Exhibit 10.1


     

      
        

      

       

    

    Exhibit
      10.1

     

    

     

    
      

    

     

    CREDIT
      AGREEMENT

     

    Dated
      as
      of March 15, 2007

     

    among

     

    BENIHANA
      INC.

    as
      Borrower,

     

    and

    


    CERTAIN
      SUBSIDIARIES OF THE BORROWER

    FROM
      TIME
      TO TIME PARTY HERETO,

    as
      Guarantors,

     

    THE
      SEVERAL LENDERS

    FROM
      TIME
      TO TIME PARTY HERETO

     

    and

     

    WACHOVIA
      BANK, NATIONAL ASSOCIATION,

    as
      Agent

     

    
      

    

     

    Prepared
      by:

     

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS

     

    
      	 	 	 	
              Page

            
	
              SECTION
                1  DEFINITIONS

            	
              1

            
	
              1.1

            	 	
              Definitions.

            	
              1

            
	
              1.2

            	 	
              Computation
                of Time Periods.

            	
              23

            
	
              1.3

            	 	
              Accounting
                Terms.

            	
              23

            
	
              1.4

            	 	
              Execution
                of Documents.

            	
              24

            
	
              SECTION
                2  CREDIT
                FACILITIES

            	
              24

            
	
              2.1

            	 	
              Sweep
                Plus Revolving Loans.

            	
              25

            
	
              2.2

            	 	
              Non-Sweep
                Revolving Loans.

            	
              27

            
	
              2.3

            	 	
              Letter
                of Credit Subfacility.

            	
              27

            
	
              SECTION
                3  OTHER
                PROVISIONS RELATING TO CREDIT FACILITIES

            	
              33

            
	
              3.1

            	 	
              Default
                Rate.

            	
              33

            
	
              3.2

            	 	
              Extension
                and Conversion.

            	
              33

            
	
              3.3

            	 	
              Prepayments.

            	
              34

            
	
              3.4

            	 	
              Termination
                and Reduction of Revolving Committed Amount.

            	
              35

            
	
              3.5

            	 	
              Fees.

            	
              35

            
	
              3.6

            	 	
              Capital
                Adequacy.

            	
              36

            
	
              3.7

            	 	
              Limitation
                on Eurodollar Loans.

            	
              37

            
	
              3.8

            	 	
              Illegality.

            	
              37

            
	
              3.9

            	 	
              Requirements
                of Law.

            	
              38

            
	
              3.10

            	 	
              Treatment
                of Affected Loans.

            	
              39

            
	
              3.11

            	 	
              Taxes.

            	
              40

            
	
              3.12

            	 	
              Compensation.

            	
              41

            
	
              3.13

            	 	
              Pro
                Rata Treatment.

            	
              42

            
	
              3.14

            	 	
              Sharing
                of Payments.

            	
              43

            
	
              3.15

            	 	
              Payments,
                Computations, Etc.

            	
              44

            
	
              3.16

            	 	
              Evidence
                of Debt.

            	
              45

            
	
              3.17

            	 	
              Replacement
                Lenders.

            	
              46

            
	
              3.18

            	 	
              Non-Receipt
                of Funds by the Administrative Agent.

            	
              47

            
	
              3.19

            	 	
              Inability
                to Determine Interest Rate.

            	
              48

            
	
              3.20

            	 	
              Yield
                Protection.

            	
              48

            
	
              SECTION
                4  GUARANTY

            	
              50

            
	
              4.1

            	 	
              The
                Guaranty.

            	
              50

            
	
              4.2

            	 	
              Obligations
                Unconditional.

            	
              50

            
	
              4.3

            	 	
              Reinstatement.

            	
              51

            
	
              4.4

            	 	
              Certain
                Additional Waivers.

            	
              52

            
	
              4.5

            	 	
              Remedies.

            	
              52

            
	
              4.6

            	 	
              Rights
                of Contribution.

            	
              53

            
	
              4.7

            	 	
              Continuing
                Guarantee.

            	
              53

            
	
              SECTION
                5  CONDITIONS

            	
              54

            
	
              5.1

            	 	
              Closing
                Conditions.

            	
              54

            
	
              5.2

            	 	
              Conditions
                to all Extensions of Credit.

            	
              57

            


    

     

    
      
        
        

      

      
        i

        
          

        

      

      
        
        

      

    

     

    
      	
              SECTION
                6  REPRESENTATIONS
                AND WARRANTIES

            	
              58

            
	
              6.1

            	 	
              Financial
                Condition.

            	
              58

            
	
              6.2

            	 	
              No
                Material Change.

            	
              59

            
	
              6.3

            	 	
              Organization
                and Good Standing.

            	
              59

            
	
              6.4

            	 	
              Power;
                Authorization; Enforceable Obligations.

            	
              59

            
	
              6.5

            	 	
              No
                Conflicts.

            	
              60

            
	
              6.6

            	 	
              No
                Default.

            	
              60

            
	
              6.7

            	 	
              Ownership.

            	
              60

            
	
              6.8

            	 	
              Indebtedness.

            	
              60

            
	
              6.9

            	 	
              Litigation.

            	
              60

            
	
              6.10

            	 	
              Taxes.

            	
              61

            
	
              6.11

            	 	
              Compliance
                with Law.

            	
              61

            
	
              6.12

            	 	
              ERISA.

            	
              61

            
	
              6.13

            	 	
              Subsidiaries.

            	
              62

            
	
              6.14

            	 	
              Governmental
                Regulations, Etc.

            	
              62

            
	
              6.15

            	 	
              Purpose
                of Loans and Letters of Credit.

            	
              63

            
	
              6.16

            	 	
              Environmental
                Matters.

            	
              64

            
	
              6.17

            	 	
              Intellectual
                Property.

            	
              65

            
	
              6.18

            	 	
              Solvency.

            	
              65

            
	
              6.19

            	 	
              Investments.

            	
              65

            
	
              6.20

            	 	
              Location
                of Collateral.

            	
              65

            
	
              6.21

            	 	
              Disclosure.

            	
              65

            
	
              6.22

            	 	
              No
                Burdensome Restrictions.

            	
              65

            
	
              6.23

            	 	
              Brokers’
                Fees.

            	
              66

            
	
              6.24

            	 	
              Labor
                Matters.

            	
              66

            
	
              6.25

            	 	
              Anti-Terrorism
                Laws.

            	
              66

            
	
              6.26

            	 	
              Compliance
                with OFAC Rules and Regulations.

            	
              66

            
	
              6.27

            	 	
              Compliance
                with FCPA.

            	
              66

            
	
              SECTION
                7  AFFIRMATIVE
                COVENANTS

            	
              67

            
	
              7.1

            	 	
              Information
                Covenants.

            	
              67

            
	
              7.2

            	 	
              Preservation
                of Existence and Franchises.

            	
              70

            
	
              7.3

            	 	
              Books
                and Records.

            	
              70

            
	
              7.4

            	 	
              Compliance
                with Law.

            	
              70

            
	
              7.5

            	 	
              Payment
                of Taxes and Other Indebtedness.

            	
              70

            
	
              7.6

            	 	
              Insurance.

            	
              70

            
	
              7.7

            	 	
              Maintenance
                of Property.

            	
              71

            
	
              7.8

            	 	
              Performance
                of Obligations.

            	
              71

            
	
              7.9

            	 	
              Use
                of Proceeds.

            	
              71

            
	
              7.10

            	 	
              Audits/Inspections.

            	
              71

            
	
              7.11

            	 	
              Financial
                Covenants.

            	
              71

            
	
              7.12

            	 	
              Additional
                Credit Parties.

            	
              72

            
	
              7.13

            	 	
              Pledged
                Assets.

            	
              72

            
	
              7.14

            	 	
              Landlord
                Waivers.

            	
              73

            
	
              7.15

            	 	
              Post-Closing
                Requirements; Further Assurances.

            	
              73

            
	
              SECTION
                8  NEGATIVE
                COVENANTS

            	
              74

            
	
              8.1

            	 	
              Indebtedness.

            	
              74

            


    

     

    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

    

     

    
      	
              8.2

            	 	
              Liens.

            	
              74

            
	
              8.3

            	 	
              Nature
                of Business.

            	
              75

            
	
              8.4

            	 	
              Consolidation,
                Merger, Dissolution, etc.

            	
              75

            
	
              8.5

            	 	
              Asset
                Dispositions.

            	
              75

            
	
              8.6

            	 	
              Investments.

            	
              76

            
	
              8.7

            	 	
              Restricted
                Payments.

            	
              76

            
	
              8.8

            	 	
              Transactions
                with Affiliates.

            	
              76

            
	
              8.9

            	 	
              Fiscal
                Year; Organizational Documents.

            	
              77

            
	
              8.10

            	 	
              Limitation
                on Restricted Actions.

            	
              77

            
	
              8.11

            	 	
              Ownership
                of Subsidiaries.

            	
              77

            
	
              8.12

            	 	
              Sale
                Leasebacks.

            	
              78

            
	
              8.13

            	 	
              [Reserved].

            	
              78

            
	
              8.14

            	 	
              Stock
                Purchase Agreement.

            	
              78

            
	
              SECTION
                9  EVENTS
                OF DEFAULT

            	
              78

            
	
              9.1

            	 	
              Events
                of Default.

            	
              78

            
	
              9.2

            	 	
              Acceleration;
                Remedies.

            	
              81

            
	
              SECTION
                10  AGENCY
                PROVISIONS

            	
              82

            
	
              10.1

            	 	
              Appointment,
                Powers and Immunities.

            	
              82

            
	
              10.2

            	 	
              Reliance
                by Agent.

            	
              82

            
	
              10.3

            	 	
              Defaults.

            	
              83

            
	
              10.4

            	 	
              Rights
                as a Lender.

            	
              83

            
	
              10.5

            	 	
              Indemnification.

            	
              83

            
	
              10.6

            	 	
              Non-Reliance
                on Agent and Other Lenders.

            	
              84

            
	
              10.7

            	 	
              Successor
                Agent.

            	
              84

            
	
              SECTION
                11  MISCELLANEOUS

            	
              85

            
	
              11.1

            	 	
              Notices.

            	
              85

            
	
              11.2

            	 	
              Right
                of Set-Off; Adjustments.

            	
              85

            
	
              11.3

            	 	
              Benefit
                of Agreement.

            	
              85

            
	
              11.4

            	 	
              No
                Waiver; Remedies Cumulative.

            	
              87

            
	
              11.5

            	 	
              Expenses;
                Indemnification.

            	
              88

            
	
              11.6

            	 	
              Amendments,
                Waivers and Consents.

            	
              89

            
	
              11.7

            	 	
              Counterparts.

            	
              90

            
	
              11.8

            	 	
              Headings.

            	
              90

            
	
              11.9

            	 	
              Survival.

            	
              90

            
	
              11.10

            	 	
              Governing
                Law; Submission to Jurisdiction; Venue.

            	
              90

            
	
              11.11

            	 	
              Severability.

            	
              91

            
	
              11.12

            	 	
              Entirety.

            	
              91

            
	
              11.13

            	 	
              Binding
                Effect; Termination.

            	
              92

            
	
              11.14

            	 	
              Source
                of Funds.

            	
              92

            
	
              11.15

            	 	
              Conflict.

            	
              93

            
	
              11.16

            	 	
              Arbitration;
                Consent to Jurisdiction and Service of Process.

            	
              93

            
	
              11.17

            	 	
              Confidentiality.

            	
              94

            
	
              11.18

            	 	
              Waivers
                of Jury Trial; Waiver of Consequential Damages.

            	
              95

            
	
              11.19

            	 	
              Patriot
                Act Notice.

            	
              95

            
	
              11.20

            	 	
              Continuing
                Agreement.

            	
              96

            


    

     

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

    


    EXHIBITS

    


    
      	
              Exhibit
                1.1A

            	 	
              Form
                of Pledge Agreement

            
	
              Exhibit
                1.1B

            	 	
              Form
                of Security Agreement

            
	
              Exhibit
                2.1(b)(i)

            	 	
              Form
                of Notice of Borrowing

            
	
              Exhibit
                2.1(d)

            	 	
              Form
                of Revolving Note

            
	
              Exhibit
                3.2

            	 	
              Form
                of Notice of Extension/Conversion

            
	
              Exhibit
                7.1(d)

            	 	
              Form
                of Officer’s Compliance Certificate

            
	
              Exhibit
                7.12

            	 	
              Form
                of Joinder Agreement

            
	
              Exhibit
                11.3(b)

            	 	
              Form
                of Assignment and Acceptance

            


    

     

    SCHEDULES

    


    
      	
              Schedule
                1.1A

            	 	
              Investments

            
	
              Schedule
                1.1B

            	 	
              Liens

            
	
              Schedule
                1.1C

            	 	
              Existing
                Letters of Credit

            
	
              Schedule
                2.1(a)

            	 	
              Lenders

            
	
              Schedule
                5.1(h)

            	 	
              Corporate
                Structure

            
	
              Schedule
                6.4

            	 	
              Required
                Consents, Authorizations, Notices and Filings

            
	
              Schedule
                6.9

            	 	
              Litigation

            
	
              Schedule
                6.13

            	 	
              Subsidiaries

            
	
              Schedule
                6.17

            	 	
              Intellectual
                Property

            
	
              Schedule
                6.20(a)

            	 	
              Collateral
                Locations

            
	
              Schedule
                6.20(b)

            	 	
              Chief
                Executive Offices

            
	
              Schedule
                7.6

            	 	
              Insurance

            
	
              Schedule
                8.1

            	 	
              Indebtedness

            
	
              Schedule
                8.8

            	 	
              Transactions
                with Affiliates

            


    

    


    
      
        
        

      

      
        iv

        
          

        

      

      
        
        

      

    


    CREDIT
      AGREEMENT

     

    THIS
      CREDIT AGREEMENT,
      dated
      as of March 15, 2007 (as amended, modified, restated or supplemented from
      time to time, the “Credit
      Agreement”),
      is by
      and among BENIHANA
      INC.,
      a
      Delaware corporation (the “Borrower”),
      the
      Guarantors (as defined herein), the Lenders (as defined herein) and WACHOVIA
      BANK, NATIONAL ASSOCIATION,
      as
      Agent for the Lenders (in such capacity, the “Agent”).

     

    W
      I T N E S S E T H

    


    WHEREAS,
      the
      Borrower has requested that the Lenders make loans and other financial
      accommodations to the Borrower of up to $75,000,000, as more particularly
      described herein; and

    


    WHEREAS,
      the
      Lenders have agreed to make the requested credit facility available to the
      Borrower on the terms and conditions hereinafter set forth;

    


    NOW,
      THEREFORE, IN CONSIDERATION of
      the
      premises and other good and valuable consideration, the receipt and sufficiency
      of which is hereby acknowledged, the parties hereto agree as
      follows:

     

    SECTION
      1

    


    DEFINITIONS

    


    1.1      
         Definitions.

    


    As
      used
      in this Credit Agreement, the following terms shall have the meanings specified
      below unless the context otherwise requires: 

    


    “Acquisition”
means
      the acquisition by any Person of the Capital Stock or all or substantially
      all
      of the Property of another Person, whether or not involving a merger or
      consolidation with such Person.

    


    “Additional
      Credit Party”
means
      each Person that becomes a Guarantor after the Closing Date by execution of
      a
      Joinder Agreement.

    


    “Adjusted
      Base Rate”
means
      the Base Rate plus
      the
      Applicable Margin.

    


    “Adjusted
      Eurodollar Market Index Rate”
means
      the Eurodollar Market Index Rate plus
      the
      Applicable Margin for Eurodollar Loans.

    


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

    


    “Adjusted
      Eurodollar Rate”
means
      the Eurodollar Rate plus
      the
      Applicable Margin for Eurodollar Loans.

    


    “Affiliate”
means,
      with respect to any Person, any other Person (a) directly or indirectly
      controlling or controlled by or under direct or indirect common control with
      such Person or (b) directly or indirectly owning or holding ten percent
      (10%) or more of the equity interest in such Person. For purposes of this
      definition, “control” when used with respect to any Person means the power to
      direct the management and policies of such Person, directly or indirectly,
      whether through the ownership of voting securities, by contract or otherwise;
      and the terms “controlling” and “controlled” have meanings correlative to the
      foregoing.

    


    “Agent”
shall
      have the meaning assigned to such term in the heading hereof, together with
      any
      successors or assigns.

    


    “Agent’s
      Fees”
shall
      have the meaning assigned to such term in Section 3.5(c).

    


    Applicable
      Lending Office”
means,
      for each Lender, the office of such Lender (or of an Affiliate of such Lender)
      as such Lender may from time to time specify to the Agent and the Borrower
      by
      written notice as the office by which its Eurodollar Loans are made and
      maintained.

    


    “Applicable
      Margin”
means,
      for purposes of calculating the applicable interest rate for any day for any
      Revolving Loan, the applicable rate of the Commitment Fee for any day for
      purposes of Section 3.5(a) and the applicable rate of the Standby Letter of
      Credit Fee for any day for purposes of Section 3.5(b)(i), the appropriate
      Applicable Margin corresponding to the Leverage Ratio in effect as of the most
      recent Calculation Date:

    

      
        	
                 

                 

                 Pricing
                  Level

              	 	
                 

                 

                Leverage
                  Ratio

              	 	
                Applicable
                  Margin for Eurodollar Loans

              	 	
                Applicable
                  Margin for Base Rate Loans

              	 	
                Revolver
                  Commitment Fee

              	 	
                Applicable
                  Margin For Standby Letter of Credit Fee

              	 
	
                I

              	 	 	
                >
                  3.00 to 1.0

              	 	 	
                1.250

              	
                %

              	 	
                -1.50

              	
                %

              	 	
                0.300

              	
                %

              	 	
                1.250

              	
                %

              
	
                II

              	 	 	
                >
                  2.75 to 1.0 but ≤ 3.00 to 1.0

              	 	 	
                1.000

              	
                %

              	 	
                -1.75

              	
                %

              	 	
                0.250

              	
                %

              	 	
                1.000

              	
                %

              
	
                III

              	 	 	
                >
                  2.25 to 1.0 but ≤ 2.75 to 1.0

              	 	 	
                0.875

              	
                %

              	 	
                -1.875

              	
                %

              	 	
                0.200

              	
                %

              	 	
                0.875

              	
                %

              
	
                IV

              	 	 	
                ≤
                  2.25 to 1.0

              	 	 	
                0.750

              	
                %

              	 	
                -2.000

              	
                %

              	 	
                0.150

              	
                %

              	 	
                0.750

              	
                %

              


      

    

     

    The
      Applicable Margins shall be determined and adjusted quarterly on the date (each
      a “Calculation
      Date”)
      five (5) Business Days after the date by which the Borrower is required to
      provide the officer’s certificate in accordance with the provisions of
      Section 7.1(d) for the most recently ended fiscal quarter of the
      Consolidated Parties; provided
      that the
      initial Pricing Level shall be determined by the Leverage Ratio as of the last
      day of the most recently ended fiscal quarter of the Consolidated Parties
      preceding the Closing Date and thereafter the Pricing Level shall be determined
      by the Leverage Ratio as of the last day of the most recently ended fiscal
      quarter of the Consolidated Parties preceding the applicable Calculation Date;
      provided,
      further
      that if
      the Borrower fails to provide the officer’s certificate required by
      Section 7.1(d) on or before the most recent Calculation Date, the
      Applicable Margin from such Calculation Date shall be based on Pricing Level
      I
      until such time as an appropriate officer’s certificate is provided whereupon
      the Pricing Level shall be determined by the then current Leverage Ratio. In
      the
      event that any financial information or certification provided to the Agent
      in
      accordance with this Credit Agreement, is shown to be inaccurate other than
      inaccuracy resulting from a subsequent change in GAAP where the original
      determination was correct as of the date upon which such determination was
      actually made (regardless of whether this Agreement or the Commitments are
      in
      effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
      would have led to the application of a higher Applicable Margin for any period
      (an “Applicable
      Period”)
      than
      the Applicable Margin applied for such Applicable Period, then (i)
      the
      Borrower shall immediately deliver to the Agent a corrected officer’s
      certificate for such Applicable Period, (ii)
      the
      Applicable Margin shall be determined as if the corrected Pricing Level were
      applicable for such Applicable Period, and (iii)
      the
      Borrower shall immediately pay to the Agent the accrued additional interest
      owing as a result of such increased Applicable Margin for such Applicable
      Period. Each Applicable Margin shall be effective from one Calculation Date
      until the next Calculation Date. Any adjustment in the Applicable Margins shall
      be applicable to all existing Loans as well as any new Loans made or
      issued.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    “Application
      Period”,
      in
      respect of any Asset Disposition, shall have the meaning assigned to such term
      in Section 8.5.

    


    “Approved
      Fund”
shall
      mean any Fund that is administered, managed or underwritten 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.

    


    “Asset
      Disposition”
means
      the disposition of any or all of the assets (including, without limitation,
      the
      Capital Stock of a Subsidiary and any asset subject to an Off-Balance Sheet
      Lease Obligation, but excluding the sale of inventory in the ordinary course
      of
      business) of any Consolidated Party whether by sale, lease, transfer or
      otherwise. 

    


    “Bankruptcy
      Code”
means
      the Bankruptcy Code in Title 11 of the United States Code, as amended,
      modified, succeeded or replaced from time to time.

    


    “Bankruptcy
      Event”
means,
      with respect to any Person, the occurrence of any of the following with respect
      to such Person: (a) a court or governmental agency having jurisdiction in
      the premises shall enter an order for relief in respect of such Person in an
      involuntary case under any applicable bankruptcy, insolvency or other similar
      law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
      custodian, trustee, sequestrator (or similar official) of such Person or for
      any
      substantial part of its Property or ordering the winding up or liquidation
      of
      its affairs; or (b) there shall be commenced against such Person an
      involuntary case under any applicable bankruptcy, insolvency or other similar
      law now or hereafter in effect, or any case, proceeding or other action for
      the
      appointment of a receiver, liquidator, assignee, custodian, trustee,
      sequestrator (or similar official) of such Person or for any substantial part
      of
      its Property or for the winding up or liquidation of its affairs, and such
      involuntary case or other case, proceeding or other action shall remain
      undismissed, undischarged or unbonded for a period of sixty (60)
      consecutive days; or (c) such Person shall commence a voluntary case under
      any applicable bankruptcy, insolvency or other similar law now or hereafter
      in
      effect, or consent to the entry of an order for relief in an involuntary case
      under any such law, or consent to the appointment or taking possession by a
      receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
      official) of such Person or for any substantial part of its Property or make
      any
      general assignment for the benefit of creditors; or (d) such Person shall
      be unable to, or shall admit in writing its inability to, pay its debts
      generally as they become due.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    “Base
      Rate”
means,
      for any day, the rate per annum equal to the higher of (a) the Federal
      Funds Rate for such day plus one-half of one percent (.5%) and (b) the
      Prime Rate for such day. Any change in the Base Rate due to a change in the
      Prime Rate or the Federal Funds Rate shall be effective on the effective date
      of
      such change in the Prime Rate or Federal Funds Rate.

    


    “Base
      Rate Loan”
means
      any Loan bearing interest at a rate determined by reference to the Base
      Rate.

    


    “Borrower”
means
      the Person identified as such in the heading hereof, together with any permitted
      successors and assigns.

    


    “BOT”
means
      Benihana of Tokyo, Inc.

    


    “Business
      Day”
means
      a
      day other than a Saturday, Sunday or other day on which commercial banks in
      Charlotte, North Carolina or New York, New York are authorized or required
      by
      law to close, except that,
      when
      used in connection with a Eurodollar Loan or a Eurodollar Market Index Rate
      Loan, such day shall also be a day on which dealings between banks are carried
      on in U.S. dollar deposits in London, England.

    


    “Calculation
      Date”
has
      the
      meaning set forth in the definition of “Applicable Margin” set forth in this
      Section 1.1.

    


    “Capital
      Lease”
means,
      as applied to any Person, any lease of any Property (whether real, personal
      or
      mixed) by that Person as lessee which, in accordance with GAAP, is or should
      be
      accounted for as a capital lease on the balance sheet of that
      Person.

    


    “Capital
      Stock”
means
      (a) in the case of a corporation, capital stock, (b) in the case of an
      association or business entity, any and all shares, interests, participations,
      rights or other equivalents (however designated) of capital stock, (c) in
      the case of a partnership, partnership interests (whether general or limited),
      (d) in the case of a limited liability company, membership interests and
      (e) any other interest or participation that confers on a Person the right
      to receive a share of the profits and losses of, or distributions of assets
      of,
      the issuing Person.

    


    “Cash
      Equivalents”
means
      (a) securities issued or directly and fully guaranteed or insured by the
      United States of America or any agency or instrumentality thereof (provided
      that
      the full faith and credit of the United States of America is pledged in support
      thereof) having maturities of not more than twelve months from the date of
      acquisition, (b) U.S. dollar denominated time deposits and certificates of
      deposit of (i) any Lender, (ii) any domestic commercial bank of
      recognized standing having capital and surplus in excess of $500,000,000 or
      (iii) any bank whose short-term commercial paper rating from S&P is at
      least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the
      equivalent thereof (any such bank being an “Approved
      Bank”),
      in
      each case with maturities of not more than 270 days from the date of
      acquisition, (c) commercial paper and variable or fixed rate notes issued
      by any Approved Bank (or by the parent company thereof) or any variable rate
      notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
      equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
      better by Moody’s and maturing within six months of the date of acquisition,
      (d) repurchase agreements with a bank or trust company (including any of
      the Lenders) or recognized securities dealer having capital and surplus in
      excess of $500,000,000 for direct obligations issued by or fully guaranteed
      by
      the United States of America in which any Credit Party shall have a perfected
      first priority security interest (subject to no other Liens) and having, on
      the
      date of purchase thereof, a fair market value of at least 100% of the amount
      of
      the repurchase obligations and (e) Investments, classified in accordance
      with GAAP as current assets, in money market investment programs registered
      under the Investment Company Act of 1940, as amended, which are administered
      by
      reputable financial institutions having capital of at least $500,000,000 and
      the
      portfolios of which are limited to Investments of the character described in
      the
      foregoing subdivisions (a) through (d).

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    “Certificate
      of Designations”
means
      the Certificate of Designations, Preferences and Rights of Series B Convertible
      Preferred Stock of the Borrower. 

    


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

    


    “Change
      of Control”
shall
      mean at any time the occurrence of any of the following events: (a)
      any
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of the
      Exchange Act) other than BOT (and those Persons who beneficially own the Capital
      Stock of BOT as of the Closing Date) and BFC Financial Corporation, is or
      becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
      Exchange Act, except that a person shall be deemed to have “beneficial
      ownership” of all securities that such person has the right to acquire, whether
      such right is exercisable immediately or only after the passage of time),
      directly or indirectly, of 25% or more of the then outstanding Voting Stock
      of
      the Borrower; or (b)
      the
      replacement of a majority of the Board of Directors of the Borrower over a
      two-year period from the directors who constituted the Board of Directors at
      the
      beginning of such period, and such replacement shall not have been approved
      by a
      vote of at least a majority of the Board of Directors of the Borrower then
      still
      in office who either were members of such Board of Directors at the beginning
      of
      such period or whose election as a member of such Board of Directors was
      previously so approved.

    


    “Checking
      Account”
shall
      mean the Borrower’s checking account as designated by the Borrower in writing to
      the Administrative Agent.

    


    “Closing
      Date”
means
      the date hereof.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    “Code”
means
      the Internal Revenue Code of 1986, as amended, and any successor statute
      thereto, as interpreted by the rules and regulations issued thereunder, in
      each
      case as in effect from time to time. References to sections of the Code shall
      be
      construed also to refer to any successor sections.

    


    “Collateral”
means
      a
      collective reference to the collateral which is identified in, and at any time
      will be covered by, the Collateral Documents.

    


    “Collateral
      Documents”
means
      a
      collective reference to the Security Agreement, the Pledge Agreement and such
      other documents executed and delivered in connection with the attachment and
      perfection of the Agent’s security interests and liens arising thereunder,
      including without limitation, UCC financing statements and patent, trademark
      and
      copyright filings.

    


    “Commitment”
means
      (a) with respect to each Lender, the Revolving Commitment of such Lender
      and (b) with respect to the Issuing Lender, the LOC
      Commitment.

    


    “Commitment
      Fee”
shall
      have the meaning assigned to such term in Section 3.5(a).

    


    “Commitment
      Fee Calculation Period”
shall
      have the meaning assigned to such term in Section 3.5(a).

    


    “Consolidated
      Accrued Interest Expense”
means,
      for any period, accrued interest expense (including the amortization of debt
      discount and premium and the interest component under Capital Leases) of the
      Consolidated Parties on a consolidated basis for such period, as determined
      in
      accordance with GAAP. The applicable period shall be for the four consecutive
      fiscal quarters ending as of the date of determination.

    


    “Consolidated
      Adjusted Debt”
means
      the sum of (a)
      Funded
      Indebtedness plus
      (b)
      Consolidated Rent Expense multiplied by a factor of eight (8).

    


    “Consolidated
      EBIT”
means,
      for any period, the sum of (a) Consolidated Net Income for such period,
plus
      (b) an amount which, in the determination of Consolidated Net Income for
      such period, has been deducted for (i) Consolidated Accrued Interest
      Expense for such period, and (ii) Consolidated Taxes, all as determined in
      accordance with GAAP. 

    


    “Consolidated
      EBITDAR”
means,
      for any period, the sum of (a) Consolidated EBIT for such period, plus
      (b) an amount which, in the determination of Consolidated EBIT, has been
      deducted for (i)
      depreciation and amortization expense (including non-cash impairment charges)
      for such period and (ii) Consolidated Rent Expense for such period, all as
      determined in accordance with GAAP. 

    


    “Consolidated
      Material Adverse Effect”
means
      a
      material adverse effect on (a) the condition (financial or otherwise),
      operations, business, assets, liabilities or prospects of the Consolidated
      Parties taken as a whole, (b) the ability the Consolidated Parties taken as
      a
      whole to perform any obligation under the Credit Documents or (c) the material
      rights and remedies of the Lenders under the Credit Documents.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    “Consolidated
      Net Income”
means,
      for any period, net income (excluding extraordinary items) after taxes for
      such
      period of the Consolidated Parties on a consolidated basis, as determined in
      accordance with GAAP.

    


    “Consolidated
      Parties”
means
      a
      collective reference to the Borrower and its Subsidiaries, and “Consolidated
      Party” means any one of them.

    


    “Consolidated
      Rent Expense”
shall
      mean, for any period, all rent expense of the Consolidated Parties on a
      consolidated basis for such period, as determined in accordance with GAAP.
      

    


    “Consolidated
      Scheduled Funded Debt Payments”
means,
      as of the end of each fiscal quarter of the Consolidated Parties, for the
      Consolidated Parties on a consolidated basis, the sum of all scheduled payments
      of principal on Funded Indebtedness for the applicable period ending on such
      date (including the principal component of payments due on Capital Leases during
      the applicable period ending on such date); it being understood that
      Consolidated Scheduled Funded Debt Payments shall not include voluntary
      prepayments or the mandatory prepayments required pursuant to
      Section 3.3.

    


    “Consolidated
      Taxes”
means,
      for any period, the aggregate of all federal, state, local and foreign income,
      value added and similar taxes of the Consolidated Parties on a consolidated
      basis for such period, as determined in accordance with GAAP.

    


    “Continue”,
      “Continuation”,
      and
“Continued”
shall
      refer to the continuation pursuant to Section 3.2 hereof of a Eurodollar
      Loan from one Interest Period to the next Interest Period. 

    


    “Convert”,
      “Conversion”,
      and
“Converted”
shall
      refer to a conversion pursuant to Section 3.2 or Sections 3.7 through
      3.12, inclusive, of a Base Rate Loan into a Eurodollar Loan. 

    


    “Credit
      Documents”
means
      a
      collective reference to this Credit Agreement, the Notes, the LOC Documents,
      each Joinder Agreement, the Collateral Documents and all other related
      agreements and documents issued or delivered hereunder or thereunder or pursuant
      hereto or thereto (in each case as the same may be amended, modified, restated,
      supplemented, extended, renewed or replaced from time to time), and “Credit
      Document” means any one of them.

    


    “Credit
      Parties”
means
      a
      collective reference to the Borrower and the Guarantors, and “Credit Party”
means any one of them.

    


    “Credit
      Party Obligations”
means,
      without duplication, (a) all of the obligations of the Credit Parties to
      the Lenders (including the Issuing Lender) and the Agent, whenever arising,
      under this Credit Agreement, the Notes, the Collateral Documents or any of
      the
      other Credit Documents (including, but not limited to, any interest accruing
      after the occurrence of a Bankruptcy Event with respect to any Credit Party,
      regardless of whether such interest is an allowed claim under the Bankruptcy
      Code) and (b) all liabilities and obligations, whenever arising, owing from
      the Borrower to any Lender, any Affiliate of a Lender, or any other Person
      that
      was a Lender (or an Affiliate of a Lender) at any time (or whose Affiliate
      has
      ceased to be a Lender) arising under any Hedging Agreement.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    “Default”
means
      any event, act or condition which with notice or lapse of time, or both, would
      constitute an Event of Default.

    


    “Defaulting
      Lender”
means,
      at any time, any Lender that (a) has failed to make a Loan or purchase a
      Participation Interest required pursuant to the term of this Credit Agreement
      within one Business Day of when due, (b) other than as set forth in
      (a) above, has failed to pay to the Agent or any Lender an amount owed by
      such Lender pursuant to the terms of this Credit Agreement within one Business
      Day of when due, or (c) has been deemed insolvent or has become subject to
      a bankruptcy or insolvency proceeding or with respect to which (or with respect
      to any of assets of which) a receiver, trustee or similar official has been
      appointed.

    


    “Dollars”
and
      “$”
means
      dollars in lawful currency of the United States of America.

    


    “Domestic
      Subsidiary”
means,
      with respect to any Person, any Subsidiary of such Person which is incorporated
      or organized under the laws of any State of the United States or the District
      of
      Columbia.

    


    “Eligible
      Assignee”
means
      (a) a Lender; (b) an Affiliate of a Lender; and (c) any other
      Person approved by the Agent and, unless an Event of Default has occurred and
      is
      continuing at the time any assignment is effected in accordance with
      Section 11.3, the Borrower (such approval not to be unreasonably withheld
      or delayed by the Borrower and such approval to be deemed given by the Borrower
      if no objection is received by the assigning Lender and the Agent from the
      Borrower within five (5) Business Days after notice of such proposed assignment
      has been provided by the assigning Lender to the Borrower); provided,
      however,
      that
      neither the Borrower nor an Affiliate of the Borrower shall qualify as an
      Eligible Assignee.

    


    “Environmental
      Laws”
means
      any and all lawful and applicable Federal, state, local and foreign statutes,
      laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
      concessions, grants, franchises, licenses, agreements or other governmental
      restrictions relating to the environment or to emissions, discharges, releases
      or threatened releases of pollutants, contaminants, chemicals, or industrial,
      toxic or hazardous substances or wastes into the environment including, without
      limitation, ambient air, surface water, ground water, or land, or otherwise
      relating to the manufacture, processing, distribution, use, treatment, storage,
      disposal, transport, or handling of pollutants, contaminants, chemicals, or
      industrial, toxic or hazardous substances or wastes. 

    


    “ERISA”
means
      the Employee Retirement Income Security Act of 1974, as amended, and any
      successor statute thereto, as interpreted by the rules and regulations
      thereunder, all as the same may be in effect from time to time. References
      to
      sections of ERISA shall be construed also to refer to any successor
      sections.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    “ERISA
      Affiliate”
means
      an entity which is under common control with any Credit Party within the meaning
      of Section 4001(a)(14) of ERISA, or is a member of a group which includes
      the Borrower and which is treated as a single employer under Sections 414(b)
      or
      (c) of the Code.

    


    “ERISA
      Event”
means
      (a) with respect to any Plan, the occurrence of a Reportable Event or the
      substantial cessation of operations (within the meaning of Section 4062(e)
      of
      ERISA); (b) the withdrawal by any Consolidated Party or any ERISA Affiliate
      from a Multiple Employer Plan during a plan year in which it was a substantial
      employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
      termination of a Multiple Employer Plan; (c) the distribution of a notice
      of intent to terminate or the actual termination of a Plan pursuant to Section
      4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
      terminate or the actual termination of a Plan by the PBGC under Section 4042
      of
      ERISA; (e) any event or condition which might constitute grounds under
      Section 4042 of ERISA for the termination of, or the appointment of a trustee
      to
      administer, any Plan; (f) the complete or partial withdrawal of any
      Consolidated Party or any ERISA Affiliate from a Multiemployer Plan;
      (g) the conditions for imposition of a lien under Section 302(f) of ERISA
      exist with respect to any Plan; or (h) the adoption of an amendment to any
      Plan requiring the provision of security to such Plan pursuant to
      Section 307 of ERISA.

    


    “Eurodollar
      Loan”
means
      any Loan that bears interest at a rate based upon the Eurodollar
      Rate.

    


    “Eurodollar
      Market Index Rate”
means,
      for any day, the rate for
      one
      month U.S. dollar deposits, as reported on Telerate page 3750 as of 11:00 a.m.,
      London time, on such day, or if such day is not a London business day, then
      the
      immediately preceding London business day (or if not so reported, then as
      determined by the Administrative Agent from another recognized source or
      interbank quotation).

    


    “Eurodollar
      Market Index Rate Loan”
means
      any Loan bearing interest at a rate determined by reference to the Eurodollar
      Market Index Rate.

    


    “Eurodollar
      Rate”
means,
      for any Eurodollar Loan for any Interest Period therefor, the rate per annum
      (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
      Agent to be equal to the quotient obtained by dividing (a) the London
      Interbank Offered Rate for such Eurodollar Loan for such Interest Period by
      (b) 1 minus the Eurodollar Reserve Requirement for such Eurodollar Loan for
      such Interest Period.

    


    “Eurodollar
      Reserve Requirement”
means,
      at any time, the maximum rate at which reserves (including, without limitation,
      any marginal, special, supplemental, or emergency reserves) are required to
      be
      maintained under regulations issued from time to time by the Board of Governors
      of the Federal Reserve System (or any successor) by member banks of the Federal
      Reserve System against “Eurocurrency liabilities” (as such term is used in
      Regulation D). Without limiting the effect of the foregoing, the Eurodollar
      Reserve Requirement shall reflect any other reserves required to be maintained
      by such member banks with respect to (a) any category of liabilities which
      includes deposits by reference to which the Adjusted Eurodollar Rate is to
      be
      determined, or (b) any category of extensions of credit or other assets
      which include Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
      automatically on and as of the effective date of any change in the Eurodollar
      Reserve Requirement.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    “Event
      of Default”
means
      such term as defined in Section 9.1.

    


    “Existing
      Letter of Credit”
shall
      mean each of the letters of credit described by date of issuance, amount,
      purpose and the date of expiry on Schedule
      1.1C
      hereto.

    


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

    


    “Excluded
      Asset Disposition”
means
      any Asset Disposition by any Consolidated Party to any Credit Party if
      (a) the Credit Parties shall cause to be executed and delivered such
      documents, instruments and certificates as the Agent may request so as to cause
      the Credit Parties to be in compliance with the terms of Section 7.11 after
      giving effect to such Asset Disposition and (b) after giving effect to such
      Asset Disposition, no Default or Event of Default exists.

    


    “Extension
      of Credit”
shall
      mean, as to any Lender, the making of a Loan by such Lender or the issuance
      of,
      or participation in, a Letter of Credit by such Lender.

    


    “Fees”
means
      all fees payable pursuant to Section 3.5.

    


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

    


    “Fixed
      Charge Coverage Ratio”
      means, as
      of the
      end of each fiscal quarter of the Consolidated Parties for the four fiscal
      quarter period ending on such date, the ratio of (a) Consolidated EBIT for
      the applicable period to (b) the sum of (i) Consolidated Accrued
      Interest Expense for the applicable period plus
      (ii) Consolidated Taxes for the applicable period plus
      (iii) dividends paid during such period plus
      (iv) Consolidated Scheduled Funded Debt Payments for the applicable period
plus
      (v) any amounts paid for the repurchase of preferred stock for the
      applicable period.

    


    “Foreign
      Subsidiary”
means,
      with respect to any Person, any Subsidiary of such Person which is not a
      Domestic Subsidiary of such Person.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

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

    


    “Funded
      Indebtedness”
means,
      with respect to any Person, without duplication, (a)
      all
      obligations of such Person for borrowed money, (b)
      all
      obligations of such Person evidenced by bonds, debentures, notes or similar
      instruments, or upon which interest payments are customarily made, (c)
      all
      obligations of such Person under conditional sale or other title retention
      agreements relating to Property purchased by such Person (other than customary
      reservations or retentions of title under agreements with suppliers entered
      into
      in the ordinary course of business), (d)
      all
      obligations of such Person issued or assumed as the deferred purchase price
      of
      Property or services purchased by such Person (other than trade debt incurred
      in
      the ordinary course of business and due within six months of the incurrence
      thereof) which would appear as liabilities on a balance sheet of such Person,
      (e)
      the
      maximum amount of all standby letters of credit issued or bankers’ acceptances
      facilities created for the account of such Person and, without duplication,
      all
      drafts drawn thereunder (to the extent unreimbursed), (f)
      (i) all
      preferred Capital Stock issued by such Person and required by the terms thereof
      to be redeemed in cash prior to or within ninety (90) days after the Maturity
      Date, or for which mandatory sinking fund payments are due and (ii) all accrued
      but unpaid dividends, (g)
      all
      Off-Balance Sheet Lease Obligations, (h)
      the
      principal portion of all obligations of such Person under Capital Leases,
      (i)
      all
      Indebtedness of another Person of the type referred to in clauses (a)-(h)
      above secured by (or for which the holder of such Funded Indebtedness has an
      existing right, contingent or otherwise, to be secured by) any Lien on, or
      payable out of the proceeds of production from, Property owned or acquired
      by
      such Person, whether or not the obligations secured thereby have been assumed,
      (j)
      all
      Guaranty Obligations of such Person with respect to Indebtedness of the type
      referred to in clauses (a)-(h) above of another Person and (k)
      Indebtedness of the type referred to in clauses (a)-(h) above of any
      partnership or unincorporated joint venture in which such Person is legally
      obligated or has a reasonable expectation of being liable with respect
      thereto.

    


    “GAAP”
means
      generally accepted accounting principles in the United States applied on a
      consistent basis and subject to the terms of Section 1.3.

    


    “Governmental
      Authority”
means
      any Federal, state, local or foreign court or governmental agency, authority,
      instrumentality or regulatory body.

    


    “Guarantor”
means
      each of the Persons identified as a “Guarantor” on the signature pages hereto
      and each Additional Credit Party which may hereafter execute a Joinder
      Agreement, together with their successors and permitted assigns, and
“Guarantor”
means
      any one of them.

    


    “Guaranty
      Obligations”
means,
      with respect to any Person, without duplication, any obligations of such Person
      (other than endorsements in the ordinary course of business of negotiable
      instruments for deposit or collection) guaranteeing or intended to guarantee
      any
      Indebtedness of any other Person in any manner, whether direct or indirect,
      and
      including without limitation any obligation, whether or not contingent,
      (a) to purchase any such Indebtedness or any Property constituting security
      therefor, (b) to advance or provide funds or other support for the payment
      or purchase of any such Indebtedness or to maintain working capital, solvency
      or
      other balance sheet condition of such other Person (including without limitation
      keep well agreements, maintenance agreements, comfort letters or similar
      agreements or arrangements) for the benefit of any holder of Indebtedness of
      such other Person, (c) to lease or purchase Property, securities or
      services primarily for the purpose of assuring the holder of such Indebtedness,
      or (d) to otherwise assure or hold harmless the holder of such Indebtedness
      against loss in respect thereof. The amount of any Guaranty Obligation hereunder
      shall (subject to any limitations set forth therein) be deemed to be an amount
      equal to the outstanding principal amount (or maximum principal amount, if
      larger) of the Indebtedness in respect of which such Guaranty Obligation is
      made.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    “Hedging
      Agreements”
means
      any interest rate protection agreement or foreign currency exchange agreement
      between any Consolidated Party and any Lender, or any Affiliate of a
      Lender.

    


    “Indebtedness”
means,
      with respect to any Person, without duplication, (a)
      all
      obligations of such Person for borrowed money, (b)
      all
      obligations of such Person evidenced by bonds, debentures, notes or similar
      instruments, or upon which interest payments are customarily made, (c)
      all
      obligations of such Person under conditional sale or other title retention
      agreements relating to Property purchased by such Person (other than customary
      reservations or retentions of title under agreements with suppliers entered
      into
      in the ordinary course of business), (d)
      all
      obligations of such Person issued or assumed as the deferred purchase price
      of
      Property or services purchased by such Person (other than trade debt incurred
      in
      the ordinary course of business and due within six months of the incurrence
      thereof) which would appear as liabilities on a balance sheet of such Person,
      (e)
      all
      obligations of such Person under take-or-pay or similar arrangements or under
      commodities agreements, (f)
      all
      Indebtedness of others secured by (or for which the holder of such Indebtedness
      has an existing right, contingent or otherwise, to be secured by) any Lien
      on,
      or payable out of the proceeds of production from, Property owned or acquired
      by
      such Person, whether or not the obligations secured thereby have been assumed,
      (g)
      all
      Guaranty Obligations of such Person, (h)
      the
      principal portion of all obligations of such Person under Capital Leases,
      (i)
      all
      obligations of such Person under Hedging Agreements, (j)
      the
      maximum amount of all standby letters of credit issued or bankers’ acceptances
      facilities created for the account of such Person and, without duplication,
      all
      drafts drawn thereunder (to the extent unreimbursed), (k)
      (i) all
      preferred Capital Stock issued by such Person and required by the terms thereof
      to be redeemed in cash prior to or within ninety (90) days after the Maturity
      Date, or for which mandatory sinking fund payments are due, and (ii) all accrued
      but unpaid dividends, and (l)
      all
      Off-Balance Sheet Lease Obligations.

    


    “Interest
      Payment Date”
means
      (a) as to Base Rate Loans, the last day of each calendar quarter and the
      Maturity Date, (b) as to Eurodollar Loans, the last day of each calendar
      quarter and the Maturity Date and (c) as to Eurodollar Market Index Rate Loans,
      the last day of each calendar quarter.

    


    “Interest
      Period”
means,
      as to Eurodollar Loans, a period of one, two or three months’ duration, as the
      Borrower may elect, commencing, in each case, on the date of the borrowing
      (including continuations and conversions thereof); provided,
      however,
      (a) if any Interest Period would end on a day which is not a Business Day,
      such Interest Period shall be extended to the next succeeding Business Day
      (except that where the next succeeding Business Day falls in the next succeeding
      calendar month, then on the next preceding Business Day), (b) no Interest
      Period shall extend beyond the Maturity Date, and (c) where an Interest
      Period begins on a day for which there is no numerically corresponding day
      in
      the calendar month in which the Interest Period is to end, such Interest Period
      shall end on the last Business Day of such calendar month.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    “Investment”
in
      any
      Person means (a) the acquisition (whether for cash, property, services,
      assumption of Indebtedness, securities or otherwise) of assets (excluding goods
      and inventory used or sold in the ordinary course of business), shares of
      Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
      ownership interests or other securities of such other Person or (b) any
      deposit with, or advance, loan or other extension of credit to, such Person
      (other than deposits made in connection with the purchase of equipment or other
      assets in the ordinary course of business) or (c) any other capital contribution
      to or investment in such Person, including, without limitation, any Guaranty
      Obligations (including any support for a letter of credit issued on behalf
      of
      such Person) incurred for the benefit of such Person, but excluding any
      Restricted Payment to such Person.

    


    “Issuing
      Lender”
means
      Wachovia.

    


    “Issuing
      Lender Fees”
shall
      have the meaning assigned to such term in Section 3.5(b)(iii).

    


    “Joinder
      Agreement”
means
      a
      Joinder Agreement substantially in the form of Exhibit 7.12
      hereto,
      executed and delivered by an Additional Credit Party in accordance with the
      provisions of Section 7.12.

    


    “Lender”
means
      any of the Persons identified as a “Lender” on the signature pages hereto, and
      any Person which may become a Lender by way of assignment in accordance with
      the
      terms hereof, together with their successors and permitted assigns.

    


    “Letter
      of Credit”
means
      any letter of credit issued by the Issuing Lender for the account of any Credit
      Party in accordance with the terms of Section 2.3.

    


    “Leverage
      Ratio”
means,
      as of the end of each fiscal quarter of the Consolidated Parties for the four
      fiscal quarter period ending on such date, with respect to the Consolidated
      Parties on a consolidated basis, the ratio of (a) Consolidated Adjusted
      Debt to (b) Consolidated EBITDAR for such period. 

    


    “Lien”
means
      any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
      interest, encumbrance, lien (statutory or otherwise), preference, priority
      or
      charge of any kind (including any agreement to give any of the foregoing, any
      conditional sale or other title retention agreement, any financing or similar
      statement or notice filed under the Uniform Commercial Code as adopted and
      in
      effect in the relevant jurisdiction or other similar recording or notice
      statute, and any lease in the nature thereof).

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    “Loan”
or
      “Loans”
means
      the Revolving Loans (or a portion of any Revolving Loan bearing interest at
      the
      Adjusted Base Rate or the Adjusted Eurodollar Rate), individually or
      collectively, as appropriate.

    


    “LOC
      Commitment”
means
      the commitment of the Issuing Lender to issue Letters of Credit in an aggregate
      face amount at any time outstanding (together with the amounts of any
      unreimbursed drawings thereon) of up to the LOC Committed Amount.

    


    “LOC
      Committed Amount”
shall
      have the meaning assigned to such term in Section 2.3.

    


    “LOC
      Documents”
means,
      with respect to any Letter of Credit, such Letter of Credit, any amendments
      thereto, any documents delivered in connection therewith, any application
      therefor, and any agreements, instruments, guarantees or other documents
      (whether general in application or applicable only to such Letter of Credit)
      governing or providing for (a) the rights and obligations of the parties
      concerned or at risk or (b) any collateral security for such
      obligations.

    


    “LOC
      Obligations”
means,
      at any time, the sum of (a) the maximum amount which is, or at any time
      thereafter may become, available to be drawn under Letters of Credit then
      outstanding, assuming compliance with all requirements for drawings referred
      to
      in such Letters of Credit plus
      (b) the aggregate amount of all drawings under Letters of Credit honored by
      the Issuing Lender but not theretofore reimbursed by the Borrower.

    


    “London
      Interbank Offered Rate”
shall
      mean, with respect to any Eurodollar Loan for the Interest Period applicable
      thereto, the rate of interest per annum (rounded upwards, if necessary, to
      the
      nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page)
      as
      the London interbank offered rate for deposits in Dollars at approximately
      11:00 A.M. (London time) two (2) Business Days prior to the first day
      of such Interest Period for a term comparable to such Interest Period;
provided,
      however,
      if more
      than one rate is specified on Telerate Page 3750, the applicable rate shall
      be the arithmetic mean of all such rates. If, for any reason, such rate is
      not
      available, the term “London
      Interbank Offered Rate”
shall
      mean, with respect to any Eurodollar Loan for the Interest Period applicable
      thereto, the rate of interest per annum (rounded upwards, if necessary, to
      the
      nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
      interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
      (London time) two (2) Business Days prior to the first day of such Interest
      Period for a term comparable to such Interest Period; provided,
      however,
      if more
      than one rate is specified on Reuters Screen LIBO Page, the applicable rate
      shall be the arithmetic mean of all such rates. 

    


    “Material
      Adverse Effect”
means
      a
      material adverse effect on (a) the condition (financial or otherwise),
      operations, business, assets, liabilities or prospects of any Consolidated
      Party, (b) the ability of any Credit Party to perform any material
      obligation under the Credit Documents to which it is a party or (c) the
      material rights and remedies of the Lenders under the Credit
      Documents.

    


    “Materials
      of Environmental Concern”
means
      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 Laws, including,
      without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
      insulation.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    “Maturity
      Date”
means
      the date which is five years following the Closing Date.

    


    “Moody’s”
means
      Moody’s Investors Service, Inc., or any successor or assignee of the business of
      such company in the business of rating securities.

    


    “Multiemployer
      Plan”
means
      a
      Plan which is a multiemployer plan as defined in Sections 3(37) or
      4001(a)(3) of ERISA.

    


    “Multiple
      Employer Plan”
means
      a
      Plan which any Consolidated Party or any ERISA Affiliate and at least one
      employer other than the Consolidated Parties or any ERISA Affiliate are
      contributing sponsors.

    


    “Net
      Cash Proceeds”
means
      the aggregate cash proceeds received by the Consolidated Parties in respect
      of
      any Asset Disposition, net of (a) direct costs (including, without
      limitation, legal, accounting and investment banking fees, and sales
      commissions), (b) taxes paid or payable as a result thereof; it being
      understood that “Net Cash Proceeds” shall include, without limitation, any cash
      received upon the sale or other disposition of any non-cash consideration
      received by the Consolidated Parties in any Asset Disposition, and (c) in
      the case of an Asset Disposition only, any amounts payable in respect of
      Indebtedness which is secured by, or otherwise related to, any Property which
      is
      the subject thereof to the extent such Indebtedness and any payments in respect
      thereof are paid with a portion of the proceeds therefrom.

    


    “Non-Sweep
      Revolving Commitment”
means,
      with respect to each Lender, the commitment of such Lender in an aggregate
      principal amount at any time outstanding of up to such Lender’s Revolving
      Commitment Percentage of the Non-Sweep Revolving Committed Amount, (a) to
      make Non-Sweep Revolving Loans in accordance with the provisions of
      Section 2.2 and (b) to purchase Participation Interests in Letters of
      Credit in accordance with the provisions of Section 2.3(c).

    


    “Non-Sweep
      Revolving Committed Amount”
shall
      have the meaning assigned to such term in Section 2.2(a).

    


    “Non-Sweep
      Revolving Loans”
shall
      have the meaning assigned to such term in Section 2.2(a).

    


    “Note”
or
      “Notes”
means
      the Revolving Notes, individually or collectively, as appropriate.

    


    “Notice
      of Borrowing”
means
      a
      written notice of borrowing in substantially the form of Exhibit 2.1(b)(i),
      as
      required by Section 2.1, or Section 2.2.

    


    “Notice
      of Extension/Conversion”
means
      the written notice of extension or conversion in substantially the form of
      Exhibit 3.2,
      as
      required by Section 3.2.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    “OFAC”
shall
      mean the U.S. Department of the Treasury’s Office of Foreign Assets
      Control.

    


    “Off-Balance
      Sheet Lease Obligations”
shall
      mean all indebtedness in respect of any synthetic lease, end loaded lease
      financing, tax retention operating lease, off-balance sheet loan or similar
      off-balance sheet financing product to which such Person is a
      party.

    


    “Operating
      Lease”
means,
      as applied to any Person, any lease (including, without limitation, leases
      which
      may be terminated by the lessee at any time) of any Property (whether real,
      personal or mixed) which is not a Capital Lease other than any such lease in
      which that Person is the lessor.

    


    “Other
      Taxes”
means
      such term as is defined in Section 3.11.

    


    “Participant”
means
      any Person who purchases a participation from a Lender (other than a natural
      person or the Borrower or any of the Borrower’s Affiliates or
      Subsidiaries).

    


    “Participation
      Interest”
means
      a
      purchase by a Lender of a participation in Letters of Credit or LOC Obligations
      as provided in Section 2.3 or in any Loans as provided in
      Section 3.14.

    


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

    


    “PBGC”
means
      the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
      of
      Title IV of ERISA and any successor thereof.

    


    “Permitted
      Acquisition”
shall
      mean an acquisition or any series of related acquisitions by a Credit Party
      of
      (a)
      all or
      substantially all of the assets or a majority of the outstanding Voting Stock
      or
      economic interests of a Person that is incorporated, formed or organized in
      the
      United States, (b)
      a
      Person that is incorporated, formed or organized in the United States by a
      merger, amalgamation or consolidation or any other combination with such Person
      or (c) any division, line of business or other business unit of a Person
      that is incorporated, formed or organized in the United States (such Person
      or
      such division, line of business or other business unit of such Person shall
      be
      referred to herein as the “Target”),
      in
      each case that is a type of business (or assets used in a type of business)
      permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant
      to Section 8.3, in each case so long as:

    


    (i)
      no
      Default or Event of Default shall then exist or would exist after giving effect
      thereto;

    


    (ii)
      the
      Credit Parties shall demonstrate to the reasonable satisfaction of the
      Administrative Agent that, after giving effect to the acquisition on a pro
      forma
      basis the Credit Parties are in compliance with each of the financial covenants
      set forth in Section 7.11;

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    (iii)
      the
      Administrative Agent shall have received (or shall receive in connection with
      the closing of such acquisition) a first priority perfected security interest
      in
      all property (including, without limitation, Capital Stock) acquired with
      respect to the Target in accordance with the terms of Sections 7.12 and 7.13
      and
      the Target, if a Person, shall have executed a Joinder Agreement in accordance
      with the terms of Section 7.12;

    


    (iv)
      the
      Administrative Agent and the Lenders shall have received (A)
      a
      description of the material terms of such acquisition, (B)
      audited
      financial statements (or, if unavailable, management-prepared financial
      statements) of the Target for its two most recent fiscal years and for any
      fiscal quarters ended within the fiscal year to date, and (C)
      Consolidated projected income statements of the Borrower and its Consolidated
      Subsidiaries (giving effect to such acquisition);

    


    (v) the
      Target shall have earnings before interest, taxes, depreciation and amortization
      for the four fiscal quarter period prior to the acquisition date in an amount
      greater than $0;

    


    (vi)
      such
      acquisition shall not be a “hostile” acquisition and shall have been approved by
      the Board of Directors (or equivalent) and/or shareholders (or equivalent)
      of
      the applicable Credit Party and the Target; and 

    


    (vii)
      the
      aggregate consideration (including without limitation earn outs or deferred
      compensation or non-competition arrangements and the amount of Indebtedness
      and
      other liabilities assumed by the Borrower and its Subsidiaries but excluding
      equity consideration) paid by the Borrower and its Subsidiaries for all
      acquisitions made during any consecutive twenty-four month period shall not
      exceed $15,000,000.

    


    “Permitted
      Investments”
shall
      mean:

    


    (a)          
      cash
      and
      Cash Equivalents;

    


    (b)          
      Investments
      set forth on Schedule
      1.1A;

    


    (c)          
      receivables
      owing to any Consolidated Party or any of their Subsidiaries or any receivables
      and advances to suppliers, in each case if created, acquired or made in the
      ordinary course of business and payable or dischargeable in accordance with
      customary trade terms;

    


    (d)          
      Investments
      in and loans to any Credit Party;

    


    (e)          
      loans
      and
      advances to non-officer employees in an aggregate amount not to exceed $50,000
      at any time outstanding; 

    


    (f)          
      Investments
      (including debt obligations) received in connection with the bankruptcy or
      reorganization of suppliers and customers and in settlement of delinquent
      obligations of, and other disputes with, customers and suppliers arising in
      the
      ordinary course of business;

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    (g)          
      Permitted
      Acquisitions;

    


    (h)          
      equity
      securities listed on any national securities exchange located in the United
      States or quoted on the NASDAQ National Market, provided
      that
      (i) the long-term credit rating of the corporation issuing such securities
      shall be A- (or the equivalent thereof) or better from S&P or A3 (or the
      equivalent thereof) or better from Moody’s and (ii) the purchase price paid
      for all such equity securities held at any time shall not exceed $500,000;
      and

    


    (i)           
      Hedging
      Agreements to the extent permitted hereunder.

    


    “Permitted
      Liens”
      means:

    


    (a)          
      Liens
      in
      favor of the Agent to secure the Credit Party Obligations;

    


    (b)         
      Liens
      (other than Liens created or imposed under ERISA) for taxes, assessments or
      governmental charges or levies not yet due or Liens for taxes being contested
      in
      good faith by appropriate proceedings for which adequate reserves determined
      in
      accordance with GAAP have been established (and as to which the Property subject
      to any such Lien is not yet subject to foreclosure, sale or loss on account
      thereof);

    


    (c)          
      statutory
      Liens of landlords and Liens of carriers, warehousemen, mechanics, general
      contractors, sub-contractors, materialmen and suppliers and other Liens imposed
      by law or pursuant to customary reservations or retentions of title arising
      in
      the ordinary course of business, provided
      that
      such Liens secure only amounts not yet due and payable or, if due and payable,
      are unfiled and no other action has been taken to enforce the same or are being
      contested in good faith by appropriate proceedings for which adequate reserves
      determined in accordance with GAAP have been established (and as to which the
      Property subject to any such Lien is not yet subject to foreclosure, sale or
      loss on account thereof);

    


    (d)          
      Liens
      (other than Liens created or imposed under ERISA) incurred or deposits made
      by
      any Consolidated Party in the ordinary course of business in connection with
      workers’ compensation, unemployment insurance and other types of social
      security, or to secure the performance of tenders, statutory obligations, bids,
      leases, government contracts, performance and return-of-money bonds and other
      similar obligations (exclusive of obligations for the payment of borrowed
      money);

    


    (e)          
      Liens
      in
      connection with attachments or judgments (including judgment or appeal bonds)
      provided
      that no
      Event of Default shall have occurred hereunder, and provided,
      further,
      that
      the judgments secured shall, within sixty (60) days after the entry thereof,
      have been discharged or execution thereof stayed pending appeal, or shall have
      been discharged within sixty (60) days after the expiration of any such
      stay;

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    (f)          
      easements,
      rights-of-way, restrictions (including zoning restrictions), minor defects
      or
      irregularities in title and other similar charges or encumbrances not, in any
      material respect, impairing the use of the encumbered Property for its intended
      purposes;

    


    (g)          
      Liens
      on
      Property securing purchase money Indebtedness (including Capital Leases) to
      the
      extent permitted under Section 8.1(c) and (f), provided
      that any
      such Lien attaches to such Property concurrently with or within thirty (30)
      days after the acquisition thereof;

    


    (h)         
      any
      interest of title of a lessor under, and Liens arising from UCC financing
      statements (or equivalent filings, registrations or agreements in foreign
      jurisdictions) relating to, leases permitted by this Credit
      Agreement;

    


    (i)      
           normal
      and customary rights of setoff upon deposits of cash in favor of banks or other
      depository institutions provided,
      that no
      Event of Default shall have occurred hereunder;

    


    (j)        
         Liens
      existing as of the Closing Date and set forth on Schedule 1.1B;
      provided
      that
      (i) no such Lien shall at any time be extended to or cover any Property
      other than the Property subject thereto on the Closing Date and (ii) the
      principal amount of the Indebtedness secured by such Liens shall not be
      extended, renewed, refunded or refinanced; and

    


    (k)          
      additional Liens securing Indebtedness permitted under Section 8.1 not to exceed
      $100,000 individually and $200,000 in the aggregate.

    


    “Permitted
      Preferred Stock”
means
      the 800,000 shares of the Borrower’s Series B convertible, redeemable preferred
      stock issued by the Borrower on or about July 1, 2004 pursuant to the
      Certificate of Designations and the Stock Purchase Agreement, including the
      PIK
      Shares (as defined in the Stock Purchase Agreement) and all other shares of
      the
      Borrower’s Series B convertible, redeemable preferred stock issuable under the
      Certificate of Designations and the Stock Purchase Agreement. 

    


    “Person”
means
      any individual, partnership, joint venture, firm, corporation, limited liability
      company, association, trust or other enterprise (whether or not incorporated)
      or
      any Governmental Authority.

    


    “Plan”
means
      any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered
      by ERISA and with respect to which any Consolidated Party or any ERISA Affiliate
      is (or, if such plan were terminated at such time, would under Section 4069
      of ERISA be deemed to be) an “employer” within the meaning of Section 3(5)
      of ERISA.

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    “Pledge
      Agreement”
means
      the pledge agreement dated as of the Closing Date in the form of Exhibit 1.1A
      to be
      executed in favor of the Agent by each of the Credit Parties, as amended,
      modified, restated or supplemented from time to time.

    


    “Prime
      Rate”
means
      the per annum rate of interest established from time to time by Wachovia as
      its
      prime rate, which rate may not be the lowest rate of interest charged by
      Wachovia to its customers.

     

    “Principal
      Office”
means
      the principal office of Wachovia, presently located at Charlotte, North
      Carolina.

    


    “Property”
means
      any interest in any kind of property or asset, whether real, personal or mixed,
      or tangible or intangible.

    


    “Register”
shall
      have the meaning given such term in Section 11.3(c).

    


    “Regulation
      T, U, or X”
means
      T, U or X, respectively, of the Board of Governors of the Federal Reserve System
      as from time to time in effect and any successor to all or a portion
      thereof.

    


    “Release”
means
      any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
      injecting, escaping, leaching, dumping or disposing into the environment
      (including the abandonment or discarding of barrels, containers and other closed
      receptacles containing any Materials of Environmental Concern).

    


    “Reportable
      Event”
means
      any of the events set forth in Section 4043(c) of ERISA, other than those
      events as to which the notice requirement has been waived by
      regulation.

    


    “Required
      Lenders”
means,
      at any time, Lenders which are then in compliance with their obligations
      hereunder (as determined by the Agent) and holding in the aggregate at least
      51%
      of (a) the Revolving Commitments (and Participation Interests therein) or
      (b) if the Commitments have been terminated, the outstanding Loans and
      Participation Interests (including the Participation Interests of the Issuing
      Lender in any Letters of Credit).

    


    “Requirement
      of Law”
means,
      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
      material property is subject.

    


    “Responsible
      Officer”
means
      either the president, chief executive officer or chief financial officer of
      the
      Borrower.

    


    “Restricted
      Payment”
means
      (a) any dividend or other distribution, direct or indirect, on account of
      any shares of any class of Capital Stock of any Consolidated Party, now or
      hereafter outstanding, (b) any redemption, retirement, sinking fund or
      similar payment, purchase or other acquisition for value, direct or indirect,
      of
      any shares of any class of Capital Stock of any Consolidated Party, now or
      hereafter outstanding and (c) any payment made to retire, or to obtain the
      surrender of, any outstanding warrants, options or other rights to acquire
      shares of any class of Capital Stock of any Consolidated Party, now or hereafter
      outstanding.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    “Revolving
      Commitment”
means,
      with respect to each Lender, its Sweep Plus Revolving Commitment and its
      Non-Sweep Revolving Commitment.

    


    “Revolving
      Commitment Percentage”
means,
      for any Lender, the percentage identified as its Revolving Commitment Percentage
      on Schedule 2.1(a),
      as such
      percentage may be modified in connection with any assignment made in accordance
      with the provisions of Section 11.3.

    


    “Revolving
      Committed Amount”
shall
      mean the Sweep Plus Revolving Committed Amount and the Non-Sweep Revolving
      Committed Amount.

    


    “Revolving
      Loans”
shall
      mean the Sweep Plus Revolving Loans and/or the Non-Sweep Revolving Loans, as
      applicable.

    


    “Revolving
      Note”
or
      “Revolving
      Notes”
means
      the promissory notes of the Borrower in favor of each of the Lenders evidencing
      the Revolving Loans provided pursuant to Section 2.1 and Section 2.2,
      individually or collectively, as appropriate, as such promissory notes may
      be
      amended, modified, restated, supplemented, extended, renewed or replaced from
      time to time.

    


    “S&P”
means
      Standard & Poor’s Ratings Group, a division of The McGraw Hill, Inc., or any
      successor or assignee of the business of such division in the business of rating
      securities.

    


    “Sale
      and Leaseback Transaction”
means
      any direct or indirect arrangement with any Person or to which any such Person
      is a party, providing for the leasing to any Consolidated Party of any Property,
      whether owned by such Consolidated Party as of the Closing Date or later
      acquired, which has been or is to be sold or transferred by such Consolidated
      Party to such Person or to any other Person from whom funds have been, or are
      to
      be, advanced by such Person on the security of such Property.

    


    “Sanctioned
      Country”
shall
      mean a country subject to a sanctions program identified on the list maintained
      by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html,
      or as
      otherwise published from time to time.

     

    “Sanctioned
      Person”
shall
      mean (a)
      a
      Person named on the list of “Specially Designated Nationals and Blocked Persons”
maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html,
      or as
      otherwise published from time to time, or (b)
      (i)
      an
      agency of the government of a Sanctioned Country, (ii)
      an
      organization controlled by a Sanctioned Country, or (iii)
      a
      person resident in a Sanctioned Country, to the extent subject to a sanctions
      program administered by OFAC.

    


    “SEC”
shall
      mean the Securities Exchange Commission.

     

    
      
        
        

      

      
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    “Security
      Agreement”
means
      the security agreement dated as of the Closing Date in the form of Exhibit 1.1B
      to be
      executed in favor of the Agent by each of the Credit Parties, as amended,
      modified, restated or supplemented from time to time.

    


    “Services
      Agreement”
shall
      mean the Wachovia Sweep Plus Loan Service Agreement, by and among the Borrower
      and Wachovia, as the same may be amended or modified from time to
      time.

    


    “Single
      Employer Plan”
means
      any Plan which is covered by Title IV of ERISA, but which is not a
      Multiemployer Plan or a Multiple Employer Plan.

    


    “Solvent”
or
      “Solvency”
means,
      with respect to any Person as of a particular date, that on such date
      (a) such Person is able to realize upon its assets and pay its debts and
      other liabilities, contingent obligations and other commitments as they mature
      in the normal course of business, (b) such Person does not intend to, and
      does not believe that it will, incur debts or liabilities beyond such Person’s
      ability to pay as such debts and liabilities mature in their ordinary course,
      (c) such Person is not engaged in a business or a transaction, and is not
      about to engage in a business or a transaction, for which such Person’s Property
      would constitute unreasonably small capital after giving due consideration
      to
      the prevailing practice in the industry in which such Person is engaged or
      is to
      engage, (d) the fair value of the Property of such Person is greater than
      the total amount of liabilities, including, without limitation, contingent
      liabilities, of such Person and (e) the present fair salable value of the
      assets of such Person is not less than the amount that will be required to
      pay
      the probable liability of such Person on its debts as they become absolute
      and
      matured. In computing the amount of contingent liabilities at any time, it
      is
      intended that such liabilities will be computed at the amount which, in light
      of
      all the facts and circumstances existing at such time, represents the amount
      that can reasonably be expected to become an actual or matured
      liability.

    


    “Standby
      Letter of Credit Fee”
shall
      have the meaning assigned to such term in Section 3.5(b)(i).

    


    “Stock
      Purchase Agreement”
means
      the Preferred Stock Purchase Agreement dated June 8, 2004 between the Borrower
      and BFC Financial Corporation. 

    


    “Subsidiary”
means,
      as to any Person, (a) any corporation more than 50% of whose Capital Stock
      of any class or classes having by the terms thereof ordinary voting power to
      elect a majority of the directors of such corporation (irrespective of whether
      or not at the time, any class or classes of such corporation shall have or
      might
      have voting power by reason of the happening of any contingency) is at the
      time
      owned by such Person directly or indirectly through Subsidiaries, and
      (b) any partnership, association, joint venture or other entity in which
      such Person directly or indirectly through Subsidiaries has more than 50% equity
      interest at any time.

    


    “Sweep
      Plus Revolving Commitment”
means,
      with respect to each Lender, the commitment of such Lender in an aggregate
      principal amount at any time outstanding of up to such Lender’s Revolving
      Commitment Percentage of the Sweep Plus Revolving Committed Amount to make
      Sweep
      Plus Revolving Loans in accordance with the provisions of
      Section 2.1.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    “Sweep
      Plus Revolving Committed Amount”
shall
      mean an aggregate amount not to exceed $75,000,000 less outstanding Non-Sweep
      Revolving Loans less outstanding LOC Obligations. 

    


    “Sweep
      Plus Revolving Loans”
shall
      mean those certain revolving credit loans requested by the Borrower in Dollars
      made pursuant to the Services Agreement.

    


    “Taxes”
means
      such term as is defined in Section 3.11.

    


    “Trade
      Letter of Credit Fee”
shall
      have the meaning assigned to such term in Section 3.5(b)(ii).

    


    “Voting
      Stock”
means,
      with respect to any Person, Capital Stock issued by such Person the holders
      of
      which are ordinarily, in the absence of contingencies, entitled to vote for
      the
      election of directors (or persons performing similar functions) of such Person,
      even though the right so to vote has been suspended by the happening of such
      a
      contingency.

    


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

    


    “Wholly
      Owned Subsidiary”
of
      any
      Person means any Subsidiary 100% of whose Voting Stock or other equity interests
      is at the time owned by such Person directly or indirectly through other Wholly
      Owned Subsidiaries.

    


    1.2        
       Computation
      of Time Periods.

    


    For
      purposes of computation of periods of time hereunder, the word “from” means
“from and including” and the words “to” and “until” each mean “to but
      excluding.”

    


    1.3       
        Accounting
      Terms.

    


    Except
      as
      otherwise expressly provided herein, all accounting terms used herein shall
      be
      interpreted, and all financial statements and certificates and reports as to
      financial matters required to be delivered to the Lenders hereunder shall be
      prepared, in accordance with GAAP applied on a consistent basis. All
      calculations made for the purposes of determining compliance with this Credit
      Agreement shall (except as otherwise expressly provided herein) be made by
      application of GAAP applied on a basis consistent with the most recent annual
      or
      quarterly financial statements delivered pursuant to Section 7.1;
provided,
      however,
      if
      (a) the Borrower shall object to determining such compliance on such basis
      at the time of delivery of such financial statements due to any change in GAAP
      or the rules promulgated with respect thereto or (b) the Agent or the
      Required Lenders shall so object in writing within sixty (60) days after
      delivery of such financial statements, then such calculations shall be made
      on a
      basis consistent with the most recent financial statements delivered by the
      Borrower to the Lenders as to which no such objection shall have been
      made.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    1.4   
            Execution
      of Documents.

    


    Unless
      otherwise specified, all Credit Documents and all other certificates executed
      in
      connection therewith must be signed by a Responsible Officer.

     

    SECTION
      2

    


    CREDIT
      FACILITIES

    


    2.1   
            Sweep
      Plus Revolving Loans.

    


    (a)      
           Sweep
      Plus Revolving Borrowings.

    


    (i)          
      The
      Agent
      shall calculate the daily net cash position (the “Net
      Cash Position”)
      in the
      Borrower’s Checking Account, which is calculated by using the opening balance of
      available funds in the Checking Account, plus any deposits of collected funds
      posted to the Checking Account, minus (A) the daily posting of debits and
      account holds placed against the Checking Account by the Agent and (B) any
      loan
      floor which has been established by the Agent to cover returns, overdrafts,
      unpaid fees and charges assessed by the Agent.

    


    (ii)          
      In
      the
      event the Net Cash Position calculated above is a deficit on any Business Day,
      the Agent will extend a Sweep Plus Revolving Loan to the Borrower’s Checking
      Account on such Business Day in the amount of such deficit; provided,
      however,
      no
      borrowing when taken together with all other outstanding borrowings shall exceed
      the Sweep Plus Revolving Committed Amount. Sweep Plus Revolving Loans are hereby
      authorized to be made automatically by the Agent on a daily basis, without
      requiring the Borrower to provide a Notice of Borrowing. No Sweep Plus Revolving
      Loan shall be required to be made if the Borrower is in material default under
      the Services Agreement or if a Default or Event of Default hereunder has
      occurred and remains outstanding.

    


    (iii)          
      The
      Agent
      may debit the Checking Account and/or make Sweep Plus Revolving Loans to the
      Borrower and apply such amounts to the payment of interest on Sweep Plus
      Revolving Loans made hereunder or fees described in Section 3.5 hereunder and
      the Agent is hereby irrevocably authorized to do so without the consent of
      or
      notice to the Borrower. The Services Agreement shall control the manner in
      which
      funds are transferred between the Checking Account and the Sweep Plus Revolving
      Loans for credit or debit to the Sweep Plus Revolving Loans. In the event of
      an
      amendment, modification or termination of the Services Agreement, such
      amendment, modification or termination may be effected by a separate agreement
      without the necessity of amending this Credit Agreement.

     

    
      
        
        

      

      
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    (iv)          
      All
      Sweep
      Plus Revolving Loans extended to the Borrower pursuant to the Services Agreement
      shall be made to the Checking Account. The Borrower shall pay all of the Agent’s
      standard fees and charges in connection with the Checking Account and the
      Services Agreement, as such fees and charges may change from time to time.
      The
      Borrower hereby grants to the Agent, on behalf of itself and the other Lenders,
      a security interest in, right of set-off against and lien upon all items and
      balances held in the Checking Account as collateral for the Credit Party
      Obligations. 

    


    (b)          
      Repayment
      of Sweep Plus Revolving Loans.
      In the
      event that the Sweep Plus Revolving Loans are outstanding and the Net Cash
      Position is a surplus on any Business Day, the Agent shall, in accordance with
      the Services Agreement, automatically debit the Checking Account on such
      Business Day in an amount equal to the lesser of such surplus and the principal
      amount of Sweep Plus Revolving Loans outstanding. Each Sweep Plus Revolving
      Loan
      borrowing shall be due and payable on the Maturity Date.  

    


    (c)          
      Interest.
      Subject
      to the provisions of Section 3.1,

    


    (i)          
      Base
      Rate Loans.
      During
      such periods as Revolving Loans shall be comprised in whole or in part of Base
      Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal
      to the Adjusted Base Rate.

    


    (ii)          
      Eurodollar
      Market Index Rate Loans.
      During
      such periods as Revolving Loans shall be comprised in whole or in part of
      Eurodollar Market Index Rate Loans, such Eurodollar Market Index Rate Loans
      shall bear interest at a per annum rate equal to the Adjusted Eurodollar Market
      Index Rate.

    


    Interest
      on Revolving Loans shall be payable in arrears on each applicable Interest
      Payment Date (or at such other times as may be specified herein).

    


    (d)          
      Sweep
      Plus Revolving Notes.
      The
      Sweep Plus Revolving Loans made by the Agent shall be evidenced by a duly
      executed promissory note of the Borrower to the Agent in an original principal
      amount equal to the Sweep Plus Revolving Committed Amount and in substantially
      the form of Exhibit 2.1(d).

    


    2.2      
         Non-Sweep
      Revolving Loans.

    


    (a)          
      Non-Sweep
      Revolving Commitment.
      Subject
      to the terms and conditions hereof and in reliance upon the representations
      and
      warranties set forth herein, each Lender severally agrees to make available
      to
      the Borrower such Lender’s Revolving Commitment Percentage of revolving credit
      loans requested by the Borrower in Dollars (“Non-Sweep
      Revolving Loans”)
      from
      time to time from the Closing Date until the Maturity Date, or such earlier
      date
      as the Non-Sweep Revolving Commitments shall have been terminated as provided
      herein for the purposes hereinafter set forth; provided,
      however,
      that
      the sum of the aggregate principal amount of outstanding Non-Sweep Revolving
      Loans shall not exceed FIFTEEN
      MILLION DOLLARS ($15,000,000)
      (as such
      aggregate maximum amount may be reduced from time to time as provided in
      Section 3.4, the “Non-Sweep
      Revolving Committed Amount”);
      provided,
      further,
      (A) with regard to each Lender individually, such Lender’s outstanding
      Non-Sweep Revolving Loans shall not exceed such Lender’s Revolving Commitment
      Percentage of the Non-Sweep Revolving Committed Amount, (B) the aggregate
      principal amount of outstanding Revolving Loans plus
      LOC
      Obligations outstanding shall not exceed the Revolving Committed Amount, and
      (C)
      with regard to each Lender individually, such Lender’s outstanding Sweep Plus
      Revolving Loans shall not exceed such Lender’s Revolving Commitment Percentage
      of the Sweep Plus Revolving Committed Amount. Non-Sweep Revolving Loans may
      consist of Base Rate Loans, Eurodollar Loans, Eurodollar Market Index Rate
      Loans, or a combination thereof, as the Borrower may request, and may be repaid
      and reborrowed in accordance with the provisions hereof; provided,
      however,
      that no
      more than 5 Eurodollar Loans shall be outstanding hereunder at any time. For
      purposes hereof, Eurodollar Loans with different Interest Periods shall be
      considered as separate Eurodollar Loans, even if they begin on the same date,
      although borrowings, extensions and conversions may, in accordance with the
      provisions hereof, be combined at the end of existing Interest Periods to
      constitute a new Eurodollar Loan with a single Interest Period. Non-Sweep
      Revolving Loans hereunder may be repaid and reborrowed in accordance with the
      provisions hereof.

     

    
      
        
        

      

      
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    (b)          
      Non-Sweep
      Revolving Loan Borrowings.

    


    (i)          
      Notice
      of Borrowing.
      The
      Borrower shall request a Non-Sweep Revolving Loan borrowing by written notice
      (or telephonic notice promptly confirmed in writing) to the Agent not later
      than
      11:00 A.M. (Charlotte, North Carolina time) on the Business Day prior to
      the date of the requested borrowing in the case of Base Rate Loans, and on
      the
      third Business Day prior to the date of the requested borrowing in the case
      of
      Eurodollar Loans or Eurodollar Market Index Rate Loans. Each such request for
      borrowing shall be irrevocable and shall specify (A) that a Non-Sweep
      Revolving Loan is requested, (B) the date of the requested borrowing (which
      shall be a Business Day), (C) the aggregate principal amount to be
      borrowed, and (D) whether the borrowing shall be comprised of Base Rate
      Loans, Eurodollar Loans, Eurodollar Market Index Rate Loans or a combination
      thereof, and if Eurodollar Loans are requested, the Interest Period(s) therefor.
      If the Borrower shall fail to specify in any such Notice of Borrowing
      (I) an applicable Interest Period in the case of a Eurodollar Loan, then
      such notice shall be deemed to be a request for an Interest Period of one month,
      or (II) the type of Non-Sweep Revolving Loan requested, then such notice
      shall be deemed to be a request for a Base Rate Loan hereunder. The Agent shall
      give notice to each affected Lender promptly upon receipt of each Notice of
      Borrowing pursuant to this Section 2.2(b)(i), the contents thereof and each
      such Lender’s share of any borrowing to be made pursuant thereto.

    


    (ii)          
      Minimum
      Amounts.
      Each
      Eurodollar Loan, Eurodollar Index Rate Loan or Base Rate Loan that is a
      Non-Sweep Revolving Loan shall be in a minimum aggregate principal amount of
      $500,000 and integral multiples of $100,000 in
      excess
      thereof (or the remaining amount of the Non-Sweep Revolving Committed Amount,
      if
      less).

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    (iii)          
      Advances.
      Each
      Lender will make its Revolving Commitment Percentage of each Non-Sweep Revolving
      Loan borrowing available to the Agent for the account of the Borrower as
      specified in Section 3.15(a), or in such other manner as the Agent may specify
      in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the date specified
      in the applicable Notice of Borrowing in Dollars and in funds immediately
      available to the Agent. Such borrowing will then be made available to the
      Borrower by the Agent by crediting the account of the Borrower on the books
      of
      such office with the aggregate of the amounts made available to the Agent by
      the
      Lenders and in like funds as received by the Agent.

    


    (c)          
      Repayment
      of Non-Sweep Revolving Loan Borrowings.
      The
      principal amount of all Non-Sweep Revolving Loans shall be due and payable
      in
      full on the Maturity Date, unless accelerated sooner pursuant to
      Section 9.2.

    


    (d)          
      Interest.
      Subject
      to the provisions of Section 3.1,

    


    (i)          
      Base
      Rate Loans.
      During
      such periods as Revolving Loans shall be comprised in whole or in part of Base
      Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal
      to the Adjusted Base Rate.

    


    (ii)          
      Eurodollar
      Loans.
      During
      such periods as Revolving Loans shall be comprised in whole or in part of
      Eurodollar Loans, such Eurodollar Loans shall bear interest at a per annum
      rate
      equal to the Adjusted Eurodollar Rate.

    


    (iii)          
      Eurodollar
      Market Index Rate Loans.
      During
      such periods as Revolving Loans shall be comprised in whole or in part of
      Eurodollar Market Index Rate Loans, such Eurodollar Market Index Rate Loans
      shall bear interest at a per annum rate equal to the Adjusted Eurodollar Market
      Index Rate.

    


    Interest
      on Revolving Loans shall be payable in arrears on each applicable Interest
      Payment Date (or at such other times as may be specified herein).

    


    (e)          
      Revolving
      Notes.
      The
      Non-Sweep Revolving Loans made by each Lender shall be evidenced by a duly
      executed promissory note of the Borrower to such Lender in an original principal
      amount equal to such Lender’s Revolving Commitment Percentage of the Non-Sweep
      Revolving Committed Amount and in substantially the form of Exhibit 2.1(d).

    


    2.3   
            Letter
      of Credit Subfacility.

    


    (a)          
      Issuance.
      Subject
      to the terms and conditions hereof and of the LOC Documents, if any, and any
      other terms and conditions which the Issuing Lender may reasonably require
      and
      in reliance upon the representations and warranties set forth herein, the
      Issuing Lender agrees to issue, and each Lender severally agrees to participate
      in the issuance by the Issuing Lender of, standby and trade Letters of Credit
      in
      Dollars from time to time from the Closing Date until the Maturity Date as
      the
      Borrower may request, in a form acceptable to the Issuing Lender; provided,
      however,
      that
      (i) the LOC Obligations outstanding shall not at any time exceed
FIVE
      MILLION DOLLARS ($5,000,000)
      (the
“LOC
      Committed Amount”)
      and
      (ii) the sum of the aggregate principal amount of outstanding Revolving
      Loans plus
      LOC
      Obligations outstanding shall not at any time exceed the Revolving Committed
      Amount. No Letter of Credit shall (x) have an original expiry date more
      than one year from the date of issuance or (y) as originally issued or as
      extended, have an expiry date extending beyond the Maturity Date. Each Letter
      of
      Credit shall comply with the related LOC Documents. The issuance and expiry
      dates of each Letter of Credit shall be a Business Day. 

     

    
      
        
        

      

      
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    (b)          
      Notice
      and Reports.
      The
      request for the issuance of a Letter of Credit shall be submitted by the
      Borrower to the Issuing Lender at least three (3) Business Days prior to
      the requested date of issuance. The Issuing Lender will, at least quarterly
      and
      more frequently upon request, disseminate to each of the Lenders a detailed
      report specifying the Letters of Credit which are then issued and outstanding
      and any activity with respect thereto which may have occurred since the date
      of
      the prior report, and including therein, among other things, the beneficiary,
      the face amount and the expiry date, as well as any payment or expirations
      which
      may have occurred.

    


    (c)          
      Participation.
      Each
      Lender, upon issuance of a Letter of Credit, shall be deemed to have purchased
      without recourse a Participation Interest from the applicable Issuing Lender
      in
      such Letter of Credit and the obligations arising thereunder and any collateral
      relating thereto, in each case in an amount equal to its pro rata share of
      the
      obligations under such Letter of Credit (based on the respective Revolving
      Commitment Percentages of the Lenders) and shall absolutely, unconditionally
      and
      irrevocably assume and be obligated to pay to the Issuing Lender and discharge
      when due, its pro rata share of the obligations arising under such Letter of
      Credit. Without limiting the scope and nature of each Lender’s Participation
      Interest in any Letter of Credit, to the extent that the Issuing Lender has
      not
      been reimbursed as required hereunder or under any such Letter of Credit, each
      such Lender shall pay to the Issuing Lender its pro rata share of such
      unreimbursed drawing in same day funds on the day of notification by the Issuing
      Lender of an unreimbursed drawing pursuant to the provisions of
      subsection (d) below. The obligation of each Lender to so reimburse the
      Issuing Lender shall be absolute and unconditional and shall not be affected
      by
      the occurrence of a Default, an Event of Default or any other occurrence or
      event. Any such reimbursement shall not relieve or otherwise impair the
      obligation of the Borrower to reimburse the Issuing Lender under any Letter
      of
      Credit, together with interest as hereinafter provided.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    (d)          
      Reimbursement.
      In the
      event of any drawing under any Letter of Credit, the Issuing Lender will
      promptly notify the Borrower. Unless the Borrower shall immediately notify
      the
      Issuing Lender that the Borrower intends to otherwise reimburse the Issuing
      Lender for such drawing, the Borrower shall be deemed to have requested that
      the
      Lenders make a Sweep Plus Revolving Loan in the amount of the drawing as
      provided in subsection (e) below on the related Letter of Credit, the
      proceeds of which will be used to satisfy the related reimbursement obligations.
      The Borrower promises to reimburse the Issuing Lender on the day of drawing
      under any Letter of Credit (either with the proceeds of a Sweep Plus Revolving
      Loan obtained hereunder or otherwise) in same day funds. If the Borrower shall
      fail to reimburse the Issuing Lender as provided hereinabove, the unreimbursed
      amount of such drawing shall bear interest at a per annum rate equal to the
      Base
      Rate plus
      3%. The
      Borrower’s reimbursement obligations hereunder shall be absolute and
      unconditional under all circumstances irrespective of any rights of setoff,
      counterclaim or defense to payment the Borrower may claim or have against the
      Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
      drawn upon or any other Person, including without limitation any defense based
      on any failure of the Borrower or any other Credit Party to receive
      consideration or the legality, validity, regularity or unenforceability of
      the
      Letter of Credit. The Issuing Lender will promptly notify the other Lenders
      of
      the amount of any unreimbursed drawing and each Lender shall promptly pay to
      the
      Agent for the account of the Issuing Lender in Dollars and in immediately
      available funds, the amount of such Lender’s pro rata share of such unreimbursed
      drawing. Such payment shall be made on the day such notice is received by such
      Lender from the Issuing Lender if such notice is received at or before
      2:00 P.M. (Charlotte, North Carolina time) otherwise such payment shall be
      made at or before 12:00 Noon (Charlotte, North Carolina time) on the
      Business Day next succeeding the day such notice is received. If such Lender
      does not pay such amount to the Issuing Lender in full upon such request, such
      Lender shall, on demand, pay to the Agent for the account of the Issuing Lender
      interest on the unpaid amount during the period from the date of such drawing
      until such Lender pays such amount to the Issuing Lender in full at a rate
      per
      annum equal to, if paid within two (2) Business Days of the date that such
      Lender is required to make payments of such amount pursuant to the preceding
      sentence, the Federal Funds Rate and thereafter at a rate equal to the Base
      Rate. Each Lender’s obligation to make such payment to the Issuing Lender, and
      the right of the Issuing Lender to receive the same, shall be absolute and
      unconditional, shall not be affected by any circumstance whatsoever and without
      regard to the termination of this Credit Agreement or the Commitments hereunder,
      the existence of a Default or Event of Default or the acceleration of the
      obligations of the Borrower hereunder and shall be made without any offset,
      abatement, withholding or reduction whatsoever. Simultaneously with the making
      of each such payment by a Lender to the Issuing Lender, such Lender shall,
      automatically and without any further action on the part of the Issuing Lender
      or such Lender, acquire a Participation Interest in an amount equal to such
      payment (excluding the portion of such payment constituting interest owing
      to
      the Issuing Lender) in the related unreimbursed drawing portion of the LOC
      Obligation and in the interest thereon and in the related LOC Documents, and
      shall have a claim against the Borrower with respect thereto. The Borrower’s
      reimbursement obligations in respect of each Existing Letter of Credit, and
      each
      Revolving Lender’s participation obligations in connection therewith, shall be
      governed by the terms of this Credit Agreement. The Existing Letters of Credit
      shall, as of the Closing Date, be deemed to have been issued as Letters of
      Credit hereunder and subject to and governed by the terms of this
      Agreement.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    (e)          
      Repayment
      with Revolving Loans.
      On any
      day on which the Borrower shall have requested, or been deemed to have
      requested, a Revolving Loan advance to reimburse a drawing under a Letter of
      Credit, the Agent shall give notice to the Lenders that a Sweep Plus Revolving
      Loan has been requested or deemed requested by the Borrower to be made in
      connection with a drawing under a Letter of Credit, in which case a Sweep Plus
      Revolving Loan advance comprised of Base Rate Loans (or Eurodollar Loans to
      the
      extent the Borrower has complied with the procedures of Section 2.2(b)(i)
      with respect thereto) shall be immediately made to the Borrower by all Lenders
      (notwithstanding any termination of the Commitments pursuant to
      Section 9.2) pro rata
      based on
      the respective Revolving Commitment Percentages of the Lenders (determined
      before giving effect to any termination of the Commitments pursuant to
      Section 9.2) and the proceeds thereof shall be paid directly to the Issuing
      Lender for application to the respective LOC Obligations. Each such Lender
      hereby irrevocably agrees to make its pro rata share of each such Revolving
      Loan
      immediately upon any such request or deemed request in the amount, in the manner
      and on the date specified in the preceding sentence notwithstanding
      (i) the amount of such borrowing may not comply with the minimum amount for
      advances of Revolving Loans otherwise required hereunder, (ii) whether any
      conditions specified in Section 5.2 are then satisfied, (iii) whether
      a Default or an Event of Default then exists, (iv) failure for any such
      request or deemed request for a Sweep Plus Revolving Loan to be made by the
      time
      otherwise required hereunder, (v) whether the date of such borrowing is a
      date on which Revolving Loans are otherwise permitted to be made hereunder
      or
      (vi) any termination of the Commitments relating thereto immediately prior
      to or contemporaneously with such borrowing. In the event that any Sweep Plus
      Revolving Loan cannot for any reason be made on the date otherwise required
      above (including, without limitation, as a result of the commencement of a
      proceeding under the Bankruptcy Code with respect to the Borrower or any Credit
      Party), then each such Lender hereby agrees that it shall forthwith purchase
      (as
      of the date such borrowing would otherwise have occurred, but adjusted for
      any
      payments received from the Borrower on or after such date and prior to such
      purchase) from the Issuing Lender such Participation Interests in the
      outstanding LOC Obligations as shall be necessary to cause each such Lender
      to
      share in such LOC Obligations ratably (based upon the respective Revolving
      Commitment Percentages of the Lenders (determined before giving effect to any
      termination of the Commitments pursuant to Section 9.2)), provided
      that at
      the time any purchase of Participation Interests pursuant to this sentence
      is
      actually made, the purchasing Lender shall be required to pay to the Issuing
      Lender, to the extent not paid to the Issuer by the Borrower in accordance
      with
      the terms of subsection (d) above, interest on the principal amount of
      Participation Interests purchased for each day from and including the day upon
      which such borrowing would otherwise have occurred to but excluding the date
      of
      payment for such Participation Interests, at the rate equal to, if paid within
      two (2) Business Days of the date of the Sweep Plus Revolving Loan advance,
      the Federal Funds Rate, and thereafter at a rate equal to the Base
      Rate.

    


    (f)          
      Designation
      of Consolidated Parties as Account Parties.
      Notwithstanding anything to the contrary set forth in this Credit Agreement,
      including without limitation Section 2.3(a), a Letter of Credit issued
      hereunder may contain a statement to the effect that such Letter of Credit
      is
      issued for the account of a Consolidated Party other than the Borrower, provided
      that notwithstanding such statement, the Borrower shall be the actual account
      party for all purposes of this Credit Agreement for such Letter of Credit and
      such statement shall not affect the Borrower’s reimbursement obligations
      hereunder with respect to such Letter of Credit.

     

    
      
        
        

      

      
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    (g)          
      Renewal,
      Extension.
      The
      renewal or extension of any Letter of Credit shall, for purposes hereof, be
      treated in all respects the same as the issuance of a new Letter of Credit
      hereunder.

    


    (h)          
      Uniform
      Customs and Practices.
      The
      Issuing Lender may have the Letters of Credit be subject to The Uniform Customs
      and Practice for Documentary Credits, as published as of the date of issue
      by
      the International Chamber of Commerce (the “UCP”),
      in
      which case the UCP may be incorporated therein and deemed in all respects to
      be
      a part thereof.

    


    (i)       
          Indemnification;
      Nature of Issuing Lender’s Duties.

    


    (i)          
      In
      addition to its other obligations under this Section 2.3, the Borrower
      hereby agrees to pay, and protect, indemnify and save each Lender harmless
      from
      and against, any and all claims, demands, liabilities, damages, losses, costs,
      charges and expenses (including reasonable attorneys’ fees) (unless the same
      shall have resulted from such Lender’s gross negligence or willful misconduct)
      that such Lender may incur or be subject to as a consequence, direct or
      indirect, of (A) the issuance of any Letter of Credit or (B) the
      failure of such Lender to honor a drawing under a Letter of Credit as a result
      of any act or omission, whether rightful or wrongful, of any present or future
      de
      jure
      or
de
      facto
      government or Governmental Authority (all such acts or omissions, herein called
      “Government
      Acts”).

    


    (ii)          
      As
      between the Borrower and the Lenders (including the Issuing Lender), the
      Borrower shall assume all risks of the acts, omissions or misuse of any Letter
      of Credit by the beneficiary thereof. Unless the same shall have resulted from
      such Lenders gross negligence or willful misconduct, no Lender (including the
      Issuing Lender) shall be responsible: (A) for the form, validity,
      sufficiency, accuracy, genuineness or legal effect of any document submitted
      by
      any party in connection with the application for and issuance of any Letter
      of
      Credit, even if it should in fact prove to be in any or all respects invalid,
      insufficient, inaccurate, fraudulent or forged; (B) for the validity or
      sufficiency of any instrument transferring or assigning or purporting to
      transfer or assign any Letter of Credit or the rights or benefits thereunder
      or
      proceeds thereof, in whole or in part, that may prove to be invalid or
      ineffective for any reason; (C) for errors, omissions, interruptions or
      delays in transmission or delivery of any messages, by mail, cable, telegraph,
      telex or otherwise, whether or not they be in cipher; (D) for any loss or
      delay in the transmission or otherwise of any document required in order to
      make
      a drawing under a Letter of Credit or of the proceeds thereof; and (E) for
      any consequences arising from causes beyond the control of such Lender,
      including, without limitation, any Government Acts. None of the above shall
      affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers
      hereunder.

     

    
      
        
        

      

      
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    (iii)          
      In
      furtherance and extension and not in limitation of the specific provisions
      hereinabove set forth, any action taken or omitted by any Lender (including
      the
      Issuing Lender), under or in connection with any Letter of Credit or the related
      certificates, if taken or omitted in good faith, shall not put such Lender
      under
      any resulting liability to the Borrower or any other Credit Party. It is the
      intention of the parties that this Credit Agreement shall be construed and
      applied to protect and indemnify each Lender (including the Issuing Lender)
      against any and all risks involved in the issuance of the Letters of Credit,
      all
      of which risks are hereby assumed by the Borrower (on behalf of itself and
      each
      of the other Credit Parties), including, without limitation, any and all
      Government Acts. No Lender (including the Issuing Lender) shall, in any way,
      be
      liable for any failure by such Lender or anyone else to pay any drawing under
      any Letter of Credit as a result of any Government Acts or any other cause
      beyond the control of such Lender.

    


    (iv)          
      Nothing
      in this subsection is intended to limit the reimbursement obligations of
      the Borrower contained in subsection (d) above. The obligations of the
      Borrower under this subsection shall survive the termination of this Credit
      Agreement. No act or omissions of any current or prior beneficiary of a Letter
      of Credit shall in any way affect or impair the rights of the Lenders (including
      the Issuing Lender) to enforce any right, power or benefit under this Credit
      Agreement.

    


    (v)          
      Notwithstanding
      anything to the contrary contained in this subsection, the Borrower shall have
      no obligation to indemnify any Lender (including the Issuing Lender) in respect
      of any liability incurred by such Lender (A) arising solely out of the
      gross negligence or willful misconduct of such Lender, as determined by a court
      of competent jurisdiction, or (B) caused by such Lender’s failure to pay
      under any Letter of Credit after presentation to it of a request strictly
      complying with the terms and conditions of such Letter of Credit, as determined
      by a court of competent jurisdiction, unless such payment is prohibited by
      any
      law, regulation, court order or decree.

    


    (j)          
      Responsibility
      of Issuing Lender.
      It is
      expressly understood and agreed that the obligations of the Issuing Lender
      hereunder to the Lenders are only those expressly set forth in this Credit
      Agreement and that the Issuing Lender shall be entitled to assume that the
      conditions precedent set forth in Section 5.2 have been satisfied unless it
      shall have acquired actual knowledge that any such condition precedent has
      not
      been satisfied; provided,
      however,
      that
      nothing set forth in this Section 2.3 shall be deemed to prejudice the
      right of any Lender to recover from the Issuing Lender any amounts made
      available by such Lender to the Issuing Lender pursuant to this Section 2.3
      in the event that it is determined by a court of competent jurisdiction that
      the
      payment with respect to a Letter of Credit constituted gross negligence or
      willful misconduct on the part of the Issuing Lender.

     

    
      
        
        

      

      
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    (k)          
      Conflict
      with LOC Documents.
      In the
      event of any conflict between this Credit Agreement and any LOC Document
      (including any letter of credit application), this Credit Agreement shall
      control. 

    


    SECTION
      3

    


    OTHER
      PROVISIONS RELATING TO CREDIT FACILITIES

    


    3.1     
          Default
      Rate.

    


    Upon
      the
      occurrence, and during the continuance, of an Event of Default, the principal
      of
      and, to the extent permitted by law, interest on the Loans and any other amounts
      owing hereunder or under the other Credit Documents shall bear interest, payable
      on demand, at a per annum rate equal to the Base Rate plus
      3%.

    


    3.2      
         Extension
      and Conversion.

    


    Subject
      to the terms of Section 5.2, the Borrower shall have the option, on any
      Business Day, to extend existing Loans into a subsequent permissible Interest
      Period or to convert Loans into Loans of another interest rate type;
provided,
      however,
      that
      (i) except as provided in Section 3.8, Eurodollar Loans may be
      converted into Base Rate Loans and/or Eurodollar Market Rate Index Loans only
      on
      the last day of the Interest Period applicable thereto, (ii) Eurodollar
      Loans may be extended, and Base Rate Loans and/or Eurodollar Market Index Rate
      Loans may be converted into Eurodollar Loans, only if no Default or Event of
      Default is in existence on the date of extension or conversion, (iii) Loans
      extended as, or converted into, Eurodollar Loans shall be subject to the terms
      of the definition of “Interest
      Period”
set
      forth in Section 1.1 and shall be in such minimum amounts as provided in,
      with respect to Revolving Loans, Section 2.2(b)(ii), (iv) no more than
      5 Eurodollar
      Loans shall be outstanding hereunder at any time (it being understood that,
      for
      purposes hereof, Eurodollar Loans with different Interest Periods shall be
      considered as separate Eurodollar Loans, even if they begin on the same date,
      although borrowings, extensions and conversions may, in accordance with the
      provisions hereof, be combined at the end of existing Interest Periods to
      constitute a new Eurodollar Loan with a single Interest Period) and (v) any
      request for extension or conversion of a Eurodollar Loan which shall fail to
      specify an Interest Period shall be deemed to be a request for an Interest
      Period of one month. Each such extension or conversion shall be effected by
      the
      Borrower by giving a Notice of Extension/Conversion (or telephonic notice
      promptly confirmed in writing) to the office of the Agent specified in specified
      in Schedule 2.1(a),
      or at
      such other office as the Agent may designate in writing, prior to
      11:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in the
      case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the
      third Business Day prior to, in the case of the extension of a Eurodollar Loan
      as, or conversion of a Base Rate Loan and/or a Eurodollar Market Index Rate
      Loan
      into, a Eurodollar Loan, the date of the proposed extension or conversion,
      specifying the date of the proposed extension or conversion, the Loans to be
      so
      extended or converted, the types of Loans into which such Loans are to be
      converted and, if appropriate, the applicable Interest Periods with respect
      thereto. Each request for extension or conversion shall be irrevocable and
      shall
      constitute a representation and warranty by the Borrower of the matters
      specified in subsections (b), (c) and (d) of Section 5.2. In the event
      the Borrower fails to request extension or conversion of any Eurodollar Loan
      in
      accordance with this Section, or any such conversion or extension is not
      permitted or required by this Section, then such Eurodollar Loan shall be
      automatically converted into a Base Rate Loan at the end of the Interest Period
      applicable thereto. The Agent shall give each Lender notice as promptly as
      practicable of any such proposed extension or conversion affecting any
      Loan.

     

    
      
        
        

      

      
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    3.3         
      Prepayments.

    


    (a)          
      Voluntary
      Prepayments.
      The
      Borrower shall have the right to prepay Non-Sweep Revolving Loans in whole
      or in
      part from time to time, but otherwise without premium or penalty; provided,
      however,
      that
      each partial prepayment of Loans shall be in a minimum principal amount of
      $250,000 and integral multiples of $50,000. All prepayments under this
      Section 3.3(a) shall be subject to Section 3.12.

    


    (b)          
      Mandatory
      Prepayments.
      

    


    (i)          
      Revolving
      Committed Amount.
      If at
      any time, the sum of the aggregate principal amount of outstanding Revolving
      Loans plus
      LOC
      Obligations outstanding shall exceed the Revolving Committed Amount, the
      Borrower immediately shall prepay the applicable Revolving Loans or (after
      all
      Revolving Loans have been repaid) cash collateralize the LOC Obligations, in
      an
      amount sufficient to eliminate such excess.

    


    (ii)          
      Asset
      Dispositions.
      Immediately upon the occurrence of any Asset Disposition other than an Excluded
      Asset Disposition, the Borrower shall prepay the Loans in an aggregate amount
      equal to the Net Cash Proceeds of the related Asset Disposition (such prepayment
      to be applied as set forth in clause (iii) below); provided,
      however,
      that no
      mandatory prepayments shall be required hereunder if, (A)
      in any
      two year period the total aggregate amount of Net Cash Proceeds received from
      Asset Dispositions does not exceed $10,000,000; it being expressly agreed that
      any mandatory prepayment that is required after giving effect to the terms
      of
      this subclause (A) shall equal the amount by which such Net Cash Proceeds
      exceeds $10,000,000 for such two year period, or (B)
      the
      Borrower delivers to the Agent a certificate stating that the Credit Parties
      intend to use such Net Cash Proceeds to acquire like assets useful to the
      business of the Credit Parties within 730 days of the receipt of such Net Cash
      Proceeds, it being expressly agreed that Net Cash Proceeds not so reinvested
      and
      in excess of the available basket set forth in subclause (A) hereof shall be
      applied to prepay the Loans and/or cash collateralize the LOC Obligations
      immediately thereafter (such prepayment to be applied as set forth in clause
      (iii) below).

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    (iii)          
      Application
      of Mandatory Prepayments.
      All
      amounts required to be paid pursuant to this Section 3.3(b) shall be applied
      as
      follows: (A) with respect to all amounts prepaid pursuant to Section 3.3(b)(i),
      to Revolving Loans and (after all Revolving Loans have been repaid) to a cash
      collateral account in respect of LOC Obligations, (B) with respect to all
      amounts prepaid pursuant to Section 3.3(b)(ii), to the Revolving Loans and
      (after all Revolving Loans have been repaid) to a cash collateral account in
      respect of LOC Obligations (with a corresponding reduction in the Revolving
      Committed Amount in an amount equal to all amounts applied pursuant to this
      clause (iii)). Within the parameters of the applications set forth above,
      prepayments shall be applied first to Eurodollar Market Index Rate Loans, second
      to Base Rate Loans and then to Eurodollar Loans in direct order of Interest
      Period maturities. All prepayments under this Section 3.3(b) shall be subject
      to
      Section 3.12. 

    


    3.4   
            Termination
      and Reduction of Revolving Committed Amount.

    


    (a)          
      Voluntary
      Reductions.
      The
      Borrower may from time to time permanently reduce or terminate the Revolving
      Committed Amount in whole or in part (in minimum aggregate amounts of $5,000,000
      or, if less, the full remaining amount of the then applicable Revolving
      Committed Amount)) upon five Business Days’ prior written notice to the Agent;
provided,
      however,
      no such
      termination or reduction shall be made which would cause the aggregate principal
      amount of outstanding Revolving Loans plus
      LOC
      Obligations outstanding to exceed the Revolving Committed Amount, unless,
      concurrently with such termination or reduction, the Revolving Loans are repaid
      to the extent necessary to eliminate such excess. The Agent shall promptly
      notify each affected Lender of receipt by the Agent of any notice from the
      Borrower pursuant to this Section 3.4(a).

    


    (b)          
      Mandatory
      Reductions.
      On any
      date that the Revolving Loans are required to be prepaid pursuant to the terms
      of Section 3.3(b)(i) or (ii), the Revolving Committed Amount automatically
      shall be permanently reduced by the amount of such required prepayment and/or
      reduction.

    


    (c)          
      Maturity
      Date.
      The
      Revolving Commitments of the Lenders and the LOC Commitment of the Issuing
      Lender shall automatically terminate on the Maturity Date.

    


    (d)          
      General.
      The
      Borrower shall pay to the Agent for the account of the Lenders in accordance
      with the terms of Section 3.5(a), on the date of each termination or
      reduction of the Revolving Committed Amount, the Commitment Fee accrued through
      the date of such termination or reduction on the amount of the Revolving
      Committed Amount so terminated or reduced.

    


    3.5         
      Fees.

     

    (a)          
      Commitment
      Fee.
      In
      consideration of the Revolving Commitments of the Lenders hereunder, the
      Borrower agrees to pay to the Agent for the account of each Lender a fee (the
      “Commitment
      Fee”)
      on the
      unused portion of the Revolving Committed Amount computed at a per annum rate
      for each day during the applicable Commitment Fee Calculation Period
      (hereinafter defined) at a rate equal to the Applicable Margin in effect from
      time to time. The Commitment Fee shall commence to accrue on the Closing Date
      and shall be due and payable in arrears on the last business day of each March,
      June, September and December(and any date that the Revolving Committed Amount
      is
      reduced as provided in Section 3.4(a) and the Maturity Date) for the
      immediately preceding quarter (or portion thereof) (each such quarter or portion
      thereof for which the Commitment Fee is payable hereunder being herein referred
      to as an “Commitment
      Fee Calculation Period”),
      beginning with the first of such dates to occur after the Closing
      Date.

     

    
      
        
        

      

      
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    (b)          
      Letter
      of Credit Fees.

    


    (i)          
      Standby
      Letter of Credit Issuance Fee.
      In
      consideration of the issuance of standby Letters of Credit hereunder, the
      Borrower promises to pay to the Agent for the account of each Lender a fee
      (the
“Standby
      Letter of Credit Fee”)
      on
      such Lender’s Revolving Commitment Percentage of the maximum amount available to
      be drawn under each such standby Letter of Credit computed at a per annum rate
      for each day from the date of issuance to the date of expiration equal to the
      Applicable Margin on the date of such issuance or renewal. The Standby Letter
      of
      Credit Fee will be payable annually upon issuance or renewal of each Letter
      of
      Credit.

    


    (ii)          
      Trade
      Letter of Credit Drawing Fee.
      In
      consideration of the issuance of trade Letters of Credit hereunder, the Borrower
      promises to pay to the Agent for the account of each Lender a fee (the
“Trade
      Letter of Credit Fee”)
      equal
      to one quarter of one percent (1/4%) on such Lender’s Revolving Commitment
      Percentage of the amount of each drawing under any such trade Letter of Credit.
      The Trade Letter of Credit Fee will be payable on each date of drawing under
      a
      trade Letter of Credit.

    


    (iii)          
      Issuing
      Lender Fees.
      In
      addition to the Standby Letter of Credit Fee payable pursuant to clause (i)
      above and the Trade Letter of Credit Fee payable pursuant to clause (ii)
      above, the Borrower promises to pay to the Issuing Lender for its own account
      without sharing by the other Lenders the letter of credit fronting and
      negotiation fees agreed to by the Borrower and the Issuing Lender from time
      to
      time and the customary charges from time to time of the Issuing Lender with
      respect to the issuance, amendment, transfer, administration, cancellation
      and
      conversion of, and drawings under, such Letters of Credit (collectively, the
      “Issuing
      Lender Fees”).

    


    3.6         
      Capital
      Adequacy.

    


    If
      any
      Lender has determined, after the date hereof, that the adoption or the becoming
      effective of, or any change in, or any change by any Governmental Authority,
      central bank or comparable agency charged with the interpretation or
      administration thereof in the interpretation or administration of, any
      applicable law, rule or regulation regarding capital adequacy, or compliance
      by
      such Lender with any request or directive regarding capital adequacy (whether
      or
      not having the force of law) of any such authority, central bank or comparable
      agency, has or would have the effect of reducing the rate of return on such
      Lender’s capital or assets as a consequence of its commitments or obligations
      hereunder to a level below that which such Lender could have achieved but for
      such adoption, effectiveness, change or compliance (taking into consideration
      such Lender’s policies with respect to capital adequacy), then, upon notice from
      such Lender to the Borrower, the Borrower shall be obligated to pay to such
      Lender such additional amount or amounts as will compensate such Lender for
      such
      reduction. Each determination by any such Lender of amounts owing under this
      Section shall, absent manifest error, be conclusive and binding on the parties
      hereto.

     

    
      
        
        

      

      
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    3.7         
      Limitation
      on Eurodollar Loans.

    


    If
      on or
      prior to the first day of any Interest Period for any Eurodollar
      Loan:

    


    (a)          
      the
      Agent
      determines (which determination shall be conclusive) that by reason of
      circumstances affecting the relevant market, adequate and reasonable means
      do
      not exist for ascertaining the Eurodollar Rate for such Interest Period;
      or

    


    (b)          
      the
      Required Lenders determine (which determination shall be conclusive) and notify
      the Agent that the Eurodollar Rate will not adequately and fairly reflect the
      cost to the Lenders of funding Eurodollar Loans for such Interest
      Period;

    


    then
      the
      Agent shall give the Borrower prompt notice thereof, and so long as such
      condition remains in effect, the Lenders shall be under no obligation to make
      additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
      Rate
      Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of the
      then current Interest Period(s) for the outstanding Eurodollar Loans, either
      prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
      Loans in accordance with the terms of this Credit Agreement.

    


    3.8         
      Illegality.

    


    Notwithstanding
      any other provision of this Credit Agreement, in the event that it becomes
      unlawful for any Lender or its Applicable Lending Office to make, maintain,
      or
      fund Eurodollar Loans hereunder, then such Lender shall promptly notify the
      Borrower thereof and such Lender’s obligation to make or Continue Eurodollar
      Loans and to Convert Base Rate Loans into Eurodollar Loans shall be suspended
      until such time as such Lender may again make, maintain, and fund Eurodollar
      Loans (in which case the provisions of Section 3.10 shall be
      applicable).

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

     

    3.9          Requirements
      of Law.

    


    (a)          
      If,
      after
      the date hereof, the adoption of any applicable law, rule, or regulation, or
      any
      change in any applicable law, rule, or regulation, or any change in the
      interpretation or administration thereof by any Governmental Authority, central
      bank, or comparable agency charged with the interpretation or administration
      thereof, or compliance by any Lender (or its Applicable Lending Office) with
      any
      request or directive (whether or not having the force of law) of any such
      Governmental Authority, central bank, or comparable agency:

     

    (i)          
      shall
      subject such Lender (or its Applicable Lending Office) to any tax, duty, or
      other charge with respect to any Eurodollar Loans, its Notes, or its obligation
      to make Eurodollar Loans, or change the basis of taxation of any amounts payable
      to such Lender (or its Applicable Lending Office) under this Credit Agreement
      or
      its Notes in respect of any Eurodollar Loans (other than taxes imposed on the
      overall net income of such Lender by the jurisdiction in which such Lender
      has
      its principal office or such Applicable Lending Office);

    


    (ii)          
      shall
      impose, modify, or deem applicable any reserve, special deposit, assessment,
      or
      similar requirement (other than the Eurodollar Reserve Requirement utilized
      in
      the determination of the Adjusted Eurodollar Rate) relating to any extensions
      of
      credit or other assets of, or any deposits with or other liabilities or
      commitments of, such Lender (or its Applicable Lending Office), including the
      Commitment of such Lender hereunder; or

    


    (iii)          
      shall
      impose on such Lender (or its Applicable Lending Office) or on the United States
      market for certificates of deposit or the London interbank market any other
      condition affecting this Credit Agreement or its Notes or any of such extensions
      of credit or liabilities or commitments;

    


    and
      the
      result of any of the foregoing is to increase the cost to such Lender (or its
      Applicable Lending Office) of making, Converting into, Continuing, or
      maintaining any Eurodollar Loans or to reduce any sum received or receivable
      by
      such Lender (or its Applicable Lending Office) under this Credit Agreement
      or
      its Notes with respect to any Eurodollar Loans, then the Borrower shall pay
      to
      such Lender on demand such amount or amounts as will compensate such Lender
      for
      such increased cost or reduction. If any Lender requests compensation by the
      Borrower under this Section 3.9(a), the Borrower may, by notice to such
      Lender (with a copy to the Agent), suspend the obligation of such Lender to
      make
      or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
      Loans, until the event or condition giving rise to such request ceases to be
      in
      effect (in which case the provisions of Section 3.10 shall be applicable);
provided
      that
      such suspension shall not affect the right of such Lender to receive the
      compensation so requested.

    


    (b)          
      If,
      after
      the date hereof, any Lender shall have determined that the adoption of any
      applicable law, rule, or regulation regarding capital adequacy or any change
      therein or in the interpretation or administration thereof by any Governmental
      Authority, central bank, or comparable agency charged with the interpretation
      or
      administration thereof, or any request or directive regarding capital adequacy
      (whether or not having the force of law) of any such Governmental Authority,
      central bank, or comparable agency, has or would have the effect of reducing
      the
      rate of return on the capital of such Lender or any corporation controlling
      such
      Lender as a consequence of such Lender’s obligations hereunder to a level below
      that which such Lender or such corporation could have achieved but for such
      adoption, change, request, or directive (taking into consideration its policies
      with respect to capital adequacy), then from time to time upon demand the
      Borrower shall pay to such Lender such additional amount or amounts as will
      compensate such Lender for such reduction.

     

    
      
        
        

      

      
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    (c)          
      Each
      Lender shall promptly notify the Borrower and the Agent of any event of which
      it
      has knowledge, occurring after the date hereof, which will entitle such Lender
      to compensation pursuant to this Section 3.9 and will designate a different
      Applicable Lending Office if such designation will avoid the need for, or reduce
      the amount of, such compensation and will not, in the judgment of such Lender,
      be otherwise disadvantageous to it. Any Lender claiming compensation under
      Section 3.6 or under this Section 3.9 shall furnish to the Borrower
      and the Agent a statement setting forth the additional amount or amounts to
      be
      paid to it hereunder which shall be conclusive in the absence of manifest error.
      In determining such amount, such Lender may use any reasonable averaging and
      attribution methods.

    


    3.10       
      Treatment
      of Affected Loans.

    


    If
      the
      obligation of any Lender to make any Eurodollar Loan or to Continue, or to
      Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
      to
      Section 3.8 or 3.9 hereof, such Lender’s Eurodollar Loans shall be
      automatically Converted into Base Rate Loans on the last day(s) of the then
      current Interest Period(s) for such Eurodollar Loans (or, in the case of a
      Conversion required by Section 3.8 hereof, on such earlier date as such
      Lender may specify to the Borrower with a copy to the Agent) and, unless and
      until such Lender gives notice as provided below that the circumstances
      specified in Section 3.8 or 3.9 hereof that gave rise to such Conversion no
      longer exist:

    


    (a)          
      to
      the
      extent that such Lender’s Eurodollar Loans have been so Converted, all payments
      and prepayments of principal that would otherwise be applied to such Lender’s
      Eurodollar Loans shall be applied instead to its Base Rate Loans;
      and

    


    (b)          
      all
      Loans
      that would otherwise be made or Continued by such Lender as Eurodollar Loans
      shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans
      of such Lender that would otherwise be Converted into Eurodollar Loans shall
      remain as Base Rate Loans.

    


    If
      such
      Lender gives notice to the Borrower (with a copy to the Agent) that the
      circumstances specified in Section 3.8 or 3.9 hereof that gave rise to the
      Conversion of such Lender’s Eurodollar Loans pursuant to this Section 3.10
      no longer exist (which such Lender agrees to do promptly upon such circumstances
      ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
      outstanding, such Lender’s Base Rate Loans shall be automatically Converted, on
      the first day(s) of the next succeeding Interest Period(s) for such outstanding
      Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
      all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
      held pro rata (as to principal amounts, interest rate basis, and Interest
      Periods) in accordance with their respective Commitments.

     

    
      
        
        

      

      
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    3.11       
      Taxes.

    


    (a)          
      Any
      and
      all payments by the Borrower to or for the account of any Lender or the Agent
      hereunder or under any other Credit Document shall be made free and clear of
      and
      without deduction for any and all present or future taxes, duties, levies,
      imposts, deductions, charges or withholdings, and all liabilities with respect
      thereto, excluding,
      in the
      case of each Lender and the Agent, taxes imposed on its income, and franchise
      taxes imposed on it, by the jurisdiction under the laws of which such Lender
      (or
      its Applicable Lending Office) or the Agent (as the case may be) is organized
      or
      any political subdivision thereof (all such non-excluded taxes, duties, levies,
      imposts, deductions, charges, withholdings, and liabilities being hereinafter
      referred to as “Taxes”).
      If
      the Borrower shall be required by law to deduct any Taxes from or in respect
      of
      any sum payable under this Credit Agreement or any other Credit Document to
      any
      Lender or the Agent, (i) the sum payable shall be increased as necessary so
      that after making all required deductions (including deductions applicable
      to
      additional sums payable under this Section 3.11) such Lender or the Agent
      receives an amount equal to the sum it would have received had no such
      deductions been made, (ii) the Borrower shall make such deductions,
      (iii) the Borrower shall pay the full amount deducted to the relevant
      taxation authority or other authority in accordance with applicable law, and
      (iv) the Borrower shall furnish to the Agent, at its address referred to in
      Section 11.1, the original or a certified copy of a receipt evidencing
      payment thereof.

    


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

    


    (c)          
      The
      Borrower agrees to indemnify each Lender and the Agent for the full amount
      of
      Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
      imposed or asserted by any jurisdiction on amounts payable under this
      Section 3.11) paid by such Lender or the Agent (as the case may be) and any
      liability (including penalties, interest, and expenses) arising therefrom or
      with respect thereto. 

    


    (d)          
      Each
      Lender organized under the laws of a jurisdiction outside the United States,
      on
      or prior to the date of its execution and delivery of this Credit Agreement
      in
      the case of each Lender listed on the signature pages hereof and on or prior
      to
      the date on which it becomes a Lender in the case of each other Lender, and
      from
      time to time thereafter if requested in writing by the Borrower or the Agent
      (but only so long as such Lender remains lawfully able to do so), shall provide
      the Borrower and the Agent with (i) Internal Revenue Service
      Form W-8BEN or Form W-8CEI, as appropriate, or any successor form
      prescribed by the Internal Revenue Service, certifying that such Lender is
      entitled to benefits under an income tax treaty to which the United States
      is a
      party which reduces the rate of withholding tax on payments of interest or
      certifying that the income receivable pursuant to this Credit Agreement is
      effectively connected with the conduct of a trade or business in the United
      States, (ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or
      any successor form prescribed by the Internal Revenue Service, and
      (iii) any other form or certificate required by any taxing authority
      (including any certificate required by Sections 871(h) and 881(c) of
      the Internal Revenue Code), certifying that such Lender is entitled to an
      exemption from or a reduced rate of tax on payments pursuant to this Credit
      Agreement or any of the other Credit Documents.

     

    
      
        
        

      

      
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    (e)          
      For
      any
      period with respect to which a Lender has failed to provide the Borrower and
      the
      Agent with the appropriate form pursuant to Section 3.11(d) (unless such
      failure is due to a change in treaty, law, or regulation occurring subsequent
      to
      the date on which a form originally was required to be provided), such Lender
      shall not be entitled to indemnification under Section 3.11(a)
      or 3.11(b) with respect to Taxes imposed by the United States; provided,
      however,
      that
      should a Lender, which is otherwise exempt from or subject to a reduced rate
      of
      withholding tax, become subject to Taxes because of its failure to deliver
      a
      form required hereunder, the Borrower shall take such steps as such Lender
      shall
      reasonably request to assist such Lender to recover such Taxes.

    


    (f)          
      If
      the
      Borrower is required to pay additional amounts to or for the account of any
      Lender pursuant to this Section 3.11, then such Lender will agree to use
      reasonable efforts to change the jurisdiction of its Applicable Lending Office
      so as to eliminate or reduce any such additional payment which may thereafter
      accrue if such change, in the judgment of such Lender, is not otherwise
      disadvantageous to such Lender.

    


    (g)          
      Within
      thirty (30) days after the date of any payment of Taxes, the Borrower shall
      furnish to the Agent the original or a certified copy of a receipt evidencing
      such payment.

    


    (h)          
      Without
      prejudice to the survival of any other agreement of the Borrower hereunder,
      the
      agreements and obligations of the Borrower contained in this Section 3.11 shall
      survive the repayment of the Loans, LOC Obligations and other obligations under
      the Credit Documents and the termination of the Commitments
      hereunder.

    


    3.12       
      Compensation.

    


    Upon
      the
      request of the Agent, on behalf of a Lender, the Borrower shall pay to such
      Lender such amount or amounts as shall be sufficient (in the reasonable opinion
      of such Lender) to compensate it for any loss, cost, or expense (including
      loss
      of anticipated profits) incurred by it as a result of:

    


    (a)          
      any
      payment, prepayment, or Conversion of a Eurodollar Loan for any reason
      (including, without limitation, the acceleration of the Loans pursuant to
      Section 9.2) on a date other than the last day of the Interest Period for
      such Loan; or

     

    
      
        
        

      

      
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    (b)          
      any
      failure by the Borrower for any reason (including, without limitation, the
      failure of any condition precedent specified in Section 5 to be satisfied)
      to borrow, Convert, Continue, or prepay a Eurodollar Loan on the date for such
      borrowing, Conversion, Continuation, or prepayment specified in the relevant
      notice of borrowing, prepayment, Continuation, or Conversion under this Credit
      Agreement. 

    


    With
      respect to Eurodollar Loans, such indemnification may include an amount equal
      to
      the excess, if any, of (a) the amount of interest which 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 the applicable 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 Eurodollar Loans provided for herein (excluding, however,
      the
      Applicable Margin included therein, if any) over (b) the amount of interest
      (as reasonably determined by such Lender) which 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. The covenants of the
      Borrower set forth in this Section 3.12 shall survive the repayment of the
      Loans, LOC Obligations and other obligations under the Credit Documents and
      the
      termination of the Commitments hereunder.

    


    3.13       
      Pro
      Rata Treatment.

    


    Except
      to
      the extent otherwise provided herein:

    


    (a)          
      Loans.
      Each
      Loan, each payment or (subject to the terms of Section 3.3) prepayment of
      principal of any Loan or reimbursement obligations arising from drawings under
      Letters of Credit, each payment of interest on the Loans or reimbursement
      obligations arising from drawings under Letters of Credit, each payment of
      Commitment Fees, each payment of the Standby Letter of Credit Fee, each payment
      of the Trade Letter of Credit Fee, each reduction of the Revolving Committed
      Amount and each conversion or extension of any Loan, shall be allocated pro
      rata
      among the Lenders in accordance with the respective principal amounts of their
      outstanding Loans and Participation Interests.

    


    (b)          
      Advances.
      No
      Lender shall be responsible for the failure or delay by any other Lender in
      its
      obligation to make its ratable share of a borrowing hereunder; provided,
      however,
      that
      the failure of any Lender to fulfill its obligations hereunder shall not relieve
      any other Lender of its obligations hereunder. Unless the Agent shall have
      been
      notified by any Lender in writing not less than the earlier to occur of one
      Business Day or twenty-four (24) hours prior to the date of any requested
      borrowing that such Lender does not intend to make available to the Agent its
      ratable share of such borrowing to be made on such date, the Agent may assume
      that such Lender has made such amount available to the Agent on the date of
      such
      borrowing, and the Agent in reliance upon such assumption, may (in its sole
      discretion but without any obligation to do so) make available to the Borrower
      a
      corresponding amount. If such corresponding amount is not in fact made available
      to the Agent, the Agent shall be able to recover such corresponding amount
      from
      such Lender with interest at a rate per annum equal to the Federal Funds Rate.
      If such Lender does not pay such corresponding amount forthwith upon the Agent’s
      demand therefor, the Agent will promptly notify the Borrower, and the Borrower
      shall immediately pay such corresponding amount to the Agent. The Agent shall
      also be entitled to recover from the Lender or the Borrower, as the case may
      be,
      interest on such corresponding amount in respect of each day from the date
      such
      corresponding amount was made available by the Agent to the Borrower to the
      date
      such corresponding amount is recovered by the Agent at a per annum rate equal
      to
      (i) from the Borrower at the applicable rate for the applicable borrowing
      pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal
      Funds Rate.

     

    
      
        
        

      

      
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    3.14       
      Sharing
      of Payments.

    


    The
      Lenders agree among themselves that, in the event that any Lender shall obtain
      payment in respect of any Loan, LOC Obligations or any other obligation owing
      to
      such Lender under this Credit Agreement through the exercise of a right of
      setoff, banker’s lien or counterclaim, or pursuant to a secured claim under
      Section 506 of Title 11 of the United States Code or other security or
      interest arising from, or in lieu of, such secured claim, received by such
      Lender under any applicable bankruptcy, insolvency or other similar law or
      otherwise, or by any other means, in excess of its pro rata share of such
      payment as provided for in this Credit Agreement, such Lender shall promptly
      purchase from the other Lenders a Participation Interest in such Loans, LOC
      Obligations and other obligations in such amounts, and make such other
      adjustments from time to time, as shall be equitable to the end that all Lenders
      share such payment in accordance with their respective ratable shares as
      provided for in this Credit Agreement. The Lenders further agree among
      themselves that if payment to a Lender obtained by such Lender through the
      exercise of a right of setoff, banker’s lien, counterclaim or other event as
      aforesaid shall be rescinded or must otherwise be restored, each Lender which
      shall have shared the benefit of such payment shall, by repurchase of a
      Participation Interest theretofore sold, return its share of that benefit
      (together with its share of any accrued interest payable with respect thereto)
      to each Lender whose payment shall have been rescinded or otherwise restored.
      The Borrower agrees that any Lender so purchasing such a Participation Interest
      may, to the fullest extent permitted by law, exercise all rights of payment,
      including setoff, banker’s lien or counterclaim, with respect to such
      Participation Interest as fully as if such Lender were a holder of such Loan,
      LOC Obligations or other obligation in the amount of such Participation
      Interest. Except as otherwise expressly provided in this Credit Agreement,
      if
      any Lender or the Agent shall fail to remit to the Agent or any other Lender
      an
      amount payable by such Lender or the Agent to the Agent or such other Lender
      pursuant to this Credit Agreement on the date when such amount is due, such
      payments shall be made together with interest thereon for each date from the
      date such amount is due until the date such amount is paid to the Agent or
      such
      other Lender at a rate per annum equal to the Federal Funds Rate. If under
      any
      applicable bankruptcy, insolvency or other similar law, any Lender receives
      a
      secured claim in lieu of a setoff to which this Section 3.14 applies, such
      Lender shall, to the extent practicable, exercise its rights in respect of
      such
      secured claim in a manner consistent with the rights of the Lenders under this
      Section 3.14 to share in the benefits of any recovery on such secured
      claim.

     

    
      
        
        

      

      
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    3.15       
      Payments,
      Computations, Etc.

    


    (a)          
      Except
      as
      otherwise specifically provided herein or as set forth in the Services
      Agreement, all payments hereunder shall be made to the Agent in dollars in
      immediately available funds, without offset, deduction, counterclaim or
      withholding of any kind, at the Agent’s office specified in Section 11.1 not
      later than 4:00 P.M. (Charlotte, North Carolina time) on the date when due.
      Payments received after such time shall be deemed to have been received on
      the
      next succeeding Business Day. The Agent may (but shall not be obligated to)
      debit the amount of any such payment which is not made by such time to any
      ordinary deposit account of the Borrower maintained with the Agent (with notice
      to the Borrower). The Borrower shall, at the time it makes any payment under
      this Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
      interest or other amounts payable by the Borrower hereunder to which such
      payment is to be applied (and in the event that it fails so to specify, or
      if
      such application would be inconsistent with the terms hereof, the Agent shall
      distribute such payment to the Lenders in such manner as the Agent may determine
      to be appropriate in respect of obligations owing by the Borrower hereunder,
      subject to the terms of Section 3.13(a)). The Agent will distribute such
      payments to such Lenders, if any such payment is received prior to
      12:00 Noon (Charlotte, North Carolina time) on a Business Day in like funds
      as received prior to the end of such Business Day and otherwise the Agent will
      distribute such payment to such Lenders on the next succeeding Business Day.
      Whenever any payment hereunder shall be stated to be due on a day which is
      not a
      Business Day, the due date thereof shall be extended to the next succeeding
      Business Day (subject to accrual of interest and Fees for the period of such
      extension), except that in the case of Eurodollar Loans, if the extension would
      cause the payment to be made in the next following calendar month, then such
      payment shall instead be made on the next preceding Business Day. Except as
      expressly provided otherwise herein, all computations of interest and fees
      shall
      be made on the basis of actual number of days elapsed over a year of 360 days,
      except with respect to computation of interest on Base Rate Loans which (unless
      the Base Rate is determined by reference to the Federal Funds Rate) shall be
      calculated based on a year of 365 or 366 days, as appropriate. Interest shall
      accrue from and include the date of borrowing, but exclude the date of
      payment.

    


    (b)          
      Allocation
      of Payments After Event of Default.
      Notwithstanding any other provisions of this Credit Agreement to the contrary,
      after the occurrence and during the continuance of an Event of Default, all
      amounts collected or received by the Agent or any Lender on account of the
      Credit Party Obligations or any other amounts outstanding under any of the
      Credit Documents or in respect of the Collateral shall be paid over or delivered
      as follows:

    


    FIRST,
      to
      the payment of all reasonable out-of-pocket costs and expenses (including
      without limitation reasonable attorneys’ fees) of the Agent in connection with
      enforcing the rights of the Lenders under the Credit Documents and any
      protective advances made by the Agent with respect to the Collateral under
      or
      pursuant to the terms of the Collateral Documents;

     

    
      
        
        

      

      
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    SECOND,
      to payment of any fees owed to the Agent;

    


    THIRD,
      to
      the payment of all reasonable out-of-pocket costs and expenses (including
      without limitation, reasonable attorneys’ fees) of each of the Lenders in
      connection with enforcing its rights under the Credit Documents or otherwise
      with respect to the Credit Party Obligations owing to such Lender;

    


    FOURTH,
      to the payment of all of the Credit Party Obligations consisting of accrued
      fees
      and interest;

    


    FIFTH,
      to
      the payment of the outstanding principal amount of the Credit Party Obligations
      (including the payment or cash collateralization of the outstanding LOC
      Obligations);

    


    SIXTH,
      to
      all other Credit Party Obligations and other obligations which shall have become
      due and payable under the Credit Documents or otherwise and not repaid pursuant
      to clauses “FIRST” through “FIFTH” above; and

    


    SEVENTH,
      to the payment of the surplus, if any, to whoever may be lawfully entitled
      to
      receive such surplus.

    


    In
      carrying out the foregoing, (i) amounts received shall be applied in the
      numerical order provided until exhausted prior to application to the next
      succeeding category; (ii) each of the Lenders shall receive an amount equal
      to its pro rata share (based on the proportion that the then outstanding Loans
      and LOC Obligations held by such Lender bears to the aggregate then outstanding
      Loans and LOC Obligations) of amounts available to be applied pursuant to
      clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the
      extent that any amounts available for distribution pursuant to clause “FIFTH”
above are attributable to the issued but undrawn amount of outstanding Letters
      of Credit, such amounts shall be held by the Agent in a cash collateral account
      and applied (A) first, to reimburse the Issuing Lender from time to time
      for any drawings under such Letters of Credit and (B) then, following the
      expiration of all Letters of Credit, to all other obligations of the types
      described in clauses “FIFTH” and “SIXTH” above in the manner provided in this
      Section 3.15(b).

    


    3.16       
      Evidence
      of Debt.

    


    (a)          
      Each
      Lender shall maintain an account or accounts evidencing each Loan made by such
      Lender to the Borrower from time to time, including the amounts of principal
      and
      interest payable and paid to such Lender from time to time under this Credit
      Agreement. Each Lender will make reasonable efforts to maintain the accuracy
      of
      its account or accounts and to promptly update its account or accounts from
      time
      to time, as necessary.

     

    
      
        
        

      

      
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    (b)          
      The
      Agent
      shall maintain the Register pursuant to Section 11.3(c), and a subaccount
      for each Lender, in which Register and subaccounts (taken together) shall be
      recorded (i) the amount, type and Interest Period of each such Loan
      hereunder, (ii) the amount of any principal or interest due and payable or
      to become due and payable to each Lender hereunder and (iii) the amount of
      any sum received by the Agent hereunder from or for the account of the Borrower
      and each Lender’s share thereof. The Agent will make reasonable efforts to
      maintain the accuracy of the subaccounts referred to in the preceding sentence
      and to promptly update such subaccounts from time to time, as
      necessary.

    


    (c)          
      The
      entries made in the accounts, Register and subaccounts maintained pursuant
      to
      subsection (b) of this Section 3.16 (and, if consistent with the
      entries of the Agent, subsection (a)) shall be prima facie evidence of the
      existence and amounts of the obligations of the Borrower therein recorded;
      provided,
      however,
      that
      the failure of any Lender or the Agent to maintain any such account, such
      Register or such subaccount, as applicable, or any error therein, shall not
      in
      any manner affect the obligation of the Borrower to repay the Loans made by
      such
      Lender in accordance with the terms hereof. 

    


    3.17       
      Replacement
      Lenders.

    


    If
      any
      Lender either (i) becomes a Defaulting Lender or (ii) delivers a notice pursuant
      to Sections 3.6, 3.9 or 3.11, the Borrower shall have the right, if no
      Default or Event of Default then exists, to replace such Lender (the
“Replaced
      Lender”)
      with
      one or more assignees eligible under Section 11.3(b) hereof (collectively,
      the “Replacement
      Lender”),
      provided
      that
      (A) at the time of any replacement pursuant to this Section, the
      Replacement Lender shall enter into one or more assignment agreements
      substantially in the form of Exhibit 11.3(b)
      pursuant
      to, and in accordance with the terms of, Section 11.3(b) pursuant to which
      the Replacement Lender shall acquire all of the rights and obligations of the
      Replaced Lender hereunder and, in connection therewith, shall pay to
      (1) the Replaced Lender in respect thereof of an amount equal to the sum of
      (x) the principal of, and all accrued interest on, all outstanding Loans of
      the Replaced Lender, (y) all unreimbursed drawings under the Letters of
      Credit that have been funded by the Replaced Lender, together with all then
      unpaid interest with respect thereto at such time and (z) all accrued but
      theretofore unpaid, fees and other amounts owing to the Replaced Lender pursuant
      to Section 3.5 and (2) each Issuing Lender an amount equal to such
      Replaced Lender’s Revolving Commitment Percentage of any unreimbursed drawings
      under Letters of Credit issued by such Issuing Lender to the extent such amount
      was not heretofore funded by Replaced Lender, and (B) all obligations of
      the Borrower owing to the Replaced Lender (including all obligations, if any,
      owing pursuant to Section 3.6, 3.9 or 3.11, but excluding those
      obligations specifically described in clause (A) above in respect of which
      the assignment purchase price has been, or is concurrently being paid) shall
      be
      paid in full by the Borrower to such Replaced Lender concurrently with such
      replacement.

     

    
      
        
        

      

      
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    3.18       
      Non-Receipt
      of Funds by the Administrative Agent.

    


    (a)           Funding
      by Lenders; Presumption by Agent.
      Unless
      the Agent shall have received written notice from a Lender prior to the proposed
      date of any Extension of Credit that such Lender will not make available to
      the
      Agent such Lender’s share of such Extension of Credit, the Agent may assume that
      such Lender has made such share available on such date in accordance with this
      Agreement and may, in reliance upon such assumption, make available to the
      Borrower a corresponding amount. In such event, if a Lender has not in fact
      made
      its share of the applicable Extension of Credit available to the Agent, then
      the
      applicable Lender and the Borrower severally agree to pay to the Agent forthwith
      on demand such corresponding amount with interest thereon, for each day from
      and
      including the date such amount is made available to the Borrower to but
      excluding the date of payment to the Agent, at (i) in the case of a payment
      to be made by such Lender, the greater of the Federal Funds Rate and a rate
      determined by the Agent in accordance with banking industry rules on interbank
      compensation and (ii) in the case of a payment to be made by the Borrower,
      the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
      shall pay such interest to the Agent for the same or an overlapping period,
      the
      Agent shall promptly remit to the Borrower the amount of such interest paid
      by
      the Borrower for such period. If such Lender pays its share of the applicable
      Extension of Credit to the Agent, then the amount so paid shall constitute
      such
      Lender’s Loan included in such Extension of Credit. Any payment by the Borrower
      shall be without prejudice to any claim the Borrower may have against a Lender
      that shall have failed to make such payment to the Agent.

    


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

    


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

    


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

    


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

     

    
      
        
        

      

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

    


    3.19        Inability
      to Determine Interest Rate.

    


    Notwithstanding
      any other provision of this Agreement, if (a) the Agent shall reasonably
      determine (which determination shall be conclusive and binding absent manifest
      error) that, by reason of circumstances affecting the relevant market,
      reasonable and adequate means do not exist for ascertaining the Eurodollar
      Rate
      for such Interest Period, or (b) the Required Lenders shall reasonably
      determine (which determination shall be conclusive and binding absent manifest
      error) that the Eurodollar Rate does not adequately and fairly reflect the
      cost
      to such Lenders of funding Eurodollar Loans that the Borrower has requested
      be
      outstanding as a Eurodollar Rate tranche during such Interest Period, the Agent
      shall forthwith give telephone notice of such determination, confirmed in
      writing, to the Borrower, and the Lenders at least two (2) Business Days prior
      to the first day of such Interest Period. Unless the Borrower shall have
      notified the Agent upon receipt of such telephone notice that it wishes to
      rescind or modify its request regarding such Eurodollar Loans, any Loans that
      were requested to be made as Eurodollar Loans shall be made as Base Rate Loans
      and any Loans that were requested to be converted into or continued as
      Eurodollar Loans shall remain as or be converted into Base Rate Loans. Until
      any
      such notice has been withdrawn by the Agent, no further Loans shall be made
      as,
      continued as, or converted into, Eurodollar Loans for the Interest Periods
      so
      affected.

    


    3.20       
      Yield
      Protection.

    


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

    


    (i)          
      impose,
      modify or deem applicable any reserve, special deposit, compulsory loan,
      insurance charge or similar requirement against assets of, deposits with or
      for
      the account of, or credit extended or participated in by, any Lender (except
      any
      reserve requirement reflected in the Eurodollar Rate) or the Issuing Lender;
      

    


    (ii)          
      subject
      any Lender or the Issuing Lender to any tax of any kind whatsoever with respect
      to this Agreement, any Letter of Credit, any participation in a Letter of Credit
      or any Eurodollar Loan made by it, or change the basis of taxation of payments
      to such Lender or the Issuing Lender in respect thereof; or

    


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

     

    
      
        
        

      

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

    


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

    


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

    


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

     

    
      
        
        

      

      
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    SECTION
      4

    


    GUARANTY

    


    4.1          The
      Guaranty.

    


    Each
      of
      the Guarantors hereby jointly and severally guarantees to each Lender, each
      Affiliate of a Lender that enters into a Hedging Agreement, and the Agent as
      hereinafter provided the prompt payment of the Credit Party Obligations in
      full
      when due (whether at stated maturity, as a mandatory prepayment, by
      acceleration, as a mandatory cash collateralization or otherwise) strictly
      in
      accordance with the terms thereof. The Guarantors hereby further agree that
      if
      any of the Credit Party Obligations are not paid in full when due (whether
      at
      stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
      cash
      collateralization or otherwise), the Guarantors will, jointly and severally,
      promptly pay the same, without any demand or notice whatsoever, and that in
      the
      case of any extension of time of payment or renewal of any of the Credit Party
      Obligations, the same will be promptly paid in full when due (whether at
      extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
      cash collateralization or otherwise) in accordance with the terms of such
      extension or renewal.

    


    Notwithstanding
      any provision to the contrary contained herein or in any other of the Credit
      Documents or Hedging Agreements, the obligations of each Guarantor hereunder
      shall be limited to an aggregate amount equal to the largest amount that would
      not render its obligations hereunder subject to avoidance under Section 548
      of the Bankruptcy Code or any comparable provisions of any applicable state
      law.

    


    4.2          Obligations
      Unconditional.

    


    The
      obligations of the Guarantors under Section 4.1 are joint and several,
      absolute and unconditional, irrespective of the value, genuineness, validity,
      regularity or enforceability of any of the Credit Documents or Hedging
      Agreements, or any other agreement or instrument referred to therein, or any
      substitution, release, impairment or exchange of any other guarantee of or
      security for any of the Credit Party Obligations, and, to the fullest extent
      permitted by applicable law, irrespective of any other circumstance whatsoever
      which might otherwise constitute a legal or equitable discharge or defense
      of a
      surety or guarantor, it being the intent of this Section 4.2 that the
      obligations of the Guarantors hereunder shall be absolute and unconditional
      under any and all circumstances. Each Guarantor agrees that such Guarantor
      shall
      have no right of subrogation, indemnity, reimbursement or contribution against
      the Borrower or any other Guarantor of the Credit Party Obligations for amounts
      paid under this Section 4 until such time as the Lenders (and any
      Affiliates of Lenders entering into Hedging Agreements) have been paid in full,
      all Commitments under this Credit Agreement have been terminated and no Person
      or Governmental Authority shall have any right to request any return or
      reimbursement of funds from the Lenders in connection with monies received
      under
      the Credit Documents or Hedging Agreements. Without limiting the generality
      of
      the foregoing, it is agreed that, to the fullest extent permitted by law, the
      occurrence of any one or more of the following shall not alter or impair the
      liability of any Guarantor hereunder which shall remain absolute and
      unconditional as described above:

     

    
      
        
        

      

      
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    (a)          
      at
      any
      time or from time to time, without notice to any Guarantor, the time for any
      performance of or compliance with any of the Credit Party Obligations shall
      be
      extended, or such performance or compliance shall be waived;

    


    (b)          
      any
      of
      the acts mentioned in any of the provisions of any of the Credit Documents,
      any
      Hedging Agreement or any other agreement or instrument referred to in the Credit
      Documents or Hedging Agreements shall be done or omitted;

    


    (c)          
      the
      maturity of any of the Credit Party Obligations shall be accelerated, or any
      of
      the Credit Party Obligations shall be modified, supplemented or amended in
      any
      respect, or any right under any of the Credit Documents, any Hedging Agreement
      or any other agreement or instrument referred to in the Credit Documents or
      Hedging Agreements shall be waived or any other guarantee of any of the Credit
      Party Obligations or any security therefor shall be released, impaired or
      exchanged in whole or in part or otherwise dealt with;

    


    (d)          
      any
      Lien
      granted to, or in favor of, the Agent or any Lender or Lenders as security
      for
      any of the Credit Party Obligations shall fail to attach or be perfected;
      or

    


    (e)          
      any
      of
      the Credit Party Obligations shall be determined to be void or voidable
      (including, without limitation, for the benefit of any creditor of any
      Guarantor) or shall be subordinated to the claims of any Person (including,
      without limitation, any creditor of any Guarantor).

    


    With
      respect to its obligations hereunder, each Guarantor hereby expressly waives
      diligence, presentment, demand of payment, protest and all notices whatsoever,
      and any requirement that the Agent or any Lender exhaust any right, power or
      remedy or proceed against any Person under any of the Credit Documents, any
      Hedging Agreement or any other agreement or instrument referred to in the Credit
      Documents or Hedging Agreements, or against any other Person under any other
      guarantee of, or security for, any of the Credit Party Obligations.

    


    4.3          Reinstatement.

    


    The
      obligations of the Guarantors under this Section 4 shall be automatically
      reinstated if and to the extent that for any reason any payment by or on behalf
      of any Person in respect of the Credit Party Obligations is rescinded or must
      be
      otherwise restored by any holder of any of the Credit Party Obligations, whether
      as a result of any proceedings in bankruptcy or reorganization or otherwise,
      and
      each Guarantor agrees that it will indemnify the Agent and each Lender on demand
      for all reasonable costs and expenses (including, without limitation, fees
      and
      expenses of counsel) incurred by the Agent or such Lender in connection with
      such rescission or restoration, including any such costs and expenses incurred
      in defending against any claim alleging that such payment constituted a
      preference, fraudulent transfer or similar payment under any bankruptcy,
      insolvency or similar law.

    


    
      
        
        

      

      
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    4.4          Certain
      Additional Waivers.

    


    Without
      limiting the generality of the provisions of this Section 4, each Guarantor
      hereby specifically waives the benefits of N.C. Gen. Stat. §§ 26-7 through 26-9,
      inclusive, to the extent applicable. Each Guarantor further agrees that such
      Guarantor shall have no right of recourse to security for the Credit Party
      Obligations, except through the exercise of rights of subrogation pursuant
      to
      Section 4.2 and through the exercise of rights of contribution pursuant to
      Section 4.6.

    


    4.5          
      Remedies.

    


    The
      Guarantors agree that, to the fullest extent permitted by law, as between the
      Guarantors, on the one hand, and the Agent and the Lenders, on the other hand,
      the Credit Party Obligations may be declared to be forthwith due and payable
      as
      provided in Section 9.2 (and shall be deemed to have become automatically
      due and payable in the circumstances provided in said Section 9.2) for
      purposes of Section 4.1 notwithstanding any stay, injunction or other
      prohibition preventing such declaration (or preventing the Credit Party
      Obligations from becoming automatically due and payable) as against any other
      Person and that, in the event of such declaration (or the Credit Party
      Obligations being deemed to have become automatically due and payable), the
      Credit Party Obligations (whether or not due and payable by any other Person)
      shall forthwith become due and payable by the Guarantors for purposes of
      Section 4.1. The Guarantors acknowledge and agree that their obligations
      hereunder are secured in accordance with the terms of the Security Agreements
      and the other Collateral Documents and that the Lenders may exercise their
      remedies thereunder in accordance with the terms thereof.

    


    
      
        
        

      

      
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    4.6          Rights
      of Contribution.

    


    The
      Guarantors hereby agree as among themselves that, if any Guarantor shall make
      an
      Excess Payment (as defined below), such Guarantor shall have a right of
      contribution from each other Guarantor in an amount equal to such other
      Guarantor’s Contribution Share (as defined below) of such Excess Payment. The
      payment obligations of any Guarantor under this Section 4.6 shall be
      subordinate and subject in right of payment to the prior payment in full to
      the
      Agent and the Lenders of the Guaranteed Obligations, and none of the Guarantors
      shall exercise any right or remedy under this Section 4.6 against any other
      Guarantor until payment and satisfaction in full of all of such Guaranteed
      Obligations. For purposes of this Section 4.6, (a) “Guaranteed
      Obligations”
shall
      mean any obligations arising under the other provisions of this Section 4;
      (b) “Excess
      Payment”
shall
      mean the amount paid by any Guarantor in excess of its Pro Rata Share of any
      Guaranteed Obligations; (c) “Pro
      Rata Share”
shall
      mean, for any Guarantor in respect of any payment of Guaranteed Obligations,
      the
      ratio (expressed as a percentage) as of the date of such payment of Guaranteed
      Obligations of (i) the amount by which the aggregate present fair salable
      value of all of its assets and properties exceeds the amount of all debts and
      liabilities of such Guarantor (including contingent, subordinated, unmatured,
      and unliquidated liabilities, but excluding the obligations of such Guarantor
      hereunder) to (ii) the amount by which the aggregate present fair salable
      value of all assets and other properties of the Borrower and all of the
      Guarantors exceeds the amount of all of the debts and liabilities (including
      contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
      the obligations of the Borrower and the Guarantors hereunder) of the Borrower
      and all of the Guarantors; provided,
      however,
      that,
      for purposes of calculating the Pro Rata Shares of the Guarantors in respect
      of
      any payment of Guaranteed Obligations, any Guarantor that became a Guarantor
      subsequent to the date of any such payment shall be deemed to have been a
      Guarantor on the date of such payment and the financial information for such
      Guarantor as of the date such Guarantor became a Guarantor shall be utilized
      for
      such Guarantor in connection with such payment; and (d) “Contribution
      Share”
shall
      mean, for any Guarantor in respect of any Excess Payment made by any other
      Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
      Payment of (i) the amount by which the aggregate present fair salable value
      of all of its assets and properties exceeds the amount of all debts and
      liabilities of such Guarantor (including contingent, subordinated, unmatured,
      and unliquidated liabilities, but excluding the obligations of such Guarantor
      hereunder) to (ii) the amount by which the aggregate present fair salable
      value of all assets and other properties of the Borrower and all of the
      Guarantors other than the maker of such Excess Payment exceeds the amount of
      all
      of the debts and liabilities (including contingent, subordinated, unmatured,
      and
      unliquidated liabilities, but excluding the obligations of the Borrower and
      the
      Guarantors hereunder) of the Borrower and all of the Guarantors other than
      the
      maker of such Excess Payment; provided,
      however,
      that,
      for purposes of calculating the Contribution Shares of the Guarantors in respect
      of any Excess Payment, any Guarantor that became a Guarantor subsequent to
      the
      date of any such Excess Payment shall be deemed to have been a Guarantor on
      the
      date of such Excess Payment and the financial information for such Guarantor
      as
      of the date such Guarantor became a Guarantor shall be utilized for such
      Guarantor in connection with such Excess Payment. This Section 4.6 shall
      not be deemed to affect any right of subrogation, indemnity, reimbursement
      or
      contribution that any Guarantor may have under applicable law against the
      Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding
      the foregoing, all rights of contribution against any Guarantor shall terminate
      from and after such time, if ever, that such Guarantor shall be relieved of
      its
      obligations pursuant to Section 8.4.

    


    4.7          Continuing
      Guarantee.

    


    The
      guarantee in this Section 4 is a continuing guarantee, and shall apply to
      all Credit Party Obligations whenever arising.

    


    


    SECTION
      5

    


    CONDITIONS

    


    5.1          Closing
      Conditions.

    


    The
      obligation of the Lenders to enter into this Credit Agreement and to make the
      initial Loans or the Issuing Lender to issue the initial Letter of Credit,
      whichever shall occur first, shall be subject to satisfaction of the following
      conditions (in form and substance acceptable to the Lenders):

     

    
      
        
        

      

      
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    (a)          
      Executed
      Credit Documents.
      Receipt
      by the Agent of duly executed copies of: (i) this Credit Agreement;
      (ii) the Notes; (iii) the Collateral Documents and (iv) all other
      Credit Documents, each in form and substance acceptable to the Lenders in their
      sole discretion.

    


    (b)           Corporate
      Documents.
      Receipt
      by the Agent of the following:

    


    (i)          
      Charter
      Documents.
      Copies
      of the articles or certificates of incorporation or other charter documents
      of
      (A)
      the
      Borrower and each Credit Party party to the Borrower’s existing credit
      agreement, dated as of December 3, 2002, by and among the Borrower, the
      subsidiaries of the Borrower from time to time party thereto and Wachovia,
      certified by a secretary or assistant secretary of such Credit Party to be
      true
      and correct as of the Closing Date, and (B)
      each
      other Credit Party certified to be true and complete as of a recent date by
      the
      appropriate Governmental Authority of the state or other jurisdiction of its
      incorporation and certified by a secretary or assistant secretary of such Credit
      Party to be true and correct as of the Closing Date.

    


    (ii)          
      Bylaws.
      A copy
      of the bylaws of each Credit Party certified by a secretary or assistant
      secretary of such Credit Party to be true and correct as of the Closing
      Date.

    


    (iii)          
      Resolutions.
      Copies
      of resolutions of the Board of Directors of each Credit Party approving and
      adopting the Credit Documents to which it is a party, the transactions
      contemplated therein and authorizing execution and delivery thereof, certified
      by a secretary or assistant secretary of such Credit Party to be true and
      correct and in force and effect as of the Closing Date.

    


    (iv)          
      Good
      Standing.
      Copies
      of (A) certificates of good standing, existence or its equivalent with
      respect to each Credit Party certified as of a recent date by the appropriate
      Governmental Authorities of the state or other jurisdiction of incorporation
      and
      each other jurisdiction in which the failure to so qualify and be in good
      standing could have a Material Adverse Effect and (B) to the extent
      available, a certificate indicating payment of all corporate franchise taxes
      certified as of a recent date by the appropriate governmental taxing
      authorities.

    


    (v)          
      Incumbency.
      An
      incumbency certificate of each Credit Party certified by a secretary or
      assistant secretary to be true and correct as of the Closing Date.

    


    (c)           [Reserved].
      

    


    (d)          
      Opinions
      of Counsel. The
      Agent
      shall have received favorable opinions dated as of the Closing Date of counsel
      to the Credit Parties addressed to the lenders with respect to the Credit
      Parties, the Credit Documents and such other matters as the lenders shall
      request.

     

    
      
        
        

      

      
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    (e)           Personal
      Property Collateral.
      The
      Agent shall have received:

    


    (i)          
      searches
      of Uniform Commercial Code filings in the jurisdiction of the organization
      of
      each Credit Party and each jurisdiction where a filing would need to be made
      in
      order to perfect the Agent’s security interest in the Collateral, copies of the
      financing statements on file in such jurisdictions and evidence that no Liens
      exist other than Permitted Liens;

    


    (ii)          
      UCC
      financing statements for each appropriate jurisdiction as is necessary, in
      the
      Agent’s sole discretion, to perfect the Agent’s security interest in the
      Collateral;

    


    (iii)          
      searches
      of ownership of intellectual property in the appropriate governmental offices
      and such patent/trademark/copyright filings as requested by the Agent in order
      to perfect the Agent’s security interest in the Collateral;

    


    (iv)          
      all
      stock
      certificates evidencing the Capital Stock pledged to the Agent pursuant to
      the
      Pledge Agreement, together with duly executed in blank undated stock powers
      attached thereto (unless, with respect to the pledged Capital Stock of any
      Foreign Subsidiary, such stock powers are deemed unnecessary by the Agent in
      its
      reasonable discretion under the law of the jurisdiction of incorporation of
      such
      Person);

    


    (v)          
      such
      patent/trademark/copyright filings as requested by the Agent in order to perfect
      the Agent’s security interest in the Collateral;

    


    (vi)          
      all
      instruments and chattel paper in the possession of any of the Credit Parties,
      together with allonges or assignments as may be necessary or appropriate to
      perfect the Agent’s security interest in the Collateral; and

    


    (vii)          
      duly
      executed consents (including landlord waivers) as are requested by the
      Administrative Agent and to the extent the Borrower is able to secure such
      letters, consents and waivers after using commercially reasonable efforts (such
      letters, consents and waivers shall be in form and substance satisfactory to
      the
      Administrative Agent).

    


    (f)       
          Priority
      of Liens.
      The
      Agent shall have received satisfactory evidence that (i) the Agent, on behalf
      of
      the Lenders, holds a perfected, first priority Lien on all Collateral and (ii)
      none of the Collateral is subject to any other Liens other than Permitted
      Liens.

     

    
      
        
        

      

      
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    (g)          
      Evidence
      of Insurance.
      Receipt
      by the Agent of copies of insurance policies or certificates of insurance of
      the
      Consolidated Parties evidencing worker’s compensation insurance, liability
      insurance, casualty insurance and business interruption insurance meeting the
      requirements set forth in the Credit Documents, including, but not limited
      to,
      naming the Agent as sole loss payee on behalf of the Lenders.

    


    (h)           Corporate
      Structure.
      The
      corporate capital and ownership structure of the Consolidated Parties shall
      be
      as described in Schedule 5.1(h).

    


    (i)         
        Government
      Consent.
      Receipt
      by the Agent of evidence that all governmental, shareholder and material third
      party consents shall have been obtained and the expiration of all applicable
      waiting periods shall have occurred without any action being taken by any
      authority that could restrain, prevent or impose any material adverse conditions
      on the transactions contemplated hereby and no action seeking or threatening
      any
      of the foregoing shall have occurred, and no law or regulation shall be
      applicable which in the judgment of the Agent could have the effect of the
      foregoing.

    


    (j)           
      Material
      Adverse Effect.
      No
      material adverse change shall have occurred since the last day of the fiscal
      year ending 2006 in the condition (financial or otherwise), business, management
      or prospects of the Consolidated Parties taken as a whole.

    


    (k)          
      Litigation.
      There
      shall not exist any pending or threatened action, suit, investigation or
      proceeding against a Consolidated Party that could have a Consolidated Material
      Adverse Effect.

    


    (l)        
         Other
      Indebtedness.
      Receipt
      by the Agent of evidence that the Consolidated Parties shall have no Funded
      Indebtedness other than the Indebtedness under the Credit
      Documents.

    


    (m)          Officer’s
      Certificates.
      The
      Agent shall have received a certificate or certificates executed by a
      Responsible Officer of the Borrower as of the Closing Date stating that
      (i) all governmental, shareholder and material third party consents and
      approvals, if any, with respect to the Credit Documents and the transactions
      contemplated thereby have been obtained, (ii) each Consolidated Party is in
      compliance with all existing financial obligations, (iii) no action, suit,
      investigation or proceeding is pending or threatened in any court or before
      any
      arbitrator or governmental instrumentality that purports to affect any
      Consolidated Party or any transaction contemplated by the Credit Documents,
      if
      such action, suit, investigation or proceeding could have a Material Adverse
      Effect, and (iv) immediately after giving effect to this Credit Agreement,
      the other Credit Documents and all the transactions contemplated therein to
      occur on such date, (A) each of the Credit Parties is Solvent, (B) no
      Default or Event of Default exists, (C) all representations and warranties
      contained herein and in the other Credit Documents are true and correct in
      all
      material respects, and (D) the Credit Parties are in compliance with each
      of the financial covenants set forth in Section 7.11.

     

    
      
        
        

      

      
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    (n)          
      Patriot
      Act Certificate.
      At
      least five (5) Business Days prior to the Closing Date, the
      Agent
      shall have received a certificate satisfactory thereto, for benefit of itself
      and the Lenders, provided by the Borrower that sets forth information required
      by the Patriot Act including, without limitation, the identity of the Credit
      Parties, the name and address of the Credit Parties and other information that
      will allow the Administrative Agent or any Lender, as applicable, to identify
      the Credit Parties in accordance with the Patriot Act.

    


    (o)           Fees
      and Expenses.
      Payment
      by the Credit Parties of all fees and expenses owed by them to the Lenders
      and
      the Agent.

    


    (p)          
      Other.
      Receipt
      by the Lenders of such other documents, instruments, agreements or information
      as reasonably requested by any Lender, including, but not limited to,
      information regarding litigation, tax, accounting, labor, insurance, pension
      liabilities (actual or contingent), real estate leases, material contracts,
      debt
      agreements, property ownership and contingent liabilities of the Consolidated
      Parties.

    


    5.2          Conditions
      to all Extensions of Credit.

    


    The
      obligations of each Lender to make, convert or extend any Loan and of the
      Issuing Lender to issue or extend any Letter of Credit (including the initial
      Loans and the initial Letter of Credit) are subject to satisfaction of the
      following conditions in addition to satisfaction on the Closing Date of the
      conditions set forth in Section 5.1:

    


    (a)          
      The
      Borrower shall have delivered (i) in the case of any Revolving Loan, an
      appropriate Notice of Borrowing or Notice of Extension/Conversion or
      (ii) in the case of any Letter of Credit, the Issuing Lender shall have
      received an appropriate request for issuance in accordance with the provisions
      of Section 2.3(b); 

    


    (b)          
      The
      representations and warranties set forth in Section 6 shall, subject to the
      limitations set forth therein, be true and correct in all material respects
      as
      of such date (except for those which expressly relate to an earlier
      date);

    


    (c)           
      No
      Default or Event of Default shall exist and be continuing either prior to or
      after giving effect thereto;

    


    (d)          
      Immediately
      after giving effect to the making of such Loan (and the application of the
      proceeds thereof) or to the issuance of such Letter of Credit, as the case
      may
      be, (i)
      the sum
      of the aggregate principal amount of outstanding Revolving Loans plus
      LOC
      Obligations outstanding shall not exceed the Revolving Committed Amount,
      (ii)
      the sum
      of the aggregate principal amount of outstanding Sweep Plus Revolving Loans
      shall not exceed the Sweep Plus Revolving Committed Amount, and (iii)
      the sum
      of the aggregate principal amount of outstanding Non-Sweep Revolving Loans
      shall
      not exceed the Non-Sweep Revolving Committed Amount.

    


    The
      delivery of each Notice of Borrowing, each Notice of Extension/Conversion and
      each request for a Letter of Credit pursuant to Section 2.3(b) shall
      constitute a representation and warranty by the Borrower of the correctness
      of
      the matters specified in subsections (b), (c), and (d),
      above.

     

    
      
        
        

      

      
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    SECTION
      6

    


    REPRESENTATIONS
      AND WARRANTIES

    


    The
      Credit Parties hereby represent to the Agent and each Lender that:

    


    6.1          Financial
      Condition.

    


    (a)          
      The
      audited consolidated balance sheet of the Consolidated Parties as of
      March 26, 2006 and the audited consolidated statements of earnings and
      statements of cash flows for the years ended March 26, 2006, March 27,
      2005, and March 28, 2004 and for the ten 4-week periods ended December 31,
      2006 have heretofore been furnished to each Lender. Such financial statements
      (including the notes thereto) (i) have been audited by Deloitte &
Touche LLP (except for the ten 4-week periods ended December 31, 2006 which
      have
      not been audited), (ii) have been prepared in accordance with GAAP
      consistently applied throughout the periods covered thereby and
      (iii) present fairly (on the basis disclosed in the footnotes to such
      financial statements) the consolidated financial condition, results of
      operations and cash flows of the Consolidated Parties as of such date and for
      such periods. The unaudited interim balance sheets of the Consolidated Parties
      as at the end of, and the related unaudited interim statements of earnings
      for,
      each fiscal period ended after December 31, 2006 and prior to the Closing Date
      have heretofore been furnished to each Lender. Such interim financial statements
      for each such fiscal period, (i) have been prepared in accordance with GAAP
      consistently applied throughout the periods covered thereby and
      (ii) present the consolidated financial condition and results of operations
      of the Consolidated Parties as of such date and for such periods. During the
      period from December 31, 2006 to and including the Closing Date, there has
      been
      no sale, transfer or other disposition by any Consolidated Party of any material
      part of the business or property of the Consolidated Parties, taken as a whole,
      and no purchase or other acquisition by any of them of any business or property
      (including any capital stock of any other person) material in relation to the
      consolidated financial condition of the Consolidated Parties, taken as a whole,
      in each case, which, is not reflected in the foregoing financial statements
      or
      in the notes thereto and has not otherwise been disclosed in writing to the
      Lenders on or prior to the Closing Date.

    


    (b)          
      The
      financial statements delivered to the Lenders pursuant to Section 7.1(a)
      and (b), (i) have been prepared in accordance with GAAP (except as may
      otherwise be permitted under Section 7.1(a) and (b)) and (ii) present
      fairly (on the basis disclosed in the footnotes to such financial statements)
      the consolidated financial condition, results of operations and cash flows
      of
      the Consolidated Parties as of such date and for such periods.

     

    
      
        
        

      

      
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    6.2          No
      Material Change.

    


    Since
      the
      last day of fiscal year 2006, (a) there has been no development or event
      relating to or affecting a Consolidated Party which has had or could have a
      Material Adverse Effect and (b) except as otherwise permitted under this
      Credit Agreement, no dividends or other distributions have been declared, paid
      or made upon the Capital Stock in a Consolidated Party nor has any of the
      Capital Stock in a Consolidated Party been redeemed, retired, purchased or
      otherwise acquired for value.

    


    6.3          Organization
      and Good Standing.

    


    Each
      of
      the Consolidated Parties (a) is duly organized, validly existing and is in
      good standing under the laws of the jurisdiction of its incorporation or
      organization, (b) has the corporate or other necessary 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
      and (c) is duly qualified as a foreign entity 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, other
      than
      in such jurisdictions where the failure to be so qualified and in good standing
      could have a Consolidated Material Adverse Effect.

    


    6.4          Power;
      Authorization; Enforceable Obligations.

    


    Each
      of
      the Credit Parties has the corporate or other necessary power and authority,
      and
      the legal right, to make, deliver and perform the Credit Documents to which
      it
      is a party, and in the case of the Borrower, to obtain extensions of credit
      hereunder, and has taken all necessary corporate action to authorize the
      borrowings and other extensions of credit on the terms and conditions of this
      Credit Agreement and to authorize the execution, delivery and performance of
      the
      Credit Documents to which it is a party. No consent or authorization of, filing
      with, notice to or other similar act by or in respect of, any Governmental
      Authority or any other Person is required to be obtained or made by or on behalf
      of any Credit Party in connection with the borrowings or other extensions of
      credit hereunder or with the execution, delivery, performance, validity or
      enforceability of the Credit Documents to which such Credit Party is a party,
      except for (a) consents, authorizations, notices and filings described in
Schedule 6.4,
      all of
      which have been obtained or made or have the status described in such
Schedule 6.4
      and
      (b) filings to perfect the Liens created by the Collateral Documents. This
      Credit Agreement has been, and each other Credit Document to which any Credit
      Party is a party will be, duly executed and delivered on behalf of the Credit
      Parties. This Credit Agreement constitutes, and each other Credit Document
      to
      which any Credit Party is a party when executed and delivered will constitute,
      a
      legal, valid and binding obligation of such Credit Party enforceable against
      such 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).

     

    
      
        
        

      

      
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    6.5          No
      Conflicts.

    


    Neither
      the execution and delivery of the Credit Documents, nor the consummation of
      the
      transactions contemplated therein, nor performance of and compliance with the
      terms and provisions thereof by such Credit Party will (a) violate or
      conflict with any provision of its articles or certificate of incorporation
      or
      bylaws or other organizational or governing documents of such Person,
      (b) violate, contravene or materially conflict with any Requirement of Law
      or any other law, regulation (including, without limitation, Regulation U or
      Regulation X), order, writ, judgment, injunction, decree or permit applicable
      to
      it, (c) violate, contravene or conflict with contractual provisions of, or
      cause an event of default under, any indenture, loan agreement, mortgage, deed
      of trust, contract or other agreement or instrument to which it is a party
      or by
      which it may be bound, the violation of which could have a Material Adverse
      Effect, or (d) result in or require the creation of any Lien (other than
      those contemplated in or created in connection with the Credit Documents) upon
      or with respect to its properties.

    


    6.6          No
      Default.

    


    No
      Consolidated Party is in default in any respect under any contract, lease,
      loan
      agreement, indenture, mortgage, security agreement or other agreement or
      obligation to which it is a party or by which any of its properties is bound
      which default could have a Consolidated Material Adverse Effect. No Default
      or
      Event of Default has occurred or exists except as previously disclosed in
      writing to the Lenders.

    


    6.7          Ownership.

    


    Each
      Consolidated Party is the owner of, and has good and marketable title to, all
      of
      its respective assets and none of such assets are subject to any Lien other
      than
      Permitted Liens.

    


    6.8          Indebtedness.

    


    Except
      as
      otherwise permitted under Section 8.1, the Consolidated Parties have no
      Indebtedness.

    


    6.9          Litigation.

    


    Except
      as
      set forth on Schedule
      6.9,
      there
      are no material actions, suits or legal, equitable, arbitration or
      administrative proceedings, pending or, to the knowledge of any Credit Party,
      threatened against any Consolidated Party. There are no actions, suits or legal,
      equitable, arbitration or administrative proceedings, pending or, to the
      knowledge of any Credit Party, threatened against any Consolidated Party which
      could reasonably be expected to have a Consolidated Material Adverse Effect.
      

     

    
      
        
        

      

      
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    6.10        Taxes.

    


    Each
      Consolidated Party has filed, or caused to be filed, all tax returns (federal,
      state, local and foreign) required to be filed and paid (a) all amounts of
      taxes shown thereon to be due (including interest and penalties) and
      (b) all other taxes, fees, assessments and other governmental charges
      (including mortgage recording taxes, documentary stamp taxes and intangibles
      taxes) owing by it, except for such taxes (i) which are not yet delinquent
      or (ii) that are being contested in good faith and by proper proceedings,
      and against which adequate reserves are being maintained in accordance with
      GAAP. No Credit Party is aware as of the Closing Date of any proposed tax
      assessments against it or any other Consolidated Party.

    


    6.11       Compliance
      with Law.

    


    Each
      Consolidated Party is in compliance with all Requirements of Law and all other
      laws, rules, regulations, orders and decrees (including without limitation
      Environmental Laws) applicable to it, or to its properties, unless such failure
      to comply could not have a Consolidated Material Adverse Effect. No Requirement
      of Law could cause a Consolidated Material Adverse Effect.

    


    6.12       
      ERISA.

    


    (a)          
      During
      the five-year period prior to the date on which this representation is made
      or
      deemed made: (i) no ERISA Event has occurred, and, to the best knowledge of
      the Credit Parties, no event or condition has occurred or exists as a result
      of
      which any ERISA Event could reasonably be expected to occur, with respect to
      any
      Plan; (ii) no “accumulated funding deficiency,” as such term is defined in
      Section 302 of ERISA and Section 412 of the Code, whether or not waived, has
      occurred with respect to any Plan; (iii) each Plan has been maintained,
      operated, and funded in compliance with its own terms and in material compliance
      with the provisions of ERISA, the Code, and any other applicable federal or
      state laws; and (iv) no lien in favor of the PBGC or a Plan has arisen or
      is reasonably likely to arise on account of any Plan.

    


    (b)          
      The
      actuarial present value of all “benefit liabilities” (as defined in
      Section 4001(a)(16) of ERISA), whether or not vested, under each Single
      Employer Plan, as of the last annual valuation date prior to the date on which
      this representation is made or deemed made (determined, in each case, utilizing
      the actuarial assumptions used in such Plan’s most recent actuarial valuation
      report), did not exceed as of such valuation date the fair market value of
      the
      assets of such Plan.

    


    (c)          
      Neither
      any Consolidated Party nor any ERISA Affiliate has incurred, or, to the best
      knowledge of the Credit Parties, could be reasonably expected to incur, any
      withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
      Plan. Neither any Consolidated Party nor any ERISA Affiliate would become
      subject to any withdrawal liability under ERISA if any Consolidated Party or
      any
      ERISA Affiliate were to withdraw completely from all Multiemployer Plans and
      Multiple Employer Plans as of the valuation date most closely preceding the
      date
      on which this representation is made or deemed made. Neither any Consolidated
      Party nor any ERISA Affiliate has received any notification that any
      Multiemployer Plan is in reorganization (within the meaning of Section 4241
      of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
      has been terminated (within the meaning of Title IV of ERISA), and no
      Multiemployer Plan is, to the best knowledge of the Credit Parties, reasonably
      expected to be in reorganization, insolvent, or terminated.

     

    
      
        
        

      

      
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    (d)          
      No
      prohibited transaction (within the meaning of Section 406 of ERISA or
      Section 4975 of the Code) or breach of fiduciary responsibility has occurred
      with respect to a Plan which has subjected or may subject any Consolidated
      Party
      or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
      502(l) of ERISA or Section 4975 of the Code, or under any agreement or
      other instrument pursuant to which any Consolidated Party or any ERISA Affiliate
      has agreed or is required to indemnify any person against any such liability.
      

    


    (e)          
      Neither
      any Consolidated Party nor any ERISA Affiliates has any material liability
      with
      respect to “expected post-retirement benefit obligations” within the meaning of
      the Financial Accounting Standards Board Statement 106.

    


    6.13 Subsidiaries.

    


    Set
      forth
      on Schedule 6.13
      is a
      complete and accurate list of all Subsidiaries of each Consolidated Party.
      Information on Schedule 6.13
      includes
      jurisdiction of incorporation, the number of shares of each class of Capital
      Stock outstanding, the number and percentage of outstanding shares of each
      class
      owned (directly or indirectly) by such Consolidated Party; and the number and
      effect, if exercised, of all outstanding options, warrants, rights of conversion
      or purchase and all other similar rights with respect thereto. The outstanding
      Capital Stock of all such Subsidiaries is validly issued, fully paid and
      non-assessable and is owned by each such Consolidated Party, directly or
      indirectly, free and clear of all Liens (other than those arising under or
      contemplated in connection with the Credit Documents). Other than as set forth
      in Schedule 6.13,
      no
      Consolidated Party has outstanding any securities convertible into or
      exchangeable for its Capital Stock nor does any such Person have outstanding
      any
      rights to subscribe for or to purchase or any options for the purchase of,
      or
      any agreements providing for the issuance (contingent or otherwise) of, or
      any
      calls, commitments or claims of any character relating to its Capital Stock.
      Schedule 6.13
      may be
      updated from time to time by the Borrower by giving written notice thereof
      to
      the Agent.

    


    6.14       Governmental
      Regulations, Etc.

    


    (a)          
      No
      part
      of the Letters of Credit or proceeds of the Loans will be used, directly or
      indirectly, for the purpose of purchasing or carrying any “margin stock” within
      the meaning of Regulation U, or for the purpose of purchasing or carrying or
      trading in any securities. If requested by any Lender or the Agent, the Borrower
      will furnish to the Agent and each Lender a statement to the foregoing effect
      in
      conformity with the requirements of FR Form U-1 referred to in Regulation U.
      No
      indebtedness being reduced or retired out of the proceeds of the Loans was
      or
      will be incurred for the purpose of purchasing or carrying any margin stock
      within the meaning of Regulation U or any “margin security” within the meaning
      of Regulation T. “Margin stock” within the meaning of Regulation U does not
      constitute more than 25% of the value of the consolidated assets of the
      Consolidated Parties. None of the transactions contemplated by this Credit
      Agreement (including, without limitation, the direct or indirect use of the
      proceeds of the Loans) will violate or result in a violation of the Securities
      Act of 1933, as amended, or the Securities Exchange Act of 1934, as
      amended, or regulations issued pursuant thereto, or Regulation T, U or X.


     

    
      
        
        

      

      
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    (b)          
      No
      Consolidated Party is subject to regulation under the Federal Power Act or
      the
      Investment Company Act of 1940, each as amended. In addition, no
      Consolidated Party is an “investment company” registered or required to be
      registered under the Investment Company Act of 1940, as amended, and is not
      controlled by such a company.

    


    (c)          
      No
      director, executive officer or principal shareholder of any Consolidated Party
      is a director, executive officer or principal shareholder of any Lender. For
      the
      purposes hereof the terms “director”, “executive officer” and “principal
      shareholder” (when used with reference to any Lender) have the respective
      meanings assigned thereto in Regulation O issued by the Board of Governors
      of
      the Federal Reserve System. 

    


    (d)          
      Each
      Consolidated Party has obtained and holds in full force and effect, all
      franchises, licenses, permits, certificates, authorizations, qualifications,
      accreditations, easements, rights of way and other rights, consents and
      approvals which are necessary for the ownership of its respective Property
      and
      to the conduct of its respective businesses as presently conducted.

    


    (e)          
      No
      Consolidated Party is in violation of any applicable statute, regulation or
      ordinance of the United States of America, or of any state, city, town,
      municipality, county or any other jurisdiction, or of any agency thereof
      (including without limitation, environmental laws and regulations), which
      violation could have a Consolidated Material Adverse Effect.

    


    (f)          
      Each
      Consolidated Party is current with all material reports and documents, if any,
      required to be filed with any state or federal securities commission or similar
      agency and is in full compliance in all material respects with all applicable
      rules and regulations of such commissions.

    


    6.15        Purpose
      of Loans and Letters of Credit.

    


    The
      proceeds of the Loans hereunder shall be used solely by the Borrower to
      (a) refinance existing Indebtedness and (b) provide for working
      capital, capital expenditures and other general corporate purposes. The Letters
      of Credit shall be used only for or in connection with appeal bonds,
      reimbursement obligations arising in connection with surety and reclamation
      bonds, reinsurance, domestic or international trade transactions and obligations
      not otherwise aforementioned relating to transactions entered into by the
      applicable account party in the ordinary course of business.

     

    
      
        
        

      

      
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    6.16       
      Environmental
      Matters.

    


    (a)          
      Each
      of
      the facilities and properties owned, leased or operated by the Consolidated
      Parties (the “Properties”)
      and
      all operations at the Properties are in compliance with all applicable
      Environmental Laws, and there is no violation of any Environmental Law with
      respect to the Properties or the businesses operated by the Consolidated Parties
      (the “Businesses”),
      and
      there are no conditions relating to the Businesses or Properties that could
      give
      rise to liability under any applicable Environmental Laws.

    


    (b)          
      None
      of
      the Properties contains, or has previously contained, any Materials of
      Environmental Concern at, on or under the Properties in amounts or
      concentrations that constitute or constituted a violation of, or could give
      rise
      to liability under, Environmental Laws.

    


    (c)          
      No
      Consolidated Party has received any written or verbal notice of, or inquiry
      from
      any Governmental Authority regarding, any 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 Businesses, nor does any Consolidated Party have knowledge or reason to
      believe that any such notice will be received or is being
      threatened.

    


    (d)          
      Materials
      of Environmental Concern have not been transported or disposed of from the
      Properties, or generated, treated, stored or disposed of at, on or under any
      of
      the Properties or any other location, in each case by or on behalf of any
      Consolidated Party in violation of, or in a manner that could give rise to
      liability under, any applicable Environmental Law.

    


    (e) No
      judicial proceeding or governmental or administrative action is pending or,
      to
      the best knowledge of any Credit Party, threatened, under any Environmental
      Law
      to which any Consolidated Party is or will be named as a party, nor are there
      any consent decrees or other decrees, consent orders, administrative orders
      or
      other orders, or other administrative or judicial requirements outstanding
      under
      any Environmental Law with respect to the Consolidated Parties, the Properties
      or the Businesses.

    


    (f)          
      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 (including,
      without limitation, disposal) of any Consolidated Party in connection with
      the
      Properties or otherwise in connection with the Businesses, in violation of
      or in
      amounts or in a manner that could give rise to liability under Environmental
      Laws.

     

    
      
        
        

      

      
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    6.17          
      Intellectual
      Property.

    


    Each
      Consolidated Party owns, or has the legal right to use, all trademarks,
      tradenames, copyrights, technology, know-how and processes (the “Intellectual
      Property”)
      necessary for each of them to conduct its business as currently conducted except
      for those the failure to own or have such legal right to use could not have
      a
      Consolidated Material Adverse Effect. Set forth on Schedule 6.17
      is a
      list of all Intellectual Property owned by each Consolidated Party or that
      any
      Consolidated Party has the right to use. Except as provided on Schedule 6.17,
      no
      claim has been asserted and is pending by any Person challenging or questioning
      the use of any such Intellectual Property or the validity or effectiveness
      of
      any such Intellectual Property, nor does any Credit Party know of any such
      claim, and to the Credit Parties’ knowledge the use of such Intellectual
      Property by any Consolidated Party does not infringe on the rights of any
      Person, except for such claims and infringements that in the aggregate, could
      not have a Consolidated Material Adverse Effect. Schedule
      6.17
      may be
      updated from time to time by the Borrower by giving written notice thereof
      to
      the Agent.

    


    6.18        Solvency.

    


    Each
      Credit Party is and, after consummation of the transactions contemplated by
      this
      Credit Agreement will be Solvent.

    


    6.19       
      Investments.

    


    All
      Investments of each Consolidated Party are Permitted Investments.

    


    6.20        Location
      of Collateral.

    


    Set
      forth
      on Schedule 6.20(a)
      is a
      list of all locations where any tangible personal property of a Consolidated
      Party is located, including state where located. Set forth on Schedule 6.20(b)
      is the
      chief executive office. Schedule 6.20(a)
      and
6.20(b)
      may be
      updated from time to time by the Borrower giving written notice thereof to
      the
      Agent.

    


    6.21        Disclosure.

    


    Neither
      this Credit Agreement nor any financial statements delivered to the Lenders
      nor
      any other document, certificate or statement furnished to the Lenders by or
      on
      behalf of any Consolidated Party in connection with the transactions
      contemplated hereby contains any untrue statement of a material fact or omits
      to
      state a material fact necessary in order to make the statements contained
      therein or herein not misleading.

    


    6.22        No
      Burdensome Restrictions.

    


    No
      Consolidated Party is a party to any agreement or instrument or subject to
      any
      other obligation or any charter or corporate restriction or any provision of
      any
      applicable law, rule or regulation which, individually or in the aggregate,
      could have a Consolidated Material Adverse Effect.

     

    
      
        
        

      

      
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    6.23        Brokers’
      Fees.

    


    No
      Consolidated Party has any obligation to any Person in respect of any finder’s,
      broker’s, investment banking or other similar fee in connection with any of the
      transactions contemplated under the Credit Documents.

    


    6.24        Labor
      Matters.

    


    There
      are
      no collective bargaining agreements or Multiemployer Plans covering the
      employees of a Consolidated Party as of the Closing Date and none of the
      Consolidated Parties has suffered any strikes, walkouts, work stoppages or
      other
      material labor difficulty within the last five years.

    


    6.25        Anti-Terrorism
      Laws.

    


    Neither
      any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the
      enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the
      United States of America (50 U.S.C. App. §§ 1 et
      seq.),
      as
      amended. Neither any Credit Party nor any or its Subsidiaries is in violation
      of
      (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
      control regulations of the United States Treasury Department (31 CFR, Subtitle
      B, Chapter V, as amended) or any enabling legislation or executive order
      relating thereto or (c) the Patriot Act. None of the Credit Parties (i) is
      a
      blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to
      the
      best of its knowledge, engages in any dealings or transactions, or is otherwise
      associated, with any such blocked person.

    


    6.26        Compliance
      with OFAC Rules and Regulations.

    


    None
      of
      the Credit Parties or their Subsidiaries or their respective Affiliates
      (a) is a Sanctioned Person, (b) has more than 15% of its assets in
      Sanctioned Countries, or (c) derives more than 15% of its operating income
      from investments in, or transactions with Sanctioned Persons or Sanctioned
      Countries. No part of the proceeds of any Extension of Credit hereunder will
      be
      used directly or indirectly to fund any operations in, finance any investments
      or activities in or make any payments to, a Sanctioned Person or a Sanctioned
      Country.

    


    6.27        Compliance
      with FCPA.

    


    Each
      of
      the Credit Parties and their Subsidiaries is in compliance with the Foreign
      Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et
      seq.,
      and any
      foreign counterpart thereto. None of the Credit Parties or their Subsidiaries
      has made a payment, offering, or promise to pay, or authorized the payment
      of,
      money or anything of value (a) in order to assist in obtaining or retaining
      business for or with, or directing business to, any foreign official, foreign
      political party, party official or candidate for foreign political office,
      (b) to a foreign official, foreign political party or party official or any
      candidate for foreign political office, and (c) with the intent to induce
      the recipient to misuse his or her official position to direct business
      wrongfully to such Credit Party or its Subsidiary or to any other Person, in
      violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1,
et
      seq. 

     

    
      
        
        

      

      
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    SECTION
      7

    


    AFFIRMATIVE
      COVENANTS

    


    Each
      Credit Party hereby covenants and agrees that so long as this Credit Agreement
      is in effect or any amounts payable hereunder or under any other Credit Document
      shall remain outstanding, and until all of the Commitments hereunder shall
      have
      terminated:

    


    7.1          
      Information
      Covenants.

    


    The
      Borrower will furnish, or cause to be furnished, to the Agent and each of the
      Lenders:

    


    (a)          
      Annual
      Financial Statements.
      As soon
      as available, and in any event within ninety (90) days after the close of
      each fiscal year of the Consolidated Parties, a consolidated balance sheet
      and
      income statement of the Consolidated Parties, as of the end of such fiscal
      year,
      together with related consolidated statements of operations and retained
      earnings and of cash flows for such fiscal year, setting forth in comparative
      form consolidated figures for the preceding fiscal year, all such financial
      information described above to be in reasonable form and detail and audited
      by
      independent certified public accountants of recognized national standing
      reasonably acceptable to the Agent and whose opinion shall be to the effect
      that
      such financial statements have been prepared in accordance with GAAP (except
      for
      changes with which such accountants concur) and shall not be limited as to
      the
      scope of the audit or qualified as to the status of the Consolidated Parties
      as
      a going concern. 

    


    (b)          
      Quarterly
      Financial Statements.
      As soon
      as available, and in any event within forty-five (45) days after the close
      of each fiscal quarter of the Consolidated Parties (other than the fourth fiscal
      quarter, in which case ninety (90) days after the end thereof) a
      consolidated balance sheet and income statement of the Consolidated Parties,
      as
      of the end of such fiscal quarter, together with related consolidated statements
      of operations and retained earnings and of cash flows for such fiscal quarter
      in
      each case setting forth in comparative form consolidated figures for the
      corresponding period of the preceding fiscal year, all such financial
      information described above to be in reasonable form and detail and reasonably
      acceptable to the Agent, and accompanied by a certificate of a Responsible
      Officer to the effect that such quarterly financial statements fairly present
      in
      all material respects the financial condition of the Consolidated Parties and
      have been prepared in accordance with GAAP, subject to changes resulting from
      audit and normal year-end audit adjustments.

    


    (c)          
      [Reserved].

     

    
      
        
        

      

      
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    (d)          
      Officer’s
      Certificate.
      At the
      time of delivery of the financial statements provided for in
      Sections 7.1(a) and 7.1(b) above, a certificate of a Responsible Officer
      substantially in the form of Exhibit 7.1(d),
      (i) demonstrating compliance with the financial covenants contained in
      Section 7.11 by calculation thereof as of the end of each such fiscal
      period and (ii) stating that no Default or Event of Default exists, or if
      any Default or Event of Default does exist, specifying the nature and extent
      thereof and what action the Credit Parties propose to take with respect
      thereto.

    


    (e)          
      Annual
      Business Plan and Budgets.
      Within
      thirty (30) days after the end of each fiscal year of the Borrower,
      beginning with the fiscal year ending 2007, an annual business plan and budget
      of the Consolidated Parties containing, among other things, projected financial
      statements for the next fiscal year.

    


    (f)          
      Compliance
      With Certain Provisions of the Credit Agreement.
      Within
      ninety (90) days after the end of each fiscal year of the Borrower, a
      certificate containing information regarding the amount of all Asset
      Dispositions that were made during the prior fiscal year.

    


    (g)          
      [Reserved].
      

    


    (h)          
      Auditor’s
      Reports.
      Promptly upon receipt thereof, a copy of any other report or “management letter”
submitted by independent accountants to any Consolidated Party in connection
      with any annual, interim or special audit of the books of such
      Person.

    


    (i)          
      Reports.
      Promptly upon transmission or receipt thereof, (i) copies of any filings
      and registrations with, and reports to or from, the SEC, or any successor
      agency, and copies of all financial statements, proxy statements, notices and
      reports as any Consolidated Party shall send to its shareholders or to a holder
      of any Indebtedness owed by any Consolidated Party in its capacity as such
      a
      holder and (ii) upon the request of the Agent, all reports and written
      information to and from the United States Environmental Protection Agency,
      or
      any state or local agency responsible for environmental matters, the United
      States Occupational Health and Safety Administration, or any state or local
      agency responsible for health and safety matters, or any successor agencies
      or
      authorities concerning environmental, health or safety matters. Documents
      required to be delivered pursuant to this clause (to the extent any such
      documents are included in materials otherwise filed with the SEC) may be
      delivered electronically and if so delivered, shall be deemed to have been
      delivered on the date (i) on which the Borrower posts such documents, or
      provides a link thereto on the Borrower’s website on the Internet; or (ii) on
      which such documents are posted on the Borrower’s behalf on an Internet or
      intranet website, if any, to which each Lender and the Agent have access
      (whether a commercial, third party website or sponsored by the Agent); provided
      that the Borrower shall notify the Administrative Agent (by telecopier or
      electronic mail) of the posting of any such documents and, upon the
      Administrative Agent’s request, provide to the Agent by electronic mail
      electronic versions (i.e., soft copies) of such documents. 

     

    
      
        
        

      

      
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    (j)           
      Notices.
      Upon
      obtaining knowledge thereof, the Borrower will give written notice to the Agent
      immediately of (i) the occurrence of an event or condition consisting of a
      Default or Event of Default, specifying the nature and existence thereof and
      what action the Credit Parties propose to take with respect thereto, and
      (ii) the occurrence of any of the following with respect to any
      Consolidated Party (A) the pendency or commencement of any litigation,
      arbitral or governmental proceeding against such Person which if adversely
      determined is likely to have a Material Adverse Effect, (B) the institution
      of any proceedings against such Person with respect to, or the receipt of notice
      by such Person of potential liability or responsibility for violation, or
      alleged violation of any federal, state or local law, rule or regulation,
      including but not limited to, Environmental Laws, the violation of which could
      have a Material Adverse Effect, or (C) any notice or determination
      concerning the imposition of any withdrawal liability by a Multiemployer Plan
      against such Person or any ERISA Affiliate, the determination that a
      Multiemployer Plan is, or is expected to be, in reorganization within the
      meaning of Title IV of ERISA or the termination of any Plan.

    


    (k)          
      ERISA.
      Upon
      obtaining knowledge thereof, the Borrower will give written notice to the Agent
      promptly (and in any event within five business days) of: (i) of any event
      or condition, including, but not limited to, any Reportable Event, that
      constitutes, or might reasonably lead to, an ERISA Event; (ii) with respect
      to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
      otherwise of any withdrawal liability assessed against the Borrower or any
      of
      its ERISA Affiliates, or of a determination that any Multiemployer Plan is
      in
      reorganization or insolvent (both within the meaning of Title IV of ERISA);
      (iii) the failure to make full payment on or before the due date (including
      extensions) thereof of all amounts which any Consolidated Party or any ERISA
      Affiliate is required to contribute to each Plan pursuant to its terms and
      as
      required to meet the minimum funding standard set forth in ERISA and the Code
      with respect thereto; or (iv) any change in the funding status of any Plan
      that could have a Material Adverse Effect, together with a description of any
      such event or condition or a copy of any such notice and a statement by the
      chief financial officer of the Borrower briefly setting forth the details
      regarding such event, condition, or notice, and the action, if any, which has
      been or is being taken or is proposed to be taken by the Credit Parties with
      respect thereto. Promptly upon request, the Credit Parties shall furnish the
      Agent and the Lenders with such additional information concerning any Plan
      as
      may be reasonably requested, including, but not limited to, copies of each
      annual report/return (Form 5500 series), as well as all schedules and
      attachments thereto required to be filed with the Department of Labor and/or
      the
      Internal Revenue Service pursuant to ERISA and the Code, respectively, for
      each
“plan year” (within the meaning of Section 3(39) of ERISA).

    


    (l)           
      Other
      Information.
      With
      reasonable promptness upon any such request, such other information regarding
      the business, properties or financial condition of any Consolidated Party as
      the
      Agent or the Required Lenders may reasonably request.

     

    
      
        
        

      

      
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    7.2          Preservation
      of Existence and Franchises.

    


    Except
      as
      a result of or in connection with a dissolution, merger or disposition of a
      Subsidiary permitted under Section 8.4 or Section 8.5, each Credit
      Party will, and will cause each of its Subsidiaries to, do all things necessary
      to preserve and keep in full force and effect its existence, rights, franchises
      and authority.

    


    7.3          Books
      and Records.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, keep complete
      and
      accurate books and records of its transactions in accordance with good
      accounting practices on the basis of GAAP (including the establishment and
      maintenance of appropriate reserves). 

    


    7.4          Compliance
      with Law.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, comply with
      all
      laws, rules, regulations and orders, and all applicable restrictions imposed
      by
      all Governmental Authorities, applicable to it and its Property if noncompliance
      with any such law, rule, regulation, order or restriction could have a Material
      Adverse Effect.

    


    7.5          Payment
      of Taxes and Other Indebtedness.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, pay and discharge
      (a) all taxes, assessments and governmental charges or levies imposed upon
      it, or upon its income or profits, or upon any of its properties, before they
      shall become delinquent, (b) all lawful claims (including claims for labor,
      materials and supplies) which, if unpaid, might give rise to a Lien upon any
      of
      its properties, and (c) except as prohibited hereunder, all of its other
      Indebtedness as it shall become due; provided,
      however,
      that no
      Consolidated Party shall be required to pay any such tax, assessment, charge,
      levy, claim or Indebtedness which is being contested in good faith by
      appropriate proceedings and as to which adequate reserves therefor have been
      established in accordance with GAAP, unless the failure to make any such payment
      (i) could give rise to an immediate right to foreclose on a Lien securing
      such amounts or (ii) could have a Material Adverse Effect.

    


    7.6          Insurance.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, at all times
      maintain in full force and effect insurance (including worker’s compensation
      insurance, liability insurance, casualty insurance and business interruption
      insurance) in such amounts, covering such risks and liabilities and with such
      deductibles or self-insurance retentions as are in accordance with normal
      industry practice (or as otherwise required by the Collateral Documents). The
      Agent shall be named as loss payee or mortgagee, as its interest may appear,
      and/or additional insured with respect to any such insurance providing coverage
      in respect of any Collateral, and each provider of any such insurance shall
      agree, by endorsement upon the policy or policies issued by it or by independent
      instruments furnished to the Agent, that it will give the Agent thirty (30)
      days prior written notice before any such policy or policies shall be altered
      or
      canceled, and that no act or default of any Consolidated Party or any other
      Person shall affect the rights of the Agent or the Lenders under such policy
      or
      policies. The present insurance coverage of the Consolidated Parties is outlined
      as to carrier, policy number, expiration date, type and amount on Schedule 7.6.

     

    
      
        
        

      

      
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    7.7          Maintenance
      of Property.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, maintain and
      preserve its properties and equipment material to the conduct of its business
      in
      good repair, working order and condition, normal wear and tear and casualty
      and
      condemnation excepted, and will make, or cause to be made, in such properties
      and equipment from time to time all repairs, renewals, replacements, extensions,
      additions, betterments and improvements thereto as may be needed or proper,
      to
      the extent and in the manner customary for companies in similar
      businesses.

    


    7.8          Performance
      of Obligations.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, perform in all
      material respects all of its obligations under the terms of all material
      agreements, indentures, mortgages, security agreements or other debt instruments
      to which it is a party or by which it is bound.

    


    7.9          Use
      of
      Proceeds.

    


    The
      Borrower will use the proceeds of the Loans and will use the Letters of Credit
      solely for the purposes set forth in Section 6.15.

    


    7.10        Audits/Inspections.

    


    Upon
      reasonable notice and during normal business hours, each Credit Party will,
      and
      will cause each of its Subsidiaries to, permit representatives appointed by
      the
      Agent, including, without limitation, independent accountants, agents,
      attorneys, and appraisers to visit and inspect its property, including its
      books
      and records, its accounts receivable and inventory, its facilities and its
      other
      business assets, and to make photocopies or photographs thereof and to write
      down and record any information such representative obtains and shall permit
      the
      Agent or its representatives to investigate and verify the accuracy of
      information provided to the Lenders and to discuss all such matters with the
      officers, employees and representatives of such Person. The Credit Parties
      agree
      that the Agent, and its representatives, may conduct an annual audit of the
      Collateral, at the expense of the Borrower.

    


    7.11        Financial
      Covenants.

    


    (a)          
      Fixed
      Charge Coverage Ratio.
      The
      Fixed Charge Coverage Ratio, as of the last day of each fiscal quarter of the
      Consolidated Parties for each date of determination occurring during each of
      the
      periods listed below, shall be greater than or equal to:

     

    

      
        	
                 Period

              	 	
                 Ratio

              
	
                Closing
                  Date through Fiscal year 2008

              	 	
                1.30
                  to 1.0

              
	
                Fiscal
                  year 2009 and thereafter

              	 	
                1.80
                  to 1.0

              


      

    

     

    
      
        
        

      

      
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    (b)          
      Leverage
      Ratio.
      The
      Leverage Ratio, as of the last day of each fiscal quarter of the Consolidated
      Parties for each date of determination shall be less than or equal to 3.50
      to
      1.0. 

    


    7.12        Additional
      Credit Parties.

    


    On
      June 30 and December 31 of each fiscal year, the Borrower shall
      provide the Agent with written notice of any Person that has since become a
      Subsidiary of any Credit Party, setting forth information in reasonable detail
      describing all of the assets of such Person and shall (a) if such Person is
      a Domestic Subsidiary of a Credit Party, cause such Person to execute a Joinder
      Agreement in substantially the same form as Exhibit 7.12,
      (b) cause 100% (if such Person is a Domestic Subsidiary of a Credit Party)
      or 65% (if such Person is a direct Foreign Subsidiary of a Credit Party) of
      the
      Capital Stock of such Person to be delivered to the Agent (together with undated
      stock powers signed in blank (unless, with respect to a Foreign Subsidiary,
      such
      stock powers are deemed unnecessary by the Agent in its reasonable discretion
      under the law of the jurisdiction of incorporation of such Person)) and pledged
      to the Agent pursuant to an appropriate pledge agreement(s) in substantially
      the
      form of the Pledge Agreement and otherwise in form acceptable to the Agent
      and
      (c) cause such Person to provide certified resolutions and other
      organizational and authorizing documents of such Person, favorable opinions
      of
      counsel to such Person (which shall cover, among other things, the legality,
      validity, binding effect and enforceability of the documentation referred to
      above and the perfection of the Agent’s liens thereunder) and other items of the
      types required to be delivered pursuant to Section 5.1(e), all in form, content
      and scope reasonably satisfactory to the Agent.

    


    7.13        Pledged
      Assets.

    


    Each
      Credit Party will, and will cause each of its Subsidiaries to, cause
      (a) all of its owned personal property located in the United States and
      (b) to the extent deemed to be material by the Agent or the Required
      Lenders in its or their sole reasonable discretion, all of its other owned
      personal property, to be subject at all times to first priority, perfected
      Liens
      in favor of the Agent pursuant to the terms and conditions of the Collateral
      Documents or, with respect to any such property acquired subsequent to the
      Closing Date, such other additional security documents as the Agent shall
      reasonably request. Without limiting the generality of the above, on
      June 30 and December 31 of each fiscal year, the Credit Parties will
      cause 100% of the Capital Stock or other equity interest in each of their direct
      or indirect Domestic Subsidiaries and 65% of the Capital Stock or other equity
      interest in each of their direct Foreign Subsidiaries to be subject at all
      times
      to a first priority, perfected Lien in favor of the Agent pursuant to the terms
      and conditions of the Collateral Documents or such other security documents
      as
      the Agent shall reasonably request.

    


    If,
      subsequent to the Closing Date, a Credit Party shall acquire any intellectual
      property, securities, instruments, chattel paper or other personal property
      required to be delivered to the Agent as Collateral hereunder or under any
      of
      the Collateral Documents, the Borrower shall, by June 30 and
      December 31 of each fiscal year, notify the Agent of same.

     

    
      
        
        

      

      
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    7.14       
      Landlord
      Waivers.

    


    In
      the
      case of any personal property Collateral located at premises leased by a Credit
      Party with a value in excess of $1,500,000, the Credit Parties will provide
      the
      Administrative Agent with such estoppel letters, consents and waivers from
      the
      landlords on
      such
      real property to the extent (a)
      requested by the Administrative Agent and (b)
      the
      Borrower is able to secure such letters, consents and waivers after using
      commercially reasonable efforts (such letters, consents and waivers shall be
      in
      form and substance satisfactory to the Administrative Agent); provided
      that it
      is acknowledged and agreed that the Borrower shall not be required to change
      or
      alter any terms of any lease in order to secure any such letter, consent or
      waiver.

    


    7.15       
      Post-Closing
      Requirements; Further Assurances.

    


    (a)          
      Within
      thirty (30) days after the Closing Date (or such extended period of time as
      agreed to by the Administrative Agent), the Administrative Agent shall have
      received evidence that all chain-of-title issues with respect to the
      Intellectual Property of the Credit Parties have been resolved to the
      satisfaction of the Administrative Agent. 

    


    (b)          
      Within
      thirty (30) days after the Closing Date (or such extended period of time as
      agreed to by the Administrative Agent), the Administrative Agent shall have
      received all stock or membership certificates that are not delivered on or
      prior
      to the Closing Date, together with duly executed in blank undated stock or
      transfer powers.

    


    (c)          
      Within
      thirty (30) days after the Closing Date (or such extended period of time as
      agreed to by the Administrative Agent), the Administrative Agent shall have
      received evidence that Financing Statement Number 2004029728-5 filed against
      RA
      Sushi Las Vegas Corporation by Sysco Food Services of Las Vegas, Inc. in the
      Nevada Secretary of State’s office has been terminated of record.

    


    (d)          
      Upon
      the
      reasonable request of the Administrative Agent, promptly perform or cause to
      be
      performed any and all acts and execute or cause to be executed any and all
      documents for filing under the provisions of the Uniform Commercial Code or
      any
      other Requirement of Law which are necessary or advisable to maintain in favor
      of the Administrative Agent, for the benefit of the Lenders, Liens on the
      Collateral that are duly perfected in accordance with the requirements of,
      or
      the obligations of the Credit Parties under, the Credit Documents and all
      applicable Requirements of Law.

    


    
      
        
        

      

      
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    SECTION
      8

    


    NEGATIVE
      COVENANTS

    


    Each
      Credit Party hereby covenants and agrees that, so long as this Credit Agreement
      is in effect or any amounts payable hereunder or under any other Credit Document
      shall remain outstanding, and until all of the Commitments hereunder shall
      have
      terminated:

    


    8.1          Indebtedness.

    


    The
      Credit Parties will not permit any Consolidated Party to contract, create,
      incur, assume or permit to exist any Indebtedness, except:

    


    (a)          
      Indebtedness
      arising under this Credit Agreement and the other Credit Documents;

    


    (b)          
      Indebtedness
      of the Borrower and its Subsidiaries set forth in Schedule 8.1
      (and
      renewals, refinancings and extensions thereof on terms and conditions no less
      favorable to such Person than such existing Indebtedness);

    


    (c)          
      purchase
      money Indebtedness consisting of Capital Leases;

    


    (d)          obligations
      of the Borrower or any of its Subsidiaries in respect of Hedging Agreements
      entered into in order to manage existing or anticipated interest rate or
      exchange rate risks and not for speculative purposes;

    


    (e)          
      intercompany
      Indebtedness arising out of loans and advances permitted under
      Section 8.6;

    


    (f)          
      in
      addition to the Indebtedness otherwise permitted by this Section 8.1, other
      Indebtedness hereafter incurred by the Borrower or any of its Subsidiaries
      in an
      aggregate amount not to exceed $2,000,000 at any time outstanding; 

    


    (g)          
      Indebtedness
      incurred under take-or-pay or similar arrangements or under commodities
      agreements entered into in the ordinary course of business; provided
      that the
      term of such arrangement is twelve (12) months or less; and
      

    


    (h)          
      the
      Permitted Preferred Stock.

    


    8.2         
      Liens.

    


    The
      Credit Parties will not permit any Consolidated Party to contract, create,
      incur, assume or permit to exist any Lien with respect to any of its Property,
      whether now owned or after acquired, except for Permitted Liens.

     

    
      
        
        

      

      
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    8.3         
      Nature
      of Business.

    


    The
      Credit Parties will not permit any Consolidated Party to substantively alter
      the
      character or conduct of the business conducted by such Person as of the Closing
      Date.

    


    8.4        
       Consolidation,
      Merger, Dissolution, etc.

    


    Except
      in
      connection with an Asset Disposition permitted by the terms of Section 8.5,
      the Credit Parties will not permit any Consolidated Party to (a)
      dissolve, liquidate or
      wind
      up their affairs except that any Guarantor may wind up, liquidate and dissolve,
      provided,
      that,
      each of
      the following conditions is satisfied, (i) the winding up, liquidation and
      dissolution of such Guarantor shall not violate any law or any order or decree
      of any court or other Governmental Authority in any material respect and shall
      not conflict with or result in the breach of, or constitute a default under,
      any
      indenture, mortgage, deed of trust, or any other agreement or instrument to
      which such Guarantor is a party or may be bound, (ii) such winding up,
      liquidation or dissolution shall be done in accordance with the requirements
      of
      all applicable laws and regulations, (iii) effective upon such winding up,
      liquidation or dissolution, all of the assets and properties of such Guarantor
      shall be duly and validly transferred and assigned to Borrower or another
      Guarantor, free and clear of any liens, restrictions or encumbrances other
      than
      the security interest and liens of the Agent and any Lien on such assets
      existing at the time of such dissolution or liquidation (and the Agent shall
      have received such evidence thereof as the Agent may require) and the Agent
      shall have received such deeds, assignments or other agreements as the Agent
      may
      request to evidence and confirm the transfer of such assets to of such Guarantor
      to the Borrower or the other Guarantor, (iv) the Agent shall have received
      within five (5) Business Days of receipt by a Guarantor thereof, certified
      copies of all documents and agreements that such Guarantor has filed with any
      Governmental Authority or as are otherwise required to effectuate such winding
      up, liquidation or dissolution, (v) no Guarantor shall assume any Indebtedness,
      obligations or liabilities as a result of such winding up, liquidation or
      dissolution, or otherwise become liable in respect of any obligations or
      liabilities of the entity that is winding up, liquidating or dissolving, unless
      such Indebtedness is otherwise expressly permitted hereunder, (vi) the Agent
      shall have received not less than ten (10) Business Days prior written notice
      of
      the intention of such Guarantor to wind up, liquidate or dissolve, and (vii)
      as
      of the date of such winding up, liquidation or dissolution and after giving
      effect thereto, no Default or Event of Default shall have occurred or be
      continuing, (b)
      enter
      into any transaction of merger or consolidation; provided,
      however
      that the
      Borrower may merge or consolidate with any Subsidiary so long as the Borrower
      shall be the continuing or surviving corporation or (c)
      acquire
      all or substantially all of the assets, property and/or operations of any Person
      other than Permitted Acquisitions. 

    


    8.5         
      Asset
      Dispositions.

    


    The
      Credit Parties will not permit any Consolidated Party to make any Asset
      Disposition (including, without limitation, any Sale and Leaseback Transaction)
      other than Excluded Asset Dispositions unless (a) the consideration paid in
      connection therewith is cash or Cash Equivalents, (b) if such transaction
      is a Sale and Leaseback Transaction, such transaction is permitted by the terms
      of Section 8.12, and (c) the aggregate net book value of all of the
      assets sold or otherwise disposed of by the Consolidated Parties in all such
      transactions after the Closing Date shall not exceed $10,000,000.

     

    
      
        
        

      

      
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    Upon
      a
      sale of assets or the sale of Capital Stock of a Consolidated Party permitted
      by
      this Section 8.5, the Agent shall (to the extent applicable) deliver to the
      Borrower, upon the Borrower’s request and at the Borrower’s expense, such
      documentation as is reasonably necessary to evidence the release of the Agent’s
      security interest, if any, in such assets or Capital Stock, including, without
      limitation, amendments or terminations of UCC financing statements, if any,
      the
      return of stock certificates, if any, and the release of such Subsidiary from
      all of its obligations, if any, under the Credit Documents.

    


    8.6         
      Investments.

    


    The
      Credit Parties will not permit any Consolidated Party to make Investments in
      or
      to any Person, except for Permitted Investments.

    


    8.7         
      Restricted
      Payments.

    


    The
      Credit Parties will not permit any Consolidated Party to, directly or
      indirectly, declare, order, make or set apart any sum for or pay any Restricted
      Payment, except (a) to make dividends payable solely in the same class of
      Capital Stock (or in another class of Capital Stock to the extent no cash
      payments are paid) of such Person, (b) to make dividends or other
      distributions payable to the Borrower (directly or indirectly through
      Subsidiaries) or any redemption, retirement, sinking fund or similar payment
      to
      the Borrower (directly or indirectly through Subsidiaries) and (c) so long
      as no Default or Event of Default shall have occurred and be continuing, or
      would result therefrom, to make dividends or payments to the holders of the
      Permitted Preferred Stock pursuant to the Certificate of Designations and the
      Stock Purchase Agreement. 

    


    8.8         
      Transactions
      with Affiliates.

    


    Except
      for the transactions referenced on Schedule 8.8,
      the
      Credit Parties will not permit any Consolidated Party to enter into or permit
      to
      exist any transaction or series of transactions with any officer, director,
      shareholder, Subsidiary or Affiliate of such Person other than (a) advances
      of working capital to any Credit Party, (b) transfers of cash and assets to
      any Credit Party, (c) transactions permitted by Section 8.1,
      Section 8.4, Section 8.5, Section 8.6, or Section 8.7,
      (d) normal compensation and reimbursement of, and indemnification against,
      expenses of officers and directors as approved by the Board of Directors (or
      any
      duly appointed committee thereof) in its reasonable discretion and
      (e) except as otherwise specifically limited in this Credit Agreement,
      other transactions which are entered into in the ordinary course of such
      Person’s business on terms and conditions substantially as favorable to such
      Person as would be obtainable by it in a comparable arms-length transaction
      with
      a Person other than an officer, director, shareholder, Subsidiary or
      Affiliate.

     

    
      
        
        

      

      
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    8.9         
      Fiscal
      Year; Organizational Documents.

    


    The
      Credit Parties will not permit any Consolidated Party to change its fiscal
      year
      or amend, modify or change its articles of incorporation (or corporate charter
      or other similar organizational document) or bylaws (or other similar document)
      without the prior written consent of the Required Lenders.

    


    8.10        Limitation
      on Restricted Actions.

    


    The
      Credit Parties will not permit any Consolidated Party to

    


    (a)          directly
      or indirectly, create or otherwise cause or suffer to exist or become effective
      any encumbrance or restriction on the ability of any such Person to (i) pay
      dividends or make any other distributions to any Credit Party on its Capital
      Stock or with respect to any other interest or participation in, or measured
      by,
      its profits, (ii) pay any Indebtedness or other obligation owed to any
      Credit Party, (iii) make loans or advances to any Credit Party,
      (iv) sell, lease or transfer any of its properties or assets to any Credit
      Party, or (v) act as a Guarantor and pledge its assets pursuant to the
      Credit Documents or any renewals, refinancings, exchanges, refundings or
      extension thereof, except (in respect of any of the matters referred to in
      clauses (i)-(v) above) for such encumbrances or restrictions existing under
      or by reason of (A) this Credit Agreement and the other Credit Documents,
      (B) applicable law or (C) any document or instrument governing
      Indebtedness incurred pursuant to Section 8.1(c), provided,
      however,
      that
      any such restriction contained therein relates only to the asset or assets
      constructed or acquired in connection therewith; or

    


    (b)          enter
      into, assume or become subject to any agreement prohibiting or otherwise
      restricting the creation or assumption of any Lien upon its properties or
      assets, whether now owned or hereafter acquired, or requiring the grant of
      any
      security for such obligation if security is given for some other obligation,
      except (i) pursuant to this Credit Agreement and the other Credit
      Documents, and (ii) pursuant to any document or instrument governing
      Indebtedness incurred pursuant to Section 8.1(c), provided,
      however,
      that
      any such restriction contained therein relates only to the asset or assets
      constructed or acquired in connection therewith.

    


    8.11      
      Ownership
      of Subsidiaries.

    


    Notwithstanding
      any other provisions of this Credit Agreement to the contrary, the Credit
      Parties will not permit any Consolidated Party to (a) permit any Person
      (other than the Borrower, BOT (and those Persons who beneficially own the
      Capital Stock of BOT as of the Closing Date), BFC Financial Corporation or
      any
      Wholly-Owned Subsidiary of the Borrower) to own more than twenty-five percent
      (25%) of any Subsidiary of the Borrower, (b) permit any Subsidiary of the
      Borrower to issue Capital Stock (except to the Borrower or to a Wholly-Owned
      Subsidiary of the Borrower), and (c) permit, create, incur, assume or
      suffer to exist any Lien thereon, in each case except (i) to qualify
      directors where required by applicable law or to satisfy other requirements
      of
      applicable law with respect to the ownership of Capital Stock of Foreign
      Subsidiaries, (ii) as a result of or in connection with a dissolution,
      merger or disposition of a Subsidiary permitted under Section 8.4 or
      Section 8.5 or (iii) for Permitted Liens.

     

    
      
        
        

      

      
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    8.12       
      Sale
      Leasebacks.

    


    The
      Credit Parties will not permit any Consolidated Party to, directly or
      indirectly, become or remain liable as lessee or as guarantor or other surety
      with respect to any lease, whether an Operating Lease or a Capital Lease, of
      any
      Property (whether real, personal or mixed), whether now owned or hereafter
      acquired, (a) which such Consolidated Party has sold or transferred or is
      to sell or transfer to a Person which is not a Consolidated Party or
      (b) which such Consolidated Party intends to use for substantially the same
      purpose as any other Property which has been sold or is to be sold or
      transferred by such Consolidated Party to another Person which is not a
      Consolidated Party in connection with such lease.

    


    8.13       
      [Reserved].

    


    8.14       
      Stock
      Purchase Agreement.

    


    The
      Borrower shall not, nor shall it permit any Consolidated Party to, redeem the
      Permitted Preferred Stock for cash on an Early Redemption Date (as defined
      in
      the Certificate of Designations). 

    


    


    SECTION
      9

    


    EVENTS
      OF DEFAULT

    


    9.1         
      Events
      of Default.

    


    An
      Event
      of Default shall exist upon the occurrence of any of the following specified
      events (each an “Event
      of Default”):

    


    (a)          
      Payment.
      Any
      Credit Party shall 

    


    (i)          
      default
      in the payment when due of any principal of any of the Loans or of any
      reimbursement obligations arising from drawings under Letters of Credit, or
      

    


    (ii)          default,
      and such default shall continue for five (5) or more Business Days, in the
      payment when due of any interest on the Loans or on any reimbursement
      obligations arising from drawings under Letters of Credit, or of any Fees or
      other amounts owing hereunder, under any of the other Credit Documents or in
      connection herewith or therewith; or

    


    (b)          
      Representations.
      Any
      representation, warranty or statement made or deemed to be made by any Credit
      Party herein, in any of the other Credit Documents, or in any statement or
      certificate delivered or required to be delivered pursuant hereto or thereto
      shall prove untrue in any material respect on the date as of which it was deemed
      to have been made; or

     

    
      
        
        

      

      
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    (c)          
      Covenants.
      Any
      Credit Party shall 

    


    (i)          
      default
      in the due performance or observance of any term, covenant or agreement
      contained in Sections 7.2, 7.9, 7.11, 7.12, 7.13 or 8.1 through 8.13,
      inclusive;

    


    (ii)          default
      in the due performance or observance of any term, covenant or agreement
      contained in Sections 7.1(a), (b), (c) or (d) and such default shall
      continue unremedied for a period of at least ten (10) days after the
      earlier of a responsible officer of a Credit Party becoming aware of such
      default or notice thereof by the Agent; or 

    


    (iii)         default
      in the due performance or observance by it of any term, covenant or agreement
      (other than those referred to in subsections (a), (b), (c)(i) or (c)(ii) of
      this Section 9.1) contained in this Credit Agreement and such default shall
      continue unremedied for a period of at least thirty (30) days after the
      earlier of a responsible officer of a Credit Party becoming aware of such
      default or notice thereof by the Agent; or 

    


    (d)          Other
      Credit Documents.
      (i) Any Credit Party shall default in the due performance or observance of
      any term, covenant or agreement in any of the other Credit Documents (subject
      to
      applicable grace or cure periods, if any), or (ii) except as a result of or
      in connection with a dissolution, merger or disposition of a Subsidiary
      permitted under Section 8.4 or Section 8.5, any Credit Document shall
      fail to be in full force and effect or to give the Agent and/or the Lenders
      the
      Liens, rights, powers and privileges purported to be created thereby, or any
      Credit Party shall so state in writing; or

    


    (e)          
      Guaranties.
      Except
      as the result of or in connection with a dissolution, merger or disposition
      of a
      Subsidiary permitted under Section 8.4 or Section 8.5, the guaranty
      given by any Guarantor hereunder (including any Additional Credit Party) or
      any
      provision thereof shall cease to be in full force and effect, or any Guarantor
      (including any Additional Credit Party) hereunder or any Person acting by or
      on
      behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations
      under such guaranty, or any Guarantor shall default in the due performance
      or
      observance of any term, covenant or agreement on its part to be performed or
      observed pursuant to any guaranty; or

    


    (f)          
      Bankruptcy,
      etc.
      Any
      Bankruptcy Event shall occur with respect to any Consolidated Party;
      or

     

    
      
        
        

      

      
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    (g)          
      Defaults
      under Other Agreements.

    


    (i)          
      Any
      Consolidated Party shall default in the performance or observance (beyond the
      applicable grace period with respect thereto, if any) or any material obligation
      or condition of any contract or lease material to the Consolidated Parties;
      or

    


    (ii)          With
      respect to any Indebtedness (other than Indebtedness outstanding under this
      Credit Agreement) in excess of $1,000,000 in the aggregate for the Consolidated
      Parties taken as a whole, (A) any Consolidated Party shall (1) default
      in any payment (beyond the applicable grace period with respect thereto, if
      any)
      with respect to any such Indebtedness, or (2) the occurrence and
      continuance of a default in the observance or performance relating to such
      Indebtedness or contained in any instrument or agreement evidencing, securing
      or
      relating thereto, or any other event or condition shall occur or condition
      exist, the effect of which default or other event or condition is to cause,
      or
      permit, the holder or holders of such Indebtedness (or trustee or agent on
      behalf of such holders) to cause (determined without regard to whether any
      notice or lapse of time is required), any such Indebtedness to become due prior
      to its stated maturity; or (B) any such Indebtedness shall be declared due
      and payable, or required to be prepaid other than by a regularly scheduled
      required prepayment, prior to the stated maturity thereof; or

    


    (h)          Judgments.
      One or
      more judgments or decrees shall be entered against one or more of the
      Consolidated Parties involving a liability of $1,000,000 or more in the
      aggregate (to the extent not paid or fully covered by insurance provided by
      a
      carrier who has acknowledged coverage and has the ability to perform) and any
      such judgments or decrees shall not have been vacated, discharged or stayed
      or
      bonded pending appeal within thirty (30) days from the entry thereof;
      or

    


    (i)          
      ERISA.
      Any of
      the following events or conditions, if such event or condition could have a
      Material Adverse Effect: (i) any “accumulated funding deficiency,” as such
      term is defined in Section 302 of ERISA and Section 412 of the Code,
      whether or not waived, shall exist with respect to any Plan, or any lien shall
      arise on the assets of any Consolidated Party or any ERISA Affiliate in favor
      of
      the PBGC or a Plan; (ii) an ERISA Event shall occur with respect to a
      Single Employer Plan, which is, in the reasonable opinion of the Agent, likely
      to result in the termination of such Plan for purposes of Title IV of ERISA;
      (iii) an ERISA Event shall occur with respect to a Multiemployer Plan or
      Multiple Employer Plan, which is, in the reasonable opinion of the Agent, likely
      to result in (A) the termination of such Plan for purposes of Title IV
      of ERISA, or (B) any Consolidated Party or any ERISA Affiliate incurring
      any liability in connection with a withdrawal from, reorganization of (within
      the meaning of Section 4241 of ERISA), or insolvency or (within the meaning
      of Section 4245 of ERISA) such Plan; or (iv) any prohibited
      transaction (within the meaning of Section 406 of ERISA or
      Section 4975 of the Code) or breach of fiduciary responsibility shall occur
      which may subject any Consolidated Party or any ERISA Affiliate to any liability
      under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
      the Code, or under any agreement or other instrument pursuant to which any
      Consolidated Party or any ERISA Affiliate has agreed or is required to indemnify
      any person against any such liability; or

     

    
      
        
        

      

      
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    (j)          
       Ownership.
      There
      shall occur a Change of Control.

    


    (k)          
      Key
      Officer.
      Either
      of the following events or conditions shall occur: (i)  Joel A. Schwartz
      shall cease to be Responsible Officer of the Borrower or (ii) both of Joel
      A. Schwartz and Juan C. Garcia shall cease to be actively engaged in the daily
      management and/or operations of the Borrower.

    


    9.2         
      Acceleration;
      Remedies.

    


    Upon
      the
      occurrence of an Event of Default, and at any time thereafter unless and until
      such Event of Default has been waived by the requisite Lenders (pursuant to
      the
      voting requirements of Section 11.6) or cured to the satisfaction of the
      requisite Lenders (pursuant to the voting procedures in Section11.6), the Agent
      shall, upon the request and direction of the Required Lenders, by written notice
      to the Credit Parties take any of the following actions:

    


    (a)          
      Termination
      of Commitments.
      Declare
      the Commitments terminated whereupon the Commitments shall be immediately
      terminated.

    


    (b)          Acceleration.
      Declare
      the unpaid principal of and any accrued interest in respect of all Loans, any
      reimbursement obligations arising from drawings under Letters of Credit and
      any
      and all other indebtedness or obligations of any and every kind owing by the
      Borrower to the Agent and/or any of the Lenders hereunder to be due whereupon
      the same shall be immediately due and payable without presentment, demand,
      protest or other notice of any kind, all of which are hereby waived by the
      Borrower.

    


    (c)          
      Cash
      Collateral.
      Direct
      the Borrower to pay (and the Borrower agrees that upon receipt of such notice,
      or upon the occurrence of an Event of Default under Section 9.1(f), it will
      immediately pay) to the Agent additional cash, to be held by the Agent, for
      the
      benefit of the Lenders, in a cash collateral account as additional security
      for
      the LOC Obligations in respect of subsequent drawings under all then outstanding
      Letters of Credit in an amount equal to the maximum aggregate amount which
      may
      be drawn under all Letters of Credits then outstanding.

    


    (d)          Enforcement
      of Rights.
      Enforce
      any and all rights and interests created and existing under the Credit Documents
      including, without limitation, all rights and remedies existing under the
      Collateral Documents, all rights and remedies against a Guarantor and all rights
      of set-off.

    


    Notwithstanding
      the foregoing, if an Event of Default specified in Section 9.1(f) shall
      occur, then the Commitments shall automatically terminate and all Loans, all
      reimbursement obligations arising from drawings under Letters of Credit, all
      accrued interest in respect thereof, all accrued and unpaid Fees and other
      indebtedness or obligations owing to the Agent and/or any of the Lenders
      hereunder automatically shall immediately become due and payable without the
      giving of any notice or other action by the Agent or the Lenders.

     

    
      
        
        

      

      
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    SECTION
      10

    


    AGENCY
      PROVISIONS

    


    10.1       
      Appointment,
      Powers and Immunities.

    


    Each
      Lender hereby irrevocably appoints and authorizes the Agent to act as its agent
      under this Credit Agreement and the other Credit Documents with such powers
      and
      discretion as are specifically delegated to the Agent by the terms of this
      Credit Agreement and the other Credit Documents, together with such other powers
      as are reasonably incidental thereto. The Agent (which term as used in this
      sentence and in Section 10.5 and the first sentence of Section 10.6
      hereof shall include its Affiliates and its own and its Affiliates’ officers,
      directors, employees, and agents): (a) shall not have any duties or
      responsibilities except those expressly set forth in this Credit Agreement
      and
      shall not be a trustee or fiduciary for any Lender; (b) shall not be
      responsible to the Lenders for any recital, statement, representation, or
      warranty (whether written or oral) made in or in connection with any Credit
      Document or any certificate or other document referred to or provided for in,
      or
      received by any of them under, any Credit Document, or for the value, validity,
      effectiveness, genuineness, enforceability, or sufficiency of any Credit
      Document, or any other document referred to or provided for therein or for
      any
      failure by any Credit Party or any other Person to perform any of its
      obligations thereunder; (c) shall not be responsible for or have any duty
      to ascertain, inquire into, or verify the performance or observance of any
      covenants or agreements by any Credit Party or the satisfaction of any condition
      or to inspect the property (including the books and records) of any Credit
      Party
      or any of its Subsidiaries or Affiliates; (d) shall not be required to
      initiate or conduct any litigation or collection proceedings under any Credit
      Document; and (e) shall not be responsible for any action taken or omitted
      to be taken by it under or in connection with any Credit Document, except for
      its own gross negligence or willful misconduct. The Agent may employ agents
      and
      attorneys-in-fact and shall not be responsible for the negligence or misconduct
      of any such agents or attorneys-in-fact selected by it with reasonable
      care.

    


    10.2       
      Reliance
      by Agent.

    


    The
      Agent
      shall be entitled to rely upon any certification, notice, instrument, writing,
      or other printed communication (including, without limitation, any thereof
      by
      telecopy) believed by it to be genuine and correct and to have been signed,
      sent
      or made by or on behalf of the proper Person or Persons, and upon advice and
      statements of legal counsel (including counsel for any Credit Party),
      independent accountants, and other experts selected by the Agent. The Agent
      may
      deem and treat the payee of any Note as the holder thereof for all purposes
      hereof unless and until the Agent receives and accepts an Assignment and
      Acceptance executed in accordance with Section 11.3(b) hereof. As to any
      matters not expressly provided for by this Credit Agreement, the Agent shall
      not
      be required to exercise any discretion or take any action, but shall be required
      to act or to refrain from acting (and shall be fully protected in so acting
      or
      refraining from acting) upon the instructions of the Required Lenders, and
      such
      instructions shall be binding on all of the Lenders; provided,
      however,
      that
      the Agent shall not be required to take any action that exposes the Agent to
      personal liability or that is contrary to any Credit Document or applicable
      law
      or unless it shall first be indemnified to its satisfaction by the Lenders
      against any and all liability and expense which may be incurred by it by reason
      of taking any such action.

     

    
      
        
        

      

      
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    10.3       
      Defaults.

    


    The
      Agent
      shall not be deemed to have knowledge or notice of the occurrence of a Default
      or Event of Default unless the Agent has received written notice from a Lender
      or the Borrower specifying such Default or Event of Default and stating that
      such notice is a “Notice of Default”. In the event that the Agent receives such
      a notice of the occurrence of a Default or Event of Default, the Agent shall
      give prompt notice thereof to the Lenders. The Agent shall (subject to
      Section 10.2 hereof) take such action with respect to such Default or Event
      of Default as shall reasonably be directed by the Required Lenders.

    


    10.4       
      Rights
      as a Lender.

    


    With
      respect to its Commitment and the Loans made by it, Wachovia (and any successor
      acting as Agent) in its capacity as a Lender hereunder shall have the same
      rights and powers hereunder as any other Lender and may exercise the same as
      though it were not acting as the Agent, and the term “Lender” or “Lenders”
shall, unless the context otherwise indicates, include the Agent in its
      individual capacity. Wachovia (and any successor acting as Agent) and its
      Affiliates may (without having to account therefor to any Lender) accept
      deposits from, lend money to, make investments in, provide services to, and
      generally engage in any kind of lending, trust, or other business with any
      Credit Party or any of its Subsidiaries or Affiliates as if it were not acting
      as Agent, and Wachovia (and any successor acting as Agent) and its Affiliates
      may accept fees and other consideration from any Credit Party or any of its
      Subsidiaries or Affiliates for services in connection with this Credit Agreement
      or otherwise without having to account for the same to the Lenders.

    


    10.5       
      Indemnification.

    


    The
      Lenders agree to indemnify the Agent (to the extent not reimbursed under
      Section 11.5 hereof, but without limiting the obligations of the Borrower
      under such Section) ratably in accordance with their respective Commitments,
      for
      any and all liabilities, obligations, losses, damages, penalties, actions,
      judgments, suits, costs, expenses (including attorneys’ fees), or disbursements
      of any kind and nature whatsoever that may be imposed on, incurred by or
      asserted against the Agent (including by any Lender) in any way relating to
      or
      arising out of any Credit Document or the transactions contemplated thereby
      or
      any action taken or omitted by the Agent under any Credit Document; provided
      that no
      Lender shall be liable for any of the foregoing to the extent they arise from
      the gross negligence or willful misconduct of the Person to be indemnified.
      Without limitation of the foregoing, each Lender agrees to reimburse the Agent
      promptly upon demand for its ratable share of any costs or expenses payable
      by
      the Borrower under Section 11.5, to the extent that the Agent is not
      promptly reimbursed for such costs and expenses by the Borrower. The agreements
      in this Section 10.5 shall survive the repayment of the Loans, LOC
      Obligations and other obligations under the Credit Documents and the termination
      of the Commitments hereunder.

     

    
      
        
        

      

      
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    10.6       
      Non-Reliance
      on Agent and Other Lenders.

    


    Each
      Lender agrees that it has, independently and without reliance on the Agent
      or
      any other Lender, and based on such documents and information as it has deemed
      appropriate, made its own credit analysis of the Credit Parties and their
      Subsidiaries and decision to enter into this Credit Agreement and that it will,
      independently and without reliance upon the 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 analysis and decisions in taking or not taking action
      under the Credit Documents. Except for notices, reports, and other documents
      and
      information expressly required to be furnished to the Lenders by the Agent
      hereunder, the Agent shall not have any duty or responsibility to provide any
      Lender with any credit or other information concerning the affairs, financial
      condition, or business of any Credit Party or any of its Subsidiaries or
      Affiliates that may come into the possession of the Agent or any of its
      Affiliates.

    


    10.7       
      Successor
      Agent.

    


    The
      Agent
      may resign at any time by giving notice thereof to the Lenders and the Borrower.
      Upon any such resignation, the Required Lenders shall have the right to appoint
      a successor Agent. If no successor Agent shall have been so appointed by the
      Required Lenders and shall have accepted such appointment within
      thirty (30) days after the retiring Agent’s giving of notice of
      resignation, then the retiring Agent may, on behalf of the Lenders, appoint
      a
      successor Agent which shall be a commercial bank organized under the laws of
      the
      United States of America having combined capital and surplus of at least
      $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
      a
      successor, such successor shall thereupon succeed to and become vested with
      all
      the rights, powers, discretion, privileges, and duties of the retiring Agent,
      and the retiring Agent shall be discharged from its duties and obligations
      hereunder. After any retiring Agent’s resignation hereunder as Agent, the
      provisions of this Section 10 shall continue in effect for its benefit in
      respect of any actions taken or omitted to be taken by it while it was acting
      as
      Agent.

     

    
      
        
        

      

      
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    SECTION
      11

    


    MISCELLANEOUS

    


    11.1        Notices.

    


    Except
      as
      otherwise expressly provided herein, all notices and other communications shall
      have been duly given and shall be effective (a) when delivered,
      (b) when transmitted via telecopy (or other electronic or facsimile device)
      to the number set out below, (c) the Business Day following the day on
      which the same has been delivered prepaid to a reputable national overnight
      air
      courier service, or (d) the third Business Day following the day on which
      the same is sent by certified or registered mail, postage prepaid, in each
      case
      to the respective parties at the address, in the case of the Borrower,
      Guarantors and the Agent, set forth below, and, in the case of the Lenders,
      set
      forth on Schedule 2.1(a),
      or at
      such other address as such party may specify by written notice to the other
      parties hereto:

    


    if
      to the
      Borrower or the Guarantors:

    


    BENIHANA
      INC.

    8685
      N.W.
      53rd Terrace

    Miami,
      Florida 33166-4591

    Attention:    Mr.
      Joel
      A. Schwartz

    Telephone:          (305)
      593-0770

    Telecopy:            (305)
      594-9492

    


    if
      to the
      Agent:

    


    Wachovia
      Bank, National Association

    Wachovia
      Financial Center - FL 8004

    200
      South
      Biscayne Blvd., 15th Floor

    Miami,
      Florida 33131

    Attention:    Margarita
      M. Alfonso

    Telephone:          (305)
      789-5057

    Telecopy:            (305)
      789-5008

    


    11.2       
      Right
      of Set-Off; Adjustments.

    


    Upon
      the
      occurrence and during the continuance of any Event of Default, each Lender
      (and
      each of its Affiliates) is hereby authorized at any time and from time to time,
      to the fullest extent permitted by law, to set off and apply any and all
      deposits (general or special, time or demand, provisional or final) at any
      time
      held and other indebtedness at any time owing by such Lender (or any of its
      Affiliates) to or for the credit or the account of any Credit Party against
      any
      and all of the obligations of such Person now or hereafter existing under this
      Credit Agreement, under the Notes, under any other Credit Document or otherwise,
      irrespective of whether such Lender shall have made any demand under hereunder
      or thereunder and although such obligations may be unmatured. Each Lender agrees
      promptly to notify any affected Credit Party after any such set-off and
      application made by such Lender; provided,
      however,
      that
      the failure to give such notice shall not affect the validity of such set-off
      and application. The rights of each Lender under this Section 11.2 are in
      addition to other rights and remedies (including, without limitation, other
      rights of set-off) that such Lender may have.

    


    11.3        Benefit
      of Agreement.

    


    (a)          
      This
      Credit Agreement shall be binding upon and inure to the benefit of and be
      enforceable by the respective successors and assigns of the parties hereto;
      provided
      that
      none of the Credit Parties may assign or transfer any of its interests and
      obligations without prior written consent of the Lenders; provided,
      further
      that the
      rights of each Lender to transfer, assign or grant participations in its rights
      and/or obligations hereunder shall be limited as set forth in this
      Section 11.3.

     

    
      
        
        

      

      
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    (b)          Each
      Lender may assign to one or more Eligible Assignees all or a portion of its
      rights and obligations under this Credit Agreement (including, without
      limitation, all or a portion of its Loans, its Notes, and its Commitment);
      provided,
      however,
      that


    


    (i)          
      each
      such
      assignment shall be to an Eligible Assignee;

    


    (ii)          
      except
      in
      the case of an assignment to another Lender or an assignment of all of a
      Lender’s rights and obligations under this Credit Agreement, any such partial
      assignment shall be in an amount at least equal to $5,000,000 (or, if less,
      the
      remaining amount of the Commitment being assigned by such Lender) or an integral
      multiple of $1,000,000 in excess thereof;

    


    (iii)         each
      such
      assignment by a Lender shall be of a constant, and not varying, percentage
      of
      its Revolving Commitment and all other rights and obligations under this Credit
      Agreement and the Notes; and

    


    (iv)         the
      parties to such assignment shall execute and deliver to the Agent for its
      acceptance an Assignment and Acceptance in the form of Exhibit 11.3(b)
      hereto,
      together with any Note subject to such assignment and a processing fee of
      $3,500.

    


    Upon
      execution, delivery, and acceptance of such Assignment and Acceptance, the
      assignee thereunder shall be a party hereto and, to the extent of such
      assignment, have the obligations, rights, and benefits of a Lender hereunder
      and
      the assigning Lender shall, to the extent of such assignment, relinquish its
      rights and be released from its obligations under this Credit Agreement. Upon
      the consummation of any assignment pursuant to this Section 11.3(b), the
      assignor, the Agent and the Borrower shall make appropriate arrangements so
      that, if required, new Notes are issued to the assignor and the assignee. If
      the
      assignee is not incorporated under the laws of the United States of America
      or a
      state thereof, it shall deliver to the Borrower and the Agent certification
      as
      to exemption from deduction or withholding of Taxes in accordance with
      Section 3.11.

    


    (c)          
      The
      Agent
      shall maintain at its address referred to in Section 11.1 a copy of each
      Assignment and Acceptance delivered to and accepted by it and a register for
      the
      recordation of the names and addresses of the Lenders and the Commitment of,
      and
      principal amount of the Loans owing to, each Lender from time to time (the
      “Register”).
      The
      entries in the Register shall be conclusive and binding for all purposes, absent
      manifest error, and the Borrower, the Agent and the Lenders may treat each
      Person whose name is recorded in the Register as a Lender hereunder for all
      purposes of this Credit Agreement. The Register shall be available for
      inspection by the Borrower or any Lender at any reasonable time and from time
      to
      time upon reasonable prior notice.

     

    
      
        
        

      

      
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    (d)          Upon
      its
      receipt of an Assignment and Acceptance executed by the parties thereto,
      together with any Note subject to such assignment and payment of the processing
      fee, the Agent shall, if such Assignment and Acceptance has been completed
      and
      is in substantially the form of Exhibit 11.3(b)
      hereto,
      (i) accept such Assignment and Acceptance, (ii) record the information
      contained therein in the Register and (iii) give prompt notice thereof to
      the parties thereto.

    


    (e)          
      Each
      Lender may sell participations to one or more Persons in all or a portion of
      its
      rights and obligations under this Credit Agreement (including all or a portion
      of its Commitment and its Loans); provided,
      however,
      that
      (i) such Lender’s obligations under this Credit Agreement shall remain
      unchanged, (ii) such Lender shall remain solely responsible to the other
      parties hereto for the performance of such obligations, (iii) the
      participant shall be entitled to the benefit of the yield protection provisions
      contained in Sections 3.6 through 3.12, inclusive, and the right of set-off
      contained in Section 11.2, and (iv) the Borrower shall continue to
      deal solely and directly with such Lender in connection with such Lender’s
      rights and obligations under this Credit Agreement, and such Lender shall retain
      the sole right to enforce the obligations of the Borrower relating to its Loans
      and its Notes and to approve any amendment, modification, or waiver of any
      provision of this Credit Agreement (other than amendments, modifications, or
      waivers decreasing the amount of principal of or the rate at which interest
      is
      payable on such Loans or Notes, extending any scheduled principal payment date
      or date fixed for the payment of interest on such Loans or Notes, or extending
      its Commitment).

    


    (f)          
      Notwithstanding
      any other provision set forth in this Credit Agreement, any Lender may at any
      time assign and pledge all or any portion of its Loans and its Notes to any
      Federal Reserve Bank as collateral security pursuant to Regulation A and any
      Operating Circular issued by such Federal Reserve Bank. No such assignment
      shall
      release the assigning Lender from its obligations hereunder.

    


    (g)          Any
      Lender may furnish any information concerning the Borrower or any of its
      Subsidiaries in the possession of such Lender from time to time to assignees
      and
      participants (including prospective assignees and participants), subject,
      however, to the provisions of Section 11.17 hereof.

    


    11.4       
      No
      Waiver; Remedies Cumulative.

    


    No
      failure or delay on the part of the Agent or any Lender in exercising any right,
      power or privilege hereunder or under any other Credit Document and no course
      of
      dealing between the Agent or any Lender and any of the Credit Parties shall
      operate as a waiver thereof; nor shall any single or partial exercise of any
      right, power or privilege hereunder or under any other Credit Document preclude
      any other or further exercise thereof or the exercise of any other right, power
      or privilege hereunder or thereunder. The rights and remedies provided herein
      are cumulative and not exclusive of any rights or remedies which the Agent
      or
      any Lender would otherwise have. No notice to or demand on any Credit Party
      in
      any case shall entitle the Borrower or any other Credit Party to any other
      or
      further notice or demand in similar or other circumstances or constitute a
      waiver of the rights of the Agent or the Lenders to any other or further action
      in any circumstances without notice or demand.

     

    
      
        
        

      

      
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    11.5        Expenses;
      Indemnification.

    


    (a)          The
      Borrower agrees to pay on demand all costs and expenses of the Agent in
      connection with the syndication, preparation, execution, delivery,
      administration, modification, and amendment of this Credit Agreement, the other
      Credit Documents, and the other documents to be delivered hereunder, including,
      without limitation, the reasonable fees and expenses of counsel for the Agent
      (including the cost of internal counsel) with respect thereto and with respect
      to advising the Agent as to its rights and responsibilities under the Credit
      Documents. The Borrower further agrees to pay on demand all costs and expenses
      of the Agent and the Lenders, if any (including, without limitation, reasonable
      attorneys’ fees and expenses and the cost of internal counsel), in connection
      with the enforcement (whether through negotiations, legal proceedings, or
      otherwise) of the Credit Documents and the other documents to be delivered
      hereunder.

    


    (b)          The
      Borrower agrees to indemnify and hold harmless the Agent and each Lender and
      each of their Affiliates and their respective officers, directors, employees,
      agents, and advisors (each, an “Indemnified
      Party”)
      from
      and against any and all claims, damages, losses, liabilities, costs, and
      expenses (including, without limitation, reasonable attorneys’ fees) that may be
      incurred by or asserted or awarded against any Indemnified Party, in each case
      arising out of or in connection with or by reason of (including, without
      limitation, in connection with any investigation, litigation, or proceeding
      or
      preparation of defense in connection therewith) the Credit Documents, any of
      the
      transactions contemplated herein or the actual or proposed use of the proceeds
      of the Loans, except to the extent such claim, damage, loss, liability, cost,
      or
      expense is found in a final, non-appealable judgment by a court of competent
      jurisdiction to have resulted from such Indemnified Party’s gross negligence or
      willful misconduct. In the case of an investigation, litigation or other
      proceeding to which the indemnity in this Section 11.5 applies, such
      indemnity shall be effective whether or not such investigation, litigation
      or
      proceeding is brought by the Borrower, its directors, shareholders or creditors
      or an Indemnified Party or any other Person or any Indemnified Party is
      otherwise a party thereto and whether or not the transactions contemplated
      hereby are consummated. The Borrower agrees not to assert any claim against
      the
      Agent, any Lender, any of their Affiliates, or any of their respective
      directors, officers, employees, attorneys, agents, and advisers, on any theory
      of liability, for special, indirect, consequential, or punitive damages arising
      out of or otherwise relating to the Credit Documents, any of the transactions
      contemplated herein or the actual or proposed use of the proceeds of the
      Loans.

    


    (c)          Without
      prejudice to the survival of any other agreement of the Borrower hereunder,
      the
      agreements and obligations of the Borrower contained in this Section 11.5 shall
      survive the repayment of the Loans, LOC Obligations and other obligations under
      the Credit Documents and the termination of the Commitments
      hereunder.

     

    
      
        
        

      

      
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    11.6       
      Amendments,
      Waivers and Consents.

    


    Neither
      this Credit Agreement nor any other Credit Document nor any of the terms hereof
      or thereof may be amended, changed, waived, discharged or terminated unless
      such
      amendment, change, waiver, discharge or termination is in writing entered into
      by, or approved in writing by, the Required Lenders and the Borrower,
provided,
      however,
      that:

    


    (a)          
      without
      the consent of each Lender affected thereby, neither this Credit Agreement
      or
      any other Credit Document may be amended, changed, waived, discharged or
      terminated so as to:

    


    (i)          
      extend
      the final maturity of any Loan or the time of payment of any reimbursement
      obligation, or any portion thereof, arising from drawings under Letters of
      Credit,

    


    (ii)          reduce
      the rate or extend the time of payment of interest (other than as a result
      of
      waiving the applicability of any post-default increase in interest rates)
      thereon or Fees hereunder, 

    


    (iii)         reduce
      or
      waive the principal amount of any Loan or of any reimbursement obligation,
      or
      any portion thereof, arising from drawings under Letters of Credit,

    


    (iv)         increase
      the Commitment of a Lender over the amount thereof in effect (it being
      understood and agreed that a waiver of any Default or Event of Default or
      mandatory reduction in the Commitments shall not constitute a change in the
      terms of any Commitment of any Lender), 

    


    (v)          except
      as
      the result of or in connection with an Asset Disposition permitted by
      Section 8.5, release all or substantially all of the
      Collateral,

    


    (vi)         except
      as
      the result of or in connection with a dissolution, merger or disposition of
      a
      Subsidiary permitted under Section 8.4, release the Borrower or
      substantially all of the other Credit Parties from its or their obligations
      under the Credit Documents, 

    


    (vii)        amend,
      modify or waive any provision of this Section 11.6 or Section 3.6,
      3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 9.1(a), 11.2, 11.3, 11.5 or
      11.9,

    


    (viii)       reduce
      any percentage specified in, or otherwise modify, the definition of Required
      Lenders, or

    


    (ix)          consent
      to the assignment or transfer by the Borrower or all or substantially all of
      the
      other Credit Parties of any of its or their rights and obligations under (or
      in
      respect of) the Credit Documents except as permitted thereby;

     

    
      
        
        

      

      
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    (b)          
      without
      the consent of the Agent, no provision of Section 10 may be
      amended;

    


    (c)          
      without
      the consent of the Issuing Lender, no provision of Section 2.3 may be
      amended.

    


    Notwithstanding
      the fact that the consent of all the Lenders is required in certain
      circumstances as set forth above, (x) each Lender is entitled to vote as
      such Lender sees fit on any bankruptcy reorganization plan that affects the
      Loans, and each Lender acknowledges that the provisions of Section 1126(c)
      of the Bankruptcy Code supersedes the unanimous consent provisions set forth
      herein and (y) the Required Lenders may consent to allow a Credit Party to
      use cash collateral in the context of a bankruptcy or insolvency
      proceeding.

    


    11.7       
      Counterparts.

    


    This
      Credit Agreement may be executed in any number of counterparts, each of which
      when so executed and delivered shall be an original, but all of which shall
      constitute one and the same instrument. It shall not be necessary in making
      proof of this Credit Agreement to produce or account for more than one such
      counterpart for each of the parties hereto. Delivery by facsimile by any of
      the
      parties hereto of an executed counterpart of this Credit Agreement shall be
      as
      effective as an original executed counterpart hereof and shall be deemed a
      representation that an original executed counterpart hereof will be
      delivered.

    


    11.8       
      Headings.

    


    The
      headings of the sections and subsections hereof are provided for convenience
      only and shall not in any way affect the meaning or construction of any
      provision of this Credit Agreement.

    


    11.9       
      Survival.

    


    All
      indemnities set forth herein, including, without limitation, in
      Section 2.3(i), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and
      delivery of this Credit Agreement, the making of the Loans, the issuance of
      the
      Letters of Credit, the repayment of the Loans, LOC Obligations and other
      obligations under the Credit Documents and the termination of the Commitments
      hereunder, and all representations and warranties made by the Credit Parties
      herein shall survive delivery of the Notes and the making of the Loans
      hereunder.

    


    11.10    
      Governing
      Law; Submission to Jurisdiction; Venue.

    


    (a)          
      THIS
      CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
      OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
      AND
      INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any
      legal action or proceeding with respect to this Credit Agreement or any other
      Credit Document may be brought in the courts of the State of North Carolina
      in
      Mecklenburg County, or of the United States for the Western District of North
      Carolina, and, by execution and delivery of this Credit Agreement, each of
      the
      Credit Parties hereby irrevocably accepts for itself and in respect of its
      property, generally and unconditionally, the nonexclusive jurisdiction of such
      courts. Each of the Credit Parties further irrevocably consents to the service
      of process out of any of the aforementioned courts in any such action or
      proceeding by the mailing of copies thereof by registered or certified mail,
      postage prepaid, to it at the address set out for notices pursuant to
      Section 11.1, such service to become effective three (3) days after
      such mailing. Nothing herein shall affect the right of the Agent or any Lender
      to serve process in any other manner permitted by law or to commence legal
      proceedings or to otherwise proceed against any Credit Party in any other
      jurisdiction.

     

    
      
        
        

      

      
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    (b)          
      Each
      of
      the Credit Parties hereby irrevocably waives any objection which it may now
      or
      hereafter have to the laying of venue of any of the aforesaid actions or
      proceedings arising out of or in connection with this Credit Agreement or any
      other Credit Document brought in the courts referred to in subsection (a)
      above and hereby further irrevocably waives and agrees not to plead or claim
      in
      any such court that any such action or proceeding brought in any such court
      has
      been brought in an inconvenient forum.

    


    (c)          TO
      THE
      EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS, THE BORROWER AND THE
      CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
      ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT
      AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
      HEREBY.

    


    11.11    
      Severability.

    


    If
      any
      provision of any of the Credit Documents is determined to be illegal, invalid
      or
      unenforceable, such provision shall be fully severable and the remaining
      provisions shall remain in full force and effect and shall be construed without
      giving effect to the illegal, invalid or unenforceable provisions.

    


    11.12     Entirety.

    


    This
      Credit Agreement together with the other Credit Documents represent the entire
      agreement of the parties hereto and thereto, and supersede all prior agreements
      and understandings, oral or written, if any, including any commitment letters
      or
      correspondence relating to the Credit Documents or the transactions contemplated
      herein and therein.

     

    
      
        
        

      

      
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    11.13     Binding
      Effect; Termination.

    


    (a)          
      This
      Credit Agreement shall become effective at such time on or after the Closing
      Date when it shall have been executed by the Borrower, the Guarantors and the
      Agent, and the Agent shall have received copies hereof (telefaxed or otherwise)
      which, when taken together, bear the signatures of each Lender, and thereafter
      this Credit Agreement shall be binding upon and inure to the benefit of the
      Borrower, the Guarantors, the Agent and each Lender and their respective
      successors and assigns.

    


    (b)          The
      term
      of this Credit Agreement shall be until no Loans, LOC Obligations or any other
      amounts payable hereunder or under any of the other Credit Documents shall
      remain outstanding, no Letters of Credit shall be outstanding, all of the Credit
      Party Obligations have been irrevocably satisfied in full and all of the
      Commitments hereunder shall have expired or been terminated.

    


    11.14    
      Source
      of Funds.

    


    Each
      of
      the Lenders hereby represents and warrants to the Borrower that at least one
      of
      the following statements is an accurate representation as to the source of
      funds
      to be used by such Lender in connection with the financing hereunder:


    


    (a)          
      no
      part
      of such funds constitutes assets allocated to any separate account maintained
      by
      such Lender in which any employee benefit plan (or its related trust) has any
      interest;

    


    (b)          
      to
      the
      extent that any part of such funds constitutes assets allocated to any separate
      account maintained by such Lender, such Lender has disclosed to the Borrower
      the
      name of each employee benefit plan whose assets in such account exceed 10%
      of
      the total assets of such account as of the date of such purchase (and, for
      purposes of this subsection (b), all employee benefit plans maintained by
      the same employer or employee organization are deemed to be a single
      plan);

    


    (c)          
      to
      the
      extent that any part of such funds constitutes assets of an insurance company’s
      general account, such insurance company has complied with all of the
      requirements of the regulations issued under Section 401(c)(1)(A) of ERISA;
      or

    


    (d)          
      such
      funds constitute assets of one or more specific benefit plans which such Lender
      has identified in writing to the Borrower. 

    


    As
      used
      in this Section 11.14, the terms “employee benefit plan” and “separate
      account” shall have the respective meanings assigned to such terms in Section 3
      of ERISA.

     

    
      
        
        

      

      
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    11.15    
      Conflict.

    


    To
      the
      extent that there is a conflict or inconsistency between any provision hereof,
      on the one hand, and any provision of any Credit Document, on the other hand,
      this Credit Agreement shall control.

    


    11.16     
      Arbitration;
      Consent to Jurisdiction and Service of Process.

    


    (a)          Upon
      demand of any party hereto, whether made before or after institution of any
      judicial action, any dispute, claim or controversy arising out of or connected
      herewith or with the Credit Documents (“Disputes”)
      shall
      be resolved by binding arbitration as provided herein. Disputes may include,
      without limitation, tort claims, counterclaims, claims brought as class actions
      and claims arising herefrom or from Credit Documents executed in the future.
      Arbitration shall be conducted under the Commercial Financial Disputes
      Arbitration Rules (the “Arbitration
      Rules”)
      of the
      American Arbitration Association and Title 9 of the U.S. Code. All
      arbitration hearings shall be conducted in Miami, Miami-Dade County, Florida,
      or
      such other place as agreed to in writing by the parties. A judgment upon the
      award may be entered in any court having jurisdiction, and all decisions shall
      be in writing. The panel from which all arbitrators are selected shall be
      comprised of licensed attorneys having at least ten years’ experience
      representing parties in secured lending transactions. Notwithstanding the
      foregoing, this arbitration provision does not apply to disputes under or
      related to interest protection agreements.

    


    (b)          Notwithstanding
      the preceding binding arbitration provision, the Agent, on behalf of the
      Lenders, preserves certain remedies that may be exercised during a Dispute.
      The
      Agent, on behalf of the Lenders, shall have the right to proceed in any court
      of
      proper jurisdiction or by self help to exercise or prosecute the following
      remedies, as applicable: (i) all rights to foreclose against any real or
      personal property or other security by exercising a power of sale granted in
      the
      Credit Documents or under applicable law, (ii) all rights of self help
      including peaceful occupation of real property and collection of rents, set-off
      and peaceful possession of personal property, (iii) obtaining provisional
      or ancillary remedies including injunctive relief, sequestration, garnishment,
      attachment and appointment of receiver, (iv) when applicable, a judgment by
      confession of judgment and (v) other remedies. Preservation of these
      remedies does not limit the power of an arbitrator to grant similar remedies
      that may be requested by a party in a Dispute.

    


    (c)          By
      execution and delivery of this Credit Agreement, each of the parties hereto
      accepts, for itself and in connection with its properties, generally and
      unconditionally, the non-exclusive jurisdiction relating to any arbitration
      proceedings conducted under the Arbitration Rules in Miami, Miami-Dade County,
      Florida, and irrevocably agrees to be bound by any final judgment rendered
      thereby in connection with this Credit Agreement from which no appeal has been
      taken or is available. Each of the parties hereto irrevocably agrees that all
      process in any such arbitration proceedings or otherwise may be effected by
      mailing a copy thereof by registered or certified mail (or any substantially
      similar form of mail), postage prepaid, to it at its address set forth in
      Section 11.1 or at such other address of which such party shall have been
      notified pursuant thereto, such service being hereby acknowledged by each party
      hereto to be effective and binding service in every respect. Each party hereto
      irrevocably waives any objection, including, without limitation, any objection
      to the laying of venue or based on the grounds of forum non conveniens which
      it
      may now or hereafter have to the bringing of any such action or proceeding
      in
      any such jurisdiction. Nothing herein shall affect the right to serve process
      in
      any other manner permitted by law or shall limit the right of any party to
      bring
      proceedings against the Borrower or any party hereto in any court or pursuant
      to
      arbitration proceedings in any other jurisdiction.

     

    
      
        
        

      

      
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    11.17     
      Confidentiality.

    


    Each
      of
      the Agent, the Lenders and the Issuing Lender agrees to maintain the
      confidentiality of the Information (as defined below), except that Information
      may be disclosed (a)
      to its
      Affiliates and to its and its Affiliates’ respective partners, directors,
      officers, employees, agents, advisors and other representatives (it being
      understood that the Persons to whom such disclosure is made will be informed
      of
      the confidential nature of such Information and instructed to keep such
      Information confidential), (b)
      to the
      extent requested by any regulatory authority purporting to have jurisdiction
      over it (including any self-regulatory authority, such as the National
      Association of Insurance Commissioners), (c)
      to the
      extent required by applicable laws or regulations or by any subpoena or similar
      legal process, (d)
      to any
      other party hereto, (e)
      in
      connection with the exercise of any remedies hereunder or under any other Credit
      Document or any action or proceeding relating to this Agreement or any other
      Credit Document or the enforcement of rights hereunder or thereunder,
      (f)
      subject
      to an agreement containing provisions substantially the same as those of this
      Section, to (i)
      any
      assignee of or Participant in, or any prospective assignee of or Participant
      in,
      any of its rights or obligations under this Agreement,
      (ii)
      any
      actual or prospective counterparty (or its advisors) to any swap or derivative
      transaction relating to the Borrower and its obligations, (iii)
      to an
      investor or prospective investor in an Approved Fund
      that
      also agrees that Information shall be used solely for the purpose of evaluating
      an investment in such Approved Fund, (iv)
      to a
      trustee, collateral manager, servicer, backup servicer, noteholder or secured
      party in an Approved Fund in connection with the administration, servicing
      and
      reporting on the assets serving as collateral for an Approved Fund,
      or
      (v)
      to a
      nationally recognized rating agency that requires access to information
      regarding the Credit Parties, the Loans and Credit Documents in connection
      with
      ratings issued with respect to an Approved Fund, (g)
      with
      the consent of the Borrower or (h)
      to the
      extent such Information (i)
      becomes
      publicly available other than as a result of a breach of this Section or
      (ii)
      becomes
      available to the Administrative Agent, any Lender, the Issuing Lender or any
      of
      their respective Affiliates on a nonconfidential basis from a source other
      than
      the Borrower.

    


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

     

    
      
        
        

      

      
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    11.18     
      Waivers
      of Jury Trial; Waiver of Consequential Damages.

    


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

    


    11.19     Patriot
      Act Notice. 

    


    Each
      Lender and the Administrative Agent (for itself and not on behalf of any other
      party) hereby notifies the Borrower that, pursuant to the requirements of the
      Patriot Act, it is required to obtain, verify and record information that
      identifies the Borrower and the other Credit Parties, which information includes
      the name and address of the Borrower and the other Credit Parties and other
      information that will allow such Lender or the Administrative Agent, as
      applicable, to identify the Borrower and the other Credit parties in accordance
      with the Patriot Act.

     

    
      
        
        

      

      
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    11.20     Continuing
      Agreement.

    


    This
      Credit Agreement shall be a continuing agreement and shall remain in full force
      and effect until all Loans, LOC Obligations, interest, fees and other Credit
      Party Obligations (other than those obligations that expressly survive the
      termination of this Credit Agreement) have been paid in full and all Commitments
      and Letters of Credit have been terminated. Upon termination, the Credit Parties
      shall have no further obligations (other than those obligations that expressly
      survive the termination of this Credit Agreement) under the Credit Documents
      and
      the Administrative Agent shall, at the request and expense of the Borrower,
      deliver all the Collateral in its possession to the Borrower and release all
      Liens on the Collateral; provided
      that
      should any payment, in whole or in part, of the Credit Party Obligations be
      rescinded or otherwise required to be restored or returned by the Administrative
      Agent or any Lender, whether as a result of any proceedings in bankruptcy or
      reorganization or otherwise, then the Credit Documents shall automatically
      be
      reinstated and all Liens of the Administrative Agent shall reattach to the
      Collateral and all amounts required to be restored or returned and all costs
      and
      expenses incurred by the Administrative Agent or any Lender in connection
      therewith shall be deemed included as part of the Credit Party
      Obligations.

     

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      BENIHANA
        INC.

      CREDIT
        AGREEMENT


    

     

    IN
      WITNESS WHEREOF,
      each of
      the parties hereto has caused a counterpart of this Credit Agreement to be
      duly
      executed and delivered as of the date first above written.

     

    
      	 	 	 
	 BORROWER:	
              BENIHANA
                INC.,

              a Delaware corporation

            
	 
 	 
 	 

	 	By:  	/s/
              Joel A. Schwartz
	 	
              

              Joel
                A. Schwartz

              President

            
	 	 


    

     

    GUARANTORS: 

     

    
      	 	
              
                
                  1501
                    BROADWAY RESTAURANT CORP., 

                  a
                    New York corporation

                  BENIHANA
                    BETHESDA CORP., 

                  a
                    New York corporation

                  BENIHANA
                    BRICKELL STATION CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    BROOMFIELD CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    CARLSBAD CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    CHANDLER CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    CHICAGO CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    ENCINO CORP., 

                  a
                    California corporation

                  BENIHANA
                    INTERNATIONAL CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    LINCOLN ROAD CORP., 

                  a
                    Florida corporation

                  BENIHANA
                    LOMBARD CORP., 

                  an
                    Illinois corporation

                  BENIHANA
                    MARINA CORP., 

                  a
                    California corporation

                  BENIHANA
                    MONTEREY CORPORATION,

                  a
                    Delaware corporation

                  BENIHANA
                    NATIONAL CORP., 

                  a
                    Delaware corporation 

                  BENIHANA
                    NATIONAL OF FLORIDA CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    NEW YORK CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    ONTARIO CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    ORLANDO CORP., 

                  a
                    Delaware corporation

                

              

            


    

     

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                  BENIHANA
                    PLYMOUTH MEETING CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    OF PUENTE HILLS CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    SCHAUMBURG CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    SUNRISE CORPORATION,

                  a
                    Delaware corporation

                  BENIHANA
                    TUCSON CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    WESTBURY CORP., 

                  a
                    Delaware corporation

                  BENIHANA
                    WESTWOOD CORP.,

                  a
                    Delaware corporation

                  BENIHANA
                    WHEELING CORP., 

                  a
                    Delaware corporation

                  BIG
                    SPLASH KENDALL CORP., 

                  a
                    Delaware corporation

                  HARU
                    AMSTERDAM AVENUE CORP., 

                  a
                    New York corporation

                  HARU
                    FOOD CORP., 

                  a
                    New York corporation

                  HARU
                    GRAMERCY PARK CORP.,

                  a
                    New York corporation

                  HARU
                    HOLDING CORP., 

                  a
                    Delaware corporation

                  HARU
                    PARK AVENUE CORP., 

                  a
                    Delaware corporation 

                  HARU
                    PHILADELPHIA CORP.,

                  a
                    Delaware corporation

                  HARU
                    PRUDENTIAL CORP.,

                  a
                    Delaware corporation

                  HARU
                    THIRD AVENUE CORP., 

                  a
                    New York corporation

                  HARU
                    TOO, INC., 

                  a
                    New York corporation

                  HARU
                    WALL STREET CORP.,

                  a
                    Delaware corporation

                  MAXWELL’S
                    INTERNATIONAL INC., 

                  a
                    Delaware corporation

                  NOODLE
                    TIME, INC., 

                  a
                    Florida corporation

                  RA
                    AHWATUKEE RESTAURANT CORP.,

                  a
                    Delaware corporation

                  RA
                    FASHION VALLEY CORP.,

                  a
                    Delaware corporation

                  RA
                    KIERLAND RESTAURANT CORP., 

                  a
                    Delaware corporation

                  RA
                    SCOTTSDALE CORP., 

                  a
                    Delaware corporation

                

              

            


    

     

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                  RA
                    TEMPE CORP., 

                  a
                    Delaware corporation

                  RA
                    SUSHI BALTIMORE CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI CHICAGO CORP., 

                  a
                    Delaware corporation

                  RA
                    SUSHI CORONA CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI DENVER CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI GLENVIEW CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI HUNTINGTON BEACH CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI HOLDING CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI LAS VEGAS CORP.,

                  a
                    Nevada corporation

                  RA
                    SUSHI LOMBARD CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI MESA CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI PALM BEACH GARDENS CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI SAN DIEGO CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI SOUTH MIAMI CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI TORRANCE CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI TUCSON CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI TUSTIN CORP.,

                  a
                    Delaware corporation

                  RA
                    SUSHI WESTWOOD CORP.,

                  a
                    Delaware corporation

                  RUDY’S
                    RESTAURANT GROUP, INC., 

                  a
                    Nevada corporation

                  TEPPAN
                    RESTAURANTS LTD., 

                  an
                    Oregon corporation

                  THE
                    SAMURAI, INC., 

                  a
                    New York corporation

                

              

            


    

     

    
      	 	 	 
	 
 	 
 	 
 
	 	By:  	 /s/ Joel A. Schwartz
	
                                                                                                                                                            
                

            	
              

            
	 	
              Name:
                Joel A. Schwartz

              Title:
                President of each of the foregoing

                       
                Guarantors

            


    

     

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                  BENIHANA
                    LAS COLINAS CORP., 

                  a
                    Texas corporation

                  BENIHANA
                    OF TEXAS, INC., 

                  a
                    Texas corporation

                  BENIHANA
                    WOODLANDS CORP., 

                  a
                    Texas corporation

                  RA
                    HOUSTON CORP.,

                  a
                    Texas corporation

                  RA
                    SUSHI CITY CENTER CORP.,

                  a
                    Texas corporation

                  RA
                    SUSHI PLANO CORP.,

                  a
                    Texas corporation

                

              

            


    

     

    
      	 	 	 
	 
 	 
 	 
 
	 	By:  	/s/ Joel A. Schwartz 
	 	
              

            
	 	
              Name: Joel
                A. Schwartz

              Title: Authorized
                Agent of each of the

                       
                foregoing Guarantors

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      BENIHANA
        INC.

      CREDIT
        AGREEMENT

    

     

    
      	 	 	 
	 LENDERS: 	WACHOVIA
              BANK, NATIONAL ASSOCIATION,
	 	
              individually
                in its capacity as a Lender

              and
                in its capacity as Agent

            
	 	 	 
	 	 	 
	 	By:  	 
	 	
              

              Name:

            
	 	
              Title: