Exhibit 10.1  




$160,000,000



CREDIT
AGREEMENT 


among 


WS
MIDWAY HOLDINGS, INC., 


DAVE &
BUSTER'S, INC., 


as
Borrower, 


6131646 CANADA INC.,



as
Canadian Borrower, 


The
Several Lenders from Time to Time Parties Hereto, 


WELLS
FARGO BANK, N.A. and CIT LENDING SERVICES CORPORATION, 


as
Co-Documentation Agents, 


BANK
OF AMERICA, N.A., 


as
Syndication Agent, 


and



JPMORGAN
CHASE BANK, N.A., 


as
Administrative Agent 


Dated
as of March 8, 2006 




J.P.
MORGAN SECURITIES INC., as Lead Arranger and Bookrunner 








   TABLE OF CONTENTS



	 
	 	 
	 	Page

	 SECTION 1.    DEFINITIONS	 	 
	 	
  1.1.	
 	

Defined Terms	
 	

1
	 	 1.2.	 	Other Definitional Provisions	 	 
	
  SECTION 2.    AMOUNT AND TERMS OF COMMITMENTS	
 	

26
	 	
  2.1.	
 	

Term Commitments	
 	

26
	 	 2.2.	 	Procedure for Term Loan Borrowing	 	26
	 	 2.3.	 	Repayment of Term Loans	 	27
	 	 2.4.	 	Revolving Commitments	 	28
	 	 2.5.	 	Procedure for Revolving Loan Borrowing; Currency Fluctuation Matters	 	29
	 	 2.6.	 	Swingline Commitment	 	31
	 	 2.7.	 	Procedure for Swingline Borrowing; Refunding of Swingline Loans	 	32
	 	 2.8.	 	Commitment Fees, etc.	 	33
	 	 2.9.	 	Termination or Reduction of Revolving Commitments	 	33
	 	 2.10.	 	Optional Prepayments	 	34
	 	 2.11.	 	Mandatory Prepayments	 	34
	 	 2.12.	 	Conversion and Continuation Options	 	35
	 	 2.13.	 	Limitations on Eurodollar Tranches and CCOF Tranches	 	36
	 	 2.14.	 	Interest Rates and Payment Dates	 	36
	 	 2.15.	 	Computation of Interest and Fees	 	37
	 	 2.16.	 	Inability to Determine Interest Rate	 	37
	 	 2.17.	 	Pro Rata Treatment and Payments	 	38
	 	 2.18.	 	Requirements of Law	 	39
	 	 2.19.	 	Taxes	 	40
	 	 2.20.	 	Indemnity	 	42
	 	 2.21.	 	Change of Lending Office	 	43
	 	 2.22.	 	Replacement of Lenders	 	43
	
  SECTION 3.    LETTERS OF CREDIT	
 	

44
	 	
  3.1.	
 	

L/C Commitment	
 	

44
	 	 3.2.	 	Procedure for Issuance of Letter of Credit	 	44
	 	 3.3.	 	Fees and Other Charges	 	45
	 	 3.4.	 	L/C Participations	 	45
	 	 3.5.	 	Reimbursement Obligation of the Borrower	 	46
	 	 3.6.	 	Obligations Absolute	 	46
	 	 3.7.	 	Letter of Credit Payments	 	46
	 	 	 	 	 





i







 

	 	 3.8.	 	Applications	 	46
	 	 3.9.	 	Existing Letters of Credit	 	47
	
  SECTION 4.    REPRESENTATIONS AND WARRANTIES	
 	

47
	 	
  4.1.	
 	

Financial Condition	
 	

47
	 	 4.2.	 	No Change	 	47
	 	 4.3.	 	Existence; Compliance with Law	 	47
	 	 4.4.	 	Power; Authorization; Enforceable Obligations	 	48
	 	 4.5.	 	No Legal Bar	 	48
	 	 4.6.	 	Litigation	 	48
	 	 4.7.	 	No Default	 	48
	 	 4.8.	 	Ownership of Property; Liens	 	48
	 	 4.9.	 	Intellectual Property	 	49
	 	 4.10.	 	Taxes	 	49
	 	 4.11.	 	Federal Regulations	 	49
	 	 4.12.	 	Labor Matters	 	49
	 	 4.13.	 	ERISA	 	49
	 	 4.14.	 	Investment Company Act; Other Regulations	 	50
	 	 4.15.	 	Subsidiaries	 	50
	 	 4.16.	 	Use of Proceeds	 	50
	 	 4.17.	 	Environmental Matters	 	50
	 	 4.18.	 	Accuracy of Information, etc	 	51
	 	 4.19.	 	Security Documents	 	51
	 	 4.20.	 	Solvency	 	52
	 	 4.21.	 	Regulation H	 	52
	 	 4.22.	 	Certain Documents	 	52
	 	 4.23.	 	Franchise Agreements	 	52
	
  SECTION 5.    CONDITIONS PRECEDENT	
 	

52
	 	
  5.1.	
 	

Conditions to Initial Extension of Credit	
 	

52
	 	 5.2.	 	Conditions to Each Extension of Credit	 	56
	
  SECTION 6.    AFFIRMATIVE COVENANTS	
 	

56
	 	
  6.1.	
 	

Financial Statements	
 	

56
	 	 6.2.	 	Certificates; Other Information	 	57
	 	 6.3.	 	Payment of Obligations	 	58
	 	 6.4.	 	Maintenance of Existence; Compliance	 	58
	 	 6.5.	 	Maintenance of Property; Insurance	 	58
	 	 	 	 	 



ii







 

	 	 6.6.	 	Inspection of Property; Books and Records; Discussions	 	58
	 	 6.7.	 	Notices	 	58
	 	 6.8.	 	Environmental Laws	 	59
	 	 6.9.	 	Additional Collateral, etc.	 	59
	 	 6.10.	 	Landlord Consents	 	61
	 	 6.11.	 	Leasehold Mortgages	 	61
	
  SECTION 7.    NEGATIVE COVENANTS	
 	

61
	 	
  7.1.	
 	

Financial Condition Covenants	
 	

61
	 	 7.2.	 	Indebtedness	 	62
	 	 7.3.	 	Liens	 	64
	 	 7.4.	 	Fundamental Changes	 	65
	 	 7.5.	 	Disposition of Property	 	66
	 	 7.6.	 	Restricted Payments	 	66
	 	 7.7.	 	Capital Expenditures	 	67
	 	 7.8.	 	Investments	 	67
	 	 7.9.	 	Optional Payments and Modifications of Certain Debt Instruments	 	68
	 	 7.10.	 	Transactions with Affiliates	 	69
	 	 7.11.	 	Sales and Leasebacks	 	69
	 	 7.12.	 	Swap Agreements	 	69
	 	 7.13.	 	Changes in Fiscal Periods	 	69
	 	 7.14.	 	Negative Pledge Clauses	 	69
	 	 7.15.	 	Clauses Restricting Subsidiary Distributions	 	70
	 	 7.16.	 	Lines of Business	 	70
	 	 7.17.	 	Amendments to Acquisition Documents	 	70
	 	 7.18.	 	Franchises	 	70
	
  SECTION 8.    EVENTS OF DEFAULT	
 	

70
	 	
  8.1.	
 	

Events of Default	
 	

70
	 	 8.2.	 	Right to Cure	 	73
	
  SECTION 9.    THE AGENTS	
 	

74
	 	
  9.1.	
 	

Appointment	
 	

74
	 	 9.2.	 	Delegation of Duties	 	74
	 	 9.3.	 	Exculpatory Provisions	 	74
	 	 9.4.	 	Reliance by Administrative Agent	 	75
	 	 9.5.	 	Notice of Default	 	75
	 	 9.6.	 	Non-Reliance on Agents and Other Lenders	 	75
	 	 	 	 	 





iii







 


	 	 9.7.	 	Indemnification	 	76
	 	 9.8.	 	Agent in Its Individual Capacity	 	76
	 	 9.9.	 	Successor Administrative Agent	 	76
	 	 9.10.	 	Documentation Agent and Syndication Agent	 	77
	
  SECTION 10.    MISCELLANEOUS	
 	

77
	 	
  10.1.	
 	

Amendments and Waivers	
 	

77
	 	 10.2.	 	Notices	 	78
	 	 10.3.	 	No Waiver; Cumulative Remedies	 	79
	 	 10.4.	 	Survival of Representations and Warranties	 	79
	 	 10.5.	 	Payment of Expenses and Taxes	 	79
	 	 10.6.	 	Successors and Assigns; Participations and Assignments	 	80
	 	 10.7.	 	Adjustments; Set-off	 	83
	 	 10.8.	 	Counterparts	 	83
	 	 10.9.	 	Severability	 	83
	 	 10.10.	 	Integration	 	84
	 	10.11.	 	GOVERNING LAW	 	84
	 	 10.12.	 	Submission To Jurisdiction; Waivers	 	84
	 	 10.13.	 	Acknowledgements	 	84
	 	 10.14.	 	Releases of Guarantees and Liens	 	85
	 	 10.15.	 	Confidentiality	 	85
	 	10.16.	 	WAIVERS OF JURY TRIAL	 	85
	 	 10.17.	 	Delivery of Addenda	 	85




iv







 

SCHEDULES: 



	1.1A	 	Commitments
	1.1B	 	Mortgaged Property
	1.1C	 	EBITDA Adjustments
	1.1D	 	Canadian Revolving Lender/Canadian Commitments
	1.1E	 	Existing Letters of Credit
	4.1(b)	 	Dispositions
	4.4	 	Consents, Authorizations, Filings and Notices
	4.6	 	Litigation
	4.9	 	Intellectual Property
	4.15	 	Subsidiaries
	4.17	 	Environmental Matters
	4.19(a)	 	UCC Filing Jurisdictions
	4.19(b)	 	Mortgage Filing Jurisdictions
	6.11	 	Leasehold Mortgages
	7.2(d)	 	Existing Indebtedness
	7.3(f)	 	Existing Liens
	7.8(j)	 	Existing Investments
	7.10	 	Transactions with Affiliates
	
  EXHIBITS:
	
 A	
 	

Form of Guarantee and Collateral Agreement
	B	 	Form of Compliance Certificate
	C	 	Form of Closing Certificate
	D	 	Form of Mortgage
	E	 	Form of Assignment and Assumption
	F	 	Form of Legal Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
	G	 	Form of Exemption Certificate
	H	 	Form of Addendum




v










        CREDIT AGREEMENT (this "Agreement"), dated as of March 8, 2006, among WS MIDWAY HOLDINGS, INC., a Delaware corporation
("Holdings"), DAVE & BUSTER'S, INC., a Missouri corporation (the "Borrower"),
6131646 CANADA INC., a Canadian corporation (the "Canadian Borrower"), the several banks and other financial institutions or
entities from time to time parties to this Agreement (the "Lenders"), WELLS FARGO BANK, N.A. and CIT LENDING SERVICES CORPORATION, as
co-documentation agents (collectively, in such capacity, the "Documentation Agents"), BANK OF AMERICA, N.A., as syndication agent
(in such capacity, the "Syndication Agent"), and JPMORGAN CHASE BANK, N.A., as administrative agent. 


        The
parties hereto hereby agree as follows: 


SECTION 1.
DEFINITIONS 


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


        "ABR": for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as
its prime rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the denominator of which is one minus the CD Reserve Percentage and (b) the CD Assessment Rate; and
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding Business Day) by the Board through the public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the secondary market quotations for three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if such day shall not be a Business Day, on the next preceding Business Day) by JPMorgan Chase Bank, N.A. from
three New York City negotiable certificate of deposit dealers of recognized standing selected by it. Any change in the ABR due to a change in the Prime Rate, the Three-Month Secondary CD Rate
or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively. 


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


        "Acquisition": as defined in Section 5.1. 


        "Acquisition Agreement": the Agreement and Plan of Merger, dated as of December 8, 2005, by and among the Borrower, Holdings and
Acquisition Sub. 


        "Acquisition Consideration": as defined in Section 4.16. 


        "Acquisition Documentation": collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters
and agreements affecting the terms thereof or entered into in connection therewith. 


        "Acquisition Sub": WS Midway Acquisition Sub, Inc., a Missouri corporation and a Wholly Owned Subsidiary of Holdings. 



        "Addendum": an instrument, substantially in the form of Exhibit H, by which a Lender becomes a party to this Agreement as of the
Closing Date. 


        "Additional Revolving Loans": as defined in Section 2.4A. 







 



        "Adjusted Debt": at any date, the sum of (a) Consolidated Total Debt at such date  plus (b) an amount equal to eight times the annual rental payments (excluding
payments constituting Capital Lease Obligations) of the Borrower
and its Subsidiaries as of such date. 


        "Adjusted EBITDAR": for any period, the sum of (a) Consolidated EBITDA for such period, subject to adjustments permitted by
Regulation S-X and such other adjustments as the Administrative Agent reasonably determines reflect the pro forma financial condition of the Borrower and may be used
in the offering memorandum or prospectus for the Senior Notes (provided that adjustments not materially different from those set forth on
Schedule 1.1C shall be deemed to be satisfactory to the Administrative Agent), plus (b) the aggregate amount of fixed and contingent
rental payments of the Borrower and its Subsidiaries for such period. 


        "Adjustment Date": as defined in the definition of Pricing Grid. 


        "Administrative Agent": JPMorgan Chase Bank, N.A., together with its affiliates, as the arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors (it being understood that, with respect to the Canadian Revolving
Loans, the Administrative Agent shall be JPMorgan Chase Bank, N.A., Toronto Branch). 


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


        "Agents": the collective reference to the Syndication Agent, the Documentation Agents and the Administrative Agent. 


        "Aggregate Exposure": with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount
of such Lender's Commitments at such time and (b) thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender's Tranche B Term Loans, (ii) the
amount of such Lender's Tranche C Term Commitment then in effect or, if the Tranche C Term Commitments have been terminated, the aggregate then unpaid principal amount of such Lender's
Tranche C Term Loans, (iii) the amount of such Lender's Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding and (iv) the amount of such Lender's Canadian Revolving Commitment then in effect or, if the Canadian Revolving Commitments have been terminated, the
amount of such Lender's Canadian Revolving Extensions of Credit then outstanding. 


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


        "Agreement": as defined in the preamble hereto. 


2







 

        "Applicable Margin": for each Type of Loan, the rate per annum set forth under the relevant column heading below: 



	 
	 	ABR Loans
	 	Eurodollar Loans

	Revolving Loans, Additional Revolving Loans and Swingline Loans	 	1.75%	 	2.75%
	Term Loans	 	1.50%	 	2.50%
	
 
	
 	

Canadian Prime Rate Loans
	
 	

Canadian Cost of Funds Loans

	Canadian Revolving Loans	 	1.75%	 	2.75%





;
provided, that on and after the first Adjustment Date occurring after the completion of two full fiscal quarters of the Borrower after the Closing
Date, the Applicable Margin with respect to the Term Loans will be determined pursuant to the Pricing Grid. 


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


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



        "Asset Sale": any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by
clause (a), (b), (c), (d), (e), (g), (h) or (i) of Section 7.5) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case
of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $1,000,000. 


        "Assignee": as defined in Section 10.6(b). 


        "Assignment and Assumption": an Assignment and Assumption, substantially in the form of Exhibit E. 


        "Available Canadian Revolving Commitment": as to any Canadian Revolving Lender at any time, an amount equal to the excess, if any, of
(a) such Canadian Revolving Commitment then in effect over (b) such Lender's Canadian Revolving Extensions of Credit
then outstanding. 


        "Available Revolving Commitment": as to any Revolving Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Commitment then in effect over (b) such Lender's Revolving Extensions of Credit then outstanding;  provided, that in calculating any
Lender's Revolving Extensions of Credit for the purpose of determining such Lender's Available Revolving Commitment
pursuant to Section 2.8(a), the aggregate principal amount of Swingline Loans then outstanding shall be deemed to be zero. 


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


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


        "Borrower": as defined in the preamble hereto. 


        "Borrowing Date": any Business Day specified by the Borrower or the Canadian Borrower as a date on which such Borrower or Canadian
Borrower requests the relevant Lenders to make Loans hereunder. 


        "Business": as defined in Section 4.17(b). 


        "Business Day": a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to close, provided, that with respect to notices and 


3







 



determinations
in connection with, and payments of principal and interest on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market. 


        "Calculation Date": (a) the last calendar day of each month (or, if such day is not a Canadian Business Day, the next succeeding
Canadian Business Day) and (b) at any time when a Default or Event of Default shall have occurred and be continuing, any other Canadian Business Day which the Administrative Agent may determine
in its sole discretion to be a Calculation Date. 


        "Canadian Borrower": as defined in the preamble hereto. 


        "Canadian Business Day": a Business Day and a day other than a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario
are authorized or required by law to close. 


        "Canadian Cost of Funds Loan": a Canadian Revolving Loan funded in Canadian Dollars, bearing interest calculated by reference to the
Canadian Cost of Funds Rate. 


        "Canadian Cost of Funds Rate": the fixed rate of interest determined by JPMorgan Chase Bank, N.A., Toronto Branch at or about
10:00 A.M., New York City time, on the first day of an Interest Period in respect of a Canadian Cost of Funds Loan as being sufficient to compensate JPMorgan Chase Bank, N.A., Toronto
Branch for its cost of funds for funding a Canadian Cost of Funds Loan in an aggregate amount equal to the Canadian Cost of Funds Loan and having a maturity comparable to the Interest Period relating
to said Canadian Costs of Funds Loan. 


        "Canadian Dollars or C$": dollars designated as lawful currency of Canada. 



        "Canadian Prime Rate": the higher of (a) the annual rate of interest announced from time to time by JPMorgan Chase Bank, N.A.,
Toronto Branch at its head office as its "prime rate" for C$ denominated commercial loans to borrowers in Canada (it being understood that such rate is a reference rate and not necessarily the
lowest rate of interest charged by JPMorgan Chase Bank, N.A., Toronto Branch) and (b) the sum of (i) the CDOR Rate and (ii) 1% per annum. 


        "Canadian Prime Rate Loan": a Canadian Revolving Loan funded in Canadian Dollars that accrues interest calculated by reference to the
Canadian Prime Rate. 


        "Canadian Revolving Commitment": as to any Canadian Revolving Lender, the obligation of such Lender, if any, to make Canadian Revolving
Loans and Additional Revolving Loans in an aggregate principal amount not to exceed the amount set forth under the heading "Canadian Revolving Commitment" opposite such Lender's name on
Schedule 1.1D or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The
original amount of the Total Canadian Revolving Commitments is $5,000,000. 


        "Canadian Revolving Extensions of Credit": as to any Canadian Revolving Lender at any time, an amount equal to the aggregate principal
amount (USD Equivalent) of all Canadian Revolving Loans and Additional Revolving Loans held by such Lender then outstanding. 


        "Canadian Revolving Lender": the Lender set forth on Schedule 1.1D and any other Eligible Canadian Assignee who becomes an
assignee of any rights and obligations of a Canadian Revolving Lender pursuant to Section 10.6, acting in their role as makers of Canadian Revolving Loans and Additional Revolving Loans, none
of which lenders shall be a non-resident of Canada for purposes of the Income Tax Act (Canada), except as otherwise provided under the definition of Eligible
Canadian Assignee. 


        "Canadian Revolving Loans": as defined in Section 2.4A. 


4







 



        "Canadian Revolving Percentage": as to any Canadian Revolving Lender at any time, the percentage which such Lender's Canadian Revolving
Commitment then constitutes of the Total Canadian Revolving Commitments or, at any time after the Canadian Revolving Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Canadian Revolving Loans and Additional Revolving Loans then outstanding constitutes of the aggregate principal amount of the Canadian Revolving Loans and Additional
Revolving Loans then outstanding. 


        "Capital Expenditures": for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that
should be capitalized under GAAP on a consolidated balance sheet of such
Person and its Subsidiaries; provided that such amount shall be reduced by amounts received by the Borrower or any of its Subsidiaries from any landlord
in such period in respect of landlord contributions, as specified in the applicable lease with such landlord, if and to the extent that the expenditures in respect of which such contributions were
made would otherwise be treated as Capital Expenditures hereunder. 


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


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


        "Cash Equivalents": (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition issued by any Lender or by
any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-1 by S&P or P-1 by Moody's, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by
the United States government; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the
United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody's; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money
market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; or (h) money market funds that
(i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody's and
(iii) have portfolio assets of at least $5,000,000,000. 


5







 



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



        "CD Assessment Rate": for any day as applied to any ABR Loan, the annual assessment rate in effect on such day that is payable by a member
of the Bank Insurance Fund maintained by the Federal Deposit Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment risk classification) within the meaning of 12 C.F.R. § 327.4 (or any successor provision)
to the FDIC (or any successor) for the FDIC's (or such successor's) insuring time deposits at offices of such institution in the United States. 



        "CD Reserve Percentage": for any day as applied to any ABR Loan, that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve requirement for a Depositary Institution (as defined in Regulation D of the Board as in effect from time to time) in
respect of new non-personal time deposits in Dollars having a maturity of 30 days or more. 


        "CDOR Rate": the annual rate of interest equal to the average 30 day rate applicable to Canadian bankers' acceptances appearing on
the "Reuters Screen CDOR Page" (as defined in the International Swaps and Derivatives Association, Inc. 1991 ISDA definitions, as modified and amended from time to time) as of
10:00 A.M., New York City time, on such day, or if such day is not a Canadian Business Day, then on the immediately preceding Canadian Business Day;  provided that if such rate does not appear
on the Reuters Screen CDOR Page as contemplated, then the CDOR Rate on any day shall be calculated as the
arithmetic mean of the 30 day rates applicable to Canadian bankers' acceptances quoted by the Schedule I Reference Banks as of 10:00 A.M., New York City time, on such day,
or if such day is not a Canadian Business Day, then on the immediately preceding Canadian Business Day. 


        "Closing Date": the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied, which date is
March 8, 2006. 


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


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


        "Commitment": as to any Lender, the sum of the Tranche B Term Commitment, the Tranche C Term Commitment, the Revolving
Commitment and the Canadian Revolving Commitment of such Lender. 


        "Commitment Fee Rate": 1/2 of 1% per annum. 


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


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



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


6







 



or 10.5
than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b) be deemed to have any Commitment. 



        "Confidential Information Memorandum": the Confidential Information Memorandum dated February 2006 and furnished to
certain Lenders. 


        "Consolidated Current Assets": at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date. 


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


        "Consolidated EBITDA": for any period, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (e) any extraordinary or non-recurring
non-cash expenses or losses, (f) any extraordinary or non-recurring cash expenses or losses in an aggregate amount not to exceed $3,500,000 in any Fiscal Year of the
Borrower, (g) non-cash expenses resulting from any employee benefit or management compensation plan or the grant of stock and stock options to employees of the Borrower or any of
its Subsidiaries pursuant to a written plan or agreement, (h) cash expenses incurred in connection with the Acquisition and the financing thereof in an aggregate amount not to exceed
$20,000,000, (i) Consolidated Start-up Costs for such period in an aggregate amount not to exceed $5,000,000 in any Fiscal Year of the Borrower, (j) management fees and
expenses paid to Wellspring and its Control Investment Affiliates permitted by Section 7.10 and (k) expenses incurred prior to the Closing Date relating to the closing of Mall of America
Units and conversion costs incurred prior to the Closing Date relating to the conversion of Jillian's Units, and minus, (a) to the extent
included in the statement of such Consolidated Net Income for such period, the sum of (i) interest income, (ii) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of
business), (iii) income tax credits (to the extent not netted from income tax expense) and (iv) any other non-cash income and (b) any cash payments made during
such period in respect of items described in clause (e) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the
statement of Consolidated Net Income, all as determined on a consolidated basis. For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
"Reference Period") pursuant to any determination of the Consolidated Leverage Ratio, (i) if at any time during such Reference Period the Borrower or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of
such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period the Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving  pro forma effect
thereto as if such Material Acquisition occurred on the first day of such Reference Period. As used in this definition,
"Material Acquisition" means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit 


7







 

of
a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the Borrower and its Subsidiaries in excess of $1,000,000;
and "Material Disposition" means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess
of $1,000,000. 


        "Consolidated EBITDAR": for any period, Consolidated EBITDA for such period, plus Consolidated Lease Expense for such period. 


        "Consolidated Fixed Charge Coverage Ratio": for any period, the ratio of (a) Consolidated EBITDAR for such period less the
aggregate amount actually paid by the Borrower and its Subsidiaries during such period on account of Maintenance Capital Expenditures (excluding (i) the principal amount of Indebtedness (other
than any Loans) incurred in connection with such expenditures and (ii) any Reinvestment Deferred Amount) to (b) Consolidated Fixed Charges for such period. 


        "Consolidated Fixed Charges": for any period, the sum (without duplication) of (a) Consolidated Interest Expense for such period,
(b) Consolidated Lease Expense for such period and (c) scheduled payments made during such period on account of principal of Indebtedness of the Borrower or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans). 



        "Consolidated Interest Expense": for any period, total cash interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in
accordance with GAAP). 


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


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


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


        "Consolidated Start-up Costs": consolidated "start-up costs" (as such term is defined in
SOP 98-5 published by the American Institute of Certified Public Accountants) of the Borrower and its Subsidiaries related to the acquisition, opening and organizing of new
Units or conversion of existing Units, including, without limitation, the cost of feasibility studies,
staff-training and recruiting and travel costs for employees engaged in such start-up activities, in each case net of landlord reimbursements for such costs. 



        "Consolidated Total Debt": at any date, the aggregate principal amount of all Indebtedness of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP; provided that obligations described in clause (f) of the definition of
"Indebtedness" shall not 


8







 



constitute
"Consolidated Total Indebtedness" to the extent such obligations are not drawn and unreimbursed. 



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


        "Continuing Directors": the directors of Holdings on the Closing Date, after giving effect to the Acquisition and the other transactions
contemplated hereby, and each other director, if, in each case, such other director's nomination for election to the board of directors of Holdings is recommended by at least 662/3% of
the then Continuing Directors or such other director receives the vote of the Permitted Investors in his or her election by the shareholders of Holdings. 



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


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


        "Cure Amount": as defined in Section 8.2. 


        "Cure Right": as defined in Section 8.2. 


        "Default": any of the events specified in Section 8.1, whether or not any requirement for the giving of notice, the lapse of
time, or both, has been satisfied. 


        "Disposition": with respect to any property, any sale, lease, sale and leaseback (including, without limitation, any Permitted
Sale-Leaseback), assignment, conveyance, transfer or other disposition thereof. The terms "Dispose" and "Disposed
of" shall have correlative meanings. 


        "Documentation Agents": as defined in the preamble hereto. 



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


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


        "ECF Percentage": 50%; provided, that, with respect to each Fiscal Year of the Borrower
ending on or after February 4, 2007, the ECF Percentage shall be reduced to (a) 25% if the Consolidated Leverage Ratio as of the last day of such Fiscal Year is not greater than 4.0 to
1.0 and (b) 0% if the Consolidated Leverage Ratio as of the last day of such Fiscal Year is not greater than 3.0 to 1.0. 


        "Eligible Canadian Assignee": any institutional lender which is (i) a lender named in Schedule I, Schedule II or
Schedule III to the Bank Act (Canada) having total assets in excess of C$500,000,000, (ii) any other lender approved by the Administrative Agent and the Canadian Borrower, which
approval shall not be unreasonably withheld or (iii) if, but only if, an Event of Default has occurred and is continuing, any other bank, insurance company, commercial finance company or other
financial institution or other Person approved by the Administrative Agent, such approval not to be unreasonably withheld, or any Approved Fund. 


        "Environmental Laws": any and all foreign, Federal, state, provincial, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Materials of Environmental Concern 


9







 



or
occupational safety and health matters (as such matters relate to Materials of Environmental Concern or exposure thereto), as now or may at any time hereafter be in effect. 


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


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


        "Eurodollar Base Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Page 3750 of the Telerate screen
(or otherwise on such screen), the "Eurodollar Base Rate" shall be determined by reference to such other comparable publicly available service
for displaying eurodollar rates as may be selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein. 



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


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



	 	 	Eurodollar Base Rate
 1.00—Eurocurrency Reserve Requirements	 	 





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


        "Event of Default": any of the events specified in Section 8.1, provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied. 



        "Excess Cash Flow": for any Fiscal Year of the Borrower, the excess, if any, of (a) the sum, without duplication, of
(i) Consolidated Net Income for such Fiscal Year, (ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated
Net Income, (iii) decreases in Consolidated Working Capital for such Fiscal Year, and (iv) the aggregate net amount of non-cash loss on the Disposition of property by the
Borrower and its Subsidiaries during such Fiscal Year (other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income  over
(b) the sum, without duplication, of (i) the amount of all non-cash credits included in arriving at such Consolidated Net
Income, (ii) the aggregate amount actually paid by the Borrower and its Subsidiaries in cash during such Fiscal Year on account of Capital Expenditures (excluding the principal amount of
Indebtedness incurred in connection with such expenditures and any such expenditures financed with the proceeds of any Reinvestment Deferred Amount) to the extent permitted to be made under this
Agreement, (iii) the aggregate amount of all 


10







 



prepayments
of Revolving Loans, Canadian Revolving Loans, Additional Revolving Loans and Swingline Loans during such Fiscal Year to the extent accompanying permanent optional reductions of the
Revolving Commitments, or the Canadian Revolving Commitments, as the case may be, and all optional prepayments of the Term Loans during such Fiscal Year, (iv) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including the Term Loans) of the Borrower and its Subsidiaries made during such Fiscal Year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in commitments thereunder) to the extent permitted to be paid under this Agreement, (v) increases in Consolidated Working
Capital for such Fiscal Year, and (vi) the aggregate net amount of non-cash gain on the Disposition of property by the Borrower and its Subsidiaries during such Fiscal Year (other
than sales of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income. 


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


        "Exchange Rate": with respect to Canadian Dollars on a particular date, the rate at which such currency may be exchanged into Dollars, as
set forth on such date as determined by the Administrative Agent on the applicable Reuters currency page with respect to such currency. In the event that such rate does not appear on the applicable
Reuters currency page, the Exchange Rate with respect to such currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by
the Administrative Agent and the Borrower or, in the absence of such
agreement, such Exchange Rate shall instead be JPMorgan Chase Bank, N.A., Toronto Branch's spot rate of exchange in the London interbank or other market where its foreign currency exchange operations
in respect of such currency are then being conducted, at or about 10:00 a.m., local time, at such date for the purchase of Dollars with Canadian Dollars, for delivery two Business Days later;  provided, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error. 


        "Excluded Foreign Subsidiary": the Canadian Borrower and any other Foreign Subsidiary in respect of which either (a) the pledge of
any of the Capital Stock or any of the assets of such Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Borrower. 


        "Existing Credit Agreement": as defined in Section 5.1(b)(iv). 


        "Existing Letter of Credit Issuer": Bank of America, N.A. 


        "Existing Letters of Credit": the letters of credit set forth on Schedule 1.1E. 


        "Existing Notes": the 5% Convertible Subordinated Notes due 2008 of the Borrower. 


        "Facility": each of (a) the Tranche B Term Commitments and the Tranche B Term Loans made thereunder
(the "Tranche B Term Facility"), (b) the Tranche C Term Commitments and the Tranche C Term Loans made thereunder
(the "Tranche C Term Facility"), (c) the Revolving Commitments and the extensions of credit made thereunder
(the "Revolving Facility") and (d) the Canadian Revolving Commitments and the extensions of credit made thereunder
(the "Canadian Revolving Facility"). 


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


11







 



        "Fee Payment Date": (a) the third Business Day following the last day of each March, June, September and December and
(b) the last day of the Revolving Commitment Period or the Tranche C Availability Period, as the case may be. 


        "Financial Condition Covenants": the covenants set forth in Section 7.1. 


        "Fiscal Year": the 12 monthly fiscal accounting periods described in Section 7.13. 


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



        "Funded Debt": as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower or the Canadian Borrower, Indebtedness in respect of the Loans. 



        "Funding Office": with respect to the Borrower, the office of the Administrative Agent specified in Section 10.2 or such
other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower or the Canadian Borrower, as the case may be, and the Lenders,
and with respect to the Canadian Borrower, the office of the Canadian Revolving Lender set forth on Schedule 1.1D or, as relevant, the office of each Eligible Canadian Assignee set out in the
Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. 



        "GAAP": generally accepted accounting principles in the United States as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial
statements referred to in Section 4.1(b). In the event that any "Accounting Change" (as defined below) shall occur and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the Borrower, the Canadian Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of
this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating the Borrower's financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Canadian Borrower, the Administrative Agent
and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the SEC. 



        "Governmental Authority": any nation or government, any state, province or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government. 


        "Group Members": the collective reference to Holdings, the Borrower, the Canadian Borrower and their respective Subsidiaries. 



        "Guarantee and Collateral Agreement": the Guarantee and Collateral Agreement to be executed and delivered by Holdings, the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit A. 


12







 



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


        "Guarantors": the collective reference to Holdings and the Subsidiary Guarantors. 


        "Holdings": as defined in the preamble hereto. 



        "Incurrence Ratio": as at the last day of any period of four consecutive fiscal quarters, the maximum permitted Consolidated Leverage
Ratio for such period as set forth in Section 7.1(a), with the numerator of such ratio decreased by 0.25. 


        "Indebtedness": of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person's business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant
under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of
Section 8.1(e) only, all obligations of such Person in respect of Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent
the terms of such Indebtedness expressly provide that such Person is not liable therefor. 


13







 



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


        "Insolvent": pertaining to a condition of Insolvency. 


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


        "Interest Payment Date": (a) as to any ABR Loan (other than any Swingline Loan) or any Canadian Prime Rate Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of such Interest Period, (d) as to any Canadian Cost of Funds Loan having an Interest Period of 90 days or less, the
last day of such Interest Period, (e) as to any Canadian Cost of Funds Loan having an Interest Period longer than 90 days, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest Period, (f) as to any Loan (other than any Revolving Loan or Additional Revolving Loan that is an ABR Loan, any
Swingline Loan and any Canadian Prime Rate Loan), the date of any repayment or prepayment made in respect thereof and (g) as to any Swingline Loan, the day that such Loan is required to
be repaid. 


        "Interest Period": (a) as to any Eurodollar Loan, (i) initially, the period commencing on the borrowing or conversion date,
as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City time, on the date that is
three Business Days prior to the last day of the then current Interest Period with respect thereto; and (b) as to any Canadian Cost of Funds Loan, (i) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Canadian Cost of Funds Loan and ending 30, 60, 90 or 180 days thereafter, as selected by the Canadian Borrower in its
notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (ii) thereafter, each period commencing on the last day of the next preceding Interest Period
applicable to such Canadian Cost of Funds Loan and ending 30, 60, 90 or 180 days thereafter, as selected by the Canadian Borrower by irrevocable notice to the Administrative Agent not later
than 11:00 A.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto;  provided that, all of the foregoing
provisions relating to Interest Periods are subject to the following: 



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



14







 

        (ii)   neither
the Borrower nor the Canadian Borrower may select an Interest Period under a particular Facility that would extend beyond the Revolving Termination Date or
beyond the date final payment is due on the Term Loans, as the case may be; 



        (iii)  any
Interest Period that begins on the last Business Day or Canadian Business Day, as applicable, 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 or Canadian Business Day, as applicable, of a calendar month; and 


        (iv)  the
Borrower and the Canadian Borrower shall select Interest Periods so as not to require a payment or prepayment of any Eurodollar Loan or any Canadian Cost of Funds
Loan, as the case may be, during an Interest Period for such Loan. 




        "Investments": as defined in Section 7.8. 


        "Issuing Lender": JPMorgan Chase Bank, N.A. or any affiliate thereof, in its capacity as issuer of any Letter of Credit, and any other
Lender selected by the Borrower to be an Issuing Lender with the consent of the Administrative Agent and such Lender, in such capacity. 


        "L/C Commitment": $20,000,000. 


        "L/C Obligations": at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5. 


        "L/C Participants": the collective reference to all the Revolving Lenders other than the Issuing Lender. 


        "Leasehold Mortgage": as defined in Section 6.11. 



        "Lenders": as defined in the preamble hereto and shall include each Term Lender, Revolving Lender, Canadian Revolving Lender and Swingline
Lender; provided, that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender. 


        "Letters of Credit": as defined in Section 3.1(a). 


        "Lien": with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including the interest of a vendor or a
lessor under any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing). 


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


        "Loan Documents": this Agreement, the Security Documents, the Notes and any amendment, waiver, supplement or other modification to any of
the foregoing. 


        "Loan Parties": each Group Member that is a party to a Loan Document. 


        "Maintenance Capital Expenditures": Capital Expenditures that are not New Unit Capital Expenditures. 


        "Majority Facility Lenders": with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans, the Total Revolving Extensions of Credit or the Total Canadian Revolving Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of the Tranche C
Term Facility, the Revolving Facility and the Canadian Revolving Facility, prior to any termination of the Tranche C Term Commitments, the Revolving Commitments or the Canadian Revolving
Commitments, as the case may be, the holders of more than 50% of the Total 


15







 



Tranche C
Term Commitments, the Total Revolving Commitments or the Total Canadian Revolving Commitments, as the case may be). 


        "Material Adverse Effect": a material adverse effect on (a) the business, property, operations, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder. 


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



        "Merger": the merger of Acquisition Sub with and into the Borrower, with the Borrower continuing as the surviving corporation, in
accordance with the Acquisition Agreement. 


        "Moody's": Moody's Investors Service, Inc. 


        "Mortgaged Properties": the real properties listed on Schedule 1.1B, as to which the Administrative Agent for the benefit of
the Lenders shall be granted a Lien pursuant to the Mortgages. 



        "Mortgages": each of the mortgages and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed of trust
is to be recorded). 


        "Multiemployer Plan": a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. 



        "New Unit Capital Expenditures": Capital Expenditures related to the construction, acquisition or opening of new Units net of
landlord reimbursements. 


        "Net Cash Proceeds": (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as
and when received), net of attorneys' fees, accountants' fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness that is secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) or that is otherwise subject to mandatory prepayment, and other
customary fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements) and net of the amount of any reserves established to fund contingent liabilities estimated in good faith to be payable and that are directly
attributable to such event (as determined reasonably and in good faith by the Chief Financial Officer of the Borrower), provided, that upon any
termination of any such reserve, all amounts not paid-out in connection therewith shall be deemed to be "Net Cash Proceeds" of such Asset Sale, and (b) in connection with any
issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds (net of any Indebtedness to be refinanced with such proceeds) received from such issuance or incurrence,
net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith. 


        "Non-Consenting Lender": as defined in Section 2.22(b). 


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


        "Non-U.S. Person": as defined in Section 2.19(d). 


16







 



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



        "Obligations": the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition or assignment in bankruptcy, or the commencement of any insolvency, reorganization, plan of arrangement or like proceeding, relating
to the Borrower or the Canadian Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations
and liabilities of the Borrower and the Canadian Borrower to the Administrative Agent or to any Lender (or, in the case of Specified Swap Agreements and Specified Cash Management Agreements, any
affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Specified Swap Agreement, any Specified Cash Management Agreement or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative
Agent or to any Lender that are required to be paid by the Borrower or the Canadian Borrower pursuant hereto) or otherwise. 


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



        "Participant": as defined in Section 10.6(c). 


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


        "Permitted Acquisition": the acquisition by the Borrower (whether of stock or of substantially all of the assets of a business or business
division as a going concern or by means of a merger or consolidation) of a 100% interest in any other Person, provided that all of the following conditions shall have been satisfied: (a) such
other Person shall operate a similar business to that of the Borrower's, (b) no Default or Event of Default shall have occurred and be continuing and none shall exist after giving effect
thereto, (c) if the Borrower shall merge or amalgamate with such other Person, the Borrower shall be the surviving party of such merger or amalgamation, (d) if such Person shall become a
Subsidiary of the Borrower, such new Subsidiary shall become a Subsidiary Guarantor pursuant to, and take all other actions required by, Section 6.9 hereof, (e) the Borrower shall have
delivered to the Administrative Agent a Compliance Certificate (such Compliance Certificate to be distributed to the Lenders by the Administrative Agent) demonstrating, both immediately prior to and
immediately after such acquisition, compliance on a pro forma basis with the covenants set forth in Section 7.1 hereof and (f) the aggregate amount expended by the Borrower and
its Subsidiaries for all Permitted Acquisitions shall not exceed $10,000,000. 


        "Permitted Cure Securities": (a) any common equity security of Holdings and/or (b) any equity security of Holdings having no
mandatory redemption, repurchase or similar requirements prior to 91 days after the date final payment is due on the Term Loans, and upon which all dividends or distributions (if any)
shall be payable solely in additional shares of such equity security. 


        "Permitted Investors": the collective reference to the Sponsors and their Control Investment Affiliates. 


        "Permitted Sale-Leaseback": as defined in Section 7.11. 


        "Permitted Senior Indebtedness": unsecured senior (or subordinated) Indebtedness of the Borrower (i) the terms of
which do not provide for any scheduled repayment, mandatory redemption or sinking 


17







 



fund
obligation prior to the date on which the final maturity of the Senior Notes occurs (as in effect on the Closing Date) and (ii) the covenant, default and remedy provisions of which
are not materially more restrictive, and the mandatory prepayment, repurchase and redemption provisions of which are not materially more onerous or expansive in scope, taken as a whole, than those set
forth in the Senior Note Indenture. 


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


        "Plan": at a particular time, any employee pension benefit plan (within in the meaning of Section 3(2) of ERISA) that is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA. 


        "Pricing Grid": the table set forth below. 



	Consolidated Leverage Ratio
 
	 	Applicable Margin for

Eurodollar Loans
	 	Applicable Margin for

ABR Loans

	Greater than or equal to 3.5:1.00	 	2.50%	 	1.50%
	Less than 3.5:1.00	 	2.25%	 	1.25%






        For
the purposes of the Pricing Grid, changes in the Applicable Margin resulting from changes in the Consolidated Leverage Ratio shall become effective on the date
(the "Adjustment Date") that is three Business Days after the date on which financial statements are delivered to the Lenders pursuant to
Section 6.1 and shall remain in effect until the next change to be effected pursuant to this paragraph. If any financial statements referred to above are not delivered within the time
periods specified in Section 6.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the higher rate set forth in each column of
the Pricing Grid shall apply. In addition, at all times while an Event of Default shall have occurred and be continuing, the higher rate set forth in each column of the Pricing Grid shall apply. Each
determination of the Consolidated Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 7.1. 


        "Pro Forma Balance Sheet": as defined in Section 4.1(a). 


        "Pro Forma Leverage Ratio": as at the Closing Date, the ratio of (a) Adjusted Debt on such date to (b) Adjusted
EBITDAR for the 12-month period ended on the date of the most recent available quarterly or annual financial statements of the Borrower. 


        "Projections": as defined in Section 6.2(c). 


        "Properties": as defined in Section 4.17(a). 


        "Real Estate": all real property at any time owned or leased (as lessee or sublessee) by the Borrower or its Subsidiaries. 



        "Recovery Event": any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding
relating to any asset of any Group Member. 


        "Refunded Swingline Loans": as defined in Section 2.7. 


        "Register": as defined in Section 10.6(b). 


        "Regulation S-X": Regulation S-X of the Securities Act of 1933, as amended. 


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


18







 



        "Reimbursement Obligation": the obligation of the Borrower to reimburse the Issuing Lender pursuant to Section 3.5
for amounts drawn under Letters of Credit. 


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


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


        "Reinvestment Notice": a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or
repair assets useful in its business. 


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


        "Reinvestment Prepayment Date": with respect to any Reinvestment Event, the earlier of (a) the date occurring 365 days after
such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets useful in the Borrower's business with
all or any portion of the relevant Reinvestment Deferred Amount. 


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


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



        "Required Lenders": at any time, the holders of more than 50% of (a) until the Closing Date, the Commitments then in effect and
(b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Tranche B Term Loans then outstanding, (ii) the Total Tranche C Term Commitments then in
effect or, if the Tranche C Term Commitments have been terminated, the aggregate unpaid principal amount of the Tranche C Term Loans then outstanding, (iii) the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding and (iv) the Total Canadian Revolving Commitments
then in effect or, if the Canadian Revolving Commitments have been terminated, the Total Canadian Revolving Extensions of Credit then outstanding. 



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


        "Reset Date": the second Canadian Business Day following each Calculation Date; provided
that, in connection with any Calculation Date designated pursuant to clause (b) of the definition thereof, the applicable Reset Date shall be such Calculation Date. 



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


        "Restricted Payments": as defined in Section 7.6. 


19









   
        "Revolving Commitment": as to any Revolving Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in
Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed the amount set forth under the heading "Revolving Commitment" opposite such Lender's name on
Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The
original amount of the Total Revolving Commitments is $55,000,000. 


        "Revolving Commitment Period": the period from and including the Closing Date to the Revolving Termination Date. 


        "Revolving Extensions of Credit": as to any Revolving Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Loans held by such Lender then outstanding, (b) such Lender's Revolving Percentage of the L/C Obligations then outstanding and (c) such Lender's Revolving
Percentage of the aggregate principal amount of Swingline Loans then outstanding. 


        "Revolving Lender": each Lender (other than the Canadian Revolving Lender) that has a Revolving Commitment or that holds
Revolving Loans. 


        "Revolving Loans": as defined in Section 2.4(a). 


        "Revolving Percentage": as to any Revolving Lender at any time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender's Revolving
Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event that the
Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable basis. 


        "Revolving Termination Date": March 8, 2011. 


        "S&P": Standard & Poor's Ratings Services. 


        "Sale-Leaseback": as defined in Section 7.11. 


        "Schedule I Reference Banks": means collectively Bank of Montreal, The Bank of Nova Scotia, Canadian Imperial Bank of Commerce,
Royal Bank of Canada and The Toronto-Dominion Bank and such one or more other Canadian banks identified in Schedule I to the Bank Act (Canada) as may from time to time be designated by
the Administrative Agent, in consultation with the Canadian Borrower. 


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


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


        "Senior Note Indenture": the Indenture entered into by Holdings, the Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Notes, together with all instruments and other agreements entered into by Holdings, the Borrower or such Subsidiaries in connection therewith. 


        "Senior Notes": the senior notes of the Borrower issued on the Closing Date pursuant to the Senior Note Indenture. 


20







 



        "Significant Group Member": (i) Holdings, (ii) the Borrower, (iii) the Canadian Borrower and (iv) any of their
respective Subsidiaries accounting for more than 5% of the total assets or revenues of Holdings or the Borrower on a consolidated basis. 


        "Single Employer Plan": any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan. 



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


        "Specified Cash Management Agreement": any agreement providing for treasury, depositary or cash management services, including in
connection with any automated clearing house transfers of funds or any similar transactions between the Borrower or any Guarantor and any Lender or Affiliate thereof. 


        "Specified Change of Control": a "Change of Control" (or any other defined term having a similar purpose) as defined in the Senior
Note Indenture. 


        "Specified Swap Agreement": any Swap Agreement entered into by the Borrower or any Guarantor and any Lender or Affiliate thereof in
respect of interest rates. 


        "Sponsors": Wellspring and HBK Investments, L.P. 



        "Subsidiary": as to any Person, a corporation, partnership (other than Sugarloaf), limited liability company or other entity of which more
than 50% of the total shares of stock or other ownership interests or more than 50% of ordinary voting power (other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, Controlled or held by such Person,
or the management of which is otherwise Controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. 


        "Subsidiary Guarantor": each Subsidiary of the Borrower other than any Excluded Foreign Subsidiary. 


        "Sugarloaf": Sugarloaf Gwinnett Entertainment Company, L.P., a Delaware limited partnership. 


        "Swap Agreement": any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan
providing for 


21







 

payments
only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries shall be a "Swap Agreement". 



        "Swingline Commitment": the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $5,000,000. 


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


        "Swingline Loans": as defined in Section 2.6. 


        "Swingline Participation Amount": as defined in Section 2.7. 


        "Syndication Agent": as defined in the preamble hereto. 


        "Term Lenders": the collective reference to the Tranche B Term Lenders and the Tranche C Term Lenders. 


        "Term Loans": the collective reference to the Tranche B Term Loans and the Tranche C Term Loans. 



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


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


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



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


        "Total Tranche C Term Commitments": at any time, the aggregate amount of the Tranche C Term Commitments then
in effect. 


        "Tranche B Term Commitment": as to any Tranche B Lender, the obligation of such Lender, if any, to make a Tranche B
Term Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading "Tranche B Term Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche B Term Commitments is $50,000,000. 


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


        "Tranche B Term Loan": as defined in Section 2.1(a). 


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


        "Tranche C Availability Period": the period from and including the Closing Date to the date that is six months after the
Closing Date. 


        "Tranche C Funding Date": the date on which the Tranche C Term Loans are made to the Borrower, as described in
Section 2.1(b). 


        "Tranche C Term Commitment": as to any Tranche C Lender, the obligation of such Lender, if any, to make a Tranche C
Term Loan to the Borrower in a principal amount not to exceed the amount set 


22







 



forth
under the heading "Tranche C Term Commitment" opposite such Lender's name on Schedule 1.1A. The original aggregate amount of the Tranche C Term Commitments
is $50,000,000. 


        "Tranche C Term Lender": each Lender that has a Tranche C Term Commitment or that holds a Tranche C Term Loan. 


        "Tranche C Term Loan": as defined in Section 2.1(b). 


        "Tranche C Term Percentage": as to any Tranche C Term Lender at any time, the percentage which such Lender's
Tranche C Term Commitment then constitutes of the aggregate Tranche C Term Commitments (or, at any time after the Tranche C Funding Date, the percentage which the aggregate
principal amount of such Lender's Tranche C Term Loans then outstanding constitutes of the aggregate principal amount of the Tranche C Term Loans then outstanding). 


        "Transferee": any Assignee or Participant. 


        "Type": as to any Loan, its nature as an ABR Loan, a Eurodollar Loan, a Canadian Prime Rate Loan or a Canadian Cost of Funds Loan, as the
case may be. 


        "Unit": a particular restaurant and/or entertainment center at a particular location that is owned or operated by the Borrower or one of
its Subsidiaries or that is operated by a franchisee of the Borrower or one of its Subsidiaries. 


        "United States": the United States of America. 


        "USD Equivalent": with respect to an amount of Canadian Dollars on any date, the amount of Dollars that may be purchased with such amount
of Canadian Dollars at the Exchange Rate in effect on such date. 


        "Wellspring": Wellspring Capital Management LLC. 


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


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



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


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



	(c)
	The
words "hereof", "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision 



23







 


of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. 



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





SECTION 2.
AMOUNT AND TERMS OF COMMITMENTS 


        2.1.    Term Commitments.    (a)    Subject to the terms and
conditions hereof, each Tranche B Term Lender severally agrees to make a term loan (a "Tranche B Term Loan") to the Borrower on the
Closing Date in an amount not to exceed the amount of the Tranche B Term Commitment of such Lender. The Tranche B Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.12. 


        (b)   Subject
to the terms and conditions hereof, each Tranche C Term Lender severally agrees to make a term loan (a "Tranche C
Term Loan") to the Borrower on a single date during the Tranche C Availability Period (the "Tranche C Funding
Date") in an amount not to exceed the amount of the Tranche C Term Commitment of such Lender. The Tranche C Term Loans may from time to time be Eurodollar Loans
or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.12. 


        2.2.    Procedure for Term Loan Borrowing.    The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent (a) in the case of Tranche B Term Loans, prior to 10:00 A.M.,
New York City time, one Business Day prior to the anticipated Closing Date and (b) in the case of Tranche C Term Loans, prior to 11:00 A.M., New York City time,
(i) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the case of ABR Loans),
specifying (A) the amount and Type of Term Loans to be borrowed, (B) the requested Borrowing Date and (C) in the case of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Period therefor. The Tranche B Term Loans made on the Closing Date shall initially be ABR Loans and, unless otherwise agreed by the
Administrative Agent in its sole discretion, no Tranche B Term Loan may be converted into or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the date
that is 30 days after the Closing Date. Upon receipt of such notice the Administrative Agent shall promptly notify each relevant Term Lender thereof. Not later than 12:00 Noon,
New York City time, on the Borrowing Date requested by the Borrower each relevant Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative
Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds. 


        2.3    Repayment of Term Loans.    (a)    The Tranche B Term Loan of each Lender shall mature in
28 consecutive quarterly installments, each of which shall be in an amount equal to such Lender's Tranche B Term Percentage multiplied by the percentage set forth below opposite such
installment of the aggregate principal amount of Tranche B Term Loans made on the Closing Date: 



	Installment
 
	 	Percentage

	June 30, 2006	 	0.25%
	September 30, 2006	 	0.25%
	December 31, 2006	 	0.25%
	March 31, 2007	 	0.25%
	June 30, 2007	 	0.25%
	September 30, 2007	 	0.25%
	 	 	 




24







 

	December 31, 2007	 	0.25%
	March 31, 2008	 	0.25%
	June 30, 2008	 	0.25%
	September 30, 2008	 	0.25%
	December 31, 2008	 	0.25%
	March 31, 2009	 	0.25%
	June 30, 2009	 	0.25%
	September 30, 2009	 	0.25%
	December 31, 2009	 	0.25%
	March 31, 2010	 	0.25%
	June 30, 2010	 	0.25%
	September 30,2010	 	0.25%
	December 31, 2010	 	0.25%
	March 31, 2011	 	0.25%
	June 30, 2011	 	0.25%
	September 30, 2011	 	0.25%
	December 31, 2011	 	0.25%
	March 31, 2012	 	0.25%
	June 30, 2012	 	23.50%
	September 30, 2012	 	23.50%
	December 31, 2012	 	23.50%
	March 8, 2013	 	23.50%






        (b)   The
Tranche C Term Loan of each Lender shall mature in 28 consecutive quarterly installments, each of which shall be in an amount equal to such Lender's
Tranche C Term Percentage multiplied by the percentage set forth below opposite such installment of the aggregate principal amount of Tranche C Term Loans made on the Tranche C
Funding Date: 



	Installment
 
	 	Percentage

	June 30, 2006	 	0.25%
	September 30, 2006	 	0.25%
	December 31, 2006	 	0.25%
	March 31, 2007	 	0.25%
	June 30, 2007	 	0.25%
	September 30, 2007	 	0.25%
	December 31, 2007	 	0.25%
	March 31, 2008	 	0.25%
	June 30, 2008	 	0.25%
	September 30, 2008	 	0.25%
	December 31, 2008	 	0.25%
	March 31, 2009	 	0.25%
	June 30, 2009	 	0.25%
	September 30, 2009	 	0.25%
	December 31, 2009	 	0.25%
	March 31, 2010	 	0.25%
	June 30, 2010	 	0.25%
	September 30,2010	 	0.25%
	December 31, 2010	 	0.25%
	March 31, 2011	 	0.25%
	June 30, 2011	 	0.25%
	 	 	 






25







 


	September 30, 2011	 	0.25%
	December 31, 2011	 	0.25%
	March 31, 2012	 	0.25%
	June 30, 2012	 	23.50%
	September 30, 2012	 	23.50%
	December 31, 2012	 	23.50%
	March 8, 2013	 	23.50%






;
provided, however, that notwithstanding the foregoing, if the Tranche C Funding Date occurs
after June 30, 2006, then the Tranche C Term Loans shall mature in 27 consecutive quarterly installments, commencing on September 30, 2006, as set forth above,  provided that the
final four installments shall be increased to 23.5625% of the aggregate principal amount of Tranche C Term Loans made on the
Tranche C Funding Date. 


        2.4.    Revolving Commitments.    (a)    Subject to the
terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans ("Revolving Loans") to the Borrower in Dollars from
time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender's Revolving Percentage of the sum of (i) the
L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swingline Loans then outstanding, does not exceed the amount of such Lender's Revolving Commitment. During the
Revolving Commitment Period, the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with
Sections 2.5(a) and 2.12. 


        (b)   The
Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date. 


        2.4A.    Canadian Revolving Commitments; Additional Revolving
Loans.    (a)    Subject to the terms and conditions hereof, each Canadian Revolving Lender severally agrees to make (i) revolving credit loans
("Canadian Revolving Loans") to the Canadian Borrower in Canadian Dollars and (ii) revolving credit loans ("Additional
Revolving Loans") to the Borrower in Dollars from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding
(USD Equivalent) which does not exceed the amount of such Lender's Canadian Revolving Commitment. During the Revolving Commitment Period, the Canadian Borrower and the Borrower may use the
Canadian Revolving Commitments by borrowing, prepaying the Canadian Revolving Loans and the Additional Revolving Loans, as the case may be, in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. The Canadian Revolving Loans may from time to time be Canadian Prime Rate or Canadian Cost of Funds Loans, as determined by the Canadian Borrower and notified to the
Administrative Agent in accordance with Sections 2.5(b) and 2.12. The Additional Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.5(c) and 2.12. 


        (b)   The
Canadian Borrower shall repay all outstanding Canadian Revolving Loans on the Revolving Termination Date. 


        (c)   The
Borrower shall repay all outstanding Additional Revolving Loans on the Revolving Termination Date. 


        2.5.    Procedure for Revolving Loan Borrowing; Currency Fluctuation
Matters.    (a)    The Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day,  provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to
11:00 A.M., New York City time, (i) three 


26







 



Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing Date, in the case of ABR Loans)
(provided that any such notice of a borrowing of ABR Loans under the Revolving Facility to finance payments required by Section 3.5 may be given
not later than 10:00 A.M., New York City time, on the date of the proposed borrowing), specifying (A) the amount and Type of Revolving Loans to be borrowed, (B) the
requested Borrowing Date and (C) in the case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Any
Revolving Loans made on the Closing Date shall initially be ABR Loans and, unless otherwise agreed by the Administrative Agent in its sole discretion, no Revolving Loan may be made as, converted into
or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the date that is 30 days after the Closing Date. Each borrowing under the Revolving Commitments shall
be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate Available Revolving Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate Available Revolving Commitments
are less than $1,000,000, such lesser amount); provided, that the Swingline Lender may request, on behalf of the Borrower, borrowings under the
Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.7. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each
Revolving Lender thereof. Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent. 


        (b)   The
Canadian Borrower may borrow under the Canadian Revolving Commitments during the Revolving Commitment Period on any Canadian Business Day,  provided that the Canadian Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M., New York City time, three Canadian Business Days prior to the requested Borrowing Date) specifying (A) the amount in Canadian Dollars and Type of Canadian
Revolving Loans to be borrowed, (B) the requested Borrowing Date and (C) in the case of Canadian Cost of Funds Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Any Canadian Revolving Loans made on the Closing Date shall initially be Canadian Prime Rate Loans and, unless otherwise agreed by the Administrative
Agent in its sole discretion, no Canadian Revolving Loan may be made as, converted into or continued as a
Canadian Cost of Funds Loan having an Interest Period in excess of 30 days prior to the date that is 30 days after the Closing Date. Each borrowing of Canadian Revolving Loans under the
Canadian Revolving Commitments shall be in an amount equal to (x) in the case of Canadian Prime Rate Loans, C$250,000 or a whole multiple of C$100,000 in excess thereof (or, if the then
aggregate Available Canadian Revolving Commitments are less than C$250,000, such lesser amount) and (y) in the case of Canadian Cost of Funds Loans, C$250,000 or a whole multiple of C$100,000
in excess thereof (or, if the then aggregate Available Canadian Revolving Commitments are less than C$250,000, such lesser amount). Upon receipt of any such notice from the Canadian Borrower, the
Administrative Agent shall promptly notify each Canadian Revolving Lender thereof. Each Canadian Revolving Lender will make the amount of its  pro rata share of each borrowing available to the
Administrative Agent for the account of the Canadian Borrower at the Funding Office prior to
12:00 Noon, New York City time, on the Borrowing Date requested by the Canadian Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made
available to the Canadian Borrower by the Administrative Agent crediting the account of the Canadian Borrower on the books of such office with 


27







 



the
aggregate of the amounts made available to the Administrative Agent by the Canadian Revolving Lenders and in like funds as received by the Administrative Agent. 


        (c)   The
Borrower may borrow under the Canadian Revolving Commitments during the Revolving Commitment Period on any Business Day,  provided that the Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to
11:00 A.M., New York City time, (i) three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (ii) one Business Day prior to the
requested Borrowing Date, in the case of ABR Loans), specifying (A) the amount and Type of Additional Revolving Loans to be borrowed, (B) the requested Borrowing Date and (C) in
the case of Eurodollar Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Any Additional Revolving Loans made on the Closing
Date shall initially be ABR Loans and, unless otherwise agreed by the Administrative Agent in its sole discretion, no Additional Revolving Loan may be made as, converted into or continued as a
Eurodollar Loan having an Interest Period in excess of one month prior to the date that is 30 days after the Closing Date. Each borrowing of Additional Revolving Loans under the Canadian
Revolving Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate Available Canadian
Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then
aggregate Available Canadian Revolving Commitments are less than $1,000,000, such lesser amount). Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each
Canadian Revolving Lender thereof. The U.S. Affiliate of each Canadian Revolving Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available to the Administrative Agent by the U.S. Affiliate of the Canadian Revolving Lenders and in like funds as received by the
Administrative Agent. 


        (d)   With
respect to each borrowing of Canadian Revolving Loans, not later than 11:00 a.m., New York City time, on the second Canadian Business Day preceding
the Borrowing Date with respect to such Canadian Revolving Loan, the Administrative Agent shall determine the Exchange Rate as of such date and give notice thereof to the Canadian Borrower and the
Canadian Revolving Lenders. The Exchange Rate so determined shall become effective on such Borrowing Date for the purposes of determining the availability under the Canadian Revolving Commitments
(it being understood that such availability shall be calculated and determined by applying such Exchange Rate to the aggregate principal amount of Canadian Revolving Loans which are outstanding
on such Borrowing Date). 


        (e)   With
respect to each borrowing of Additional Revolving Loans at a time when Canadian Revolving Loans are outstanding, not later than 11:00 a.m., New York
City time, on the second Business Day preceding the Borrowing Date (or, in the case of an ABR Loan, promptly on the Borrowing Date) with respect to such Additional Revolving Loan, the Administrative
Agent shall determine the Exchange Rate as of such date and give notice thereof to the Borrower and the Canadian Revolving Lenders. The Exchange Rate so determined shall become effective on such
Borrowing Date for the purposes of determining the availability under the Canadian Revolving Commitments (it being understood that such availability shall be calculated and determined by
applying such Exchange Rate to the aggregate principal amount of Canadian Revolving Loans which are outstanding on such Borrowing Date). 


        (f)    Not
later than 2:00 p.m., New York City time, on each Calculation Date (so long as any Canadian Revolving Loans are outstanding), the Administrative
Agent shall determine the Exchange Rate as of such Calculation Date and give notice thereof to the Borrower, the Canadian Borrower and 


28







 



the
Canadian Revolving Lenders. The Exchange Rate so determined shall become effective on the next succeeding Reset Date. If, on any Reset Date, the Total Canadian Revolving Extensions of Credit
exceed an amount equal to 105% of the Total Canadian Revolving Commitments, then the Canadian Borrower and/or the Borrower, as the case may be, shall, within three Canadian Business Days
(or Business Days, as applicable) after notice thereof from the Administrative Agent, or so long as no Default or Event of Default has occurred and is continuing, with respect to any Canadian
Cost of Funds Loans or Eurodollar Loans to be prepaid, on the next applicable Interest Payment Date, prepay Canadian Revolving Loans and/or Additional Revolving Loans in an amount such that, after
giving effect thereto, the Total Canadian Revolving Extensions of Credit do not exceed the Total Canadian Revolving Commitments (such calculation to be made using the Exchange Rate that is effective
on such Reset Date); provided that any such prepayment shall be accompanied by accrued interest on the amount prepaid (except in the case of Canadian
Revolving Loans that are Canadian Prime Rate Loans or Additional Revolving Loans that are ABR Loans) but shall be without premium or penalty of any kind (other than any payments required under
Section 2.20). 


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


        (b)   The
Borrower shall repay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Termination Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made;  provided that on each date that a
Revolving Loan is borrowed, the Borrower shall repay all Swingline Loans then outstanding. 



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


        (b)   The
Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), on one Business Day's notice given by the Swingline Lender no later than 12:00 Noon, New York City time, request each Revolving Lender to make,
and each Revolving Lender hereby 


29







 



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


        (c)   If
prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.7(b), one of the events described in Section 8.1(f) shall have
occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by
Section 2.7(b), each Revolving Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.7(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the "Swingline Participation
Amount") equal to (i) such Revolving Lender's Revolving Percentage times (ii) the sum of the aggregate principal
amount of Swingline Loans then outstanding that were to have been repaid with such Revolving Loans. 


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


        (e)   Each
Revolving Lender's obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to
Section 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such
Revolving Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event
of Default or the failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in the condition (financial or otherwise) of the Borrower,
(iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Lender or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. 


        2.8.    Commitment Fees, etc.    (a)    The Borrower agrees
to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee for the period from and including the date hereof to the last day of the Revolving Commitment Period,
computed at the Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on each
Fee Payment Date, commencing on the first such date to occur after the date hereof. 


30







 



        (b)   The
Canadian Borrower and the Borrower, jointly and severally, agree to pay to the Administrative Agent for the account of each Canadian Revolving Lender a commitment
fee for the period from and including the date hereof to the last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount of the Available Canadian
Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the
date hereof. 


        (c)   The
Borrower agrees to pay to the Administrative Agent for the account of each Tranche C Term Lender a commitment fee for the period from and including the date
hereof to the last day of the Tranche C Availability Period, computed at the Commitment Fee Rate on the average daily unused amount of the Tranche C Term Commitment of such Lender during
the period for which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the date hereof. 


        (d)   The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to
perform any other obligations contained therein. 


        2.9.    Termination or Reduction of Revolving
Commitments.    (a)    The Borrower shall have the right, upon not less than three Business Days' notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments (without any reduction of the Canadian Revolving Commitments);  provided that no such termination or
reduction of Revolving Commitments shall be permitted if, after giving effect thereto and to any prepayments of the
Revolving Loans and Swingline Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple of $500,000 in excess thereof, and shall reduce permanently the Revolving Commitments then in effect. 


        (b)   The
Borrower shall have the right, upon not less than three Business Days' notice to the Administrative Agent, to terminate the Tranche C Term Commitments or,
from time to time, to reduce the amount of the Tranche C Term Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple of $500,000 in excess thereof, and
shall reduce permanently the Tranche C Term Commitments then in effect. 


        (c)   The
Canadian Borrower and the Borrower shall have the right, upon not less than three Canadian Business Days' (or Business Days', as applicable) notice to the
Administrative Agent, to terminate the Canadian Revolving Commitments or, from time to time, to reduce the amount of the Canadian Revolving Commitments (without any reduction of the Revolving
Commitments); provided that no such termination or reduction of Canadian Revolving Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Canadian Revolving Loans and the Additional Revolving Loans made on the effective date thereof, the Total Canadian Revolving Extensions of Credit would exceed the Total Canadian
Revolving Commitments. Any such reduction shall be in an amount equal to $500,000, or a whole multiple of $100,000 in excess thereof, and shall reduce permanently the Canadian
Revolving Commitments then in effect. 


        2.10.    Optional Prepayments.    (a)    The Borrower may at
any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 11:00 A.M.,
New York City time, three Business Days prior thereto, in the case of Eurodollar Loans, and no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the
case of ABR Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans;  provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 2.20. Upon receipt of any such notice the 


31







 



Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans or Additional Revolving Loans that are ABR Loans and Swingline Loans) accrued interest to such date on the amount prepaid. Partial prepayments of
Term Loans, Revolving Loans and Additional Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Partial prepayments of Swingline
Loans shall be in an aggregate principal amount of $100,000 or a whole multiple thereof. 



        (b)   The
Canadian Borrower may at any time and from time to time prepay the Canadian Revolving Loans, in whole or in part, without premium or penalty, upon irrevocable notice
delivered to the Administrative Agent no later than 11:00 A.M., New York City time, three Canadian Business Days prior thereto, in the case of Canadian Cost of Funds Loans, and no later
than 11:00 A.M., New York City time, one Canadian Business Day prior thereto, in the case of Canadian Prime Rate Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Canadian Cost of Funds Loans or Canadian Prime Rate Loans; provided, that if a Canadian Cost of Funds Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the Canadian Borrower shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of any such notice the
Administrative Agent shall promptly notify the Canadian Revolving Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Canadian Revolving Loans that are Canadian Prime Rate Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Canadian
Revolving Loans shall be in an aggregate principal amount of C$500,000 or a whole multiple of C$100,000 in excess thereof. 


        2.11.    Mandatory Prepayments.    (a)    If any
Indebtedness shall be issued or incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2, other than paragraph (g) thereof), an amount equal to
100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.11(d). 


        (b)   If
on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect
thereof, such Net
Cash Proceeds shall be applied within three (3) Business Days of such date toward the prepayment of the Term Loans as set forth in Section 2.11(d);  provided, that, notwithstanding the
foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from
the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any Fiscal Year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(d). 


        (c)   If,
for any Fiscal Year of the Borrower commencing with the Fiscal Year ending February 4, 2007 there shall be Excess Cash Flow, the Borrower shall, on the
relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 2.11(d). Each such prepayment shall
be made on a date (an "Excess Cash Flow Application Date") no later than five days after the earlier of (i) the date on which the
financial statements of the Borrower referred to in Section 6.1(a), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered. 


        (d)   Amounts
to be applied in connection with prepayments made pursuant to Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with
Section 2.17(b). The application of any prepayment pursuant to Section 2.11 shall be made, first, to ABR Loans and,  second, to Eurodollar Loans.
Each prepayment of the Loans under Section 2.11 shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid. 


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        (e)   Notwithstanding
the foregoing, if, prior to the Tranche C Funding Date, all Tranche B Term Loans shall have been prepaid, then the amount of any mandatory
prepayment pursuant to this Section 2.11 that would have otherwise been applied to prepay the Tranche B Term Loans shall instead be applied to reduce permanently the Tranche C
Term Commitments. 


        2.12.    Conversion and Continuation Options.    (a)    The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the Business Day preceding the proposed conversion date, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior irrevocable
notice of such election no later than 11:00 A.M., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan under a particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. 


        (b)   Any
Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to
the Administrative Agent, in accordance with the applicable provisions of the term "Interest Period" set forth in Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations, and  provided, further, that if the Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. 


        (c)   The
Canadian Borrower may elect from time to time to convert Canadian Cost of Funds Loans to Canadian Prime Rate Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Canadian Business Day preceding the proposed conversion date,  provided that any such conversion of
Canadian Cost of Funds Loans may only be made on the last day of an Interest Period with respect thereto. The
Canadian Borrower may elect from time to time to convert Canadian Prime Rate Loans to Canadian Cost of Funds Loans by giving the Administrative Agent prior irrevocable notice of such election no later
than 11:00 A.M., New York City time, on the third Canadian Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period
therefor), provided that no Canadian Prime Rate Loan may be converted into a Canadian Cost of Funds Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Facility Lenders in respect of the Canadian Revolving Facility have determined in its or their sole discretion not to permit such conversions.
Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. 



        (d)   Any
Canadian Cost of Funds Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Canadian Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term "Interest Period" set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loans, provided that no Canadian Cost of Funds Loan may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority Facility Lenders in 


33







 



respect
of the Canadian Revolving Facility have determined in its or their sole discretion not to permit such continuations, and provided,  further, that if the
Canadian Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be automatically converted to Canadian Prime Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender thereof. 



        2.13.    Limitations on Eurodollar Tranches and CCOF
Tranches.    Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar Loans or Canadian Cost of Funds Loans and all selections of Interest Periods shall be in such amounts and be made pursuant
to such elections so that, (a) after giving effect thereto, the aggregate principal amount of (i) the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $1,000,000 or
a whole multiple of $500,000 in excess thereof and (ii) the Canadian Cost of Funds Loans comprising each CCOF Tranche shall be equal to C$500,000 or a whole multiple of C$100,000 in excess
thereof and (b) no more than ten Eurodollar Tranches and five CCOF Tranches shall be outstanding at any one time. 


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


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



        (c)   Each
Canadian Revolving Loan that is a Canadian Prime Rate Loan shall bear interest at a rate per annum equal to the Canadian Prime Rate plus the
Applicable Margin. 


        (d)   Each
Canadian Revolving Loan that is a Canadian Cost of Funds Loan shall bear interest at a rate per annum equal to the Canadian Cost of Funds Rate plus the
Applicable Margin. 


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


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


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


34







 



becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. 


        (b)   Each
determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the
Canadian Borrower, as the case may be, and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.14(a) or Section 2.14(d). 


        (c)   Wherever
interest is calculated on the basis of a period which is less than the actual number of days in a calendar year, each rate of interest determined pursuant to
such calculation, for the purposes of the Interest Act (Canada) is equivalent to such rate multiplied by the actual number of days in the calendar year in which such rate is to be ascertained and
divided by the number of days used as the basis of that calculation. 



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


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


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


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


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


        (b)   Each
payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made  pro rata according to the respective outstanding principal amounts of the
Term Loans then held by the Term Lenders. The amount of each principal
prepayment of the Term Loans made pursuant to Section 2.10(a) shall be applied to reduce the then remaining 


35







 



installments
of the Tranche B Term Loans and Tranche C Term Loans, as the case may be, as directed by the Borrower. The amount of each principal prepayment of the Term Loans made
pursuant to Section 2.11 shall be applied, first, to reduce the scheduled installments of the Tranche B Term Loans and Tranche C
Term Loans, as the case may be, occurring within the next 12 months in the direct order of maturity and, second, to reduce the then remaining
installments of the Tranche B Term Loans and Tranche C Term Loans, as the case may be, pro rata based upon the respective then
remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. 


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



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



        (e)   Unless
the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower or the Canadian Borrower, as the case may be, a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the
greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period
until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this
paragraph shall be conclusive in the absence of manifest error. If such Lender's share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans or Canadian Prime Rate Loans, as
the case may be, under the relevant Facility, on demand, from the Borrower or the Canadian Borrower, as the case may be. 



        (f)    Unless
the Administrative Agent shall have been notified in writing by the Borrower or the Canadian Borrower prior to the date of any payment due to be made by the
Borrower or the Canadian 


36







 



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


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



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


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




and
the result of any of the foregoing is to increase the cost to such Lender, by an amount that such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or Canadian Cost of Funds Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower or the
Canadian Borrower, as the case may be, shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.
If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower or the Canadian Borrower, as the case may be, (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled. 


        (b)   If
any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence of its obligations hereunder or under
or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower or
the Canadian Borrower, as the case may be, (with a copy to the Administrative Agent) of a written request therefor, the Borrower or the Canadian Borrower, as the case may be, shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such reduction. 


        (c)   A
certificate as to any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower or the Canadian Borrower, as the case may be, (with a
copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower or the Canadian Borrower, as the case may be, shall not be required
to compensate a Lender pursuant to this Section for any amounts incurred more than nine 


37







 



months
prior to the date that such Lender notifies the Borrower or the Canadian Borrower, as the case may be, of such Lender's intention to claim compensation therefor;  provided that, if the circumstances
giving rise to such claim have a retroactive effect, then such nine-month period shall be extended to
include the period of such retroactive effect. The obligations of the Borrower or the Canadian Borrower, as the case may be, pursuant to this Section shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder. 


        2.19.    Taxes.    (a)    Each payment made by either the
Borrower or the Canadian Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding income, branch profit and
franchise taxes imposed on (or measured by) the net income or net profits of the Administrative Agent or any Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document)
("Excluded Taxes"). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement,  provided, however, that the Borrower and the Canadian Borrower shall not be required to increase any
such amounts payable to the Administrative Agent or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to the Administrative Agent's or such Lender's
failure to comply with the requirements of paragraph (d), (e) or (i), where applicable, of this Section, (ii) that are United States withholding taxes imposed on
amounts payable to the Administrative Agent or such Lender at the time the Administrative Agent or such Lender becomes a party to this Agreement except to the extent that such Lender's assignor
(if any) was entitled, at the time of assignment, to receive additional amounts from the Borrower or the Canadian Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph or (iii) that are United States withholding taxes imposed on amounts payable to the Administrative Agent or such Lender after the Administrative Agent or such Lender changes
its lending office or other jurisdiction in which it receives payments from the Borrower or the Canadian Borrower (other than in accordance with Section 2.21) except to the extent that the
Administrative Agent or such Lender was entitled, prior to the change in lending office, to receive additional amounts from the Borrower or the Canadian Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph. 


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


        (c)   Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower or the Canadian Borrower, as promptly as possible thereafter the Borrower or the
Canadian Borrower shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a copy (or, if reasonably available, a certified copy) of an
original official receipt received by the Borrower or the Canadian Borrower showing payment thereof. If the Borrower or the Canadian Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower or the Canadian Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any
such failure. 


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        (d)   Each
Lender and Administrative Agent that is not a "U.S. Person" as defined in Section 7701(a)(30) of the Code
(a "Non-U.S. Person") shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased with copies to Borrower) two true, accurate and complete copies of either U.S. Internal Revenue Service
Form W-8BEN, W-8IMY, W-8EXP, W-8ECI or any subsequent versions thereof or successors thereto or, in the case of a
Non-U.S. Person claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement substantially in the form of Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Person claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Person on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In addition, each Non-U.S. Person shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Person. Each Non-U.S. Person shall promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Person shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Person is not legally
able to deliver. 


        (e)   A
Lender or Administrative Agent that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in
which the Borrower or the Canadian Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower or the Canadian
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Canadian Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such
Lender or Administrative Agent is legally entitled to complete, execute and deliver such documentation and in such Lender's or Administrative Agent's judgment such
completion, execution or submission would not materially prejudice the legal position of such Lender or Administrative Agent. 


        (f)    If
the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to
which it has been indemnified by the Borrower or the Canadian Borrower or with respect to which the Borrower or the Canadian Borrower has paid additional amounts pursuant to this Section 2.19,
it shall pay over such refund to the Borrower or the Canadian Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or the Canadian Borrower
under this Section 2.19 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of
the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund);  provided, that the Borrower and the
Canadian Borrower, upon the request of the Administrative Agent or such Lender, agree to repay the amount paid over
to the Borrower or the Canadian Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower, the Canadian Borrower or any other Person. 


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


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        (h)   Each Lender, other than a Non-U.S. Person, and Administrative Agent (other than Persons that are corporations or otherwise exempt from
United States backup withholding tax), shall deliver at the time(s) and in the manner(s) prescribed by applicable law, to the Borrower, the Canadian Borrower and Administrative Agent (or, in
the case of a Participant, to the Lender from which the related participation shall have been purchased with copies to the Borrower and the Canadian Borrower), as applicable, a properly completed and
duly executed U.S. Internal Revenue Service Form W-9 or any subsequent versions thereof or successors thereto, certifying under penalty of perjury that such Person is
exempt from United States backup withholding tax on payments made hereunder. 


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



        2.21.    Change of Lending Office.    Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested by the Borrower or the Canadian Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of
such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to
suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this
Section shall affect or postpone
any of the obligations of the Borrower or the Canadian Borrower or the rights of any Lender pursuant to Section 2.18 or 2.19(a). 


        2.22.    Replacement of Lenders.    (a)    Each of the
Borrower and the Canadian Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or
(b) defaults in its obligation to make Loans hereunder, with a replacement financial institution; provided that (i) such replacement does
not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, such Lender
shall have taken no action under Section 2.21 so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing to 


40







 



such
replaced Lender on or prior to the date of replacement, (v) the Borrower or the Canadian Borrower, as the case may be, shall be liable to such replaced Lender under Section 2.20 if
any Eurodollar Loan or Canadian Cost of Funds Loan, as the case may be, owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower or the Canadian Borrower, as the case may be, shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated, the Borrower or the Canadian Borrower, as the case may be, shall pay all additional amounts (if any)
required pursuant to Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower or the Canadian
Borrower, as the case may be, the Administrative Agent or any other Lender shall have against the replaced Lender. 


        (b)   If
any Lender (such Lender, a "Non-Consenting Lender") has failed to consent to a proposed amendment or
waiver which pursuant to the terms of Section 10.1 requires the consent of all Lenders or of all Lenders directly affected thereby and with respect to which the Required Lenders shall have
granted their consent, then the Borrower or the Canadian Borrower, as the case may be, shall be permitted to replace such Non-Consenting Lender (unless such Non-Consenting
Lender grants such consent); provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default
shall have occurred and be continuing at the time of such replacement, (iii) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement, (iv) the Borrower or the Canadian Borrower, as the case may be, shall be liable to such replaced Lender under Section 2.20 if any
Eurodollar Loan or Canadian Cost of Funds Loan, as the case may be, owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the
replacement financial institution shall be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6 (provided that the Borrower or the Canadian Borrower, as the case may be, shall be obligated to pay the registration and processing fee referred to therein), and
(vii) any such replacement shall not be deemed to be a waiver of any rights that the Borrower or the Canadian Borrower, as the case may be, the Administrative Agent or any other Lender shall
have against the replaced Lender. 


SECTION 3.
LETTERS OF CREDIT 


        3.1.    L/C Commitment.    (a)    Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during the Revolving Commitment Period in such form as may be approved from
time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to
such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the Available Revolving Commitments would be less than zero. Each Letter of Credit
shall (i) be denominated in Dollars and (ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business
Days prior to the Revolving Termination Date, provided that any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above). 


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


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



        3.3.    Fees and Other Charges.    (a)    The Borrower will
pay a fee on all outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving Facility, shared ratably among the
Revolving Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In addition, the Borrower shall pay to the Issuing
Lender for its own account a fronting fee of 0.25% per annum on the undrawn and unexpired amount of each Letter of Credit, payable quarterly in arrears on each Fee Payment Date after the
issuance date. 


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


        3.4.    L/C Participations.    (a)    The Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the terms and conditions set forth below, for such L/C Participant's own account and risk an undivided interest equal to such L/C Participant's
Revolving Percentage in the Issuing Lender's obligations and rights under and in respect of each Letter of Credit and the amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing Lender's address for notices specified herein an amount equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or any part thereof, that is not so reimbursed. Each L/C Participant's obligation to pay such amount shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against the Issuing Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 5,
(iii) any adverse change in the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or
any other L/C Participant or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. 


        (b)   If
any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by the Issuing Lender under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date such 


42







 



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


        (c)   Whenever,
at any time after the Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its  pro rata share of such payment in accordance with Section 3.4(a),
the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender will
distribute to such L/C Participant its pro rata share thereof; provided,  however, that in the event
that any such payment received by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it. 


        3.5.    Reimbursement Obligation of the Borrower.    If any draft is
paid under any Letter of Credit, the Borrower shall reimburse the Issuing Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment, not later than 12:00 Noon, New York City time, on (i) the Business Day that the Borrower receives notice of such
draft, if such notice is received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day immediately following
the day that the Borrower receives such notice. Each such payment shall be made to the Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at the rate set forth in (x) until the Business Day next succeeding the
date of the relevant notice, Section 2.14(b) and (y) thereafter, Section 2.14(e). 


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


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



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


        3.9.    Existing Letters of Credit.    On the Closing Date, all
Existing Letters of Credit shall be deemed to have been issued under this Agreement and shall be outstanding hereunder and subject to all provisions contained herein and shall be deemed to be Letters
of Credit, and the Existing Letter of Credit Issuer shall be deemed to be the Issuing Lender with respect to each Existing Letter of Credit. 


SECTION 4.
REPRESENTATIONS AND WARRANTIES 


        To
induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, Holdings, the Borrower and the
Canadian Borrower hereby jointly and severally represent and warrant to the Administrative Agent and each Lender that: 


        4.1.    Financial Condition.    (a)    The unaudited  pro forma consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at October 30, 2005 (including the notes
thereto) (the "Pro Forma Balance Sheet"), copies of which have heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of the Acquisition, (ii) the Loans to be made and the Senior Notes to be issued on the Closing Date and the
use of proceeds thereof and (iii) the payment of fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet has been prepared based on the best information available
to the Borrower as of the date of delivery thereof, and presents fairly on a pro forma basis the estimated financial position of Borrower and its
consolidated Subsidiaries as at October 30, 2005, assuming that the events specified in the preceding sentence had actually occurred at such date. 



        (b)   The
audited consolidated balance sheets of the Borrower as at February 2, 2003, February 1, 2004 and January 30, 2005, and the related consolidated
statements of income and of cash flows for the Fiscal Years ended on such dates, reported on by and accompanied by an unqualified report from Ernst & Young LLP, subject to the
restatement of financial statements with respect to recognition of lease rental expenses, as described in the Borrower's Form 10-Q for the period ended October 30,
2005, present fairly the consolidated financial condition of the Borrower as at such date, and the consolidated results of its operations and its consolidated cash flows for the respective Fiscal
Years then ended. The unaudited consolidated balance sheet of the Borrower as at October 30, 2005, and the related unaudited consolidated statements of income and cash flows for the
nine-month period ended on such date, subject to the restatement of financial statements with respect to recognition of lease rental expenses, as described in the Borrower's
Form 10-Q for the period ended October 30, 2005, present fairly the consolidated financial condition of the Borrower as at such date, and the consolidated results of
its operations and its consolidated cash flows for the nine-month period then ended (subject to normal year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and
disclosed therein). No Group Member has any material Guarantee Obligations, contingent liabilities and liabilities for taxes, or any long-term leases or unusual forward or
long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph. During the period 


44







 



from
January 30, 2005 to and including the date hereof, except as disclosed on Schedule 4.1(b), there has been no Disposition by any Group Member of any material part of its business
or property. 


        4.2.    No Change.    Since January 30, 2005, there has been no
development or event that has had or could reasonably be expected to have a Material Adverse Effect. 


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


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



        4.5.    No Legal Bar.    The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law in any material
respect or any material Contractual Obligation of any Group Member and will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant
to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents). 



        4.6.    Litigation.    Except as disclosed in Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of Holdings, the Borrower or the Canadian Borrower, threatened by or
against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or
(b) that could reasonably be expected to have a Material Adverse Effect. 


        4.7.    No Default.    No Group Member is in default under or with
respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 


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        4.8.    Ownership of Property; Liens.    Each Group Member has good,
sufficient and legal title in (in the case of fee interests in real property), or a valid leasehold interest in (in the case of leasehold interests in real property), all its real
property, and good title to, or a valid leasehold interest in, all its other material personal property, and none of such property is subject to any Lien except as permitted by Section 7.3. 


        4.9.    Intellectual Property.    Each Group Member owns, or is
licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted. Except as disclosed on Schedule 4.9, no material claim has been asserted in writing
or proceeding pending by any Person challenging or questioning the use of any Intellectual Property owned or used by any Group Member or the validity or effectiveness of any Intellectual Property
owned or used by any Group Member, nor does Holdings, the Borrower or the Canadian Borrower know of any valid basis for any such claim. To the knowledge of Holdings, the Borrower and the Canadian
Borrower, the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect. 


        4.10.    Taxes.    Each Group Member has filed or caused to be filed
all Federal, state, provincial and other material tax returns that are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or
any of its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Group Member); to the best knowledge
of Holdings, the Borrower and the Canadian Borrower, no tax Lien has been filed, and, to the best knowledge of Holdings, the Borrower and the Canadian Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge. 


        4.11.    Federal Regulations.    No part of the proceeds of any Loans,
and no other extensions of credit hereunder, will be used for any purpose that violates the provisions of the Regulations of the Board. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR
Form U-1, as applicable, referred to in Regulation U. 


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


        4.13.    ERISA.    Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets
of such Plan allocable to such accrued benefits by a material amount. Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability under ERISA, and neither the Borrower nor any Commonly Controlled Entity would become subject 


46







 



to
any material liability under ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent. 



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


        4.15.    Subsidiaries.    Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a) Schedule 4.15 sets forth the name and jurisdiction of incorporation or formation of each Subsidiary,
including without limitation the Canadian Borrower, and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors' qualifying shares) of any nature relating
to any Capital Stock of the Borrower or any Subsidiary, except as created by the Loan Documents or under such Subsidiaries' existing constituent documents. 



        4.16.    Use of Proceeds.    The proceeds of the Tranche B Term
Loans shall be used to finance a portion of the Acquisition and to pay related fees and expenses ("Acquisition Consideration"). The proceeds of the
Tranche C Term Loans shall be used to pay Acquisition Consideration; provided, that to the extent any portion of the Tranche C Terms Loans
are not promptly applied for such purpose, such portion of the proceeds thereof shall be placed into escrow on terms and conditions reasonably satisfactory to the Administrative Agent,  provided further,
that, to the extent (and only to the extent) the Borrower shall have previously paid a portion of the Acquisition Consideration
through other sources, then the Borrower may use such portion of the proceeds for general corporate purposes. The proceeds of the Revolving Loans, the Canadian Revolving Loans, the Additional
Revolving Loans, the Swingline Loans and the Letters of Credit shall be used for general corporate purposes. 


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


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


        (b)   no
Group Member has received or is aware of any notice of violation, alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any of the Properties or the business operated by any Group Member
(the "Business"), nor does Holdings, the Borrower or the Canadian Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened; 


        (c)   Materials
of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location that could give rise to
liability under, any Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental Law; 


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


47







 



administrative
orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business; 


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


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


        (g)   no
Group Member has assumed any liability of any other Person under Environmental Laws. 



        4.18.    Accuracy of Information, etc.    No statement or information
contained in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or statement furnished by or on behalf of any Loan Party to the
Administrative Agent or the Lenders, or any of them (as modified or supplemented by other information so furnished), for use in connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such statement, information, document or certificate was so furnished (or, in the case of the Confidential Information Memorandum, as of the date
of this Agreement), any untrue statement of a material fact or omitted (when taken as a whole) to state a material fact (known to Holdings, the Borrower or the Canadian Borrower, in the case of any
document not furnished by any of them) necessary to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. The projections and  pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount. As of the date hereof, the
representations and warranties contained in the Acquisition Documentation are true and correct in all material respects. There is no fact known to any Loan Party (other than matters of a general
economic nature) that could reasonably be expected to have a Material Adverse Effect that has not been expressly disclosed herein, in the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other
Loan Documents. 


        4.19.    Security Documents.    (a)    The Guarantee and
Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein
and proceeds thereof. In the case of the Pledged Stock defined in and described in the Guarantee and Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement, when financing statements and other filings specified on Schedule 4.19(a) in
appropriate form are filed in the offices specified on Schedule 4.19(a), the Guarantee and Collateral Agreement shall constitute a fully perfected (with respect to Intellectual Property, to the
extent such perfection and priority may be achieved by filings made in the U.S. Patent and Trademark Office and the U.S. Copyright Office) Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior
and superior in right to any other Person (except, in the case of Collateral other than Pledged Stock, Liens permitted by Section 7.3); provided,  however, that (i) the recordation of any trademark 


48







 



security
agreement in the U.S. Patent and Trademark Office shall occur within three (3) months of the date of the Guarantee and Collateral Agreement; (ii) the recordation of any
copyright security agreement shall occur within one (1) month of the date of the Guarantee and Collateral Agreement; (iii) subsequent recordations may be necessary to perfect the
security interest in issued registrations and applications for Intellectual Property acquired after the date of the Guarantee and Collateral Agreement; and (iv) certain actions may be required
in order to perfect the Lien in Intellectual Property included in the Collateral which is protected under non-U.S. law. 


        (b)   Each
of the Mortgages is effective to create in favor of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable Lien on the Mortgaged
Properties described therein and proceeds thereof, and when the Mortgages are filed in the offices specified on Schedule 4.19(b), each such Mortgage shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the Obligations (as defined in the relevant
Mortgage), in each case prior and superior in right to any other Person. Schedule 1.1B lists, as of the Closing Date, each parcel of owned real property and each leasehold interest in real
property located in the United States and held by the Borrower or any of its Subsidiaries that has a value, in the reasonable opinion of the Borrower, in excess of $500,000. 


        4.20.    Solvency.    Each Loan Party is, and after giving effect to
the Acquisition and the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith will be, Solvent. 


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


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


        4.23.    Franchise Agreements.    The Borrower has delivered to the
Administrative Agent true and complete copies of any franchise agreements to which the Borrower or any of its Subsidiaries is a party. 


SECTION 5.
CONDITIONS PRECEDENT 


        5.1.    Conditions to Initial Extension of Credit.    The agreement of
each Lender to make the initial extension of credit requested to be made by it is subject to the satisfaction, prior to or concurrently with the making of such extension of credit on the Closing Date,
of the following conditions precedent: 


        (a)   Credit Agreement; Guarantee and Collateral Agreement.    The Administrative Agent shall have received
(i) this Agreement or, in the case of the Lenders, an Addendum, executed and delivered by the Administrative Agent, Holdings, the Borrower, the Canadian Borrower and each Person listed on
Schedules 1.1A and 1.1D, (ii) the Guarantee and Collateral Agreement, executed and delivered by Holdings, the Borrower and each Subsidiary Guarantor and (iii) an
Acknowledgement and Consent in the form attached to the Guarantee and Collateral Agreement, executed and delivered by each Issuer (as defined therein), if any, that is not a Loan Party. 



        (b)   Acquisition, etc.    The following transactions shall have been consummated, in each case on terms and
conditions reasonably satisfactory to the Lenders: 



        (i)    Holdings
shall have acquired all of the Capital Stock of the Borrower by operation of the Merger on terms substantially in accordance with the Acquisition Agreement and
in accordance with applicable law (the "Acquisition") (it being understood that no provision of the Acquisition 



49







 

Documentation
shall have been waived, amended, supplemented or otherwise modified in any respect materially adverse to the Borrower or the Lenders); 


        (ii)   Holdings
shall have received at least $108,000,000 from the proceeds of equity issued by Holdings to the Sponsor, and such proceeds shall have been contributed to
the Borrower; 


        (iii)  the
Borrower shall have received at least $175,000,000 in gross cash proceeds from the issuance of the Senior Notes; and 



        (iv)  (i)
The Administrative Agent shall have received satisfactory evidence that the Borrower's Second Amended and Restated Revolving Credit and Term Loan Agreement, dated
as of November 1, 2004 (the "Existing Credit Agreement"), shall have been terminated and all amounts thereunder shall have been paid in
full and (ii) satisfactory arrangements shall have been made for the termination of all Liens granted in connection therewith. 




        (c)   Existing Notes.    The Borrower (i) shall have delivered to the trustee under the Existing
Notes a notice of redemption to effect the redemption in full of all outstanding Existing Notes and (ii) shall have deposited into escrow an amount equal to the amount that the holders
of the Existing Notes are entitled to receive upon conversion of the Existing Notes, in each case on terms reasonably satisfactory to the Administrative Agent. 


        (d)   Pro Forma Balance Sheet; Financial Statements.    The Lenders shall have received (i) the
Pro Forma Balance Sheet, (ii) audited consolidated financial statements of the Borrower for the 2002, 2003 and 2004 Fiscal Years, (iii) unaudited interim consolidated financial
statements of the Borrower for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (ii) of this paragraph and unaudited
consolidated financial statements for the same period of the prior Fiscal Year, (iv) monthly financial data generated by the Borrower's internal accounting systems for use by senior management
for each monthly accounting period ended after the latest fiscal quarter referred to in clause (iii) above and (v) all other financial statements for completed or pending acquisitions
that may be required under Regulation S-X, and such financial statements shall not, in the reasonable judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the Borrower, as reflected in the financial statements or projections contained in the Confidential Information Memorandum. 


        (e)   Approvals.    All governmental and third party approvals necessary in connection with the Acquisition, the
continuing operations of the Group Members and the transactions contemplated hereby shall have been obtained and be in full force and effect, and there shall not exist any action, investigation,
litigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a material adverse effect on the financing of
the Acquisition or any of the other transactions contemplated hereby. 


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


        (g)   Fees.    The Lenders and the Administrative Agent shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such amounts will be paid with proceeds of Loans made
on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Administrative Agent on or before the Closing Date. 



        (h)   Closing Certificate; Certified Certificate of Incorporation; Good Standing Certificates.    The Administrative
Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, 


50







 



substantially
in the form of Exhibit C, with appropriate insertions and attachments, including the certificate of incorporation of each Loan Party that is a corporation certified by the
relevant authority of the jurisdiction of organization of such Loan Party, and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of organization (other than,
in each case, with respect to Dave & Buster's of Pennsylvania, Inc. and Dave & Buster's of Pittsburgh, Inc., which documentation shall be delivered as soon as possible
following the Closing Date). 


        (i)    Legal Opinions.    The Administrative Agent shall have received the following executed legal opinions: 



        (i)    the
legal opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Borrower, the Canadian Borrower and their Subsidiaries, substantially in the
form of Exhibit F; and 


        (ii)   the
legal opinion of local counsel in each of New York, Delaware, Missouri, California, Texas, Illinois, Ohio, Florida, and Canada. 




Each
such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require. 


        (j)    Pledged Stock; Stock Powers; Pledged Notes.    The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, together with an undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof. 


        (k)   Filings, Registrations and Recordings.    The Administrative Agent shall have received each document (including
any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), and each document shall be in proper form for filing, registration or recordation. 


        (l)    Mortgages, etc.    (i) The Administrative Agent shall have received a Mortgage with respect to each Mortgaged
Property, executed and delivered by a duly authorized officer of each party thereto. 



        (ii)   If
requested by the Administrative Agent, the Administrative Agent shall have received, and the title insurance company issuing the policy referred to in
clause (iii) below (the "Title Insurance Company") shall have received, maps or plats of an as-built survey of the sites of
the Mortgaged Properties certified to the Administrative Agent and the Title Insurance Company in a manner satisfactory to them, dated a date satisfactory to the Administrative Agent and the Title
Insurance Company by an independent professional licensed land surveyor satisfactory to the Administrative Agent and the Title Insurance Company
(the "Surveys"); provided, however, that the
obligation to deliver the Surveys shall not be a condition to the initial extension of credit on the Closing Date, so long as the Borrower delivers the Surveys within 75 days after the Closing
Date (or such later date as the Administrative Agent may agree). 


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



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        (iv)  If
requested by the Administrative Agent, the Administrative Agent shall have received (A) a policy of flood insurance that (1) covers any parcel of
improved real property that is encumbered by any Mortgage (2) is written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage that is
reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is
less, and (3) has a term ending not later than the maturity of the Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has received the notice required pursuant
to Section 208(e)(3) of Regulation H of the Board. 



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




        (m)  Solvency Certificate.    The Administrative Agent shall have received a solvency certificate from the chief
financial officer of the Borrower. 


        (n)   Insurance.    The Administrative Agent shall have received insurance certificates satisfying the requirements
of Section 5.2(b) of the Guarantee and Collateral Agreement. 


        (o)   Pro Forma Leverage Ratio.    The Pro Forma Leverage Ratio shall not exceed 5.70 to 1.0, and the
Borrower shall have provided reasonably satisfactory support for such calculation, provided that the Sponsors shall have the ability to cure any
shortfall with equity contributions in the same manner as provided for in Section 8.2 with respect to the Financial Condition Covenants. 



        (p)   Ratings.    The Facilities shall have received a rating from both Moody's and S&P. 


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


        (a)   Representations and Warranties.    Each of the representations and warranties made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (it being understood that, notwithstanding the
foregoing, only the making of the representations and warranties contained in Sections 4.1, 4.4, 4.11, 4.14 and 4.18 will be a condition on the Closing Date). 


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


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


SECTION 6.
AFFIRMATIVE COVENANTS 


        Holdings,
the Borrower and the Canadian Borrower hereby jointly and severally agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent hereunder, each of Holdings, the Borrower and the Canadian Borrower shall and shall cause each of its Subsidiaries to: 


        6.1.    Financial Statements.    Furnish to the Administrative Agent
and each Lender: 


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


52







 



year,
reported on without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; 



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


        (c)   as
soon as available, but in any event not later than 30 days after the end of each monthly fiscal accounting period occurring during each Fiscal Year of the
Borrower (other than the third, sixth, ninth and twelfth such monthly fiscal accounting period), financial statements of the Borrower and its Subsidiaries in a form reasonably acceptable to the
Administrative Agent, prepared in accordance with GAAP, certified by a Responsible Officer as fairly presenting, in all material respects, the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries as at the dates indicated (subject to normal year-end audit adjustments and the absence of footnotes). 



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


        6.2.    Certificates; Other Information.    Furnish to the
Administrative Agent and each Lender (or, in the case of clause (g), to the relevant Lender): 



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


        (b)   concurrently
with the delivery of any financial statements pursuant to Section 6.1(a) or (b), (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and
(ii) (x) a Compliance Certificate containing all information and calculations necessary for determining compliance by each Group Member with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or Fiscal Year of the Borrower, as the case may be, and (y) to the extent not previously disclosed to the Administrative Agent, a description of
any change in the jurisdiction of organization of any Loan Party and a list of any Intellectual Property acquired by any Loan Party since the date of the most recent report delivered pursuant to this
clause (y) (or, in the case of the first such report so delivered, since the Closing Date); 


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


53







 



assumptions
and that such Responsible Officer has no reason to believe that such Projections are incorrect or misleading in any material respect; 


        (d)   within
45 days after the end of each fiscal quarter of the Borrower, a narrative discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current Fiscal Year to the end of such fiscal quarter, as compared to the portion of the
Projections covering such periods and to the comparable periods of the previous year; 



        (e)   no
later than 10 Business Days prior to the effectiveness thereof, copies of substantially final drafts of any proposed amendment, supplement, waiver or other
modification with respect to the Senior Note Indenture or the Acquisition Documentation; 


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


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


        6.3.    Payment of Obligations.    Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except (i) where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or (ii) where the
amount thereof, the failure of which to make such payment, would not cause an Event of Default under Section 8.1(e). 


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


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


        6.6.    Inspection of Property; Books and Records; Discussions.    (a)
Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its
business and activities and (b) permit representatives of any Lender upon reasonable advance notice and during normal business hours to visit and inspect any of its properties and examine and
make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition
of the Group Members with officers and employees of the Group Members and with their independent certified public accountants; provided that in the case
of any discussion or meeting with the independent public accountants, only if the Borrower has been given the opportunity to participate in such discussion or meeting. 


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        6.7.    Notices.    Promptly give notice to the Administrative Agent
and each Lender of: 


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


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


        (c)   any
litigation or proceeding affecting any Group Member (i) in which the amount involved is $2,500,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought or (iii) which relates to any Loan Document; 


        (d)   the
following events, as soon as possible and in any event within 30 days after the Borrower knows or has reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Plan; 


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


        (f)    any
amendment or modification of any material provision relating to compensation, term or advertising requirements under any franchise agreement. 



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


        6.8.    Environmental Laws.    (a)    Comply with, and use
commercially reasonable efforts to ensure compliance by all tenants and subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with and maintain, and use commercially
reasonable efforts to ensure that all tenants and subtenants obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 


        (b)   Conduct
and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply
with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, except to the extent that the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect. 


        6.9.    Additional Collateral, etc.    (a)    With respect
to any property acquired after the Closing Date by any Group Member (other than (w) any property described in paragraph (b), (c), (d) or (e) below, (x) any property
subject to a Lien expressly permitted by Section 7.3(g), (y) property acquired by any Excluded Foreign Subsidiary and (z) any property not meeting the minimum thresholds set forth
in the Guarantee and Collateral Agreement) as to which the Administrative Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a security interest in such property and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in such property, including the filing of Uniform Commercial Code financing 


55







 



statements
in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent. 


        (b)   With
respect to any fee interest in any real property having a value (together with improvements thereof) of at least $1,000,000 acquired after the Closing Date by any
Group Member (other than (x) any such real property subject to a Lien expressly permitted by Section 7.3(g) and (y) real property acquired by any Excluded Foreign Subsidiary),
promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) if requested by the
Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property
(or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor's certificate and (y) any consents
or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 


        (c)   With
respect to any leasehold property acquired after the Closing Date (other than any leasehold property acquired by any Excluded Foreign Subsidiary), promptly execute
and deliver (or, to the extent landlord consent to such Leasehold Mortgage is required, use its commercially reasonable best efforts to execute and deliver) a first priority Leasehold Mortgage, in
favor of the Administrative Agent, for the benefit of the Lenders, covering such leasehold property, together with such documents and, to the extent consistent with the Existing Credit Agreement,
title insurance policies and legal opinions as the Administrative Agent shall reasonably request. 


        (d)   With
respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created or acquired after the Closing Date by any Group Member (which, for the purposes of
this paragraph (c), shall include any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), promptly (i) execute and deliver to the Administrative Agent such amendments
to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by any Group Member, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iii) cause such new Subsidiary (A) to become a party to
the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent. 


        (e)   With
respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by any Group Member (other than by any Group Member that is an Excluded
Foreign Subsidiary), promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any such Group
Member (provided that in no event shall more than 66% of the total outstanding voting Capital Stock of any 


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such
new Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Group Member, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect
the Administrative Agent's security interest therein, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. 


        6.10.    Landlord Consents.    Use its commercially reasonable best
efforts to obtain landlord consents with respect to each leasehold property in form and substance reasonably satisfactory to the Administrative Agent. 



        6.11.    Leasehold Mortgages.    (a)    Within
75 days after the Closing Date (or such later date as the Administrative Agent may agree) deliver to the Administrative Agent a leasehold mortgage, in form and substance reasonably
satisfactory to it (a "Leasehold Mortgage"), with respect to each existing leasehold property (other than any leasehold property owned by any
Excluded Foreign Subsidiary) for which landlord consent is not required (which leasehold properties are set forth on Schedule 6.11) and (b) use its commercially reasonable best efforts
to deliver Leasehold Mortgages with respect to each other existing leasehold property (other than any leasehold property owned by any Excluded Foreign Subsidiary) (it being understood that to
the extent the Borrower has previously requested landlord consent to such Leasehold Mortgage and such consent was denied, the Borrower shall not be required to seek such consent again), in each case
together with such documents, and, to the extent consistent with the Existing Credit Agreement, title insurance policies and legal opinions as the Administrative Agent shall reasonably request. 


SECTION 7.
NEGATIVE COVENANTS 


        Holdings,
the Borrower and the Canadian Borrower hereby jointly and severally agree that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent hereunder, each of Holdings, the Borrower
and the Canadian Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: 


        7.1.    Financial Condition Covenants.    


        (a)   Consolidated Leverage Ratio.    Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower (or, if less, the number of full fiscal quarters subsequent to the Closing Date) ending with any fiscal quarter set forth below to exceed the ratio set
forth below opposite such fiscal quarter: 



	Fiscal Quarter
 
	 	Consolidated

Leverage Ratio

	Second Quarter of Fiscal Year 2006 through Third Quarter of Fiscal Year 2007	 	4.75:1.00
	
 Fourth Quarter of Fiscal Year 2007 through Third Quarter of Fiscal Year 2008	
 	

4.50:1.00
	
 Fourth Quarter of Fiscal Year 2008 through Third Quarter of Fiscal Year 2009	
 	

4.25:1.00
	
 Fourth Quarter of Fiscal Year 2009 through Third Quarter of Fiscal Year 2010	
 	

3.75:1.00
	
 Fourth Quarter of Fiscal Year 2010 and thereafter	
 	

3.50:1.00





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        (b)   Consolidated Fixed Charge Coverage Ratio.    Permit the Consolidated Fixed Charge Coverage Ratio for any period
of four consecutive fiscal quarters of the Borrower (or, if less, the number of full fiscal quarters subsequent to the Closing Date) ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter: 



	Fiscal Quarter
 
	 	Consolidated Fixed

Charge Coverage Ratio

	Second Quarter of Fiscal Year 2006 through Third Quarter of Fiscal Year 2007	 	1.00:1.00
	
 Fourth Quarter of Fiscal Year 2007 through Third Quarter of Fiscal Year 2008	
 	

1.10:1.00
	
 Fourth Quarter of Fiscal Year 2008 through Third Quarter of Fiscal Year 2009	
 	

1.15:1.00
	
 Fourth Quarter of Fiscal Year 2009 and thereafter	
 	

1.20:1.00






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


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


        (b)   Indebtedness
of the Borrower to any Subsidiary and of any Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary; 



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


        (d)   Indebtedness
outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, replacements, renewals or extensions thereof
(without increasing the principal amount thereof or shortening the maturity thereof); 


        (e)   Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to
exceed $15,000,000 at any one time outstanding and any refinancings, refundings, replacements, renewals or extensions thereof (without increasing the principal amount thereof or shortening the
maturity thereof); 


        (f)    (i)
Indebtedness of the Borrower in respect of the Senior Notes in an aggregate principal amount not to exceed $175,000,000 and (ii) Guarantee Obligations of
Holdings and any Subsidiary Guarantor in respect of such Indebtedness and any refinancings, refundings, replacements, renewals or extensions thereof permitted under the Senior Notes Indenture (without
increasing the principal amount thereof or shortening the maturity thereof); 



        (g)   Permitted
Senior Indebtedness and any refinancings, refundings, replacements, renewals or extensions thereof (without increasing the principal amount thereof or
shortening the maturity thereof) to the extent the Net Cash Proceeds in respect thereof are used to prepay Term Loans pursuant to Section 2.11(a); 


        (h)   endorsements
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; 


        (i)    Indebtedness
in respect of Swap Agreements permitted under Section 7.12; 



        (j)    Indebtedness
of any Excluded Foreign Subsidiary to the Borrower or any Subsidiary of the Borrower, provided that all such intercompany Indebtedness shall be subordinated
to the Obligations on terms satisfactory to the Administrative Agent and shall be in an aggregate principal amount not to exceed $1,000,000; 


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        (k)   Indebtedness
consisting of Guaranteed Obligations of any Indebtedness of the Borrower or any of its Subsidiaries otherwise permitted to be incurred pursuant to this
Section 7.2; 


        (l)    Indebtedness
of a Person existing at the time such Person becomes a Subsidiary of the Borrower following the Closing Date, which Indebtedness is in existence at the time
such Person becomes a Subsidiary and is not created in connection with or in contemplation of such Person becoming a Subsidiary; provided that the
aggregate principal amount of all such Indebtedness in the aggregate shall not exceed $5,000,000 at any time outstanding (and any refinancings, refundings, replacements, renewals or extensions
thereof (without increasing the principal amount thereof or shortening the maturity thereof)); 



        (m)  Indebtedness
consisting of obligations to employees of the Borrower or its Subsidiaries in respect of employee stock ownership or employee stock option plans to the
extent that such obligations are permitted under Section 7.6; 


        (n)   Indebtedness
incurred in respect of workers' compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees
provided by the Borrower or any Subsidiary of the Borrower in the ordinary course of business, provided such Indebtedness is not overdue; 



        (o)   Indebtedness
arising from agreements of the Borrower or any Subsidiary of the Borrower providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock; 


        (p)   Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness
is extinguished within five Business Days of incurrence; and 


        (q)   additional
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed
$20,000,000 at any one time outstanding. 


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


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


        (b)   carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business that are not overdue for a period of
more than 30 days or that are being contested in good faith by appropriate proceedings; 


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



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


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



        (f)    Liens
in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness permitted by Section 7.2(d),  provided that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased; 


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        (g)   Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of
such assets at the time of such acquisition, including transaction costs incurred in connection with such acquisition and (iv) the amount of Indebtedness secured thereby is
not increased; 


        (h)   Liens
created pursuant to the Security Documents; 


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


        (j)    purported
Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the ordinary
course of business; 


        (k)   any
attachment or judgment Lien not constituting an Event of Default under Section 8.1(h); 


        (l)    non-exclusive
licenses of Intellectual Property granted by the Borrower or any of its Subsidiaries in the ordinary course of business consistent with past
practice and not interfering in any respect with the ordinary conduct of the business of the Borrower or such Subsidiary; 


        (m)  bankers
liens and rights of set-off with respect to customary depositary arrangements entered into in the ordinary course of business of the Borrower and
its Subsidiaries; 


        (n)   Liens
securing Indebtedness permitted under Section 7.2(l); provided that (i) such Liens are not created in
contemplation of or in connection with such Person becoming a Subsidiary, (ii) such Liens do not apply to any other property of the Borrower or any of its Subsidiaries, and (iii) such
Liens secure only those obligations secured by such Liens on the date such Person becomes a Subsidiary; 


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



        (p)   Liens
in favor of issuers of surety or performance bonds or letters of credit or bankers' acceptances issued pursuant to the request of and for the account of such
Person in the ordinary course of its business so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair market
value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and all Subsidiaries) $2,000,000 at any one time; 


        (q)   Liens
securing Swap Agreements permitted under Section 7.12 so long as neither (i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and all Subsidiaries)
$5,000,000 at any one time; and 


        (r)   Liens
not otherwise permitted by this Section so long as neither (i) the aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject thereto exceeds (as to the Borrower and all Subsidiaries) $5,000,000 at any
one time. 


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


        (a)   (i)
any Subsidiary of the Borrower (other than the Canadian Borrower) may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned 


60







 



Subsidiary
Guarantor shall be the continuing or surviving corporation) and (ii) any Excluded Foreign Subsidiary (other than the Canadian Borrower) may be merged or consolidated with or into any
other Excluded Foreign Subsidiary; 


        (b)   (i)
any Subsidiary of the Borrower (other than the Canadian Borrower) may Dispose of any or all of its assets (x) to the Borrower or any Wholly Owned Subsidiary
Guarantor (upon voluntary liquidation or otherwise) or (y) pursuant to a Disposition permitted by Section 7.5 and (ii) any Excluded Foreign Subsidiary (other than the Canadian
Borrower) may Dispose of any or all of its assets to any other Excluded Foreign Subsidiary; 


        (c)   any
Investment expressly permitted by Section 7.8 may be structured as a merger, consolidation or amalgamation; and 


        (d)   the
Acquisition may be consummated. 


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



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


        (b)   the
sale of inventory or the licensing of Intellectual Property or other general intangibles in connection with franchise agreements in the ordinary course
of business; 


        (c)   Dispositions
permitted by clause (i)(x) or clause (ii) of Section 7.4(b); 


        (d)   the
sale or issuance of the Borrower's or any Subsidiary's Capital Stock to Holdings, the Borrower or any Wholly Owned Subsidiary Guarantor; 


        (e)   cash
and Cash Equivalents; 


        (f)    Permitted
Sale-Leasebacks to the extent the Net Cash Proceeds in respect thereof are used to prepay Term Loans pursuant to Section 2.11(b); 


        (g)   Dispositions
to the Borrower or any of its Subsidiaries; provided that any such Dispositions involving a Subsidiary that
is not a Loan Party shall be made in compliance with Section 7.10; 


        (h)   Dispositions
constituting Investments permitted under Section 7.8; 


        (i)    Dispositions
of assets in a single or series of related transaction not constituting an Asset Sale; and 


        (j)    the
Disposition of other property or a series of related Dispositions of property having a book value not to exceed $10,000,000 in the aggregate for any Fiscal Year of
the Borrower. 


        7.6.    Restricted Payments.    Declare or pay any dividend (other
than dividends payable solely in Capital Stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, "Restricted Payments"), except that: 



        (a)   any
Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned Subsidiary Guarantor and, on a pro rata basis, to its equity holders (with respect
to any non-Wholly Owned Subsidiary); 


61







 



        (b)   so
long as no Default or Event of Default shall have occurred and be continuing, the Borrower may pay dividends to Holdings to permit Holdings to (i) purchase
Holdings' common stock or common stock options from present or former officers or employees of any Group Member upon the death, disability or termination of employment of such officer or employee,  provided, that the aggregate amount of payments under this clause (i) after the date hereof (net of any proceeds received by Holdings and
contributed to the Borrower after the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $2,500,000 in the aggregate for any Fiscal Year
of the Borrower and (ii) pay management fees expressly permitted by the last sentence of Section 7.10; and 


        (c)   the
Borrower may pay dividends to Holdings to permit Holdings to (i) pay corporate overhead expenses incurred in the ordinary course of business not to exceed
$1,000,000 in any Fiscal Year and (ii) pay any taxes that are due and payable by Holdings and the Borrower as part of a consolidated group. 


        7.7.    Capital Expenditures.    Make or commit to make any
New Unit Capital Expenditure with respect to any Unit which commences operation after the Closing Date (regardless of when the Real Estate on which such Unit is located was acquired) at any
time that either (a) the aggregate Available Revolving Commitments is less than $15,000,000 or (b) the Consolidated Leverage Ratio as at the last day of the period of four consecutive
fiscal quarters most recently ended for which the Borrower has delivered a Compliance Certificate is greater than the Incurrence Ratio. 


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



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


        (b)   investments
in cash and Cash Equivalents; 


        (c)   Guarantee
Obligations permitted by Section 7.2; 


        (d)   loans
and advances to employees of any Group Member in the ordinary course of business (including for travel, entertainment and relocation expenses) in an
aggregate amount for all Group Members not to exceed $1,000,000 at any one time outstanding; 


        (e)   the
Acquisition; 


        (f)    Investments
in assets useful in the business of the Borrower and its Subsidiaries made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount; 


        (g)   intercompany
Investments by any Group Member in the Borrower or any Person that, prior to such Investment, is a Wholly Owned Subsidiary Guarantor, or upon the making of
such Investment or if as a result of such Investment, such Person becomes a Wholly Owned Subsidiary Guarantor, or such Person is merged into or consolidated with or transfers all or substantially all
of its assets to the Borrower or any Wholly Owned Subsidiary Guarantor; 


        (h)   intercompany
loans to any Excluded Foreign Subsidiary to the extent permitted under Section 7.2(j); 


        (i)    Capital
Expenditures permitted by Section 7.7; 


        (j)    Investments
existing as of the Closing Date and listed on Schedule 7.8(j); 



        (k)   Investments
in Swap Agreements permitted under Section 7.12; 


        (l)    Permitted
Acquisitions; 


62







 



        (m)  Investments
in Sugarloaf to the extent required in the management agreement or limited partnership agreement of Sugarloaf; 



        (n)   Capital
Stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Borrower or any Subsidiary of the
Borrower or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of a debtor; 


        (o)   Investments
made as a result of the receipt of non-cash consideration from a Disposition of property that was made pursuant to and in compliance with
Section 7.5; and 



        (p)   in
addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost)
not to exceed $10,000,000 during the term of this Agreement. 


        7.9.    Optional Payments and Modifications of Certain Debt
Instruments.    (a)    Make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or
voluntarily defease or segregate funds with respect to the Senior Notes or any Permitted Senior Indebtedness; provided that the Borrower may
(i) make prepayments in connection with any refinancing, refunding, replacement, renewal or extension of the Senior Notes or any Permitted Senior Indebtedness permitted under Section 7.2
(in each case, without increasing the principal amount thereof or shortening the maturity thereof) and (ii) repurchase or redeem Senior Notes and Permitted Senior Indebtedness in an
aggregate amount not to exceed $15,000,000 so long as (i) no such repurchase or redemption is made with the proceeds of Revolving Loans, Canadian Revolving Loans or Additional Revolving Loans
and (ii) after giving pro forma effect to such repurchase or redemption, the Borrower is in compliance with both covenants set forth in Section 7.1, such compliance to be
determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.1, or (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Senior Notes or any Permitted Senior Indebtedness (other than any such amendment,
modification, waiver or other change that (i) would extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any date for payment of interest
thereon and (ii) does not involve the payment of a consent fee). 


        7.10.    Transactions with Affiliates.    Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than Holdings, the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the relevant Group
Member, and (c) upon fair and reasonable terms no less favorable to the relevant Group Member than it would obtain in a comparable arm's length transaction with a Person that is not an
Affiliate. Notwithstanding the foregoing, the Borrower and its Subsidiaries may (i) pay to Wellspring and their Control Investment Affiliates fees and expenses pursuant to an expense
reimbursement agreement approved by the board of directors of the Borrower in an aggregate amount not to exceed in any Fiscal Year of the Borrower $750,000  plus other expenses incurred by Wellspring or
its Affiliates in connection with the procurement of insurance and/or goods and services by such Person on
behalf of the Borrower or its Subsidiaries as permitted by such expense reimbursement agreement, (ii) pay reasonable and customary fees to members of the Board of Directors of Holdings, the
Borrower and its Subsidiaries, (iii) make loans and advances to non-executive employees in the ordinary course of business to the extent permitted as a permitted Investment under
Section 7.8(d), and (iv) consummate the transactions set forth on Schedule 7.10. 


        7.11.    Sales and Leasebacks.    Enter into any arrangement with any
Person providing for the leasing by any Group Member of real or personal property that has been or is to be sold or transferred by such Group Member to such Person or to any other Person to whom funds
have been or are to be 


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advanced
by such Person on the security of such property or rental obligations of such Group Member (a "Sale-Leaseback");  provided that, so long as no Event of
Default has occurred and is continuing or would result therefrom, the Borrower or any Subsidiary of the Borrower
may enter into a Sale-Leaseback with respect to any Unit which commences operations after the Closing Date (regardless of when the Real Estate on which such Unit is located was acquired)
or any fee or leasehold interest in Real Estate acquired after the Closing Date if (a) the terms of the sale as such are comparable to terms which could be obtained in an arm's-length sale
among unaffiliated parties not involving a Sale-Leaseback transaction, (b) the terms of the lease as such are comparable to terms which could be obtained in an arm's-length
commercial operating lease among unaffiliated parties and (c) the Net Cash Proceeds in respect thereof are used to prepay Term Loans pursuant to Section 2.11(b) and,  provided further that,
assuming that such Sale-Leaseback (and any repayment of Indebtedness in conjunction therewith) had occurred
immediately prior to the period of four consecutive fiscal quarters most recently ended, no Default or Event of Default would have occurred under Section 7.1 after giving effect to such
Sale-Leaseback (any such Sale-Leaseback referred to herein, a "Permitted Sale-Leaseback"). 


        7.12.    Swap Agreements.    Enter into any Swap Agreement, except
(a) Swap Agreements entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of Capital Stock or the Senior Notes) and
(b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Borrower or any Subsidiary. 


        7.13.    Changes in Fiscal Periods.    Permit the Fiscal Year of the
Borrower to end on a day other than the Sunday after the Saturday closest to January 31 of each calendar year or change the Borrower's method of determining fiscal quarters. The term "Fiscal
Year XXXX", where "XXXX" is a calendar year, shall refer to the Fiscal Year of the Borrower beginning during such calendar year. 



        7.14.    Negative Pledge Clauses.    Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of any Group Member to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or
hereafter acquired, other than (a) this Agreement and the other Loan Documents, (b) the Senior Notes Indenture, (c) any agreements governing any purchase money Liens or Capital
Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby), (d) customary provisions
contained in any agreement that has been entered into in connection with a Disposition of assets permitted under Section 7.5 and (e) customary anti-assignment provisions
contained in leases and licensing agreements entered into in the ordinary course of business, if required by such lessor or licensor. 


        7.15.    Clauses Restricting Subsidiary Distributions.    Enter into
or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any Capital Stock
of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the Borrower or any
other Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents or the Senior Notes Indenture and (ii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement
that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary. 


        7.16.    Lines of Business.    Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement (after giving effect to the Acquisition) or that
are reasonably related thereto. 


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        7.17.    Amendments to Acquisition
Documents.    (a)    Amend, supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of the indemnities and licenses
furnished to the Borrower or any of its Subsidiaries pursuant to the Acquisition Documentation such that after giving effect thereto such indemnities or licenses shall be materially less favorable to
the interests of the Loan Parties or the Lenders with respect thereto or (b) otherwise amend, supplement or otherwise modify the terms and conditions of the Acquisition Documentation or any
such other documents except for any such amendment, supplement or modification that (i) becomes effective after the Closing Date and (ii) could not reasonably be expected to have a
Material Adverse Effect. 


        7.18.    Franchises.    Enter into any franchise agreement pursuant to
which the Borrower or any of its Subsidiaries is prohibited from pledging or otherwise assigning its rights under such franchise agreement, including its right to receive any franchise fees or other
fees or amounts paid to the Borrower or such Subsidiary thereunder. 


SECTION 8.
EVENTS OF DEFAULT 


        8.1.    Events of Default.    If any of the following events shall
occur and be continuing: 


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


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


        (c)   any
Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to
Holdings, the Borrower and the Canadian Borrower only), Section 6.7(a) or Section 7 of this Agreement or Sections 5.4 and 5.6(b) of the Guarantee and Collateral
Agreement; or 


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


        (e)   any
Significant Group Member shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the
Loans) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable;  provided, that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing 


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with
respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $5,000,000; or 


        (f)    (i)
any Significant Group Member shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, monitor, conservator or other similar official for it or for all or any substantial part of its assets, or any Significant Group Member shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against any Significant Group Member any case, proceeding or other action of a nature referred to in clause (i) above
that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of 90 days; or
(iii) there shall be commenced against any Significant Group Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within
60 days from the entry thereof; or (iv) any Significant Group Member shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) any Significant Group Member shall generally not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or 


        (g)   (i)
any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) any Group Member or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or 


        (h)   one
or more judgments or decrees shall be entered against any Significant Group Member involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage) of $10,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or 


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



        (j)    the
guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or 


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        (k)   (i)
the Permitted Investors shall cease to have the power to vote or direct the voting of securities having a majority of the ordinary voting power for the election of
directors of Holdings (determined on a fully diluted basis); (ii) the Permitted Investors shall cease to own of record and beneficially an amount of common stock of Holdings equal to at least
662/3% of the amount of common stock of Holdings owned by the Permitted Investors of record and beneficially as of the Closing Date; (iii) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), excluding the Permitted Investors, shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than 331/3% of the outstanding common stock of Holdings; (iv) the board of directors of Holdings shall cease to consist of a
majority of Continuing Directors; (v) Holdings shall cease to own and control, of record and beneficially, directly, 100% of each class of outstanding Capital Stock of the Borrower free and
clear of all Liens (except Liens created by the Guarantee and Collateral Agreement); or (vi) a Specified Change of Control shall occur; or 


        (l)    Holdings
shall (i) conduct, transact or otherwise engage in, or commit to conduct, transact or otherwise engage in, any business or operations other than those
incidental to its ownership of the Capital Stock of the Borrower, (ii) incur, create, assume or suffer to exist any Indebtedness or other liabilities or financial obligations, except
(w) Indebtedness incurred pursuant to Section 7.2(f), (x) nonconsensual obligations imposed by operation of law, (y) obligations pursuant to the Loan Documents to which it
is a party and (z) obligations with respect to its Capital Stock, or (iii) own, lease, manage or otherwise operate any properties or assets (including cash (other than cash received in
connection with dividends made by the Borrower in accordance with Section 7.6 pending application in the manner contemplated by said Section) and cash equivalents) other than the ownership of
shares of Capital Stock of the Borrower; 


then,
and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower or the Canadian
Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become
due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower and/or the Canadian Borrower declare the Revolving Commitments and/or
the Canadian Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments and/or the Canadian Revolving Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower and/or the Canadian Borrower,
declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and
payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have
expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have expired
or been fully drawn upon, all 


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Reimbursement
Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the Borrower. 


        8.2.    Right to Cure.    (a)    Notwithstanding anything to
the contrary contained in Section 8.1, in the event that the Borrower fails to comply with the requirements of any Financial Condition Covenant, until the expiration of the 10th day
subsequent to the date the certificate calculating such Financial Condition Covenant is required to be delivered pursuant to Section 6.2(b), Holdings shall have the right to issue Permitted
Cure Securities for cash or otherwise receive cash contributions to the capital of Holdings, and, in each case, to contribute any such cash to the capital of the Borrower (collectively, the
"Cure Right"), and upon the receipt by the Borrower of such cash (the "Cure Amount") pursuant to
the exercise by Holdings of such Cure Right and request to the Administrative Agent to effect such recalculation, such Financial Condition Covenant shall be recalculated giving effect to the following
pro forma adjustments: 



        (i)    Consolidated
EBITDA shall be increased, solely for the purpose of measuring the Financial Condition Covenants and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount; and 


        (ii)   if,
after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of all Financial Condition Covenants, the
Borrower shall be deemed to have satisfied the requirements of the Financial Condition Covenants as of the relevant date of determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable breach or default of the Financial Condition Covenants that had occurred shall be deemed cured for the purposes of this Agreement. 




        (b)   Notwithstanding
anything herein to the contrary, (a) in each four-fiscal-quarter period there shall be at least two fiscal quarters in which the Cure
Right is not exercised, (b) in each eight-fiscal-quarter period, there shall be a period of at least four consecutive fiscal quarters during which the Cure Right is not exercised,
(c) the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Condition Covenants and (d) no Indebtedness repaid with the proceeds of
Permitted Cure Securities shall be deemed repaid for the purposes of calculating the ratios specified in Section 7.1(a) or (b) for the period during which such Permitted Cure Securities
were issued. 


SECTION 9.
THE AGENTS 


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


        9.2.    Delegation of Duties.    The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent 


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shall
not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care. 


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


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


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



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


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



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


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


        9.9.    Successor Administrative Agent.    The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders, the Borrower and the Canadian Borrower. If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default shall
have occurred and be continuing) be subject to approval by the Borrower and/or the Canadian Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent
shall succeed to the 


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rights,
powers and duties of the Administrative Agent, and the term "Administrative Agent" shall mean such successor agent effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other
Loan Documents. 


        9.10.    Documentation Agents and Syndication Agent.    Neither the
Documentation Agents nor the Syndication Agent shall have any duties or responsibilities hereunder in its capacity as such. 


SECTION 10.
MISCELLANEOUS 


        10.1.    Amendments and Waivers.    Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party
party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences;  provided, however, that no such waiver and no such amendment, supplement or modification shall
(i) reduce or forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce
the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver
shall be effective with the consent of the Majority Facility Lenders of each adversely affected Facility) and (y) that any amendment or modification of defined terms used in the financial
covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender's Revolving Commitment or Canadian Revolving Commitment, in each case without the written consent of each Lender directly affected
thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by the Borrower or the Canadian Borrower of any of its rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case
without the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.17 without the written consent of the Majority Facility Lenders in respect of each
Facility adversely affected thereby; (v) reduce the amount of Net Cash Proceeds or Excess Cash Flow required to be applied to prepay Loans under this Agreement without the written consent of
the Majority Facility Lenders with respect to each Facility adversely affected thereby; (vi) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any
Facility without the written consent of all Lenders under such Facility; (vii) amend, modify or waive any provision of Section 9 without the written consent of the Administrative Agent;
(viii) amend, modify or 


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waive
any provision of Section 2.6 or 2.7 without the written consent of the Swingline Lender; or (ix) amend, modify or waive any provision of Section 3 without the written
consent of the Issuing Lender. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders,
the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. 


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


        In
addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower, the Canadian Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of all outstanding Tranche B Term Loans or Tranche C Term
Loans ("Replaced Term Loans") with a replacement term loan tranche hereunder ("Replacement Term Loans"),  provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Replaced
Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Replaced Term Loans and (c) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Replaced Term Loans at the time of such refinancing. 



        10.2.    Notices.    All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of Holdings, the Borrower, the Canadian
Borrower and the Administrative Agent, 


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and
as set forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective
parties hereto: 



	Holdings, Borrower

and Canadian Borrower:	 	2481 Manana Drive

Dallas, Texas 75220

Attention: Chief Financial Officer

Telecopy: 214-357-1536

Telephone: 214-357-9588
	
 	
 	

With a copy to:

Wellspring Capital Management LLC

Lever House

390 Park Avenue

New York, NY 10022-4608

Telecopy: 212-318-9810

Telephone: 212-318-9898

Attention: Greg S. Feldman
	
 Administrative Agent:	
 	

JPMorgan Chase Bank, N.A.

Loan and Agency Services

1111 Fannin Street, 11th Floor

Houston, TX 77002-8069

Attention: Stacey L. Ahrendt

Telecopy: 713-750-2666
	
 	
 	

With a copy to:

JPMorgan Chase Bank, N.A.

270 Park Avenue

New York, NY 10017

Attention: Matthew Massie

Telecopy: 212-270-5100





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


        Notices
and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent;  provided that the foregoing
shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the
applicable Lender. 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. 


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


        10.4.    Survival of Representations and Warranties.    All
representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered 


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pursuant
hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder. 


        10.5.    Payment of Expenses and Taxes.    Each of the Borrower and
the Canadian Borrower agrees (a) to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of counsel to the Administrative Agent and
filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing
Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel (including the allocated fees and expenses of in-house counsel) to each Lender and of counsel to the Administrative Agent,
(c) to pay, indemnify, and hold each Lender and the Administrative Agent harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp and excise taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents,
and (d) to pay, indemnify, and hold each Lender and the Administrative Agent and their respective officers, directors, employees, affiliates, agents and controlling persons (each, an
"Indemnitee") harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such
other documents, including any of the foregoing relating to the use of proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental Law applicable to the
operations of any Group Member or any of the Properties and the reasonable fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (d), collectively, the "Indemnified Liabilities"),  provided, that neither the Borrower
nor the Canadian Borrower shall have any obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law, each of the Borrower and the Canadian Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 10.5 shall be payable not later than 10 days after written demand therefor. Statements payable by the Borrower or the Canadian Borrower
pursuant to this Section 10.5 shall be submitted to 2481 Manana Drive, Dallas, Texas 75220 Attention: Chief Financial Officer (Telephone
No. 214-357-9588) (Telecopy No. 214-357-1536), at the address of the Borrower or the Canadian Borrower set forth in Section 10.2,
or to such other Person or address as may be hereafter designated by the Borrower or the Canadian Borrower in a written notice to the Administrative Agent. The agreements in this
Section 10.5 shall survive repayment of the Loans and all other amounts payable hereunder. 


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


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




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


        (B)  the
Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all
or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund. 




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



        (A)  except
in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender's
Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (or, in the case of the Tranche B Term Facility, the Tranche C Term Facility and
the Canadian Revolving Facility, $1,000,000) unless each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no
such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or
Approved Funds, if any; 


        (B)  the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and 


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





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



        (iii)  Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from and after the effective date specified in each Assignment and Assumption
the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and 



75







 

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 and subject to the limitations and requirements of Sections 2.18, 2.19, 2.20 and 10.5). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. 


        (iv)  The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrower, the Canadian Borrower, the
Administrative Agent, the Issuing Lender and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Canadian Borrower, the Issuing Lender and any Lender, at any reasonable time and
from time to time upon reasonable prior notice. This Section 10.6(b)(iv) shall be construed so that the Term Loans and the Revolving Loans, the Canadian Revolving Loans and the Additional
Revolving Loans are at all times maintained in "registered form" within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any
other relevant or successor provisions of the Code or such regulations). 



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




        (c)   (i)
Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (A) such Lender's obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Canadian Borrower, the Administrative Agent, the Issuing Lender and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;  provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, each of the Borrower and the Canadian Borrower agrees that each Participant shall be entitled, through the participating Lender, to
the benefits of Sections 2.18, 2.19 and 2.20 to the same extent and subject to the same limitations and requirements of such Sections as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent 


76







 

permitted
by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as
though it were a Lender. 



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




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


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


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



        10.7.    Adjustments; Set-off.    (a)    Except
to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender
(a "Benefitted Lender") shall receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8.1(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided,  however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. 


        (b)   In
addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings, the Borrower or the Canadian
Borrower, any such notice being expressly waived by Holdings, the Borrower and the Canadian Borrower to the extent permitted 


77







 



by
applicable law, upon any amount becoming due and payable by Holdings, the Borrower or the Canadian Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of Holdings, the Borrower or the Canadian Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower, the Canadian Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff
and application. 


        10.8.    Counterparts.    This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent. 


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


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


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


        10.12.    Submission To Jurisdiction;
Waivers.    Each of Holdings, the Borrower and the Canadian Borrower hereby irrevocably and unconditionally: 



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


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



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


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


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



        10.13.    Acknowledgements.    Each of Holdings, the Borrower and the
Canadian Borrower hereby acknowledges that: 


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


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


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


        10.14.    Releases of Guarantees and
Liens.    (a)    Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any action requested by the Borrower having the
effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not
prohibited by any Loan Document or that has been consented to in accordance with Section 10.1 or (ii) under the circumstances described in paragraph (b) below. 



        (b)   At
such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan Documents (other than obligations under or in respect of Swap
Agreements) shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding, the Collateral shall be released from the Liens created by the Security
Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Security Documents
shall terminate, all without delivery of any instrument or performance of any act by any Person. 



        10.15.    Confidentiality.    Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or in connection with this Agreement
that is designated by the provider thereof as confidential; provided that nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) to the Administrative Agent, any other Lender or any affiliate thereof (it being understood that the Persons to whom such disclosure is being made
will be informed of the confidential nature of such information and instructed to keep such information confidential), (b) subject to an agreement to comply with the provisions of this Section,
to any actual or prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any professional advisor to such counterparty), (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any of its affiliates (it being understood that the Persons to whom such disclosure is being made will be informed of
the confidential nature of such information and instructed to keep such information confidential), (d) upon the request or demand of any Governmental Authority, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) that has been publicly disclosed, (h) to 


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the
National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder or under any other Loan Document. 


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


        10.17.    Delivery of Addenda.    Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent an Addendum duly executed by such Lender. 



        IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first
above written. 



	
 	
 	

WS MIDWAY HOLDINGS, INC.
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 




80










	
 	
 	

DAVE & BUSTER'S, INC.
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 











	
 	
 	

6131646 CANADA INC.
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 











	
 	
 	

JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 











	
 	
 	

BANK OF AMERICA, N.A., as Syndication Agent and as a Lender
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 











	
 	
 	

WELLS FARGO BANK, N.A., as Documentation Agent and as a Lender
	
 	
 	

By:	

 Name:
	 	 	 	Title:	 











	
 	
 	

CIT LENDING SERVICES CORPORATION, as Documentation Agent and as a Lender
	
 	
 	

By:	

 Name:
	 	 	 	Title: