Exhibit 10(a)


 


EXECUTION COPY




 





 


$400,000,000


 


TERM
LOAN AGREEMENT


Dated
as of October 24, 2007


 


by
and among


 


BRINKER
INTERNATIONAL, INC.,

as Borrower,


 


BRINKER
RESTAURANT CORPORATION,

as Guarantor,


 


CITIBANK,
N.A.,


as
Administrative Agent,


 


CITIGROUP
GLOBAL MARKETS INC. and

J.P. MORGAN SECURITIES INC.,


as
Joint Lead Arrangers


and
Bookrunners


 


THE
FINANCIAL INSTITUTIONS


PARTY
HERETO FROM TIME TO TIME,

as the Banks,


 


BANK
OF AMERICA, N.A. and


JPMORGAN
CHASE BANK, N.A.

as Co-Syndication Agents


 


and


WACHOVIA
BANK, NATIONAL ASSOCIATION and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,


as
Documentation Agents




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  
	
  Section 1.01.
   Certain Defined Terms

  	
  1

  
	
  Section 1.02.
   Computation of Time Periods

  	
  13

  
	
  Section 1.03.
   Accounting Terms

  	
  13

  
	
  Section 1.04.
   Miscellaneous

  	
  13

  
	
   

  	
   

  
	
  ARTICLE II
  AMOUNTS AND TERMS OF THE LOANS

  	
  13

  
	
   

  	
   

  
	
  Section 2.01
    The Loans

  	
  13

  
	
  Section 2.02
    Making the Loans

  	
  14

  
	
  Section 2.03
    Notes

  	
  14

  
	
  Section 2.04
    Several Obligations

  	
  14

  
	
  Section 2.05.
   Conversions and Continuations of
  Loans

  	
  14

  
	
  Section 2.06.
   Repayment of Loans; Voluntary
  Prepayment

  	
  16

  
	
  Section 2.07.
   Interest on Loans

  	
  16

  
	
  Section 2.08.
   Interest Rate Determination

  	
  17

  
	
  Section 2.09.
   Administrative Agent’s Fees

  	
  17

  
	
  Section 2.10.
   Payments; Computations; Interest on
  Overdue Amounts

  	
  17

  
	
  Section 2.11.
   Consequential Losses on Eurodollar
  Rate Loans

  	
  18

  
	
  Section 2.12.
   Increased Costs

  	
  18

  
	
  Section 2.13.
   Replacement of Banks

  	
  19

  
	
  Section 2.14.
   Illegality and Unavailability

  	
  20

  
	
  Section 2.15.
   Taxes

  	
  20

  
	
  Section 2.16.
   Payments Pro Rata

  	
  22

  
	
   

  	
   

  
	
  ARTICLE III
  CONDITIONS

  	
  23

  
	
   

  	
   

  
	
  Section 3.01.
   Conditions Precedent to
  Effectiveness. This Agreement shall become effective upon the
  satisfaction of all of the following conditions precedent:

  	
  23

  
	
  Section 3.02.
   Administrative Agent

  	
  24

  
	
   

  	
   

  
	
  ARTICLE IV
  GUARANTY

  	
  24

  
	
   

  	
   

  
	
  Section 4.01.
   Guaranty

  	
  24

  
	
  Section 4.02.
   Payment

  	
  25

  
	
  Section 4.03.
   Waiver

  	
  25

  
	
  Section 4.04.
   Acknowledgments and Representations

  	
  25

  
	
  Section 4.05.
   Subordination

  	
  25

  
	
  Section 4.06.
   Guaranty Absolute

  	
  26

  
	
  Section 4.07.
   No Waiver; Remedies

  	
  26

  
	
  Section 4.08.
   Continuing Guaranty

  	
  26

  
	
  Section 4.09.
   Limitation

  	
  26

  



 


i

















 


	
  Section 4.10.
   Effect of Bankruptcy

  	
  27

  
	
   

  	
   

  
	
  ARTICLE V
  REPRESENTATIONS AND WARRANTIES

  	
  27

  
	
   

  	
   

  
	
  Section 5.01.
   Corporate Existence

  	
  27

  
	
  Section 5.02.
   Corporate Power

  	
  27

  
	
  Section 5.03.
   Enforceable Obligations

  	
  27

  
	
  Section 5.04.
   Financial Statements

  	
  28

  
	
  Section 5.05.
   Litigation

  	
  28

  
	
  Section 5.06.
   Margin Stock; Use of Proceeds

  	
  28

  
	
  Section 5.07.
   Investment Company Act

  	
  28

  
	
  Section 5.08.
   ERISA

  	
  28

  
	
  Section 5.09.
   Taxes

  	
  29

  
	
  Section 5.10.
   Environmental Condition

  	
  29

  
	
   

  	
   

  
	
  ARTICLE VI
  AFFIRMATIVE COVENANTS

  	
  29

  
	
   

  	
   

  
	
  Section 6.01.
   Compliance with Laws, Etc

  	
  29

  
	
  Section 6.02.
   Reporting Requirements

  	
  29

  
	
  Section 6.03.
   Use of Proceeds

  	
  31

  
	
  Section 6.04.
   Maintenance of Insurance

  	
  31

  
	
  Section 6.05.
   Preservation of Corporate
  Existence, Etc

  	
  31

  
	
  Section 6.06.
   Payment of Taxes, Etc

  	
  31

  
	
  Section 6.07.
   Visitation Rights

  	
  31

  
	
  Section 6.08.
   Compliance with ERISA and the Code

  	
  32

  
	
   

  	
   

  
	
  ARTICLE VII
  NEGATIVE COVENANTS

  	
  32

  
	
   

  	
   

  
	
  Section 7.01.
   Financial Covenants

  	
  32

  
	
  Section 7.02.
   Negative Pledge

  	
  32

  
	
  Section 7.03.
   Merger and Sale of Assets

  	
  32

  
	
  Section 7.04.
   Agreements to Restrict Dividends
  and Certain Transfers

  	
  33

  
	
  Section 7.05.
   Transactions with Affiliates

  	
  33

  
	
  Section 7.06.
   Change of Business

  	
  33

  
	
  Section 7.07.
   Limitation on Loans, Advances and
  Investments

  	
  33

  
	
  Section 7.08.
   Maintenance of Books and Records

  	
  34

  
	
  Section 7.09.
   Debt

  	
  34

  
	
   

  	
   

  
	
  ARTICLE VIII DEFAULTS

  	
  34

  
	
   

  	
   

  
	
  Section 8.01.  Defaults

  	
  34

  
	
   

  	
   

  
	
  ARTICLE IX
  THE ADMINISTRATIVE AGENT

  	
  36

  
	
   

  	
   

  
	
  Section 9.01.
   Authorization and Action

  	
  36

  
	
  Section 9.02.
   Administrative Agent’s Reliance,
  Etc

  	
  37

  
	
  Section 9.03.
   Defaults

  	
  37

  
	
  Section 9.04.
   Citibank and Affiliates

  	
  37

  



 


ii

















 


	
  Section 9.05.
   Bank Credit Decision

  	
  38

  
	
  Section 9.06.
   Successor Administrative Agent

  	
  38

  
	
  Section 9.07.
   Joint Lead Arrangers, Bookrunners,
  Syndication Agents and Documentation Agents

  	
  38

  
	
  Section 9.08.
   INDEMNIFICATION

  	
  38

  
	
   

  	
   

  
	
  ARTICLE X MISCELLANEOUS

  	
  39

  
	
   

  	
   

  
	
  Section 10.01.  Amendments, Etc.

  	
  39

  
	
  Section 10.02.
   Notices, Etc.

  	
  40

  
	
  Section 10.03.
   No Waiver; Remedies

  	
  41

  
	
  Section 10.04.
   Costs, Expenses and Taxes

  	
  41

  
	
  Section 10.05.
   Right of Set-off

  	
  42

  
	
  Section 10.06.
   Bank Assignments and Participations

  	
  43

  
	
  Section 10.07.
   Governing Law

  	
  44

  
	
  Section 10.08.
   Interest

  	
  45

  
	
  Section 10.09.
   Execution in Counterparts

  	
  46

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

  	
  46

  
	
  Section 10.11.
   The Borrower’s Right to Apply
  Deposits

  	
  46

  
	
  Section 10.12.
   Confidentiality

  	
  46

  
	
  Section 10.13.
   Binding Effect

  	
  47

  
	
  Section 10.14.
   ENTIRE AGREEMENT

  	
  47

  
	
  Section 10.15.
   USA PATRIOT ACT

  	
  47

  



 


iii

















 


EXHIBITS:


 


A             Form of Note


B             Form of Notice of Borrowing


C             Form of Assignment


D             Form of Opinion of Counsel for the Borrower
and the Guarantor


E              Form of Opinion of Special Counsel to the
Administrative Agent


F              Form of U.S. Tax Compliance Certificate


 


SCHEDULES:


 


	
  Schedule
  I

  	
  -  Bank and Administrative Agent Addresses

  
	
  Schedule
  II

  	
  -
  Pro Rata Shares

  
	
  Schedule
  III

  	
  -
  Borrower and Guarantor Addresses

  
	
  Schedule
  IV

  	
  -  Permitted Liens

  
	
  Schedule
  V

  	
  -  Agreements Restricting Dividends and Certain Transfers

  
	
  Schedule
  VI

  	
  -  GAAP Exceptions

  
	
  Schedule
  VII

  	
  -  Investments

  
	
  Schedule
  VIII

  	
  -  Permitted Debt

  



 


iv

















 


TERM LOAN AGREEMENT (this
“Agreement”), dated as of October 24, 2007 by and among BRINKER
INTERNATIONAL, INC., a Delaware corporation (the “Borrower”), BRINKER
RESTAURANT CORPORATION, a Delaware corporation (the “Guarantor”), the
financial institutions listed on the signature pages hereof and the
financial institutions who hereafter become parties to this Agreement
(individually, a “Bank” and collectively, the “Banks”), and
CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) for the Banks hereunder.


 


The Borrower has
requested that the Banks make loans to it in an aggregate principal amount of
$400,000,000 to refinance the Borrower’s obligations under the Existing Bridge
Loan Agreement, and the Banks are prepared to make such loans upon and subject
to the terms and conditions hereof. 
Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS
AND ACCOUNTING TERMS


 


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


 


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


 


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


 


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


 


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


 


“Applicable Margin”
means, at any time, the following percentages determined as a function of the
Rating Level at such time:


 

















 


	
   

  	
   

  	
  Rating Level

  1

  	
   

  	
  Rating Level

  2

  	
   

  	
  Rating Level

  3

  	
   

  	
  Rating Level

  4

  	
   

  	
  Rating Level

  5

  	
   

  
	
  Eurodollar Rate Loan

  	
   

  	
  0.45

  	
  %

  	
  0.55

  	
  %

  	
  0.65

  	
  %

  	
  0.95

  	
  %

  	
  1.50

  	
  %

  
	
  Base Rate Loan

  	
   

  	
  0.00

  	
  %

  	
  0.00

  	
  %

  	
  0.00

  	
  %

  	
  0.00

  	
  %

  	
  0.00

  	
  %

  



 


“Applicable
Usury Laws”, as used in Section 10.08 of this Agreement and
elsewhere in the Credit Documents, means the Texas Finance Code, any other law
of the State of Texas or any applicable Federal law to the extent that it
permits Banks to contract for, charge, reserve or receive a greater amount of
interest than under the Texas Finance Code or other laws of the State of Texas.


 


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


 


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


 


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


 


(a)           the rate of interest announced
publicly by Citibank in New York, New York from time to time as Citibank’s base
rate; and


 


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


 


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


 


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


 


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


 


“Borrowing” means
a borrowing consisting of simultaneous Loans made on the same day by each of
the Banks pursuant to Section 2.02.


 


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


 


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


 


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


 


2

















 


“Citibank” means
Citibank, N.A.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Default” has the
meaning specified in Section 8.01.


 


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


 


3

















 


“EBIT” means for
any period, the Consolidated earnings of a Person during such period from
continuing operations, exclusive of gains on sales of assets not in the
ordinary course of business (to the extent such gains are included in earnings
from continuing operations) and extraordinary items, as determined under GAAP,
but without deducting federal, state, foreign and local income taxes and
Interest Expense.


 


“EBITDA” means,
for any period, the Consolidated earnings of a Person during such period from
continuing operations, exclusive of gains on sales of assets not in the ordinary
course of business (to the extent such gains are included in earnings from
continuing operations) and extraordinary items, as determined under GAAP, but
without deducting federal, state, foreign and local income taxes, Interest
Expense, depreciation and amortization.


 


“Effective Date”
means the date that the Administrative Agent notifies the Borrower that the
conditions set forth in Section 3.01 shall have been satisfied or
waived.


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


“Eurodollar Rate”
means, for any Interest Period, the offered rate for deposits in U.S. dollars
for a period equal to or nearest the number of days in such Interest Period
which appears on Telerate Page 3750 as of approximately 11:00 a.m.
London time on the date two Business Days prior to the first day of such
Interest Period, provided, that (i) if such rates do not appear on
such Telerate Page 3750, the “Eurodollar Rate” shall mean, for any
Interest Period, the offered rate for deposits in U.S. Dollars for a period
equal to or nearest the number of days in such Interest Period which appears on
the Reuters Screen LIBO Page, and (ii) if such rate or rates do not appear
on either Telerate Page 3750 or the Reuters Screen LIBO Page, the “Eurodollar
Rate” shall mean, with respect to each day during such Interest Period, the
rate per annum equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the respective rates notified to the Administrative
Agent by each Reference Bank as the rate at which U.S. Dollar deposits are
offered to such Reference Bank by prime banks at or about 11:00 a.m.,
London time, two Business Days prior to the beginning of such Interest Period
in the London interbank market for delivery on the first day of such Interest
Period for a period approximately equal to the number of days in such Interest
Period and in an amount comparable to the principal amount of the Loans.


 


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


 


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


 


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


 


“Existing Bridge Loan
Agreement” means the $400,000,000 Term Loan Agreement dated as of April 23,
2007 by and among the Borrower, the Guarantor and Citibank, N.A., as
Administrative Agent.


 


“Facility Amount”
means $400,000,000.


 


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


 


5

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Interest Payment
Dates” means, with respect to each Loan, the earlier of (i) the last
day of the applicable Interest Period related to such Loan, (ii) the Maturity
Date, (iii) the date of demand therefor with respect to interest accruing
under Section 2.10(f), and (iv) the date of any prepayment of
any Loan, whether or not such prepayment is otherwise permitted hereunder.


 


“Interest
Period” means with respect to any Loan:


 


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


 


6

















 


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


 


in
each case, as selected by the Borrower, as provided in Section 2.05.  Notwithstanding the foregoing, however:


 


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


 


(ii)           any Interest Period for any Loan
that would otherwise end later than the
Maturity Date shall end on the Maturity Date; and


 


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


 


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


 


“Investments” has
the meaning specified in Section 7.07.


 


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


 


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


 


“Liquid
Investments” means:


 


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


 


 


7

















 


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


 


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


 


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


 


“Loan” means a
loan by a Bank to the Borrower hereunder and refers to a Base Rate Loan or a
Eurodollar Rate Loan, each of which shall be a “Type” of Loan.


 


“Majority Banks”
means Banks holding more than fifty percent (50%) of the then aggregate unpaid
principal amount of all Loans outstanding.


 


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


 


“Maturity Date” means
October 24, 2010.


 


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


 


8

















 


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


 


“Moody’s Rating”
means, at any time, the rating of the Borrower’s senior unsecured, long-term,
non-credit-enhanced indebtedness for borrowed money then most recently
announced by Moody’s.


 


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


 


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


 


“Note” means a
promissory note of the Borrower payable to the order of any Bank, in
substantially the form of Exhibit A hereto.


 


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


 


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


 


“Other Taxes” has
the meaning specified in Section 2.16(b).


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Pro Rata Share”
of a Bank, as it pertains to the Loans, means the applicable percentage set
forth opposite the name of that Bank on Schedule II to this Agreement, as such
Schedule II may change from time to time in accordance with the terms of this
Agreement or in accordance with any effective Assignment.


 


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


 


“Rating Level”
refers to the Rating in effect during any Rating Level Period.


 


“Rating Level Period”
means a Rating Level 1 Period, a Rating Level 2 Period, a Rating Level 3
Period, a Rating Level 4 Period or a Rating Level 5 Period; provided
that:


 


10

















 


(i)                                     “Rating
Level 1 Period” means a period during which the Moody’s Rating is at or
above Baa1 or the S&P Rating is at or above BBB+;


 


(ii)                                  “Rating
Level 2 Period” means a period that is not a Rating Level 1 Period, during
which the Moody’s Rating is at or above Baa2 or the S&P Rating is at or
above BBB;


 


(iii)                               “Rating
Level 3 Period” means a period that is not a Rating Level 1 Period or a
Rating Level 2 Period, during which the Moody’s Rating is at or above Baa3 or
the S&P Rating is at or above BBB-;


 


(iv)                              “Rating
Level 4 Period” means a period that is not a Rating Level 1 Period, a
Rating Level 2 Period or a Rating Level 3 Period, during which the Moody’s
Rating is at or above Ba1 or the S&P Rating is at or above BB+; and


 


(v)                                 “Rating
Level 5 Period” means a period that is not a Rating Level 1 Period, a
Rating Level 2 Period, a Rating Level 3 Period or a Rating Level 4 Period;


 


it being understood that,
in application of the foregoing provisions, if the Moody’s Rating and the
S&P Rating differ by one Rating Level, then the applicable Rating Level
shall be based upon the Rating Level resulting from the higher of such ratings;
and provided, that if the Moody’s Rating and the S&P Rating differ
by more than one Rating Level, then the applicable Rating Level Period shall be
one Rating Level higher than the Rating Level resulting from the application of
the lower of such ratings (for which purposes Rating Level 1 is the highest and
Rating Level 5 is the lowest); and provided, further, that during any
period for which there is no Moody’s Rating and no S&P Rating, a Rating
Level 5 Period shall apply.


 


“Reference Banks”
mean Citibank and JPMCB.


 


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


 


“Reuters Screen LIBO
Page” shall mean the display designated as page “LIBO” on the Reuter
Monitor Money Rates Service or such other page as may replace the “LIBO” page on
that service for the purpose of displaying London interbank offered rates of
major banks.


 


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


 


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


 


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


 


11

















 


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


 


“S&P” means
Standard & Poors Rating Services or any successor thereto.


 


“S&P Rating”
means, at any time, the rating of the Borrower’s senior unsecured, long term,
non-credit-enhanced indebtedness for borrowed money then most recently
announced by S&P.


 


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


 


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


 


“Telerate Page 3750”
shall mean the display designated as page “3750” on the Telerate Service
or such other page as may replace the “3750” page on that service or
such other service or services as may be nominated by the British Bankers’
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits.


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1.03.  Accounting Terms.  All accounting and financial terms not
specifically defined herein and the compliance with each covenant contained
herein with respect to financial matters (unless a different procedure is
otherwise set forth herein) shall be construed in accordance with GAAP.  If subsequent to the date hereof, the
accounting principles under GAAP are changed and as a result of such change the
calculation of any financial covenant set forth herein is affected, the Banks
and Borrower hereby agree to amend such financial covenants in such a manner as
to make such financial covenants consistent with the financial covenants in
effect hereunder prior to such change in accounting principles and, until such
amendment is effected, such financial covenants shall be calculated from
financial statements of the Borrower adjusted to reflect the accounting
principles followed by the Borrower prior to such change in accounting
principles.


 


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


 


ARTICLE
II


 


AMOUNTS
AND TERMS OF THE LOANS


 


Section 2.01  The Loans.  Subject to the terms and conditions set forth
in this Agreement, each Bank severally agrees to make Loans to Borrower on the
Effective Date in an aggregate amount equal to its Pro Rata Share of the
Facility Amount.  The Loans are not
revolving commitments and the Borrower shall have no right to re-borrow any
amounts repaid hereunder.


 


13

















 


Section 2.02  Making the Loans.(a)   The Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing, by the Borrower to the
Administrative Agent, which shall give to each Bank prompt notice thereof by
telecopy, telex or cable.  The notice of
Borrowing (the “Notice of Borrowing”) shall be in writing (including by
telecopy), in substantially the form of Exhibit B hereto, executed
by the Borrower and the aggregate amount of the Borrowing shall equal the
Facility Amount.  The Notice of Borrowing
shall refer to this Agreement and shall specify the requested (i) date of
such Borrowing (which shall be a Business Day), (ii) Type of Loans
comprising such Borrowing and (iii) Interest Periods, if selected at the
option of the Borrower, for such Borrowing. 
Each Bank shall, before 1:00 P.M. (New York City time) on the date
of the proposed Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address referred to in Section 10.02,
in same day funds, such Bank’s Pro Rata Share of such Borrowing.  After the Administrative Agent’s receipt of
such funds and upon fulfillment of the applicable conditions set forth in Article III,
the Administrative Agent will make such funds available to the Borrower at the
Administrative Agent’s aforesaid address.


 


(b)           Notwithstanding anything in subsection (a) above to the
contrary, the Borrower may not select Eurodollar Rate Loans for the Borrowing
if the obligations of the Banks to make Eurodollar Rate Loans shall then be
suspended pursuant to Section 2.12(a) or Section 2.14.


 


(c)           The Notice of Borrowing shall
be irrevocable and binding on the Borrower. 
In the case of a Eurodollar Rate Loan requested by the Borrower in the
Notice of Borrowing, the Borrower shall indemnify each Bank against any loss,
cost or expense incurred by such Bank as a result of any failure to fulfill, on
or before the date specified in such Notice of Borrowing for such Borrowing,
the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund such Loan to be made by such Bank as
part of such Borrowing when such Loan, as a result of such failure, is not made
on such date.  A certificate in
reasonable detail as to the basis for and the amount of such loss, cost or
expense submitted to the Borrower and the Administrative Agent by such Bank
shall be prima facie evidence of the amount of such loss, cost or expense.


 


Section 2.03  Notes. 
If requested by a Bank, the Borrower shall execute and deliver to such
Bank a Note, payable to the order of such Bank, in the principal amount of the
Loans made by such Bank.


 


Section 2.04  Several Obligations.  The failure of any Bank to make the Loan to
be made by it on the Effective Date shall not relieve any other Bank of its
obligation, if any, hereunder to make its Loan on the Effective Date, but no
Bank shall be responsible for the failure of any other Bank to make the Loan to
be made by such other Bank on the Effective Date.


 


Section 2.05  Conversions and Continuations of Loans.


 


(a)           Subject
to the limitations set forth in Section 2.14, the Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (i) not later than 11:00 A.M. (New York City time) on the last
day of the Interest Period therefor, to convert any Eurodollar Rate Loan into a
Base Rate Loan and (ii) not later than 10:00 A.M. (New York City time)
three (3) Business Days prior to the date of conversion or continuation,
to convert any Base Rate Loan into a Eurodollar Rate Loan or to continue any
Eurodollar Rate  Loan for an additional
Interest Period, subject in each case to the following:


 


14

















 


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


 


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


 


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


 


(D)          if any Eurodollar Rate
Loan is converted at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, upon demand, any amounts due to the
Banks pursuant to Section 2.11 as a result of such conversion;


 


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


 


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


 


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


 


(H)          after giving effect to
the conversions of Loans from one Type to the other and all continuations of
Loans as the same Type, there shall not be more than five (5) Interest
Periods in effect at one time with respect to Eurodollar Rate Loans.


 


(b)           Each notice
pursuant to Section 2.05(a) shall be irrevocable, shall be in
writing (or telephone notice promptly confirmed in writing) and shall refer to
this Agreement and specify (i) the identity and amount of the Loan that
the Borrower requests be converted or continued, (ii) whether such Loan is
to be converted to or continued as a Eurodollar Rate Loan or a Base Rate Loan, (iii) if
such notice requests a conversion, the date of such conversion (which shall be
a Business Day) and (iv) if such Loan is to be converted to or continued
as a Eurodollar Rate Loan, the Interest Period with respect to any conversion
to or continuation as a Eurodollar Rate Loan, the Interest Period with respect
thereto.  If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Rate Loan, the Borrower shall be deemed to have selected an
Interest Period of one (1) month’s duration.  The Administrative Agent shall promptly
advise the other Banks of any notice given pursuant to Section 2.06(a) and
of each Bank’s portion of any converted or continued Loan.  If the Borrower shall not have given notice
in accordance with Section 2.06(a) to continue any Eurodollar
Rate Loan into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with Section 2.06(a) to convert such
Eurodollar Rate Loan), such Eurodollar Rate Loan shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued for a new Interest Period as a Base Rate
Loan.


 


15
















 


Section 2.06.  Repayment of Loans; Voluntary Prepayment.


 


(a)           The Borrower agrees to
repay the Loans in full on the Maturity Date.


 


(b)           The Borrower may, upon
at least one (1) Business Day’s notice in respect of Base Rate Loans, and,
in respect of Eurodollar Rate Loans, upon at least three (3) Business Days’
notice, to the Administrative Agent stating the proposed date (which shall be a
Business Day) and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Loans, together with accrued interest to the date of such prepayment on the
principal amount prepaid and amounts, if any, required to be paid pursuant to Section 2.11
as a result of such prepayment; provided, however, that each
partial prepayment pursuant to this Section 2.06(b) shall be
in an aggregate principal amount not less than $10,000,000 and increments of
$1,000,000 in excess thereof, and amounts prepaid may not be reborrowed.


 


(c)           Each notice of
prepayment shall specify the prepayment date and the aggregate principal amount
of each Loan to be prepaid, shall be irrevocable and shall commit the Borrower
to prepay such Loan by the amount stated therein.  All prepayments under this Section 2.06
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of prepayment.


 


Section 2.07.  Interest on Loans.


 


(a)           Interest on Loans.  The Borrower shall pay interest on the unpaid
principal amount of each Loan made by each Bank from the date of such Loan
until such principal amount shall be paid in full, at the following rates per
annum:


 


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


 


(ii)           if such Loan is a Eurodollar Rate Loan, a
rate per annum equal at all times during the Interest Period for such Loan to
the sum of the Eurodollar Rate for such Interest Period plus the Applicable
Margin for Eurodollar Rate Loans in effect from time to time, payable on the
last day of such Interest Period.


 


(b)           Additional Interest
on Eurodollar Rate Loans.  The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Loan of such Bank, from the date of such Loan until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for
each Interest Period for such Loan from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to one hundred percent (100%) minus
the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period,
payable on the date on which interest is payable on such Loan.  Such additional interest shall be determined
by such Bank and notified to the Borrower through the Administrative Agent.  A certificate as to the amount of such
additional interest submitted to the Borrower and the Administrative Agent by
such Bank shall be conclusive and binding for all purposes, absent error.


 


16

















 


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


 


(d)           Maximum Interest.  The parties hereto agree that the sum of (i) interest
payable in accordance with this Section 2.07, plus (ii) other
consideration payable hereunder or under the Notes which constitutes interest
under Applicable Usury Law (whether or not denoted as interest), shall not
exceed the maximum amount allowed under Applicable Usury Law.


 


Section 2.08.  Interest Rate Determination.  The Administrative Agent shall give prompt
notice to the Borrower and the Banks of the applicable interest rate for each
Loan determined by the Administrative Agent for purposes of Section 2.07
and the Applicable Margin used in determining the applicable interest rate
under Section 2.07.


 


Section 2.09.  Administrative Agent’s Fees.  The Borrower agrees to pay to the
Administrative Agent, for its sole account, the fees specified in the fee
Letter dated September 27, 2007 among the Borrower and Citigroup Global
Markets Inc.


 


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


 


(a)           The Borrower shall make each payment
hereunder and under the Notes to be made by it not later than 11:00 A.M.
(New York City time) on the day when due in U.S. Dollars to the Administrative
Agent at its address referred to in Section 10.02 in same day
funds.  The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal interest or fees ratably (other than amounts payable pursuant to Section 2.11,
2.12 or 2.15) to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Bank to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.


 


(b)           All computations of interest based on
the Base Rate shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of interest based
on the Eurodollar Rate shall be made by the Administrative Agent on the basis
of a year of 360 days, and all computations of interest pursuant to Section 2.07(b) shall
be made by a Bank on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.  Each determination by the Administrative
Agent (or, in the case of Section 2.07(b), by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent error.


 


17

















 


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


 


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


 


(e)           Whenever any reference
is made to any Bank’s “ratable share”, “ratable portion” or “Pro Rata Share”
(or any similar reference) of any amount hereunder, such share or portion shall
be calculated to not more than four decimal places, rounding up or down, as
appropriate.


 


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


 


Section 2.11.  Consequential Losses on Eurodollar Rate
Loans.  If (a) any payment (or
purchase pursuant to Section 2.13) of principal of any Eurodollar
Rate Loan is made other than on the last day of an Interest Period relating to
such Loan, as a result of a prepayment pursuant to Section 2.06(b),
or Section 2.14 or acceleration of the maturity of the Notes and
the outstanding principal amount of the Loans pursuant to Section 8.01
on a day other than the last day of such Interest Period or for any other
reason or as a result of any such purchase; (b) a Eurodollar Rate Loan is
converted pursuant to Section 2.05 at a time other than the end of an
Interest Period; or (c) the Borrower fails to make a principal or interest
payment with respect to any Eurodollar Rate Loan on the date such payment is
due and payable, the Borrower shall, upon demand by any Bank (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Bank any amounts required to compensate such Bank for any
additional losses, costs or expenses which it may reasonably incur as a result
of any such payment or purchase, including, without limitation, any loss
(including loss of reasonably anticipated profits, except in the case of such a
purchase pursuant to Section 2.13), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by such Bank to fund or maintain such Loan.


 


Section 2.12.  Increased Costs.


 


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


 


18

















 


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


 


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


 


19

















 


Section 2.14.  Illegality and Unavailability.  (a) Notwithstanding any other provision
of this Agreement, if any Bank shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is  unlawful, for
such Bank or its Applicable Lending Office to make any Eurodollar Rate Loan or
to continue to fund or maintain any Eurodollar Rate Loan hereunder, then, on
notice thereof to the Borrower by the Administrative Agent, (i) the
obligation of such Bank to make, continue or maintain any Eurodollar Rate Loan
shall be suspended until the Administrative Agent shall notify the Borrower and
the Banks that the circumstances causing such suspension no longer exist, and (ii) the
Eurodollar Rate Loans then outstanding of such Bank together with all accrued
interest thereon and all amounts payable pursuant to Section 2.11,
shall be automatically converted to Base Rate Loans or, at the option of the
Borrower, prepaid in full, unless such Bank shall determine in good faith in
its sole opinion that it is lawful to maintain such Loans made by such Bank to
the end of the Interest Period then applicable thereto.


 


(b)           If, with respect to any
conversion of a Base Rate Loan to a Eurodollar Rate Loan or the continuation of
any Eurodollar Rate Loan pursuant to Section 2.05:


 


(i)            the
Reference Banks fail to furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for the applicable Eurodollar Rate Loan; or


 


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


 


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


 


Section 2.15.  Taxes.


 


(a)           Any and all payments by the Borrower
or the Guarantor hereunder or under the Notes or any other Credit Document
shall be made, in accordance with Section 2.10 and subject to Sections
2.15(c) and 2.15(e), free and clear of and without deduction for any
and all taxes, levies, imposts, deductions, charges or withholdings with
respect thereto, and all liabilities with respect thereto, including any
interest, additions to tax or penalties applicable thereto, excluding in the
case of each Bank and the Administrative Agent (i) taxes imposed directly
or indirectly on or measured by its net income, and franchise taxes imposed on
it in lieu of net income taxes, by any jurisdiction (or any political
subdivision thereof) under the laws of which such Bank or the Administrative
Agent (as the case may be) is organized or, in the case of a Bank, maintains a
lending office and at which such Bank now or hereafter does business, and (ii) United
States of America income taxes (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as “Taxes”).  If the Borrower or
the Guarantor shall be required by law to deduct any Taxes from or in respect
of any sum payable by it hereunder or under any Note or other Credit Document
to any Bank or the Administrative Agent, (x) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.15)
such Bank or the Administrative Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (y) the
Borrower or the Guarantor, as the case may be, shall make such deductions and (z) the
Borrower or the Guarantor, as the case may be, shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.


 


20

















 


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


 


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


 


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


 


(e)           Each Bank that is organized under the
laws of any jurisdiction other than the United States of America or any state
or political subdivision thereof (for purposes of this Section 2.15(e),
each a “Non-U.S. Bank”) shall deliver to the Borrower and the Administrative
Agent on or prior to the date of this Agreement or upon the effectiveness of
any Assignment, or at such other times prescribed by applicable law, (i) two
(2) properly completed and signed originals of United States of America
Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
successor applicable form, as the case may be, certifying that such Bank is
entitled to benefits under an income tax treaty to which the United States is a
party that eliminates or reduces the rate of withholding tax on payments under
this Agreement and the other Credit Documents or certifying that the income
receivable pursuant to this Agreement and the other Credit Documents is
effectively connected with the conduct of a trade or business in the United
States, or (ii) if such Non-U.S. Bank is not a “bank” or other Person
described in Code Section 881(c)(3), two properly completed and signed
originals of a statement substantially in the form of Exhibit E hereto,
together with two properly completed and signed originals of Internal Revenue
Service form W 8BEN, upon which the Borrower is entitled to rely, from any such
Non-U.S. Bank, or any successor applicable form, together with any other
certificate or statement of exemption or reduction required under the Code, in
order to establish that such Non-U.S. Bank is entitled to treat the interest
payments under this Agreement and the other Credit Documents as portfolio interest
that is exempt from withholding tax under the Code.  Thereafter, upon the reasonable request of
the Borrower or the Administrative Agent, each such Non-U.S. Bank shall (A) upon
the obsolescence of any form previously delivered by such Non-U.S. Bank, promptly
submit to Administrative Agent and Borrower such additional properly completed
and signed originals of such forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing authorities) as may then
be available under then current United States laws and regulations to qualify
for a deduction in United States withholding taxes, or such evidence as is
satisfactory to Borrower and Administrative Agent of an available exemption
from United States withholding taxes, in respect of all payments to be made to
such Non-U.S. Bank by Borrower pursuant to the Credit Documents, and (B) promptly
notify Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption.  
A Non-U.S. Bank shall not be required to deliver any form or statement
pursuant to this Section 2.15 that such Non-U.S. Bank is not
legally able to deliver.  The Borrower
shall not be required to pay additional amounts to any Bank pursuant to this Section 2.15
to the extent that such Bank did not qualify for a complete exemption from
United States withholding taxes at the time such Bank became a party to this
agreement and to the extent that the obligation to pay additional amounts would
not have arisen but for the failure of such Bank to comply with this paragraph
(e), except to the extent such Bank is not able to comply as a result of a
change in law.  Any assignee of all or
any portion of any Bank’s rights and obligations under this Agreement shall be
subject to this Section 2.15(e) as well as Section 10.05
of this Agreement.


 


21

















 


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


 


Section 2.16.  Payments Pro Rata.  Except as provided in Sections 2.11, 2.12,
2.14 or 2.15, each of the Banks agrees that if it should receive
any payment (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker’s lien, by counterclaim or cross
action, by the enforcement of any right under this Agreement or the Notes or
other Credit Documents, or otherwise) in respect of any obligation of the
Borrower or Guarantor hereunder or under the Notes or other Credit Documents of
a sum which with respect to the related sum or sums received by other Banks is
in a greater proportion than the total amount of principal, interest, fees or
any other obligation incurred hereunder, as the case may be, then owed and due
to such Bank bears to the total amount of principal, interest, fees or any such
other obligation then owed and due to all of the Banks immediately prior to
such receipt, then such Bank receiving such excess payment shall purchase for
cash without recourse from the other Banks an interest in the obligations of
the Borrower to such Banks in such amount as shall result in a proportional
participation by all of the Banks in the aggregate unpaid amount of principal,
interest, fees or any such other obligation, as the case may be, owed to all of
the Banks, provided, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each other Bank shall be rescinded and each such other Bank shall repay to the
purchasing Bank the purchase price to the extent of such other Bank’s ratable
share (according to the proportion of (i) the amount of the participation
purchased from such other Bank as a result of such excess payment to (ii) the
total amount of such excess payment) of such recovery together with an amount
equal to such other Bank’s ratable share (according to the proportion of (a) the
amount of such other Bank’s required repayment to (b) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered.  The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of the Borrower in the amount of such
participation.


 


22

















 


ARTICLE III


 


CONDITIONS


 


Section 3.01.  Conditions Precedent to Effectiveness.  This Agreement shall become effective upon
the satisfaction of all of the following conditions precedent:


 


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


 


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


 


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


 


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


 


23

















 


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


 


(v)           a
favorable opinion of Hughes & Luce, L.L.P., special counsel for the
Administrative Agent, substantially in the form of Exhibit E
hereto; and


 


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


 


(b)           No
Material Adverse Change.  No event or
events which have or would reasonably be expected to have a Material Adverse
Effect shall have occurred since June 27, 2007.


 


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


 


(d)           Representations
and Warranties.  The representations
and warranties contained in Article V hereof shall be true and
correct in all material respects on and as of the Effective Date.


 


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


 


(f)            Repayment
and Termination of Bridge Loan.  The
Administrative Agent shall have received satisfactory evidence that all amounts
owed under the Existing Bridge Loan Agreement have been or simultaneously with
the making of the Loans hereunder and pursuant to an irrevocable instruction
and notice will be, paid in full and all commitments thereunder have been
terminated.


 


(g)           Notice
of Borrowing.  The Administrative
Agent shall have received a Notice of Borrowing in accordance with Section 2.02.


 


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


 


ARTICLE IV


 


GUARANTY


 


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


 


24

















 


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


 


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


 


Section 4.04.  Acknowledgments and Representations.  The Guarantor acknowledges and represents to
the Administrative Agent and each Bank that it is receiving direct and indirect
financial and other benefits as a result of this Article IV;
represents to the Administrative Agent and each Bank that after giving effect
to this Article IV and the contingent obligations evidenced hereby
it is, and will be, Solvent; acknowledges that it will derive substantial
direct and indirect benefit from the transactions contemplated by this Agreement;
acknowledges that its liability hereunder shall be cumulative and in addition
to any other liability or obligation to the Administrative Agent and each Bank,
whether the same is incurred through the execution of a note, a similar
guaranty, through endorsement, or otherwise; acknowledges that neither the
Administrative Agent, any Bank nor any officer, employee, agent, attorney or
other representative of any of them has made any representation, warranty or
statement to the Guarantor to induce it to execute this Agreement; and
acknowledges that it has made its own credit analysis and decision to enter
into this Agreement and undertake the guaranty set forth in this Article IV.


 


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


 


25

















 


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


 


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


 


Section 4.08.  Continuing Guaranty.  The guaranty set forth in this Article IV
is a continuing guaranty and shall (a) remain in full force and effect
until the payment in full of the Guaranteed Obligations and all other amounts
payable under this guaranty, (b) be binding upon the Guarantor, its
successors and assigns, (c) inure to the benefit of, and be enforceable
by, the Administrative Agent and each of the Banks and their respective
successors, transferees and assigns, and (d) not be terminated by the
Guarantor or the Borrower.


 


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


 


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


 


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


 


26

















 


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


 


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


 


ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


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


 


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


 


27

















 


Section 5.04.  Financial Statements.  (a)  The Consolidated balance sheet of
the Borrower and its Subsidiaries as of June 27, 2007 and the related
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, copies of which have been
furnished to each Bank, as included in an SEC Filing which has been furnished
to each Bank, fairly present the Consolidated financial condition of the
Borrower and its Subsidiaries as of such date and the Consolidated results of
operations of the Borrower and its Subsidiaries ended on such date, in
accordance with GAAP, except as disclosed therein or on Schedule VI to
this Agreement.


 


(b)           Since June 27, 2007 and except
as disclosed in an SEC Filing which has been delivered to each Bank or on a
Schedule to this Agreement, no event which has or would reasonably be expected
to have a Material Adverse Effect has occurred.


 


Section 5.05.  Litigation.  Except as otherwise disclosed in writing by
the Borrower or the Guarantor to the Banks and the Administrative Agent and
approved by the Majority Banks, there is no pending or, to the knowledge of the
Borrower or the Guarantor, threatened action or proceeding affecting the
Borrower or any of its Significant Subsidiaries before any court, governmental
agency or arbitrator, which has, or would reasonably be expected to have, a
Material Adverse Effect.


 


Section 5.06.  Margin Stock; Use of Proceeds.  Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation T, U or X
issued by the Board of Governors of the Federal Reserve System and except in
connection with employee plans disclosed to the Administrative Agent), and no
proceeds of any Loan will be used for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any such margin stock under such circumstances
as to involve the Borrower, the Guarantor, any of their Subsidiaries or any
Bank in a violation of Regulation U.


 


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


 


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


 


28

















 


Section 5.09.  Taxes. 
As of the date of this Agreement, the United States of America federal
income tax returns of the Borrower and its Subsidiaries have been examined
through the fiscal year ended June 29, 2005.  The Borrower and its Significant Subsidiaries
have filed all United States of America Federal income tax returns and all
other material domestic tax returns which are required to be filed by them and
have paid, or provided for the payment before the same become delinquent of,
all taxes due pursuant to such returns or pursuant to any assessment received
by the Borrower or any such Significant Subsidiary, other than those taxes (a) contested
in good faith by appropriate proceedings or (b) the nonpayment of which
does not have, and would not reasonably be expected to have a Material Adverse
Effect.  The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
are adequate in the aggregate.


 


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


 


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


 


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


 


ARTICLE VI


 


AFFIRMATIVE COVENANTS


 


So long as any
Loan shall remain unpaid, unless the Majority Banks shall otherwise consent in
writing:


 


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


 


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


 


29

















 


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


 


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


 


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


 


(d)           Concurrently with the delivery of the
financial statements referred to in Sections 6.02(b) and (c),
the Borrower will also furnish to each Bank (i) a certificate of a
Financial Officer to the effect that no Default or an event which, with the
giving of notice, the lapse of time or both, would constitute a Default, which
shall have occurred and is continuing with respect to the covenants contained
in Section 7.01 (together with appropriate supporting schedule
setting forth the calculations relating to such covenants) or, if such
Financial Officer has knowledge of a Default or an event which, with the giving
of notice, the lapse of time or both, would constitute a Default, which shall
have occurred and is continuing with respect to Section 7.01,
specifying the nature thereof, and (ii) a complete and correct list of the
Significant Subsidiaries as of the date thereof, showing, as to each
Significant Subsidiary, the correct name thereof, the jurisdiction of its
organization and such Significant Subsidiaries’ proportionate share of the
Consolidated assets of the Borrower.


 


30

















 


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


 


(f)            Promptly upon the recurrence of any
change in a Rating, notice thereof.


 


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


 


Section 6.03.  Use of Proceeds.  The Borrower will use the proceeds of the
Loans only to repay all amounts outstanding under the Existing Bridge Loan
Agreement.


 


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


 


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


 


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


 


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


 


31

















 


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


 


ARTICLE VII


 


NEGATIVE COVENANTS


 


So long as any
Loan shall remain unpaid, without the written consent of the Majority Banks:


 


Section 7.01.  Financial Covenants.  The Borrower will not:


 


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


 


(b)           as of the last day of each fiscal
quarter, permit the ratio (the “Debt to Cash Flow Ratio”) of (i) the
sum of (x) Debt of the Borrower, on a Consolidated basis, plus (y) the
product of six multiplied by Rent Expense of the Borrower, on a Consolidated
basis, for the immediately preceding twelve-month period, to (ii) the sum
of (a) EBITDA of the Borrower, on a Consolidated basis, for the
immediately preceding twelve-month period, plus (b) Rent Expense of
the Borrower, on a Consolidated basis, for the immediately preceding
twelve-month period to exceed 3.5 to 1.0.


 


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


 


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


 


32

















 


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


 


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


 


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


 


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


 


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


 


Section 7.07.  Limitation on Loans, Advances and
Investments.  Neither the Borrower nor
the Guarantor will, or will permit any of their respective Subsidiaries to,
make or permit to exist, any loans, advances or capital contributions to, or
make any investment in, or purchase or commit to purchase any stock or other
securities or evidences of indebtedness of or interests in any Person which is
not, or which will not become in connection with such transaction, a Subsidiary
(“Investments”), except the following:


 


33

















 


(a)           Liquid Investments;


 


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


 


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


 


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


 


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


 


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


 


Section 7.08.  Maintenance of Books and Records.  The Borrower and its Significant Subsidiaries
will maintain its books of record and account in conformity with GAAP.


 


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


 


ARTICLE VIII


 


DEFAULTS


 


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


 


34

















 


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


 


(b)           any certification, representation or
warranty made by the Borrower or the Guarantor herein or by the Borrower or the
Guarantor (or any of their respective officers) in writing (including
representations and warranties deemed made pursuant to Section 2.05(a)(G))
under or in connection with any Credit Document shall prove to have been
incorrect in any material respect when made or deemed made; or


 


(c)           the Borrower or the Guarantor shall
fail to perform or observe (i) any term, covenant or agreement contained
in Sections 6.02 or 6.05 (other than with respect to maintaining
the corporate existence of the Borrower or the Guarantor or maintaining any
Corporate Franchise of the Borrower or the Guarantor which is material to the
Borrower’s or the Guarantor’s business and operations) on its part to be
performed or observed and such failure shall continue for thirty (30) Business
Days after the earlier of the date notice thereof shall have been given to the
Borrower or the Guarantor by the Administrative Agent, or (ii) any term,
covenant or agreement contained in any Credit Document (other than a term,
covenant or agreement described in clause (i) of this clause
(c)) on its part to be performed or observed and such failure shall continue
for twenty (20) Business Days after the earlier of the date notice thereof
shall have been given to the Borrower or the Guarantor by the Administrative
Agent; or


 


(d)           the Borrower, the Guarantor, or any
of their respective Subsidiaries shall fail to pay any principal of or premium
or interest on any of its Debt which is outstanding in a principal amount of at
least $50,000,000 in the aggregate (excluding Debt evidenced by the Notes) when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt, or any event of default or other event shall
occur or condition shall exist under any agreement or instrument creating or
evidencing such Debt in such principal amount, and shall continue after the
applicable grace period, if any, specified in such agreement or instrument if
the effect of such event or condition is to accelerate the maturity of such
Debt; provided, however, a Default or an event which, with the
giving of notice, the lapse of time or both, would constitute a Default, shall
have occurred or be continuing for purposes of this clause (d) shall
not be deemed to exist due to the acceleration of the maturity of any
obligation to a Bank or an affiliate (within the meaning of Regulation U) of a
Bank solely by reason of a default in the performance of a term or condition in
any agreement or instrument under or by which such obligation is created,
evidenced or secured, which term or condition restricts the right of the
Borrower or any other Person to sell, pledge or otherwise dispose of any margin
stock (within the meaning of Regulation U) held by the Borrower or any such
other Person; or


 


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


 


35
















 


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


 


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


 


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


 


then,
and in any such event, the Administrative Agent shall at the request, or may
with the consent, of the Majority Banks, after notice to the Borrower declare
the Notes and the outstanding principal amount of all Loans, all interest
thereon and all other amounts payable by the Borrower and the Guarantor under
this Agreement to be forthwith due and payable, whereupon such Notes and the
outstanding principal amount of all Loans, such interest and all such amounts
shall become and be forthwith due and payable, without requirement of any
presentment, demand, protest, notice of intent to accelerate, further notice of
acceleration or other further notice of any kind (other than the notice
expressly provided for above), all of which are hereby expressly waived by the
Borrower and the Guarantor; provided, however, that in the event
of any Default described in Section 8.01(e) with respect to
the Borrower or the Guarantor, the Loans and Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or any other notice of any kind, all of which are hereby expressly
waived by the Borrower and the Guarantor.


 


ARTICLE IX


 


THE ADMINISTRATIVE AGENT


 


Section 9.01.  Authorization and Action.  Each Bank hereby appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto.  As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Loans), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks; provided, however,
that the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to
this Agreement or applicable law.  The
Administrative Agent agrees to give to each Bank prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.


 


36

















 


Section 9.02.  Administrative Agent’s Reliance, Etc.  Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Banks for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct.  Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may consult
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable to the
Banks for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (ii) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iii) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the property (including the books and records) of the
Borrower or any of its Subsidiaries; (iv) shall not be responsible to any
Bank for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (v) shall incur no liability to the Banks
under or in respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.


 


Section 9.03.  Defaults.  The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of a Default (other than a failure to make a payment of
principal of or interest on the Loans)
unless the Administrative Agent has received notice from a Bank or the Borrower
specifying such Default and stating that such notice is a “Notice of Default”.  In the event that the Administrative Agent
receives such a notice of  a Default, the
Administrative Agent shall give prompt notice thereof to the Banks.  The Administrative Agent shall (subject to Section 9.08
hereof) take such action with respect to such Default as shall be directed by
the Majority Banks, provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable in the best
interest of the Banks except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of the Majority Banks or all of the Banks.


 


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


 


37

















 


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


 


Section 9.06.  Successor Administrative Agent.  The Administrative Agent may resign at any
time by giving written notice thereof to the Banks and the Borrower and may be
removed at any time with or without cause by the Majority Banks.  Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Administrative Agent
that, unless a Default shall have occurred and then be continuing, is
acceptable to the Borrower.  If no
successor Administrative Agent shall have been so appointed by the Majority
Banks, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent’s giving of notice of resignation or the Majority
Banks’ removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having total assets
of at least $1,000,000,000.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement.  After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of
this Article IX shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.


 


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


 


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


 


38

















 


ARTICLE X


 


MISCELLANEOUS


 


Section 10.01. 
Amendments, Etc.  No
amendment or waiver of any provision of any Credit Document, nor consent to any
departure by the Borrower or the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrower and
the Majority Banks, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing
and signed by all the Banks, do any of the following: (a) subject any of
the Banks to any additional obligations, (b) reduce the principal of, or
interest on, the Notes or the Loans or any fees or other amounts payable
hereunder, (c) postpone any date fixed for any payment of principal of, or
interest on, the Notes or the Loans or any fees or other amounts payable
hereunder, (d) take action which requires the signing of all the Banks
pursuant to the terms of this Agreement, (e) change the percentage of the
aggregate unpaid principal amount of the Loans, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Agreement or any other Credit Document, (f) release the Guarantor or
otherwise change any obligation of the Guarantor to pay any amount payable by
the Guarantor hereunder or (g) amend this Section 10.01; provided,
further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Banks required above
to take such action, affect the rights or duties of the Administrative Agent
under any Credit Document; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Guarantor in addition to any other party required above to take such action,
affect the rights or duties of the Guarantor under any Credit Document.


 


39

















 


Section 10.02.  Notices, Etc.


 


(a)           Subject to clauses (b) through
(f) of this Section 10.02, all notices and other
communications provided for hereunder shall be in writing (including telecopy
or email communication) and mailed, telecopied or emailed or delivered, if to
any Bank as specified on Schedule I hereto or specified pursuant to
an Assignment, if to the Borrower or the Guarantor, as specified opposite its
name on Schedule III hereto; or, as to the Borrower, the Guarantor
or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the Borrower, the Guarantor and the Administrative Agent.  All such notices and communications shall,
when mailed, telecopied or emailed, be effective when deposited in the mails,
sent by telecopier to any party to the telecopier number as set forth herein or
on Schedule I or Schedule III hereto (or other telecopy
number specified by such party in a written notice to the other parties
hereto), or sent by email to the addresses set forth herein or on Schedule I
or Schedule III hereto, respectively, except that notices to the
Administrative Agent pursuant to Article II shall not be effective
until received by the Administrative Agent.


 


(b)           The Borrower hereby
agrees that it will provide to the Administrative Agent all information,
documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement, including, without limitation,
all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) relates to a request for a conversion of an existing
Loan (including any election of an interest rate or Interest Period relating
thereto), (ii) relates to the payment of any principal or other amount due
under this Agreement prior to the scheduled date therefor, (iii) provides
notice of any Default or event which, with the giving of notice, the lapse of
time or both, would constitute a Default, that shall have occurred or be
continuing under this Agreement or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or
any borrowing hereunder (all such non-excluded communications being referred to
herein collectively as “Communications”), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to oploanswebadmin@citigroup.com.  In addition, the Borrower agrees to continue
to provide the Communications to the Administrative Agent in the manner
specified in this Agreement but only to the extent requested by the
Administrative Agent.


 


(c)           The Borrower further
agrees that the Administrative Agent may make the Communications available to
the Banks by posting the Communications on Intralinks or a substantially
similar electronic transmission system (the “Platform”).


 


(d)           THE PLATFORM IS
PROVIDED “AS IS” AND “AS AVAILABLE”.  THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION, AN WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. 
IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR
ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE
BORROWER, ANY BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE
LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


 


40

















 


(e)           The Administrative
Agent agrees that the receipt of the Communications by the Administrative Agent
at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of this
Agreement.  Each Bank agrees that notice
to it (as provided in the next sentence) specifying that the Communications
have been posted to the Platform shall constitute effective delivery of the
Communications to such Bank for purposes of this Agreement.  Each Bank agrees to notify the Administrative
Agent in writing (including by electronic communication) from time to time of
such Bank’s e-mail address to which the foregoing notice may be sent by
electronic transmission and (ii) that the foregoing notice may be sent to
such e-mail address.


 


(f)            Nothing herein shall
prejudice the right of the Administrative Agent or any Bank to give any notice
or other communication pursuant to this Agreement in any other manner specified
herein.


 


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


 


Section 10.04.  Costs, Expenses and Taxes.


 


(a)           The
Borrower agrees to pay on demand (i) all reasonable out-of-pocket costs
and expenses of the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of any Credit
Document, including, without limitation, the reasonable fees and out-of-pocket
expenses of Chadbourne & Parke LLP, special counsel to the
Administrative Agent, and Hughes & Luce, L.L.P., special Texas counsel
to the Administrative Agent, with respect to advising the Administrative Agent
and (ii) all reasonable out-of-pocket costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses), of the
Administrative Agent and each Bank in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) against the Borrower or
the Guarantor of any Credit Document.


 


41

















 


(b)           EACH OF THE BORROWER AND THE
GUARANTOR, JOINTLY AND SEVERALLY, AGREES, TO THE FULLEST EXTENT PERMITTED BY
LAW, TO INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT AND EACH BANK AND
EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL),
FOR WHICH ANY OF THEM MAY BECOME LIABLE OR WHICH MAY BE INCURRED BY
OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT OR SUCH BANK OR ANY SUCH DIRECTOR,
OFFICER, EMPLOYEE OR AGENT (OTHER THAN BY ANOTHER BANK OR ANY SUCCESSOR OR
ASSIGN OF ANOTHER BANK OR BY THE BORROWER OR GUARANTOR), IN EACH CASE IN
CONNECTION WITH OR ARISING OUT OF OR BY REASON OF ANY INVESTIGATION, LITIGATION,
OR PROCEEDING, WHETHER OR NOT THE ADMINISTRATIVE AGENT OR SUCH BANK OR ANY SUCH
DIRECTOR, OFFICER OR EMPLOYEE IS A PARTY THERETO, ARISING OUT OF, RELATED TO OR
IN CONNECTION WITH ANY CREDIT DOCUMENT OR ANY TRANSACTION IN WHICH ANY PROCEEDS
OF ALL OR ANY PART OF THE LOANS ARE APPLIED, OTHER THAN ANY SUCH CLAIM,
DAMAGE, LIABILITY OR EXPENSE TO THE EXTENT ATTRIBUTABLE TO THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF, OR VIOLATION OF ANY LAW OR REGULATION BY, ANY SUCH
INDEMNIFIED PARTY.  NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.


 


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


 


42

















 


Section 10.06.  Bank Assignments and Participations.


 


(a)           Assignments.  Any Bank may assign to one or more banks or
other entities all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of the Loans owing
to it, and the Notes held by it) with the consent, not to be unreasonably
withheld, of the Administrative Agent and, so long as no Default under Section 8.01(a) or
(e) has occurred and is continuing, the Borrower; provided, however,
that (i) the amount of the resulting Loans of the assigning Bank (unless
it is assigning all its Loans) and the assignee Bank pursuant to each such
assignment (determined as of the date of the Assignment with respect to such
assignment) shall in no event be less than $10,000,000 and shall be an integral
multiple of $1,000,000, (ii) each such assignment shall be to an Eligible
Assignee, (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent for its acceptance and recording in the Register,
an Assignment, together with the Note or Notes subject to such assignment and
shall pay all legal and other expenses in respect of such assignment and (iv) each
Eligible Assignee not already a Bank hereunder shall pay to the Administrative
Agent an assignment fee of $3,500 in connection with such assignment.  Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment,
which effective date shall be at least three (3) Business Days after the
execution thereof, (A) the assignee thereunder shall be a party hereto for
all purposes and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment, have the rights and obligations of
a Bank hereunder and (B) such Bank thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment, relinquish its rights and be released from its obligations to lend
under this Agreement (and, in the case of an Assignment covering all or the
remaining portion of such Bank’s rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).


 


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


 


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


 


43

















 


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


 


(e)           Participations.  Each Bank may sell participations to one or
more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Loans owing to it, and the Notes held by it); provided, however,
that (i) such Bank’s obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Bank shall
remain the holder of any such Notes for all purposes of this Agreement, (iv) the
Borrower, the Guarantor, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank’s rights and obligations under this Agreement and shall have no duties or
responsibilities to the participant, (v) such Bank shall not require the
participant’s consent to any matter under this Agreement, except for changes in
the principal amount of Loans owed to such Bank in which the participant has an
interest, reductions in fees or interest, the date any amount is due hereunder,
or extending the Maturity Date, and (vi) such Bank shall give prompt
notice to the Borrower of each such participation sold by such Bank.  No participants shall have any rights under
any provisions of any of the Credit Documents.


 


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


 


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


 


44

















 


Section 10.08.  Interest.


 


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


 


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


 


(c)           The maximum non-usurious rate of
interest shall be determined by utilizing the applicable weekly ceiling from
time to time in effect pursuant to Chapter 303 of the Texas Finance Code.  Pursuant to Section 346.004 of the Texas
Finance Code, the parties hereto agree that in no event will the provisions of
Chapter 346 of the Texas Finance Code be applicable to the transactions
contemplated by the Credit Documents.


 


45

















 


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


 


Section 10.10.  Survival of Agreements, Representations
and Warranties, Etc.  All warranties,
representations and covenants made by the Borrower or the Guarantor or any
officer of the Borrower or the Guarantor herein or in any certificate or other
document delivered in connection with this Agreement shall be considered to
have been relied upon by the Banks and shall survive the issuance and delivery
of the Notes and the making of the Loans regardless of any investigation.  The indemnities and other obligations of the
Borrower contained in this Agreement, and the indemnities by the Banks in favor
of the Agent and its officers, directors, employees and agents, will survive
the repayment of the Loans and the termination of this Agreement.


 


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


 


Section 10.12.  Confidentiality.  Each Bank and the Administrative Agent agree
that they will not disclose without the prior consent of the Borrower and the
Guarantor (other than to employees, auditors, accountants, counsel or other
professional advisors of the Agent or any Bank who have a contractual,
fiduciary or professional duty to maintain the confidentiality of the
information) any information with respect to the Borrower or the Guarantor or
their Subsidiaries which is furnished pursuant to this Agreement and which is
not disclosed in an SEC Filing, a report to shareholders, a press release, or
has otherwise become generally available to the public otherwise than through a
breach hereof (the “Confidential Information”), provided, that,
any Bank may disclose any such Confidential Information (a) as may be
required or appropriate in any report, statement or testimony submitted to or
required by any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Bank or submitted to or required by the Board of
Governors of the Federal Reserve System or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States of America
or elsewhere) or their successors, (b) as may be required or appropriate
in response to any summons or subpoena in connection with any litigation, (c) in
order to comply with any law, order, regulation or ruling applicable to such
Bank, and (d) to an Eligible Assignee, but not to a prospective
participant, in connection with any contemplated transfer of any of the Loans
or the Notes or any interest therein by such Bank, provided, that,
such Eligible Assignee executes an agreement with the Borrower and the
Guarantor agreeing to comply with the provisions contained in this Section 10.12.  In the event that the Administrative Agent or
any Bank becomes legally compelled or otherwise obligated to disclose any of
the Confidential Information and unless otherwise prohibited by applicable
banking laws or regulations, such Person will promptly, after obtaining
knowledge of its obligation to disclose such information, provide the Borrower
with notice so that the Borrower may seek a protective order or other
appropriate remedy or waive compliance with this Section.  In the event such protective order or other
remedy is not obtained, such Person will furnish only that portion of the
Confidential Information which it is advised by legal counsel is legally
required and will exercise its best efforts to obtain reliable assurances that
confidential treatment will be accorded the Confidential Information.  In the event that compliance with this Section is
waived by the Borrower, such Person may disclose any and all information at
issue without liability to the Borrower, the Guarantor or any other Person.


 


46

















 


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


 


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


 


THE RIGHTS AND
OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH
SHALL BE DETERMINED SOLELY FROM THE WRITTEN LOAN AGREEMENT, AND ANY PRIOR ORAL
AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN
AGREEMENT.  THIS WRITTEN AGREEMENT AND
THE CREDIT DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.  IN CASE OF A
CONFLICT BETWEEN THE COMMITMENT LETTER DATED AS OF SEPTEMBER 26, 2007 BETWEEN
EACH OF THE JOINT LEAD ARRANGERS AND BOOKRUNNERS NAMED ON THE COVER PAGE OF
THIS AGREEMENT, JPMCB AND THE BORROWER, AND THIS AGREEMENT, THIS AGREEMENT
SHALL CONTROL.


 


Section 10.15.  USA PATRIOT ACT.  Each Bank hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Bank to identify the Borrower in accordance with the Act.


 


47

















 


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


 


	
   

  	
  BORROWER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRINKER
  INTERNATIONAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Charles M. Sonsteby

  	
   

  
	
   

  	
  Name:

  	
   Charles
  M. Sonsteby

  
	
   

  	
  Title:

  	
   Executive
  Vice President and Chief

  
	
   

  	
   

  	
   Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRINKER
  RESTAURANT CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Roger F. Thomson

  	
   

  
	
   

  	
  Name:

  	
   Roger
  F. Thomson

  
	
   

  	
  Title:

  	
   President
  and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  ADMINISTRATIVE AGENT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Kevin A. Ege

  	
   

  
	
   

  	
  Name:

  	
   Kevin
  A. Ege

  
	
   

  	
  Title:

  	
   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANKS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CITIBANK,
  N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kevin A. Ege

  	
   

  
	
   

  	
  Name:

  	
   Kevin
  A. Ege

  
	
   

  	
  Title:

  	
   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Scott Harvey

  	
   

  
	
   

  	
  Name:

  	
   Scott
  Harvey

  
	
   

  	
  Title:

  	
   Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ John H. Schmidt

  	
   

  
	
   

  	
  Name:

  	
   John
  H. Schmidt

  
	
   

  	
  Title:

  	
   Vice
  President

  
																						



 


48

















 


	
   

  	
  THE
  BANK OF TOKYO-MITSUBISHI UFJ, LTD.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Douglas M. Barnell

  	
   

  
	
   

  	
  Name:

  	
   Douglas
  M. Barnell

  
	
   

  	
  Title:

  	
   Vice
  President and Manager, Southwest

   Corporate

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Thomas M. Harper

  	
   

  
	
   

  	
  Name:

  	
   Thomas
  M. Harper

  
	
   

  	
  Title:

  	
   Senior
  Vice President and Managing

   Director

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CITY BANK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Jennifer Obers

  	
   

  
	
   

  	
  Name:

  	
   Jennifer
  Obers

  
	
   

  	
  Title:

  	
   Portfolio
  Manager

  
	
   

  	
   

  
	
   

  	
  BANK
  OF CHINA, LOS ANGELES BRANCH

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Jason Fu

  	
   

  
	
   

  	
  Name:

  	
   Jason
  Fu

  
	
   

  	
  Title:

  	
   Vice
  President

  
	
   

  	
   

  
	
   

  	
  FIFTH
  THIRD BANK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Mike Mendenhall

  	
   

  
	
   

  	
  Name:

  	
   Mike
  Mendenhall

  
	
   

  	
  Title:

  	
   Vice
  President

  
	
   

  	
   

  
	
   

  	
  SUNTRUST
  BANK

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Jean-Paul Purdy

  	
   

  
	
   

  	
  Name:

  	
   Jean-Paul
  Purdy

  
	
   

  	
  Title:

  	
   Director

  
	
   

  	
   

  
	
   

  	
  US
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Frances W. Josephic

  	
   

  
	
   

  	
  Name:

  	
   Frances
  W. Josephic

  
	
   

  	
  Title:

  	
   Vice
  President

  
											



 


49

















 


	
   

  	
  WELLS
  FARGO BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Greg Campbell

  	
   

  
	
   

  	
  Name:

  	
   Greg
  Campbell

  
	
   

  	
  Title:

  	
   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  NORINCHUKIN BANK, New York Branch

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Noritsugu Sato

  	
   

  
	
   

  	
  Name:

  	
   Noritsugu
  Sato

  
	
   

  	
  Title:

  	
   General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRST
  COMMERCIAL BANK, Los Angeles Branch

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  Larry Jen-Yu Lai

  	
   

  
	
   

  	
  Name:

  	
   Larry
  Jen-Yu Lai

  
	
   

  	
  Title:

  	
   SAVP &
  Deputy General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  GREENSTONE
  FARM CREDIT BANK, ACA/FLCA

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jeff Pavlik

  	
   

  
	
   

  	
  Name:

  	
   Jeff
  Pavlik

  
	
   

  	
  Title:

  	
   Assistant
  Vice President/Lending Officer

  
									



 


50

















 


EXHIBIT A


 


FORM OF NOTE


 


	
  U.S. 

  	
  $ Dated:
                
  [    ], 20

  



 


FOR VALUE RECEIVED, the undersigned, Brinker
International, Inc., a Delaware corporation (the “Borrower”),
HEREBY PROMISES TO PAY to the order of
                      
(the “Bank”), for the account of its Applicable Lending Office (as
defined in the Term Loan Agreement referred to below) or any other office
designated by the Bank, the principal amount of
$                        
on the Maturity Date as defined in said Term Loan Agreement.


 


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


 


Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Administrative Agent, at 2
Penns Way, Suite 200, New Castle, DE 
19720, in same day funds.


 


This Promissory Note is one of the Notes referred to in,
and is subject to and entitled to the benefits of, the Term Loan Agreement
dated as of October 24, 2007 (as it may be amended from time to time in
accordance with its terms, the “Term Loan Agreement”), among the
Borrower, Brinker Restaurant Corporation, a Delaware corporation, as Guarantor,
the Bank and certain other banks parties thereto (collectively, the “Banks”)
and Citibank, N.A., as Administrative Agent for the Banks.  The Term Loan Agreement, among other things,
provides for the making of loans by the Bank to the Borrower and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein
specified.  Capitalized terms used herein
which are not defined herein and are defined in the Term Loan Agreement are
used herein as therein defined.


 


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


 


This Promissory Note shall be governed by, and construed
in accordance with, the laws of the State of Texas.


 


 


	
   

  	
  BRINKER INTERNATIONAL, INC.

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


A-1

















 


EXHIBIT B


 


FORM OF NOTICE OF BORROWING


 


[Date]


 


	
  Citibank, N.A., as Administrative Agent

  
	
   

  	
  for the Banks parties

  
	
   

  	
  to the Term Loan Agreement

  
	
   

  	
  referred to below

  



 


	
  Two Penns Way,
  Suite 200

  New Castle, Delaware 19720

  
	
  Attention:

  	
  Rose Delp

  



 


	
  Telephone:

  	
   

  	
  (302) 894 - 6004

  
	
  Telecopy:

  	
   

  	
  (212) 994 - 0961

  



 


Ladies and Gentlemen:


 


The undersigned, Brinker International, Inc., a
Delaware corporation (the “Borrower”), refers to the Term Loan
Agreement, dated as of October 24, 2007 (as amended from time to time in
accordance with its terms, the “Term Loan Agreement”; capitalized terms
defined therein and not defined herein being used herein as therein defined),
among the undersigned, Brinker Restaurant Corporation, a Delaware corporation,
as Guarantor, certain Banks parties thereto, and Citibank, N.A., as
Administrative Agent, and hereby gives you notice, irrevocably  pursuant
to Section 2.02 of the Term Loan Agreement, that the undersigned
hereby requests a Borrowing under the Term Loan Agreement, and in that
connection sets forth below the information relating to such Borrowing (the “Proposed
Borrowing”) as required by Section 2.02 of the Term Loan
Agreement:


 


	
  Borrowing Amount

  	
   

  	
  Type of Loan(1)

  	
   

  	
  Interest Period(2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $       

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $       

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $       

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:   $400,000,000    

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)           Eurodollar Rate Loan
or Base Rate Loan.


 


(2)           Which shall have a
duration in the case of a Eurodollar Rate Loan, of one (1), two (2), three (3) or
six (6) months and which shall end not later that the Maturity Date.


 


B-1

















 


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


 


(a)           the
representations and warranties contained in Article V of the Term
Loan Agreement are correct in all material
respects on and as of the date of the Proposed Borrowing, before and after
giving effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  BRINKER INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


B-2

















 


EXHIBIT C


 


FORM OF ASSIGNMENT


 


Dated
                                ,


 


Reference is made to the Term Loan Agreement, dated as
of October 24, 2007 (as the same may be amended or modified from time to
time, the “Term Loan Agreement”) among Brinker International, Inc.,
a Delaware corporation (the “Borrower”), Brinker Restaurant Corporation,
a Delaware corporation (the “Guarantor”), the Banks named therein, and
Citibank, N.A., as Administrative Agent for the Banks.  Capitalized terms not otherwise defined in
this Assignment (this “Assignment”) shall have the meanings assigned to
them in the Term Loan Agreement.


 


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


 


1.             The
Assignor hereby sells and assigns and delegates to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), without recourse to the Assignor and without
representation or warranty except for the representations and warranties
specifically set forth in clauses (a), (b), and (c) of
Section 2 hereof, [(a)] a
        %(1) interest in and to
all of the Assignor’s rights and obligations under the Term Loan Agreement, its
outstanding Loans and its Note.


 


2.             The
Assignor (a) represents and warrants that, prior to executing this
Assignment (i) the aggregate outstanding principal amount of the Loans (without giving effect to assignments thereof
which have not yet become effective) owed to it by the Borrower is
$            ; (b) represents
and warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim; (c) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties, or representations
made in or in connection with the Term Loan Agreement or any other Credit
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency, or value of the Term Loan Agreement or any other Credit Document
or any other instrument or document furnished pursuant thereto; (d) makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the Guarantor or the performance or
observance by the Borrower or the Guarantor of any of their respective
obligations under the Term Loan Agreement or any other Credit Document or any
other instrument or document furnished pursuant thereto; and (e) attaches
the Note referred to in Section 1 above and requests that the
Administrative Agent [(i)] exchange such Note for [a] new Note dated
                      ,
         in the principal amount of
$                    
payable to the order of the Assignee[, and a new Note dated
                      ,
         in the principal amount of $
            
payable to the order of Assignor].


 


3.             The
Assignee (a) confirms that it has received a copy of the Term Loan
Agreement, together with copies of the financial statements referred to in Section 5.04
thereof and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment; (b) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor, or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Term Loan Agreement; (c) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Term Loan Agreement as are delegated
to the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (d) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Term Loan Agreement are required to be performed by it as a Bank; (e) specifies
as its Domestic Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature pages hereof;
(f) attaches the forms prescribed by the Internal Revenue Service of the
United States of America certifying as to the Assignee’s status for purposes of
determining exemption from United States of America withholding taxes with
respect to all payments to be made to the Assignee under the Term Loan Agreement
and its Note or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced by an applicable tax
treaty2/, (g) represents that it is an
Eligible Assignee, and (h) agrees that it will keep confidential all
information with respect to the Borrower furnished to it by Borrower or the
Assignor (other than information generally available to the public or otherwise
available to the Assignor on a non-confidential basis) as provided in Section 10.12
of the Term Loan Agreement.


 


C-1

















 


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


 


5.             Upon
such recording, and as of the Effective Date, (i) the Assignee shall be a
party to the Term Loan Agreement for all purposes, and, to the extent provided
in this Assignment, have the rights and obligations of a Bank thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment, relinquish its
rights (other than rights against the Borrower pursuant to Section 10.04
of the Term Loan Agreement, which shall survive this assignment) and be
released from its obligations under the Term Loan Agreement.


 


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


 


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


 


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


 


C-2
















	
   

  	
   

  
	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  Domestic
  Lending Office:

  
	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending Office:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
														



 


C-3

















 


	
   

  	
  CITIBANK, N.A., as
  Administrative Agent for

  
	
   

  	
  itself and the Banks

  



 


 


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  
	
   

  	
  Telecopy:

  	
   

  
	
   

  	
  Telephone:

  	
   

  
									



 






	
  (1)

  	
   

  	
  Specify percentage in no more
  than 4 decimal points.

  
	
  (2)

  	
   

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

  
	
  (3)

  	
   

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

  



 


C-4

















 


EXHIBIT D


 


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


 


[                    ,
2007]


 


To each of the Banks
parties to the 

Term Loan Agreement herein described


and to Citibank, N.A., as Administrative Agent


 


Ladies and Gentlemen:


 


This opinion is furnished
to you pursuant to Section 3.01(a)(iv) of the $400,000,000 Term Loan Agreement, dated as of October 24, 2007
(the “Term Loan Agreement”), among
Brinker International, Inc., a Delaware corporation, as borrower (the “Borrower”);
Brinker Restaurant Corporation, a Delaware corporation, as guarantor (the “Guarantor”);
the banks party thereto (the “Banks”); and Citibank, N.A., as Administrative
Agent for such Banks (in such capacity, the “Administrative Agent”).  Capitalized terms defined in the Term Loan Agreement are used herein with
the same meaning unless otherwise defined herein.


 


DOCUMENTS
EXAMINED


 


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


 


(i)            The Term Loan Agreement;


 


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


 


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


 


(iv)          Bylaws of the Borrower
(the “Borrower Bylaws”); and


 


(v)           Bylaws of the Guarantor
(the “Guarantor Bylaws”).


 


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


 


D-1

















 


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


 


ASSUMPTIONS


 


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


 


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


 


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


 


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


 


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


 


OPINION


 


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


 


D-2

















 


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


 


2.             The Term Loan
Agreement has been duly and validly authorized, executed and delivered by the
Borrower, and constitutes and each Note when duly executed and delivered for
value in accordance with the Term Loan Agreement will constitute, a valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, in each case except as enforcement of the Term Loan
Agreement or the Notes may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, fraudulent transfer, moratorium or other laws
affecting creditors’ rights generally, and subject to general equity principles
and to limitations on availability of equitable relief, including specific performance.


 


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


 


4.             Neither the execution
and delivery of the Term Loan Agreement or the Notes or the consummation of the
transactions contemplated therein will violate any provision of the Borrower
Certificate of Incorporation, the Guarantor Certificate of Incorporation, the
Borrower Bylaws or the Guarantor Bylaws, or to our Knowledge, conflict with or
violate any statute, judgment, order, decree or regulation or rule of any
court, governmental authority or arbitrator applicable or relating to the
Borrower or the Guarantor.


 


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


 


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


 


FURTHER QUALIFICATIONS AND LIMITATIONS


 


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


 


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


 


D-3

















 


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


 


(c)           To the extent that the
opinions given in Sections 2, 3 and 4 constitute opinions with respect to laws
relating to usury, such opinions are expressly limited to the opinion that the
Term Loan Agreement and the Notes do not require the payment of interest at a
rate which is usurious.  In rendering
such opinion, we have relied upon and assumed the applicability of Chapter 303
of the Texas Finance Code, as currently in effect, and have assumed that (i) there
are no fees, points or other charges or forms of compensation to Administrative
Agent or any Bank in respect of the Term Loan Agreement or the issuance of the
Notes or any commitment to pay any such charges or other forms of compensation,
other than those specifically disclosed in the Term Loan Agreement, (ii) all
fees and charges provided for in the Term Loan Agreement and the Notes to be
paid by Borrower or Guarantor to Administrative Agent or any Bank constitute
bona fide commitment fees and not interest, (iii) all charges for
reimbursement of services paid to third parties will be for actual
out-of-pocket expenses paid to third parties for services actually rendered by
such parties, (iv) Administrative Agent, the Banks, Borrower and Guarantor
will comply with the “usury savings clause” and other provisions of the Term
Loan Agreement to the effect that the Borrower and the Guarantor will never be
required to pay interest (including all compensation that constitutes interest
under applicable law) on the Notes or otherwise in respect of the Term Loan Agreement
in excess of the maximum rate or amount of interest that may lawfully be
contracted for, charged or collected thereon or in connection therewith under
applicable Texas law (collectively, the “Savings Clauses”), and (v) in
complying with the provisions of the Saving Clauses, Administrative Agent and
such Bank will give due consideration to all fees, charges or other
compensation which under applicable Texas law may be or is deemed to be
interest.


 


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


 


D-4

















 


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


 


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


 


Very truly yours,


 


 


D-5

















 


EXHIBIT E


 


FORM OF
LEGAL OPINION OF SPECIAL COUNSEL TO

ADMINISTRATIVE AGENT


 


[                    ,
2007]


 


To each of the Banks
parties to


the Term Loan Agreement
herein described and to


Citibank, N.A.,


as Administrative Agent


 


Ladies and Gentlemen:


 


We have acted as special
counsel to Citibank, N.A., acting for itself and as Administrative Agent in
connection with the preparation, execution and delivery of that certain Term
Loan Agreement, dated as of October 24, 2007 (the “Term Loan
Agreement”), among Brinker International, Inc., a Delaware
corporation, as borrower (the “Borrower”), Brinker Restaurant
Corporation, a Delaware corporation, as guarantor (the “Guarantor”),
Citibank, N.A., as Administrative Agent (the “Administrative Agent”) and
each of you (the “Banks”).  Terms
defined in the Term Loan Agreement are used herein as therein defined.


 


In that connection, we
have examined the following documents:


 


(1)           counterparts of the
Term Loan Agreement, executed by the Borrower, the Guarantor, the Banks, and
the Administrative Agent, respectively; and


 


(2)           the opinion dated as of
the date hereof of Jackson Walker L.L.P. for each of the Borrower and the
Guarantor (the “Opinion”).


 


In our examination of the
documents referred to above, we have assumed the authenticity of all such
documents submitted to us as originals, the genuineness of all signatures and
the conformity to the originals of all such documents submitted to us as
copies.  We have also assumed that each
of the Borrower, the Guarantor, the Banks, and the Administrative Agent has
duly executed and delivered, with all necessary power and authority (corporate
and otherwise), the Term Loan Agreement. 
We have also assumed that no Bank has requested that the Opinion
required by Section 3.01(a)(iv) of the Term Loan Agreement
contain any other matters not contained in the form of opinion set forth as Exhibit D
to the Term Loan Agreement.


 


Based upon the foregoing
examination of documents and assumptions and upon such other investigation as
we have deemed necessary, we are of the opinion that the Opinion is
substantially responsive to the requirements of the Term Loan Agreement.


 


This opinion is solely
for the benefit of the Banks, the Administrative Agent, their respective
successors, assigns, participants and other transferees and may be relied upon
only by such Persons.


 


Very truly yours.


HUGHES & LUCE
L.L.P.


 


E-1

















 


EXHIBIT F


 


FORM OF U.S. TAX
COMPLIANCE CERTIFICATE


 


This certificate is delivered pursuant to Section 2.17(e) of
the Term Loan Agreement, dated as
of October 24, 2007 (the “Term
Loan Agreement”) among BRINKER
INTERNATIONAL, INC. (the “Borrower”),
the several banks and other financial institutions from time to time parties
thereto and CITIBANK, N.A., as Administrative Agent (the “Administrative
Agent”).  Unless otherwise defined
herein, terms defined in the Term Loan Agreement shall have the same respective meanings when set forth therein.


 


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


 


1.             the undersigned is the sole record and
beneficial owner of the Loans or
the transactions evidenced by the Note registered in its name in respect of
which it is providing this certificate;


 


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


 


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


 


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


 


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


 


4.             the income from the Note held by the undersigned
is not effectively connected with the conduct of a trade or business with the
United States; and


 


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


 


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


 


 


F-1

















 


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


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
  [NAME
  OF BANK]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
     Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
     Title:

  



 


F-2

















 


SCHEDULE
I


 


BANK AND
ADMINISTRATIVE AGENT ADDRESSES


 


ADMINISTRATIVE AGENT:


 


CITIBANK, N.A.


Two Penns Way, Suite 200


New Castle, Delaware  19720


Attn:    Rose Delp


 


Telephone:            (302) 894 - 6004


Telecopy:              (212) 994 - 0961


 


SCHEDULE I-1

















 


BANKS:


 


CITIBANK, N.A.


Two Penns Way, Suite 200


New Castle, Delaware  19720


Attn:       Rose Delp


 


Telephone:            (302) 894 - 6004


Telecopy:              (212) 994 - 0961


 


JPMORGAN CHASE BANK, N.A.


1111 Fannin, Floor 10


Houston, TX  77002-6925


Attn:  Ms. Marlies Iida


Mail Code:  TX2-F046


 


Telephone:            (713) 750 - 2353


Telecopy:              (713) 750 - 2892


 


BANK OF AMERICA, N.A.


100 Federal St.


MA5-100-09-06


Boston, MA 02110


Attn:  Mr. John H. Schmidt


 


Telephone:            (617) 434-4044


Telepcopy:            (617) 434-0637


 


THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD.


2001 Ross Ave., #3150


Dallas, TX  75201


Attn:  Mr. Doug Barnell


 


Telephone:            (214) 954-1240


Telepcopy:            (214) 954-1007


 


WACHOVIA BANK, NATIONAL
ASSOCIATION

One South Broad Street

MC: PA4843

Philadelphia, PA  19107

Attn:  Mr. Mark S. Supple


 


Telephone:            (267) 321-6634


Telepcopy:            (267) 321-6700


 


SCHEDULE I-2

















 


NATIONAL
CITY BANK


155
East Broad Street


Columbus,
OH 43215-0077


Attn:  Jennifer Obers


 


Telephone:            (614) 463-7108


Telepcopy:            (614) 463-8572


 


BANK OF CHINA, LOS
ANGELES BRANCH


444 S. Flower Street,
#3900


Los Angeles, CA 90071


Attn:  Mr. Jason Fu


 


Telephone:            (213) 688-8700 x235


Telepcopy:            (213) 688-1015


 


FIFTH THIRD BANK


38 Fountain Sq. Plaza


Cincinnati, OH 45202


Attn:  Mr. Mike Mendenhall


 


Telephone:            (513) 534-6915


Telepcopy:            (513) 534-5947


 


SUNTRUST BANK

303 Peachtree St., 3rd Fl.

Atlanta, GA  30308

Attn:  Mr. Jean-Paul Purdy


 


Telephone:            (404) 581-1518


Telepcopy:            (404) 588-7189


 


US BANK, N.A.

425 Walnut Street, 8th Fl.

Cincinnati, OH  45202

Attn:  Ms. Veronica Morrissette


 


Telephone:            (404) 226-2222


Telepcopy:            (513) 632-4894


 


WELLS FARGO BANK, N.A.


201 Third St. - 8th
Floor


San Francisco, CA 94104


Attn:  Rosanna Roxas


 


Telephone:            (415) 477-5424


Telepcopy:            (415) 979-0675


 


SCHEDULE I-3

















 


THE
NORINCHUKIN BANK, NEW YORK BRANCH

245 Park Ave., 21st Fl.

New York, NY  10167

Attn:  Yuichiro Hara


 


Telephone:            (212) 808-4195


Telepcopy:            (212) 697-5754


 


FIRST COMMERCIAL BANK,
LOS ANGELES BRANCH


515 South Flower Street, Suite 1050


Los Angeles, CA 90071


Attn:  Josephine Chong


 


Telephone:            (213) 405-1133


Telepcopy:            (213) 362-0219


 


GREENSTONE FARM CREDIT
BANK, ACA/FLCA


1760 Abbey Rd., Ste. 310


East Lansing, MI 48823


Attn:  Jeff Pavlik


 


Telephone:            (517) 318-4130


Telepcopy:            (517) 318-4148


 


SCHEDULE I-4

















 


SCHEDULE II


 


PRO RATA SHARES


 


	
  Bank

  	
   

  	
  Pro Rata Share

  	
   

  	
  Pro Rata Share

  of Facility Amount

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  12.5000

  	
  %

  	
  $

  	
  50,000,000

  	
   

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  12.5000

  	
  %

  	
  $

  	
  50,000,000

  	
   

  
	
  Bank of America,
  N.A.

  	
   

  	
  11.2500

  	
  %

  	
  $

  	
  45,000,000

  	
   

  
	
  The Bank of
  Tokyo-Mitsubishi UFJ, Ltd.

  	
   

  	
  10.0000

  	
  %

  	
  $

  	
  40,000,000

  	
   

  
	
  Wachovia Bank,
  National Association

  	
   

  	
  10.0000

  	
  %

  	
  $

  	
  40,000,000

  	
   

  
	
  National City
  Bank

  	
   

  	
  7.5000

  	
  %

  	
  $

  	
  30,000,000

  	
   

  
	
  Bank of China,
  Los Angeles Branch

  	
   

  	
  6.2500

  	
  %

  	
  $

  	
  25,000,000

  	
   

  
	
  Fifth Third Bank

  	
   

  	
  6.2500

  	
  %

  	
  $

  	
  25,000,000

  	
   

  
	
  SunTrust Bank

  	
   

  	
  6.2500

  	
  %

  	
  $

  	
  25,000,000

  	
   

  
	
  US Bank, N.A.

  	
   

  	
  5.0000

  	
  %

  	
  $

  	
  20,000,000

  	
   

  
	
  Wells Fargo
  Bank, N.A.

  	
   

  	
  5.0000

  	
  %

  	
  $

  	
  20,000,000

  	
   

  
	
  The Norinchukin
  Bank, New York Branch

  	
   

  	
  2.5000

  	
  %

  	
  $

  	
  10,000,000

  	
   

  
	
  First Commercial
  Bank, Los Angeles Branch

  	
   

  	
  2.5000

  	
  %

  	
  $

  	
  10,000,000

  	
   

  
	
  GreenStone Farm
  Credit Services, ACA/FLCA

  	
   

  	
  2.5000

  	
  %

  	
  $

  	
  10,000,000

  	
   

  
	
  TOTAL

  	
   

  	
  100.0000

  	
  %

  	
  $

  	
  400,000,000

  	
   

  



 


SCHEDULE II-1

















 


SCHEDULE
III


 


BORROWER
AND GUARANTOR ADDRESSES


 


BORROWER:


 


BRINKER INTERNATIONAL,
INC.


6820 LBJ Freeway


Dallas, Texas  75240


 


Attn:       General Counsel


Telephone:            (972) 980 - 9917


Telecopy:              (972) 770 - 9465


 


Copy to:  Vice President and Treasurer


Telephone:            (972) 770 - 1276


Telecopy:              (972) 770 - 8863


 


GUARANTOR:


 


BRINKER RESTAURANT
CORPORATION


6820 LBJ Freeway


Dallas, Texas  75240


 


Attn:       General Counsel


Telephone:            (972) 980 - 9917


Telecopy:              (972) 770 - 9465


 


Copy to:  Vice President and Treasurer


Telephone:            (972) 770 - 1276


Telecopy:              (972) 770 - 8863


 


SCHEDULE III-1

















 


SCHEDULE
IV


 


PERMITTED
LIENS


 


	
  Subsidiary

  	
   

  	
  Amount

  	
   

  	
  Description

  	
   

  	
  Maturity

  
	
  Brinker Restaurant
  Corporation

  	
   

  	
  $

  	
  48,268,000

  	
   

  	
  Capital Lease
  Obligations

  	
   

  	
  Various dates through
  March 2020

  
								



 


SCHEDULE IV-1

















 


SCHEDULE
V


 


AGREEMENTS
RESTRICTING DIVIDENDS AND CERTAIN TRANSFERS


 


1.   $300 Million Revolving Loan Agreement dated October 6,
2004.


 


SCHEDULE V-1

















 


SCHEDULE
VI


 


GAAP EXCEPTIONS


 


None.


 


SCHEDULE VI-1

















 


SCHEDULE
VII


 


INVESTMENTS


 


	
  Company

  	
   

  	
  Amount

  	
   

  	
  Description

  	
   

  
	
  Strang
  Corporation

  	
   

  	
  $

  	
  1,164,114

  	
   

  	
  Loan associated with sale of restaurants

  	
   

  
							



 


SCHEDULE VII-1

















 


SCHEDULE
VIII


 


PERMITTED
DEBT


 


	
  Description

  	
   

  	
  Amount

  	
   

  
	
  5.75% Notes

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  Committed Credit
  Facilities

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  Committed Credit
  Facilities

  	
   

  	
  £

  	
  5,000,000

  	
   

  
	
  Uncommitted
  Credit Facilities

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  Capital Lease
  Obligations

  	
   

  	
  $

  	
  48,268,000