such Bank, and (d) to an assignee or participant or
prospective assignee or participant in connection with any contemplated
transfer of any of the Notes or any interest therein by such Bank, provided
that (i) such assignee or participant or prospective assignee or
participant executes an agreement with the Borrower and the Guarantor agreeing
to comply with the provisions contained in this Section 10.12 and (ii) unless
a Default has occurred and is continuing, no Confidential Information may be
disclosed to any participant or prospective participant, other than a
participant or a prospective participant that is (A) a Bank or any
Affiliate of any Bank or (B) a commercial bank or financial institution,
in each case with an office in the United States of America, without the
Company’s prior written consent.  In the
event that the Administrative Agent or any Bank becomes legally compelled or
otherwise obligated to disclose any of the Confidential Information (other than
to regulatory or supervisory authorities having jurisdiction over such Bank)
and unless otherwise prohibited by applicable laws or regulations, such Person
will promptly, after obtaining knowledge of its obligation to disclose such
information, provide the Borrower with notice so that the Borrower may seek a
protective order or other appropriate remedy or waive compliance with this
Section.  In the event such protective
order or other 


 


59

















 


remedy is not obtained, such
Person will furnish only that portion of the Confidential Information which it
is advised by legal counsel is legally required and will exercise its best
efforts to obtain reliable assurances that confidential treatment will be
accorded the Confidential Information. 
In the event that compliance with this Section is waived by the
Borrower, such Person may disclose any and all information at issue without
liability to the Borrower, the Guarantor or any other Person.  Notwithstanding the foregoing, the
Administrative Agent and each Bank may, and the Borrower hereby authorizes the
Administrative Agent and each Bank to, include references to the Borrower, its
Subsidiaries and the Guarantor, and utilize any logo or other distinctive
symbol associated with the Borrower, its Subsidiaries and the Guarantor, solely
in connection with any advertising, promotion or marketing undertaken by the
Administrative Agent or such Bank in the ordinary course of its business, or,
subject to the Borrower’s prior review and approval of any such action by the
Administrative Agent or such Bank (which approval shall not be unreasonably
withheld), outside of the ordinary course of its business.  Each of the Administrative Agent and the
Banks acknowledges that (a) it has no interest or right in any logo or
other distinctive symbol associated with the Borrower, its Subsidiaries or the
Guarantor, except for the limited right to use as expressly permitted by the
preceding sentence, and no other rights of any kind are granted hereunder, by
implication or otherwise, and (b) the Borrower, such Subsidiary or the
Guarantor, as applicable, is the sole and exclusive owner of all right, title
and interest in such logo or other distinctive symbol associated with the
Borrower, its Subsidiaries or the Guarantor.


 


Section 10.13.Binding
Effect.  This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantor, the
Administrative Agent, each Bank and their respective successors and assigns,
except that the Borrower and the Guarantor shall not have the right to assign
any of their respective rights hereunder or any interest herein without the
prior written consent of the Banks.


 


Section 10.14.ENTIRE
AGREEMENT.  PURSUANT TO SECTION 26.02
OF THE TEXAS BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT
INVOLVED IN THE LOAN AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE
UNLESS THE LOAN AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR
THAT PARTY’S AUTHORIZED REPRESENTATIVE.


 


THE RIGHTS AND OBLIGATIONS
OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH SHALL BE
DETERMINED SOLELY FROM THE WRITTEN LOAN AGREEMENT, AND ANY PRIOR ORAL
AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN AGREEMENT.  THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.  IN CASE OF A
CONFLICT BETWEEN THE COMMITMENT LETTER DATED AS OF DECEMBER 12, 2008, BETWEEN
EACH OF THE INITIAL LENDERS AND ARRANGERS 


 


60

















 


NAMED THEREIN AND THE
BORROWER, AND THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL.


 


Section 10.15.USA
PATRIOT ACT.  Each
Bank hereby notifies the Borrower that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Bank to identify the
Borrower in accordance with the Patriot Act.


 


Section 10.16.No
Fiduciary Relationship.  Each of the
Borrower and the Guarantor, on behalf of itself and its Subsidiaries, agrees
that in connection with all aspects of the transactions contemplated hereby and
any communications in connection therewith, the Borrower, the Guarantor, the
other Subsidiaries and their Affiliates, on the one hand, and the
Administrative Agent, the Banks and their Affiliates, on the other hand, will
have a business relationship that does not create, by implication or otherwise,
any fiduciary duty on the part of the Administrative Agent, the Banks or their
Affiliates, and no such duty will be deemed to have arisen in connection with
any such transactions or communications.


 


[The balance
of this page has been intentionally left blank.]


 


61

















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BRINKER
  INTERNATIONAL, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Charles M. Sonsteby

  
	
   

  	
  Name: Charles M. Sonsteby

  
	
   

  	
  Title: Executive Vice President and Chief
  Financial Officer

  



 


 


	
   

  	
  GUARANTOR:  

  
	
   

  	
   

  
	
   

  	
  BRINKER
  RESTAURANT CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Roger F. Thomson

  
	
   

  	
  Name: Roger F. Thomson

  
	
   

  	
  Title: President

  



 


62

















 


	
   

  	
  ADMINISTRATIVE
  AGENT:  

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  D. Scott Harvey

  
	
   

  	
  Name: D. Scott Harvey

  
	
   

  	
  Title: SVP

  



 


63

















 


	
  Commitment:

  	
  BANKS:

  
	
   

  	
   

  
	
  $ 60,000,000.00

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  D. Scott Harvey

  
	
   

  	
  Name: D. Scott Harvey

  
	
   

  	
  Title: SVP

  



 


64

















 


	
  $ 60,000,000

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  John H. Schmidt

  
	
   

  	
  Name: John H. Schmidt

  
	
   

  	
  Title: Vice President

  



 


65

















 


	
  $ 40,000,000

  	
  [WELLS FARGO BANK N.A.]

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Steve Leon

  
	
   

  	
  Name:
  Steve Leon

  
	
   

  	
  Title:
  Managing Director, SVP

  
	
   

  	
   

  
	
   

  	
  by(1)

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 










(1) For any Bank requiring a second signature
line.


 


66

















 


	
  $ 30,000,000

  	
  Compass
  Bank

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Thomas Blake

  
	
   

  	
  Name:
  Thomas Blake

  
	
   

  	
  Title:
  Senior Vice President

  



 


67

















 


	
  $ 15,000,000

  	
  U.S.Bank,
  N.A.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  Frances W. Josephic

  
	
   

  	
  Name:
  Frances W. Josephic

  
	
   

  	
  Title:
  Vice President

  



 


68

















 


	
  $ 10,000,000.00

  	
  The
  Bank of Tokyo-Mitsubishi UFJ Ltd.

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
  /s/
  D. Barnell

  
	
   

  	
  Name:
  D. Barnell

  
	
   

  	
  Title:
  Authorized Signatory

  



 


69
















 


EXHIBIT A


FORM OF PROMISSORY NOTE


 


	
  U.S. $
                        

  	
   

  	
  Dated:               
  [                    ],
  20      

  



 


FOR VALUE RECEIVED, the
undersigned, Brinker International, Inc., a Delaware corporation (the “Borrower”),
HEREBY PROMISES TO PAY to the order of                       
(the “Bank”) or its registered assigns, for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to
below) or any other office designated by the Bank, the principal amount of each
Advance (as defined below) made by the Bank to the Borrower pursuant to the
Credit Agreement on the date such Advance is due and payable as set forth in
the Credit Agreement.


 


The Borrower promises to pay
interest on the unpaid principal amount of each Advance from the date of such
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.


 


The Borrower further promises to pay interest, on
demand, on any overdue principal and, to the extent permitted by applicable
law, overdue interest from their due dates at
such interest rates as are specified in the Credit Agreement.


 


Both principal and interest
are payable in lawful money of the United States of America to JPMorgan Chase
Bank, N.A., as Administrative Agent, at 10 South Dearborn, 10th Floor, Chicago,
Illinois, 60603, in same day funds.  Each
Advance made by the Bank to the Borrower and the maturity thereof, and all
payments made on account of principal thereof and interest thereon and the
respective dates thereof, shall be recorded by the Bank and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note; provided, however, that failure of the Bank to
make such notation or any error therein shall not in any manner affect the
obligations of the Borrower under this Promissory Note or the Credit Agreement.


 


This Promissory Note is one of
the Notes referred to in, and is subject to and entitled to the benefits of,
the Credit Agreement, dated as of February 27, 2009 (as it may be amended
from time to time in accordance with its terms, the “Credit Agreement”),
among the Borrower, Brinker Restaurant Corporation, a Delaware corporation, as
Guarantor, the Bank and certain other banks parties thereto (collectively, the “Banks”)
and JPMorgan Chase Bank, N.A., as Administrative Agent for the Banks.  The Credit Agreement, among other things, (a) provides
for the making of advances (the “Advances”) by the Bank to the Borrower
from time to time pursuant to Section 2.01 of the Credit Agreement
in an aggregate outstanding amount not to exceed at any time the U.S. dollar
amount first above mentioned and (b) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified. 
Capitalized terms used herein which are not defined herein and are defined
in the Credit Agreement are used herein as therein defined.


 

















 


The Borrower hereby waives
presentment for payment, notice of nonpayment, demand, protest, notice of
protest, notice of dishonor, notice of intent to accelerate, notice of
acceleration and any other notice of any kind, except as provided in the Credit
Agreement.  No failure to exercise, and
no delay in exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.


 


This Promissory Note and the Advances evidenced
hereby may be transferred in whole or in part only by registration of such
transfer on the Register maintained for such purpose by or on behalf of the
undersigned as provided in Section 10.06(c) of the Credit
Agreement.


 


This Promissory Note shall be
governed by, and construed in accordance with, the laws of the State of Texas
(except that Chapter 346 of the Texas Finance Code, which regulates certain
revolving credit loan accounts, shall not apply to this Promissory Note).


 


 


	
   

  	
  BRINKER INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-2

















 


ADVANCES, MATURITIES


AND PAYMENTS OF PRINCIPAL AND
INTEREST


 


	
  Borrowing 

  Date

  	
   

  	
  Amount and

  Type of

  Advance

  	
   

  	
  Rate of

  Interest

  Applicable

  to Advance

  	
   

  	
  Amount of

  Principal

  Paid or

  Prepaid

  	
   

  	
  Amount of

  Interest Paid

  or Prepaid

  	
   

  	
  Unpaid

  Principal

  Balance

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-3

















 


EXHIBIT B


FORM OF NOTICE OF BORROWING


 


[Date]


 


JPMorgan Chase Bank, N.A., as Administrative Agent


for the Banks parties


to the Credit Agreement


referred to below


 


[                        ]


[                        ]


Attention:                                                    


 


Ladies and Gentlemen:


 


The undersigned, Brinker International, Inc.,
a Delaware corporation (the “Borrower”), refers to the Credit Agreement,
dated as of February 27, 2009 (as amended from time to time in accordance
with its terms, the “Credit Agreement”; capitalized terms defined
therein and not defined herein being used herein as therein defined), among the
undersigned, Brinker Restaurant Corporation, a Delaware corporation, as
Guarantor, certain Banks parties thereto, and JPMorgan Chase Bank, N.A., as
Administrative Agent, and hereby gives you notice, irrevocably  pursuant to Section 2.02 of the Credit Agreement, that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing
(the “Proposed Borrowing”) as required by Section 2.02 of
the Credit Agreement:


 


	
  Borrowing Date of Borrowing (which is a Business Day)

  	
   

  
	
   

  	
   

  
	
  Aggregate Principal Amount of Borrowing (1)

  	
   

  
	
   

  	
   

  
	
  Type of Advance (2)

  	
   

  
	
   

  	
   

  
	
  Initial Interest Period and the last day thereof (3)

  	
   

  



 


The Borrower hereby requests
that the proceeds of the Borrowing requested hereunder be remitted by the
Administrative Agent to the following account of the Borrower:


 


	
  Wire
  To:

  	
   

  
	
   

  	
   

  
	
  ABA:

  	
   

  
	
   

  	
   

  
	
  Account
  #:

  	
   

  
	
   

  	
   

  
	
  Account
  Location:

  	
   

  



 


B-1

















 


The undersigned hereby
certifies that the following statements are true on the date hereof, and will
be true on the date of the Proposed Borrowing:


 


(a)           the representations and warranties contained in Article V
of the Credit Agreement are true and correct in all material respects on and as
of the date of the Proposed Borrowing, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, except to the extent that such representations and
warranties refer to an earlier date, in which case they shall be true and
correct in all material respects on and as of such earlier date;


 


(b)           no event has occurred and is continuing, or would
result from the Proposed Borrowing or from the application of the proceeds
therefrom, which constitutes or with the giving of notice, the lapse of time or
both, would constitute a Default; and


 


(c)           after giving effect to the Proposed Borrowing and
all other Borrowings which have been requested on or prior to the date of the
Proposed Borrowing but which have not been made prior to such date, the
aggregate principal amount of all Borrowings will not exceed the aggregate of
the Commitments.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  BRINKER INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






	
  (1)

  	
   

  	
  Not less than $10,000,000 or greater than the unused
  Total Commitment and in integral multiples of $1,000,000.

  
	
  (2)

  	
   

  	
  Eurodollar Rate Advance or Base Rate Advance.

  
	
  (3)

  	
   

  	
  Which shall have a duration (i) in the
  case of a Eurodollar Rate Advance, of one (1), two (2), three (3) or six
  (6) months and (ii) in the case of a Base Rate Advance, of up to
  ninety (90) days, and which, in any case, shall end not later than the
  Termination Date.

  



 


B-2

















 


EXHIBIT C


FORM OF ASSIGNMENT


 


Dated                                 ,         


 


Reference is made to the
Credit Agreement, dated as of February 27, 2009 (as the same may be
amended or modified from time to time, the “Credit Agreement”) among Brinker
International, Inc., a Delaware corporation (the “Borrower”),
Brinker Restaurant Corporation, a Delaware corporation (the “Guarantor”),
the Banks named therein and JPMorgan Chase Bank, N.A., as Administrative Agent
for the Banks.  Capitalized terms not
otherwise defined in this Assignment (this “Assignment”) shall have the
meanings assigned to them in the Credit Agreement.


 


Pursuant to the terms of the
Credit Agreement,                     
wishes to assign and delegate         %
of its rights and obligations under the Credit Agreement in connection with its
Commitment and its outstanding Advances and Note, if any.  Therefore,                           
(the “Assignor”),                             
(the “Assignee”), and the Administrative Agent agree as follows:


 


1.             For an agreed consideration, the Assignor hereby
irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, as of the Effective Date
(as defined below), without recourse to the Assignor and without representation
or warranty except for the representations and warranties specifically set
forth in Section 2 hereof, a         %(1) interest
in and to (a) all of the Assignor’s rights and obligations in its capacity
as a Bank under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the percentage interest
identified herein of all of such outstanding rights and obligations of the
Assignor under the Credit Agreement (including any guarantees included in such
facility) and (b) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor
(in its capacity as a Bank) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (a) above.


 


2.             The Assignor (a) represents and warrants that,
prior to executing this Assignment (i) its Commitment (without giving
effect to assignments thereof which have not yet become effective) is $            ,and
(ii) the aggregate outstanding principal amount of Advances (without
giving effect to assignments thereof which have not yet become effective) owed
to it by the Borrower is $            ;
(b) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and
clear of any lien, encumbrance or other adverse claim; (c) represents that
it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; (d) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in 


 


C-1

















 


connection with the Credit Agreement or any other Credit
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency, or value of the Credit Agreement or any other Credit Document or
any other instrument or document furnished pursuant thereto; (e) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the Guarantor or the performance or
observance by the Borrower or the Guarantor of any of their respective
obligations under the Credit Agreement or any other Credit Document or any
other instrument or document furnished pursuant thereto; and (f) attaches
the Note(s) referred to in Section 1 above, if any, and
requests that the Administrative Agent exchange such Note(s) for new Note(s) dated
                      ,
         in the principal amount
of $                    
payable to the order of the Assignee[, and a new Note dated                       ,
         in the principal amount
of $             
payable to the order of Assignor].


 


3.             The Assignee (a) represents and warrants that
it has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby and to become a Bank under the Credit Agreement; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in Section 5.04
thereof and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment
and to purchase the interest being assigned on the basis of which it has made
such analysis and decision independently and without reliance on the
Administrative Agent or any other Bank; (c) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor, or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are delegated
to the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (e) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (f) specifies as
its Domestic Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature pages hereof;
(g) attaches the forms prescribed by the Internal Revenue Service of the
United States of America certifying as to the Assignee’s status for purposes of
determining exemption from United States of America withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and its Note(s), if any, or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an applicable
tax treaty(2), (h) represents that it is an Eligible Assignee, and (i) agrees
that it will keep confidential all information with respect to the Borrower
furnished to it by Borrower or the Assignor (other than information generally
available to the public or otherwise available to the Assignor on a
non-confidential basis) as provided in Section 10.12 of the Credit
Agreement.


 


4.             The effective date for this Assignment shall be                 
(the “Effective Date”)(3) and following the execution of this
Assignment, the Administrative Agent will record it.


 


5.             Upon such recording, and as of the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement for all purposes, and, to the
extent provided in this Assignment, 


 


C-2

















 


have the rights and obligations of a Bank thereunder and
(b) the Assignor shall, to the extent provided in this Assignment,
relinquish its rights (other than rights against the Borrower pursuant to Section 10.04
of the Credit Agreement, which shall survive this assignment) and be released
from its obligations under the Credit Agreement.


 


6.             Upon such recording, from and after the Effective Date,
the Administrative Agent shall make all payments under the Credit Agreement and
the Note(s), if any, in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest, and fees) to the
Assignee.  The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Note(s), if any, for periods prior to the Effective Date directly
between themselves.


 


7.             This Assignment shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and
assigns.  This Assignment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page of this Assignment by telecopy shall be effective as
delivery of a manually executed counterpart of this Assignment.


 


8.             This Assignment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas.


 


The parties hereto have caused
this Assignment to be duly executed as of the date first above written.


 


	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
  Domestic Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  



 


C-3

















 


	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Eurodollar Lending Office:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as Administrative Agent for
  itself and the Banks

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Consented
  to:

  
	
   

  	
   

  	
   

  
	
   

  	
  BRINKER INTERNATIONAL, if required

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






	
  (1)

  	
   

  	
  Specify percentage in no more than 4 decimal
  points.

  
	
  (2)

  	
   

  	
  If the Assignee is organized under the laws of
  a jurisdiction outside the United States of America.

  
	
  (3)

  	
   

  	
  See Section 10.06(a) of the
  Credit Agreement. Such date shall be at least three (3) Business Days
  after the execution of this Assignment.

  



 


C-4
















 


EXHIBIT D

FORM OF LEGAL OPINION OF BORROWER’S AND GUARANTOR’S COUNSEL


 


[                    ,
20        ]


 


To
each of the Banks as defined in the 

Credit Agreement herein described 

and to JPMorgan Chase Bank, N.A., as Administrative Agent


 


Ladies
and Gentlemen:


 


This opinion is furnished to
you pursuant to Section 3.01(a)(iv) of the $215,000,000 Credit
Agreement, dated as of February 27, 2009 (the “Credit Agreement”), among
Brinker International, Inc., a Delaware corporation, as borrower (the “Borrower”);
Brinker Restaurant Corporation, a Delaware corporation, as guarantor (the “Guarantor”);
the banks party thereto (the “Banks”); and JPMorgan Chase Bank, N.A., as
Administrative Agent for the Banks (in such capacity, the “Administrative Agent”).  Capitalized terms defined in the Credit
Agreement are used herein with the same meaning unless otherwise defined
herein.


 


DOCUMENTS EXAMINED


 


In our capacity as special
counsel for the Borrower and the Guarantor, we have examined the originals,
copies or forms, certified or otherwise identified to our satisfaction, of the
following documents (items (i) and (ii) below, the “Documents”):


 


(i)            The
Credit Agreement;


 


(ii)           The
Notes issued on the date hereof, if any (the “Notes”);


 


(iii)          Certificate of Incorporation of the Borrower as filed with
the Secretary of State of Delaware on September 30, 1983 and all
amendments thereto through the date hereof (the “Borrower Certificate of
Incorporation”);


 


(iv)          Certificate of Incorporation of the Guarantor as filed with
the Secretary of State of Delaware on June 19, 1990 and all amendments
thereto through the date hereof (the “Guarantor Certificate of Incorporation”);


 


(v)           Bylaws
of the Borrower (the “Borrower Bylaws”);


 


(vi)          Bylaws
of the Guarantor (the “Guarantor Bylaws”) and


 


(vii)         The certificates (including attachments) delivered to the
Administrative Agent pursuant to Sections 3.01(a) and (g) of the
Credit Agreement.


 


D-1

















 


In addition, we have
examined and relied upon such certificates of public officials and other
certificates, opinions and instruments as we have deemed relevant and necessary
as a basis for our opinion hereinafter set forth. As to matters of fact
material to our opinion, we have, when relevant facts were not independently
established, relied upon certificates of representatives of the Borrower and
the Guarantor and upon representations and warranties set forth in the Credit
Agreement, and have not conducted any special inquiry or investigation in
respect of such matters.


 


As used herein, (i) “Disclosed”
means disclosed in the Credit Agreement or the SEC Filings of the Borrower
filed with the SEC prior to the date hereof and (ii) “Knowledge” means the
current, actual knowledge of the attorneys of this firm who are involved in the
representation of the Borrower and the Guarantor in connection with the
transactions contemplated by the Credit Agreement, without any independent
investigation.


 


ASSUMPTIONS


 


In rendering this opinion,
we have assumed, with your consent and without any independent investigation,
all of the following:


 


(A)          the genuineness of all signatures (other than those of the
officers of the Borrower and the Guarantor who executed the Credit Agreement
and the Notes), the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all documents submitted
as certified, conformed or photostatic copies;


 


(B)           that each of the parties to the Documents other than the
Borrower and the Guarantor (the “Other Parties”) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation and has full power and authority to execute, deliver
and perform its obligations under each of the Documents to which it is a party,
that each of the Documents has been duly authorized, executed and delivered by
each of the Other Parties thereto, that each of the Documents constitutes a
valid and legally binding obligation of each of the Other Parties thereto and
is enforceable against the Other Parties in accordance with its terms, that
each of the Other Parties has fulfilled and complied with its obligations under
the Documents to the extent required thereunder to date, and that the Borrower
and the Guarantor have received or will concurrently herewith receive the
consideration provided in the Documents to be received at or prior to the date
hereof;


 


(C)           that all of the Documents will be performed strictly in
accordance with the terms thereof; and


 


(D)          that the representations and warranties as to factual
matters contained in the Documents are true and correct.


 


OPINION


 


Based upon the foregoing and having due
regard for the legal considerations we deem relevant, and subject to the
further qualifications and limitations hereinafter set forth, we are of the
opinion that:


 


D-2

















 


1.             Each of the Borrower and the Guarantor is a corporation
duly incorporated, validly existing and in good standing under the Delaware
General Corporation Law, as amended (the “DGCL”), and has the corporate power
and authority under the DGCL to enter into and perform the Credit Agreement and
the Notes.


 


2.             The execution and delivery by the Borrower of each of
the Credit Agreement and the Notes issued on the date hereof and the
performance by the Borrower of its obligations thereunder have been duly and
validly authorized by all necessary corporate action of the Borrower; each of
the Credit Agreement and the Notes issued on the date hereof has been duly
executed and delivered by the Borrower; and each of the Credit Agreement and
the Notes issued on the date hereof constitutes a valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms,
in each case except as enforcement of the Credit Agreement or the Notes may be
limited by applicable bankruptcy, insolvency, reorganization, arrangement,
fraudulent transfer, moratorium or other laws affecting creditors’ rights
generally, and subject to general equity principles and to limitations on
availability of equitable relief, including specific performance.


 


3.             The execution and delivery by the Guarantor of the
Credit Agreement and the performance by the Guarantor of its obligations
thereunder have been duly and validly authorized by all necessary corporate
action of the Guarantor; the Credit Agreement has been duly executed and
delivered by the Guarantor; and the Credit Agreement constitutes a valid and
binding obligation of the Guarantor enforceable against the Guarantor in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, arrangement, fraudulent transfer, moratorium or
other laws affecting creditors’ rights generally, and subject to general equity
principles and to limitations on availability of equitable relief, including
specific performance.


 


4.             Neither the execution and delivery of the Credit
Agreement or the Notes issued on the date hereof nor the consummation of the
transactions contemplated therein will violate any provision of the Borrower
Certificate of Incorporation, the Guarantor Certificate of Incorporation, the
Borrower Bylaws or the Guarantor Bylaws, or to our Knowledge, conflict with or
violate any statute, judgment, order, decree or regulation or rule of any
court, governmental authority or arbitrator applicable or relating to the
Borrower or the Guarantor.


 


5.             To our Knowledge and except as Disclosed, there are no
actions, suits, proceedings or claims or investigations pending or threatened
against or affecting the Borrower or the Guarantor or any of their respective
properties before any court, governmental agency or regulatory authority which
would (i) have a Material Adverse Effect or (ii) impair the ability
of the Borrower or the Guarantor to perform their obligations under the Credit
Agreement or the Notes issued on the date hereof.


 


6.             Neither the Borrower nor the Guarantor is an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.


 


D-3

















 


FURTHER QUALIFICATIONS AND LIMITATIONS


 


The opinions expressed above are expressly
subject to the following qualifications and limitations:


 


(a)           We express no opinion as to (i) the specific remedy
that any court or other authority or body might grant in connection with the
enforcement of rights under any of the Documents, as to the availability of
equitable remedies, as such, in connection with the enforcement of such rights,
or as to the effects of the application of principles of equity (regardless of
whether enforcement is considered in proceedings in law or in equity), (ii) the
application of any securities laws to any of the transactions contemplated by
any of the Documents, or (iii) the effect of any environmental, antitrust
or tax laws of the United States of America or of the State of Texas.


 


(b)           We express no opinion as to the validity or enforceability
of (i) any provisions purporting to entitle a party to indemnification or
release from liability in respect of any matters arising in whole or in part by
reason of any illegal, wrongful, knowing or negligent act or omission of such
party, (ii) any provisions that purport to restrict access to or waive
remedies or defenses, to waive any rights to notices or to establish
evidentiary standards, (iii) any provisions relating to liquidated
damages, set-offs, waivers, releases, suretyship defenses, delays or omissions
of enforcement of rights or remedies, severability, consent judgments or
summary proceedings, (iv) any provisions purporting to irrevocably appoint
attorneys-in-fact or other agents, (v) any provisions purporting to
restrict or limit transfer, alienation or encumbrancing of property, (vi) any
provisions that relate to submissions to jurisdiction, waivers or ratifications
of future acts, the rights of, third parties or transferability of assets which
by their nature are nontransferable, (vii) provisions that contain any
agreement to agree, or (viii) provisions that purport to negate or control
over present or future laws which are contrary to such provisions.


 


(c)           To the extent that the opinions given in Sections 2, 3 and
4 constitute opinions with respect to laws relating to usury, such opinions are
expressly limited to the opinion that the Credit Agreement and the Notes do not
require the payment of interest at a rate which is usurious.  In rendering such opinion, we have relied
upon and assumed the applicability of Chapter 303 of the Texas Finance Code, as
currently in effect, and have assumed that (i) there are no fees, points
or other charges or forms of compensation to the Administrative Agent, the
Syndication Agent, or any Bank in respect of the Credit Agreement or the
issuance of the Notes or any commitment to pay any such charges or other forms
of compensation, other than those specifically disclosed in the Credit
Agreement, the letter agreement dated December 12, 2008, among the
Borrower, J.P. Morgan Securities, Inc. and JPMCB, and the letter agreement
dated December 12, 2008, among the Borrower, Bank of America, N.A. and
Banc of America Securities LLC (such letter agreements, the “Fee Letters”), (ii) all
fees and charges provided for in the Credit Agreement, the Notes and the Fee
Letters to be paid by Borrower or Guarantor to the Administrative Agent, the
Syndication Agent or any Bank constitute bona fide commitment fees and not
interest, (iii) all charges for reimbursement of services paid to third
parties will be for actual out-of-pocket expenses paid to third parties for
services actually rendered by such parties, (iv) the Administrative Agent,
the Syndication Agent, the Banks, the Borrower and the Guarantor will comply
with the “usury savings clause” and other provisions of the Credit Agreement to
the effect that the Borrower and the Guarantor will never be required to pay
interest (including all compensation that constitutes interest under applicable
law) on the Notes 


 


D-4

















 


or
otherwise in respect of the Credit Agreement in excess of the maximum rate or
amount of interest that may lawfully be contracted for, charged or collected
thereon or in connection therewith under applicable Texas law (collectively,
the “Savings Clauses”), and (v) in complying with the provisions of the
Saving Clauses, the Administrative Agent, the Syndication Agent and such Bank
will give due consideration to all fees, charges or other compensation which
under applicable Texas law may be or is deemed to be interest.


 


(d)           We are members of the Bar of the State of Texas. This
opinion relates only to the Federal laws of the United States of America, the
laws of the State of Texas and the DGCL as currently in effect, and we express
no opinion with regard to any matters that may be governed or affected by any
other laws.


 


(e)           This opinion is limited solely to the matters stated
herein and no opinion is to be inferred or may be implied beyond the matters
expressly stated herein.


 


The opinions expressed
herein are solely for the benefit of you and your counsel in connection with
the transactions contemplated by the Credit Agreement and may not be used or
relied upon by any other person or entity or for any other purpose
whatsoever.  The opinions expressed
herein are as of the date first set forth above, and we do not assume or
undertake any responsibility or obligation to supplement or to update such
opinions to reflect any facts or circumstances which may hereafter come to our
attention or any changes in the laws which may hereafter occur.


 


	
   

  	
  Very truly yours,

  



 


D-5

















 


EXHIBIT
E


FORM OF
U.S. TAX COMPLIANCE CERTIFICATE


 


This certificate is delivered pursuant to Section 2.15(e) of
the Credit Agreement, dated as of February 27, 2009 (the “Credit
Agreement”) among BRINKER INTERNATIONAL, INC. (the “Borrower”), BRINKER RESTAURANT CORPORATION, as the
Guarantor, the Banks party thereto and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.  Capitalized
terms defined in the Credit Agreement are used herein with the same meaning
unless otherwise defined herein.


 


The
undersigned hereby represents and warrants to the Administrative Agent and the
Borrower that:


 


1.             the
undersigned is the sole record and beneficial owner of the Advances or the
transactions evidenced by the Note(s), if any, registered in its name in
respect of which it is providing this certificate;


 


2.             the
undersigned is not a bank (within the meaning of Section 881(c)(3)(A) of
the Code) and, in this regard, further represents and warrants that:


 


(a)  the undersigned is not subject to regulatory
or other legal requirements as a bank in any jurisdiction; and


 


(b)  the undersigned has not been treated as a
bank for purposes of any tax, securities law or other filing or submission made
to any governmental authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements;


 


3.             the
undersigned is not a 10-percent shareholder (within the meaning of Section 881(c)(3)(B) of
the Code) of the Borrower;


 


4.             the
income from the Advances or the transactions evidenced by the Note(s), if any,
held by the undersigned is not effectively connected with the conduct of a
trade or business with the United States; and


 


5.             the
undersigned is not a controlled foreign corporation related (within the meaning
of Section 864(d)(4) of the Code) to the Borrower.


 


The undersigned has furnished you with a certificate of
our non-U.S. person status on Internal Revenue Service Form W-8BEN.  By executing this certificate, the undersigned
agrees that (a) if the information provided on this certificate changes,
the undersigned shall so inform the Administrative Agent and the Borrower in
writing within thirty days of such change and (b) the undersigned shall
furnish to the Administrative Agent and the Borrower a properly completed and
currently effective certificate in either the calendar year in which payment is
to be made by the Borrower to the undersigned under the Credit Agreement, or in
either of the two calendar years preceding such payment.


 


E-1

















 


IN WITNESS WHEREOF, the undersigned has caused this
certificate to be executed as of                 
    , 200    .


 


 


	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


E-2

















 


SCHEDULE I


 


BANK AND ADMINISTRATIVE AGENT ADDRESSES


 


ADMINISTRATIVE
AGENT:


 


JPMORGAN
CHASE BANK, N.A.


10
South Dearborn Street, 10th Floor


Chicago,
Illinois 60603


Attn:
 Ms. Latanya D. Driver


 


	
  Telephone:

  	
  312/385-7073

  
	
  Telecopy:

  	
  312/385-7096

  



 


SYNDICATION
AGENT:


 


BANK
OF AMERICA, N.A.


100
Federal Street, MA5-100-09-06


Boston,
Massachusetts  02110


Attn:  Mr. John H. Schmidt


 


	
  Telephone:

  	
  617/434-4044

  
	
  Telecopy:

  	
  312/453-2732

  



 


BANKS:


 


JPMORGAN
CHASE BANK, N.A.


10
South Dearborn Street, 10th Floor


Chicago,
Illinois 60603


Attn:
Ms. Latanya D. Driver


 


	
  Telephone:

  	
  312/385-7073

  
	
  Telecopy:

  	
  312/385-7096

  



 


BANK
OF AMERICA, N.A.


101
N. Tryon Street, 4th Floor


Charlotte,
North Carolina  28202


Attn:   Mr. Shankar Ahi


 


	
  Telephone:

  	
  415/436-4777
  ext. 1691

  
	
  Telecopy:

  	
  972/728-6189

  



 


 


1

















 


	
   

  	
  With
  a

  	
  Bank
  of America, N.A.

  
	
   

  	
  copy
  to:

  	
  100
  Federal Street, MA5-100-09-06

  
	
   

  	
   

  	
  Boston,
  Massachusetts 02110

  
	
   

  	
   

  	
  Attn:   Mr. John
  H. Schmidt

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:
  

  	
  617/434-4044

  
	
   

  	
   

  	
  Telecopy:
  

  	
  312/453-2732

  



 


WELLS FARGO BANK, NATIONAL ASSOCIATION


5938 Priestly Drive, Suite 200


Carlsbad, CA 92008


Attn:  Mark
Simoes


 


	
  Telephone:

  	
  760/918-2757

  
	
  Telecopy:

  	
  760/918-2727

  



 


COMPASS BANK


8080 North Central Expressway, Suite 250


Dallas, TX 75206


Attn: Key Coker


 


	
  Telephone:

  	
  214/706-8044

  
	
  Telecopy:

  	
  214/346-2746

  



 


US BANK, N.A.

425 Walnut Street, 8th Fl.

Cincinnati, OH  45202

Attn:  Frances Josephic


 


	
  Telephone:

  	
  513/762-8973

  
	
  Telecopy:

  	
  513/632-4894

  



 


THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.


2001 Ross Ave., #3150


Dallas, TX 
75201


Attn:  Mr. Doug
Barnell


 


	
  Telephone:

  	
  214/954-1240

  
	
  Telecopy:

  	
  214/954-1007

  



 


2

















 


SCHEDULE II


 


BORROWER AND GUARANTOR ADDRESSES


 


BORROWER:


 


BRINKER
INTERNATIONAL, INC.


6820
LBJ Freeway


Dallas,
Texas  75240


 


Attn:   General
Counsel


	
  Telephone:

  	
  972/980-9917

  
	
  Telecopy:

  	
  972/770-9465

  



 


Copy
to:  Vice President of Investor Relations
and Treasurer


	
  Telephone:

  	
  972/770-1276

  
	
  Telecopy:

  	
  972/770-8863

  



 


GUARANTOR:


 


BRINKER
RESTAURANT CORPORATION


6820
LBJ Freeway


Dallas,
Texas  75240


 


Attn:   General
Counsel


	
  Telephone:

  	
  972/980-9917

  
	
  Telecopy:

  	
  972/770-9465

  



 


Copy
to:  Vice President of Investor Relations
and Treasurer


	
  Telephone:

  	
  972/770-1276

  
	
  Telecopy:

  	
  972/770-8863

  



 


1
















 


SCHEDULE III


 


PERMITTED LIENS


 


	
  Subsidiary

  	
   

  	
  Amount

  	
   

  	
  Description

  	
   

  	
  Maturity

  	
   

  
	
  Brinker Restaurant Corporation

  	
   

  	
  $

  	
  50,674,399

  	
   

  	
  Capitalized Lease
  Obligations

  	
   

  	
  Various dates through
  March 2020

  	
   

  
									



 


1

















 


SCHEDULE IV


 


AGREEMENTS RESTRICTING DIVIDENDS AND CERTAIN TRANSFERS


 


1.             $400 million Term Loan Agreement
dated October 24, 2007, by and among Brinker International, Inc.,
Brinker Restaurant Corporation, the financial institutions party thereto and
Citibank, N.A., as administrative agent.


 


1

















 


SCHEDULE V


 


GAAP EXCEPTIONS


 


None.


 


1

















 


SCHEDULE VI


 


INVESTMENTS


 


	
  Company

  	
   

  	
  Amount

  	
   

  	
  Description

  	
   

  
	
  Strang Corporation

  	
   

  	
  $

  	
  910,513

  	
   

  	
  Loan associated with sale
  of restaurants

  	
   

  
	
  Las Nuevas Delicias Gastronomicas,
  S. De R.L. De C.V.

  	
   

  	
  $

  	
  10,882,370

  	
   

  	
  Mexico joint venture with
  CMR

  	
   

  
	
  Mac Acquisition, LLC

  	
   

  	
  $

  	
  6,000,000

  	
   

  	
  Investment in Macaroni
  Grill

  	
   

  
	
  Mac Acquisition, LLC

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Line of credit for
  Macaroni Grill

  	
   

  



 


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SCHEDULE VII


 


PERMITTED DEBT


 


	
  Description

  	
   

  	
  Amount

  	
   

  	
   

  
	
  5.75% Notes due 2014 pursuant to the Indenture dated May 14,
  2004, between Brinker International, Inc. and Citibank, N.A., as Trustee

  	
   

  	
  $

  	
  300,000,000

  	
   

  	
   

  
	
  $400 million Term Loan Agreement dated October 24, 2007, by and
  among Brinker International, Inc., Brinker Restaurant Corporation, the
  financial institutions party thereto and Citibank, N.A., as administrative
  agent

  	
   

  	
  $

  	
  400,000,000

  	
   

  	
   

  
	
  Capitalized Lease Obligations

  	
   

  	
  $

  	
  50,674,399