a5965539ex10_1.htm


    
      Exhibit
10.1






    

    
      

      

    

     

    CREDIT
AGREEMENT

     

    Dated as
of May 12, 2009

    


    among

     

    INGLES MARKETS,
INCORPORATED,

    as the
Borrower,

     

    BANK OF AMERICA,
N.A.,

    as
Administrative Agent, Swing Line Lender and L/C Issuer,

    


    BRANCH BANKING AND TRUST
COMPANY,

    as
Syndication Agent,

    


    WACHOVIA BANK, NATIONAL
ASSOCIATION,

    as
Documentation Agent,

    


    and

     

    The Other
Lenders Party Hereto

     

     

    BANC OF AMERICA SECURITIES
LLC,

    BRANCH
BANKING AND TRUST COMPANY

    and

    WACHOVIA CAPITAL MARKETS,
LLC,

    as

    Joint Lead
Arrangers and Joint Book Managers

     

     

    
      

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      TABLE OF
CONTENTS


    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          
                                                                                                                            
                                                                                                                              
                                                                                                                                
                                                                                                                                  
                                                                                                                                    
                                                                                                                                      
                                                                                                                                        
                                                                                                                                          
                                                                                                                                            
                                                                                                                                              
                                                                                                                                                
                                                                                                                                                  
                                                                                                                                                    
                                                                                                                                                      
                                                                                                                                                        
                                                                                                                                                          
                                                                                                                                                            
                                                                                                                                                              
                                                                                                                                                                
                                                                                                                                                                  
                                                                                                                                                                    
                                                                                                                                                                      
                                                                                                                                                                        
                                                                                                                                                                          
                                                                                                                                                                            
                                                                                                                                                                              
                                                                                                                                                                                
                                                                                                                                                                                  
                                                                                                                                                                                    
                                                                                                                                                                                      
                                                                                                                                                                                        
                                                                                                                                                                                          
                                                                                                                                                                                            
                                                                                                                                                                                              
                                                                                                                                                                                                
                                                                                                                                                                                                  
                                                                                                                                                                                                    
                                                                                                                                                                                                      
                                                                                                                                                                                                        
                                                                                                                                                                                                          
                                                                                                                                                                                                            
                                                                                                                                                                                                              
                                                                                                                                                                                                                
                                                                                                                                                                                                                  
                                                                                                                                                                                                                    
                                                                                                                                                                                                                      
                                                                                                                                                                                                                        
                                                                                                                                                                                                                          
                                                                                                                                                                                                                            
                                                                                                                                                                                                                              
                                                                                                                                                                                                                                
                                                                                                                                                                                                                                  
                                                                                                                                                                                                                                    
                                                                                                                                                                                                                                      
                                                                                                                                                                                                                                        
                                                                                                                                                                                                                                          
                                                                                                                                                                                                                                            
                                                                                                                                                                                                                                              
                                                                                                                                                                                                                                                
                                                                                                                                                                                                                                                  
                                                                                                                                                                                                                                                    
                                                                                                                                                                                                                                                      
                                                                                                                                                                                                                                                        
                                                                                                                                                                                                                                                          
                                                                                                                                                                                                                                                            
                                                                                                                                                                                                                                                              
                                                                                                                                                                                                                                                                
                                                                                                                                                                                                                                                                  
                                                                                                                                                                                                                                                                    
                                                                                                                                                                                                                                                                      
                                                                                                                                                                                                                                                                        
                                                                                                                                                                                                                                                                          	
                                                                                                                                                                                                                                                                                  Section

                                                                                                                                                                                                                                                                                	 	
                                                                                                                                                                                                                                                                                  Page

                                                                                                                                                                                                                                                                                
	 	 	 
	
                                                                                                                                                                                                                                                                                  ARTICLE I.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  DEFINITIONS
      AND ACCOUNTING TERMS

                                                                                                                                                                                                                                                                                	 
      
	
                                                                                                                                                                                                                                                                                  1.01

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Defined
      Terms

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  1

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  1.02

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Other
      Interpretive Provisions

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  32

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  1.03

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Accounting
      Terms

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  33

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  1.04

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Rounding

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  33

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  1.05

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Times
      of Day

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  33

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  1.06

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Letter
      of Credit Amounts

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  33

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  ARTICLE
      II.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  THE
      COMMITMENTS AND CREDIT EXTENSIONS

                                                                                                                                                                                                                                                                                	 
      
	
                                                                                                                                                                                                                                                                                  2.01

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Committed
      Loans

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  34

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.02

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Borrowings,
      Conversions and Continuations of Committed Loans

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  34

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.03

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Letters
      of Credit

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  35

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.04

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Swing
      Line Loans

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  43

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.05

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Prepayments

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  46

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.06

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Termination
      or Reduction of Commitments

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  48

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.07

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Repayment
      of Loans

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  49

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.08

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Interest

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  49

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.09

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Fees

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  50

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.10

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Computation
      of Interest and Fees; Retroactive Adjustments of Applicable
      Rate

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  50

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.11

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Evidence
      of Debt

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  51

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.12

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Payments
      Generally; Administrative Agent’s Clawback

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  51

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  2.13

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Sharing
      of Payments by Lenders

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  53

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  ARTICLE
      III.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  TAXES,
      YIELD PROTECTION AND ILLEGALITY

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                   
      

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.01

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Taxes.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  54

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.02

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Illegality

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  57

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.03

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Inability
      to Determine Rates

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  58

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.04

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Increased
      Costs; Reserves on Eurodollar Rate Loans

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  58

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.05

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Compensation
      for Losses

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  60

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.06

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Mitigation
      Obligations; Replacement of Lenders.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  60

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  3.07

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Survival

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  61

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  ARTICLE
      IV.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  CONDITIONS
      PRECEDENT TO CREDIT EXTENSIONS

                                                                                                                                                                                                                                                                                	 
      
	
                                                                                                                                                                                                                                                                                  4.01

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Conditions
      of Initial Credit Extension

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  61

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  4.02

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Conditions
      to all Credit Extensions

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  62

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  ARTICLE
      V.

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  REPRESENTATIONS
      AND WARRANTIES

                                                                                                                                                                                                                                                                                	 
      
	
                                                                                                                                                                                                                                                                                  5.01

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Existence,
      Qualification and Power

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  63

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.02

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Authorization;
      No Contravention

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  64

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.03

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Governmental
      Authorization; Other Consents

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  64

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.04

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Binding
      Effect

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  64

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.05

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Financial
      Statements; No Material Adverse Effect

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  64

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.06

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Litigation

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  65

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.07

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  No
      Default

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  65

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.08

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Ownership
      of Property; Liens

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  65

                                                                                                                                                                                                                                                                                
	
                                                                                                                                                                                                                                                                                  5.09

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  Environmental
      Compliance

                                                                                                                                                                                                                                                                                	
                                                                                                                                                                                                                                                                                  65

                                                                                                                                                                                                                                                                                


                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                

                                                                                                                                                                                                                              

                                                                                                                                                                                                                            

                                                                                                                                                                                                                          

                                                                                                                                                                                                                        

                                                                                                                                                                                                                      

                                                                                                                                                                                                                    

                                                                                                                                                                                                                  

                                                                                                                                                                                                                

                                                                                                                                                                                                              

                                                                                                                                                                                                            

                                                                                                                                                                                                          

                                                                                                                                                                                                        

                                                                                                                                                                                                      

                                                                                                                                                                                                    

                                                                                                                                                                                                  

                                                                                                                                                                                                

                                                                                                                                                                                              

                                                                                                                                                                                            

                                                                                                                                                                                          

                                                                                                                                                                                        

                                                                                                                                                                                      

                                                                                                                                                                                    

                                                                                                                                                                                  

                                                                                                                                                                                

                                                                                                                                                                              

                                                                                                                                                                            

                                                                                                                                                                          

                                                                                                                                                                        

                                                                                                                                                                      

                                                                                                                                                                    

                                                                                                                                                                  

                                                                                                                                                                

                                                                                                                                                              

                                                                                                                                                            

                                                                                                                                                          

                                                                                                                                                        

                                                                                                                                                      

                                                                                                                                                    

                                                                                                                                                  

                                                                                                                                                

                                                                                                                                              

                                                                                                                                            

                                                                                                                                          

                                                                                                                                        

                                                                                                                                      

                                                                                                                                    

                                                                                                                                  

                                                                                                                                

                                                                                                                              

                                                                                                                            

                                                                                                                          

                                                                                                                        

                                                                                                                      

                                                                                                                    

                                                                                                                  

                                                                                                                

                                                                                                              

                                                                                                            

                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        i

        
          

        

      

      
        
        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          	
                                                                                  5.10

                                                                                	
                                                                                  Insurance

                                                                                	
                                                                                  65

                                                                                
	
                                                                                  5.11

                                                                                	
                                                                                  Taxes

                                                                                	
                                                                                  66

                                                                                
	
                                                                                  5.12

                                                                                	
                                                                                  ERISA
      Compliance

                                                                                	
                                                                                  66

                                                                                
	
                                                                                  5.13

                                                                                	
                                                                                  Subsidiaries;
      Equity Interests

                                                                                	
                                                                                  66

                                                                                
	
                                                                                  5.14

                                                                                	
                                                                                  Margin
      Regulations; Investment Company Act

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.15

                                                                                	
                                                                                  Disclosure

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.16

                                                                                	
                                                                                  Compliance
      with Laws

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.17

                                                                                	
                                                                                  Taxpayer
      Identification Number

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.18

                                                                                	
                                                                                  Solvency

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.19

                                                                                	
                                                                                  Pari
      Passu Indebtedness/Senior Indebtedness

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.20

                                                                                	
                                                                                  Guarantees
      by Subsidiaries

                                                                                	
                                                                                  67

                                                                                
	
                                                                                  5.21

                                                                                	
                                                                                  Foreign
      Assets

                                                                                	
                                                                                  68

                                                                                
	
                                                                                  ARTICLE
      VI.

                                                                                	
                                                                                  AFFIRMATIVE
      COVENANTS

                                                                                	 
      
	
                                                                                  6.01

                                                                                	
                                                                                  Financial
      Statements

                                                                                	
                                                                                  68

                                                                                
	
                                                                                  6.02

                                                                                	
                                                                                  Certificates;
      Other Information

                                                                                	
                                                                                  69

                                                                                
	
                                                                                  6.03

                                                                                	
                                                                                  Notices

                                                                                	
                                                                                  71

                                                                                
	
                                                                                  6.04

                                                                                	
                                                                                  Payment
      of Obligations

                                                                                	
                                                                                  71

                                                                                
	
                                                                                  6.05

                                                                                	
                                                                                  Preservation
      of Existence, Etc

                                                                                	
                                                                                  71

                                                                                
	
                                                                                  6.06

                                                                                	
                                                                                  Maintenance
      of Properties

                                                                                	
                                                                                  71

                                                                                
	
                                                                                  6.07

                                                                                	
                                                                                  Maintenance
      of Insurance

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.08

                                                                                	
                                                                                  Compliance
      with Laws

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.09

                                                                                	
                                                                                  Books
      and Records

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.10

                                                                                	
                                                                                  Inspection
      Rights

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.11

                                                                                	
                                                                                  Use
      of Proceeds

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.12

                                                                                	
                                                                                  Guarantees
      by Subsidiaries

                                                                                	
                                                                                  72

                                                                                
	
                                                                                  6.13

                                                                                	
                                                                                  Asset
      Sales

                                                                                	
                                                                                  73

                                                                                
	
                                                                                  6.14

                                                                                	
                                                                                  Wachovia
      Letters of Credit

                                                                                	
                                                                                  73

                                                                                
	
                                                                                  ARTICLE
      VII.

                                                                                	
                                                                                  NEGATIVE
      COVENANTS

                                                                                	 
      
	
                                                                                  7.01

                                                                                	
                                                                                  Liens

                                                                                	
                                                                                  73

                                                                                
	
                                                                                  7.02

                                                                                	
                                                                                  Indebtedness

                                                                                	
                                                                                  76

                                                                                
	
                                                                                  7.03

                                                                                	
                                                                                  Fundamental
      Changes

                                                                                	
                                                                                  78

                                                                                
	
                                                                                  7.04

                                                                                	
                                                                                  Asset
      Sales

                                                                                	
                                                                                  79

                                                                                
	
                                                                                  7.05

                                                                                	
                                                                                  Restricted
      Payments

                                                                                	
                                                                                  79

                                                                                
	
                                                                                  7.06

                                                                                	
                                                                                  Change
      in Nature of Business; Accounting Changes

                                                                                	
                                                                                  82

                                                                                
	
                                                                                  7.07

                                                                                	
                                                                                  Transactions
      with Affiliates

                                                                                	
                                                                                  82

                                                                                
	
                                                                                  7.08

                                                                                	
                                                                                  Burdensome
      Agreements

                                                                                	
                                                                                  83

                                                                                
	
                                                                                  7.09

                                                                                	
                                                                                  Use
      of Proceeds

                                                                                	
                                                                                  84

                                                                                
	
                                                                                  7.10

                                                                                	
                                                                                  Financial
      Covenants

                                                                                	
                                                                                  84

                                                                                
	
                                                                                  7.11

                                                                                	
                                                                                  Subordinated
      Debt and Senior Notes

                                                                                	
                                                                                  85

                                                                                
	
                                                                                  7.12

                                                                                	
                                                                                  Most
      Favored Lender

                                                                                	
                                                                                  85

                                                                                
	
                                                                                  7.13

                                                                                	
                                                                                  Limitations
      with Respect to Unrestricted Subsidiaries

                                                                                	
                                                                                  86

                                                                                
	
                                                                                  ARTICLE
      VIII.

                                                                                	
                                                                                  EVENTS
      OF DEFAULT AND REMEDIES

                                                                                	
                                                                                   
      

                                                                                
	
                                                                                  8.01

                                                                                	
                                                                                  Events
      of Default

                                                                                	
                                                                                  86

                                                                                
	
                                                                                  8.02

                                                                                	
                                                                                  Remedies
      Upon Event of Default

                                                                                	
                                                                                  88

                                                                                


                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

       

      
        	
                8.03

              	
                Application
      of Funds

              	
                89

              
	
                ARTICLE
      IX.

              	
                ADMINISTRATIVE
      AGENT

              	 
      
	
                9.01

              	
                Appointment
      and Authority

              	
                90

              
	
                9.02

              	
                Rights
      as a Lender

              	
                90

              
	
                9.03

              	
                Exculpatory
      Provisions

              	
                90

              
	
                9.04

              	
                Reliance
      by Administrative Agent

              	
                91

              
	
                9.05

              	
                Delegation
      of Duties

              	
                92

              
	
                9.06

              	
                Resignation
      of Administrative Agent

              	
                92

              
	
                9.07

              	
                Non-Reliance
      on Administrative Agent and Other Lenders

              	
                93

              
	
                9.08

              	
                No
      Other Duties, Etc

              	
                93

              
	
                9.09

              	
                Administrative
      Agent May File Proofs of Claim

              	
                93

              
	
                9.10

              	
                Guaranty
      Matters

              	
                94

              
	
                9.11

              	
                Guaranteed
      Cash Management Agreements and Guaranteed Hedge Agreements

              	
                94

              
	
                ARTICLE
      X.

              	
                MISCELLANEOUS

              	 
      
	
                10.01

              	
                Amendments,
      Etc

              	
                94

              
	
                10.02

              	
                Notices;
      Effectiveness; Electronic Communication

              	
                96

              
	
                10.03

              	
                No
      Waiver; Cumulative Remedies; Enforcement

              	
                98

              
	
                10.04

              	
                Expenses;
      Indemnity; Damage Waiver.

              	
                99

              
	
                10.05

              	
                Payments
      Set Aside

              	
                100

              
	
                10.06

              	
                Successors
      and Assigns

              	
                101

              
	
                10.07

              	
                Treatment
      of Certain Information; Confidentiality

              	
                105

              
	
                10.08

              	
                Right
      of Setoff

              	
                105

              
	
                10.09

              	
                Interest
      Rate Limitation

              	
                106

              
	
                10.10

              	
                Counterparts;
      Integration; Effectiveness

              	
                106

              
	
                10.11

              	
                Survival
      of Representations and Warranties

              	
                106

              
	
                10.12

              	
                Severability

              	
                107

              
	
                10.13

              	
                Replacement
      of Lenders

              	
                107

              
	
                10.14

              	
                Defaulting
      Lenders

              	
                108

              
	
                10.15

              	
                Governing
      Law; Jurisdiction; Etc

              	
                110

              
	
                10.16

              	
                Waiver
      of Jury Trial

              	
                111

              
	
                10.17

              	
                No
      Advisory or Fiduciary Responsibility

              	
                111

              
	
                10.18

              	
                Electronic
      Execution of Assignments and Certain Other Documents

              	
                112

              
	
                10.19

              	
                USA
      PATRIOT Act Notice

              	
                112

              
	
                SIGNATURES

              	 
      	 
      


         

      

    

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

     

     

    SCHEDULES

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	 	
                                    1.01(a)

                                  	
                                    Existing
      Credit Agreements

                                  
	 	
                                    1.01(c)

                                  	
                                    Existing
      Investments

                                  
	 	
                                    1.01(d)

                                  	
                                     Unrestricted
      Subsidiaries

                                  
	 	
                                    2.01

                                  	
                                    Commitments
      and Applicable Percentages

                                  
	 	
                                    7.01

                                  	
                                    Existing
      Liens

                                  
	 	
                                    7.02

                                  	
                                    Existing
      Indebtedness

                                  
	 	
                                    7.08

                                  	
                                    Burdensome
      Agreements

                                  
	 	
                                    10.02

                                  	
                                    Administrative
      Agent’s Office; Certain Addresses for
Notices

                                  


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    


    EXHIBITS

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	 	 	Form
  of
	 	 	 
	 	
                                      A

                                    	
                                      Committed
      Loan Notice

                                    
	 	
                                      B

                                    	
                                      Swing
      Line Loan Notice

                                    
	 	
                                      C

                                    	
                                      Note

                                    
	 	
                                      D

                                    	
                                      Compliance
      Certificate

                                    
	 	
                                      E-1

                                    	
                                      Assignment
      and Assumption

                                    
	 	
                                      E-2

                                    	
                                      Administrative
      Questionnaire

                                    
	 	
                                      F

                                    	
                                      Opinion
      Matters

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    CREDIT
AGREEMENT

     

    This CREDIT AGREEMENT (“Agreement”) is
entered into as of May 12, 2009, among INGLES MARKETS, INCORPORATED,
a North Carolina corporation (the “Borrower”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), BRANCH BANKING AND TRUST
COMPANY, as Syndication Agent, WACHOVIA BANK, NATIONAL
ASSOCIATION, as Documentation Agent, and BANK OF AMERICA, N.A., as Administrative Agent
and Swing Line Lender.

     

    The
Borrower has requested that the Lenders provide a revolving credit facility, and
the Lenders are willing to do so on the terms and conditions set forth
herein.

     

    In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:

     

     

    ARTICLE
I.

    DEFINITIONS
AND ACCOUNTING TERMS

     

    1.01  Defined Terms.  As
used in this Agreement, the following terms shall have the meanings set forth
below:

     

    “Accounts Receivable”
means, as to any Person, all of such Person’s now owned or hereafter acquired or
arising accounts, as defined in the UCC, including any rights to payment for the
sale or lease of goods or rendition of services, whether or not they have been
earned by performance.

     

    “Acquired
Indebtedness” means Indebtedness of a Person (a) existing at the time
such Person becomes a Restricted Subsidiary or (b) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary or such acquisition, as the case may
be.  Acquired Indebtedness shall be deemed to be incurred on the date
of the related acquisition of assets from any Person or the date the acquired
Person becomes a Restricted Subsidiary, as the case may be.

     

    “Acquisition” means,
by any Person, the acquisition by such Person, in a single transaction or in a
series of related transactions, of either (a) all or any substantial portion of
the property of, or a line of business or division of, another Person or (b) at
least a majority of the Voting Equity Interests of another Person or the right
via contract or otherwise to control the voting rights of at least a majority of
the Voting Equity Interests of another Person, in each case whether or not
involving a merger or consolidation with such other Person.

     

    “Administrative Agent”
means Bank of America in its capacity as administrative agent under any of the
Loan Documents, or any successor administrative agent.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or
such other address or account as the Administrative Agent may from time to time
notify to the Borrower and the Lenders.

     

    “Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit
E-2 or any other form approved by the Administrative Agent.

     

    “Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.

     

    “Aggregate
Commitments” means the Commitments of all the Lenders.

     

    “Agreement” means this
Credit Agreement.

     

    “Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time.  If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent
assignments.  The initial Applicable Percentage of each Lender is set
forth opposite the name of such Lender on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.

     

    “Applicable Rate”
means, from time to time, the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section
6.02(a):

     

    Applicable
Rate

     

    
      
        
          
            
              
                	
                        Pricing

                        Level

                      	
                        Consolidated

                        Leverage
      Ratio

                      	
                        Eurodollar

                        Rate
      Loans

                        Letters
      of Credit

                      	
                        Base
      Rate

                        Loans

                      
	
                        1

                      	
                        Less
      than 4.00 to 1.00

                      	
                        2.75%

                      	
                        1.75%

                      
	
                        2

                      	
                        Greater
      than or equal to 4.00 to 1.00

                      	
                        3.00%

                      	
                        2.00%

                      


              

            

          

        

      

    

     

    Any
increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following delivery of a Compliance Certificate pursuant to Section 6.02(a)
for the most recently ended fiscal period; provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 2 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and shall remain in effect until
the date on which such Compliance Certificate is delivered.  The
Applicable Rate in effect from the Closing Date through the first Business Day
after the date of the delivery of a Compliance Certificate first occurring on or
after November 12, 2009 shall be determined based upon Pricing Level
1.

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section
2.10(b).

     

    “Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.

     

    “Arrangers” means each
of BAS, BB&T and WCM, in their capacity as joint lead arrangers and joint
book managers.

     

    “Asset Sale” means any
sale, issuance, conveyance, transfer, lease or other Disposition (including,
without limitation, by way of merger, consolidation or sale and leaseback
transaction) (collectively, a “transfer”), directly or indirectly, in one or a
series of related transactions, of:

     

    (a)           any
Equity Interests of any Restricted Subsidiary;

     

    (b)           all
or substantially all of the properties and assets of any division or line of
business of the Borrower or any Restricted Subsidiary; or

     

    (c)           any
other properties or assets of the Borrower or any Restricted Subsidiary other
than in the ordinary course of business.

     

    For the
purposes of this definition, the term “Asset Sale” shall not
include:

     

    (a)           any
transfer of properties and assets that is governed by the provisions of Section
7.03;

     

    (b)           any
transfer of properties and assets that is by the Borrower to any Guarantor, or
by any Guarantor to the Borrower or any Guarantor in accordance with the terms
of this Agreement including any issuance of Equity Interests;

     

    (c)           any
transfer of properties and assets that would be within the definition of a
“Restricted Payment” and would be permitted to be made as a Restricted Payment
(and shall be deemed a Restricted Payment) under Section
7.05;

     

    (d)           any
transfer of properties and assets that is of obsolete equipment in the ordinary
course of business;

     

    (e)           any
disposition of Cash Equivalents;

     

    (f)           any
non-exclusive license or sublicense of intellectual property or other
intangibles;

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

    (g)           any
surrender or waiver of contract rights or the settlement, release or surrender
of contract, tort or other claims of any kind;

     

    (h)           to
the extent permitted under Section 1031 of the Code, any exchange of like
property;

     

    (i)           any
lease, assignment or sublease of any real or personal property in the ordinary
course of business; or

     

    (j)           any
transfer of properties and assets the fair market value of which in the
aggregate does not exceed $5,000,000 in any transaction or series of related
transactions.

     

    “Asset Swap” means the
exchange by the Borrower or a Restricted Subsidiary of a portion of its
property, business or assets, in the ordinary course of business, for property,
business or assets which, or Equity Interests of a Person all or substantially
all of whose assets, are of a type used in the business of the Borrower on the
Closing Date or in a Permitted Business, or a combination of any property,
business or assets or Equity Interests of such a Person and cash or Cash
Equivalents.

     

    “Assignee Group” means
two or more Eligible Assignees that are Affiliates of one another or two or more
Approved Funds managed by the same investment advisor.

     

    “Assignment and
Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section
10.06(b)), and accepted by the Administrative Agent, in substantially the
form of Exhibit
E-1 or any other form approved by the Administrative Agent.

     

    “Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a capital lease.

     

    “Audited Financial
Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended September 27, 2008, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Borrower and its Subsidiaries,
including the notes thereto.

     

    “Autoborrow Agreement”
has the meaning specified in Section
2.04.

     

    “Availability Period”
means the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant
to Section
2.06, and (c) the date of termination of the commitment of each Lender to
make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section
8.02.

     

    “Bank of America”
means Bank of America, N.A. and its successors.

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

    “BAS” means Banc of
America Securities LLC and its successors.

     

    “Base Rate” means, for
any day, a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus
1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar
Rate plus
1.00%.  The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.  Any change in the Base Rate due to a change in the “prime rate”
or the Federal Funds Rate shall take effect at the opening of business on the
day specified in the public announcement such change in the “prime rate” or the
Federal Funds Effective Rate, respectively.  For the purposes of clause (c) above, the
Eurodollar Rate shall be determined daily and any change shall take effect on
the day of such change.

     

    “Base Rate Committed
Loan” means a Committed Loan that is a Base Rate Loan.

     

    “Base Rate Loan” means
a Loan that bears interest based on the Base Rate.

     

    “BB&T” means
Branch Banking and Trust Company and its successors.

     

    “Borrower” has the
meaning specified in the introductory paragraph hereto.

     

    “Borrower Materials”
has the meaning specified in Section
6.02.

     

    “Borrowing” means a
Committed Borrowing or a Swing Line Borrowing, as the context may
require.

     

    “Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the state where
the Administrative Agent’s Office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits
are conducted by and between banks in the London interbank eurodollar
market.

     

    “Capital Lease
Obligations” means, with respect to any Person, any obligation of such
Person and its Restricted Subsidiaries on a consolidated basis under any capital
lease of (or other agreement conveying the right to use) real or personal
property that, in accordance with GAAP, is required to be recorded as a
capitalized lease obligation.

     

    “Cash Collateralize”
has the meaning specified in Section
2.03(g).

     

    “Cash Equivalents”
means any of the following types of Investments, to the extent owned by the
Borrower or any of its Subsidiaries free and clear of all Liens:

    


    (a)           any
evidence of Indebtedness issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof;

     

    (b)           deposits,
certificates of deposit or acceptances of any financial institution that is a
member of the Federal Reserve System and whose senior unsecured debt is rated at
least “A-1” by Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. (“S&P”), or at
least “P-1” by Moody’s Investors Service, Inc.  (“Moody’s”);

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

    (c)           commercial
paper with a maturity of 365 days or less issued by a corporation (other than an
Affiliate or Subsidiary of the Borrower) organized and existing under the laws
of the United States, any state thereof or the District of Columbia and rated at
least “A-1” by S&P and at least “P-1” by Moody’s;

     

    (d)           repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the United States or issued
by any agency thereof and backed by the full faith and credit of the United
States maturing within 365 days from the date of acquisition; and

     

    (e)           money
market funds which invest substantially all of their assets in securities
described in the preceding clauses (a) through (d).

     

    “Cash Management
Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic
funds transfer and other cash management arrangements.

     

    “Cash Management Bank”
means any Person that, (a) at the time it enters into a Cash Management
Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or
its Affiliate) becomes a Lender, is a party to a Cash Management Agreement in
each case in its capacity as a party to such Cash Management
Agreement.

     

    “Change in Law” means
the occurrence, after the date of this Agreement, of any of the following: (a)
the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not having
the force of law) by any Governmental Authority.

     

    “Change of Control”
means an event or series of events by which:

     

    (a)           at
any time that the Permitted Holders are “beneficial owners” (as defined in Rules
13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person
or group shall be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire whether such right is exercisable
immediately or only after the passage of time (such right, an “option right”)) of
less than a majority of the Voting Equity Interests of the Borrower, any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) other than
the Permitted Holders becomes the beneficial owner, directly or indirectly, of
35% or more of the Voting Equity Interests of the Borrower (taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right);

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

     

    (b)           during
any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period or (ii) whose election or
nomination to that board or equivalent governing body was approved by at least
two-thirds (2/3) of that
board or equivalent governing body; or

     

    (c)           at
any time that the Permitted Holders are beneficial owners of less than a
majority of Voting Equity Interests of the Borrower, any Person (other than the
Permitted Holders) or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower, or control over the Voting Equity
Interests of the Borrower representing 35% or more of the combined voting power
of such securities; or

     

    (d)           the
Borrower consolidates with or merges with or into any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with or merges into or with
the Borrower, in any such event pursuant to a transaction in which the
outstanding Voting Equity Interests of the Borrower are converted into or
exchanged for cash, securities or other property, other than any such
transaction where:

     

    (i)           the
outstanding Voting Equity Interests of the Company are changed into or exchanged
for (A) Voting Equity Interests (other than Redeemable Equity Interests) of the
surviving Person or (B) cash, securities and other property (other than Equity
Interests of the surviving corporation) in an amount that could be paid by the
Borrower as a Restricted Payment in accordance with Section 7.05 hereof
(and such amount shall be treated as a Restricted Payment subject to the
provisions of Section
7.05); and

     

    (ii)           immediately
after such transaction, no “person” or “group” other than Permitted Holders is
the beneficial owner, directly or indirectly, of Voting Equity Interests in the
surviving Person entitled to exercise more than 35% of the total voting power of
all outstanding Voting Equity Interests of the surviving Person; provided, that for
purposes of this definition, any transfer of an Equity Interest of a Person that
was formed for the purpose of acquiring Voting Equity Interests of the Borrower
will be deemed to be a transfer of such portion of such Voting Equity Interests
as corresponds to the portion of the Equity Interests of such Person that has
been so transferred.

     

    “Class A Common Stock”
means the Borrower’s Class A Common Stock, $0.05 par value per
share.

     

    “Class B Common Stock”
means the Borrower’s Class B Common Stock, $0.05 per value per
share.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    “Closing Date” means
the first date all the conditions precedent in Section 4.01 are
satisfied or waived in accordance with Section
10.01.

     

    “Code” means the
Internal Revenue Code of 1986.

     

    “Commitment” means, as
to each Lender, its obligation to (a) make Committed Loans to the Borrower
pursuant to Section
2.01, (b) purchase participations in L/C Obligations and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement; provided, that (i)
until the Wachovia Letters of Credit have been refinanced, replaced or
terminated, as the case may be, the Commitment of Wachovia shall equal the
amount set forth Wachovia’s name on Schedule 2.01 minus the aggregate
maximum stated amount of the Wachovia Letters of Credit and (ii) promptly upon
the refinancing, replacement or termination of any Wachovia Letter of Credit at
any time and from time to time, the amount of Wachovia’s Commitment
automatically shall increase by the maximum stated amount of such refinanced,
replaced or terminated Wachovia Letter of Credit.

     

    “Commitment Letter”
means that certain commitment letter agreement, dated as of May 8, 2009, among
the Borrower, Bank of America, BB&T and Wachovia.

     

    “Committed Borrowing”
means a borrowing consisting of simultaneous Committed Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period made
by each of the Lenders pursuant to Section
2.01.

     

    “Committed Loan” has
the meaning specified in Section
2.01.

     

    “Committed Loan
Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other, or (c) a continuation of Eurodollar
Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit
A.

     

    “Common Stock” means
the Borrower’s Class A Common Stock and Class B Common Stock.

     

    “Compliance
Certificate” means a certificate substantially in the form of Exhibit
D.

     

    “Consolidated Adjusted
EBITDA” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount equal to the sum (without
duplication) of (a) Consolidated EBITDA, plus (b) rental
expense for such period, plus (c) other
non-cash charges and extraordinary charges (other than extraordinary charges
described in clause (d) of this definition) not to exceed $15,000,000 in the
aggregate for the period from the Closing Date through the Maturity Date plus (d) to the
extent actually paid in cash during such period, extraordinary charges
consisting of fees and other transaction costs arising from or with respect to
the issuance of the Senior Notes, the repayment of the Existing Subordinated
Debt, the repayment of other Indebtedness (with proceeds of the Senior Notes)
from time to time during the period from the Closing Date to the date that
occurs twelve months after the Closing Date, and/or the transactions
contemplated by the Senior Notes.

     

    
      
         

      

      
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    “Consolidated Adjusted
Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) (i) Consolidated EBITDA of any Person and its Restricted
Subsidiaries for the period of the four prior fiscal quarters ending on such
date minus (ii)
all non-cash items increasing Consolidated Net Income for such period minus (iii) all cash
payments during such period relating to non-cash charges that were added back to
Consolidated Net Income in determining the Consolidated Adjusted Interest
Coverage Ratio in any prior period, to (b) the sum of (i)
Consolidated Interest Charges of such Person and its Restricted Subsidiaries and
(ii) cash and non-cash dividends or other distributions by such Person or its
Restricted Subsidiaries with respect to Redeemable Equity Interests and
preferred Equity Interests for such period; provided, that in
each case, the Consolidated Adjusted Interest Coverage Ratio shall be calculated
after giving pro forma
effect (in accordance with Article 11 of Regulation S-X under the Securities Act
of 1933 or any successor provision) to the following:

     

    (1) the
incurrence of the Indebtedness giving rise to the need to make such calculation
and (if applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, on the first day of such
period;

     

    (2) the
incurrence, repayment or retirement of any other Indebtedness by the Borrower
and its Restricted Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired at the beginning of such period
(other than the incurrence or repayment of indebtedness in the ordinary course
of business for working capital purposes pursuant to any revolving credit
agreement);

     

    (3) in the
case of Acquired Indebtedness or any acquisition occurring at the time of the
incurrence of such Indebtedness, the related acquisition, assuming such
acquisition had been consummated on the first day of such period;
and

     

    (4) any
acquisition or disposition by the Company and its Restricted Subsidiaries of any
company or any business or any assets out of the ordinary course of business,
whether by merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first day of such
period, assuming such acquisition or disposition had been consummated on the
first day of such period;

     

    provided, further, that in
making such computation, the Consolidated Interest Charges attributable to
interest on any Indebtedness computed on a pro forma basis and
(A) bearing a floating interest rate shall be computed as if the rate in
effect on the date of computation had been the applicable rate for the entire
period (other than with respect to Indebtedness incurred in the ordinary course
of business for working capital purposes pursuant to any revolving credit
agreement) and (B) which was not outstanding during the period for which
the computation is being made but which bears, at the option of such Person, a
fixed or floating rate of interest, shall be computed by applying at the option
of such Person either the fixed or floating rate.

     

    
      
         

      

      
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     “Consolidated EBITDA”
means, for any period, for the Borrower and its Restricted Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period
plus the
following to the extent deducted in calculating such Consolidated Net Income:
(a) Consolidated Interest Charges for such period, (b) the provision for
Federal, state, local and foreign income taxes payable by the Borrower and its
Restricted Subsidiaries for such period and (c) depreciation and amortization
expense.

     

    “Consolidated Fixed Charge
Coverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Adjusted EBITDA for the period of the four prior fiscal quarters
ending on such date to
(b) Consolidated Fixed Charges for such period.

     

    “Consolidated Fixed
Charges” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum of (a) Consolidated Interest
Charges for such period plus (b) current maturities of
Consolidated Funded Indebtedness (other than Excluded Debt) for such period
plus (c) rental
expense for such period plus (d) Restricted
Payments described in clauses (a), (b) or (d) of the definition thereof (other
than (i) such Restricted Payments made to the Borrower or any Restricted
Subsidiary and (ii) dividends or other distributions payable solely in common
equity interests of the Person making such dividend or other distribution) made
during such period.

     

    “Consolidated Funded
Indebtedness” means, as of any date of determination, for the Borrower
and its Restricted Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) if the aggregate maximum
stated amount of all letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments of
the Borrower and its Restricted Subsidiaries is in excess of $30,000,000, all
obligations in excess of such amount arising under such letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments, whether or not such letters of credit have
been drawn upon, (d) all obligations in respect of the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business), (e) Attributable Indebtedness in respect of capital leases
and Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than the Borrower or any Restricted
Subsidiary (other than any Non-Recourse-Real Estate Subsidiary), and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly
made non-recourse to the Borrower or such Subsidiary.

     

    “Consolidated Interest
Charges” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrower and
its Restricted Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense of the Borrower and its Restricted
Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP.

     

    
      
         

      

      
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    “Consolidated Leverage
Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Net Debt (excluding Indebtedness issued and outstanding under the
Existing Subordinated Note Indenture after the Closing Date if and to the extent
that such Indebtedness has been called in accordance with the Existing
Subordinated Note Indenture) as of such date to (b) Consolidated EBITDA
for the period of the four fiscal quarters most recently ended.

     

    “Consolidated Net
Debt” means, as of any date of determination, Consolidated Funded
Indebtedness as of such date minus the aggregate
amount of cash and Cash Equivalents reflected on the Balance Sheet of the
Borrower and, to the extent such cash and Cash Equivalents are permitted to be
distributed to the Borrower by dividend or otherwise, its Restricted
Subsidiaries (other than any Non-Recourse Real Estate Subsidiary) as of such
date.

     

    “Consolidated Net Secured
Debt” means Consolidated Net Debt that is secured by a Lien upon all or
any portion of the assets of the Borrower or any of its Restricted
Subsidiaries.

     

    “Consolidated Net
Income” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses)
for that period.

     

    “Consolidated Net
Worth” means, as of any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, Shareholders’ Equity of the Borrower and
its Subsidiaries on that date;
provided, however, that there
shall be excluded from the calculation of “Consolidated Net Worth” any effects
resulting from the application of FASB Statement No. 158: Employers’ Accounting
for Defined Pension and Other Post-Retirement Plans.

     

     “Consolidated Secured
Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Net Secured Debt as of such date to (b) Consolidated EBITDA
for the period of the four fiscal quarters most recently ended.

     

    “Consolidated Tangible
Assets” means, as of any date of determination, for the Borrower and its
Restricted Subsidiaries on a consolidated basis, an amount equal to (a) the
consolidated assets of the Borrower and its Restricted Subsidiaries as of such
date minus (b)
the intellectual property, goodwill and other intangible assets, in each case
determined in accordance with GAAP, as of such date.

     

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

     

    “Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise.  “Controlling” and
“Controlled”
have meanings correlative thereto.

     

    
      
         

      

      
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    “Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.

     

    “Debtor Relief Laws”
means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.

     

    “Default” means any
event or condition that constitutes an Event of Default or that, with the giving
of any notice, the passage of time, or both, would be an Event of
Default.

     

    “Default Excess” has
the meaning specified in Section
10.14(b).

     

    “Default Period” has
the meaning specified in Section
10.14(b).

     

    “Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit Fees, an
interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable
to such Loan plus 2% per annum, and (b) when used with respect to Letter of
Credit Fees, a rate equal to the Applicable Rate plus 2% per
annum.

     

    “Defaulted Loan” has
the meaning specified in Section
10.14(b).

     

    “Defaulted Payment”
has the meaning specified in Section
10.14(b).

     

    “Defaulting Lender”
has the meaning specified in Section
10.14(b).

     

    “Designated Non-cash
Consideration” means the fair market value of non-cash consideration
received by the Borrower or any of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated pursuant to a certificate of a
Responsible Officer of the Borrower, setting forth the basis of the
valuation.  The aggregate fair market value of the Designated Non-cash
Consideration held by the Borrower or any Restricted Subsidiary at any given
time, taken together with the fair market value at the time of receipt of all
other Designated Non-cash Consideration received and still held by the Borrower
or any Restricted Subsidiary at such time, may not exceed the greater of (x)
$20,000,000 in the aggregate or (y) 2% of the Consolidated Tangible Assets, at
the time of the receipt of the Designated Non-cash Consideration (with the fair
market value being measured at the time received and without giving effect to
subsequent changes in value).

     

    “Disinterested
Director” means, with respect to any transaction or series of related
transactions, a member of the board of directors of the Borrower who does not
have any material direct or indirect financial interest in or with respect to
such transactions or series of related transactions.

     

    
      
         

      

      
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     “Disposition” or
“Dispose” means
the sale, transfer, license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated
therewith.

     

    “Distress Event” has
the meaning specified in Section
10.14(b).

     

    “Distressed Person”
has the meaning specified in Section
10.14(b).

     

    “Dollar” and “$” mean lawful money
of the United States.

     

    “Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any political
subdivision of the United States.

     

    “Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section
10.06(b)(iii), (v), (vi) and (vii) (subject to
such consents, if any, as may be required under Section
10.06(b)(iii)).

     

    “Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.

     

    “Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.

     

    “Equity Interests”
means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of
determination.

     

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

     

    “ERISA Affiliate”
means any trade or business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).

     

    
      
         

      

      
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    “ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate.

     

    “Eurodollar Rate”
means,

     

    (a) with
respect to each Eurodollar Rate Loan, for any Interest Period with respect to a
Eurodollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period.  If such rate is not available at such time for any reason,
then the “Eurodollar Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest
Period.

     

    (b) for
any interest calculation with respect to a Base Rate Loan, the rate per annum
equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time, two Business
Days prior to the date of determination for Dollar deposits being delivered in
the London interbank market for a term of one month commencing that day or (ii)
if such published rate is not available at such time for any reason, the rate
per annum determined by the Administrative Agent to be the rate at which
deposits in dollars for delivery two Business Days prior to the date of
determination in same day funds in the approximate amount of the Base Rate Loan
being made or maintained by Bank of America and with a term equal to one month
would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at the date and time of
determination.

     

    
      
         

      

      
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    “Eurodollar Rate Loan”
means a Committed Loan that bears interest at a rate based on clause (a) of the
definition of Eurodollar Rate.

     

    “Event of Default” has
the meaning specified in Section
8.01.

     

    “Excess Proceeds” has
the meaning specified in Section
6.13.

     

    “Excluded Debt” means
(a) so long as the amount of Aggregate Commitments available to be borrowed by
the Borrower in accordance with Section 2.01 is
greater than or equal to $75,000,000, up to $50,000,000 of Consolidated Funded
Indebtedness that matures in 2011 and is secured by one or more mortgages or
other Liens upon real property of the Borrower, and (b) lines of credit
permitted under Section 7.02(b)(ii)
and refinancings thereof in accordance with Section 7.02(m) so
long as the maturity date thereof is less than one year from the applicable
covenant test date.

     

    “Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or
any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the Laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Borrower is located,
(c) any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 10.13), any
United States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or
(ii) is attributable to such Foreign Lender’s failure or inability (other than
as a result of a Change in Law) to comply with clause (B)
of  Section
3.01(e)(ii), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending
Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.01(a)(ii)
or (iii).

     

    “Existing Credit
Agreements” means the collective reference to the credit agreements and
other documents described on Schedule
1.01(a).

     

    “Existing Subordinated
Debt” means the 8.875% Senior Subordinated Notes due 2011 issued by the
Borrower pursuant to the Subordinated Note Indenture (including any “Additional
Securities” (as defined in the Existing Subordinated Note
Indenture)).

     

    “Existing Subordinated Note
Indenture” means the Indenture dated as of December 11, 2001 among the
Borrower and U.S. Bank, N.A., as Trustee, as amended, restated, supplemented or
otherwise modified from time to time in a manner permitted
hereunder.

     

    “Federal Funds
Rate”  means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.

     

    
      
         

      

      
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    “Fee Letter” means the
letter agreement, dated May 11, 2009, among the Borrower, the Administrative
Agent and BAS.

     

    “Foreign Lender” means
any Lender that is organized under the Laws of a jurisdiction other than that in
which the Borrower is resident for tax purposes (including such a Lender when
acting in the capacity of the L/C Issuer).  For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.

     

    “FRB” means the Board
of Governors of the Federal Reserve System of the United States.

     

    “Fund” means any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.

     

    “GAAP” means generally
accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved
by a significant segment of the accounting profession in the United States, that
are applicable to the circumstances as of the date of determination,
consistently applied.

     

    “Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central
Bank).

     

    “Guarantee” means, as
to any Person, any (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of
the payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to
obtain any such Lien).  The amount of any Guarantee shall be deemed to
be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good
faith.  The term “Guarantee” as a verb has a corresponding
meaning.

     

    
      
         

      

      
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    “Guaranteed Cash Management
Agreement” means any Cash Management Agreement that is entered into by
and between any Loan Party and any Cash Management Bank.

    


    “Guaranteed Hedge
Agreement” means any Swap Contract permitted under Article VII that is
entered into by and between any Loan Party and any Hedge Bank.

    


    “Guaranteed Parties”
means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, the
Cash Management Banks, and each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section
9.05.

     

    “Guarantors” means,
collectively, the Restricted Subsidiaries that are Domestic Subsidiaries that
enter into the Guaranty pursuant to Section 6.12 or
otherwise.

     

    “Guaranty” means the
Guaranty made by the Guarantors in favor of the Administrative Agent and the
Guaranteed Parties, in for and substance reasonably acceptable to the
Administrative Agent, as supplemented from time to time by execution and
delivery of Guaranty Joinder Agreements pursuant to Section 6.12 or
otherwise.

     

    “Guaranty Joinder
Agreement” means each Guaranty Joinder Agreement, substantially in the
form thereof attached to the Guaranty, executed and delivered by a Domestic
Subsidiary to the Administrative Agent pursuant to Section 6.12 or
otherwise.

     

    “Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.

     

    “Hedge Bank” means any
Person that, (a) at the time it enters into a Swap Contract permitted under
Article VII, is
a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate)
becomes a Lender, is a party to a Swap Contract in each case in its capacity as
a party to such Swap Contract.

     

    “Indebtedness” means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:

     

    
      
         

      

      
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    (a)           all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;

     

    (b)           all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;

     

    (c)           net
obligations of such Person under any Swap Contract;

     

    (d)           all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);

     

    (e)           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;

     

    (f)           capital
leases and Synthetic Lease Obligations;

     

    (g)           all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred interest, at the greater
of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; and

     

    (h)           all
Guarantees of such Person in respect of any of the foregoing.

     

    For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.  The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.  The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.

     

    “Indemnified Taxes”
means Taxes other than Excluded Taxes.

     

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

     

    “Information” has the
meaning specified in Section
10.07.

     

    “Intangible Assets”
means assets that are considered to be intangible assets under GAAP, including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks, patents, franchises, licenses, unamortized deferred charges,
unamortized debt discount and capitalized research and development
costs.

     

    
      
         

      

      
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    “Interest Payment
Date” means, (a) as to any Loan other than a Base Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any
Interest Period for a Eurodollar Rate Loan exceeds three months, the respective
dates that fall every three months after the beginning of such Interest Period
shall also be Interest Payment Dates; (b) as to any Base Rate Loan (other than
Swing Line Loan), the last Business Day of each March, June, September and
December and the Maturity Date and (c) as to Swing Line Loans, the last Business
Day of each calendar month and the Maturity Date.

     

    “Interest Period”
means, as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by the Borrower in its Committed Loan Notice; provided
that:

     

    (i)           any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;

     

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

     

    (iii)           no
Interest Period shall extend beyond the Maturity Date.

     

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

     

    “Investment” means, as
to any Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of capital stock or
other securities of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any arrangement
pursuant to which the investor Guarantees Indebtedness of such other Person, or
(c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business
unit.  For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.

     

    “IRS” means the United
States Internal Revenue Service.

     

    
      
         

      

      
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    “ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or
such later version thereof as may be in effect at the time of
issuance).

     

    “Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating
to such Letter of Credit.

     

    “Laws” means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.

     

    “L/C Advance” means,
with respect to each Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Applicable Percentage.

     

    “L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which
has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.

     

    “L/C Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension
of the expiry date thereof, or the increase of the amount thereof.

     

    “L/C Issuer” means
Bank of America, in its capacity as issuer of Letters of Credit hereunder, or
any successor issuer of Letters of Credit hereunder.

     

    “L/C Obligations”
means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.  For purposes
of computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.06.  For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be “outstanding” in the amount so
remaining available to be drawn.

     

    “Lender” has the
meaning specified in the introductory paragraph hereto and, as the context
requires, includes the Swing Line Lender.

     

    “Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the Borrower and the Administrative
Agent.

     

    
      
         

      

      
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    “Letter of Credit”
means any letter of credit issued hereunder and may include, if and when
applicable, Letters of Credit issued by the L/C Issuer hereunder replacing,
amending or collateralizing the Wachovia Letters of Credit.

     

    “Letter of Credit
Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.

     

    “Letter of Credit Expiration
Date” means the day that is seven days prior to the Maturity Date then in
effect (or, if such day is not a Business Day, the next preceding Business
Day).

     

    “Letter of Credit Fee”
has the meaning specified in Section
2.03(i).

     

    “Letter of Credit
Sublimit” means an amount equal to $30,000,000.  The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.

     

    “Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any
kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to
real property, and any financing lease having substantially the same economic
effect as any of the foregoing).

     

    “Loan” means an
extension of credit by a Lender to the Borrower under Article II in the
form of a Committed Loan or a Swing Line Loan.

     

    “Loan Documents” means
this Agreement, each Note, each Issuer Document, the Guaranty and any fee letter
entered into in connection with this Agreement.

     

    “Loan Parties” means,
collectively, the Borrower and each Guarantor.

     

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

     

    “Maturity Date” means
May 12, 2012; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding
Business Day.

     

    “Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.

     

    
      
         

      

      
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    “Net Cash Proceeds”
means (a) with respect to any Disposition by the Borrower or its Subsidiaries,
the excess, if any, of (i) the sum of cash and Cash Equivalents received in
connection with such transaction (including by deferred payment, or monetization
of a note, but only when so received) over (ii) the sum of the principal amount
of any Indebtedness (other than under the Loan Documents) secured by the
applicable asset that is required to be repaid in connection with the
transaction, the reasonable and customary out-of-pocket expenses incurred by the
Borrower or such Subsidiary in connection with such transaction, and net taxes
payable within two years of the date of the transaction as a result of any gain
recognized in accordance therewith, and (b) with respect to the sale or issuance
of any Equity Interest or the incurrence or issuance of Debt by the Borrower or
its Subsidiaries, the excess of (i) the sum of cash and Cash Equivalents
received in connection with such transaction over (ii) the reasonable and
customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in
connection with such transaction.

     

     

    “Non-Recourse Real Estate
Subsidiaries” means a Restricted Subsidiary designated by the Borrower as
a Non-Recourse Real Estate Subsidiary and substantially all of whose assets
consist of real property, buildings, additions and accessions thereto and
related assets; provided that (x) the
Borrower may not designate a Restricted Subsidiary as a Non-Recourse Real Estate
Subsidiary if a Default shall have occurred and be continuing at the time of or
after giving effect to such designation, (y) the Borrower and the other
Restricted Subsidiaries, if any, may not be directly or indirectly obligated to
make additional Investments in any Non-Recourse Real Estate Subsidiary after
such Non-Recourse Real Estate Subsidiary’s initial financing transaction and (z)
neither the Borrower nor any Restricted Subsidiary that is not a Non-Recourse
Real Estate Subsidiary shall be directly or indirectly liable as to any
Indebtedness of such Non-Recourse Real Estate Subsidiary (by virtue of the
Borrower or any such Restricted Subsidiary being the primary obligor on,
guarantor of, or otherwise liable in any respect to, such Indebtedness), and
which, upon the occurrence of a default with respect to such Indebtedness of
such Non-Recourse Real Estate Subsidiary, does not result in, or permit any
holder of any Indebtedness of the Borrower or any Restricted Subsidiary other
than a Non-Recourse Real Estate Subsidiary to declare, a default on such
Indebtedness of the Borrower or any Restricted Subsidiary other than a
Non-Recourse Real Estate Subsidiary or cause the payment of Indebtedness of the
Borrower or any Restricted Subsidiary other than any Non-Recourse Real Estate
Subsidiary to be accelerated or payable prior to its stated maturity; provided, further, that (i)
notwithstanding the foregoing, any Non-Recourse Real Estate Subsidiary may
guarantee the Obligations and (ii) any Restricted Subsidiary that has been
designated as a Non-Recourse Subsidiary shall cease to be so designated upon the
occurrence of the events described in and otherwise in accordance with Section
6.12.  On the date hereof, Shopping Center Financing, LLC and
Shopping Center Financing II, LLC are Non-Recourse Real Estate
Subsidiaries.

     

    “Note” means a
promissory note made by the Borrower in favor of a Lender evidencing Loans made
by such Lender, substantially in the form of Exhibit
C.

     

    “Obligations” means
all advances to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any
Loan, Letter of Credit, Guaranteed Cash Management Agreement or Guaranteed Hedge
Agreement, in each case whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.

     

    
      
         

      

      
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    “OFAC” means The
Office of Foreign Assets Control of the U.S. Department of the Treasury or any
successor office thereof.

     

    “Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.

     

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

     

    “Outstanding Amount”
means (i) with respect to Committed Loans and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Committed Loans and Swing Line
Loans, as the case may be, occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date
after giving effect to any L/C Credit Extension occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.

     

    “Participant” has the
meaning specified in Section
10.06(d).

     

    “PBGC” means the
Pension Benefit Guaranty Corporation.

     

    “Pension Plan” means
any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by the Borrower or any ERISA Affiliate or to
which the Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.

     

    “Permitted Business”
means the lines of business conducted by the Borrower and its Restricted
Subsidiaries on the Closing Date and business reasonably related, complimentary
or ancillary thereto, including reasonably related extensions or expansions
thereof.

     

    “Permitted
Holders” means (i) Robert P.
Ingle, (ii) the spouse, issue, issues' spouses or grandchildren or other members
of the immediate family of Robert P. Ingle or such other person; (iii) any
trusts created for the benefit of the Persons described in clauses (i), (ii) or
(iv) or any trust for the benefit of any such trust; (iv) in the event of the
incompetence or death of any of the Persons described in clauses (i) and (ii),
such Person's estate, executor, administrator, committee or other personal
representative or beneficiaries, in each case who at any particular date shall
beneficially own or have the right to acquire, directly or indirectly, Equity
Interests of the Borrower; or (v) the Ingles Markets, Incorporated
Investment/Profit Sharing Plan and Trust.

     

    
      
         

      

      
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    “Permitted Investment”
means:

     

    (a)           Investments
in the Borrower or any Guarantor or any Person which, as a result of such
Investment, in one transaction or a series of related transactions, (a) becomes
a Guarantor or (b) is merged or consolidated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Borrower
or any Guarantor;

     

    (b)           Indebtedness
of the Borrower or a Restricted Subsidiary described under clauses (e), (f), (g)
and (h) of Section
7.02;

     

    (c)           Investments
in any of the Senior Notes;

     

    (d)           cash
or Cash Equivalents;

     

    (e)           Investments
acquired by the Borrower or any Restricted Subsidiary in connection with an
Asset Sale permitted under Section 7.04 to the
extent such Investments are non-cash proceeds as permitted under such
covenant;

     

    (f)           Investments
in existence on the Closing Date and listed on Schedule
1.01(c);

     

    (g)           any
Investment in securities or other assets not constituting cash or Cash
Equivalents and received in connection with a disposition of assets (including
Asset Sales);

     

    (h)           any
Investment acquired by the Borrower or any of its Restricted
Subsidiaries:

     

    (i)           in
exchange for any other Investment or accounts receivable held by the Borrower or
any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of such other Person;
or

     

    (ii)           as
a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries
with respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;

     

    (i)           any
permitted hedging obligations;

     

    
      
         

      

      
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    (j)           Investments
the payment for which consists of Equity Interests (other than Redeemable Equity
Interests) of the Borrower or a Restricted Subsidiary;

     

    (k)           guarantees
of Indebtedness permitted to be incurred under this Agreement;

     

    (l)           Investments
consisting of purchases and acquisitions of inventory, supplies, material or
equipment;

     

    (m)           Investments
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause that are at that time outstanding, not to exceed
$5,000,000 at the time of such Investment (with the fair market value of (i)
each Investment being measured at the time made and without giving effect to
subsequent changes in value and (ii) $10,000,000 or more being confirmed by an
appraisal in form and substance satisfactory to the Administrative Agent) in any
Person with which the Borrower or any Restricted Subsidiary has entered into a
licensing, management, franchise, joint venture, consulting or similar agreement
on customary terms and conditions;

     

    (n)           loans
and advances to officers, directors, managers and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case
incurred in the ordinary course of business or consistent with past practices
and in compliance with applicable laws;

     

    (o)           loans
to the Borrower’s Profit Sharing Plan in accordance Section 7.07;
and

     

    (p)           in
addition to those Investments set forth in clauses (a) through (o) above,
Investments in the aggregate not to exceed the greater of (a) $25,000,000 or (b)
2.5% of Consolidated Tangible Assets, at any one time outstanding.

     

    In
connection with any assets or property contributed or transferred to any Person
as an Investment, such property and assets shall be equal to the fair market
value (as determined by the Borrower’s Board of Directors or, if such asset or
property is valued at $10,000,000 or more, by an appraisal satisfactory in form
and substance to the Administrative Agent) at the time of
Investment.

     

    “Permitted Swap
Contract” means any Swap Contract entered into in the ordinary course of
business constituting (a) interest rate protecting agreements and/or other types
of interest rate hedging agreements, (b) foreign exchange contracts, currency
swap agreements or similar agreements or arrangements designed to protect
against fluctuations on currency values, relating to (i) Indebtedness of the
Borrower and/or any Restricted Subsidiary and/or (ii) obligations to purchase or
sell assets or properties; provided, however, that Swap Contracts subject to
this clause (b) shall not increase the Indebtedness or other obligations of the
Borrower or any Restricted Subsidiary outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder, or (c) forward contracts,
commodity swaps, commodity options or other similar financial agreement or
arrangement relating to, or the value of which is dependent upon, fluctuations
in commodity prices, which shall not increase the amount of Indebtedness or
other Obligations of the Borrower or any Restricted Subsidiary outstanding other
than as a result of fluctuations in commodity prices or by reason of fees,
indemnities and compensation payable thereunder.

     

    
      
         

      

      
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    “Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other
entity.

     

    “Plan” means any
“employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

     

    “Platform” has the
meaning specified in Section
6.02.

     

    “Public Lender” has
the meaning specified in Section
6.02.

     

    “Purchase Money
Obligation” means any Indebtedness secured by a Lien on assets related to
the business of the Borrower or any Restricted Subsidiary and any additions and
accessions thereto, which are purchased by the Borrower at any time after the
Closing Date are issued; provided
that:

    


    (a)           the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively, a “Purchase Money Security
Agreement”) shall be entered into (a) within 180 days after the purchase
or substantial completion of the construction of such assets or (b) at any time
with respect to refinancings of Purchase Money Obligations, and shall at all
times be confined solely to the assets so purchased or acquired, any additions
and accessions thereto and any proceeds therefrom; and

    


    (b)           (i)
the aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset bases in the case of any additions and accessions)
shall not at the time such Purchase Money Security Agreement is entered into
exceed 100% of the purchase price to the Borrower of the assets subject thereto
or (ii) the Indebtedness secured thereby shall be with recourse solely in the
assets so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom.

    


     “Qualified Equity
Interests” means, with respect to any Person, any and all Equity
Interests of such Person other than Redeemable Equity Interests.

     

    “Redeemable Equity
Interests” means any Equity Interests in any Person that, either by its
terms or the terms of any security into which it is convertible, exchangeable or
otherwise, is or will be upon the happening of an event or the passage of time,
required or permitted to be redeemed prior to the Maturity Date or is redeemable
at the option of the holder thereof at any time prior to the Maturity Date, or
is convertible into or exchangeable for debt securities by and at the option of
the holder thereof at an time prior to the Maturity Date.

     

    “Reduction Amount” has
the meaning set forth in Section
2.05(b)(i).

     

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

     

    
      
         

      

      
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    “Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees and advisors of such Person and
of such Person’s Affiliates.

     

    “Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA, other than events
for which the 30 day notice period has been waived.

     

    “Request for Credit
Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an
L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a
Swing Line Loan, a Swing Line Loan Notice.

     

    “Required Lenders”
means, as of any date of determination, at least two Lenders having more than
50% of the Aggregate Commitments or, if the Aggregate Commitments have been
terminated pursuant to Section 8.02, at
least two Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition); provided that, as set
forth in Section
10.14, the Commitment of, and the portion of the Total Outstandings held
or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders..

     

    “Responsible Officer”
means the chief executive officer, president, chief financial officer,
treasurer, assistant treasurer or controller of a Loan Party and, solely for
purposes of notices given pursuant to Article II, any other
officer of the applicable Loan Party so designated by any of the foregoing
officers in a notice to the Administrative Agent.  Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.

     

    “Restricted Payment”
means any of the following actions by the Borrower or any Restricted
Subsidiary:

     

    (a)           declare
or pay any dividend on, or make any distribution to holders of, any shares of
the Borrower’s Equity Interests (other than dividends or distributions payable
solely in shares of its Qualified Equity Interests or in options, warrants or
other rights to acquire shares of such Qualified Equity Interests);

     

    (b)           purchase,
redeem, defease or otherwise acquire or retire for value, directly or
indirectly, any Equity Interests of the Borrower or any Equity Interests of any
Affiliate of the Borrower (other than Equity Interests of any wholly-owned
Restricted Subsidiary of the Borrower) or options, warrants or other rights to
acquire such Equity Interests;

     

    (c)           make
any principal payment on, or repurchase, redeem, defease, retire or otherwise
acquire for value, prior to any scheduled principal payment, sinking fund
payment or maturity, any Subordinated Debt (other than the Existing Subordinated
Debt);

     

    
      
         

      

      
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    (d)           declare
or pay any dividend or distribution on any Equity Interest of any Restricted
Subsidiary to any Person (other than (a) to the Borrower or any of its
wholly-owned Restricted Subsidiaries or (b) dividends or distributions made by a
Restricted Subsidiary on a pro rata basis to all stockholders of such Restricted
Subsidiary); or

     

    (e)           make
any Investment in any Person (other than any Permitted Investment).

     

    The amount
of any such Restricted Payment, if other than cash, shall be the fair market
value of the assets proposed to be transferred, as determined by (i) if such
assets are valued at less than $10,000,000, the Board of Directors of the
Borrower, whose determination shall be conclusive and evidenced by a board
resolution or (ii) if such assets are valued at $10,000,000 or more, by an
appraisal in form and substance satisfactory to the Administrative
Agent.

     

    “Restricted Payment
Cap” means, as of any date of determination, an amount equal to the sum
of the following:

     

    (a)           fifty
percent (50%) of the aggregate amount of Consolidated Net Income of the Borrower
for the period beginning on the first day of the first full fiscal quarter of
the Borrower to begin after the Closing Date and ending on the last day of the
Borrower’s most recently ended fiscal quarter (or, if such aggregate
Consolidated Net Income shall be a loss, 100% of such loss);

     

    (b)           the
aggregate Net Cash Proceeds received after the Closing Date by the Borrower
either as (A) capital contributions in the form of common equity to the Borrower
or (B) from the Disposition of Qualified Equity Interests of the Borrower or any
options, warrants or rights for the purchase of Qualified Equity Interests of
the Borrower (except, in each case, to the extent such proceeds are used to
purchase, redeem or otherwise retire Equity Interests, Subordinated Debt or
Senior Notes), excluding the Net Cash Proceeds from the issuance of Qualified
Equity Interests financed, directly or indirectly, using funds borrowed from the
Borrower or any Subsidiary until and to the extent such borrowing is
repaid;

     

    (c)           the
aggregate Net Cash Proceeds received after the Closing Date by the Borrower
(other than from any of its Subsidiaries) upon the exercise of any options,
warrants or rights to purchase Qualified Equity Interests of the Borrower,
excluding the Net Cash Proceeds from the exercise of any options, warrants or
rights to purchase Qualified Equity Interests financed, directly or indirectly,
using funds borrowed from the Borrower or any Subsidiary until and to the extent
such borrowing is repaid;

     

    (d)           the
aggregate Net Cash Proceeds received after the Closing Date by the Borrower from
the conversion or exchange, if any, of debt securities or Redeemable Equity
Interests of the Borrower or its Restricted Subsidiaries into or for Qualified
Equity Interests of the Borrower plus, to the extent
such debt securities or Redeemable Equity Interests were issued after the
Closing Date, the aggregate Net Cash Proceeds from their original issuance,
excluding the Net Cash Proceeds from the conversion or exchange of debt
securities or Redeemable Equity Interests financed, directly or indirectly,
using funds borrowed from the Borrower or any Subsidiary, until and to the
extent such borrowing is repaid;

     

    
      
         

      

      
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    (e)           in
the case of the Disposition or repayment of any Investment constituting a
Restricted Payment made after the Closing Date, an amount (to the extent not
included in Consolidated Net Income) equal to (A) the cash return of capital
with respect to such Investment, plus (B) 50% of any
amounts received in cash in excess of the return of capital to the extent such
amount is not otherwise included in Consolidated Net Income, minus (C) the costs
of the Disposition of such Investment and net taxes; and

     

    (f)           in
the case of the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary (as long as the designation of such Subsidiary as an Unrestricted
Subsidiary was deemed a Restricted Payment), the fair market value of the
Borrower’s interest in such Subsidiary provided that such amount shall not in
any case exceed (A) the amount of the Restricted Payment deemed made at the time
the Subsidiary was designated as an Unrestricted Subsidiary, plus (B) 50% of any
increase in the fair market value of the Borrower’s interest in such Subsidiary
over such Subsidiary’s value on the date such Subsidiary was designated an
Unrestricted Subsidiary to the extent such amount is not otherwise included in
Consolidated Net Income.

     

    “Restricted
Subsidiary” means any Subsidiary that is not an Unrestricted
Subsidiary.

     

    “Sanctioned Entity”
means (i) a country or a government of a country, (ii) an agency of the
government of a country, (iii) an organization directly or indirectly controlled
by a country or its government, (iv) a person or entity resident in or
determined to be resident in a country, that is subject to a country sanctions
program administered and enforced by OFAC described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from
time to time.

     

    “Sanctioned Person”
means a Person named on the list of Specially Designated Nationals maintained by
OFAC available at or through http://www.ustreas.gov/offices/enforcement/ofac/
<http://www.ustreas.gov/offices/enforcement/ofac/> or as otherwise
published from time to time.

     

    “SEC” means the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any of its principal functions.

     

    “Senior Note
Documents” means, collectively, the Senior Note Indenture and any other
document, agreement or instrument governing or evidencing any Senior Notes, in
each case as amended, restated, supplemented or otherwise modified from time to
time in a manner permitted hereunder.

     

    “Senior Note
Indenture” means that certain Indenture, dated as of May 12, 2009, among
the Borrower, as issuer, and U.S. Bank, National Association, as trustee, with
respect to the Senior Notes.

     

    “Senior Notes” means
the 8.875% Senior Notes due 2017 issued by the Borrower pursuant to the Senior
Note Indenture.

     

    
      
         

      

      
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    “Shareholders’ Equity”
means, as of any date of determination, consolidated shareholders’ equity of the
Borrower and its Subsidiaries as of that date determined in accordance with
GAAP.

     

    “Solvent” and “Solvency” mean, with
respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay such debts and liabilities as they mature, (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person’s property would constitute an unreasonably
small capital, and (e) such Person is able to pay its debts and liabilities,
contingent obligations and other commitments as they mature in the ordinary
course of business.  The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.

     

    “Subordinated Debt”
means, collectively, (a) Existing Subordinated Debt and (b) any other
Indebtedness issued by the Borrower that is subordinated in right of payment to
the Obligations, in each case as amended, restated, supplemented or otherwise
modified from time to time in a manner permitted hereunder.

     

    “Subordinated Debt
Documents” means, collectively, the Existing Subordinated Note Indenture
and any other document, agreement or instrument governing or evidencing any
Subordinated Debt, in each case as amended, restated, supplemented or otherwise
modified from time to time in a manner permitted hereunder.

     

    “Subsidiary” of a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person.  Unless
otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Borrower.

     

    “Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master
Agreement.

     

    
      
         

      

      
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    “Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date such Swap Contracts
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).

     

    “Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section
2.04.

     

    “Swing Line Lender”
means Bank of America in its capacity as provider of Swing Line Loans, or any
successor swing line lender hereunder.

     

    “Swing Line Loan” has
the meaning specified in Section
2.04(a).

     

    “Swing Line Loan
Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit
B.

     

    “Swing Line Sublimit”
means, as of any date of determination, an amount equal to the lesser of (a)
$25,000,000 and (b) the Aggregate Commitments as of such date (after giving
effect to any reductions in the Aggregate Commitments).  The Swing
Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.

     

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

     

    “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.

     

    “Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.

     

    “Type” means, with
respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar
Rate Loan.

     

    
      
         

      

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

     

    “United States” and
“U.S.” mean the
United States of America.

     

    “Unreimbursed Amount”
has the meaning specified in Section
2.03(c)(i).

     

    “Unrestricted
Subsidiary” means any Subsidiary listed on Schedule 1.01(d),
unless and until such time as any such Unrestricted Subsidiary shall be required
to be designated as a Restricted Subsidiary in accordance with Section
6.12.

     

    “Voting Equity
Interests” means, with respect to any Person, the Equity Interests
entitled to vote for members of the board of directors or equivalent governing
body of such Person.

     

    “Wachovia” means
Wachovia Bank, National Association and its successors.

     

    “Wachovia Letters of
Credit” means the letters of credit issued by Wachovia under the letter
of credit facility between Wachovia and the Borrower and outstanding as of the
Closing Date.

     

    1.02  Other Interpretive
Provisions.  With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan
Document:

     

    (a)  The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms.  The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.”  The word
“will” shall be
construed to have the same meaning and effect as the word “shall.”  Unless
the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words
“herein,”
“hereof” and
“hereunder,”
and words of similar import when used in any Loan Document, shall be construed
to refer to such Loan Document in its entirety and not to any particular
provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, the Loan Document in which such references
appear, (v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time,
and (vi) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.

     

    
      
         

      

      
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    (b)  In the
computation of periods of time from a specified date to a later specified date,
the word “from”
means “from and
including;” the words “to” and “until” each mean
“to but
excluding;” and the word “through” means “to and
including.”

     

    (c)  Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.

     

    1.03  Accounting
Terms.  (a) Generally.  All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.

     

    (b)  Changes in
GAAP.  If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in
GAAP.

     

    1.04  Rounding.  Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).

     

    1.05  Times of
Day.  Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable). 

     

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

     

    
      
         

      

      
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    ARTICLE
II.

    THE
COMMITMENTS AND CREDIT EXTENSIONS

     

    2.01  Committed
Loans.  Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a “Committed Loan”) to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed at any time outstanding the amount
of such Lender’s Commitment; provided, however, that after
giving effect to any Committed Borrowing, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans, shall
not exceed such Lender’s Commitment.  Within the limits of each
Lender’s Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01, prepay
under Section
2.05, and reborrow under this Section
2.01.  Committed Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.

     

    2.02  Borrowings, Conversions and
Continuations of Committed Loans.  

     

    (a)  Notice from Borrower.
Each Committed Borrowing, each conversion of Committed Loans from one Type to
the other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed
Loans.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each
Borrowing of or conversion to Base Rate Committed Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof.  Each Committed Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, and (v) if applicable, the duration of the Interest Period
with respect thereto.  If the Borrower fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate
Loans.  Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.

     

    
      
         

      

      
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    (b)  Notice to and Funding by
Lenders. Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection.  In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice.  Upon satisfaction
of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on
the date the Committed Loan Notice with respect to such Borrowing is given by
the Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and second, shall be made
available to the Borrower as provided above.

     

    (c)  Continuation of or
Conversion to Eurodollar Rate Loans. Except as otherwise provided herein,
a Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan.  During the existence
of a Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required Lenders.

     

    (d)  Notice of Interest
Rate. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate.  At any time that
Base Rate Loans are outstanding, the Administrative Agent shall notify the
Borrower and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such
change.

     

    (e)  Maximum Interest
Periods. After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Committed Loans.

     

    2.03  Letters of
Credit.

     

    (a)  The Letter of Credit
Commitment.

     

    
      
         

      

      
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    (i)  Subject to
the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1)
from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the
account of the Borrower or its Subsidiaries, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrower or
its Subsidiaries and any drawings thereunder; provided that after
giving effect to any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans, shall
not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit.  Each
request by the Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to
the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.  If at any
time or from time to time any of the Wachovia Letters of Credit are added as
Letters of Credit hereunder, all such Wachovia Letters of Credit shall be deemed
to have been issued pursuant hereto, and from and after the date such Wachovia
Letters of Credit are included as Letters of Credit hereunder shall be subject
to and governed by the terms and conditions hereof.

     

    (ii)  The L/C
Issuer shall not issue any Letter of Credit, if:

     

    (A)  the expiry
date of such requested Letter of Credit would occur more than twelve months
after the date of issuance, unless the Required Lenders have approved such
expiry date; or

     

    (B)  the expiry
date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry
date.

     

    (iii)  The L/C
Issuer shall not be under any obligation to issue any Letter of Credit
if:

     

    (A)  any order,
judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer in good
faith deems material to it;

     

    
      
         

      

      
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    (B)  the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer applicable to letters of credit generally;

     

    (C)  except as
otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of
Credit is in an initial stated amount less than $10,000;

     

    (D)  such
Letter of Credit is to be denominated in a currency other than Dollars;
or

     

    (E)  a default
of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
L/C Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such
Lender.

     

    (iv)  The L/C
Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.

     

    (v)  The L/C
Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C
Issuer would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of
Credit.

     

    (vi)  The L/C
Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C Issuer shall
have all of the benefits and immunities (A) provided to the Administrative Agent
in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included
the L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.

     

    (b)  Procedures for Issuance and
Amendment of Letters of Credit.

     

    
      
         

      

      
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    (i)  Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit Application must be received by the
L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and the
L/C Issuer may agree in a particular instance in their sole discretion) prior to
the proposed issuance date or date of amendment, as the case may
be.  In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the
requested Letter of Credit; and (H) such other matters as the L/C Issuer may
require.  In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require.  Additionally, the Borrower shall furnish to the
L/C Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the L/C Issuer or the Administrative Agent may
require.

     

    (ii)  Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Unless the L/C Issuer has received written
notice from any Lender, the Administrative Agent or any Loan Party, at least one
Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in
Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices.  Immediately upon
the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a
risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of
such Letter of Credit.

     

    (iii)  Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the L/C Issuer will also deliver to the Borrower and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.

     

    (c)  Drawings and Reimbursements;
Funding of Participations.

     

    (i)  Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later than 11:00 a.m. on the date
of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”),
the Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing.  If the Borrower fails
to so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage
thereof.  In such event, the Borrower shall be deemed to have
requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor
Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Committed Loan Notice).  Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.

     

    
      
         

      

      
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    (ii)  Each
Lender shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent’s Office in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the L/C
Issuer.

     

    (iii)  With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default
Rate.  In such event, each Lender’s payment to the Administrative
Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section
2.03.

     

    (iv)  Until each
Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.

     

    (v)  Each
Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other
than delivery by the Borrower of a Committed Loan Notice).  No such
making of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the L/C Issuer for the amount of any payment made by the
L/C Issuer under any Letter of Credit, together with interest as provided
herein.

     

    
      
         

      

      
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    (vi)  If any
Lender fails to make available to the Administrative Agent for the account of
the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the L/C Issuer
in connection with the foregoing.  If such Lender pays such amount
(with interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may
be.  A certificate of the L/C Issuer submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.

     

    (d)  Repayment of
Participations.

     

    (i)  At any
time after the L/C Issuer has made a payment under any Letter of Credit and has
received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if
the Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash Collateral
applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof in the same funds as
those received by the Administrative Agent.

     

    (ii)  If any
payment received by the Administrative Agent for the account of the L/C Issuer
pursuant to Section
2.03(c)(i) is required to be returned under any of the circumstances
described in Section
10.05 (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Administrative Agent for
the account of the L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.  The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement.

     

    (e)  Obligations
Absolute. The obligation of the
Borrower to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:

     

    (i)  any lack
of validity or enforceability of such Letter of Credit, this Agreement, or any
other Loan Document;

     

    
      
         

      

      
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    (ii)  the
existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;

     

    (iii)  any draft,
demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under such Letter of Credit;

     

    (iv)  any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law; or

     

    (v)  any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrower or any
Subsidiary.

     

    The
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer.  The Borrower shall
be conclusively deemed to have waived any such claim against the L/C Issuer and
its correspondents unless such notice is given as aforesaid.

     

    (f)  Role of L/C
Issuer. Each
Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer, the Administrative Agent, any
of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing
such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement.  None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not
in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.

     

    
      
         

      

      
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    (g)  Cash
Collateral.  Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C
Obligations.  Sections 2.05 and
8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the L/C Issuer (which documents are hereby consented to by the
Lenders).  Derivatives of such term have corresponding
meanings.  The Borrower hereby grants to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the
foregoing.  Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.

     

    (h)  Applicability of
ISP.  Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued (including any such agreement
applicable to any Wachovia Letter of Credit that is replaced by a Letter of
Credit hereunder or is otherwise amended or modified to become a Letter of
Credit issued by the L/C Issuer hereunder), the rules of the ISP shall apply to
each Letter of Credit.

     

    (i)  Letter of Credit
Fees.  The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Percentage a Letter
of Credit fee (the “Letter of Credit
Fee”) for
each Letter of Credit equal to the Applicable Rate times the daily
amount available to be drawn under such Letter of Credit.  For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section
1.06.  Letter of Credit Fees shall be (i) due and payable on
the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears.  If there is
any change in the Applicable Rate during any quarter, the daily amount available
to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.  Notwithstanding anything to the
contrary contained herein, upon the request of the Required Lenders, while any
Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.

     

    
      
         

      

      
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    (j)  Fronting Fee and Documentary
and Processing Charges Payable to L/C Issuer. The Borrower shall pay
directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, in the amount and at the times specified in the Fee
Letter.  In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect.  Such
customary fees and standard costs and charges are due and payable on demand and
are nonrefundable.

     

    (k)  Conflict with Issuer
Documents.  In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall
control.

     

    (l)  Letters of Credit Issued for
Subsidiaries.  Notwithstanding that a Letter of Credit issued
or outstanding hereunder is in support of any obligations of, or is for the
account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C
Issuer hereunder for any and all drawings under such Letter of
Credit.  The Borrower hereby acknowledges that the issuance of Letters
of Credit for the account of Subsidiaries inures to the benefit of the Borrower,
and that the Borrower’s business derives substantial benefits from the
businesses of such Subsidiaries.

     

    (m)  Use of Letter of Credit
Facility.  Notwithstanding anything in this Section 2.03 to the
contrary, the Borrower shall have no obligation whatsoever to obtain Letters of
Credit under this Section 2.03, it being specifically agreed and understood that
the Borrower may obtain letters of credit (either secured or unsecured, to the
extent permitted under this Agreement) from other letter of credit providers
under letter of credit facilities otherwise permitted in accordance with the
terms and conditions of this Agreement and the other Loan
Documents.

     

    2.04  Swing Line
Loans.  

     

    (a)  The Swing
Line.  Subject to the terms and conditions set forth herein and
in any Autoborrow Agreement, the Swing Line Lender, in its sole and absolute
discretion and in reliance upon the agreements of the other Lenders set forth in
this Section
2.04, may make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,
when aggregated with the Applicable Percentage of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender’s Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans, shall
not exceed such Lender’s Commitment, and provided, further, that the
Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan.  Within the foregoing limits, and subject
to the other terms and conditions hereof, the Borrower may borrow under this
Section 2.04,
prepay under Section
2.05, and reborrow under this Section
2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a Swing Line Loan, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan
in an amount equal to the product of such Lender’s Applicable Percentage times the amount of
such Swing Line Loan.

     

    
      
         

      

      
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    (b)  Borrowing
Procedures.  At any time an Autoborrow Agreement is not in
effect, each Swing Line Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be given
by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of
$1,000,000, and (ii) the requested borrowing date, which shall be a Business
Day.  Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof.  Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or
(B) that one or more of the applicable conditions specified in Article IV is not
then satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower at its office by crediting the account of the Borrower on the books of
the Swing Line Lender in immediately available funds.

     

    In order
to facilitate the borrowing of Swing Line Loans, the Borrower and the Swing Line
Lender may mutually agree to, and are hereby authorized to, enter into an
Autoborrow Agreement in form and substance reasonably satisfactory to the
Administrative Agent and the Swing Line Lender (the “Autoborrow
Agreement”) providing for the automatic advance by the Swing Line Lender
of Swing Line Loans under the conditions set forth in such agreement, subject to
the conditions set forth herein (other than any requirements that are set forth
only in the immediately preceding paragraph).  At any time such an
Autoborrow Agreement is in effect, the requirements for Swing Line Borrowings
set forth in the immediately preceding paragraph shall not apply, and all Swing
Line Borrowings shall be made in accordance with the Autoborrow Agreement, until
the right to such Swing Line Borrowings is suspended or terminated hereunder or
in accordance with the terms of the Autoborrow Agreement.  For
purposes of determining the Outstanding Amount under the Commitment at any time
during which an Autoborrow Agreement is in effect, the Outstanding Amount of all
Swing Line Loans shall be deemed to be the amount of the Swing Line
Sublimit.

     

    
      
         

      

      
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    (c)  Refinancing of Swing Line
Loans.

     

    (i)  The Swing
Line Lender at any time in its sole and absolute discretion may request, on
behalf of the Borrower (which hereby irrevocably authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Committed
Loan in an amount equal to such Lender’s Applicable Percentage of the amount of
Swing Line Loans then outstanding; provided that (unless
an Autoborrow Agreement is then in effect) the Swing Line Lender shall request
each Lender to make such Loans no less frequently than once every calendar
month.  Such request shall be made in writing (which written request
shall be deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section
4.02.  The Swing Line Lender shall furnish the Borrower with a
copy of the applicable Committed Loan Notice promptly after delivering such
notice to the Administrative Agent.  Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed
Loan Notice available to the Administrative Agent in immediately available funds
for the account of the Swing Line Lender at the Administrative Agent’s Office
not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.

     

    (ii)  If for any
reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.04(c)(i),
the request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line Loan
and each Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.

     

    (iii)  If any
Lender fails to make available to the Administrative Agent for the account of
the Swing Line Lender any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.04(c) by
the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
Swing Line Lender in accordance with banking industry rules on interbank
compensation, plus any administrative processing or similar fees customarily
charged by the Swing Line Lender in connection with the foregoing.  If
such Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line Loan, as
the case may be.  A certificate of the Swing Line Lender submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.

     

    
      
         

      

      
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    (iv)  Each
Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section
4.02.  No such funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.

     

    (d)  Repayment of
Participations.

     

    (i)  At any
time after any Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Lender receives any payment on account of such
Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Applicable Percentage thereof in the same funds as those received by the Swing
Line Lender.

     

    (ii)  If any
payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the Swing Line Lender in
its discretion), each Lender shall pay to the Swing Line Lender its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a rate per
annum equal to the Federal Funds Rate.  The Administrative Agent will
make such demand upon the request of the Swing Line Lender.  The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.

     

    (e)  Interest for Account of
Swing Line Lender.  Interest on the Swing Line Loans shall be
due and payable in arrears on each applicable Interest Payment Date and at such
other times as may be specified herein. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line
Loans.  Until each Lender funds its Base Rate Committed Loan or risk
participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest
in respect of such Applicable Percentage shall be solely for the account of the
Swing Line Lender.

     

    (f)  Payments Directly to Swing
Line Lender.  The Borrower shall make all payments of principal
and interest in respect of the Swing Line Loans directly to the Swing Line
Lender.

     

    2.05  Prepayments.  

     

    (a)  Optional.

     

    
      
         

      

      
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    (i)  The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding.  Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Committed
Loans to be prepaid and, if Eurodollar Rate Loans are to be repaid, the Interest
Period(s) of such Loans.  The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment.  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section
3.05.  Except as set forth in Section 10.14, each
such prepayment shall be applied to the Committed Loans of the Lenders in
accordance with their respective Applicable Percentages.

     

    (ii)  At any
time during which an Autoborrow Agreement is not in effect, the Borrower may,
upon notice to the Swing Line Lender (with a copy to the Administrative Agent),
at any time or from time to time, voluntarily prepay Swing Line Loans in whole
or in part without premium or penalty; provided that (i)
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000.  Each
such notice shall specify the date and amount of such prepayment.  If
such notice is given by the Borrower, the Borrower shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the
date specified therein.

     

    (b)  Mandatory.

     

    (i)  When the
aggregate amount of Excess Proceeds resulting from Asset Sales permitted by
Section 6.13
exceeds $20,000,000, the Borrower will apply 100% of such excess amount of the
Excess Proceeds ratably to the repayment of the Obligations as follows: first, to the L/C
Borrowings and the Swing Line Loans, second, to the
outstanding Committed Loans, and, third, to Cash
Collateralize the remaining L/C Obligations; and, the amount remaining, if any,
after the prepayment in full of all L/C Borrowings, Swing Line Loans and
Committed Loans outstanding at such time and the Cash Collateralization of the
remaining L/C Obligations in full (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being, collectively, the “Reduction Amount”)
may be retained by the Borrower for use in the ordinary course of its business;
provided, that the Aggregate Commitments shall not be reduced as a result of any
such prepayment. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section
3.05.

     

    
      
         

      

      
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    (ii)  If for any
reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the
Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c)
unless after the prepayment in full of the Loans the Total Outstandings exceed
the Aggregate Commitments then in effect.

     

    2.06  Termination or Reduction of
Commitments.   

     

    (a)  Optional.  The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that
(i) any such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $10,000,000
or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall
not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit automatically shall be reduced by the amount of such
excess.

     

    (b)  Application of Commitment
Reductions; Payment of Fees.  The Administrative Agent will
promptly notify the Lenders of any termination or reduction of the Letter of
Credit Sublimit, Swing Line Sublimit or the Aggregate Commitments under this
Section
2.06.  Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective date of
such termination.

     

    (c)  Wachovia Letters of
Credit.  Notwithstanding anything herein to the contrary, for
so long as all or any portion of the Wachovia Letters of Credit shall remain
outstanding, the Commitments of Wachovia shall be reduced on a non-pro-rata
basis by the aggregate maximum stated amount of such Wachovia Letters of Credit;
provided, that
immediately upon the refinancing or other termination of such Wachovia Letters
of Credit, the Commitments of Wachovia automatically shall increase by an amount
equal to the aggregate maximum stated amount of the Wachovia Letters of Credit
as of such date, whereupon (i) Wachovia immediately shall purchase a
participation in any outstanding Loans in the amount and to the extent necessary
to cause the Outstanding Amount of all Loans of each Lender to equal such
Lender’s Applicable Percentage thereof and (ii) the participations of the
Lenders in Swing Line Loans and L/C Obligations hereunder shall be re-calculated
as if the outstanding Letters of Credit had been issued, the Unreimbursed
Amounts had been paid by the L/C Issuer, and the Swing Line Loans had been
advanced by the Swing Line Lender, in each case on such date.

     

    
      
         

      

      
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    2.07  Repayment of
Loans.  

     

    (a)  Committed Loans. The
Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.

     

    (b)  Swing Line Loans. At
any time the Autoborrow Agreement is in effect, the Swing Line Loans shall be
repaid in accordance with the terms of such Autoborrow Agreement.  At
any time the Autoborrow Agreement is not in effect, the Borrower shall repay
each Swing Line Loan on the earlier to occur of (i) the date ten Business Days
after such Loan is made and (ii) the Maturity Date.

     

    2.08  Interest.  

     

    (a)  Generally. Subject to
the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period at
a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable
Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable
Rate.

     

    (b)      Default Rate.
(i)       If any amount of principal of any
Loan is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable
Laws.

     

    (ii)  If any
amount (other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.

     

    (iii)  Upon the
request of the Required Lenders, while any Event of Default exists, the Borrower
shall pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.

     

    (iv)  Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.

     

    (c)  Payments Due.
Interest on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be specified
herein.  Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.

     

    
      
         

      

      
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    2.09  Fees.  

     

    (a)  Commitment
Fee.  The Borrower shall pay to the Administrative Agent for
the account of each Lender (except as otherwise provided in Section 10.14 with
respect to Defaulting Lenders) in accordance with its Applicable Percentage, a
commitment fee equal to 0.25% times the actual
daily amount by which the Aggregate Commitments exceed the sum of (i) the
Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations.  The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article
IV is not met, and shall be due and payable quarterly in arrears on the
last Business Day of each March, June, September and December, commencing with
the first such date to occur after the Closing Date, and on the last day of the
Availability Period.  The commitment fee shall be calculated quarterly
in arrears.

     

    (b)       Other
Fees.  The Borrower shall pay to any fees in the amounts and at
the times specified in any fee letters entered into in connection with this
Agreement.  Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.

     

    2.10  Computation of Interest and Fees;
Retroactive Adjustments of Applicable Rate.  (a) Computation of Interest and
Fees. All computations of interest for Base Rate Loans shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed.  All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in more fees
or interest, as applicable, being paid than if computed on the basis of a
365-day year).  Interest shall accrue on each Loan for the day on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid, provided that any
Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day.  Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.  Except as otherwise provided in
Section
2.10(b), the Borrower’s obligations under this paragraph shall survive
for twelve (12) calendar months after the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.

     

    (b)        Retroactive
Adjustments. If, as a result of any restatement of or other adjustment to
the financial statements of the Borrower or for any other reason, the Borrower
or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated
by the Borrower as of any applicable date was inaccurate and (ii) a proper
calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be
obligated to pay to the Administrative Agent for the account of the applicable
Lenders or the L/C Issuer, as the case may be, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of
an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, automatically and without further action by the
Administrative Agent, any Lender or the L/C Issuer), an amount equal to the
excess of the amount of interest and fees that should have been paid for such
period over the amount of interest and fees actually paid for such
period.  This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section
2.03(c)(iii), 2.03(i) or 2.08(b) or under
Article
VIII.  The Borrower’s obligations under this paragraph shall
survive the termination of the Aggregate Commitments and the repayment of all
other Obligations hereunder.

     

    
      
         

      

      
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    2.11  Evidence of
Debt.  

     

    (a)  General. The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business.  The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon.  Any failure to so record or
any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any conflict between the accounts and
records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest
error.  Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records.  Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable), amount
and maturity of its Loans and payments with respect thereto.

     

    (b)  Participations. In
addition to the accounts and records referred to in subsection (a), each Lender
and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.

     

    2.12  Payments Generally; Administrative
Agent’s Clawback.  

     

    (a)  General.  All
payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein.  The Administrative Agent will promptly distribute
to each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office.  All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.  If
any payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case
may be.

     

    
      
         

      

      
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    (b)           (i)       
Funding by Lenders;
Presumption by Administrative Agent.  Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed
Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed
Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Committed Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance
with Section
2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that
such Lender has made such share available in accordance with and at the time
required by Section
2.02) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount.  In such event, if a Lender has not
in fact made its share of the applicable Committed Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, plus any administrative processing or similar
fees customarily charged by the Administrative Agent in connection with the
foregoing,  and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans.  If the
Borrower and such Lender shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such
period.  If such Lender pays its share of the applicable Committed
Borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Committed Loan included in such Committed
Borrowing.  Any payment by the Borrower shall be without prejudice to
any claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent.

     

    (ii)  Payments by Borrower;
Presumptions by Administrative Agent.  Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the
amount due.  In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or the L/C Issuer, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.

     

    A notice
of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this subsection (b) shall be conclusive, absent manifest
error.

     

    
      
         

      

      
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    (c)  Failure to Satisfy
Conditions Precedent.  If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in
the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because
the conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.

     

    (d)  Obligations of Lenders
Several.  The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to Section 10.04(c) are
several and not joint.  The failure of any Lender to make any
Committed Loan, to fund any such participation or to make any payment under
Section
10.04(c) on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its
Committed Loan, to purchase its participation or to make its payment under Section
10.04(c).

     

    (e)  Funding
Source.  Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.

     

    2.13  Sharing of Payments by
Lenders.  If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of the Committed Loans made by it, or the participations
in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed
Loans or participations and accrued interest thereon greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Committed Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided
that:

     

    (i)  if any
such participations or subparticipations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and

     

    (ii)  the
provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (y) any payment obtained by a Lender pursuant to Section 10.14 or as
consideration for the assignment of or sale of a participation in any of its
Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).

     

    
      
         

      

      
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    The
Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such
participation.

     

     

    ARTICLE
III.

    TAXES,
YIELD PROTECTION AND ILLEGALITY

     

    3.01  Taxes. 

     

    (a)  Payments Free of Taxes;
Obligation to Withhold; Payments on Account of Taxes.

     

    (i)  Any and
all payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Taxes.  If, however, applicable Laws
require the Borrower or the Administrative Agent to withhold or deduct any Tax,
such Tax shall be withheld or deducted in accordance with such Laws as
determined by the Borrower or the Administrative Agent, as the case may be, upon
the basis of the information and documentation to be delivered pursuant to
subsection (e) below.

     

    (ii)  If the
Borrower or the Administrative Agent shall be required by the Code to withhold
or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall
withhold or make such deductions as are determined by the Administrative Agent
to be required based upon the information and documentation it has received
pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay
the full amount withheld or deducted to the relevant Governmental Authority in
accordance with the Code, and (C) to the extent that the withhold or deduction
is made on account of Indemnified Taxes or Other Taxes, the sum payable by the
Borrower shall be increased as necessary so that after any required withholding
or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such withholding or deduction been
made.

     

    (b)  Payment of Other Taxes by
the Borrower.  Without limiting the provisions of subsection
(a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.

     

    (c)  Tax
Indemnifications.

     

    
      
         

      

      
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    (i)  Without
limiting the provisions of subsection (a) or (b) above, the Borrower shall, and
does hereby, indemnify the Administrative Agent, each Lender and the L/C Issuer,
and shall make payable in respect thereof within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) withheld or deducted by the Borrower or the
Administrative Agent or paid by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  The Borrower shall also, and does hereby
indemnify the Administrative Agent, and shall make payable in respect thereof
within 10 days after demand therefor, for any amount with a Lender or the L/C
Issuer for any reason fails to pay indefeasibly to the Administrative Agent a
required by clause (ii) of this subsection.  A certificate as to the
amount of any such payment or liability delivered to the Borrower by a Lender or
the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C
Issuer, shall be conclusive absent manifest error.

     

    (ii)  Without
limiting the provisions of subsection (a) or (b) above, each Lender and the L/C
Issuer shall, and does hereby, indemnify the Borrower and the Administrative
Agent, and shall make payable in respect thereof within 10 days after demand
therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for the Borrower or the Administrative Agent)
incurred by or asserted against the Borrower or the Administrative Agent by any
Governmental Authority as a result of the failure by such Lender to the L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy,
inadequacy or deficiency of, any documentation required to be delivered by such
Lender or the L/C Issuer, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection (e).  Each Lender and the
L/C Issuer hereby authorizes the Administrative Agent to set off and apply any
and all amounts at any time owing to such Lender or the L/C Issuer, as the case
may be, under this Agreement or any other Loan Document against any amount due
to the Administrative Agent under this clause (ii).  The agreements in
the clause (ii) shall survive the resignation and/or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a
Lender or the L/C Issuer, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all other Obligations.

     

    (d)  Evidence of
Payments.  Upon request of the Borrower or the Administrative
Agent, as the case may be, after any payment of Taxes by the Borrower or by the
Administrative Agent to a Governmental Authority as provided in this Section 3.01, the
Borrower shall deliver to the Administrative Agent or the Administrative Agent
shall deliver to the Borrower, as the case may be, the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of any return required by Laws to report such payment or other evidence
of such payment reasonably satisfactory to the Borrower or the Administrative
Agent, as the case may be.

     

    (e)  Status of Lenders; Tax
Documentation.

     

    (i)  Each
Lender shall deliver to the Borrower and to the Administrative Agent, at the
time or times prescribed by applicable Laws or when reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the
Borrower or the Administrative Agent, as the case may be, to determine (A)
whether or not payments made hereunder or under any other Loan Document are
subject to Taxes, (B) if applicable, the required rate of withholding or
deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such
Lender by the Borrower pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable
jurisdiction.

     

    
      
         

      

      
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    (ii)  Without
limiting the generality of the foregoing, if the Borrower is resident for tax
purposes in the United States:

     

    (A)  Any Lender
that is a “United States person” within the meaning of Section 7701(a)(30) of
the Code shall deliver to the Borrower and the Administrative Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and

     

    (B)  Each
Foreign Lender that is entitled under the Code or any applicable treaty to an
exemption from or reduction of withholding tax with respect to payments
hereunder or under nay other Loan Document shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the request of the
Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:

     

    (I)           executed
originals of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States is a
party;

     

    (II)          executed
originals of Internal Revenue Service Form W-8ECI;

     

    (III)         
executed originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation;

     

    (IV)        
in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (y)
executed originals of  Internal Revenue Service Form W-8BEN;
or

     

    
      
         

      

      
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    (V)          executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made.

     

    (iii)     Each
Lender shall promptly (A) notify the Borrower and the Administrative Agent of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower
or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.

     

    (f)  Treatment of Certain
Refunds.  Unless required by applicable Laws, at no time shall
the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any
Lender or the L/C Issuer, any refund of Taxes withheld or deducted from the
funds paid for the account of such Lender or the L/C Issuer, as the case may
be.  If the Administrative Agent, any Lender or the L/C Issuer
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses incurred by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the
Borrower, upon the request of the Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection
shall not be construed to require the Administrative Agent, any Lender or the
L/C Issuer to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other
Person.

     

    3.02  Illegality.  If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank
market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or
converted.

     

    
      
         

      

      
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    3.03  Inability to Determine
Rates.  If the Required Lenders determine that for any reason
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) Dollar deposits are not being offered to banks in
the London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not
exist for determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each
Lender.  Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice.  Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified
therein.

     

    3.04  Increased Costs; Reserves on
Eurodollar Rate Loans.  

     

    (a)  Increased Costs
Generally.  If any Change in Law shall:

     

    (i)  impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except any
reserve requirement contemplated by Section 3.04(e) or
the L/C Issuer);

     

    (ii)  subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Eurodollar Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or

     

    (iii)  impose on
any Lender or the L/C Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or Eurodollar Rate Loans made by such
Lender or any Letter of Credit or participation therein;

     

    
      
         

      

      
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    and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.

     

    (b)  Capital
Requirements.  If any Lender or the L/C Issuer determines that
any Change in Law affecting such Lender or the L/C Issuer or any Lending Office
of such Lender or such Lender’s or the L/C Issuer’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender’s or the L/C Issuer’s capital or on the capital of such
Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the L/C Issuer, to a level below that which such Lender or the
L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the L/C Issuer or
such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.

     

    (c)  Certificates for
Reimbursement.  A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the
L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error.  The Borrower shall pay such Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.

     

    (d)  Delay in
Requests.  Failure or delay on the part of any Lender or the
L/C Issuer to demand compensation pursuant to the foregoing provisions of this
Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right
to demand such compensation, provided that the
Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender or
the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the nine-month period referred to above shall be extended to include the
period of retroactive effect thereof).

     

    (e)  Reserves on Eurodollar Rate
Loans.  The Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan, provided the Borrower
shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such
Lender.  If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and
payable 10 days from receipt of such notice.

     

    
      
         

      

      
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    3.05  Compensation for
Losses.  Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:

     

    (a)  any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);

     

    (b)  any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or

     

    (c)  any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to
Section
10.13;

     

    including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained.  The Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.

     

    For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate
Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.

     

    3.06  Mitigation Obligations; Replacement
of Lenders. 

     

    (a)  Designation of a Different
Lending Office.  If any Lender requests compensation under
Section 3.04,
or the Borrower is required to pay any additional amount to any Lender, the L/C
Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then
such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or the L/C Issuer,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section
3.01 or 3.04, as the case may
be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender or the L/C
Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C issuer, as the case may
be.  The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender or the L/C Issuer in connection with any such
designation or assignment.

     

    
      
         

      

      
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    (b)  Replacement of
Lenders.  If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Borrower may replace such Lender in accordance with Section
10.13.

     

    3.07  Survival.  All of
the Borrower’s obligations under this Article III shall
survive for twelve (12) calendar months after the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and resignation of the
Administrative Agent.

     

     

    ARTICLE
IV.

    CONDITIONS
PRECEDENT TO CREDIT EXTENSIONS

     

    4.01  Conditions of Initial Credit
Extension.  The obligation of each Lender to make its initial
Credit Extension hereunder is subject to satisfaction of the following
conditions precedent:

     

    (a)  The
Administrative Agent’s receipt of the following, each of which shall be
originals or telecopies (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the Borrower, each
dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:

     

    (i)  executed
counterparts of this Agreement, sufficient in number for distribution to the
Administrative Agent, each Lender and the Borrower;

     

    (ii)  a Note
executed by the Borrower in favor of each Lender requesting a Note;

     

    (iii)  such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative
Agent may require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which the
Borrower is a party;

     

    (iv)  such
documents and certifications as the Administrative Agent may reasonably require
to evidence that the Borrower is duly organized or formed, and that the Borrower
is validly existing, in good standing and qualified to engage in business in
each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;

     

    (v)  a
favorable opinion of Hartman, Simons, Spielman & Wood, LLP, counsel to the
Borrower, addressed to the Administrative Agent and each Lender, as to the
matters set forth in Exhibit F and such
other matters concerning the Borrower and the Loan Documents as the Required
Lenders may reasonably request;

     

    
      
         

      

      
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    (vi)  a
certificate of a Responsible Officer of the Borrower either (A) attaching copies
of all consents, licenses and approvals required in connection with the
execution, delivery and performance by the Borrower and the validity against the
Borrower of the Loan Documents to which it is a party, and such consents,
licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;

     

    (vii)  a
certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and
(b) have been
satisfied and (B)
that there has been no event or circumstance since the date of the Audited
Financial Statements that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect;

     

    (viii)  evidence
that the Existing Credit Agreements have been or concurrently with the Closing
Date are being terminated and all Liens securing obligations under any Existing
Credit Agreement have been or concurrently with the Closing Date are being
released; and

     

    (ix)  such other
assurances, certificates, documents, consents or opinions as the Administrative
Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably
may require.

     

    (b)  Any fees
required to be paid on or before the Closing Date shall have been
paid.

     

    (c)  Unless
waived by the Administrative Agent, the Borrower shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to
such counsel if requested by the Administrative Agent) to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such
fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative
Agent).

     

    (d)  The
Borrower shall have received at least $550,000,000 (before deduction of related
fees and expenses) from the sale of the Senior Notes.

     

    Without
limiting the generality of the provisions of the last paragraph of Section 9.03, for
purposes of determining compliance with the conditions specified in this Section 4.01, each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.

     

    4.02  Conditions to all Credit
Extensions.  The obligation of each Lender to honor any Request
for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type, or a continuation of Eurodollar
Rate Loans) is subject to the following conditions precedent:

     

    
      
         

      

      
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    (a)  The
representations and warranties of the Borrower contained in Article V or any
other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that for
purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section
6.01.

     

    (b)  No Default
shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.

     

    (c)  The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender
shall have received a Request for Credit Extension in accordance with the
requirements hereof.

     

    (d)  The
Administrative Agent shall have received no later than one week after the
Closing Date a favorable opinion of North Carolina counsel to the Borrower,
which counsel shall be reasonably acceptable to the Administrative Agent and the
Lenders, addressed to the Administrative Agent and each Lender, as to certain of
the matters set forth in Exhibit F and such
other matters concerning the Borrower and the Loan Documents as the Required
Lenders may reasonably request.

     

    Each
Request for Credit Extension (other than a Committed Loan Notice requesting only
a conversion of Committed Loans to the other Type or a continuation of
Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been
satisfied on and as of the date of the applicable Credit Extension.

     

     

    ARTICLE
V.

    REPRESENTATIONS
AND WARRANTIES

     

    The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:

     

    5.01  Existence, Qualification and
Power.  Each Loan Party (a) is duly organized or formed,
validly existing and, as applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority and all requisite governmental licenses, authorizations, consents
and approvals to (i) own or lease its assets and carry on its business and (ii)
execute, deliver and perform its obligations under the Loan Documents to which
it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.

     

    
      
         

      

      
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    5.02  Authorization; No
Contravention.  The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is party, have been duly
authorized by all necessary corporate or other organizational action, and do not
and will not (a) contravene the terms of any of such Person’s Organization
Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under (i) any
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any
Law.

     

    5.03  Governmental Authorization; Other
Consents.  No approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this Agreement or
any other Loan Document.

     

    5.04  Binding
Effect.  This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto.  This Agreement constitutes, and
each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.

     

    5.05  Financial Statements; No Material
Adverse Effect.  

     

    (a)  The
Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; (ii) fairly present the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and
Indebtedness.

     

    (b)  The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
March 28, 2009, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for the fiscal quarter ended on that date
(i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein, and (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.  Such unaudited
consolidated balance sheets set forth all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date of such financial statements, including liabilities
for taxes, material commitments and Indebtedness.

     

    
      
         

      

      
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    (c)  Since the
date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect.

     

    (d)  The
consolidated forecasted balance sheet and statements of income and cash flows of
the Borrower and its Subsidiaries delivered pursuant to Section 6.01(c) were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the
Borrower’s best estimate of its future financial condition and
performance.

     

    5.06  Litigation.  There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.

     

    5.07  No Default.  No
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document. 

     

    5.08  Ownership of Property;
Liens.  Each of the Borrower and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of its business,
except for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  The
property of the Borrower and its Restricted Subsidiaries is subject to no Liens,
other than Liens permitted by Section
7.01.  Notwithstanding any grant of a security interest in any
assets or properties of the Borrower or any Subsidiary to any collateral agent
or the Lenders, none of the following shall be included as collateral subject to
any such grant or pledge: (i) accounts, instruments, chattel paper or other
obligations or properties of any kind due from, owed by, or belonging to, a
Sanctioned Person or Sanctioned Entity and (ii) any lease in which the lessee is
a Sanctioned Person or Sanctioned Entity.

     

    5.09  Environmental
Compliance.  The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof the Borrower has reasonably concluded that such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.

     

    5.10  Insurance.  The
properties of the Borrower and its Subsidiaries with a book value of $10,000,000
or more individually or in the aggregate either (a) are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts (after giving effect to any self-insurance compatible with the following
standards) with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Borrower or the applicable Subsidiary operates, or (b)
are covered by self-insurance permitted under Section
6.07.

     

    
      
         

      

      
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    5.11  Taxes.  The Borrower
and its Subsidiaries have filed all Federal, state and other material tax
returns and reports required to be filed, and have paid all Federal, state and
other material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP.  There is no proposed tax assessment
against the Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect.  Neither any Loan Party nor any Subsidiary thereof is
party to any tax sharing agreement.

     

    5.12  ERISA Compliance.

     

    (a)  Each Plan
is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification.  The Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.

     

    (b)  There are
no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan
that could reasonably be expected to have a Material Adverse
Effect.  There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse
Effect.

     

    (c)  (i) No
ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.

     

    5.13  Subsidiaries; Equity
Interests.  As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Exhibit 21.1 to the
Borrower’s 10-K filed December 1, 2008, with respect to the fiscal year ending
September 27, 2008, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by a Loan Party in the amounts specified in such public filings free and
clear of all Liens.  As of the Closing Date, the Borrower has no
equity investments in any other corporation or entity other than those
specifically disclosed in the aforementioned public filing.  All of
the outstanding Equity Interests in the Borrower have been validly issued
and are fully paid
and nonassessable.

     

    
      
         

      

      
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    5.14  Margin Regulations; Investment
Company Act.  

     

    (a)  The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock. 

     

    (b)  None of
the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is
required to be registered as an “investment company” under the Investment
Company Act of 1940.

     

    5.15  Disclosure.  The
Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No written report, financial statement,
certificate or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder
or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading at the
time they were made; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.  

     

    5.16  Compliance with
Laws.  To the actual knowledge of the Borrower after due and
diligent investigation, each Loan Party and each Subsidiary thereof is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.

     

    5.17  Taxpayer Identification
Number.  The Borrower’s true and correct U.S. taxpayer
identification number is set forth on Schedule
10.02.

     

    5.18  Solvency.  The
Borrower is, individually and together with its Subsidiaries on a consolidated
basis, Solvent.

     

    5.19  Pari Passu Indebtedness/Senior
Indebtedness. The Obligations
constitute (i) “Senior Debt” (or any comparable term) under and as defined in
the Subordinated Debt Documents and (ii) “Pari Passu Indebtedness” (or any
comparable term) under and as defined in the Senior Note Documents.

     

    5.20  Guarantees by
Subsidiaries.  No Subsidiary (other than a Guarantor) has
Guaranteed any Indebtedness of the Borrower.

     

    
      
         

      

      
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    5.21  Foreign
Assets.  None of the Borrowers, any Subsidiary of the Borrower
or any Affiliate of the Borrower are in violation of and shall not violate any
of the country or list based economic and trade sanctions administered and
enforced by OFAC that are described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from
time to time. 

     

     

    ARTICLE
VI.

    AFFIRMATIVE
COVENANTS

     

    So long as
any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall, and shall cause each Restricted
Subsidiary (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03)
to:

     

    6.01  Financial Statements. Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:

     

    (a)  as soon as
available, but in any event within 105 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such fiscal year, and the related consolidated statements of
income, changes in shareholders’ equity, and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of Ernst & Young LLP or
another independent certified public accountant of nationally or regionally
recognized standing, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any
“going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit; and

     

    (b)  as soon as
available, but in any event within 45 days after the end of each fiscal quarter
of each fiscal year of the Borrower (commencing with the fiscal quarter ended
March 28, 2009), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, and the related consolidated statements of
changes in shareholders’ equity, and cash flows for the portion of the
Borrower’s fiscal year then ended, in each case setting forth in comparative
form, as applicable, the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail, certified by the chief executive officer, chief
financial officer, treasurer or controller of the Borrower as fairly presenting
the financial condition, results of operations, shareholders’ equity and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes;
and

     

    (c)  as soon as
available, but in any event at least 15 days before the end of each fiscal year
of the Borrower, forecasts prepared by management of the Borrower, in form
satisfactory to the Administrative Agent and the Required Lenders, of
consolidated balance sheets and statements of income or operations and cash
flows of the Borrower and its Subsidiaries on a quarterly basis for the
immediately following fiscal year (including the fiscal year in which the
Maturity Date occurs).

     

    
      
         

      

      
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    As to any
information contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described in
clauses (a) and (b) above at the times specified therein.

     

    6.02  Certificates; Other
Information.  Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:

     

    (a)  concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and
(b) (commencing
with the delivery of the financial statements for the fiscal quarter ended March
28, 2009), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of the
Borrower;

     

    (b)  promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books of
the Borrower or any Subsidiary, or any audit of any of them;

     

    (c)  promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and
registration statements which the Borrower may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant
hereto;

     

    (d)  promptly,
and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice of investigation,
enforcement or similar action or any other material correspondence received from
the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such
agency regarding financial or other operational results of any Loan Party or any
Subsidiary thereof;

     

    (e)  promptly,
and any event no later than five Business Days prior to entering into such
credit facilities, notice of the intent to enter into any credit facility
subject to Section
7.12; and

     

    (f)  promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.

     

    
      
         

      

      
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    Documents
required to be delivered pursuant to Section 6.01(a) or
(b) or Section 6.02(d) (to
the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents,
or provides a link thereto on the Borrower’s website on the Internet at the
website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet
or intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of
such documents.  Notwithstanding anything contained herein, in every
instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to
the Administrative Agent.  Except for such Compliance Certificates,
the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.

     

    The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arrangers will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively,
“Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may
have personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities.  The Borrower
hereby agrees that (w) all Borrower Materials that are to be made available to
Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first
page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be
deemed to have authorized the Administrative Agent, the Arrangers, the L/C
Issuer and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as
set forth in Section
10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Side
Information”; and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform that is not designated
“Public Side Information”.

     

    
      
         

      

      
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    6.03  Notices.  Promptly
notify the Administrative Agent and each Lender:

     

    (a)  of the
occurrence of any Default within five (5) Business Days of such
occurrence;

     

    (b)  of any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the
Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;

     

    (c)  of the
occurrence of any ERISA Event; and

     

    (d)  of any
change in accounting policies or financial reporting practices by the Borrower
or any Subsidiary, including any determination by the Borrower referred to in
Section 2.10(b)
that could reasonably be expected to have a Material Adverse Effect or otherwise
have any material impact on the calculation of financial covenant compliance
hereunder.

     

    Each
notice pursuant to this Section 6.03 shall be
accompanied by a statement of a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein and stating what action the
Borrower has taken and proposes to take with respect thereto.  Each
notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.

     

    6.04  Payment of
Obligations.  Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets in excess of $15,000,000, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the Borrower
or such Subsidiary; (b) all lawful claims of $15,000,000 or more which, if
unpaid, would by law become a Lien upon its property; and (c) all Indebtedness
in outstanding principal amount in excess of $15,000,000, as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness.

     

    6.05  Preservation of Existence,
Etc.  (a) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.03 or 7.04; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its material
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.

     

    6.06  Maintenance of
Properties.  Maintain, preserve and protect all of its
properties and equipment with a book value of $10,000,000 or more individually
or in the aggregate or as otherwise may be necessary in the operation of its
business in good working order and condition, ordinary wear and tear
excepted.

     

    
      
         

      

      
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    6.07  Maintenance of
Insurance.  Maintain in full force and effect insurance
(including worker’s compensation insurance, liability insurance, casualty
insurance and business interruption insurance) with financially sound and
reputable insurance companies not Affiliates of the Borrower, in such amounts,
with such deductibles and covering such risks as are customarily carried by
companies engaged in the same or similar business and owning similar properties
in similar localities as where the Borrower or the applicable Restricted
Subsidiary operates; provided, however, that the
Borrower may reduce the amount of insurance required to be maintained above to
the extent that the Borrower maintains a self-insurance program providing
insurance coverage therefor.

     

    6.08  Compliance with
Laws.  Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its business or property, except in such instances in which (a) such requirement
of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


     

    6.09  Books and
Records.  Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the assets and
business of the Borrower or such Restricted Subsidiary, as the case may
be.

     

    6.10  Inspection
Rights.  Permit representatives and independent contractors of
the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon five Business
Days advance notice to the Borrower; provided, however, that when an
Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.

     

    6.11  Use of
Proceeds.  Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document.

     

    6.12  Guarantees by
Subsidiaries. At any time that any Domestic Subsidiary (including,
without limitation, any Unrestricted Subsidiary or Non-Recourse Real Estate
Subsidiary) Guarantees any Indebtedness of the Borrower, cause such Domestic
Subsidiary to, promptly (but in any event within five (5) Business Days of
providing such Guarantee), (a) no longer be designated as an Unrestricted
Subsidiary or Non-Recourse Real Estate Subsidiary, as the case may be, (b)
become a Guarantor by executing and delivering to the Administrative Agent a
counterpart of the Guaranty or such other document as the Administrative Agent
shall deem appropriate for such purpose and (c) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.

     

    
      
         

      

      
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    6.13  Asset
Sales.  The Borrower shall apply, or cause the applicable
Restricted Subsidiary to apply, the Net Cash Proceeds of any Asset Sale
described in Section
7.04 (each, a “Net Cash Proceeds
Transaction”), within 365 days of receipt thereof either: (a) to
permanently reduce senior Indebtedness of the Borrower or a Restricted
Subsidiary, and, in the case of any such Indebtedness under any revolving credit
facility, effect a permanent reduction in the availability under such revolving
credit facility; (b) to make an investment or capital expenditure in properties
and assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets (including Equity Interests) that will be
used in the business of the Borrower and its Restricted Subsidiaries as existing
on the Closing Date or in businesses reasonably related thereto; (c) to acquire
Equity Interests of another Person provided such Person becomes a Restricted
Subsidiary; and/or (d) to effect a combination of prepayment and investment
permitted by the foregoing clauses (a), (b) and (c).  The amount of
such Net Cash Proceeds not used or invested within 365 days of the Net Cash
Proceeds Transaction as set forth in this paragraph shall constitute “Excess
Proceeds.”

     

    6.14  Wachovia
Letters of Credit.  The Wachovia Letters of Credit shall have
been replaced by or amended or otherwise modified to become Letters of Credit
issued by the L/C Issuer under this Agreement or otherwise terminated or
replaced with letters of credit issued under a letter of credit facility
permitted under Section 7.02 no later
than the date that occurs 60 days after the Closing Date.

     

     

    ARTICLE
VII.

    NEGATIVE
COVENANTS

     

    So long as
any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Restricted
Subsidiary to, directly or indirectly:

     

    7.01  Liens.  Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:


     

    (a)  Liens for
taxes, assessments or governmental charges or claims either (i) not delinquent
or (ii) contested in good faith by appropriate proceedings and as to which the
Borrower or its Restricted Subsidiaries shall have set aside on its books such
reserves as may be required pursuant to GAAP;

     

    (b)  statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith,
if such reserve or other appropriate provision, if any, as shall be required by
GAAP, shall have been made in respect thereof;

     

    
      
         

      

      
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    (c)  Liens
incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money);

     

    (d)  judgment
Liens not giving rise to an Event of Default so long as such Lien is adequately
bonded and any appropriate legal proceedings which may have been duly initiated
for the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;

     

    (e)  easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the
ordinary conduct of the business of the Borrower or any of its Restricted
Subsidiaries;

     

    (f)  any
interest or title of a lessor under any Indebtedness of the Borrower and its
Restricted Subsidiaries, on a consolidated basis, in respect of Capital Lease
Obligations incurred in accordance with Section 7.01(a);
provided that
such Liens do not extend to any property or assets which is not leased property
subject to such Indebtedness;

     

    (g)  Liens upon
specific items of inventory or other goods and proceeds of the Borrower or any
of its Restricted Subsidiaries securing the Borrower’s or any of its Restricted
Subsidiaries’ obligations in respect of bankers’ acceptances issued or created
for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods, in an aggregate amount at any time outstanding
not to exceed $10,000,000;

     

    (h)  Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit
and products and proceeds thereof;

     

    (i)  Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual, or warranty requirements of the Borrower or any of its
Restricted Subsidiaries, including rights of offset and set-off;

     

    (j)  Liens
securing obligations under any interest rate Swap Contracts permitted under
Section 7.02(i)
and that relate to Indebtedness otherwise permitted hereunder;

     

    (k)  Liens
securing Acquired Indebtedness incurred in accordance with Section 7.02 (and any
Liens securing any permitted refinancing thereof); provided
that:

     

    (i)  such Liens
secured such Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Borrower or a Restricted Subsidiary and were
not granted in connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Borrower or a Restricted Subsidiary;
and

     

    
      
         

      

      
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    (ii)  such Liens
do not extend to or cover any property or assets of the Borrower or of any of
its Restricted Subsidiaries other than the property or assets that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Borrower or a Restricted Subsidiary and are no more
favorable to the lienholders than those securing the Acquired Indebtedness prior
to the incurrence of such Acquired Indebtedness by the Borrower or a Restricted
Subsidiary;

     

    (l)  Liens on
assets of a Restricted Subsidiary that is not a Guarantor to secure Indebtedness
of such Restricted Subsidiary that is otherwise permitted under this
Agreement;

     

    (m)  leases,
subleases, licenses and sublicenses granted to others that do not materially
interfere with the ordinary cause of business of the Borrower and its Restricted
Subsidiaries;

     

    (n)      banker’s
Liens, rights of setoff and similar Liens with respect to cash and Cash
Equivalents on deposit in one or more bank accounts in the ordinary course of
business;

     

    (o)  Liens
arising from filing Uniform Commercial Code financing statements regarding
operating leases;

     

    (p)  Liens in
favor of customs and revenue authorities arising as a matter of law to secure
payments of customs duties in connection with the importation of
goods;

     

    (q)  Liens
existing as of the Closing Date and listed on Schedule 7.01 to the
extent and in the manner such Liens are in effect on the Closing
Date;

     

    (r)  Liens
pursuant to any Loan Document;

     

    (s)  Liens in
favor of the Borrower or a Restricted Subsidiary on assets of any Restricted
Subsidiary;

     

    (t)  Liens
securing Indebtedness permitted under clauses (b), (c) and (d) of Section
7.02;

     

    (u)  Liens
securing any refinancing which is incurred to refinance any Indebtedness which
has been secured by a Lien permitted under this Agreement and which has been
incurred in accordance with the provisions of this Agreement; provided, however, that such
Liens: (i) are no less favorable to the Lenders in any material respect and are
not more favorable to the lienholders in any material respect with respect to
such Liens than the Liens in respect of the Indebtedness being refinanced; and
(ii) do not extend to or cover any property or assets of the Borrower or any of
its Restricted Subsidiaries whose value exceeds the assets or property which
secured the Indebtedness so refinanced; provided, further, that in the
event that the property or assets being secured is not the same property or
assets which secured the Indebtedness so refinanced, the Borrower shall provide
a certificate from a Responsible Officer of the Borrower to the Administrative
Agent certifying that the Liens securing such refinancing are in compliance with
this clause (u);

     

    
      
         

      

      
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    (v)  Liens
securing Indebtedness or other obligations of a Guarantor owing to the Borrower
or another Guarantor permitted to be incurred pursuant to this Agreement;
and

     

    (w)  other
Liens securing Indebtedness permitted under Section 7.02(a);
provided that
the aggregate principal amount of all obligations secured pursuant to this
clause (w) shall not exceed 15% of Consolidated Tangible Assets at any one time
outstanding;

     

    provided, however, that except
as expressly provided in Section 7.01(g),
notwithstanding any other provision of this Section 7.01 to the
contrary, neither the Borrower nor any Restricted Subsidiary shall incur or
suffer to exist any Liens on any of its Accounts Receivable or
Inventory.

     

    7.02  Indebtedness.  Create,
issue, incur, assume, guaranty or otherwise in any manner become directly or
indirectly liable for the payment of or otherwise incur, contingently or
otherwise (collectively, “incur”), any Indebtedness (including any Acquired
Indebtedness), except that the Borrower and, to the extent expressly provided
below, its Restricted Subsidiaries may incur each and all of the
following:

     

    (a)  Indebtedness
that is incurred by the Borrower and any Guarantor or that constitutes Acquired
Indebtedness of a Restricted Subsidiary, so long as the Consolidated Adjusted
Interest Coverage Ratio for the most recent four full fiscal quarters for which
financial statements are available immediately preceding the incurrence of such
Indebtedness shall not be less than 2.00 to 1.00;

     

    (b)  Indebtedness
of the Borrower or any Guarantor (and guarantees of such Indebtedness by any
Subsidiaries that have become Guarantors) in an aggregate principal amount
outstanding at any time not to exceed $220,000,000 under (i) the Loan Documents
or (ii) one or more other revolving credit facilities, lines of credit, letters
of credit or term loans; provided, that the
aggregate amount of outstanding principal of loans, unused commitments and
maximum stated amount of letters of credit with respect to credit facilities,
lines of credit, letters of credit and term loans permitted under the foregoing
sub-clause (ii) of this clause (b) shall not exceed $45,000,000 at any
time;

     

    (c)  Indebtedness
of the Borrower pursuant to the Senior Notes in an aggregate principal amount
not to exceed $575,000,000 and Indebtedness of any Guarantor pursuant to a
Guarantee of the Senior Notes;

     

    (d)  Indebtedness
of the Borrower or any Guarantor represented by Capital Lease Obligations and
Purchase Money Obligations for the purpose of financing the purchase, lease or
improvement of property (real or personal) or equipment of the Borrower and its
Restricted Subsidiaries incurred in the ordinary course of business not to
exceed $75,000,000 at any one time outstanding;

     

    (e)  Indebtedness
of the Borrower and the Restricted Subsidiaries outstanding on the Closing Date
and listed on Schedule
7.02;

     

    
      
         

      

      
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    (f)  Indebtedness
of the Borrower owing to a Restricted Subsidiary; provided that any
Indebtedness of the Borrower owing to a Restricted Subsidiary that is not a
Guarantor is made pursuant to an intercompany note in form and substance
satisfactory to the Administrative Agent and is unsecured and is subordinated in
right of payment from and after such time as the Obligations shall become due
and payable (whether on the Maturity Date, acceleration or otherwise) to the
payment and performance of the Obligations; provided, further, that any
disposition, pledge or transfer of any such Indebtedness to a Person (other than
a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to
be an incurrence of such Indebtedness by the Borrower or other obligor not
permitted by this clause (f);

     

    (g)  Indebtedness
of a Restricted Subsidiary owing to the Borrower or another Restricted
Subsidiary; provided that any
such Indebtedness is made pursuant to an intercompany note in form and substance
satisfactory to the Administrative Agent; provided, further, that (a) any
disposition, pledge or transfer of any such Indebtedness to a Person (other than
a disposition, pledge or transfer to the Borrower or a Restricted Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the obligor not
permitted by this clause (g), and (b) any transaction pursuant to which any
Restricted Subsidiary, which has Indebtedness owing to the Borrower or any other
Restricted Subsidiary, ceases to be a Restricted Subsidiary shall be deemed to
be the incurrence of Indebtedness by such Restricted Subsidiary that is not
permitted by this clause (g);

     

    (h)  guarantees
of any Restricted Subsidiary made in accordance with the provisions of Section
7.12;

     

    (i)  obligations
of the Borrower or any Restricted Subsidiary existing or arising under any
Permitted Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a “market view;” and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;

     

    (j)  Indebtedness
of the Borrower or any of its Restricted Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business (including, without limitation, letters of credit in respect of
workers’ compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers’ compensation
claims) in an aggregate maximum stated amount not to exceed $30,000,000 at any
time outstanding;

     

    (k)  Indebtedness
arising from agreements of the Borrower or a Restricted Subsidiary providing for
indemnification, earn outs, adjustments of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Restricted Subsidiary; provided, however, that such
Indebtedness is not reflected on the balance sheet of the Borrower or any
Restricted Subsidiary (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not
be deemed to be reflected on such balance sheet for purposes of this clause
(k));

     

    
      
         

      

      
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    (l)  Indebtedness
solely in respect of surety, performance or appeal bonds, to the extent that
such incurrence does not result in the incurrence of any obligation for the
payment of borrowed money to others;

     

    (m)  any
renewals, extensions, substitutions, refundings, refinancings or replacements
(collectively, a “refinancing”) of any Indebtedness described in clause (a),
(b)(ii) or (e) of this Section 7.02 (other
than the Existing Subordinated Debt), including any successive refinancings so
long as the borrower under such refinancing is the Borrower or, if not the
Borrower, the same as the borrower of the Indebtedness being refinanced and the
aggregate principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness plus any accreted
value attributable thereto since the original issuance of such Indebtedness) is
not increased to a principal amount in excess of the principal amount on the
Closing Date, plus the amount of
premium or other payment actually paid at such time to refinance the
Indebtedness, plus the amount of
expenses of the Borrower incurred in connection with such refinancing, and (1)
in the case of any refinancing of Indebtedness that is Subordinated Debt, such
new Indebtedness is made subordinated to the Obligations at least to the same
extent as the Indebtedness being refinanced and (2) in the case of senior
Indebtedness or Subordinated Debt, as the case may be, such refinancing does not
reduce the average life to stated maturity or the stated maturity of such
Indebtedness; and

     

    (n)  Indebtedness
of the Borrower or any Restricted Subsidiaries in addition to that described in
clauses (b) through (m) above, and any renewals, extensions, substitutions,
refinancings or replacements of such Indebtedness, so long as the aggregate
principal amount of all such Indebtedness shall not exceed $50,000,000
outstanding at any one time in the aggregate.

     

    For
purposes of determining compliance with this Section 7.02, in the
event that an item of Indebtedness meets the criteria of more than one of the
types of Indebtedness permitted hereby, the Borrower in its sole discretion
shall classify or reclassify such item of Indebtedness and only be required to
include the amount of such Indebtedness as one of such types.  Accrual
of interest, accretion or amortization of original issue discount and the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, will not be deemed to be an incurrence of Indebtedness for
purposes of this covenant; provided, in each
such case, that the amount thereof is included in Consolidated Interest Charges
of the Borrower as accrued.

     

    7.03  Fundamental
Changes.  Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:

     

    (a)  any
Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries (other than a Non-Recourse Real Estate Subsidiary), provided that (x)
when any Guarantor is merging with another Subsidiary, the Guarantor shall be
the continuing or surviving Person, and (y) when any Unrestricted Subsidiary is
merging with a Restricted Subsidiary, the Restricted Subsidiary shall be the
continuing or surviving Person; and

     

    
      
         

      

      
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    (b)  any
Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary (other than a
Non-Recourse Real Estate Subsidiary); provided that if (x)
the transferor in such a transaction is a Guarantor, then the transferee must
either be the Borrower or a Guarantor, and (y) if the transferor in such a
transaction is a Restricted Subsidiary, then the transferee must either be the
Borrower or a Restricted Subsidiary.

     

    7.04  Asset
Sales.  Consummate an Asset Sale unless (1) at least 75% of the
consideration from such Asset Sale other than Asset Swaps is received in cash
and (2) the Borrower or such Restricted Subsidiary receives consideration at the
time of such Asset Sale at least equal to the fair market value of the shares or
assets subject to such Asset Sale (as determined by the Board of Directors of
the Borrower and evidenced in a board resolution); provided that the
amount of any Designated Non-cash Consideration received by the Borrower or any
of its Restricted Subsidiaries in the Asset Sale shall be deemed “cash” for
purposes of this provision; provided, further,
notwithstanding any other provision of this Section 7.04 to the
contrary, neither the Borrower nor any Restricted Subsidiary shall consummate an
Asset Sale with respect to Accounts Receivable or Inventory other than in the
ordinary course of business.  With respect to an Asset Swap
constituting an Asset Sale, the Borrower or any Restricted Subsidiary shall be
required to receive in cash an amount equal to 75% of the Proceeds of the Asset
Sale which do not consist of like-kind assets acquired with the Asset
Swap.  

     

    7.05  Restricted
Payments.  Declare or make any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, unless:

     

    (a)  immediately
before and immediately after giving effect to such proposed Restricted Payment
on a pro forma basis, no
Default or Event of Default shall have occurred and be continuing and such
Restricted Payment shall not be an event which is, or after notice or lapse of
time or both, would be, an “event of default” under the terms of any
Indebtedness of the Borrower or its Restricted Subsidiaries;

     

    (b)  immediately
before and immediately after giving effect to such Restricted Payment on a pro
forma basis, the Borrower could incur $1.00 of additional Indebtedness under the
provisions of Section
7.02(a); and

     

    (c)  after
giving effect to the proposed Restricted Payment, the aggregate amount of all
such Restricted Payments declared or made after the Closing Date and all
Designation Amounts does not exceed the Restricted Payment Cap.

     

    Notwithstanding
the foregoing, and in the case of clauses (2) through (5) and (7) below, so long
as no Default or Event of Default is continuing or would arise therefrom, the
foregoing provisions shall not prohibit the following actions (each of clauses
(1) through (4), (6), (7), (8) and (9) being referred to as a “Permitted
Payment”):

     

    (1)           the
payment of any dividend within 60 days after the date of declaration thereof, if
at such date of declaration such payment was permitted by clauses (a) through
(c) of this Section and such payment shall have been deemed to have been paid on
such date of declaration and shall not have been deemed a “Permitted Payment”
for purposes of the calculation required by clauses (a) through (c) of this
Section;

     

    
      
         

      

      
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    (2)           the
repurchase, redemption, or other acquisition or retirement for value of any
shares of any class of Equity Interests of the Borrower in exchange for
(including any such exchange pursuant to the exercise of a conversion right or
privilege in connection with which cash is paid in lieu of the issuance of
fractional shares or scrip), or out of the Net Cash Proceeds of a substantially
concurrent issuance and sale for cash (other than to a Subsidiary) of, other
shares of Qualified Equity Interests of the Borrower; provided that the Net
Cash Proceeds from the issuance of such shares of Qualified Equity Interests are
excluded from clause (b) of the definition of Restricted Payment
Cap;

     

    (3)           the
repurchase, redemption, defeasance, retirement or acquisition for value or
payment of principal of any Subordinated Debt in exchange for, or in an amount
not in excess of the Net Cash Proceeds of, a substantially concurrent issuance
and sale for cash (other than to any Subsidiary of the Borrower) of any
Qualified Equity Interests of the Borrower, provided that the Net
Cash Proceeds from the issuance of such shares of Qualified Equity Interests are
excluded from clause (b) of the definition of Restricted Payment
Cap;

     

    (4)           the
repurchase, redemption, defeasance, retirement, refinancing, acquisition for
value or payment of principal of any Subordinated Debt (other than Redeemable
Equity Interests) (a “refinancing”) through the substantially concurrent
issuance of new Subordinated Debt of the Borrower, provided that any
such new Subordinated Debt

     

    (a)           shall
be in a principal amount that does not exceed the principal amount so refinanced
(or, if such Subordinated Debt provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration thereof,
then such lesser amount as of the date of determination), plus the lesser of (1)
the stated amount of any premium or other payment required to be paid in
connection with such a refinancing pursuant to the terms of the Indebtedness
being refinanced or (2) the amount of premium or other payment actually paid at
such time to refinance the Indebtedness, plus, in either case, the amount of
expenses of the Borrower incurred in connection with such
refinancing;

     

    (b)           has
an average life to stated maturity greater than the remaining average life to
stated maturity of the Obligations;

     

    (c)           has
a stated maturity for its final scheduled principal payment later than the
Maturity Date; and

     

    (d)           is
expressly subordinated in right of payment to the Obligations at least to the
same extent as the Subordinated Debt to be refinanced;

     

    
      
         

      

      
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    (5)           the
payment of cash dividends on the Borrower’s shares of Common Stock in the
aggregate amount per fiscal quarter equal to $0.165 per share for each share of
Class A Common Stock of the Borrower outstanding as of the one record date for
dividends payable in respect of such fiscal quarter and $0.15 per share for each
share of Class B Common Stock of the Borrower outstanding as of the one record
date for dividends payable in respect of such fiscal quarter (as such $0.165 and
$0.15 shall be adjusted for specified changes in the capitalization of the
Borrower upon recapitalizations, reclassifications, stock splits, stock
dividends, reverse stock splits, stock consolidations and similar transactions),
provided, however, in the event
a Change of Control occurs, the aggregate amounts permitted to be paid in cash
dividends per fiscal quarter shall not exceed the aggregate amounts of cash
dividends paid in the same fiscal quarter most recently occurring prior to such
Change of Control, provided, further, that for
purposes of this exception, shares of Common Stock issued for less than fair
market value (other than shares issued pursuant to options or otherwise in
accordance with the Borrower’s employee stock option, purchase or option plans)
shall not be deemed outstanding.  (For clarity purposes, dividends
paid pursuant to this exception will be included as Restricted Payments in
determining whether the Borrower has capacity to make additional Restricted
Payments);

     

    (6)           the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Borrower or any Restricted Subsidiary held by any
present or former employee or director of the Borrower (or any of its Restricted
Subsidiaries) pursuant to any management equity subscription agreement or stock
option agreement or other management or employee benefit plan or similar
agreement; provided that (A) the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $1,000,000 in any twelve-month period (with
unused amounts in any calendar year being carried over to succeeding calendar
years subject to a maximum (without giving effect to the following proviso) of
$2,000,000 in any calendar year); provided further that such
amount in any calendar year may be increased by an amount not to exceed (x) the
cash proceeds from the sale of Equity Interests of the Borrower or a Restricted
Subsidiary to members of management and directors of the Borrower and its
Subsidiaries that occurs after the Closing Date, less (y) (i) the amount of any
Restricted Payments previously made pursuant to clause (x) of this subparagraph
(6) and (ii) the aggregate net cash proceeds received by the Borrower since the
Closing Date upon the exercise of stock options; and provided further that
cancellation of Indebtedness owing to the Borrower from members of management of
the Borrower or any of its Restricted Subsidiaries in connection with a
repurchase of Equity Interests of the Borrower or a Restricted Subsidiary will
not be deemed to constitute a Restricted Payment for purposes of this Section or
any other provision of this Agreement, and (B) no Default or Event of Default
shall have occurred and be continuing immediately before or after such
transaction;

     

    (7)           repurchases
of Equity Interests, deemed to occur upon the exercise of any options, warrants
or convertible securities if the Equity Interests represent a portion of the
exercise price of such options, warrants or convertible securities and
repurchases of Equity Interests deemed to occur upon the withholding of a
portion of the Equity Interests granted or awarded to any employee to pay for
taxes payable by such employee upon such grant or award;

     

    
      
         

      

      
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    (8)           the
repurchase and retirement of Class B Common Stock held by the Borrower’s Profit
Sharing Plan, provided that the
aggregate price paid for all such repurchased and retired Class B Common Stock
does not exceed $2,000,000 in any calendar year; and

     

    (9)           additional
Restricted Payments that, when taken with all other Restricted Payments made
pursuant to this clause (9) since the Closing Date, do not exceed
$25,000,000.

     

    7.06  Change in Nature of Business;
Accounting Changes.  Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto, or make any change in (a) accounting policies or reporting
practices, except as required by GAAP, or (b) fiscal year.

     

    7.07  Transactions with
Affiliates.  Enter into any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with or for the benefit of any Affiliate
of the Borrower (other than the Borrower or a Restricted Subsidiary) unless such
transaction or series of related transactions is entered into in good faith and
in writing and:

     

    (a)  such
transaction or series of related transactions is on terms that are no less
favorable to the Borrower or such Restricted Subsidiary, as the case may be,
than those that would be available in a comparable transaction in arm’s-length
dealings with an unrelated third party;

     

    (b)  with
respect to any transaction or series of related transactions involving aggregate
value in excess of $500,000, the Borrower delivers a certificate signed by a
Responsible Officer of the Borrower to the Administrative Agent certifying that
such transaction or series of related transactions complies with clause (a)
above; and

     

    (c)  with
respect to any transaction or series of related transactions involving aggregate
value in excess of $1,000,000, either

     

    (i)  such
transaction or series of related transactions has been approved by a majority of
the Disinterested Directors of the board of directors of the Borrower, or in the
event there is only one Disinterested Director, by such Disinterested Director;
or

     

    (ii)  the
Borrower delivers to the Administrative Agent a written opinion of an investment
banking firm of national standing or other recognized independent expert with
experience appraising the terms and conditions of the type of transaction or
series of related transactions for which an opinion is required stating that the
transaction or series of related transactions is fair to the Borrower or such
Restricted Subsidiary from a financial point of view;

     

    
      provided, however, that this
Section 7.07
shall not apply to:

       

      
        
           

        

        
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    (A)           transactions
and agreements in existence on the Closing Date and any renewals, amendments,
modifications and changes to such agreements which are not adverse in any
material respect to the Borrower;

     

    (B)           transactions
between or among the Borrower or any of the Restricted
Subsidiaries;

     

    (C)           Restricted
Payments permitted by Section
7.05;

     

    (D)           compensation
(including bonuses and equity compensation) paid to and other benefits
(including retirement, health and other benefit plans, profit sharing plans or
management equity subscription agreements) and indemnification arrangements
provided on behalf of officers, directors, managers, employees or consultants of
the Borrower or any Restricted Subsidiary, in each case in the ordinary course
of business;

     

    (E)           the
existence of, or the performance by the Borrower or any Restricted Subsidiary of
its obligations under the terms of, any stockholders’ agreement (including any
registration rights agreement or purchase agreement but excluding any management
agreement related thereto) to which it is a party as of the date of the
Indenture and any similar agreements which it may enter into
thereafter;

     

    (F)           transactions
with Unrestricted Subsidiaries, customers, clients, suppliers, joint venture
partners, lessors or lessees of property (real or personal) or purchasers or
sellers of goods or services, in each case in the ordinary course of business
and otherwise in compliance with the terms of the Indenture which are fair to
the Borrower and its Restricted Subsidiaries, on terms substantially similar to
those contained in similar contracts entered into by the Borrower or any
Restricted Subsidiary with unaffiliated third parties, or if neither the
Borrower nor any Restricted Subsidiary has entered into a similar contract with
a third party, on terms that are in the reasonable determination of the senior
management of the Borrower, at least as favorable as might reasonably have been
obtained at such time from an unaffiliated third party;

     

    (G)           the
issuance of Qualified Equity Interests (including all warrants, options or other
rights to acquire Qualified Equity Interests) of the Borrower;

     

    (H)           loans
and advances to officers, directors, managers and employees for business related
travel expenses, moving expenses and other similar expenses, in each case
incurred in the ordinary course of business or consistent with past practices
and in compliance with all applicable laws; and

     

    (I)           loans
to the Borrower’s Profit Sharing Plan in aggregate amounts at any time
outstanding not to exceed $2,000,000 to enable such Profit Sharing Plan to
provide benefits to eligible employees during “black-out” periods.

     

    7.08  Burdensome
Agreements.  Create or otherwise cause to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:

     

    
      
         

      

      
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    (a)  pay
dividends or make any other distribution on its Capital Stock or any other
interest or participation in or measured by its profits;

     

    (b)  pay any
Indebtedness owed to the Borrower or any other Restricted
Subsidiary;

     

    (c)  make any
Investment in the Borrower or any other Restricted Subsidiary; or

     

    (d)  transfer
any of its properties or assets to the Borrower or any other Restricted
Subsidiary;

     

    provided, however, that this
Section 7.08
will not prohibit any encumbrance or restriction (1) pursuant to an agreement in
effect on the Closing Date and listed on Schedule 7.08; (2)
with respect to a Restricted Subsidiary that is not a Restricted Subsidiary of
the Borrower on the date hereof to the extent such encumbrance or restriction is
in existence at the time such Person becomes a Restricted Subsidiary of the
Borrower and is not incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary, but only so long as such encumbrance or
restriction is not applicable to the Borrower or any Restricted Subsidiary or
the properties or assets of the Borrower or any Restricted Subsidiary other than
such Subsidiary which is becoming a Restricted Subsidiary; (3) pursuant to any
agreement of a Guarantor governing any Indebtedness permitted by Section 7.02(b) as to
the assets financed with the proceeds of, or as pledged as collateral for, such
Indebtedness; (4) contained in any Acquired Indebtedness or other agreement of
any Person or related to assets acquired by or merged into or consolidated with
the Borrower or any Restricted Subsidiaries so long as such encumbrance or
restriction was not entered into in contemplation of the acquisition, merger or
consolidation transaction; and (5) under any agreement that extends, renews,
refinances or replaces the agreements containing the encumbrances or
restrictions in the foregoing clauses (1) through (4), or in this clause (5), to
the extent that the terms and conditions of any such encumbrance or restriction
are no more restrictive in any material respect than those under or pursuant to
the agreement evidencing the Indebtedness so extended, renewed, refinanced or
replaced.                                  

     

    7.09  Use of
Proceeds.  Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such
purpose.

     

    7.10  Financial
Covenants.  

     

    (a)  Consolidated Fixed Charge
Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage
Ratio (i) as of the end of any fiscal quarter of the Borrower or (ii) as of any
other date of determination of pro forma compliance with this clause (a) in
accordance with Article VII, as the
case may be, to be less than 1.20 to 1.00.

     

    (b)  Consolidated Leverage
Ratio.  Permit the Consolidated Leverage Ratio (i) as of the
end of any fiscal quarter of the Borrower or (ii) as of any other date of
determination of pro forma compliance with this clause (b) in accordance with
Article VII, as
the case may be, to be greater than 5.00 to 1.00.

     

    
      
         

      

      
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    (c)  Consolidated Net
Worth.  Permit Consolidated Net Worth at any time to be less
than the sum of (i) $336,579,094.00, (ii) an amount equal to 50%
of the Consolidated Net Income earned in each full fiscal quarter ending after
March 28, 2009 (with no deduction for a net loss in any such fiscal quarter) and
(iii) an amount equal to 50% of the aggregate increases in Shareholders’ Equity
of the Borrower and its Subsidiaries after the date hereof by reason of the
issuance and sale of Equity Interests of the Borrower or any Subsidiary (other
than issuances to the Borrower or a wholly-owned Subsidiary), including upon any
conversion of debt securities of the Borrower into such Equity
Interests.

     

    7.11  Subordinated Debt and Senior
Notes.

     

    (a)  Amend or
modify any of the terms of any of any Subordinated Debt or the Senior Notes if
such amendment or modification would add or change any terms in a manner adverse
to the Borrower or any Subsidiary (including any amendment or modification that
would shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest
rate applicable thereto).

     

    (b)  Amend or
modify any of the subordination provisions of any Subordinated
Debt.

     

    7.12  Most Favored
Lender.  Fail to promptly notify the Administrative Agent and
the Lenders in the event that at any time the Borrower or any Restricted
Subsidiary shall enter into any agreement, guarantee, indenture or other
instrument governing, relating to, providing for:

     

    (a)  commitments
to advance or guaranteeing any revolving credit financing or letter of credit
facility or to amend any terms and conditions applicable to any revolving credit
financing or letter of credit facility, which agreement, guarantee, indenture or
other instrument is, (i) bears interest at a rate more favorable to the lender
or other counterparty thereunder than that provided in this Agreement (to the
extent such agreement or instrument as a maturity equal to or shorter than the
maturity of this Agreement)  or (ii) includes financial covenants
similar to, in addition to or more restrictive than those set forth in Section 7.10 and such
financial covenants are more favorable to the lender or other counterparty
thereunder than those provided in this Agreement, or

     

    (b)  any
Restricted Subsidiary provides a guaranty of all or any portion of or the
Borrower or any Restricted Subsidiary otherwise pledges a security interest
(other than Liens permitted under Section 7.01) in any
assets with respect to any financing or credit facility (other than purchase
money financings permitted under Section
7.02),

     

    and,
thereupon, fail, if the Administrative Agent shall, at the request of, or may,
with the consent of, the Required Lenders, request by written notice to the
Borrower and/or such Restricted Subsidiary to promptly enter into an amendment
to this Agreement and such other documents as reasonably requested by the
Administrative Agent providing for
substantially the same such collateral security (on a ratable basis with all
other financings secured by such collateral), and, if applicable, interest rate
and/or financial covenants provided for in such agreement, guarantee or other
instrument, and/or cause such Restricted Subsidiary to enter into a Guaranty of
the Obligations under and otherwise in accordance with this Agreement, in each
case to the extent required and as may be selected by the Administrative Agent,
or as may be required by the Required Lenders, such amendment and/or guaranty to
remain in effect for the entire duration of the stated term to maturity of such
financing (to and including the date to which the same may be extended at the
Borrower’s option), notwithstanding that such financing might be earlier
terminated by prepayment, refinancing, acceleration or otherwise; provided that if any
such agreement, guarantee, indenture or other instrument shall be modified,
supplemented, amended or restated so as to modify, amend or eliminate from such
agreement, guarantee, indenture or other instrument any such collateral
security, or, if applicable, interest rate and/or financial covenants, or
terminate the guaranty of such Restricted Subsidiary, then unless required by
the Administrative Agent or the Required Lenders, as provided pursuant to this
Section, such modification, supplement, amendment or termination shall not
operate to modify, amend or eliminate such collateral security, interest rate
and/or financial covenants so made a part of this Agreement or to terminate the
Guaranty of such Restricted Subsidiary.

     

    
      
         

      

      
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    7.13  Limitations with Respect to
Unrestricted Subsidiaries.  Provide credit support for,
Guarantee or subject any of its property or assets (other than the Equity
Interests of any Unrestricted Subsidiary) to the satisfaction of, any
Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness) or be directly or
indirectly liable for any Indebtedness of any Unrestricted Subsidiary.


     

     

    ARTICLE
VIII.

    EVENTS
OF DEFAULT AND REMEDIES 

     

    8.01  Events of
Default.  Any of the following shall constitute an Event of
Default:

     

    (a)  Non-Payment.  The
Borrower or any other Loan Party fails to pay (i) when and as required to be
paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
any interest, fees or other amounts due hereunder and such failure remains
uncured for a period of five (5) days after the Borrower receives written notice
thereof from the Administrative Agent; or

     

    (b)  Specific
Covenants.  The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03(a),
6.05(a), 6.10, 6.11 or 6.12 or Article VII;
or

     

    (c)  Other
Defaults.  Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after written notice thereof from the Administrative
Agent; or

     

    (d)  Representations and
Warranties.  Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; or

     

    
      
         

      

      
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    (e)  Cross-Default.  (i)
The Borrower or any Guarantor (A) fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of the Subordinated Debt, the Senior Notes or any other Indebtedness or
Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $15,000,000, or (B)
fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Guarantor is
the Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Borrower or any
Guarantor is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Guarantor as a result thereof is
greater than $15,000,000; or

     

    (f)  Insolvency Proceedings,
Etc.  The Borrower or any Guarantor institutes or consents to
the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law relating to any
such Person or to all or any material part of its property is instituted without
the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or

     

    (g)  Inability to Pay Debts;
Attachment.  (i) The Borrower or any Guarantor becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
such Person and is not released, vacated or fully bonded within 30 days after
its issue or levy; or

     

    (h)  Judgments.  There
is entered against the Borrower or any Guarantor one or more final judgments
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect (including, without limitation, uninsured
money judgments of $15,000,000 or more) and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 60 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect;
or

     

    
      
         

      

      
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    (i)  ERISA.  (i)
An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $15,000,000, or (ii) the Borrower or
any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of $15,000,000; or

     

    (j)  Invalidity of Loan
Documents.  Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document;

     

    (k)  Change of
Control.  There occurs any Change of Control; or

     

    (l)  Subordinated Debt and Senior
Notes.  (i) The subordination provisions of any Subordinated Debt
Document (the “Subordinated
Provisions”) shall, in whole or in part, terminate, cease to be effective
or cease to be legally valid, binding and enforceable against any holder of the
Subordinated Debt; (ii) the Borrower or any other Loan Party shall, directly or
indirectly, disavow or contest in any manner (A) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (B) that the
Subordination Provisions exist for the benefit of the Administrative Agent and
the Lenders or (C) that all payments of principal of or premium and interest on
the Subordinated Debt, or realized from the liquidation of any property of any
Loan Party, shall be subject to any of the Subordination Provisions; (iii) any
of the Obligations for any reason shall fail to be “Senior Debt” (or any
comparable term) under, and as defined in, any Subordinated Debt Documents; (iv)
any of the Obligations for any reason shall fail to be “Pari Passu Indebtedness”
(or any comparable term) under, and as defined in, any of the Senior Note
Documents; or (v) a “Change of Control” (or any comparable term) shall occur
under any Subordinated Debt Document or Senior Note Document.

     

    8.02  Remedies Upon Event of
Default.  If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders, take any or all of the following actions:

     

    (a)  declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated;

     

    (b)  declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;

     

    (c)  require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount); and

     

    
      
         

      

      
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    (d)  exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan
Documents;

     

    provided, however, that upon
the occurrence of an actual or deemed entry of an order for relief with respect
to the Borrower under the Bankruptcy Code of the United States, the obligation
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.

     

    8.03  Application of Funds. After the exercise of
remedies provided for in Section 8.02 (or
after the Loans have automatically become immediately due and payable and the
L/C Obligations have automatically been required to be Cash Collateralized as
set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:

     

    First, to payment of
that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;

     

    Second, to payment of
that portion of the Obligations constituting fees, indemnities and other amounts
(other than principal, interest and Letter of Credit Fees) payable to the
Lenders and the L/C Issuer (including fees, charges and disbursements of counsel
to the respective Lenders and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause
Second payable
to them;

     

    Third, to payment of
that portion of the Obligations constituting accrued and unpaid Letter of Credit
Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to
them;

     

    Fourth, to payment of
that portion of the Obligations constituting unpaid principal of the Loans and
L/C Borrowings and Obligations then owing under Guaranteed Hedge Agreements and
Guaranteed Cash Management Agreements, ratably among the Lenders, the L/C
Issuer, the Hedge Banks and the Cash Management Banks in proportion to the
respective amounts described in this clause Fourth held by
them;

     

    Fifth, to the
Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
that portion of the L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and

     

    Last, the balance, if
any, after all of the Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law.

     

    
      
         

      

      
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    Subject to
Section
2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount
shall be applied to the other Obligations, if any, in the order set forth
above.

     

    Notwithstanding
the foregoing, Obligations arising under Guaranteed Cash Management Agreements
and Guaranteed Hedge Agreements shall be excluded from the application described
above if the Administrative Agent has not received written notice thereof,
together with such supporting documentation as the Administrative Agent may
request, from the applicable Cash Management Bank or Hedge Bank, as the case may
be.  Each Cash Management Bank or Hedge Bank not a party to this
Agreement that has given the notice contemplated by the preceding sentence
shall, by such notice, be deemed to have acknowledged and accepted the
appointment of the Administrative Agent pursuant to the terms of Article IX hereof for
itself and its Affiliates as if a “Lender” party hereto.

     

     

    ARTICLE
IX.

    ADMINISTRATIVE
AGENT

     

    9.01  Appointment and
Authority.  Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall
not have
rights as a third party beneficiary of any of such provisions.

     

    9.02  Rights as a
Lender.  The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.

     

    9.03  Exculpatory
Provisions.  The Administrative Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents.  Without limiting the generality of the foregoing, the
Administrative Agent:

     

    (a)  shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;

     

    
      
         

      

      
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    (b)      shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law;
and

     

    (c)  shall not,
except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or
any of its Affiliates in any capacity.

     

    The
Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and
8.02) or (ii)
in the absence of its own gross negligence or willful misconduct.  The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the L/C Issuer.

     

    The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article
IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.

     

    9.04  Reliance by Administrative
Agent.  The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In determining compliance with any
condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of
Credit.  The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or
experts.

     

    
      
         

      

      
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    9.05  Delegation of
Duties.  The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties.  The exculpatory provisions
of this Article shall apply to any such sub-agent and to the Related Parties of
the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative
Agent.

     

    9.06  Resignation of Administrative
Agent.  The Administrative Agent may at any time give notice of
its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor.  After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section
10.04 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.

     

    Any
resignation by Bank of America as Administrative Agent pursuant to this Section
shall also constitute its resignation as L/C Issuer and Swing Line
Lender.  Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring L/C
Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit.

     

    
      
         

      

      
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    9.07  Non-Reliance on Administrative Agent
and Other Lenders.  Each Lender and the L/C Issuer acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.  Each Lender and the L/C Issuer
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.

     

    9.08  No Other Duties,
Etc.  Anything herein to the contrary notwithstanding, none of
the Syndication Agent, the Documentation Agent, Joint Lead Arrangers or Joint
Book Managers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except
in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.  The Borrower and each Lender hereby acknowledge
that any Lender designated as the “Documentation Agent” or the “Syndication
Agent” on the signature pages hereof (other than the Administrative Agent) shall
not have any obligations, duties or liabilities hereunder other than in its
capacity as a Lender.

     

    9.09  Administrative Agent May File Proofs
of Claim.  In case of the pendency of any proceeding under any
Debtor Relief Law or any other judicial proceeding relative to any Loan Party,
the Administrative Agent (irrespective of whether the principal of any Loan or
L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise

     

    (a)  to file
and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.09 and 10.04) allowed in
such judicial proceeding; and

     

    (b)  to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;

     

    and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent and,
in the event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.08 and
10.04.

     

    
      
         

      

      
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    Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any Lender
or the L/C Issuer in any such proceeding.

     

    9.10  Guaranty
Matters.  Each of the Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted
hereunder.  Upon request by the Administrative Agent at any time, the
Required Lenders will confirm in writing the Administrative Agent’s authority to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section
9.10.

     

    9.11  Guaranteed Cash Management Agreements
and Guaranteed Hedge Agreements. No Cash Management Bank
or Hedge Bank who obtains the benefit of the provisions of Section 8.03, this
Agreement, the Guaranty by virtue of the provisions hereof or of the Guaranty
shall have any right to notice of any action or to consent to, direct, vote or
object to any action hereunder or under any other Loan Document other than in
its capacity as a Lender and, in such case, only to the extent expressly
provided in the Loan Documents.  Notwithstanding any other provision
of this Article
IX to the contrary, the Administrative Agent shall be required to verify
the payment of, or that other satisfactory arrangements have been made with
respect to, Obligations arising under Guaranteed Cash Management Agreements and
Guaranteed Hedge Agreements only if the Administrative Agent has received
written notice of such Obligations, together with such supporting documentation
as the Administrative Agent may request, from the applicable Cash Management
Bank or Hedge Bank, as the case may be.

     

     

    ARTICLE
X.

    MISCELLANEOUS

     

    10.01  Amendments, Etc.  No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such
amendment, waiver or consent shall:  

     

    (a)  waive any
condition set forth in Section 4.01(a)
without the written consent of each Lender;

     

    
      
         

      

      
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    (b)  extend or
increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section
8.02) without the written consent of such Lender;

     

    (c)  postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby;

     

    (d)  reduce the
principal of, or the rate of interest specified herein on, any Loan, or (subject
to clause (iii) of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document without
the written consent of each Lender directly affected thereby; provided, however, that only
the consent of the Required Lenders shall be necessary to amend the definition
of “Default Rate” or to waive any obligation of the Borrower to pay interest or
Letter of Credit Fees at the Default Rate;

     

    (e)  change
Section 2.13,
Section 8.03 or
any other provision in the Credit Agreement in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender;

     

    (f)  change any
provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written consent of each
Lender;

     

    (g)  release
all or substantially all of the value of the Guaranty without the written
consent of each Lender, except to the extent the release of any Guarantor is
permitted pursuant to Section 9.10 (in
which case such release may be made by the Administrative Agent acting
alone);

     

    (h)  amend or
waive compliance with Section 7.10, or
amend any definition in any manner that would have the effect of waiving
compliance with Section 7.10, in each
case without the written consent of Lenders holding in the aggregate at least
75% of the Aggregate Commitments or, if the Aggregate Commitments have been
terminated pursuant to Section 8.02, Lenders
holding in the aggregate more than 75% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes hereof); or

     

    (i)  amend
Section 10.06
or any other provision of this Agreement in each case in any manner that would
impose any greater restriction on the ability of any Lender to assign any of its
rights or obligations hereunder without the written consent of each
Lender;

     

    
      
         

      

      
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    and, provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by the L/C
Issuer in addition to the Lenders required above, affect the rights or duties of
the L/C Issuer under this Agreement or any Issuer Document relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in addition
to the Lenders required above, affect the rights or duties of the Swing Line
Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (iv) each fee letter entered into
in connection with this Agreement may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its
terms requires the consent of all Lenders may be effected with the consent of
all Lenders other than Defaulting Lenders), except that (i) the Commitment of
such Lender may not be increased or extended without the consent of such
Lender and (ii) any amendment, waiver or consent requiring the consent of
all Lenders or each affected Lender that by its terms affects any Defaulting
Lender more adversely than other affected Lenders shall require the consent of
such Defaulting Lender.

     

    10.02  Notices; Effectiveness; Electronic
Communication.  

     

    (a)  Notices
Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:

     

    (i)  if to the
Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to
the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02;
and

     

    (ii)  if to any
other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.

     

    Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Notices delivered through electronic communications to
the extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).

     

    (b)  Electronic
Communications.  Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent,  provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to
Article II if
such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by electronic
communication.  The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or
communications.

     

    
      
         

      

      
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    Unless the
Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.

     

    (c)  The
Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER
CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent
or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether in
tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the
L/C Issuer or any other Person for indirect, special, incidental, consequential
or punitive damages (as opposed to direct or actual damages).

     

    (d)  Change of Address,
Etc.  Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the other
parties hereto.  Each other Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to
the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender.  In addition, each Lender agrees to notify the Administrative
Agent from time to time to ensure that the Administrative Agent has on record
(i) an effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.  Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of
such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in
order to enable such Public Lender or its delegate, in accordance with such
Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information
with respect to the Borrower or its securities for purposes of United States
Federal or state securities laws.

     

    
      
         

      

      
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    (e)  Reliance by Administrative
Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify the Administrative Agent, the
L/C Issuer, each Lender and the Related Parties of each of them from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower.  All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.

     

    10.03  No Waiver; Cumulative Remedies;
Enforcement.  No failure by any Lender, the L/C Issuer or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.

     

    Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the
benefit of all the Lenders and the L/C Issuer; provided, however, that the
foregoing shall not prohibit (a) the Administrative Agent from exercising on its
own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Administrative Agent) hereunder and under the other Loan Documents,
(b) the L/C Issuer and the Swing Line Lender from exercising the rights and
remedies that inure to its benefit (solely in its capacity as L/C Issuer or
Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.13), or (d)
any Lender form filing proofs of claim or appearing and filing pleadings on its
own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at
any time there is no Person acting as Administrative Agent hereunder and under
the other Loan Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii)
in addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.13, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.

     

    
      
         

      

      
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    10.04  Expenses; Indemnity; Damage
Waiver. 

     

    (a)  Costs and
Expenses.  The Borrower shall pay (i) except as otherwise
expressly provided in the Commitment Letter, all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
fees, charges and disbursements of counsel for the Administrative Agent
including, without limitation, with respect to any opinions issued by such
counsel with respect to the transactions contemplated hereby), in connection
with any amendments, modifications or waivers of the provisions of this
Agreement or any other Loan Document (whether or not the transactions
contemplated hereby or thereby shall be consummated); (ii) all out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative
Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the L/C
Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or Letters
of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit; provided, that all
such professional fees shall be reasonable; provided, further, that all
such costs, expenses and fees arising prior to the Closing Date shall be subject
to and paid in accordance with the Commitment Letter.

     

    (b)  Indemnification by the
Borrower.  The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or thereby
or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents (including in respect of any matters addressed by Section 3.01), (ii)
any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto;
provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Borrower or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if the Borrower or such other Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.

     

    
      
         

      

      
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    (c)  Reimbursement by
Lenders.  To the extent that the Borrower for any reason fails
to indefeasibly pay any amount required under subsection (a) or (b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof),
the L/C Issuer or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent), the
L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity.  The obligations of the Lenders under this subsection
(c) are subject to the provisions of Section
2.12(d).

     

    (d)  Waiver of Consequential
Damages, Etc.  To the fullest extent permitted by applicable
law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof.  No Indemnitee referred to in subsection (b) above shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by such
Indemnitee  through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence of willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.

     

    (e)  Payments.  All
amounts due under this Section shall be payable not later than ten Business Days
after demand therefor.

     

    (f)  Survival.  The
agreements in this Section shall survive the resignation of the Administrative
Agent, the L/C Issuer and the Swing Line
Lender, the replacement of any Lender, the termination of the Aggregate
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.

     

    10.05  Payments Set Aside. To the extent that any
payment by or on behalf of the Borrower is made to the Administrative Agent, L/C
Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff
or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.  The
obligations of the Lenders and the L/C Issuer under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.

     

    
      
         

      

      
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    10.06  Successors and
Assigns.  

     

    (a)  Successors and Assigns
Generally.  The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void).  Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.

     

    (b)  Assignments by
Lenders.  Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); provided that any
such assignment shall be subject to the following conditions:

     

    (i)  Minimum
Amounts.

     

    (A)           in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and

     

    (B)           in
any case not described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.

     

    
      
         

      

      
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    (ii)  Proportionate
Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to the Swing Line
Lender’s rights and obligations in respect of Swing Line Loans.

     

    (iii)  Required
Consents.  No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in
addition:

     

    (A)           the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender,
an Affiliate of a Lender or an Approved Fund;

     

    (B)           the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to
be a Person that is not a Lender, an Affiliate of such Lender or an Approved
Fund with respect to such Lender;

     

    (C)           the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and

     

    (D)           the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment.

     

    (iv)  Assignment and
Assumption.  The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment.  The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.

     

    (v)  No Assignment to
Borrower.  No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.

     

    
      
         

      

      
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    (vi)  No Assignment to Defaulting
Lenders.  No such assignment shall be made to any Defaulting
Lender or its Subsidiaries or Affiliates that are Distressed
Persons.

     

    (vii)  No Assignment to Natural
Persons.  No such assignment shall be made to a natural
person.

     

    Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to
facts and circumstances occurring prior to the effective date of such
assignment.  Upon request, the Borrower (at its expense) shall execute
and deliver a Note to the assignee Lender.  Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.

     

    (c)  Register.  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary.  In addition, the Administrative Agent shall maintain on the
Register the designation, and revocation or designation, of any Lender as a
Defaulting Lender of which it has received notice.  The Register shall
be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.

     

    (d)  Participations.  Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative
Agent and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.

     

    
      
         

      

      
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    Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of
any  provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that
affects such Participant.  Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01,
3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section.  To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as
though it were a Lender.

     

    (e)  Limitations upon Participant
Rights.  A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as
though it were a Lender.

     

    (f)  Certain
Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.

     

    (g)  Resignation as L/C Issuer or
Swing Line Lender after Assignment.  Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) above, Bank of America may,
(i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line
Lender.  In the event of any such resignation as L/C Issuer or Swing
Line Lender, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case
may be.  If Bank of America resigns as L/C Issuer, it shall retain all
the rights, powers, privileges and duties of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)).  If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date
of such resignation, including the right to require the Lenders to make Base
Rate Committed Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section
2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line
Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters
of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such successor or make other arrangements satisfactory to Bank of
America to effectively assume the obligations of Bank of America with respect to
such Letters of Credit.

     

    
      
         

      

      
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    10.07  Treatment of Certain Information;
Confidentiality.  Each of the Administrative Agent, the Lenders
and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the
Borrower.  

     

    For
purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than any
such information that is available to the Administrative Agent, any Lender or
the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or
any Subsidiary, provided that, in the
case of information received from the Borrower or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential.  Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.

     

    Each of
the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a)
the Information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.

     

    10.08  Right of Setoff.  If
an Event of Default shall have occurred and be continuing and the Administrative
Agent or Lenders have commenced the exercise of remedies (after the expiration
of any applicable cure period) in accordance with Section 8.02, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch or office of such Lender or the L/C Issuer
different from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender, the L/C Issuer and each of
their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the L/C Issuer
or their respective Affiliates may have.  Each Lender and the L/C
Issuer agrees to notify the Borrower and the Administrative Agent promptly after
any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.

     

    
      
         

      

      
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    10.09  Interest Rate Limitation.
 Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).  If the Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess interest
shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower.  In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.

     

    10.10  Counterparts; Integration;
Effectiveness.  This Agreement and the other Loan Documents may
be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Agreement and
the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.  Except as provided in Section 4.01, this
Agreement and the other Loan Documents shall become effective when they shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement and any other Loan
Document by telecopy or other electronic imaging means shall be effective as
delivery of a manually executed counterpart of this Agreement and the other Loan
Documents.

     

    10.11  Survival of Representations and
Warranties.  All representations and warranties made hereunder
and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof.  Such representations and warranties have
been or will be relied upon by the Administrative Agent and each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.

     

    
      
         

      

      
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    10.12  Severability. If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions.  The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.

     

    10.13  Replacement of
Lenders.  If any Lender requests compensation under Section 3.04, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 10.06), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment), provided
that:            

     

    (a)  the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section
10.06(b);

     

    (b)  such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 3.05) from
the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);

     

    (c)  in the
case of any such assignment resulting from a claim for compensation under Section 3.04 or
payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter; and

     

    (d)  such
assignment does not conflict with applicable Laws.

     

    A Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.

     

    
      
         

      

      
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    10.14  Defaulting
Lenders.  (a) Notwithstanding
anything contained in this Agreement, if any Lender becomes a Defaulting Lender,
then, to the extent permitted by
applicable Law,

     

    (i)  during any
Default Period with respect to such Defaulting Lender, such Defaulting Lender’s
right to approve or disapprove any amendment, waiver or consent with respect to
this Agreement shall be restricted as set forth in Section
10.01;

     

    (ii)  until such
time as the Default Excess with respect to such Defaulting Lender shall have
been reduced to zero, any prepayment of the Loans shall be applied to the Loans
of other Lenders as if such Defaulting Lender had no Loans
outstanding;

     

    (iii)  until such
time as all Defaulted Payments with respect to such Defaulting Lender shall have
been paid, the Administrative Agent may (in its discretion) apply any amounts
thereafter received by the Administrative Agent for the account of such
Defaulting Lender to satisfy such Defaulting Lender’s obligations to make such
Defaulted Payments until such Defaulted Payments have been fully
paid;

     

    (iv)  with
respect to any Defaulting Lender with one or more Defaulted Loans, such
Defaulting Lender shall not be entitled to receive any commitment fee pursuant
to Section
2.09(a) for any Default Period with respect to such Defaulting Lender
(and the Borrower shall not be required to pay any such fee that otherwise would
have been required to have been paid to such Defaulting Lender);

     

    (v)     
at the
request of the Borrower, any Defaulting Lender may be replaced in accordance
with Section
10.13; and

     

    (vi)  no
assignments otherwise permitted by Section 10.06 shall
be made to a Defaulting Lender or any of its Subsidiaries or Affiliates that are
Distressed Persons.

     

    (b)  As used in
this Agreement:

     

    “Default Excess”
means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s ratable portion of the aggregate Outstanding Amount of the
Loans of all Lenders (calculated as if all Defaulting Lenders had funded all of
their respective Defaulted Loans) over the aggregate outstanding principal
amount of all Loans of such Defaulting Lender.

     

    “Default Period”
means, with respect to any Defaulting Lender,

     

    (i)           in
the case of any Defaulted Loan, the period commencing on the date the applicable
Defaulted Loan was required to be extended to the Borrower under this Agreement
(after giving effect to any applicable grace period) and ending on the earlier of the
following: (x) the date on which (A) the Default Excess with respect to such
Defaulting Lender has been reduced to zero (whether by the funding of any
Defaulted Loan by such Defaulting Lender or by the non-pro-rata application of
any prepayment pursuant to Section 10.14(a)(ii))
and (B) such Defaulting Lender shall have delivered to the Borrower and the
Administrative Agent a written reaffirmation of its intention to honor its
obligations hereunder with respect to its Commitment; and (y) the date on which
the Borrower, the Administrative Agent and the Required Lenders (and not
including such Defaulting Lender in any such determination, in accordance with
Section
10.14(a)(i)) waive the application of this Section 10.14 with
respect to such Defaulted Loans of such Defaulting Lender in
writing;

     

    
      
         

      

      
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    (ii)           in
the case of any Defaulted Payment, the period commencing on the date the
applicable Defaulted Payment was required to have been paid to the
Administrative Agent or other Lender under this Agreement (after giving effect
to any applicable grace period) and ending on the earlier of the
following: (x) the date on which (A) such Defaulted Payment has been paid to the
Administrative Agent or other Lender, as applicable, together with (to the
extent that such Person has not otherwise been compensated by the Borrower for
such Defaulted Payment) interest thereon for each day from and including the
date such amount is paid but excluding the date of payment, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with its then-applicable policies regarding interbank compensation
(whether by the funding of any Defaulted Payment by such Defaulting Lender or by
the application of any amount pursuant to Section
10.14(a)(iii)) and (B) such Defaulting Lender shall have delivered to the
Administrative Agent or other Lender, as applicable, a written reaffirmation of
its intention to honor its obligations hereunder with respect to such payments;
and (y) the date on which the Administrative Agent and any such other
Lender waive the application of this Section 10.14 with
respect to such Defaulted Payments of such Defaulting Lender in writing;
and

     

    (iii)           in
the case of any Distress Event determined by the Administrative Agent (in its
good faith judgment) or the Required Lenders (in their respective good faith
judgment) to exist, the period commencing on the date that the applicable
Distress Event was so determined to exist and ending on the earlier of the
following: (x) the date on which (A) such Distress Event
is  determined by the Administrative Agent (in its good faith
judgment) or the Required Lenders (in their respective good faith judgment) to
no longer exist and (B) such Defaulting Lender shall have delivered to the
Borrower and the Administrative Agent a written reaffirmation of its intention
to honor its obligations hereunder with respect to its Commitment; and (y) such
date as the Borrower and the Administrative Agent mutually agree, in their sole
discretion, to waive the application of this Section 10.14 with
respect to such Distress Event of such Defaulting Lender.

     

    “Defaulted Loan” has
the meaning specified in the definition of “Defaulting Lender”.

     

    “Defaulted Payment”
has the meaning specified in the definition of “Defaulting Lender”.

     

    “Defaulting Lender”
means any Lender (i) that has failed to fund any portion of the Loans required
to be funded by it hereunder (each such Loan, a “Defaulted Loan”)
within three Business Days of the date required to be funded by it hereunder,
(ii) that has otherwise failed to pay over to Administrative Agent or any other
Lender any other amount required to be paid by it hereunder (each such payment,
a “Defaulted
Payment”) within three Business Days of the date when due, unless the
subject of a good faith dispute, or (iii) as to which a Distress Event has
occurred, in each case in clauses (i) and (ii) above, for so
long as the applicable Default Period is in effect.

     

    
      
         

      

      
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    “Distress Event”
means, with respect to any Person (each, a “Distressed Person”),
(i) a voluntary or involuntary case (or comparable proceeding) has been
commenced with respect to such Person under any Debtor Relief Law, (ii) a
custodian, conservator, receiver or similar official has been appointed for such
Person or for any substantial part of such Person’s assets, (iii) after the date
hereof, such Person has consummated or entered into a commitment to consummate a
forced (in the good faith judgment of the Administrative Agent) liquidation,
merger, sale of assets or other transaction resulting, in the good faith
judgment of the Administrative Agent, in a change of ownership or operating
control of such Person supported in whole or in part by guaranties, assumption
of liabilities or other comparable credit support of (including without
limitation the nationalization or assumption of ownership or operating control
by) any Governmental Authority and the Administrative Agent (in its good faith
judgment) or the Required Lenders believe (in their respective good faith
judgment) that such event increases the risk that such Person could default in
performing its obligations hereunder for so long as the Administrative Agent (in
its good faith judgment) or the Required Lenders (in their respective good faith
judgment) so believe, or (iv) such Person has made a general assignment for the
benefit of creditors or has otherwise been adjudicated as, or determined by any
Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent, bankrupt or deficient in meeting any capital adequacy
or liquidity requirement of any Governmental Authority applicable to such
Person.

     

    “Distressed Person”
has the meaning specified in the definition of “Distress Event”.

     

    10.15  Governing Law; Jurisdiction;
Etc.    

     

    (a)   GOVERNING
LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.

     

    (b)   SUBMISSION TO
JURISDICTION.  THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NORTH CAROLINA SITTING IN THE CITY OF CHARLOTTE AND OF
THE UNITED STATES DISTRICT COURTS SITTING IN THE CITY OF CHARLOTTE, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NORTH CAROLINA STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.

     

    
      
         

      

      
        110

        
          

        

      

      
         

      

    

     

    (c)   WAIVER OF
VENUE.  THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.

     

    (d)   SERVICE OF
PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY
PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.

     

    10.16  Waiver of Jury
Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


     

    10.17  No Advisory or Fiduciary
Responsibility.  In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the Borrower
acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that:  (i) (A) the arranging and other services regarding this
Agreement provided by the Administrative Agent and the Arrangers are
arm’s-length commercial transactions between the Borrower and its Affiliates, on
the one hand, and the Administrative Agent and the Arrangers, on the other hand,
(B) the Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate, and (C) the Borrower is
capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent and the Arrangers each is and has
been acting solely as a principal and, except as expressly agreed in writing by
the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates or any
other Person and (B) neither the Administrative Agent nor the Arrangers has any
obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower and
its Affiliates, and neither the Administrative Agent nor any Arranger has any
obligation to disclose any of such interests  to the Borrower or its
Affiliates.  To the fullest extent permitted by law, the Borrower
hereby waives and releases any claims that it may have against the
Administrative Agent and any Arranger with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.

     

    
      
         

      

      
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    10.18  Electronic Execution of Assignments
and Certain Other Documents.  The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.  

     

    10.19  USA PATRIOT Act
Notice.  Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.  The
Borrower shall, promptly following a request by the Administrative Agent or any
Lender, provide all documentation and other information that the Administrative
Agent or such Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.

     

    


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of page is intentionally left blank; signature pages follow]

     

     

    
      
         

      

      
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    IN WITNESS WHEREOF, the
parties hereto have caused this Credit Agreement to be duly executed as of the
date first above written.

     

    
      
        
          
            
              
                
                  
                    	 	
                            INGLES
      MARKETS, INCORPORATED

                          
	 	 
	 	
                            By: /s/ Ronald B.
      Freeman

                          
	 	
                            Name:  Ronald B.
      Freeman

                          
	 	
                            Title: Chief
      Financial
Officer

                          


                  

                

              

            

          

        

      

    

     

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	 	
                                    BANK OF AMERICA, N.A.,
      as

                                  
	 	
                                    Administrative
      Agent

                                  
	 	 
      
	 	
                                    By: /s/ Roberto
      Salazar

                                  
	 	
                                    Name:  Roberto
      Salazar

                                  
	 	
                                    Title:  Assistant Vice
      President

                                  


                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 	
                                BRANCH BANKING AND
      TRUST

                              
	 	COMPANY,
      as Syndication Agent
	 	 
	 	
                                By: /s/ Preston W.
      Bergen

                              
	 	
                                Name:  Preston W.
      Bergen

                              
	 	
                                Title:  Senior Vice
      President

                              


                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 	
                                WACHOVIA BANK,
      NATIONAL

                              
	 	ASSOCIATION,
      as Documentation Agent
	 	 
	 	
                                By: /s/ Kevin
      Hefner

                              
	 	
                                Name:  Kevin
      Hefner

                              
	 	
                                Title:  Senior Vice
      President

                              


                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 	
                                BANK OF AMERICA,
      N.A., as a Lender,
      Swing

                              
	 	Line
      Lender and L/C Issuer
	 	 
	 	
                                By: /s/ Scott K.
      Mitchell

                              
	 	
                                Name:  Scott K.
      Mitchell

                              
	 	
                                Title:  Senior Vice
      President

                              


                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 	
                                BRANCH BANKING AND
      TRUST

                              
	 	COMPANY, as a
    Lender
	 	 
	 	
                                By: /s/ Preston W.
      Bergen

                              
	 	
                                Name:  Preston W.
      Bergen

                              
	 	
                                Title:  Senior Vice
      President

                              


                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        	 	
                                WACHOVIA BANK,
      NATIONAL

                              
	 	ASSOCIATION,
      as a Lender
	 	 
	 	
                                By: /s/ Kevin
      Hefner

                              
	 	
                                Name:  Kevin
      Hefner

                              
	 	
                                Title:  Senior Vice
      President