exv4w1



      


Exhibit 4.1




EXECUTION VERSION




 





$85,000,000




CREDIT AGREEMENT



among



BRAVO BRIO RESTAURANT GROUP, INC.

as Borrower,



THE DOMESTIC SUBSIDIARIES OF THE BORROWER

FROM TIME TO TIME PARTIES HERETO,

as Guarantors,



THE LENDERS PARTIES HERETO,



and



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,



Dated as of October 26, 2010



BANK OF AMERICA, N.A.

as Syndication Agent



KEYBANK NATIONAL ASSOCIATION

and

REGIONS FINANCIAL CORPORATION,

as Co-Documentation Agents



WELLS FARGO SECURITIES, LLC,

and

BANC OF AMERICA SECURITIES LLC

(which is scheduled to be merged with and into Merrill Lynch, Pierce,

Fenner & Smith Incorporated on or about November 1, 2010),

as Co-Lead Arrangers and Joint Book Managers



 















 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Defined Terms
	 	 	1	 
	Section 1.2 Other Definitional Provisions
	 	 	32	 
	Section 1.3 Accounting Terms
	 	 	32	 
	Section 1.4 Time References
	 	 	33	 
	Section 1.5 Execution of Documents
	 	 	33	 
	 
	 	 	 	 
	ARTICLE II THE LOANS; AMOUNT AND TERMS
	 	 	34	 
	Section 2.1 Revolving Loans
	 	 	34	 
	Section 2.2 Term Loan
	 	 	35	 
	Section 2.3 Letter of Credit Subfacility
	 	 	37	 
	Section 2.4 Swingline Loan Subfacility
	 	 	40	 
	Section 2.5 Fees
	 	 	42	 
	Section 2.6 Commitment Reductions
	 	 	43	 
	Section 2.7 Prepayments
	 	 	44	 
	Section 2.8 Default Rate and Payment Dates
	 	 	46	 
	Section 2.9 Conversion Options
	 	 	47	 
	Section 2.10 Computation of Interest and Fees
	 	 	47	 
	Section 2.11 Pro Rata Treatment and Payments
	 	 	48	 
	Section 2.12 Non-Receipt of Funds by the Administrative Agent
	 	 	50	 
	Section 2.13 Inability to Determine Interest Rate
	 	 	51	 
	Section 2.14 Illegality
	 	 	52	 
	Section 2.15 Requirements of Law
	 	 	52	 
	Section 2.16 Indemnity
	 	 	53	 
	Section 2.17 Taxes
	 	 	54	 
	Section 2.18 Indemnification; Nature of Issuing Lender’s Duties
	 	 	56	 
	Section 2.19 Cash Collateral
	 	 	57	 
	Section 2.20 Defaulting Lenders
	 	 	58	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	60	 
	Section 3.1 Financial Condition; Projections
	 	 	60	 
	Section 3.2 No Change
	 	 	61	 
	Section 3.3 Corporate Existence
	 	 	61	 
	Section 3.4 Corporate Power; Authorization; Enforceable Obligations
	 	 	62	 
	Section 3.5 Compliance with Laws; No Conflict; No Default
	 	 	62	 
	Section 3.6 No Material Litigation
	 	 	63	 
	Section 3.7 Investment Company Act; Etc.
	 	 	63	 
	Section 3.8 Margin Regulations
	 	 	63	 
	Section 3.9 ERISA
	 	 	63	 
	Section 3.10 Environmental Matters
	 	 	64	 
	Section 3.11 Subsidiaries
	 	 	65	 
	Section 3.12 Ownership of Property and Assets
	 	 	65	 
	Section 3.13 Taxes
	 	 	65	 
	Section 3.14 Intellectual Property Rights
	 	 	65	 
	Section 3.15 Solvency
	 	 	66	 
	Section 3.16 Collateral Representations
	 	 	66	 
	Section 3.17 No Burdensome Restrictions
	 	 	67	 
	Section 3.18 Labor Matters
	 	 	67	 
	Section 3.19 Accuracy and Completeness of Information
	 	 	67	 






i









 






	 	 	 	 	 
	 	 	Page	 
	 	 	 
	Section 3.20 Material Contracts
	 	 	68	 
	Section 3.21 Insurance
	 	 	68	 
	Section 3.22 Security Documents
	 	 	68	 
	Section 3.23 Regulation H
	 	 	68	 
	Section 3.24 Classification of Senior Indebtedness
	 	 	68	 
	Section 3.25 Foreign Assets Control Regulations, FCPA, Etc.
	 	 	68	 
	Section 3.26 Compliance with OFAC Rules and Regulations
	 	 	69	 
	Section 3.27 Certain Transactions
	 	 	69	 
	Section 3.28 Use of Proceeds
	 	 	69	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT
	 	 	70	 
	Section 4.1 Conditions to Closing Date
	 	 	70	 
	Section 4.2 Conditions to All Extensions of Credit
	 	 	73	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	74	 
	Section 5.1 Financial Statements
	 	 	75	 
	Section 5.2 Certificates; Other Information
	 	 	76	 
	Section 5.3 Payment of Taxes and Other Obligations
	 	 	77	 
	Section 5.4 Conduct of Business and Maintenance of Existence
	 	 	77	 
	Section 5.5 Maintenance of Property; Insurance
	 	 	78	 
	Section 5.6 Inspection of Property; Books and Records; Discussions
	 	 	78	 
	Section 5.7 Notices
	 	 	79	 
	Section 5.8 Environmental Laws
	 	 	80	 
	Section 5.9 Financial Covenants
	 	 	80	 
	Section 5.10 Additional Guarantors
	 	 	81	 
	Section 5.11 Compliance with Law
	 	 	81	 
	Section 5.12 Pledged Assets
	 	 	81	 
	Section 5.13 [Reserved]
	 	 	82	 
	Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights
	 	 	82	 
	Section 5.15 Use of Proceeds
	 	 	83	 
	Section 5.16 Further Assurances
	 	 	83	 
	Section 5.17 Further Assurances Regarding Real Property
	 	 	83	 
	Section 5.18 Exercise of Rights
	 	 	84	 
	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	84	 
	Section 6.1 Indebtedness
	 	 	85	 
	Section 6.2 Liens
	 	 	85	 
	Section 6.3 Nature of Business
	 	 	85	 
	Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
	 	 	86	 
	Section 6.5 Advances, Investments and Loans
	 	 	87	 
	Section 6.6 Transactions with Affiliates
	 	 	87	 
	Section 6.7 Ownership of Subsidiaries; Restrictions
	 	 	87	 
	Section 6.8 Fiscal Year; Organizational Documents; Material Contracts; Etc.
	 	 	87	 
	Section 6.9 Limitation on Restricted Actions
	 	 	87	 
	Section 6.10 Restricted Payments; Prepayments of Other Indebtedness
	 	 	88	 
	Section 6.11 Amendment of Debt Documents
	 	 	89	 
	Section 6.12 Sale-Leaseback Transactions
	 	 	89	 
	Section 6.13 No Further Negative Pledges
	 	 	90	 
	Section 6.14 Management Fees
	 	 	90	 
	Section 6.15 Use of Proceeds
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	90	 
	Section 7.1 Events of Default
	 	 	90	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	 	 	 
	Section 7.2 Acceleration; Remedies
	 	 	93	 
	 
	 	 	 	 
	ARTICLE VIII THE ADMINISTRATIVE AGENT
	 	 	93	 
	Section 8.1 Appointment and Authority
	 	 	93	 
	Section 8.2 Nature of Duties
	 	 	93	 
	Section 8.3 Exculpatory Provisions
	 	 	94	 
	Section 8.4 Reliance by Administrative Agent
	 	 	94	 
	Section 8.5 Notice of Default
	 	 	95	 
	Section 8.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	95	 
	Section 8.7 Indemnification
	 	 	95	 
	Section 8.8 The Administrative Agent in Its Individual Capacity
	 	 	96	 
	Section 8.9 Successor Administrative Agent
	 	 	96	 
	Section 8.10 Other Agents
	 	 	97	 
	Section 8.11 [Reserved]
	 	 	97	 
	Section 8.12 Collateral and Guaranty Matters
	 	 	97	 
	Section 8.13 Secured Hedging Agreements/Bank Products
	 	 	98	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	98	 
	Section 9.1 Amendments, Waivers and Release of Collateral
	 	 	98	 
	Section 9.2 Notices
	 	 	102	 
	Section 9.3 No Waiver; Cumulative Remedies
	 	 	104	 
	Section 9.4 Survival of Representations and Warranties
	 	 	104	 
	Section 9.5 Payment of Expenses and Taxes
	 	 	104	 
	Section 9.6 Successors and Assigns; Participations
	 	 	106	 
	Section 9.7 Right of Set-off; Sharing of Payments
	 	 	109	 
	Section 9.8 Table of Contents and Section Headings
	 	 	110	 
	Section 9.9 Counterparts; Effectiveness; Electronic Execution
	 	 	111	 
	Section 9.10 Integration; Continuing Agreement
	 	 	111	 
	Section 9.11 Severability
	 	 	111	 
	Section 9.12 Governing Law
	 	 	112	 
	Section 9.13 Consent to Jurisdiction; Service of Process; Venue
	 	 	112	 
	Section 9.14 [Reserved]
	 	 	112	 
	Section 9.15 Confidentiality
	 	 	112	 
	Section 9.16 Acknowledgments
	 	 	113	 
	Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages
	 	 	114	 
	Section 9.18 Patriot Act Notice
	 	 	114	 
	Section 9.19 Subordination of Intercompany Debt
	 	 	114	 
	Section 9.20 Replacement of Lenders
	 	 	114	 
	Section 9.21 Resolution of Drafting Ambiguities
	 	 	115	 
	Section 9.22 Press Releases and Related Matters
	 	 	115	 
	Section 9.23 Appointment of Borrower
	 	 	115	 
	Section 9.24 No Advisory or Fiduciary Responsibility
	 	 	116	 
	Section 9.25 Responsible Officers and Authorized Officers
	 	 	116	 
	 
	 	 	 	 
	ARTICLE X GUARANTY
	 	 	117	 
	Section 10.1 The Guaranty
	 	 	117	 
	Section 10.2 Bankruptcy
	 	 	117	 
	Section 10.3 Nature of Liability
	 	 	118	 
	Section 10.4 Independent Obligation
	 	 	118	 
	Section 10.5 Authorization
	 	 	118	 
	Section 10.6 Reliance
	 	 	118	 
	Section 10.7 Waiver
	 	 	119	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	 	 	 
	Section 10.8 Limitation on Enforcement
	 	 	120	 
	Section 10.9 Confirmation of Payment
	 	 	120	 






iv









 






	 	 	 

	Schedules
	 	 
	 
	 	 
	Schedule 1.1(a)

	 	Commitments and Pro Rata Shares
	Schedule 1.1(b)

	 	Existing Investments
	Schedule 1.1(c)

	 	Existing Liens
	Schedule 1.1(d)

	 	Existing Letters of Credit
	Schedule 1.1(e)

	 	Authorized Officers
	Schedule 3.11(a)

	 	Subsidiaries
	Schedule 3.14

	 	Intellectual Property
	Schedule 3.16(a)

	 	Owned Real Property
	Schedule 3.16(b)

	 	Leased Real Property
	Schedule 3.16(c)

	 	Location of Collateral
	Schedule 3.16(d)

	 	States of Incorporation, Chief Executive Offices, etc.
	Schedule 3.16(e)

	 	Deposit and Securities Accounts
	Schedule 3.16(f)

	 	Certain Investments/Investment Property
	Schedule 3.16(g)

	 	Documents, Instruments, Chattel Paper and Letter of Credit Rights
	Schedule 3.16(h)

	 	Commercial Tort Claims
	Schedule 3.18

	 	Labor Matters
	Schedule 3.20

	 	Material Contracts
	Schedule 3.21

	 	Insurance
	Schedule 3.27

	 	Certain Transactions
	Schedule 6.1(b)

	 	Existing Indebtedness
	Schedule 6.12

	 	Existing Sale-Leaseback Transactions
	 
	 	 
	Exhibits
	 	 
	 
	 	 
	Exhibit 1.1(a)

	 	Form of Account Designation Notice
	Exhibit 1.1(b)

	 	Form of Assignment and Assumption
	Exhibit 1.1(c)

	 	Form of Joinder Agreement
	Exhibit 1.1(d)

	 	Form of Notice of Borrowing
	Exhibit 1.1(e)

	 	Form of Notice of Conversion/Extension
	Exhibit 1.1(f)

	 	Form of Secured Party Designation Notice
	Exhibit 2.1(a)

	 	Form of Funding Indemnity Letter
	Exhibit 2.1(e)

	 	Form of Revolving Loan Note
	Exhibit 2.2(d)

	 	Form of Term Loan Note
	Exhibit 2.4(d)

	 	Form of Swingline Loan Note
	Exhibit 2.17

	 	Form of Tax Exempt Certificate
	Exhibit 4.1(b)

	 	Form of Secretary’s Certificate
	Exhibit 4.1(h)

	 	Form of Solvency Certificate
	Exhibit 5.2(b)

	 	Form of Officer’s Compliance Certificate
	Exhibit 5.17(b)

	 	Form of Landlord Waiver







v











 





     CREDIT AGREEMENT, dated as of October 26, 2010, among BRAVO BRIO RESTAURANT GROUP, INC.,
an Ohio corporation (the “Borrower”), each of those Domestic Subsidiaries of the Borrower
identified as a “Guarantor” on the signature pages hereto and such other Domestic Subsidiaries of
the Borrower as may from time to time become a party hereto (collectively the “Guarantors”
and individually a “Guarantor”), the several banks and other financial institutions from
time to time parties to this Credit Agreement (collectively the “Lenders” and individually
a “Lender”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
administrative agent for the Lenders hereunder (in such capacity, the “Administrative
Agent” or the “Agent”).



W I T N E S S E T H:




     WHEREAS, the Credit Parties (as hereinafter defined) have requested that the Lenders make
loans and other financial accommodations to the Borrower in the amount of up to $85,000,000, as
more particularly described herein;



     WHEREAS, the Lenders have agreed to make such loans and other financial accommodations to the
Borrower on the terms and conditions contained herein;



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:



ARTICLE I




DEFINITIONS



     Section 1.1 Defined Terms.



     As used in this Credit Agreement, terms defined in the preamble to this Credit Agreement have
the meanings therein indicated, and the following terms have the following meanings:



     “Account Designation Notice” shall mean the Account Designation Notice dated the
Closing Date from the Borrower to the Administrative Agent in substantially the form attached
hereto as Exhibit 1.1(a).



     “Additional Credit Party” shall mean each Person that becomes a Guarantor by execution
of a Joinder Agreement in accordance with Section 5.10.



     “Administrative Agent” or “Agent” shall have the meaning set forth in the
first paragraph of this Credit Agreement and shall include any successors in such capacity.



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.



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



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



 









 





     “Aggregate Revolving Exposure” means, at any time, the aggregate Revolving Exposure of
all Revolving Lenders at such time.



     “Agreement” or “Credit Agreement” shall mean this Credit Agreement, as
amended, modified, extended, restated, amended and restated, replaced or supplemented from time to
time in accordance with its terms.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the sum of (i) LIBOR for an Interest Period of one (1) month
commencing on such day plus (ii) 1.00%, in each instance as of such date of determination.
If for any reason (A) the Administrative Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the Federal Funds
Effective Rate, for any reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this definition, as appropriate,
or (B) LIBOR is not available on such day, then “LIBOR” shall mean the rate per annum at which, as
determined by the Administrative Agent in accordance with its customary practices, deposits in
Dollars for delivery on the date of determination in immediately available funds in an amount
comparable to the Loans then requested and with a term equal to one month are being offered to
leading banks at approximately 11:00 A.M. London time two (2) Business Days prior to such date,
until the circumstances giving rise to such inability or unavailability no longer exist. Any
change in the Alternate Base Rate due to a change in any of the foregoing will become effective on
the effective date of such change in the Federal Funds Rate, the Prime Rate or LIBOR for an
Interest Period of one (1) month. Notwithstanding anything contained herein to the contrary, to
the extent that the provisions of Section 2.13 shall be in effect in determining LIBOR pursuant to
clause (c) hereof, the Alternate Base Rate shall be the greater of (i) the Prime Rate in effect on
such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.



     “Alternate Base Rate Loans” shall mean Loans that bear interest at an interest rate
based on the Alternate Base Rate.



     “Anti-Terrorism Order” shall mean that certain Executive Order 13224 signed into law
on September 23, 2001.



     “Applicable Percentage” shall mean, for any day, the rate per annum set forth below
opposite the applicable Level then in effect (based on the Consolidated Total Leverage Ratio), it
being understood that the Applicable Percentage for (a) Loans that are Alternate Base Rate Loans
shall be the percentage set forth under the column “Base Rate Margin,” (b) Loans that are LIBOR
Rate Loans shall be the percentage set forth under the column “LIBOR Margin & L/C Fee”, (c) the
Letter of Credit Fee shall be the percentage set forth under the column “LIBOR Margin & L/C Fee”
and (d) the Commitment Fee shall be the percentage set forth under the column “Commitment Fee.”



2









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Percentage	 
	 	 	Consolidated Total	 	 	LIBOR Margin	 	 	 	 	 	 	 
	Level	 	Leverage Ratio	 	 	& L/C Fee	 	 	Base Rate Margin	 	 	Commitment Fee	 
	I
	 	≥ 1.50 to 1.0	 	 	3.25%	 	 	 	2.25%	 	 	 	0.750%	 
	 
	 	< 1.50 to 1.0	 	 	 	 	 	 	 	 	 	 	 	 
	II
	 	but	 	 	3.00%	 	 	 	2.00%	 	 	 	0.625%	 
	 
	 	≥ 1.0 to 1.0	 	 	 	 	 	 	 	 	 	 	 	 
	III
	 	< 1.0 to 1.0	 	 	2.75%	 	 	 	1.75%	 	 	 	0.500%	 






     The Applicable Percentage shall, in each case, be determined and adjusted quarterly on the
date five (5) Business Days after the date on which the Administrative Agent has received from the
Borrower the quarterly financial information (in the case of the first three fiscal quarters of the
Borrower’s fiscal year), the annual financial information (in the case of the fourth fiscal quarter
of the Borrower’s fiscal year) and the certifications required to be delivered to the
Administrative Agent and the Lenders in accordance with the provisions of Sections 5.1(a), 5.1(b)
and 5.2(b) (each an “Interest Determination Date”). Such Applicable Percentage shall be
effective from such Interest Determination Date until the next such Interest Determination Date.
After the Closing Date, if the Credit Parties shall fail to provide the financial information or
certifications in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the
Applicable Percentage shall, on the date five (5) Business Days after the date by which the Credit
Parties were so required to provide such financial information or certifications to the
Administrative Agent and the Lenders, be based on Level I until such time as such information or
certifications (or corrected information or certificates) are provided, whereupon the Level shall
be determined by the then current Consolidated Total Leverage Ratio. Notwithstanding the
foregoing, the initial Applicable Percentage shall be as set forth above opposite Level II until
the financial information and certificates required to be delivered pursuant to Sections 5.1 and
5.2 for the fiscal quarter ending December 26, 2010 have been delivered to the Administrative Agent
for distribution to the Lenders. In the event that any financial statement or certification
delivered pursuant to Sections 5.1 or 5.2 is shown to be inaccurate (regardless of whether this
Agreement or the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher Applicable Percentage for
any period (an “Applicable Period”) than the Applicable Percentage applied for such
Applicable Period, the Borrower shall promptly (a) deliver to the Administrative Agent a corrected
compliance certificate for such Applicable Period, (b) determine the Applicable Percentage for such
Applicable Period based upon the corrected compliance certificate, and (c) pay to the
Administrative Agent for the benefit of the Lenders the accrued additional interest and other fees
owing as a result of such increased Applicable Percentage for such Applicable Period, which payment
shall be promptly distributed by the Administrative Agent to the Lenders entitled thereto. It is
acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative
Agent and the Lenders under the Credit Documents, including their rights under Sections 2.8 and
7.1.



     “Applicable Yield” means, on any date on which any “Applicable Yield” is required to
be calculated hereunder:




     (a) with respect to the Term Loan or the Revolving Commitments, the internal rate of
return thereon determined by the Administrative Agent in consultation with the Borrower
utilizing (i) the greater of (A) if applicable, any “LIBOR floor” applicable thereto on such
date and (B) the forward LIBOR curve (calculated on a quarterly basis) as calculated by the
Administrative Agent in accordance with its customary practice during the period from such
date



3









 







to the earlier of (x) the date that is four years following such date and (y) the
Maturity Date; (ii) the Applicable Rate then in effect for a LIBOR Rate Loan on such date
(other than any component thereof in the form of a “LIBOR floor” which shall be determined
pursuant to clause (i) above); and (iii) the issue price therefor (after giving effect to
any original issue discount and/or upfront fees paid to the market in respect calculated
based on an assumed four year average life to maturity); and




     (b) with respect to any Incremental Facility, the internal rate of return on such
Incremental Facility determined by the Administrative Agent in consultation with the
Borrower utilizing (i) the greater of (A) if applicable, any “LIBOR floor” applicable to
such Incremental Facility on such date and (B) the forward LIBOR curve (calculated on a
quarterly basis) as calculated by the Administrative Agent in accordance with its customary
practice during the period from such date to the earlier of (x) the date that is four years
following such date and (y) the maturity date of such Incremental Facility; (ii) the
applicable margin above the Eurodollar Rate with respect to such Incremental Facility (other
than any component thereof in the form of a “LIBOR floor” which shall be determined pursuant
to clause (i) above); and (iii) the issue price of such Incremental Facility (after giving
effect to any original issue discount and/or upfront fees paid to the market in respect of
such Incremental Facility calculated based on an assumed four year average life to
maturity).



     “Approved Bank” shall have the meaning set forth in the definition of “Cash
Equivalents.”



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



     “Arrangers” shall mean Wells Fargo Securities, LLC and Banc of America Securities,
LLC, in their capacities as joint lead arrangers and joint lead book runners.



     “Asset Disposition” shall mean the disposition of any or all of the assets (including,
without limitation, the Equity Interests of a Subsidiary or any ownership interest in a joint
venture) of any Credit Party or any Subsidiary whether by sale, lease, transfer or otherwise, in a
single transaction or in a series of transactions. The term “Asset Disposition” shall not include
(a) the sale, lease, transfer or other disposition of assets permitted by Subsections 6.4(a)(i)
through (vi), or (b) any Equity Issuance.



     “Assignment and Assumption” shall mean an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section
9.6), and accepted by the Administrative Agent, in substantially the form of Exhibit 1.1(b)
or any other form approved by the Administrative Agent.



     “Authorized Officers” shall mean the Responsible Officers set forth on Schedule
1.1(e).



     “Bank of America” shall mean Bank of America, N.A., a national banking association,
together with its successors and/or assigns.



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



     “Bankruptcy Event” shall mean any of the events described in Section 7.1(f).



4









 





     “BAS” shall mean Banc of America Securities, LLC (which is scheduled to be merged with
and into Merrill Lynch, Pierce, Fenner & Smith Incorporated on or about November 1, 2010), together
with its successors and assigns.



     “Borrower” shall have the meaning set forth in the first paragraph of this Credit
Agreement.



     “Borrowing Date” shall mean, in respect of any Loan, the date such Loan is made.



     “Business” shall have the meaning set forth in Section 3.10.



     “Business Day” shall mean a day other than a Saturday, Sunday or other day on which
commercial banks in San Francisco, California, Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in
connection with a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the
term “Business Day” shall also exclude any day on which banks in London, England are not open for
dealings in Dollar deposits in the London interbank market.



     “Calculation Date” means the date of the applicable Specified Transaction which gives
rise to the requirement to calculate the financial covenants set forth in Section 5.9(a) and (b) on
a Pro Forma Basis.



     “Calculation Period” means, in respect of any Calculation Date, the period of four
fiscal quarters of the Borrower and its Subsidiaries ended as of the last day of the most recent
fiscal quarter of the Borrower and its Subsidiaries preceding such Calculation Date for which the
Administrative Agent shall have received (a) the financial statements required to be delivered
pursuant to Section 5.1(a) or (b) for such fiscal period or quarter, and (b) the certificate of a
Responsible Officer of the Borrower required by Section 5.2(b) to be delivered with the financial
statements described in clause (a) above.



     “Capital Lease” shall mean any lease of property, real or personal, the obligations
with respect to which are required to be capitalized on a balance sheet of the lessee in accordance
with GAAP; provided that no lease shall be deemed to be a Capital Lease solely as a result
of the “continued involvement” of Borrower as such term is used in SFAS 98.



     “Capital Lease Obligations” shall mean the capitalized lease obligations relating to a
Capital Lease determined in accordance with GAAP.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, the Issuing Lender or Swingline Lender (as
applicable) and the Lenders, as collateral for LOC Obligations, obligations in respect of Swingline
Loans, or obligations of Lenders to fund participations in respect of either thereof (as the
context may require), cash or deposit account balances or, if the Issuing Lender or Swingline
Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in
each case pursuant to documentation in form and substance satisfactory to (a) the Administrative
Agent and (b) the Issuing Lender or the Swingline Lender, as applicable. “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.



     “Cash Equivalents” shall mean (a) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of acquisition (“Government
Obligations”), (b) Dollar denominated (or foreign currency fully hedged to the Dollar) time
deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of deposit
of (i) any domestic commercial bank of recognized standing having



5









 




capital and surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial
paper rating at the time of the acquisition thereof is at least A-1 or the equivalent thereof from
S&P or is at least P-1 or the equivalent thereof from Moody’s (any such bank being an “Approved
Bank”), in each case with maturities of not more than 364 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody’s and maturing within six months of the date of acquisition, (d) repurchase agreements
with at term of not more than (30) days with a bank or trust company (including a Lender) or a
recognized securities dealer having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of America, (e) obligations of any
state of the United States or any political subdivision thereof for the payment of the principal
and redemption price of and interest on which there shall have been irrevocably deposited
Government Obligations maturing as to principal and interest at times and in amounts sufficient to
provide such payment, (f) money market accounts subject to Rule 2a-7 of the Investment Company Act
of 1940 (“Rule 2a-7”) which consist primarily of cash and cash equivalents set forth in
clauses (a) through (e) above and of which 95% shall at all times be comprised of First Tier
Securities (as defined in Rule 2a-7) and any remaining amount shall at all times be comprised of
Second Tier Securities (as defined in Rule 2a-7) and (g) shares of any so-called “money market
fund”; provided that such fund is registered under the Investment Company Act of 1940, has
net assets of at least $500,000,000 and has an investment portfolio with an average maturity of 365
days or less.




     “Cash Management Agreement Provider” shall mean (a) any Person that enters into a
Secured Cash Management Agreement with a Credit Party or any of its Subsidiaries to the extent such
Person is a Lender, an Affiliate of a Lender or (b) any other Person that was a Lender (or an
Affiliate of a Lender) at the time it entered into the Secured Cash Management Agreement but has
ceased to be a Lender (or whose Affiliate has ceased to be a Lender) under the Credit Agreement.



     “Cash Management Agreements” shall mean, with respect to any Person, any agreement to
provide cash management services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer or other cash management arrangements.



     “Change in Law” shall mean the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided, however, for the purposes of this Agreement, the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, guidelines or directives in connection
therewith are deemed to have gone into effect and adopted after the date of this Agreement.



     “Change of Control” any “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding the Sponsors) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire (such right, an “option right”), whether such
right is exercisable immediately or only after the passage of time), directly or indirectly, of 35%
of the Voting Stock of the Borrower on a fully diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right).



     “Closing Date” shall mean the date of this Credit Agreement.



6









 





     “Co-Lead Arrangers” shall mean, collectively, WFS and BAS, in each case, together with
its successors and assigns.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” shall mean a collective reference to the collateral which is identified
in, and at any time will be covered by, the Security Documents and any other property or assets of
a Credit Party, whether tangible or intangible and whether real or personal, that may from time to
time secure the Credit Party Obligations; provided that there shall be excluded from the
Collateral (a) any account, instrument, chattel paper or other obligation or property of any kind
due from, owed by, or belonging to, a Sanctioned Person or Sanctioned Entity or (b) any lease in
which the lessee is a Sanctioned Person or Sanctioned Entity.



     “Commitments” shall mean the Revolving Commitments, the LOC Commitment, the Term Loan
Commitments and the Swingline Commitment, individually or collectively, as appropriate.



     “Commitment Fee” shall have the meaning set forth in Section 2.5(a).



     “Commitment Period” shall mean (a) with respect to Revolving Loans and Swingline
Loans, the period from and including the Closing Date to but excluding the Maturity Date and (b)
with respect to Letters of Credit, the period from and including the Closing Date to but excluding
the date that is thirty (30) days prior to the Maturity Date.



     “Committed Funded Exposure” means, as to any Lender at any time, the aggregate
principal amount at such time of its outstanding Loans, LOC Obligations and Swingline Exposure.



     “Commonly Controlled Entity” shall mean an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001(b)(1) of ERISA or is
part of a group which includes the Borrower and which is treated as a single employer under Section
414(b) or 414(c) of the Code or, solely for purposes of Section 412 of the Code to the extent
required by such Section, Section 414(m) or 414(o) of the Code.



     “Consolidated” shall mean, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries or any other Person, such statements
or items on a consolidated basis in accordance with the consolidation principles of GAAP.



     “Consolidated Capital Expenditures” shall mean, for any period, all expenditures of
the Borrower and its Subsidiaries on a Consolidated basis for such period that in accordance with
GAAP would be classified as capital expenditures, including without limitation, Capital Lease
Obligations. The term “Consolidated Capital Expenditures” shall not include (a) any Permitted
Acquisition, (b) capital expenditures in respect of the reinvestment of proceeds from Recovery
Events in accordance with the terms of Section 2.7(b)(v) or (c) interest expense incurred during
construction of a new Restaurant to the extent required to be capitalized in accordance with GAAP.



     “Consolidated Cash Interest Expense” shall mean, for any period, all cash interest
expense (excluding amortization of debt discount and premium, but including the interest component
under Capital Leases) for such period of the Borrower and its Subsidiaries on a Consolidated basis.
Notwithstanding the foregoing, for purposes of calculating Consolidated Cash Interest Expense for
the four fiscal quarter period ending each of December 26, 2010, March 27, 2011 and June 26, 2011,
Consolidated Cash Interest Expense shall be annualized as follows:



7









 






     (a) for the calculation of Consolidated Cash Interest Expense for the four quarter
period ending December 26, 2010, Consolidated Cash Interest Expense for such period will be
an amount equal to the product of (i) the amount equal to (A) actual Consolidated Cash
Interest Expense incurred from the Closing Date through December 26, 2010, divided
by (B) the actual number of days in such period (including the first and last days
of such period), multiplied by (C) 87, times (ii) four (4);




     (b) for the calculation of Consolidated Cash Interest Expense for the four quarter
period ending March 27, 2011, Consolidated Cash Interest Expense for such period will be an
amount equal to the product of (i) the sum of (A) Consolidated Cash Interest Expense for the
quarter ending December 26, 2010 as calculated pursuant to clause (a)(i) immediately above
plus (B) Consolidated Cash Interest Expense for the three month period ending March
27, 2011, times (ii) two (2); and




     (c) for the calculation of Consolidated Cash Interest Expense for the four quarter
period ending June 26, 2011, Consolidated Cash Interest Expense for such period will be an
amount equal to the product of (i) the sum of (A) Consolidated Cash Interest Expense for the
two quarter period ending March 27, 2011 as calculated pursuant to clause (b)(i) immediately
above, plus (B) Consolidated Cash Interest Expense for the three month period ending June
26, 2011, times (ii) one and one-third (1-1/3).



     “Consolidated EBITDA” means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with
GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following to the
extent deducted in determining Consolidated Net Income: (i) income taxes, (ii) Consolidated
Interest Expense, (iii) amortization, depreciation, non-cash stock compensation expenses and other
non-cash charges (except to the extent that such non-cash charges are reserved for cash charges to
be taken in the future), (iv) extraordinary or unusual losses as determined in accordance with
GAAP, and other non-recurring or unusual losses or charges reasonably acceptable to the
Administrative Agent, (v) Transaction Costs in an aggregate amount not to exceed $8,000,000, (vi)
Pre-Opening Costs incurred during such period in an aggregate amount not to exceed $555,000 per new
Restaurant in any period, (vii) any charges related to Hedging Agreements permitted under Section
6.1(d), (viii) any non-cash charges related to option plans, (ix) management fees paid by Borrower
to either Sponsor prior to the Closing Date (to the extent payment of such fees was permitted under
the Existing Credit Agreement at the time paid), and (x) any charges relating to Strategic Partner
Plan Appreciation expense less (c) the sum of the following to the extent included in
determining Consolidated Net Income: (i) interest income, (ii) cash charges relating to Strategic
Partner Plan Appreciation expense, (iii) Federal, state, foreign and local income tax credits and
(iv) any extraordinary, non-recurring, unusual or non-cash gains, plus or minus (as
applicable) (d) adjustments to reflect rent expense on a cash basis.



     “Consolidated EBITDAR” means, for any period, the sum of (i) the Consolidated EBITDA
of the Borrower and its Subsidiaries for such period plus (ii) Consolidated Rental Expense
for such period.



     “Consolidated Fixed Charges” shall mean, for any period, the sum of (a) Consolidated
Income Cash Taxes for such period, plus (b) Consolidated Cash Interest Expense for such
period plus (c) Consolidated Rental Expense for such period, plus (d) Consolidated
Scheduled Debt Payments for such period.



     “Consolidated Fixed Charge Coverage Ratio” shall mean, as of the end of each fiscal
quarter of the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
EBITDAR for the



8









 




four fiscal quarter period ending on such date minus Consolidated Maintenance Capital
Expenditures for such period to (b) Consolidated Fixed Charges for such period.




     “Consolidated Funded Debt” shall mean, as of any date of determination, Funded Debt of
the Borrower and its Subsidiaries on a Consolidated basis.



     “Consolidated Growth Capital Expenditures” shall mean (a) ) Consolidated Capital
Expenditures relating to the construction, acquisition or opening of new Restaurants operated by
Borrower and its Subsidiaries after the Closing Date minus (b) any capitalized interest
expense with respect to expenditures described in the foregoing clause (a).



     “Consolidated Income Cash Taxes” shall mean, for any period, the aggregate of all
income taxes (including, without limitation, any federal, state, local and foreign income taxes)
actually paid by the Borrower and its Subsidiaries on a Consolidated basis during such period.



     “Consolidated Interest Expense” shall mean, for any period, the gross interest expense
(excluding amortization of debt discount and premium, but including the interest component under
Capital Leases) for such period of the Borrower and its Subsidiaries on a Consolidated basis.
Notwithstanding the foregoing, for purposes of calculating Consolidated Interest Expense for the
four fiscal quarter period ending each of December 26, 2010, March 27, 2011 and June 26, 2011,
Consolidated Interest Expense shall be annualized as follows:




     (a) for the calculation of Consolidated Interest Expense for the four quarter period
ending December 26, 2010, Consolidated Interest Expense for such period will be an amount
equal to the product of (i) the amount equal to (A) actual Consolidated Interest Expense
incurred from the Closing Date through December 26, 2010, divided by (B) the
actual number of days in such period (including the first and last days of such period),
multiplied by (C) 87, times (ii) four (4);




     (b) for the calculation of Consolidated Interest Expense for the four quarter period
ending March 27, 2011, Consolidated Interest Expense for such period will be an amount equal
to the product of (i) the sum of (A) Consolidated Interest Expense for the quarter ending
December 26, 2010 as calculated pursuant to clause (a)(i) immediately above plus (B)
Consolidated Interest Expense for the three month period ending March 27, 2011,
times (ii) two (2); and




     (c) for the calculation of Consolidated Interest Expense for the four quarter period
ending June 26, 2011, Consolidated Interest Expense for such period will be an amount equal
to the product of (i) the sum of (A) Consolidated Interest Expense for the two quarter
period ending March 27, 2011 as calculated pursuant to clause (b)(i) immediately above, plus
(B) Consolidated Interest Expense for the three month period ending June 26, 2011,
times (ii) one and one-third (1-1/3).



     “Consolidated Maintenance Capital Expenditures” shall mean, any Consolidated Capital
Expenditures that are not Consolidated Growth Capital Expenditures, minus, without
duplication, any capitalized interest expense included in Consolidated Interest Expense with
respect to such Consolidated Capital Expenditures.



     “Consolidated Net Income” shall mean, for any period, for the Borrower and its
Subsidiaries, the net income (or loss) of the Borrower and its Subsidiaries on a Consolidated
basis; provided that there shall be excluded from Consolidated Net Income (a) any
restoration to income of any contingency reserve,



9









 




except to the extent that provision for such
reserve was made out of Consolidated Net Income accrued at
any time during such period, (b) the net income (or loss) of any Person that is not a
Subsidiary, in which the Borrower or any of its Subsidiaries has a joint interest with a third
party, except to the extent such net income is actually paid in cash to the Borrower or any of its
Subsidiaries by dividend or other distribution during such period and (c) the net income (if
positive) of any Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary to the Borrower or any of its Subsidiaries of such net income is
not at the time permitted by operation of the terms of its charter or any agreement or instrument
applicable to such Subsidiary or Requirement of Law.




     “Consolidated Rental Expense” shall mean, for any period, all rental expense for such
period (determined on a cash basis) of the Borrower and its Subsidiaries on a Consolidated basis.



     “Consolidated Scheduled Debt Payments” shall mean, for any period, the sum of all
scheduled payments of principal on Consolidated Funded Debt for such period; it being understood
that scheduled payments on Consolidated Funded Debt shall not include optional prepayments or the
mandatory prepayments required pursuant to Section 2.7. Notwithstanding the foregoing, for
purposes of calculating Consolidated Scheduled Debt Payments for the four fiscal quarter period
ending on each of December 26, 2010, March 27, 2011 and June 26, 2011, Consolidated Scheduled Debt
Payments for the four quarter period ending on each such date shall be deemed to be $2,250,000
(reduced, as applicable, to give effect to any reduction of the applicable scheduled amortization
payments of the Term Loan during such period resulting from the application of any voluntary or
mandatory prepayments made after the Closing Date and during the applicable period).



     “Consolidated Total Leverage Ratio” shall mean, as of the end of each fiscal quarter
of the Borrower and its Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated Funded
Debt as of such date to (b) Consolidated EBITDA for the four fiscal quarter period then ended.



     “Consolidated Working Capital” shall mean, as of any date of determination, the excess
of (a) current assets (excluding cash and Cash Equivalents) of the Borrower and its Subsidiaries on
a consolidated basis at such time less (b) current liabilities (excluding current maturities of
long term debt) of the Borrower and its Subsidiaries on a consolidated basis at such time, all as
determined in accordance with GAAP; provided, however, that the calculation of
Consolidated Working Capital for the purposes of this Credit Agreement shall not include any
changes in assets and/or liabilities associated with gift card sales.



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



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



     “Copyright Licenses” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right under any Copyright, including, without limitation, any
thereof referred to in Schedule 3.14 to this Credit Agreement.



     “Copyrights” shall mean all copyrights of the Credit Parties and their Subsidiaries in
all Works, all registrations and recordings thereof, and all applications in connection therewith,
including, without limitation, registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United States, any state thereof or any
other country or any political



10









 




subdivision thereof, or otherwise, including, without limitation, any thereof referred to in
Schedule 3.14 and all renewals thereof.




     “Credit Documents” shall mean this Credit Agreement, each of the Notes, any Joinder
Agreement, the Letters of Credit, LOC Documents and the Security Documents and all other
agreements, documents, certificates and instruments delivered to the Administrative Agent or any
Lender by any Credit Party in connection therewith (other than any agreement, document, certificate
or instrument related to a Hedging Agreement).



     “Credit Party” shall mean any of the Borrower or the Guarantors.



     “Credit Party Obligations” shall mean, without duplication, (a) all of the Obligations
and (b) solely for purposes of the Security Documents and the Guaranty Obligations, all liabilities
and obligations, whenever arising, owing from any Credit Party or any of its Subsidiaries to (i)
any Hedging Agreement Provider arising under any Secured Hedging Agreement and (ii) any Cash
Management Agreement Provider arising under any Cash Management Agreement.



     “Debt Issuance” shall mean the issuance of any Indebtedness by any Credit Party or any
of its Subsidiaries (excluding any Equity Issuance or any Indebtedness of any Credit Party and its
Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof).



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



     “Default” means any of the events specified in Section 7.1, whether or not any
requirement for giving notice or lapse of time, or both, or any other condition, has been
satisfied.



     “Default Rate” shall mean (a) when used with respect to the Obligations, other than
Letter of Credit Fees, an interest rate equal to (i) for Alternate Base Rate Loans (A) the
Alternate Base Rate plus (B) the Applicable Percentage applicable to Alternate Base Rate
Loans plus (C) 2.00% per annum and (ii) for LIBOR Rate Loans, (A) the LIBOR Rate
plus (B) the Applicable Percentage applicable to LIBOR Rate Loans plus (C) 2.00%
per annum, (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Percentage applicable to Letter of Credit Fees plus 2.00% per annum and (c) when used with
respect to any other fee or amount due hereunder, a rate equal to the Applicable Percentage
applicable to Alternate Base Rate Loans plus 2.00% per annum.



     “Defaulting Lender” means, subject to Section 2.20(b), any Lender that, as determined
by the Administrative Agent (with notice to the Borrower of such determination), (a) has failed to
perform any of its funding obligations hereunder, including in respect of its Loans or
participations in Letters of Credit or Swingline Loans, within three Business Days of the date
required to be funded by it hereunder, unless such obligation is the subject of a good faith
dispute, (b) has notified the Borrower or the Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to
its funding obligations hereunder or under other agreements in which it commits to extend credit,
(c) has failed, within three Business Days after request by the Administrative Agent, to confirm in
a manner satisfactory to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or assets, including the Federal Deposit
Insurance Corporation or any other



11









 




state or federal regulatory authority acting in such a capacity; provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
Equity Interest by a Governmental Authority in such Lender or any direct or indirect parent company
thereof.




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



     “Domestic Lending Office” shall mean, initially, the office of each Lender designated
as such Lender’s Domestic Lending Office in such Lender’s Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.



     “Domestic Subsidiary” shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.



     “Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent, (ii) in the case of any assignment of a Revolving Commitment, the Issuing Lender and (iii)
unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include (A) any Credit Party or any of the Credit Party’s Affiliates
or Subsidiaries, (B) any Person holding Subordinated Indebtedness of the Credit Parties or any of
such Person’s Affiliates or (C) any Defaulting Lender (or any of its Affiliates).



     “Environmental Laws” shall mean any and all applicable foreign, federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning protection of human health or
the environment, as now or may at any time be in effect during the term of this Credit Agreement.



     “Equity Interests” shall mean (a) in the case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in the case of a
partnership, partnership interests (whether general, preferred or limited), (d) in the case of a
limited liability company, membership interests and (e) any other interest or participation that
confers or could confer on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, without limitation, options, warrants and any other
“equity security” as defined in Rule 3a11-1 of the Exchange Act.



     “Equity Issuance” shall mean any issuance by any Credit Party or any Subsidiary to any
Person which is not a Credit Party (other than to any director, officer or employee of a Credit
Party or any Subsidiary pursuant to any stock option plan or otherwise) of (a) shares of its Equity
Interests, (b) any shares of its Equity Interests pursuant to the exercise of options or warrants
or similar rights, (c) any shares of its Equity Interests pursuant to the conversion of any debt
securities to equity or (d) warrants or options or similar rights that are exercisable for or
convertible into shares of its Equity Interests.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.



     “Eurodollar Reserve Percentage” shall mean for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining



12









 





the maximum reserve requirement (including without limitation any basic, supplemental or
emergency reserves) in respect of Eurocurrency liabilities, as defined in Regulation D of such
Board as in effect from time to time, or any similar category of liabilities for a member bank of
the Federal Reserve System in New York City.




     “Event of Default” shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.



     “Excess Cash Flow” shall mean, with respect to any fiscal year period of the Borrower
and its Subsidiaries on a Consolidated basis, the excess, if any, of the following, without
duplication, for the Borrower and its Subsidiaries in accordance with GAAP:




	 	(a)	 	the sum, without duplication, of






	 	(i)	 	Consolidated Net Income,
	 
	 	(ii)	 	the amount of all non-cash charges (including depreciation and
amortization) deducted in arriving at such Consolidated Net Income,
	 
	 	(iii)	 	the amount of any tax refunds to the extent not included in
Consolidated Net Income,
	 
	 	(iv)	 	decreases in Consolidated Working Capital,
	 
	 	(v)	 	to the extent received in cash, returns on Permitted
Investments of the types described in clauses (b), (e), (h) and (i) of the
definition thereof; and
	 
	 	(vi)	 	non-cash adjustments for rental expense deducted in arriving at
such Consolidated Net Income;





over




	 	(b)	 	the sum, without duplication, of






	 	(i)	 	the amount of all non-cash credits, income and gains included
in arriving at Consolidated Net Income,
	 
	 	(ii)	 	to the extent consisting of payments of cash during such
period, (A) Consolidated Capital Expenditures, (B) Permitted Investments of the
types described in clauses (b), (e), (h) and (i) of the definition thereof, (C)
Permitted Acquisitions and (D) Restricted Payments permitted pursuant to
Section 6.10(a)(iii) and (iv), in each case except to the extent financed with
the proceeds of other Indebtedness of the Credit Parties,
	 
	 	(iii)	 	the aggregate amount of all optional prepayments (together
with any prepayment fees accompanying such prepayments) and regularly scheduled
principal payments of the Term Loans made during such period, except to the
extent financed with the proceeds of other Indebtedness of the Credit Parties,
	 
	 	(iv)	 	the aggregate amount of all principal payments made in respect
of Indebtedness (other than the Loans) during such period, but only to the
extent that such payments or prepayments by their terms cannot be reborrowed or
redrawn and do




13









 












	 	 	 	not occur in connection with a refinancing of all or any portion of such
Indebtedness;
	 
	 	(v)	 	the aggregate amount of any permanent voluntary reduction in
the Revolving Commitments to the extent that an equal amount of the Revolving
Loans are simultaneously repaid, except to the extent financed with the
proceeds of other Indebtedness of the Credit Parties,
	 
	 	(vi)	 	increases in Consolidated Working Capital, and
	 
	 	(vii)	 	Transaction Costs actually paid in cash and not deducted in
arriving at Consolidated Net Income.





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



     “Excluded Subsidiary” means any Subsidiary of a Credit Party formed primarily for the
purpose of holding the liquor license for a facility operated by the Credit Parties, if the grant
of a security interest in such Subsidiary’s Equity Interests to the Lenders is prohibited by,
conflicts with, or constitutes a breach or default under, or requires any consent not obtained
under, (i) the articles or certificate of incorporation, by-laws or other organizational or
governing documents of such Subsidiary or (ii) the applicable documentation pursuant to which a
Credit Party acquired such Subsidiary, and in each case such prohibition or other restrictions in
such organizational or other governing documents and/or such acquisition documents are required by
applicable state law.



     “Existing Credit Agreement” means the Credit Agreement dated as of June 29, 2006
among the Borrower, certain Subsidiaries and other Affiliates of the Borrower party thereto, as
guarantors, the financial institutions party thereto as lenders, and Wells Fargo (as successor by
merger to Wachovia Bank National Association) as administrative agent for such Lenders (as amended
or otherwise modified prior to the Closing Date).



     “Existing Letters of Credit” means the letters of credit outstanding on the Closing
Date and identified on Schedule 1.1(d) hereto.



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



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published on the next succeeding Business Day, the
average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.



     “Fee Letters” shall mean (i) the letter agreement dated October 4, 2010, addressed to
the Borrower from Wells Fargo Bank of America, WFS and BAS, as amended, modified or otherwise
supplemented and (ii) the letter agreement dated October 4, 2010, addressed to the Borrower from
Wells Fargo and WFS, as amended, modified or otherwise supplemented.



     “Flood Hazard Property” shall mean any Mortgaged Property that is in an area
designated by the Federal Emergency Management Agency as having special flood or mudslide hazards.



14









 





     “Foreign Lender” means each Lender that is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Code).



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding LOC Obligations
with respect to the Letters of Credit other than LOC Obligations as to which such Defaulting
Lender’s Participation Interests have been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting
Lender’s Pro Rata Share of outstanding Swingline Loans other than Swingline Loans as to which such
Defaulting Lender’s Participation Interests have been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof.



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



     “Funded Debt” shall mean, with respect to any Person, without duplication, all
Indebtedness of such Person other than Indebtedness of the types referred to in clauses (i) and (j)
(so long as undrawn) of the definition of “Indebtedness.”



     “GAAP” shall mean generally accepted accounting principles in effect in the United
States of America applied on a consistent basis, subject, however, in the case of
determination of compliance with the financial covenants set out in Section 5.9 to the provisions
of Section 1.3.



     “Government Acts” shall have the meaning set forth in Section 2.18.



     “Government Obligations” shall have the meaning set forth in the definition of “Cash
Equivalents.”



     “Governmental Approvals” shall mean all authorizations, consents, approvals, permits,
licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.



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



     “Guarantor” shall have the meaning set forth in the first paragraph of this Agreement.



     “Guaranty” shall mean the guaranty of the Guarantors set forth in Article X.



     “Guaranty Obligations” shall mean, with respect to any Person, without duplication,
any obligations of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting security therefor, (b) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation keep well



15









 




agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for
the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase property,
securities or services primarily for the purpose of assuring the holder of such Indebtedness, or
(d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set
forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is
made.




     “Hedging Agreement Provider” shall mean any Person that (a) has provided the
Administrative Agent with a fully executed Secured Party Designation Notice, substantially in the
form of Exhibit 1.1(f) and (b) enters into a Secured Hedging Agreement with a Credit Party
or any of its Subsidiaries that is permitted by Section 6.1(d) to the extent that (i) such Person
is a Lender, an Affiliate of a Lender or any other Person that was a Lender (or an Affiliate of a
Lender) at the time it entered into the Secured Hedging Agreement but has ceased to be a Lender (or
whose Affiliate has ceased to be a Lender) under the Credit Agreement or (ii) such Person is a
Lender or an Affiliate of a Lender on the Closing Date and the Hedging Agreement was entered into
on or prior to the Closing Date (even if such Person ceases to be a Lender or such Person’s
Affiliate ceased to be a Lender); provided, in the case of a Secured Hedging Agreement with
a Person who is no longer a Lender, such Person shall be considered a Hedging Agreement Provider
only through the stated maturity date (without extension or renewal) of such Secured Hedging
Agreement.



     “Hedging Agreements” shall mean, with respect to any Person, any agreement entered
into to protect such Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar agreement or similar
arrangement between such Person and one or more counterparties, any foreign currency exchange
agreement, currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate hedging agreements.



     “Incurrence Ratio” shall mean, at any date of determination, the maximum Consolidated
Total Leverage Ratio permitted under Section 5.9(a) as at the end of the most recently ended fiscal
quarter for which the Borrower has delivered a compliance certificate pursuant to Section 5.2(b),
less 0.125.



     “Indebtedness” shall mean, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon which interest payments are customarily
made, (c) all obligations of such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of business), (d) all
obligations (including, without limitation, earnout obligations and obligations under
non-competition or similar agreements that have not been paid within 30 days of becoming fixed and
matured) of such Person incurred, issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the ordinary course of
business and due within six months of the incurrence thereof) which would appear as liabilities on
a balance sheet of such Person, (e) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed, (g) all Guaranty
Obligations of such Person with respect to Indebtedness of another Person, (h) the principal
portion of all Capital Lease Obligations of such Person plus any accrued interest thereon, (i) all
net obligations of such Person under Hedging Agreements, (j) the maximum amount of all letters of
credit issued or bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all preferred
Equity Interests issued by such Person and



16









 




which by the terms thereof could at any time prior to the Maturity Date be (at the request of
the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (l) the principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing product plus any
accrued interest thereon and (m) the Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer.




     “Initial Public Offering” means an underwritten initial public offering of the
Borrower (other than a public offering pursuant to a registration statement on Form S-4 or S-8) of
its common stock (a) pursuant to an effective registration statement filed with the SEC in
accordance with the Securities Act and (b) resulting in gross primary proceeds to the Borrower of
at least $50,000,000.



     “Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.



     “Intellectual Property” shall mean, collectively, the Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks and Trademark Licenses of the Credit Parties and their
Subsidiaries, all goodwill associated therewith and all rights to sue for infringement thereof.



     “Interest Determination Date” shall have the meaning specified in the definition of
“Applicable Percentage” set forth in this Section 1.1.



     “Interest Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last
Business Day of each March, June, September and December and on the applicable Maturity Date, (b)
as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months,
(i) each three (3) month anniversary following the first day of such Interest Period and (ii) the
last day of such Interest Period and (d) as to any Loan which is the subject of a mandatory
prepayment required pursuant to Section 2.7(b), the date on which such mandatory prepayment is due.



     “Interest Period” shall mean, with respect to any LIBOR Rate Loan,




     (a) initially, the period commencing on the Borrowing Date or conversion date, as the
case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in the Notice of Borrowing or Notice of Conversion
given with respect thereto; and




     (b) thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that the foregoing provisions are subject to the
following:




     (i) if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end
on a day that is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;




     (ii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there is no numerically



17









 







corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the relevant calendar month;




     (iii) if the Borrower shall fail to give notice as provided above, the Borrower
shall be deemed to have selected an Alternate Base Rate Loan to replace the affected
LIBOR Rate Loan;




     (iv) no Interest Period in respect of any Loan shall extend beyond the
applicable Maturity Date and, further with regard to the Term Loan, no Interest
Period shall extend beyond any principal amortization payment date with respect to
such Term Loan unless the portion of such Term Loan consisting of Alternate Base
Rate Loans together with the portion of such Term Loan consisting of LIBOR Rate
Loans with Interest Periods expiring prior to or concurrently with the date such
principal amortization payment date is due, is at least equal to the amount of such
principal amortization payment due on such date; and




     (v) no more than nine (9) LIBOR Rate Loans may be in effect at any time.




For purposes hereof, LIBOR Rate Loans with different Interest Periods shall be considered as
separate LIBOR Rate Loans, even if they shall begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new LIBOR Rate Loan with a single Interest
Period.



     “Investment” shall mean (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of shares of Equity Interests, other ownership
interests or other securities of any Person or bonds, notes, debentures or all or substantially all
of the assets of any Person or (b) any deposit with, or advance, loan or other extension of credit
to, any Person (other than deposits made in the ordinary course of business) or (c) any other
capital contribution to or investment in any Person, including, without limitation, any Guaranty
Obligation (including any support for a letter of credit issued on behalf of such Person) incurred
for the benefit of such Person.



     “Issuing Lender” shall mean Wells Fargo and any successor in such capacity.



     “Issuing Lender Fees” shall have the meaning set forth in Section 2.5(c).



     “Joinder Agreement” shall mean a Joinder Agreement in substantially the form of
Exhibit 1.1(c), executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 5.10.



     “Lender” shall have the meaning set forth in the first paragraph of this Credit
Agreement.



     “Letters of Credit” shall mean any Existing Letter of Credit and any other letter of
credit issued by the Issuing Lender pursuant to the terms hereof, as such letter of credit may be
amended, modified, restated, extended, renewed, increased or replaced from time to time in
accordance with the terms of this Agreement.



     “Letter of Credit Fee” shall have the meaning set forth in Section 2.5(b).



     “LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in Dollars
at approximately 11:00 A.M.



18









 




(London time) two (2) Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not available, then “LIBOR”
shall mean the rate per annum at which, as determined by the Administrative Agent in accordance
with its customary practices, deposits in Dollars for delivery on the date of determination in
immediately available funds in an amount comparable to the Loans then requested and with a term
equivalent to such Interest Period are being offered to leading banks in the London interbank
market at approximately 11:00 A.M. London time, two (2) Business Days prior to the commencement of
such Interest Period.




     “LIBOR Lending Office” shall mean, initially, the office(s) of each Lender designated
as such Lender’s LIBOR Lending Office in such Lender’s Administrative Questionnaire; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office of such Lender at which the LIBOR Rate Loans of
such Lender are to be made.



     “LIBOR Rate” shall mean a rate per annum (rounded upwards, if necessary, to the next
higher 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 

	 

	 	LIBOR Rate =
	 	LIBOR
 

1.00 – Eurodollar Reserve Percentage
	 	 






     “LIBOR Rate Loan” shall mean Loans the rate of interest applicable to which is based
on the LIBOR Rate.



     “Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title retention agreement
and any Capital Lease having substantially the same economic effect as any of the foregoing).



     “Loan” shall mean a Revolving Loan, the Term Loan and/or a Swingline Loan, as
appropriate.



     “LOC Commitment” shall mean the commitment of the Issuing Lender to issue Letters of
Credit as set forth in Section 2.3.



     “LOC Committed Amount” shall have the meaning set forth in Section 2.3(a).



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



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



     “Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.3(e).



     “Mandatory Swingline Borrowing” shall have the meaning set forth in Section
2.4(b)(ii).



19









 





     “Material Adverse Effect” shall mean a material adverse change in, or a material
adverse effect on (a) the business, operations, condition (financial or otherwise), assets,
liabilities (whether actual or contingent) or prospects of the Borrower and its Subsidiaries, taken
as a whole, (b) the ability of the Borrower and the Guarantors, taken as a whole, to perform their
obligations, when such obligations are required to be performed, under this Credit Agreement, any
of the Notes or any other Credit Document or (c) the validity or enforceability of this Credit
Agreement, any of the Notes or any of the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.



     “Material Contract” shall mean (a) any contract or other agreement, written or oral,
of the Credit Parties or any of their Subsidiaries involving monetary liability of or to any such
Person in an amount in excess of $10,000,000 per annum and (b) any other contract, agreement,
permit or license, written or oral, of the Credit Parties or any of their Subsidiaries as to which
the breach, nonperformance, cancellation of failure to renew by any party thereto, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



     “Materials of Environmental Concern” shall mean any gasoline or petroleum (including
crude oil or any fraction thereof), petroleum products, asbestos, materials containing asbestos,
pesticides, lead-based paint, radon, radioactive materials, polychlorinated biphenyls and urea
formaldehyde and any hazardous or toxic substances, chemicals, materials or wastes, defined or
regulated in or under any Environmental Law.



     “Maturity Date” shall mean October 26, 2015.



     “Moody’s” shall mean Moody’s Investors Service, Inc.



     “Mortgage Instrument” shall mean any mortgage, deed of trust or deed to secure debt
executed by a Credit Party in favor of the Administrative Agent, for the benefit of the Secured
Parties, as the same may be amended, modified, extended, restated, replaced or supplemented from
time to time.



     “Mortgaged Property” shall mean any owned real property of a Credit Party with respect
to which such Credit Party executes a Mortgage Instrument in favor of the Administrative Agent.



     “Multiemployer Plan” shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.



     “Net Cash Proceeds” shall mean the aggregate cash proceeds received by any Credit
Party or any Subsidiary in respect of any Asset Disposition, Debt Issuance or Recovery Event, net
of (a) direct costs (including, without limitation, legal, accounting and investment banking fees,
and sales commissions) associated therewith, (b) amounts held in escrow to be applied as part of
the purchase price of any Asset Disposition and (c) taxes paid or payable as a result thereof; it
being understood that “Net Cash Proceeds” shall include, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received by any Credit Party or any
Subsidiary in any Asset Disposition, Debt Issuance or Recovery Event and any cash released from
escrow as part of the purchase price in connection with any Asset Disposition.



     “New Property” shall mean any Property that was not owned, operated or leased by the
Credit Parties or their Subsidiaries as of the Closing Date.



     “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting
Lender at such time.



20









 





     “Note” or “Notes” shall mean the Revolving Notes, the Term Loan Notes and/or
the Swingline Notes, collectively, separately or individually, as appropriate.



     “Notice of Borrowing” shall mean a request for a Revolving Loan borrowing pursuant to
Section 2.1(b)(i) or a request for a Swingline Loan borrowing pursuant to Section 2.4(b)(i), as
appropriate. A Form of Notice of Borrowing is attached as Exhibit 1.1(d).



     “Notice of Conversion/Extension” shall mean the written notice of extension or
conversion as referenced and defined in Section 2.9, in each case substantially in the form of
Exhibit 1.1(e).



     “Obligations” shall mean, collectively, all of the obligations, Indebtedness and
liabilities of the Credit Parties to the Lenders (including the Issuing Lender) and the
Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit
Documents, including principal, interest, fees, reimbursements, indemnification obligations and
other amounts (including, but not limited to, any interest accruing after the occurrence of a
filing of a petition of bankruptcy under the Bankruptcy Code with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy Code).



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



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



     “Participant” shall have the meaning set forth in Section 9.6(b).



     “Participation Interest” shall mean a participation interest purchased by a Revolving
Lender in LOC Obligations as provided in Section 2.3(c) and in Swingline Loans as provided in
Section 2.4.



     “Patent Licenses” shall mean any agreement, whether written or oral, providing for the
grant by or to a Person of any right to manufacture, use or sell any invention covered by a Patent,
including, without limitation, any thereof referred to in Schedule 3.14 to the Credit
Agreement.



     “Patents” shall mean (a) all letters patent of the United States or any other country,
now existing or hereafter arising, and all improvement patents, reissues, reexaminations, patents
of additions, renewals and extensions thereof, including, without limitation, any thereof referred
to in Schedule 3.14 to this Credit Agreement, and (b) all applications for letters patent
of the United States or any other country, now existing or hereafter arising, and all provisionals,
divisions, continuations and continuations-in-part and substitutes thereof, including, without
limitation, any thereof referred to in Schedule 3.14 to this Credit Agreement.



     “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Title III of Pub.
L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.



     “Permitted Acquisition” shall mean an acquisition or any series of related
acquisitions by a Credit Party of (a) all or substantially all of the assets or a majority of the
outstanding Voting Stock or economic interests of a Person that is incorporated, formed or
organized in the United States or (b) any division, line



21









 




of business or other business unit of a Person that is incorporated, formed or organized in
the United States (such Person or such division, line of business or other business unit of such
Person shall be referred to herein as the “Target”), in each case that is a type of
business (or assets used in a type of business) permitted to be engaged in by the Credit Parties
and their Subsidiaries pursuant to Section 6.3, so long as:





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




     (ii) the Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent and the Required Lenders that, after giving effect to the acquisition
on a Pro Forma Basis the Credit Parties are in compliance with each of the financial
covenants set forth in Section 5.9;




     (iii) the Administrative Agent, on behalf of the Lenders, shall have received (or shall
receive in connection with the closing of such acquisition) a first priority perfected
security interest in all property (including, without limitation, Equity Interests) acquired
with respect to the Target in accordance with the terms of Sections 5.10 and 5.12 and the
Target, if a Person, shall have executed a Joinder Agreement in accordance with the terms of
Section 5.10;




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




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




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




     (vii) after giving effect to such acquisition, there shall be at least $10,000,000 of
borrowing availability under the Revolving Committed Amount; and




     (viii) the aggregate consideration (including without limitation equity consideration,
earn outs or deferred compensation or non-competition arrangements and the amount of
Indebtedness and other liabilities incurred or assumed by the Credit Parties and their
Subsidiaries) paid by the Credit Parties and their Subsidiaries (A) in connection with any
single acquisition shall not exceed $10,000,000, (B) for all acquisitions made during any
period of twelve consecutive (12) months shall not exceed $15,000,000 and (C) for all
acquisitions made during the term of this Agreement shall not exceed $30,000,000.



     “Permitted Investments” shall mean:




     (a) cash and Cash Equivalents;




     (b) Investments set forth on Schedule 1.1(b);



22









 






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




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




     (e) loans and advances to officers, directors and employees of the Borrower or any of
its Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding;
provided that such loans and advances shall comply with all applicable Requirements of Law;




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




     (g) Investments, acquisitions or transactions permitted under Section 6.4(b) (including
any Investments owned by a Person acquired in a Permitted Acquisition);




     (h) Hedging Agreements to the extent permitted hereunder; and




     (i) additional loan advances and/or Investments of a nature not contemplated by the
foregoing clauses hereof; provided that such loans, advances and/or Investments made
after the Closing Date pursuant to this clause (i) shall not exceed an aggregate amount of
$20,000,000.



     “Permitted Liens” shall mean:




     (a) Liens created by or otherwise existing under or in connection with this Credit
Agreement or the other Credit Documents in favor of the Secured Parties;




     (b) Liens in favor of a Hedging Agreement Provider or a Cash Management Agreement
Provider in connection with a Secured Hedging Agreement or a Secured Cash Management
Agreement, respectively; provided that such Liens shall secure the Credit Party
Obligations and the obligations under such Secured Hedging Agreement and Secured Cash
Management Agreements on a pari passu basis;




     (c) Liens securing purchase money indebtedness and Capital Lease Obligations (and
refinancings thereof) to the extent permitted under Section 6.1(c); provided, that
(A) any such Lien attaches to such property concurrently with or within 30 days after the
acquisition thereof and (B) such Lien attaches solely to the property so acquired in such
transaction;




     (d) Liens for taxes, assessments, charges or other governmental levies not yet due or
as to which the period of grace (not to exceed 60 days), if any, related thereto has not
expired or which are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books of
the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP (or, in the
case of Foreign Subsidiaries with significant operations outside the United States of
America, generally accepted accounting principles in effect from time to time in their
respective jurisdictions of incorporation);




     (e) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s,
landlords’, repairmen’s or other like Liens arising in the ordinary course of business which
are not



23









 







overdue for a period of more than 30 days or which are being contested in good faith by
appropriate proceedings; provided that a reserve or other appropriate provision
shall have been made therefore (other than landlord’s liens for rent not overdue);




     (f) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;




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




     (h) Liens in favor of the Issuing Lender and/or Swingline Lender to Cash Collateralize
or otherwise secure the obligations of a Defaulting Lender to fund risk participations
hereunder;




     (i) easements, rights of way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial 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 the applicable Person;




     (j) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in this definition (other than
Liens set forth on Schedule 1.1(c)); provided that such extension, renewal
or replacement Lien shall be limited to all or a part of the property which secured the Lien
so extended, renewed or replaced (plus improvements on such property);




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




     (l) Liens arising in the ordinary course of business by virtue of any contractual,
statutory or common law provision relating to banker’s Liens, rights of set-off or similar
rights and remedies covering deposit or securities accounts (including funds or other assets
credited thereto) or other funds maintained with a depository institution or securities
intermediary;




     (m) any zoning, building or similar laws or rights reserved to or vested in any
Governmental Authority;




     (n) restrictions on transfers of securities imposed by applicable Securities Laws;




     (o) Liens arising out of judgments or awards not resulting in a Default;
provided that the Borrower or any applicable Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review;




     (p) any interest or title of a lessor, licensor or sublessor under any lease, license
or sublease entered into by the Borrower or any other Subsidiary in the ordinary course of
its business and covering only the assets so leased, licensed or subleased;



24









 






     (q) assignments of insurance or condemnation proceeds provided to landlords (or their
mortgagees) pursuant to the terms of any lease and Liens or rights reserved in any lease for
rent or for compliance with the terms of such lease; and




     (r) additional Liens so long as the principal amount of Indebtedness and other
obligations secured thereby does not exceed $2,000,000 in the aggregate.



     “Person” shall mean any natural person, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.



     “Plan” shall mean, as of any date of determination, any employee benefit plan which is
covered by Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.



     “Pledge Agreement” shall mean the Pledge Agreement dated as of the Closing Date given
by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the Secured
Parties, as the same may from time to time be amended, modified, extended, restated, replaced,
amended and restated or supplemented from time to time in accordance with the terms hereof and
thereof.



     “Pre-Opening Costs” means “start-up costs” (such term used herein as defined in SOP
98-5 published by the American Institute of Certified Public Accountants) related to the
acquisition, opening and organizing of new restaurants, including, without limitation, the cost of
feasibility studies, staff-training, and recruiting, travel costs for employees engaged in such
start-up activities advertising and rent accrued prior to opening.



     “Prime Rate” shall mean, at any time, the rate of interest per annum publicly
announced or otherwise identified from time to time by Wells Fargo as its prime rate. Each change
in the Prime Rate shall be effective as of the opening of business on the day such change in the
Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly by Wells Fargo
as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate
charged to its customers or other banks.



     “Pro Forma Basis” means, in connection with the calculation as of the applicable
Calculation Date (utilizing the principles set forth in the last paragraph of Section 5.9) of the
financial covenants set forth in Section 5.9(a) and (b) in respect of a proposed transaction (a
“Specified Transaction”) as of the date on which such Specified Transaction is to be
effected, the making of such calculation after giving effect on a pro forma basis to:




     (a) the consummation of such Specified Transaction as of the first day of the
applicable Calculation Period;




     (b) the assumption, incurrence or issuance of any Indebtedness by the Borrower or any
of its Subsidiaries (including any Person which became a Subsidiary pursuant to or in
connection with such Specified Transaction) in connection with such Specified Transaction,
as if such Indebtedness had been assumed, incurred or issued (and the proceeds thereof
applied) on the first day of such Calculation Period (with any such Indebtedness bearing
interest at a floating rate being deemed to have an implied rate of interest for the
applicable period equal to the rate which is or would be in effect with respect to such
Indebtedness as of the applicable Calculation Date);



25









 






     (c) the permanent repayment, retirement or redemption of any Indebtedness (other than
revolving Indebtedness, except to the extent accompanied by a permanent commitment
reduction) by the Borrower or any of its Subsidiaries (including any Person which became a
Subsidiary pursuant to or in connection with such Specified Transaction) in connection with
such Specified Transaction, as if such Indebtedness had been repaid, retired or redeemed on
the first day of such Calculation Period;




     (d) other than in connection with such Specified Transaction, any assumption,
incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries during
the period beginning with the first day of the applicable Calculation Period through and
including the applicable Calculation Date, as if such Indebtedness had been assumed,
incurred or issued (and the proceeds thereof applied) on the first day of such Calculation
Period (with any such Indebtedness bearing interest at a floating rate being deemed to have
an implied rate of interest for the applicable period equal to the weighted average of the
interest rates actually in effect with respect to such Indebtedness during the portion of
such period that such Indebtedness was outstanding); and




     (e) other than in connection with such Specified Transaction, the permanent repayment,
retirement or redemption of any Indebtedness (other than revolving Indebtedness, except to
the extent accompanied by a permanent commitment reduction) by the Borrower or any of its
Subsidiaries during the period beginning with the first day of the applicable Calculation
Period through and including the applicable Calculation Date, as if such Indebtedness had
been repaid, retired or redeemed on the first day of such Calculation Period.



     “Properties” shall mean the assets, facilities and properties owned, leased or
operated by any of the Credit Parties.



     “Pro Rata Share” means, as to each Lender at any time, (a) with respect to such
Lender’s Revolving Commitment at any time, a fraction (expressed as a percentage) the numerator of
which is the amount of the Revolving Commitment of such Lender at such time (or, if the Revolving
Commitments have been terminated, the amount of the outstanding Revolving Loans and participations
in LOC Obligations and Swingline Loans of such Lender at such time) and the denominator of which is
the amount of the Aggregate Revolving Commitments at such time (or, if the Revolving Commitments
have been terminated, the amount of the outstanding Revolving Loans and participations in LOC
Obligations and Swingline Loans of all Lenders at such time) and (b) with respect to such Lender’s
outstanding Term Loan at any time, a fraction (expressed as a percentage,, the numerator of which
is the principal amount of the Term Loan held by such Lender at such time and the denominator of
which is the aggregate principal amount of the Term Loan at such time. The initial Pro Rata Share
of each Lender is set forth opposite the name of such Lender on Schedule 1.1(a) or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.



     “Recovery Event” shall mean the receipt by any Credit Party or any of their
Subsidiaries of any cash insurance proceeds or condemnation or expropriation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event with respect to any
of their respective property or assets other than obsolete property or assets no longer used or
useful in the business of the Credit Parties or any of their Subsidiaries.



     “Register” shall have the meaning set forth in Section 9.6(d).



     “Reimbursement Obligation” shall mean the obligation of the Borrower to reimburse
the Issuing Lender pursuant to Section 2.3(d) for amounts drawn under Letters of Credit.




26











 





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



     “Reorganization” shall mean, with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.



     “Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.



     “Required Lenders” shall mean, as of any date of determination, Lenders holding at
least a majority of (a) the unfunded Revolving Commitments, the Revolving Exposure and Term Loans
or (b) if the Revolving Commitments have been terminated, the outstanding Loans and Participation
Interests; provided, however, that if any Lender shall be a Defaulting Lender at
such time, then there shall be excluded from the determination of Required Lenders, Obligations
(including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender’s
Commitments.



     “Requirement of Law” means, as to any Person, (a) the articles or certificate of
incorporation, by-laws or other organizational or governing documents of such Person, and (b) all
international, foreign, Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes, executive orders, and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority (in each case whether or not having the force of law);
in each case applicable to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.



     “Responsible Officer” shall mean, as to (a) the Borrower, the president, the chief
financial officer or the chief operating officer or (b) any other Credit Party, any duly authorized
officer thereof.



     “Restaurant” means a particular restaurant at a particular location that is owned or
operated by the Borrower or one of its Subsidiaries.



     “Restricted Payment” shall mean (a) the payment or declaration of any dividend or
other distribution, direct or indirect, on account of any shares of any class of Equity Interests
of any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (b) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Equity Interests of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of
Equity Interests of any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (d)
any payment with respect to any earnout obligation, (e) any payment or prepayment of principal of,
premium, if any, or interest on, redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, any Subordinated Debt of any Credit Party or any of its
Subsidiaries and (f) the payment by any Credit Party or any of its Subsidiaries of any management,
advisory or consulting fee to any Person or the payment of any extraordinary salary, bonus or other
form of compensation to any Person who is directly or indirectly a significant partner,
shareholder, owner or executive officer of any such Person, to the extent such extraordinary
salary, bonus or other form of compensation is not included in the corporate overhead of such
Credit Party or such Subsidiary.



27









 





     “Revolving Commitment” means as to any Lender, the obligation of such Lender to make
Revolving Loans for the account of the Borrower and participate in Letters of Credit and Swingline
Loans
made under the Revolving Facility in an aggregate principal and/or stated amount at any time
outstanding not to exceed the amount set forth under the heading “Revolving Commitment” opposite
such Lender’s name on Schedule 1.1(a) hereto or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof.



     “Revolving Committed Amount” shall have the meaning set forth in Section 2.1(a).



     “Revolving Exposure” means, with respect to any Revolving Lender at any time, the sum
of (a) the aggregate principal amount of all Revolving Loans made by such Revolving Lender that are
outstanding at such time, (b) such Lender’s Pro Rata Share of the LOC Obligations at such time and
(c) such Lender’s Pro Rata Share of the outstanding Swingline Loans at such time.



     “Revolving Facility” shall have the meaning set forth in Section 2.1(a).



     “Revolving Lender” shall mean, as of any date of determination, a Lender holding a
Revolving Commitment, a Revolving Loan or a Participation Interest on such date on such date.



     “Revolving Loan” shall have the meaning set forth in Section 2.1.



     “Revolving Note” or “Revolving Notes” shall mean the promissory notes of the
Borrower provided pursuant to Section 2.1(e) in favor of each of the Revolving Lenders evidencing
the Revolving Loans provided by any such Revolving Lender pursuant to Section 2.1(a), individually
or collectively, as appropriate, as such promissory notes may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.



     “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.



     “Sale-Leaseback Transaction” shall have the meaning set forth in Section 6.12.



     “Sanctioned Entity” shall mean (a) a country or a government of a country, (b) an
agency of the government of a country, (c) an organization directly or indirectly controlled by a
country or its government, or (d) a person or entity resident in or determined to be resident in a
country, that is subject to a country sanctions program administered and enforced by OFAC.



     “Sanctioned Person” shall mean a person named on the list of Specially Designated
Nationals maintained by OFAC.



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



     “SEC” means the Securities and Exchange Commission, or any successor Governmental
Authority.



     “Secured Cash Management Agreement” shall mean any Cash Management Agreement between a
Credit Party and a Cash Management Agreement Provider, as amended, restated, amended and restated,
modified, supplemented or extended from time to time.



28









 






     “Secured Hedging Agreement” shall mean any Hedging Agreement between a Credit Party
and a Hedging Agreement Provider, as amended, restated, amended and restated, modified,
supplemented or extended from time to time.






     “Secured Parties” shall mean the Administrative Agent, the Lenders, the Hedging
Agreement Providers and the Cash Management Agreement Providers.



     “Secured Party Designation Notice” shall mean a notice substantially in the form of
Exhibit 1.1(f).



     “Securities Act” means the Securities Act of 1933, together with any amendment thereto
or replacement thereof and any rules or regulations promulgated thereunder.



     “Securities Laws” means the Securities Act, the Exchange Act, Sarbanes-Oxley and the
applicable accounting and auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the
foregoing may be amended and in effect on any applicable date hereunder



     “Security Agreement” shall mean the Security Agreement dated as of the Closing Date
given by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the
Secured Parties, as amended, restated, amended and restated, modified or supplemented from time to
time in accordance with its terms.



     “Security Documents” shall mean the Security Agreement, the Pledge Agreement, the
Mortgage Instruments and all other agreements, documents and instruments relating to or arising out
of any of the foregoing documents or granting to the Administrative Agent, for the benefit of the
Secured Parties, Liens or security interests to secure, inter alia, the Credit Party Obligations
whether now or hereafter executed and/or filed, each as may be amended from time to time in
accordance with the terms hereof, executed and delivered in connection with the granting,
attachment and perfection of the Administrative Agent’s security interests and liens arising
thereunder, including, without limitation, UCC financing statements and patent, trademark and
copyright filings.



     “Single Employer Plan” shall mean any Plan that is not a Multiemployer Plan.



     “Specified Sales” shall mean (a) the sale, transfer, lease or other disposition of
inventory and materials in the ordinary course of business, (b) the sale, transfer, lease or other
disposition of obsolete or worn-out property or assets in the ordinary course of business and (c)
the sale, transfer or other disposition of cash into Cash Equivalents or Cash Equivalents into
cash.



     “Specified Transaction” has the meaning specified in the definition of “Pro Forma
Basis” set forth in this Section 1.1.



     “Sponsors” shall mean Castle Harlan, Inc. and Bruckmann, Rosser, Sherrill & Co.
L.L.C., together with their respective Affiliates.



     “Strategic Partner Plan” shall mean the Borrower’s employee incentive plan for certain
key operating employees of the Borrower.



     “Strategic Partner Plan Appreciation” shall mean the value of amounts accrued by
employees participating in the Strategic Partner Plan, determined on the basis of improved same
store sale



29









 







performance and other criteria set forth in the Strategic Partner Plan and vested as set
forth in the Strategic Partner Plan.



     “Subordinated Debt” shall mean any Indebtedness incurred by any Credit Party which by
its terms is specifically subordinated in right of payment to the prior payment of the Credit Party
Obligations and contains subordination and other terms acceptable to the Administrative Agent.



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



     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline
Committed Amount.



     “Swingline Committed Amount” shall mean the amount of the Swingline Lender’s Swingline
Commitment as specified in Section 2.4(a).



     “Swingline Exposure” means, with respect to any Revolving Lender, an amount equal to
the Pro Rata Share of such Lender multiplied by the principal amount of outstanding Swingline
Loans.



     “Swingline Lender” shall mean Wells Fargo and any successor swingline lender.



     “Swingline Loan” shall have the meaning set forth in Section 2.4(a).



     “Swingline Note” shall mean the promissory note of the Borrower in favor of the
Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.4(d), as such
promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to
time.



     “Target” shall have the meaning specified in the definition of “Permitted Acquisition”
set forth in this Section 1.1.



     “Tax Exempt Certificate” shall have the meaning set forth in Section 2.17.



     “Taxes” shall have the meaning set forth in Section 2.17.



     “Term Loan” shall have the meaning set forth in Section 2.2(a).



     “Term Loan Commitment” shall mean, with respect to each Term Loan Lender, the
commitment of such Term Loan Lender to make its portion of the Term Loan on the Closing Date in the
principal amount set forth opposite such Lender’s name under the heading “Term Loan Commitment” on
Schedule 1.1(a) hereto or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.



     “Term Loan Committed Amount” shall have the meaning set forth in Section 2.2(a).



30









 





     “Term Loan Facility” shall have the meaning set forth in Section 2.2(a).



     “Term Loan Lender” shall mean a Lender holding a Term Loan Commitment and/or a portion
of the outstanding Term Loan.



     “Term Loan Note” or “Term Loan Notes” shall mean the promissory notes of the
Borrower (if any) in favor of any of the Term Loan Lenders evidencing the portion of the Term Loan
provided by any such Term Loan Lender pursuant to Section 2.2(d), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated, amended and restated,
supplemented, extended, renewed or replaced from time to time.



     “Trademark License” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right to use any Trademark, including, without limitation, any
thereof referred to in Schedule 3.14 to this Credit Agreement.



     “Trademarks” shall mean (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, service marks, elements of package or trade dress
of goods or services, logos and other source or business identifiers, together with the goodwill
associated therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, including, without limitation,
any thereof referred to in Schedule 3.14 to this Credit Agreement, and (b) all renewals
thereof including, without limitation, any thereof referred to in Schedule 3.14.



     “Tranche” shall mean the collective reference to (a) LIBOR Rate Loans whose Interest
Periods begin and end on the same day and (b) Alternate Base Rate Loans made on the same day.



     “Transaction Costs” shall mean all one-time legal, accounting, consulting,
professional, investment banking and other related fees and expenses incurred by the Credit Parties
in connection with the Transactions



     “Transactions” shall mean the closing of this Agreement and the other Credit
Documents, the closing of the Initial Public Offering on or prior to the Closing Date, the
refinancing of existing Indebtedness of the Borrower and the other transactions contemplated hereby
to occur in connection with such closing and Initial Public Offering (including, without
limitation, the initial borrowings under the Credit Documents and the payment of fees and expenses
in connection with all of the foregoing).



     “Transfer Effective Date” shall have the meaning set forth in each Assignment and
Assumption.



     “Type” shall mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR
Rate Loan, as the case may be.



     “UCC” shall mean the Uniform Commercial Code from time to time in effect in any
applicable jurisdiction.



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



31









 





     “Wells Fargo” shall mean Wells Fargo Bank, National Association, a national banking
association, together with its successors and/or assigns.



     “WFS” shall mean Wells Fargo Securities, LLC, together with its successors and
assigns.



     “Works” shall mean all works which are subject to copyright protection pursuant to
Title 17 of the United States Code.



     Section 1.2 Other Definitional Provisions.




     (a) Unless otherwise specified therein, all terms defined in this Credit Agreement
shall have the defined meanings when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant hereto.




     (b) The words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Credit Agreement shall refer to this Credit Agreement as a whole and not to any
particular provision of this Credit Agreement, and Section, subsection, Schedule and Exhibit
references are to this Credit Agreement unless otherwise specified.




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




     (d) Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall
be deemed to be followed by the phrase “without limitation.” The word “will” shall be
construed to have the same meaning and effect as the word “shall.” Unless the context
requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, supplemented, amended and restated or
otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any Person shall be construed
to include such Person’s successors and assigns, (iii) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (iv) any reference to any law or regulation
herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, (v) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights
and (vi) all terms defined in this Agreement shall have the defined meanings when used in
any other Credit Document or any certificate or other document made or delivered pursuant
hereto.



     Section 1.3 Accounting Terms.




     (a) Generally. Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in accordance with
GAAP applied on a basis consistent with the most recent audited Consolidated financial
statements of the Borrower delivered to the Lenders.




     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Credit Document, and
either the Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the



32









 







Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so amended, (i) such
ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide
to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP. The Borrower shall deliver to the Administrative
Agent and each Lender at the same time as the delivery of any annual or quarterly financial
statements given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting principles
employed in the preparation of such financial statements from those applied in the most
recently preceding quarterly or annual financial statements as to which no objection shall
have been made in accordance with the provisions above and (ii) a reasonable estimate of the
effect on the financial statements on account of such changes in application.




     (c) Financial Covenant Calculations. The parties hereto acknowledge and agree
that, for purposes of all calculations made in determining compliance for any applicable
period with the financial covenants set forth in Section 5.9 (including, without limitation
for the purposes of the definitions of “Applicable Percentage” and “Pro Forma Basis” set
forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income
statement items and other balance sheet items (whether positive or negative) attributable to
the Target acquired in such transaction shall be included in such calculations to the extent
relating to such applicable period, subject to adjustments mutually acceptable to the
Borrower and the Administrative Agent, and (B) Indebtedness of a Target which is retired in
connection with the Acquisition or any Permitted Acquisition shall be excluded from such
calculations and deemed to have been retired as of the first day of such applicable period
and (ii) after any Asset Disposition permitted by Section 6.4(a)(vi), (A) income statement
items, cash flow statement items and other balance sheet items (whether positive or
negative) attributable to the property or assets disposed of shall be excluded in such
calculations to the extent relating to such applicable period, subject to adjustments
mutually acceptable to the Borrower and the Administrative Agent (after consultation with
the Lenders) and (B) Indebtedness that is repaid with the proceeds of such Asset Disposition
shall be excluded from such calculations and deemed to have been repaid as of the first day
of such applicable period.



     Section 1.4 Time References.



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




     Section 1.5 Execution of Documents.



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





33









 








ARTICLE II




THE LOANS; AMOUNT AND TERMS



     Section 2.1 Revolving Loans.




     (a) Revolving Commitment. During the Commitment Period, subject to the terms
and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans
in
Dollars (“Revolving Loans”) to the Borrower from time to time in an aggregate
principal amount of up to FORTY MILLION DOLLARS ($40,000,000) (as such amount may be
increased from time to time as provide in Section 9.1(c) and reduced from time to time as
provided in Section 2.6, the “Revolving Committed Amount”) for the purposes
hereinafter set forth (such facility, the “Revolving Facility”); provided,
however, that after giving effect to any Revolving Loan (i) with regard to each
Revolving Lender individually, such Revolving Lender’s Revolving Exposure shall not exceed
its Revolving Commitment and (ii) with regard to the Revolving Lenders collectively, the
Aggregate Revolving Exposure shall not exceed Revolving Committed Amount then in effect.
Revolving Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a
combination thereof, as the Borrower may request, and may be repaid and reborrowed in
accordance with the provisions hereof; provided, however, that the Revolving
Loans made on the Closing Date, or on any of the three (3) Business Days immediately
following the Closing Date, may only consist of Alternate Base Rate Loans unless the
Borrower executes and delivers a funding indemnity letter, substantially in the form of
Exhibit 2.1(a), not less than three (3) Business Days prior to the Closing Date.
LIBOR Rate Loans shall be made by each Revolving Lender at its LIBOR Lending Office and
Alternate Base Rate Loans at its Domestic Lending Office.




     (b) Revolving Loan Borrowings.




     (i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by delivering a written Notice of Borrowing (or telephone notice promptly
confirmed in writing by delivery of a written Notice of Borrowing, which delivery
may be by fax) to the Administrative Agent not later than 11:00 A.M. on the Business
Day prior to the date of the requested borrowing in the case of Alternate Base Rate
Loans, and on the third Business Day prior to the date of the requested borrowing in
the case of LIBOR Rate Loans. Each such Notice of Borrowing shall be irrevocable
and shall specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate principal
amount to be borrowed and (D) whether the borrowing shall be comprised of Alternate
Base Rate Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans
are requested, the Interest Period(s) therefor. If the Borrower shall fail to
specify in any such Notice of Borrowing (1) an applicable Interest Period in the
case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for an
Interest Period of one month, or (2) the Type of Revolving Loan requested, then such
notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder.
The Administrative Agent shall give notice to each Revolving Lender promptly upon
receipt of each Notice of Borrowing, the contents thereof and each such Revolving
Lender’s share thereof.




     (ii) Minimum Amounts. Each Revolving Loan that is made as an Alternate
Base Rate Loan shall be in a minimum aggregate amount of $500,000 and integral
multiples of $100,000 in excess thereof (or the remaining amount of the Revolving
Committed Amount, if less). Each Revolving Loan that is made as a LIBOR Rate Loan



34









 







shall be in a minimum aggregate amount of $1,000,000 and integral multiples of
$500,000 in excess thereof (or the remaining amount of the Revolving Committed
Amount, if less).




     (iii) Advances. Each Revolving Lender will make its Pro Rata Share of
each Revolving Loan borrowing available to the Administrative Agent for the account
of the Borrower at the office of the Administrative Agent specified in Section 9.2,
or at such other office as the Administrative Agent may designate in writing, upon
reasonable
advance notice by 1:00 P.M. on the date specified in the applicable Notice of
Borrowing, in Dollars and in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the books of such
office (or such other account that the Borrower may designate in writing to the
Administrative Agent) with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as received by the
Administrative Agent. The Administrative Agent shall not be obligated to disburse
the portion of the proceeds of any Revolving Loan requested pursuant to this Section
for which any Lender is responsible to the extent that such Lender has not made
available to the Administrative Agent its Pro Rata Share of such Revolving Loan.




     (c) Repayment. Subject to the terms of this Credit Agreement, Revolving Loans
may be borrowed, repaid and reborrowed during the Commitment Period subject to Section
2.7(a). The principal amount of all Revolving Loans shall be due and payable in full on the
Maturity Date, unless accelerated sooner pursuant to Section 7.2.




     (d) Interest. Subject to the provisions of Section 2.8, Revolving Loans shall
bear interest as follows:




     (i) Alternate Base Rate Loans. During such periods as Revolving Loans
shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan
shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate
plus the Applicable Percentage; and




     (ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a
per annum rate equal to the sum of the LIBOR Rate plus the Applicable
Percentage.



Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.





     (e) Revolving Notes. The Borrower’s obligation to pay each Revolving Lender’s
Revolving Loans shall be evidenced by this Agreement and, upon such Lender’s request, by a
Revolving Note made payable to such Lender in substantially the form of Exhibit
2.1(e). The Borrower covenants and agrees to pay the Revolving Loans in accordance with
the terms of this Agreement.



     Section 2.2 Term Loan.




     (a) Term Loan. Subject to the terms and conditions hereof and in reliance upon
the representations and warranties set forth herein, each Term Loan Lender severally, but
not jointly, agrees to make available to the Administrative Agent on the Closing Date its
portion in an amount not to exceed such Lender’s Term Loan Commitment of a term loan in
Dollars (the



35









 







“Term Loan”) in the aggregate principal amount of FORTY FIVE MILLION
DOLLARS ($45,000,000) (the “Term Loan Committed Amount”) for the purposes
hereinafter set forth (such facility, the “Term Loan Facility”). Upon receipt by
the Administrative Agent of the proceeds of the Term Loan, such proceeds will then be made
available to the Borrower by the Administrative Agent by crediting the account of the
Borrower on the books of the office of the Administrative Agent specified in Section 9.2, or
at such other office as the Administrative Agent may designate in writing, with the
aggregate of such proceeds made available to the Administrative Agent by the Term Loan
Lenders and in like funds as received by the Administrative Agent (or by crediting
such other account(s) as directed by the Borrower). The Term Loan may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may
request; provided, however, that the Term Loan made on the Closing Date may
only consist of Alternate Base Rate Loans unless the Borrower executes and delivers a
funding indemnity letter, substantially in the form of Exhibit 2.1(a), not less than
three (3) Business Days prior to the Closing Date. LIBOR Rate Loans shall be made by each
Term Loan Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic
Lending Office. Amounts repaid or prepaid on the Term Loan may not be reborrowed.




     (b) Repayment of Term Loan. The principal amount of the Term Loan shall be
repaid in consecutive quarterly installments on the dates set forth below (provided,
however, that if such payment date is not a Business Day, such payment shall be due on the
preceding Business Day), unless accelerated sooner pursuant to Section 7.2:



	 	 	 	 	 
	Principal Amortization Payment Dates	 	Term Loan Principal Amortization Payment
	December 31, 2010

	 	$	562,500	 
	March 31, 2011

	 	$	562,500	 
	June 30, 2011

	 	$	562,500	 
	September 30, 2011

	 	$	562,500	 
	December 31, 2011

	 	$	562,500	 
	March 31, 2012

	 	$	562,500	 
	June 30, 2012

	 	$	562,500	 
	September 30, 2012

	 	$	562,500	 
	December 31, 2012

	 	$	1,125,000	 
	March 31, 2013

	 	$	1,125,000	 
	June 30, 2013

	 	$	1,125,000	 
	September 30, 2013

	 	$	1,125,000	 
	December 31, 2013

	 	$	1,125,000	 
	March 31, 2014

	 	$	1,125,000	 
	June 30, 2014

	 	$	1,125,000	 
	September 30, 2014

	 	$	1,125,000	 
	December 31, 2014

	 	$	6,300,000	 
	March 31, 2015

	 	$	6,300,000	 
	June 30, 2015

	 	$	6,300,000	 
	September 30, 2015

	 	$	6,300,000	 
	Maturity Date

	 	The remaining outstanding principal amount of
the Term Loan








     (c) Interest on the Term Loan. Subject to the provisions of Section 2.8, the
Term Loan shall bear interest as follows:



36









 






     (i) Alternate Base Rate Loans. During such periods as the Term Loan
shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan
shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate
plus the Applicable Percentage; and




     (ii) LIBOR Rate Loans. During such periods as the Term Loan shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a
per annum rate equal to the sum of the LIBOR Rate plus the Applicable
Percentage.




     Interest on the Term Loan shall be payable in arrears on each Interest Payment
Date.




     (d) Term Loan Notes. The Borrower’s obligation to pay each Term Loan Lender’s
portion of the Term Loan shall be evidenced by this Agreement and, upon such Term Loan
Lender’s request, by a Term Loan Note made payable to such Term Loan Lender in substantially
the form of Exhibit 2.2(d). The Borrower covenants and agrees to pay the Term Loan
in accordance with the terms of this Agreement.



     Section 2.3 Letter of Credit Subfacility.




     (a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, during the Commitment Period the Issuing Lender shall issue, and the
Revolving Lenders shall participate in, standby Letters of Credit for the account of the
Borrower from time to time upon request in a form reasonably acceptable to the Issuing
Lender; provided, however, that (i) the aggregate amount of LOC Obligations
shall not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the “LOC Committed
Amount”), (ii) with regard to each Revolving Lender individually, such Lender’s
Revolving Exposure shall not exceed such Lender’s Revolving Commitment, (iii) with regard to
the Revolving Lenders collectively, the Aggregate Revolving Exposure shall not exceed the
Revolving Committed Amount then in effect, (iv) all Letters of Credit shall be denominated
in Dollars and (v) Letters of Credit shall be issued for any lawful corporate purposes,
including in connection with workers’ compensation and other insurance programs. Except as
otherwise expressly agreed upon in writing by all the Revolving Lenders, no Letter of Credit
shall have an original expiry date more than twelve (12) months from the date of issuance;
provided, however, so long as no Default or Event of Default has occurred
and is continuing and subject to the other terms and conditions to the issuance of Letters
of Credit hereunder, the expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower or by operation of the terms
of the applicable Letter of Credit to a date not more than twelve (12) months from the date
of extension; provided, further, that no Letter of Credit, as originally
issued or as extended, shall have an expiry date extending beyond the date that is thirty
(30) days prior to the Maturity Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry date of each Letter of Credit shall be a Business
Day. Each Letter of Credit issued hereunder shall be in a minimum original face amount of
$100,000 or such lesser amount as is approved by the Issuing Lender.




     The Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if (1) such issuance violates any order, judgment or decree of any Governmental
Authority that by its terms enjoins or restrains the issuance of such Letter of Credit, (2)
any Applicable Law applicable to the Issuing Lender, the Administrative Agent or any Lender
or any request or directive (whether or not having the force of law) from any Governmental
Authority



37









 







with jurisdiction over it shall prohibit, or request that it refrain from, the
issuance of letters of credit generally, (3) such Letter of Credit in particular shall
impose upon it or any Lender with respect to such Letter of Credit any restriction or
reserve or capital requirement (for which the Issuing Lender or any Lender is not otherwise
compensated), or any unreimbursed loss, cost or expense which was not applicable or in
effect as of the Closing Date or (4) any Lender is at such time a Defaulting Lender, unless
the Issuing Lender has entered into arrangements satisfactory to
the Issuing Lender with the Borrower or such Lender to eliminate the Issuing Lender’s
risk with respect to such Lender’s LOC Obligations.




     Wells Fargo shall be the Issuing Lender on all Letters of Credit issued after the
Closing Date. The Existing Letters of Credit shall, as of the Closing Date, be deemed to
have been issued as “Letters of Credit” hereunder and subject to and governed by the terms
and conditions of this Credit Agreement.




     (b) Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted to the Issuing Lender at least five (5) Business Days prior to the
requested date of issuance. The Issuing Lender will promptly upon request provide to the
Administrative Agent for dissemination to the Revolving Lenders a detailed report specifying
the Letters of Credit which are then issued and outstanding and any activity with respect
thereto which may have occurred since the date of any prior report, and including therein,
among other things, the account party, the beneficiary, the face amount, expiry date as well
as any payments or expirations which may have occurred. The Issuing Lender will further
provide to the Administrative Agent promptly upon request copies of the Letters of Credit.
The Issuing Lender will provide to the Administrative Agent promptly upon request a summary
report of the nature and extent of LOC Obligations then outstanding.




     (c) Participations. Each Revolving Lender (i) on the Closing Date with respect
to the Existing Letters of Credit and (ii) upon issuance of any Letter of Credit shall be
deemed to have purchased without recourse a risk participation from the Issuing Lender in
such Letter of Credit and the obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its Pro Rata Share of the Issuing Lender’s
obligations under such Letter of Credit and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the
Issuing Lender therefor and discharge when due, its Pro Rata Share of the obligations
arising under such Letter of Credit; provided that any Person that becomes a
Revolving Lender after the Closing Date shall be deemed to have purchased a Participation
Interest in all outstanding Letters of Credit on the date it becomes a Lender hereunder and
any Letter of Credit issued on or after such date, in each case in accordance with the
foregoing terms. Without limiting the scope and nature of each Revolving Lender’s
participation in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any LOC Document, each such Revolving Lender shall
pay to the Issuing Lender its Pro Rata Share of such unreimbursed drawing in same day funds
pursuant to and in accordance with the provisions of subsection (d) hereof. The obligation
of each Revolving Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event of Default
or any other occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.




     (d) Reimbursement. In the event of any drawing under any Letter of Credit, the
Issuing Lender will promptly notify the Borrower and the Administrative Agent. The Borrower
shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit if
notified



38









 







prior to 1:00 P.M. on a Business Day or, if after 1:00 P.M., on the following
Business Day (either with the proceeds of a Revolving Loan obtained hereunder or otherwise)
in same day funds as provided herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided herein, the unreimbursed amount of such drawing
shall automatically bear interest at a per annum rate equal to the Default Rate. Unless the
Borrower shall immediately notify the Issuing Lender and the Administrative Agent of its
intent to otherwise reimburse the
Issuing Lender, the Borrower shall be deemed to have requested a Mandatory LOC
Borrowing in the amount of the drawing as provided in subsection (e) hereof, the proceeds of
which will be used to satisfy the reimbursement obligations. The Borrower’s reimbursement
obligations hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of set-off, counterclaim or defense to payment the Borrower may
claim or have against the Issuing Lender, the Administrative Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit. The
Administrative Agent will promptly notify the other Revolving Lenders of the amount of any
unreimbursed drawing and each Revolving Lender shall promptly pay to the Administrative
Agent for the account of the Issuing Lender, in Dollars and in immediately available funds,
the amount of such Revolving Lender’s Pro Rata Share of such unreimbursed drawing. Such
payment shall be made on the Business Day such notice is received by such Revolving Lender
from the Issuing Lender if such notice is received at or before 2:00 P.M., otherwise such
payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day
such notice is received. If such Revolving Lender does not pay such amount to the
Administrative Agent for the account of the Issuing Lender in full upon such request, such
Revolving Lender shall, on demand, pay to the Administrative Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from the date of such drawing
until such Revolving Lender pays such amount to the to the Administrative Agent for the
account of Issuing Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a
rate equal to the Alternate Base Rate. Each Revolving Lender’s obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to receive the same,
shall be absolute and unconditional, shall not be affected by any circumstance whatsoever
and without regard to the termination of this Credit Agreement or the Commitments hereunder,
the existence of a Default or Event of Default or the acceleration of the Obligations
hereunder and shall be made without any offset, abatement, withholding or reduction
whatsoever.




     (e) Repayment with Revolving Loans. On any day on which the Borrower shall
have requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing
under a Letter of Credit, the Administrative Agent shall give notice to the Revolving
Lenders that a Revolving Loan has been requested or deemed requested in connection with a
drawing under a Letter of Credit, in which case a Revolving Loan borrowing comprised
entirely of Alternate Base Rate Loans (each such borrowing, a “Mandatory LOC
Borrowing”) shall be made (without giving effect to any termination of the Commitments
pursuant to Section 7.2) pro rata based on each Revolving Lender’s
respective Pro Rata Share (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the respective LOC Obligations. Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans on the day such notice is received by
the Revolving Lenders from the Administrative Agent if such notice is received at or before
2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day
next succeeding the day such notice is received, in each case notwithstanding (i)
the amount of Mandatory LOC Borrowing may not comply with the minimum amount for borrowings
of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in



39









 







Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure for any such request or deemed request for Revolving Loan to be made by the
time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or
(vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may
have been drawn upon. In the event that any Mandatory LOC Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation, as a result of
the occurrence of a
Bankruptcy Event), then each such Revolving Lender hereby agrees that it shall
forthwith fund its Participation Interests in the outstanding LOC Obligations on the
Business Day such notice to fund is received by such Revolving Lender from the
Administrative Agent if such notice is received at or before 2:00 P.M., otherwise such
payment shall be made at or before 12:00 Noon on the Business Day next succeeding the
Business Day such notice is received;; provided, further, that in the event
any Revolving Lender shall fail to fund its Participation Interest as required herein, then
the amount of such Revolving Lender’s unfunded Participation Interest therein shall
automatically bear interest payable by such Revolving Lender to the Administrative Agent for
the account of the Issuing Lender upon demand, at the rate equal to, if paid within two (2)
Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal
to the Alternate Base Rate.




     (f) Modification, Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new Letter of Credit hereunder.




     (g) ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Lender and
the Borrower, when a Letter of Credit is issued, (i) the rules of the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply to each
standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce at
the time of issuance, shall apply to each commercial Letter of Credit.




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




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




     (j) Cash Collateral. At any point in time in which there is a Defaulting
Lender, the Issuing Lender, to the extent permitted under the terms of Section 2.19, may
require the Borrower to Cash Collateralize the LOC Obligations in accordance with Section
2.19.



     Section 2.4 Swingline Loan Subfacility.




     (a) Swingline Commitment. During the Commitment Period, subject to the terms
and conditions hereof, the Swingline Lender, in its individual capacity, may, in its
discretion and in reliance upon the agreements of the other Lenders set forth in this
Section 2.4, make certain



40









 







revolving credit loans to the Borrower (each a “Swingline
Loan” and, collectively, the “Swingline Loans”) for the purposes hereinafter set
forth; provided, however, (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed TEN MILLION DOLLARS ($10,000,000) (the
“Swingline Committed Amount”), (ii) with regard to each Revolving Lender
individually (other than the Swingline Lender in its capacity as such), such Revolving
Lender’s Revolving Exposure shall not exceed its Revolving Commitment and (iii)
with regard to the Revolving Lenders collectively, the Aggregate Revolving Exposure
shall not exceed Revolving Committed Amount then in effect. Swingline Loans hereunder may
be repaid and reborrowed in accordance with the provisions hereof.




     (b) Swingline Loan Borrowings.




     (i) Notice of Borrowing and Disbursement. Upon receiving a Notice of
Borrowing from the Borrower not later than 2:00 P.M. on any Business Day requesting
that a Swingline Loan be made, the Swingline Lender may make Swingline Loans
available to the Borrower on the same Business Day such request is received by the
Administrative Agent. Swingline Loan borrowings hereunder shall be made in minimum
amounts of $100,000 (or the remaining available amount of the Swingline Committed
Amount if less) and in integral amounts of $100,000 in excess thereof.
Notwithstanding anything to the contrary contained herein, the Swingline Lender
shall not at any time be obligated to make any Swingline Loan hereunder if any
Lender is at such time a Defaulting Lender, unless the Swingline Lender has entered
into arrangements satisfactory to the Swingline Lender with the Borrower or such
Lender to eliminate the Swingline Lender’s risk with respect to such Lender’s
obligations in respect of the Swingline Commitment.




     (ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall
be due and payable on the Maturity Date. The Swingline Lender may, at any time, in
its sole discretion, by written notice to the Borrower and the Administrative Agent,
demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in
which case the Borrower shall be deemed to have requested a Revolving Loan borrowing
comprised entirely of Alternate Base Rate Loans in the amount of such Swingline
Loans; provided, however, that, in the following circumstances, any
such demand shall also be deemed to have been given one Business Day prior to each
of (A) the Maturity Date, (B) the occurrence of any Bankruptcy Event, (C) upon
acceleration of the Obligations hereunder, whether on account of a Bankruptcy Event
or any other Event of Default, and (D) the exercise of remedies in accordance with
the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on
account of any such deemed request therefor as provided herein being hereinafter
referred to as “Mandatory Swingline Borrowing”). Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans promptly upon any such
request or deemed request on account of each Mandatory Swingline Borrowing in the
amount and in the manner specified in the preceding sentence on the date such notice
is received by the Revolving Lenders from the Administrative Agent if such notice is
received at or before 2:00 P.M., otherwise such payment shall be made at or before
12:00 P.M. on the Business Day next succeeding the date such notice is received
notwithstanding (1) the amount of Mandatory Swingline Borrowing may not
comply with the minimum amount for borrowings of Revolving Loans otherwise required
hereunder, (2) whether any conditions specified in Section 4.2 are then satisfied,
(3) whether a Default or an Event of Default then exists, (4) failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise
required in Section 2.1(b)(i), (5) the date of such Mandatory Swingline



41









 







Borrowing,
or (6) any reduction in the Revolving Committed Amount or termination of the
Revolving Commitments immediately prior to such Mandatory Swingline Borrowing or
contemporaneously therewith. In the event that any Mandatory Swingline Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date
the Mandatory Swingline Borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding Swingline
Loans as shall be necessary to cause each such Revolving Lender to share in such
Swingline Loans ratably based upon its respective Pro Rata Share (determined before
giving effect to any termination of the Commitments pursuant to Section 7.2);
provided that (x) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the respective
participation is purchased, and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Revolving Lender shall be
required to pay to the Swingline Lender interest on the principal amount of such
participation purchased for each day from and including the day upon which the
Mandatory Swingline Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Swingline Borrowing, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base Rate. The
Borrower shall have the right to repay the Swingline Loan in whole or in part from
time to time in accordance with Section 2.7(a).




     (c) Interest on Swingline Loans. Subject to the provisions of Section 2.8,
Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate
plus the Applicable Percentage for Revolving Loans that are Alternate Base Rate
Loans. Interest on Swingline Loans shall be payable in arrears on each Interest Payment
Date.




     (d) Swingline Note. The Swingline Loans shall be evidenced by this Agreement
and, upon request of the Swingline Lender, by a duly executed promissory note of the
Borrower in favor of the Swingline Lender in the original amount of the Swingline Committed
Amount and substantially in the form of Exhibit 2.4(d). The Borrower covenants and
agrees to pay the Swingline Loans in accordance with the terms of this Agreement.




     (e) Cash Collateral. At any point in time in which there is a Defaulting
Lender, the Swingline Lender may, to the extent permitted under the terms of Section 2.19,
require the Borrower to Cash Collateralize the outstanding Swingline Loans in accordance
with Section 2.19.



     Section 2.5 Fees.




     (a) Commitment Fee. Subject to Section 2.20, in consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit
of the Revolving Lenders, a commitment fee (the “Commitment Fee”) in an amount equal
to the Applicable Percentage per annum on the average daily unused amount of the Revolving
Committed Amount. For purposes of computation of the Commitment Fee, LOC Obligations shall
be considered usage of the Revolving Committed Amount but Swingline Loans shall not be
considered usage of the Revolving Committed Amount. The Commitment Fee shall be payable on
the last Business Day of each calendar quarter, commencing with the first such date to occur
after the Closing Date, and on the Maturity Date (and, if applicable, thereafter on demand).
The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in
the



42









 







Applicable Percentage during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Percentage separately for each period during such quarter that
such Applicable Percentage was in effect.




     (b) Letter of Credit Fees. Subject to Section 2.20, the Borrower agrees to pay
to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a fee (the
“Letter of
Credit Fee”) equal to the Applicable Percentage for Revolving Loans that are
LIBOR Rate Loans per annum on the average daily maximum amount available to be drawn under
each Letter of Credit from the date of issuance to the date of expiration. The Letter of
Credit Fee shall be payable quarterly in arrears on the last Business Day of each calendar
quarter commencing with the first such date to occur after the Closing Date, and on the
Maturity Date (and, if applicable, thereafter on demand).




     (c) Issuing Lender Fees. In addition to the Letter of Credit Fees payable
pursuant to subsection (b) hereof:




     (i) the Borrower shall pay to the Issuing Lender for its own account, without
sharing by the other Lenders, the reasonable and customary charges from time to time
of the Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit
(collectively, the “Issuing Lender Fees”); and




     (ii) the Issuing Lender may charge, and retain for its own account without
sharing by the other Lenders, an additional facing fee (the “Letter of Credit
Facing Fee”) of 0.125% per annum on the average daily maximum amount available
to be drawn under each such Letter of Credit issued by it. The Letter of Credit
Facing Fee shall be payable quarterly in arrears on the last Business Day of each
calendar quarter commencing with the first such date to occur after the Closing
Date, and on the Maturity Date (and, if applicable, thereafter on demand).




     (d) Administrative Fee. The Borrower agrees to pay to the Administrative Agent
the annual administrative fee as described in the Fee Letters.



     Section 2.6 Commitment Reductions.




     (a) Voluntary Reductions. The Borrower shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at any time or from
time to time upon not less than five (5) Business Days’ prior written notice to the
Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of each
such termination or reduction, which notice shall specify the effective date thereof and the
amount of any such reduction which shall be in a minimum amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof and shall be irrevocable and effective upon receipt
by the Administrative Agent; provided that no such reduction or termination shall be
permitted if after giving effect thereto, and to any prepayments of the Revolving Loans made
on the effective date thereof, the Aggregate Revolving Exposure would exceed the Revolving
Committed Amount then in effect. Any reduction in the Revolving Committed Amount shall be
applied to the Revolving Commitment of each Revolving Lender in according to its Pro Rata
Share.




     (b) LOC Committed Amount. If the Revolving Committed Amount is reduced below
the then current LOC Committed Amount, the LOC Committed Amount shall



43









 







automatically be
reduced by an amount such that the LOC Committed Amount equals the Revolving Committed
Amount.




     (c) Swingline Committed Amount. If the Revolving Committed Amount is reduced
below the then current Swingline Committed Amount, the Swingline Committed Amount shall
automatically be reduced by an amount such that the Swingline Committed Amount equals the
Revolving Committed Amount.




     (d) Maturity Date. The Revolving Commitments, the Swingline Commitment and the
LOC Commitment shall automatically terminate on the Maturity Date.




     (e) Term Loan Commitments. The aggregate Term Loan Commitments shall be
automatically and permanently reduced to zero upon the making of the Term Loan on the
Closing Date.



     Section 2.7 Prepayments.




     (a) Optional Prepayments. The Borrower shall have the right to prepay the Term
Loans and repay the Revolving Loans and Swingline Loans in whole or in part from time to
time as the Borrower may elect; provided, however, that each partial
prepayment or repayment of (i) Revolving Loans and the Term Loan shall be in a minimum
principal amount of $1,000,000 and integral multiples of $500,000 in excess thereof and (ii)
Swingline Loans shall be in a minimum principal amount of $100,000 and integral multiples of
$100,000 in excess thereof (or the remaining outstanding principal amount). The Borrower
shall give at least three (3) Business Days’ (but not more than five (5) Business Days’)
irrevocable notice of prepayment in the case of LIBOR Rate Loans and at least one (1)
Business Day’s (but not more than five (5) Business Days’) irrevocable notice in the case of
Alternate Base Rate Loans, to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable). To the extent that the Borrower elects to prepay the Term
Loans, amounts prepaid under this Section 2.7(a) shall be (i) applied to the remaining
amortization payments thereof on a pro rata basis and (ii) applied to the Term Loans of the
Term Loan Lenders in accordance with their respective Pro Rata Shares. To the extent the
Borrower elects to repay the Revolving Loans and/or Swingline Loans, amounts prepaid under
this Section shall be applied to the Revolving Loans and/or Swingline Loans, as applicable
of the Revolving Lenders in accordance with their respective Pro Rata Shares. Within the
foregoing parameters, prepayments under this Section 2.7(a) shall be applied first to
Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section shall be subject to Section 2.16, but
otherwise without premium or penalty. Interest on the principal amount prepaid shall be
payable on the next occurring Interest Payment Date that would have occurred had such loan
not been prepaid or, at the request of the Administrative Agent, interest on the principal
amount prepaid shall be payable on any date that a prepayment is made hereunder through the
date of prepayment.




     (b) Mandatory Prepayments.




     (i) Revolving Committed Amount. If at any time after the Closing Date,
the Aggregate Revolving Exposure exceeds the Revolving Committed Amount then in
effect, the Borrower shall immediately prepay the Revolving Loans and Swingline
Loans and (after all Revolving Loans and Swingline Loans have been repaid) Cash
Collateralize the LOC Obligations in an amount sufficient to eliminate such excess
(such prepayment to be applied as set forth in clause (vi) below).



44









 






     (ii) Excess Cash Flow. Within one hundred twenty (120) days after the
end of each fiscal year (commencing with the fiscal year ending on or around
December 31, 2011), if the Consolidated Total Leverage Ratio as of the end of such
fiscal year is equal to or greater than 1.50 to 1.00, the Borrower shall prepay the
Loans and/or Cash Collateralize the LOC Obligations in an amount equal to 50% of the
Excess Cash Flow earned during such prior fiscal year. If the Consolidated Total
Leverage Ratio as of the end of the applicable fiscal year is less than 1.50 to
1.00, no prepayment from Excess
Cash Flow will be required for such prior fiscal year. Any payments of Excess
Cash Flow shall be applied as set forth in clause (vi) below.




     (iii) Asset Dispositions. Promptly following any Asset Disposition (or
related series of Asset Dispositions), the Borrower shall prepay the Loans and/or
Cash Collateralize the LOC Obligations in an aggregate amount equal to 100% of the
Net Cash Proceeds derived from such Asset Disposition (or related series of Asset
Dispositions) (such prepayment to be applied as set forth in clause (vi) below);
provided, however, that such Net Cash Proceeds shall not be required
to be so applied (A) until the aggregate amount of the Net Cash Proceeds derived
from any Asset Dispositions in any fiscal year is equal to or greater than
$1,000,000 and (B) to the extent the Borrower delivers to the Administrative Agent a
certificate stating that it intends to use such Net Cash Proceeds to acquire fixed
or capital assets which will become Collateral in replacement of the disposed assets
within 270 days of the receipt of such Net Cash Proceeds, it being expressly agreed
that any Net Cash Proceeds not so reinvested within such 270 day period shall be
applied to prepay the Loans and/or cash collateralize the LOC Obligations
immediately thereafter.




     (iv) Debt Issuances. Immediately upon receipt by any Credit Party or
any of its Subsidiaries of proceeds from any Debt Issuance, the Borrower shall
prepay the Loans and/or Cash Collateralize the LOC Obligations in an aggregate
amount equal to 100% of the Net Cash Proceeds of such Debt Issuance (such prepayment
to be applied as set forth in clause (vi) below).




     (v) Recovery Event. To the extent Net Cash Proceeds received in
connection with any Recovery Event are not (i) committed (as evidenced by a binding
written contract) by the applicable Credit Party or Subsidiary within 180 days of
the receipt of such Net Cash Proceeds, to the repair or replacement of the
Properties (including the completion of any new Restaurant already in progress)
subject to such Recovery Event, and (ii) if so committed such repair or replacement
of the Properties subject to such Recovery Event shall not have been (A) commenced
within 365 days of and (B) completed within 545 days of, receipt of such Net Cash
Proceeds, the Borrower shall prepay the Loans and/or Cash Collateralize the LOC
Obligations in an aggregate amount equal to one hundred percent (100%) of such Net
Cash Proceeds (such prepayment to be applied as set forth in clause (vii) below);
provided that (A) the Net Cash Proceeds from Recovery Events in any fiscal
year shall not be required to be so applied until the aggregate amount of such Net
Cash Proceeds is equal to or greater than $1,000,000 for such fiscal year and (B)
after the occurrence and during the continuance of a Default or an Event of Default,
any Net Cash Proceeds received in connection with any Recovery Event shall be
promptly applied to prepay the Loans and/or cash collateralize the LOC Obligations
(such prepayment to be applied as set forth in clause (viii) below) and the Borrower
and its Subsidiaries shall not have the right to reinvest such Net Cash Proceeds.




45











 






     (iii) Application of Mandatory Prepayments. All amounts
required to be paid pursuant to this Section 2.7(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to
Section 2.7(b)(i), (1) first to the outstanding Swingline Loans,
(2) second to the outstanding Revolving Loans and (3) third
to Cash Collateralize the LOC Obligations; and




     (B) with respect to all amounts prepaid pursuant to
Sections 2.7(b)(ii) through (v), (1) first to the Term Loan (on a
pro rata basis across the remaining amortization payments set forth in
Section 2.2(b)), (2) second to outstanding Swingline Loans,
(3) third to the outstanding Revolving Loans (without a
corresponding permanent reduction in the Revolving Committed Amount) and
(4) fourth to Cash Collateralize the LOC Obligations. Within the
parameters of the applications set forth above, prepayments shall be applied
first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct
order of Interest Period maturities. All prepayments under this
Section 2.7(b) shall be subject to Section 2.16 and be accompanied by
interest on the principal amount prepaid through the date of prepayment.




     (c) Hedging Obligations Unaffected. Any repayment or prepayment made
pursuant to this Section 2.7 shall not affect the Borrower’s obligation to continue to make
payments under any Secured Hedging Agreement, which shall remain in full force and effect
notwithstanding such repayment or prepayment, subject to the terms of such Secured Hedging
Agreement.



     Section 2.8 Default Rate and Payment Dates.




     (a) If all or a portion of the principal amount of any Loan which is a LIBOR Rate
Loan shall not be paid when due or continued as a LIBOR Rate Loan in accordance with the
provisions of Section 2.9 (whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount of such Loan shall be converted to an Alternate Base Rate Loan
at the end of the Interest Period applicable thereto.




     (b) Upon the occurrence and during the continuance of (i) an Event of Default under
Section 7.1(a) or (f), the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents shall
automatically bear interest at a rate per annum which is equal to the Default Rate and (ii)
any other Event of Default hereunder, at the option of the Required Lenders, the principal
of and, to the extent permitted by law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall automatically bear interest, at a per
annum rate which is equal to the Default Rate, in each case from the date the Borrower
receives written notice that the Required Lenders desire to exercise such option until such
Event of Default is cured or waived in accordance with Section 9.1. Any default interest
owing under this Section 2.8(b) shall be due and payable on the earlier to occur of (x)
demand by the Administrative Agent (which demand the Administrative Agent shall make if
directed by the Required Lenders) and (y) the Maturity Date.




     (c) Interest on each Loan shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (b) of this Section 2.8
shall be payable from time to time on demand.



46









 





     Section 2.9 Conversion Options.




     (a) The Borrower may, in the case of Revolving Loans and the Term Loans, elect from
time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans or to continue LIBOR
Rate Loans by delivered a Notice of Conversion/Extension to the Administrative Agent at
least three Business Days’ prior to the proposed date of such conversion or extension. In
addition, the Borrower may elect from time to time to convert all or any portion of a LIBOR
Rate Loan to an Alternate Base Rate Loan by giving the Administrative Agent irrevocable
written notice thereof by 11:00 A.M. one (1) Business Date prior to the proposed date of
conversion. If the date upon which an Alternate Base Rate Loan is to be converted to a
LIBOR Rate Loan is not a Business Day, then such conversion shall be made on the next
succeeding Business Day and during the period from such last day of an Interest Period to
such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base
Rate Loan. LIBOR Rate Loans may only be converted to Alternate Base Rate Loans on the last
day of the applicable Interest Period. If the date upon which a LIBOR Rate Loan is to be
converted to an Alternate Base Rate Loan is not a Business Day, then such conversion shall
be made on the next succeeding Business Day and during the period from such last day of an
Interest Period to such succeeding Business Day such Loan shall bear interest as if it were
an Alternate Base Rate Loan. All or any part of outstanding Alternate Base Rate Loans may
be converted as provided herein; provided that (i) no Loan may be converted into a
LIBOR Rate Loan when any Event of Default has occurred and is continuing and (ii) partial
conversions shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. All or any part of outstanding LIBOR Rate Loans may be
converted as provided herein; provided that partial conversions shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.




     (b) Any LIBOR Rate Loans may be continued as such upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the notice
provisions contained in Section 2.9(a); provided, that no LIBOR Rate Loan may be
continued as such when any Default or Event of Default has occurred and is continuing, in
which case such Loan shall be automatically converted to an Alternate Base Rate Loan at the
end of the applicable Interest Period with respect thereto. If the Borrower shall fail to
give timely notice of an election to continue a LIBOR Rate Loan, or the continuation of
LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be automatically
converted to Alternate Base Rate Loans at the end of the applicable Interest Period with
respect thereto.



     Section 2.10 Computation of Interest and Fees.




     (a) Interest payable hereunder with respect to any Alternate Base Rate Loan based
on the Prime Rate or LIBOR shall be calculated on the basis of a year of 365 days (or 366
days, as applicable) for the actual days elapsed. All other fees, interest and all other
amounts payable hereunder shall be calculated on the basis of a 360 day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and
the Lenders of each determination of a LIBOR Rate on the Business Day of the determination
thereof. Any change in the interest rate on a Loan resulting from a change in the Alternate
Base Rate shall become effective as of the opening of business on the day on which such
change in the Alternate Base Rate shall become effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of the effective date and the amount
of each such change.




     (b) Each determination of an interest rate by the Administrative Agent pursuant to
any provision of this Credit Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative Agent shall, at the
request of the



47









 






Borrower, deliver to the Borrower a statement showing the computations used by the
Administrative Agent in determining any interest rate.




     (c) It is the intent of the Lenders and the Credit Parties to conform to and
contract in strict compliance with applicable usury law from time to time in effect. All
agreements between the Lenders and the Credit Parties are hereby limited by the provisions
of this subsection which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way, nor in any event or
contingency (including but not limited to prepayment or acceleration of the maturity of any
Obligation), shall the interest taken, reserved, contracted for, charged, or received under
this Credit Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in excess of the
maximum nonusurious amount, any such construction shall be subject to the provisions of this
paragraph and such interest shall be automatically reduced to the maximum nonusurious amount
permitted under applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart from this provision, be in
excess of the maximum nonusurious amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the reduction of the principal
amount owing on the Loans and not to the payment of interest, or refunded to the Borrower or
the other payor thereof if and to the extent such amount which would have been excessive
exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans
or any other Indebtedness evidenced by any of the Credit Documents does not include the
right to receive any interest which has not otherwise accrued on the date of such demand,
and the Lenders do not intend to charge or receive any unearned interest in the event of
such demand. All interest paid or agreed to be paid to the Lenders with respect to the
Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated,
and spread throughout the full stated term (including any renewal or extension) of the Loans
so that the amount of interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.



     Section 2.11 Pro Rata Treatment and Payments.




     (a) Allocation of Payments Prior to Exercise of Remedies. Each borrowing
of Revolving Loans and any reduction of the Revolving Commitments shall be made pro
rata according to the respective Pro Rata Shares of the Revolving Lenders. Unless
otherwise required by the terms of this Agreement, each payment under this Credit Agreement
shall be applied, first, to any fees then due and owing by the Borrower pursuant to
Section 2.5, second, to interest then due and owing hereunder and, third, to
principal then due and owing hereunder. Each payment on account of any fees pursuant to
Section 2.5 shall be made pro rata in accordance with the respective amounts
due and owing (except as to the Letter of Credit Facing Fees and the Issuing Lender Fees,
which shall be paid to the Issuing Lender). Each optional repayment and prepayment by the
Borrower on account of principal of and interest on the Revolving Loans and on the Term
Loans, as applicable, shall be applied to such Loans, as applicable, on a pro rata basis
and, to the extent applicable, in accordance with the terms of Section 2.7(a) hereof. Each
mandatory prepayment on account of principal of the Loans shall be applied to such Loans, as
applicable, in accordance with Section 2.7(b). All payments (including prepayments) to be
made by the Borrower on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in Section 2.17(b)) and shall be made
to the Administrative Agent for the account of the Lenders at the Administrative Agent’s
office specified on Section 9.2 in Dollars and in immediately available funds not later than
1:00 P.M. on the date when due. The



48









 






Administrative Agent shall distribute such payments to the Lenders entitled thereto
promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the LIBOR Rate Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and, with respect
to payments of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a LIBOR Rate Loan becomes due and payable on a day
other than a Business Day, such payment date shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the immediately
preceding Business Day.




     (b) Allocation of Payments After Exercise of Remedies Notwithstanding any
other provisions of this Agreement to the contrary, after the exercise of remedies (other
than the application of default interest pursuant to Section 2.8(b)) by the Administrative
Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically
terminate and the Loans (with accrued interest thereon) and all other amounts under the
Credit Documents (including without limitation the maximum amount of all contingent
liabilities under Letters of Credit) shall automatically become due and payable in
accordance with the terms of such Section), all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party Obligations or any other
amounts outstanding under the Credit Documents or in respect of the Collateral shall be paid
over or delivered as follows (irrespective of whether the following costs, expenses, fees,
interest, premiums, scheduled periodic payments or Credit Party Obligations are allowed,
permitted or recognized as a claim in any proceeding resulting from the occurrence of a
Bankruptcy Event):




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




     SECOND, to the payment of any fees owed to the Administrative Agent and the
Issuing Lender;




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




     FOURTH, to the payment of all of the Credit Party Obligations consisting of
accrued fees and interest, and including, with respect to any Secured Hedging
Agreement and any Secured Cash Management Agreement, any fees, premiums and
scheduled periodic payments due under such Secured Hedging Agreement or such Secured
Cash Management Agreement and any interest accrued thereon, respectively;




     FIFTH, to the payment of the outstanding principal amount of the Credit Party
Obligations, including the payment or Cash Collateralization of the outstanding LOC
Obligations and, with respect to any Secured Hedging Agreement or Secured Cash
Management Agreement, any breakage, termination or other payments due under such
Secured Hedging Agreement or such Secured Cash Management Agreement and any interest
accrued thereon, respectively;



49









 






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




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




     In carrying out the foregoing, (a) amounts received shall be applied in the numerical
order provided until exhausted prior to application to the next succeeding category;
(b) each of the Secured Parties shall receive an amount equal to its pro rata share (based
on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or
the outstanding obligations payable to such Hedging Agreement Provider bears to the
aggregate then outstanding Loans, LOC Obligations and obligations payable under all Secured
Hedging Agreements) of amounts available to be applied pursuant to clauses “THIRD,”
“FOURTH,” “FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for
distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the Administrative
Agent in a Cash Collateral account and applied (A) first, to reimburse the Issuing Lender
from time to time for any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types described in
clauses “FIFTH” and “SIXTH” above in the manner provided in this Section 2.11(b).
Notwithstanding the foregoing terms of this Section 2.11(b), only Collateral proceeds and
payments under the Guaranty with respect to Secured Hedging Agreements and Secured Cash
Management Agreements shall be applied to obligations under any Secured Hedging Agreement or
Secured Cash Management Agreement, respectively.



     Section 2.12 Non-Receipt of Funds by the Administrative Agent.




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



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




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




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




     (d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Term Loans and Revolving Loans, to fund participations in Letters of
Credit and Swingline Loans and to make payments pursuant to Section 9.5(c) are several and
not joint. The failure of any Lender to make any Loan, to fund any such participation or to
make any such payment under Section 9.5(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Loan, to purchase its
participation or to make its payment under Section 9.5(c).




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



     Section 2.13 Inability to Determine Interest Rate.



     Notwithstanding any other provision of this Credit Agreement, if (i) the Administrative Agent
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that, by reason of circumstances affecting the relevant market, reasonable and adequate
means do not exist for ascertaining the LIBOR Rate for such Interest Period, or (ii) the Required
Lenders shall reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders
of funding LIBOR Rate Loans that the Borrower has requested be outstanding as a single tranche
during such Interest Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least two (2) Business
Days prior to the first day of such Interest



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Period. Unless the Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such LIBOR Rate Loans,
any Loans that were requested to be made as LIBOR Rate Loans shall be made as Alternate Base Rate
Loans and any Loans that were requested to be converted into or continued as LIBOR Rate Loans shall
remain as or be converted into Alternate Base Rate Loans. Until any such notice has been withdrawn
by the Administrative Agent, no further Loans shall be made as, continued as, or converted into,
LIBOR Rate Loans for the Interest Periods so affected.




     Section 2.14 Illegality.



     Notwithstanding any other provision of this Credit Agreement, if any Change in Law shall make
it unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Credit Agreement or to obtain in the interbank eurodollar market through its
LIBOR Lending Office the funds with which to make such Loans, (a) such Lender shall promptly notify
the Administrative Agent and the Borrower thereof, (b) the commitment of such Lender hereunder to
make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which gave rise to the
suspension shall no longer exist, and (c) such Lender’s Loans then outstanding as LIBOR Rate Loans,
if any, shall be converted on the last day of the Interest Period for such Loans or within such
earlier period as required by law as Alternate Base Rate Loans. The Borrower hereby agrees to
promptly pay any Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by
such Lender in making any repayment in accordance with this Section including, but not limited to,
any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Rate Loans hereunder. A certificate (which certificate shall include a
description of the basis for the computation) as to any additional amounts payable pursuant to this
Section submitted by such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office) to avoid or to minimize any
amounts which may otherwise be payable pursuant to this Section; provided, however,
that such efforts shall not cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion to be material.



     Section 2.15 Requirements of Law.




     (a) If any Change in Law:




     (i) shall subject such Lender to any tax (other than Taxes covered by
Section 2.17) of any kind whatsoever with respect to any Letter of Credit, any
participation therein or any application relating thereto, any LIBOR Rate Loan made
by it, or change the basis of taxation of payments to such Lender in respect thereof
(except for changes in the rate of tax on the overall net income of such Lender);




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




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



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and the result of any of the foregoing is to increase the cost to such Lender of making or
maintaining LIBOR Rate Loans or the Letters of Credit or the participations therein or to
reduce any amount receivable hereunder or under any Note, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary
to compensate such Lender for such additional cost or reduced amount receivable which such
Lender reasonably deems to be material as determined by such Lender with respect to its
LIBOR Rate Loans or Letters of Credit. A certificate as to any additional amounts payable
and setting out in reasonable detail the determination thereof pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Domestic Lending Office or LIBOR Lending Office,
as the case may be) to avoid or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this Section; provided, however, that such
efforts shall not cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender to be material.




     (b) If any Lender shall have reasonably determined that any Change in Law regarding
capital adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank or
Governmental Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender’s or such corporation’s capital as a consequence
of its obligations hereunder to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance (taking into consideration
such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount
reasonably deemed by such Lender to be material, then from time to time, within fifteen (15)
days after demand by such Lender, the Borrower shall pay to such Lender such additional
amount as shall be certified by such Lender as being required to compensate it for such
reduction suffered from and after the date which is 180 days before the day such Lender
first notifies the Borrower thereof and requests compensation. Such a certificate as to any
additional amounts payable under this Section submitted by a Lender (which certificate shall
include a description of the basis for the computation and computation thereof in reasonable
detail), through the Administrative Agent, to the Borrower shall be conclusive absent
manifest error.




     (c) The agreements in this Section 2.15 shall survive the termination of this
Credit Agreement and payment of the Notes and all other amounts payable hereunder.



     Section 2.16 Indemnity.



     The Borrower hereby agrees to indemnify each Lender and to hold such Lender harmless from any
funding loss or expense which such Lender may sustain or incur as a consequence of (a) the failure
by the Borrower to pay the principal amount of or interest on any Loan by such Lender in accordance
with the terms hereof, (b) the failure of the Borrower to accept a borrowing after the Borrower has
given a notice in accordance with the terms hereof, (c) the failure of the Borrower to make any
prepayment after the Borrower has given a notice in accordance with the terms hereof, and/or
(d) the making by the Borrower of a prepayment of a Loan, or the conversion thereof, on a day which
is not the last day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its Loans hereunder. A certificate as to any
additional amounts payable pursuant to this Section submitted by any Lender, through the
Administrative Agent, to the Borrower (which certificate must be delivered to the Administrative
Agent within thirty days following such default, prepayment or conversion) shall be



53









 




conclusive in the absence of manifest error. The agreements in this Section shall survive
termination of this Credit Agreement and payment in full of the Credit Party Obligations.




     Section 2.17 Taxes.




     (a) All payments made by the Borrower hereunder or under any Note will be, except
as provided in Section 2.17(b), made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any Governmental Authority or by any
political subdivision or taxing authority thereof or therein with respect to such payments
(but excluding any tax imposed on or measured by the net income or profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is located or any
subdivision thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as “Taxes”). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due under this
Credit Agreement or under any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note. The Borrower
will furnish to the Administrative Agent as soon as practicable after the date the payment
of any Taxes is due pursuant to applicable law certified copies (to the extent reasonably
available and required by law) of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon
its written request, for the amount of any Taxes so levied or imposed and paid by such
Lender.




     (b) Each Foreign Lender agrees to deliver to the Borrower and the Administrative
Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Credit Agreement pursuant to Section 9.6 (unless the
respective Lender was already a Lender hereunder immediately prior to such assignment or
transfer), on the date of such assignment or transfer to such Lender, (i) if the Lender is a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN or W-8ECI (or successor
forms) certifying such Lender’s entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Credit Agreement and under
any Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A)
of the Code, either Internal Revenue Service Form W-8BEN or W-8ECI as set forth in clause
(i) above, or (x) a certificate in substantially the form of Exhibit 2.17 (any such
certificate, a “Tax Exempt Certificate”) and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form) certifying such
Lender’s entitlement to an exemption from United States withholding tax with respect to
payments of interest to be made under this Credit Agreement and under any Note. In
addition, each Lender agrees that it will deliver upon the Borrower’s request updated
versions of the foregoing, as applicable, whenever the previous certification has become
obsolete or inaccurate in any material respect, together with such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to payments under
this Credit Agreement and any Note. Notwithstanding anything to the contrary contained in
Section 2.17(a), but subject to the immediately succeeding sentence, (x) the Borrower shall
be entitled, to the extent it is required to do so by law, to deduct or withhold Taxes
imposed by the United States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the account of any
Foreign Lender for U.S. Federal income tax purposes to the extent that such Lender has not
provided to the Borrower U.S. Internal Revenue Service Forms



54









 






that establish a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 2.17(a) hereof to gross-up payments to
be made to a Lender in respect of Taxes imposed by the United States if (I) such Lender has
not provided to the Borrower the Internal Revenue Service Forms required to be provided to
the Borrower pursuant to this Section 2.17(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such Taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section 2.17, the
Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set
forth in Section 2.17(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the Closing Date (or
in the case of a Lender that is an assignee or transferee of an interest under this Credit
Agreement pursuant to Section 9.6 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), after the date of such
assignment or transfer to such Lender) in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of Taxes.




     Without limiting the obligations of the Lenders set forth above regarding delivery of
certain forms and documents to establish each Lender’s status for U.S. withholding tax
purposes, each Lender agrees promptly to deliver to the Administrative Agent or the
Borrower, as the Administrative Agent or the Borrower shall reasonably request, on or prior
to the Closing Date, and in a timely fashion thereafter, such other documents and forms
required by any relevant taxing authorities under the Requirements of Law of any other
jurisdiction, duly executed and completed by such Lender, as are required under such
Requirements of Law and which such Lender is able to lawfully complete and deliver, to
confirm such Lender’s entitlement to any available exemption from, or reduction of,
applicable withholding taxes in respect of all payments to be made to such Lender outside of
the U.S. by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in such other jurisdiction. Each Lender shall promptly
(i) notify the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such steps as shall
not be materially disadvantageous to it, in the sole judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its LIBOR Lending Office) to avoid any
requirement of applicable Requirements of Law of any such jurisdiction that the Borrower
make any deduction or withholding for taxes from amounts payable to such Lender.
Additionally, the Borrower shall promptly deliver to the Administrative Agent or any Lender,
as the Administrative Agent or such Lender shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms required by any
relevant taxing authorities under the Requirements of Law of any jurisdiction, duly executed
and completed by the Borrower, as are required to be furnished by such Lender or the
Administrative Agent under such Requirements of Law in connection with any payment by the
Administrative Agent or any Lender of Taxes or other Taxes, or otherwise in connection with
the Credit Documents, with respect to such jurisdiction.




     (c) Each Lender agrees to use reasonable efforts (including reasonable efforts to
change its Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or
to minimize any amounts which might otherwise be payable pursuant to this Section;
provided, however, that such efforts shall not cause the imposition on such
Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its
sole discretion to be material.



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     (d) If the Borrower pays any additional amount pursuant to this Section 2.17 with
respect to a Lender, such Lender shall use reasonable efforts to obtain a refund of tax or
credit against its tax liabilities on account of such payment; provided that such
Lender shall have no obligation to use such reasonable efforts if either (i) it is in an
excess foreign tax credit position or (ii) it believes in good faith, in its sole
discretion, that claiming a refund or credit would cause adverse tax consequences to it. In
the event that such Lender receives such a refund or credit, such Lender shall pay to the
Borrower an amount that such Lender reasonably determines is equal to the net tax benefit
obtained by such Lender as a result of such payment by the Borrower. In the event that no
refund or credit is obtained with respect to the Borrower’s payments to such Lender pursuant
to this Section 2.17, then such Lender shall upon request provide a certification that such
Lender has not received a refund or credit for such payments. Nothing contained in this
Section 2.17 shall require a Lender to disclose or detail the basis of its calculation of
the amount of any tax benefit or any other amount or the basis of its determination referred
to in the proviso to the first sentence of this Section 2.17 to the Borrower or any other
party.




     (e) The agreements in this Section 2.17 shall survive the termination of this
Credit Agreement and the payment of the Notes and all other amounts payable hereunder.



     Section 2.18 Indemnification; Nature of Issuing Lender’s Duties.




     (a) In addition to its other obligations under Section 2.4, the Borrower hereby
agrees to protect, indemnify, pay and save the Issuing Lender and each Revolving Lender
harmless from and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys’ fees) that the Issuing Lender or such
Revolving Lender may incur or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit or (ii) the failure of the Issuing Lender to honor a
drawing under a Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or Governmental Authority
(all such acts or omissions, herein called “Government Acts”).




     (b) As between the Borrower and the Issuing Lender and each Revolving Lender, the
Borrower shall assume all risks of the acts, omissions or misuse of any Letter of Credit by
the beneficiary thereof. Neither the Issuing Lender nor any Revolving Lender shall be
responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for and issuance
of any Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of
the beneficiary of a Letter of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for
any consequences arising from causes beyond the control of the Issuing Lender or any
Revolving Lender, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers
hereunder.




     (c) In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuing Lender or any Revolving



56









 






Lender, under or in connection with any Letter of Credit or the related certificates,
if taken or omitted in the absence of gross negligence or willful misconduct, shall not put
such Issuing Lender or such Revolving Lender under any resulting liability to the Borrower.
It is the intention of the parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Lender and each Revolving Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which risks are hereby
assumed by the Borrower, including, without limitation, any and all risks of the acts or
omissions, whether rightful or wrongful, of any Government Authority. The Issuing Lender
and the Revolving Lenders shall not, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Issuing Lender and the
Revolving Lenders.




     (d) Nothing in this Section 2.18 is intended to limit the reimbursement obligation
of the Borrower contained in Section 2.4(d) hereof. The obligations of the Borrower under
this Section 2.18 shall survive the termination of this Credit Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect
or impair the rights of the Issuing Lender and the Revolving Lenders to enforce any right,
power or benefit under this Credit Agreement.




     (e) Notwithstanding anything to the contrary contained in this Section 2.18, the
Borrower shall have no obligation to indemnify the Issuing Lender or any Revolving Lender in
respect of any liability incurred by the Issuing Lender or such Revolving Lender arising out
of the gross negligence or willful misconduct of the Issuing Lender (including action not
taken by the Issuing Lender or such Revolving Lender), as determined by a court of competent
jurisdiction or pursuant to arbitration.



     Section 2.19 Cash Collateral.



     At any time that there shall exist a Defaulting Lender, and to the extent such Defaulting
Lender’s LOC Obligations and its Swingline Exposure cannot be reallocated among the Non-Defaulting
Lenders in accordance with their respective Pro Rata Shares as provided in Section 2.20(a)(iv)
below, then within three (3) Business Days following the request of the Administrative Agent, the
Issuing Lender or the Swingline Lender, as applicable, the Borrower shall deliver Cash Collateral
to the Administrative Agent in an amount sufficient to cover all Fronting Exposure (after giving
effect to Section 2.20 and any Cash Collateral provided by such Defaulting Lender).




     (a) Grant of Security Interest. All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in blocked,
non-interest bearing deposit accounts with the Administrative Agent. The Borrower, and to
the extent provided by any Lender, such Lender, hereby grants to (and subjects to the
control of) the Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Lender and the Lenders (including the Swingline Lender), and agrees to maintain, a
first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral
may be applied pursuant to clause (b) below. If at any time the Administrative Agent
determines that Cash Collateral is subject to any right or claim of any Person other than
the Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured
thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral
in an amount sufficient to eliminate such deficiency.



57









 






     (b) Application. Notwithstanding anything to the contrary contained in
this Agreement, Cash Collateral provided under any of this Section or Section 2.20 in
respect of Letters of Credit or Swingline Loans, shall be held and applied to the
satisfaction of the specific LOC Obligations, Swingline Loans, Participation Interests
therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest
accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.




     (c) Release. Cash Collateral (or the appropriate portion thereof) provided
to reduce Fronting Exposure or other obligations shall be released promptly following (i)
the elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee)), or (ii) the Issuing Lender’s or Swingline Lender’s, as
applicable, good faith determination that there exists excess Cash Collateral;
provided, however, (A) that Cash Collateral furnished by or on behalf of a
Credit Party shall not be released during the continuance of a Default or an Event of
Default (and following application as provided in this Section may be otherwise applied in
accordance with Section 2.11), and (B) the Person providing Cash Collateral and the Issuing
Lender or Swingline Lender, as applicable, may agree that Cash Collateral shall not be
released but instead held to support future anticipated Fronting Exposure or other
obligations.



     Section 2.20 Defaulting Lenders.




     (a) Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:




     (i) Waivers and Amendments. Such Defaulting Lender’s right to
approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in the definition of Required Lenders and
Section 9.1.




     (ii) Reallocation of Payments. Any payment of principal, interest,
Fees (to the extent payable to such Defaulting Lender pursuant to Section
2.20(a)(iii)) or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article 7 or otherwise) shall be applied at such time or times as may be determined
by the Administrative Agent as follows: first, to the payment on a pro rata basis of
any amounts owing by such Defaulting Lender to the Administrative Agent, the Issuing
Lender and the Swingline Lender hereunder; second, if so determined by the
Administrative Agent or requested by the Issuing Lender or Swingline Lender, to be
held as Cash Collateral for future funding obligations of such Defaulting Lender in
respect of any Participation Interest in any Swingline Loan or Letter of Credit;
third, as the Borrower may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by
the Administrative Agent; fourth, if so determined by the Administrative Agent and
the Borrower, to be held in a non-interest bearing deposit account and released in
order to satisfy obligations of such Defaulting Lender to fund Loans and other
amounts under this Agreement; fifth, to the payment of any amounts owing to the
Lenders, the Issuing Lender or Swingline Lender as a result of any judgment of a
court of competent jurisdiction obtained by any Lender, the Issuing Lender or
Swingline Lender against such



58









 






Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; sixth, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement; and seventh, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if such payment
is a payment of the principal amount of any Loans or LOC Obligations in respect of
which such Defaulting Lender has not fully funded its Pro Rata Share, such payment
shall be applied solely to pay the Loans of, and LOC Obligations owed to, all
Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of
any Loans of, or LOC Obligations owed to, such Defaulting Lender. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied
(or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section shall be deemed paid to and redirected by such Defaulting
Lender, and each Lender irrevocably consents hereto.




     (iii) Defaulting Lender Fees.




     (A) Commitment Fees. A Defaulting Lender shall not be
entitled to receive any Commitment Fee for any period during which it is a
Defaulting Lender (and the Borrower shall not be required to pay any such
Commitment Fee that otherwise would have been required to have been paid to
such Defaulting Lender), except that such Defaulting Lender shall be
entitled to receive a Commitment Fee with respect to the sum of (1) the
outstanding amount of the Loans theretofore funded by such Defaulting
Lender, and (2) such Defaulting Lender’s Pro Rata Share of the stated amount
of Letters of Credit for which it has provided Cash Collateral pursuant to
Section 2.19 and Section 2.20.




     (B) Letter of Credit Fees. A Defaulting Lender shall not
be entitled to receive any Letter of Credit Fee for any period during which
it is a Defaulting Lender, except that a Defaulting Lender shall be entitled
to receive a Letter of Credit Fee with respect to each Letter of Credit or
portion thereof for which it has provided Cash Collateral pursuant to
Section 2.19 and Section 2.20. With respect to any Letter
of Credit Fee that a Defaulting Lender is not entitled to receive in
accordance with the terms of this Section, such Letter of Credit Fee shall
be paid to the non-Defaulting Lenders to the extent such Defaulting Lender’s
LOC Obligations have been reallocated to the Non-Defaulting Lenders in
accordance with clause (iv) below; provided that if any portion of
such Defaulting Lender’s LOC Obligations have not been reallocated to the
Non-Defaulting Lenders and have not been Cash Collateralized by the
Defaulting Lender (the “Exposed LOC Obligations”), the Letter of
Credit Fees corresponding to the Exposed LOC Obligations (1) shall not be
payable by the Borrower to the extent the Borrower has Cash Collateralized
such Exposed LOC Obligations and (2) shall be payable to the Issuing Lender
to the extent the Borrower has not Cash Collateralized such Exposed LOC
Obligations.




     (iv) Reallocation of Participations to Reduce Fronting Exposure.
All or any part of such Defaulting Lender’s LOC Obligations and its Swingline
Exposure shall automatically (effective on the day such Lender becomes a Defaulting
Lender) be reallocated among the Non-Defaulting Lenders in accordance with their
respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s
Revolving



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Commitment) but only to the extent that such reallocation does not cause the
aggregate Committed Funded Exposure of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Revolving Commitment.




     (v) Cash Collateral. If the reallocation described in clause (iv)
above cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any right or remedy available to it hereunder or under law, immediately
following notice by the Administrative Agent, the Issuing Lender or the Swingline
Lender, Cash Collateralize such Defaulting Lender’s LOC Obligations and its
Swingline Exposure (after giving effect to any partial reallocation pursuant to
clause (iv) above) in accordance with the procedures set forth in Section 2.19 for
so long as such LOC Obligations or Swingline Exposure are outstanding.




     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the
Swingline Lender and the Issuing Lender each agree in writing in their sole discretion that
a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include arrangements
with respect to any Cash Collateral), such Defaulting Lender will, to the extent applicable,
purchase that portion of outstanding Loans of the other Lenders or take such other actions
as the Administrative Agent may determine to be necessary to cause the Loans and funded and
unfunded Participation Interests to be held on a pro rata basis by the Lenders in accordance
with their Pro Rata Shares (without giving effect to Section 2.20(a)(iv)), whereupon such
Lender will cease to be a Defaulting Lender; provided that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change
hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim
of any party hereunder arising from such Lender’s having been a Defaulting Lender.




     (c) Termination of Commitment. The Borrower may terminate the entire
Commitment of a Defaulting Lender to the extent there are no Loans or Letters of Credit
outstanding at the time of such termination upon not less than ten Business Days’ prior
notice to the Administrative Agent (which shall promptly notify the Lenders thereof);
provided that (A) no Event of Default shall have occurred and be continuing, and (B)
such termination shall not be deemed to be a waiver or release of any claim the Credit
Parties, the Administrative Agent, the Issuing Lender, the Swingline Lender or any Lender
may have against such Defaulting Lender.



ARTICLE III




REPRESENTATIONS AND WARRANTIES



     To induce the Lenders to enter into this Credit Agreement and to make the Extensions of Credit
herein provided for, each of the Credit Parties hereby represents and warrants to the
Administrative Agent and to each Lender that:



     Section 3.1 Financial Condition; Projections.




     (a) The Borrower has delivered the following financial statements to the
Administrative Agent:




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     (i) balance sheets and the related statements of income and of cash
flows for the fiscal year ended December 27, 2009 for the Borrower and its
Subsidiaries, audited by nationally recognized independent certified public
accountants;




     (ii) company-prepared unaudited quarterly balance sheets and related
statements of income and cash flows for the Borrower and its Subsidiaries for the
fiscal quarters ended March 28, 2010 and June 27, 2010;




     (iii) (A) a company-prepared unaudited pro forma balance sheet as of
September 26, 2010 and (B) pro forma statements of income for the Borrower and its
Subsidiaries for the 12-month period ending September 26, 2010, in each case giving
effect to the initial Loans hereunder and all other elements of the Transactions to
occur on the Closing Date; and




The financial statements referred to in subsections (i), (ii) and (iii) above are complete
and correct in all material respects and present fairly the financial condition of the
Borrower and its Subsidiaries as of such dates. All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as disclosed therein), subject, in the
case of interim statements, to the absence of footnotes and normal year-end audit
adjustments.




     (b) Projections. The projections of the annual operating budgets of the
Borrower and its Subsidiaries on a Consolidated basis, balance sheets and cash flow
statements for the 2011 to 2015 fiscal years, copies of which have been delivered to the
Administrative Agent, disclose all assumptions made with respect to general economic,
financial and market conditions used in formulating such projections on the pro forma
balance sheet referred to in Section 3.1(a)(iii) above. To the knowledge of the Credit
Parties as of the date hereof, no facts exist that (individually or in the aggregate) would
result in any material change in any of such projections or the pro forma balance sheet.
The projections are based upon reasonable estimates and assumptions, have been prepared on
the basis of the assumptions stated therein and reflect the reasonable estimates of the
Borrower and its Subsidiaries of the results of operations and other information projected
therein.



     Section 3.2 No Change.



     Since December 27, 2009, there has been no development or event which, either individually or
in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the financial statements provided to the Administrative Agent prior to the
Closing Date, from December 27, 2009 through the Closing Date, there has occurred no materially
adverse change in the financial condition or business of the Borrower and its Subsidiaries as shown
on or reflected in the balance sheet of Borrower and its Subsidiaries as at December 27, 2009 or
the statement of income for the fiscal period then ended, other than changes in the ordinary course
of business that have not had any materially adverse effect either individually or in the aggregate
on the business or financial condition of Borrower and its Subsidiaries.



     Section 3.3 Corporate Existence.



     Each of the Credit Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization or formation, (b) has the requisite power and
authority and the legal right to own and operate all its material property, to lease the material
property it operates as lessee and to conduct the business in which it is currently engaged, and
(c) is duly qualified to conduct business



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and in good standing under the laws of (i) the jurisdiction of its organization or formation,
(ii) the jurisdiction where its chief executive office is located and (iii) each other jurisdiction
where its ownership, lease or operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.




     Section 3.4 Corporate Power; Authorization; Enforceable Obligations.



     Each of the Credit Parties has full power and authority and the legal right to make, deliver
and perform the Credit Documents to which it is party and has taken all necessary limited liability
company, corporate or partnership action to authorize the execution, delivery and performance by it
of the Credit Documents to which it is party. No consent or authorization of, filing with, notice
to or other act by or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery or performance of any
Credit Document by any of the Credit Parties (other than those which have been obtained) or with
the validity or enforceability of any Credit Document against any of the Credit Parties (except
such filings as are necessary in connection with the perfection of the Liens created by such Credit
Documents). Each Credit Document to which it is a party has been duly executed and delivered on
behalf of the applicable Credit Party. Each Credit Document to which it is a party constitutes a
legal, valid and binding obligation of each such Credit Party, enforceable against such Credit
Party in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).



     Section 3.5 Compliance with Laws; No Conflict; No Default.




     (a) The execution, delivery and performance by each Credit Party of the Credit
Documents to which such Credit Party is a party, in accordance with their respective terms,
the borrowings hereunder and the transactions contemplated hereby do not and will not, by
the passage of time, the giving of notice or otherwise, (i) require any Governmental
Approval (other than such Governmental Approvals that have been obtained or made and not
subject to suspension, revocation or termination) or violate any Requirement of Law relating
to such Credit Party, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws, articles of organization, operating agreement
or other organizational documents of such Credit Party or any material indenture, agreement
or other instrument to which such Person is a party or by which any of its properties may be
bound or any Governmental Approval relating to such Person, or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Credit Documents.




     (b) Each Credit Party (i)(x) has all Governmental Approvals required by law for it
to conduct its business, each of which is in full force and effect, (y) each such
Governmental Approval is final and not subject to review on appeal and (z) each such
Governmental Approval is not the subject of any pending or, to the best of its knowledge,
threatened attack by direct or collateral proceeding, in each case except to the extent as
could not reasonably be expected to have a Material Adverse Effect and (ii) is in compliance
with each Governmental Approval applicable to it and in compliance with all other
Requirements of Law relating to it or any of its respective properties, in each case except
to the extent the failure to comply with such Governmental Approval or Requirement of Law
could not reasonably be expected to have a Material Adverse Effect. Each Credit Party
possesses or has the right to use, all leaseholds, licenses, easements and franchises and
all authorizations and other rights that are material to and



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necessary for the conduct of its business. Except to the extent noncompliance with the
foregoing leaseholds, easements and franchises could not reasonably be expected to have a
Material Adverse Effect, all of the foregoing are in full force and effect, and the Credit
Parties are in substantial compliance with the foregoing without any known conflict with the
valid rights of others. No event has occurred which permits, or after notice or lapse of
time or both would permit, the revocation or termination of any such Governmental Approval,
leasehold, license, easement, franchise or other right, which termination or revocation
could, individually or in the aggregate, reasonably be expected to have Material Adverse
Effect.




     (c) None of the Credit Parties is in default under or with respect to any of its
Material Contracts or under or with respect to any of its other Contractual Obligations, or
any judgment, order or decree to which it is a party, in any respect which could reasonably
be expected to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.



     Section 3.6 No Material Litigation.



     No litigation, investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Credit Parties, threatened by or against any
Credit Party or any Subsidiaries of the Credit Parties or against any of its or their respective
properties or revenues (a) with respect to the Credit Documents or any Loan or any of the
transactions contemplated hereby, or (b) which could reasonably be expected to have a Material
Adverse Effect. No permanent injunction, temporary restraining order or similar decree has been
issued against the Borrower or any of their Subsidiaries that could reasonably be expected to have
a Material Adverse Effect.



     Section 3.7 Investment Company Act; Etc.



     None of the Credit Parties is (a) an “investment company,” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of 1940, as amended, or
(b) subject to any other law or regulation limiting its ability to incur Indebtedness and/or the
Credit Party Obligations.



     Section 3.8 Margin Regulations.



     No part of the proceeds of any Extension of Credit hereunder will be used directly or
indirectly for any purpose which violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System as now and from time
to time hereafter in effect. The Credit Parties are not engaged, principally or as one of its
important activities, in the business of extending credit for the purpose of “purchasing” or
“carrying” “margin stock” within the respective meanings of each of such terms under Regulation U.



     Section 3.9 ERISA.



     Neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code,
except to the extent that any such occurrence or failure to comply could not reasonably be expected
to have a Material Adverse Effect. No termination of a Single Employer Plan has occurred resulting
in any liability that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which could reasonably be expected to have a Material Adverse
Effect. The present value of all



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accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued
benefits by an amount which, as determined in accordance with GAAP, could reasonably be expected to
have a Material Adverse Effect. None of the Credit Parties, none of the Subsidiaries of the
Borrower and no Commonly Controlled Entity is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.




     Section 3.10 Environmental Matters.




     (a) Except where such violation or liability could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, the Properties do not
contain any Materials of Environmental Concern in amounts or concentrations which
(i) constitute a violation of, or (ii) could give rise to liability under, any Environmental
Law.




     (b) Except where such violation could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, the Properties and all operations
of the Credit Parties at the Properties are in compliance, and have in the last five years
been in compliance, in all material respects with all applicable Environmental Laws, except
for any non-compliances that are no longer outstanding and unresolved, and there has been no
release of Materials of Environmental Concern by the Credit Parties or, to the knowledge of
the Credit Parties, any other Person at, under or about the Properties or violation by the
Credit Parties of any Environmental Law with respect to the Properties or the business
operated by the any of the Credit Parties (the “Business”).




     (c) None of the Credit Parties has received any written notice of violation,
alleged violation, non-compliance, liability or potential liability regarding an actual or
threatened release of Materials of Environmental Concern or compliance with Environmental
Laws with regard to any of the Properties or the Business which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, nor does any of
the Credit Parties have knowledge of any such threatened notice.




     (d) Except where such violation or liability, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, Materials of
Environmental Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could give rise to liability under any
Environmental Law, nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation of, or in a manner
that could give rise to liability under, any applicable Environmental Law.




     (e) No judicial proceeding or governmental or administrative action is pending or,
to the knowledge of any Credit Party, threatened, under any Environmental Law to which any
of the Credit Parties is or to the knowledge of the Credit Parties will be named as a party
with respect to the Properties or the Business, nor are the Credit Parties liable for the
fulfillment of any outstanding requirements of any consent decrees or other decrees, consent
orders, administrative orders or other orders, under any Environmental Law with respect to
the Properties or the Business which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.




     (f) Except where such violation or liability, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, there has been no
release or threat



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of release of Materials of Environmental Concern at or from the
Properties, or arising from or
related to the operations of any of the Credit Parties in connection with the
Properties or otherwise in connection with the Business, in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.



     Section 3.11 Subsidiaries.



     Set forth on Schedule 3.11(a) is a complete and accurate list of all Subsidiaries,
joint venture and partnerships of the Credit Parties as of the Closing Date. Information on such
Schedule includes the following: (i) the number of shares of each class of Equity Interests of
each Subsidiary outstanding and (ii) the number and percentage of outstanding shares of each class
of Equity Interests owned by the Credit Parties or any of their Subsidiaries as of the Closing Date
The outstanding Equity Interests of all such Subsidiaries are validly issued, fully paid and
non-assessable and is owned, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). As of the Closing Date, there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments
(other than stock options granted to employees or directors and directors’ qualifying shares) of
any nature relating to any Equity Interests of any Credit Party or any Subsidiary thereof.



     Section 3.12 Ownership of Property and Assets.



     Each of the Credit Parties and their Subsidiaries is the owner of, and has good and marketable
title to or a valid leasehold interest in, all of its respective assets, which, together with
assets leased or licensed by the Credit Parties and their Subsidiaries, represents all assets
individually or in the aggregate material to the conduct of the businesses of the Credit Parties
and their Subsidiaries, taken as a whole on the date hereof, and none of such assets is subject to
any Lien other than Permitted Liens. Each Credit Party and its Subsidiaries enjoys peaceful and
undisturbed possession under all of its leases and all such leases are valid and subsisting and in
full force and effect except where any such failure could not reasonably be expected to have a
Material Adverse Effect.



     Section 3.13 Taxes.



     Each of the Credit Parties and its Subsidiaries has filed, or caused to be filed, all federal,
state and other material tax returns required to be filed and paid (a) all federal, state and other
material amounts of taxes shown thereon to be due (including interest and penalties) and (b) all
other taxes, fees, assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) known by such Credit Party to be owing by it, except
for such taxes (i) which are not yet delinquent or (ii) that are being contested in good faith and
by proper proceedings, and against which adequate reserves are being maintained in accordance with
GAAP. None of the Credit Parties is aware as of the Closing Date of any proposed tax assessments
against it or any of its Subsidiaries which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.



     Section 3.14 Intellectual Property Rights.



     Each of the Credit Parties and their Subsidiaries owns, or has the legal right to use, the
Intellectual Property necessary for each of them to conduct its business as currently conducted.
Set forth on Schedule 3.14 is a list of all registered or issued Intellectual Property
owned by each of the Credit Parties and their Subsidiaries and all applications for registration or
issuance of Intellectual Property filed on the name of the Credit Parties or their Subsidiaries.
Except as disclosed in Schedule 3.14 hereto, (a) one or more of the Credit Parties has the
right to use the Intellectual Property disclosed in Schedule 3.14 hereto without payment of
royalties and (b) all registrations with and applications to Governmental Authorities in respect of
such Intellectual Property are in full force and effect. Except as in



65









 




each case could not
reasonably be expected to have a Material Adverse Effect, none of the Credit Parties
is in default (or with the giving of notice or lapse of time or both, would be in default)
under any license to use any Intellectual Property; no claim has been asserted in writing or is
pending by any Person challenging or questioning the use of any Intellectual Property in their
business or the validity or effectiveness of any Intellectual Property, nor does the Credit Parties
or any of their Subsidiaries know of any claim; and, to the knowledge of the Credit Parties or any
of their Subsidiaries, the use of such Intellectual Property by the Credit Parties or any of their
Subsidiaries does not infringe on the rights of any Person. Schedule 3.14 may be updated
from time to time by the Borrower to include new Intellectual Property acquired after the Closing
Date by giving written notice thereof to the Administrative Agent.




     Section 3.15 Solvency.



     After giving effect to the Transactions, the fair saleable value of the Credit Parties assets,
measured on a going concern basis, exceeds all probable liabilities, including those to be incurred
pursuant to this Credit Agreement. After giving effect to the Transactions, the Credit Parties,
taken as a whole (a) do not have unreasonably small capital in relation to the business in which it
is or proposes to be engaged or (b) have not incurred, and do not believe that they will incur
after giving effect to the transactions contemplated by this Credit Agreement, debts beyond their
ability to pay such debts as they become due. In executing the Credit Documents and consummating
the Transactions, none of the Credit Parties intends to hinder, delay or defraud either present or
future creditors or other Persons to which one or more of the Credit Parties is or will become
indebted.



     Section 3.16 Collateral Representations.




     (a) Set forth on Schedule 3.16(a) is list of the all real Property owned by
each Credit Party as of the Closing Date showing for each such real Property as of the date
hereof the street address, county or other relevant jurisdiction, state and record owner
thereof. Each Credit Party and each Subsidiary has good, marketable and insurable fee
simple title to the real Property owned by such Person, free and clear of all Liens, other
than Permitted Liens.




     (b) Set forth on Schedule 3.16(b) is list of the all real Property leased
by each Credit Party as of the Closing Date as a lessee, showing as of the date hereof the
street address, county or other relevant jurisdiction, state, lessor, lessee, expiration
date and annual rental cost thereof. To the knowledge of the Credit Parties, each such
lease is the legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms (except as such enforceability may be limited by applicable Debtor
Relief Laws and by general equitable principles).




     (c) Set forth on Schedule 3.16(c) is a list of all locations (other than
owned locations) where any tangible personal property of the Credit Parties and their
Subsidiaries with a fair market value in excess of $250,000 is located as of the Closing
Date, including county and state where located. Except as specifically noted on
Schedule 3.16(c), as of the Closing Date, no personal property of any Credit Party
is (i) is stored with a bailee, warehouseman, processor or similar Person or (ii) consigned
to any Person.




     (d) Set forth on Schedule 3.16(d) is the following information for each
Credit Party as of the Closing Date (i) exact legal name and any former legal names during
the five years prior to the Closing Date, (ii) the state of incorporation or formation,
(iii) the type of organization, (iv) the location of the chief executive office and
principal place of business, (v) the federal tax identification number and, if applicable,
state organization number and (vi) business phone number.



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     (e) Set forth on Schedule 3.16(e) is a list as of the Closing Date of all
deposit and securities accounts of each Credit Party at any bank or other financial
institution, or any other account where money is or may be deposited or maintained with any
Person as of the Closing Date, including the same of the applicable depository
institution/securities intermediary and average amount held in such Deposit Account;




     (f) Set forth on Schedule 3.16(f) a list as of the Closing Date of all
Investments (other than Investments in Subsidiaries) held by any Credit Party on the date
hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any,
thereof (and, in the case of Investment Property, an indication of whether such property is
certificated or uncertificated.




     (g) Set forth on Schedule 3.16(g) is a list of as of the Closing Date of
the following owned or held by each Credit Party: all Documents (as defined in the UCC),
Instruments (as defined in the UCC), Tangible Chattel Paper (as defined in the UCC),
Electronic Chattel Paper and Letter of Credit Rights, including the name of (i) the
applicable Credit Party, (ii) in the case of Electronic Chattel Paper, the account debtor,
and (iii) in the case of Letter-of-Credit Rights, the issuer or nominated person, as
applicable; and




     (h) Set forth on Schedule 3.16(h) is a description as of the Closing Date
of all Commercial Tort Claims (as defined in the UCC) of the Credit Parties (detailing such
Commercial Tort Claim in such detail as reasonably requested by the Administrative Agent).



     Section 3.17 No Burdensome Restrictions.



     None of the Credit Parties or their Subsidiaries is a party to any agreement or instrument or
subject to any other obligation or any charter or corporate restriction or any provision of any
applicable law, rule or regulation which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



     Section 3.18 Labor Matters.



     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the Credit Parties or any of their Subsidiaries as of the Closing Date, other than as set forth in
Schedule 3.18 hereto, and as of the Closing Date none of the Credit Parties or their
Subsidiaries has suffered any strikes, walkouts, work stoppages or other material labor difficulty
within the last five years, other than as set forth in Schedule 3.18 hereto. There is are
no strikes, walkouts, work stoppages or other material labor difficulty pending or threatened
against the Borrower or any Subsidiary except such as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



     Section 3.19 Accuracy and Completeness of Information.



     All factual information heretofore, contemporaneously or hereafter furnished by or on behalf
of the Credit Parties in writing to the Administrative Agent or any Lender for purposes of or in
connection with this Credit Agreement or any other Credit Document, or any transaction contemplated
hereby or thereby, is or will be true and accurate in all material respects and not incomplete by
omitting to state any material fact necessary to make such information not misleading as of the
date furnished. There is no fact now known to any of the Credit Parties which has, or could
reasonably be expected to have, a Material Adverse Effect which fact has not been set forth herein,
in the financial statements of the Credit Parties furnished to the Administrative Agent and/or the
Lenders, or in any certificate, opinion or other written statement made or furnished by or on
behalf of the Credit Parties to the Administrative Agent and/or the Lenders.



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     Section 3.20 Material Contracts.



     Schedule 3.20 sets forth a complete and accurate list of all Material Contracts of the
Credit Parties and their Subsidiaries in effect as of the Closing Date. Other than as set forth in
Schedule 3.20, each such Material Contract is, and after giving effect to the Transactions
will be, in full force and effect in accordance with the terms thereof. The Credit Parties and
their Subsidiaries have delivered to the Administrative Agent a true and complete copy of each
Material Contract. Schedule 3.20 may be updated from time to time by the Borrower to
include new Material Contracts by giving written notice thereof to the Administrative Agent.



     Section 3.21 Insurance.



     The insurance coverage of the Credit Parties and their Subsidiaries as of the Closing Date is
outlined as to carrier, policy number, expiration date, type and amount on Schedule 3.21
and such insurance coverage complies with the requirements set forth in Section 5.5(b).



     Section 3.22 Security Documents.



     The Security Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are currently (or will be, upon
the execution of control agreements with respect to deposit and securities accounts and the filing
or recording of appropriate financing statements, Mortgage Instruments and notices of grants of
security interests in Intellectual Property, in each case in favor of the Administrative Agent on
behalf of the Secured Parties) perfected security interests and Liens, prior to all other Liens
other than Permitted Liens.



     Section 3.23 Regulation H.



     No Mortgaged Property is a Flood Hazard Property unless the Administrative Agent shall have
received the following: (a) the applicable Credit Party’s written acknowledgment of receipt of
written notification from the Administrative Agent (i) as to the fact that such Mortgaged Property
is a Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard
Property is located is participating in the National Flood Insurance Program and (b) copies of
insurance policies or certificates of insurance of the applicable Credit Party evidencing flood
insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent
as loss payee on behalf of the Lenders.



     Section 3.24 Classification of Senior Indebtedness.



     The Credit Party Obligations constitute “Senior Indebtedness”, “Designated Senior
Indebtedness” or any similar designation under and as defined in any agreement governing any
Subordinated Debt and the subordination provisions set forth in each such agreement are legally
valid and enforceable against the parties thereto.



     Section 3.25 Foreign Assets Control Regulations, FCPA, Etc.




     (a) Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally
of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit
Party nor any or its Subsidiaries is in violation of (i) the Trading with the Enemy Act, as
amended, (ii) any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto or (iii) the



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Patriot Act). None of the Credit Parties (A) is a blocked person described in
Section 1 of the Anti-Terrorism Order or (B) to the best of its knowledge, engages in any
dealings or transactions, or is otherwise associated, with any such blocked person.




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



     Section 3.26 Compliance with OFAC Rules and Regulations.



     None of the Borrower, any Subsidiary of the Borrower or any Affiliate of the Borrower or any
Guarantor (i) is a Sanctioned Person or Sanctioned Entity, (ii) has any assets in Sanctioned
Countries, (iii) derives any of its operating income from investments in, or transactions with
Sanctioned Countries, (iv) derives more than 15% of its operating income from investments in, or
transactions with Sanctioned Persons, or (v) to the knowledge of the Credit Parties, derives any of
its operating income from investments in, or transactions with Sanctioned Persons. No part of the
proceeds of any Extension of Credit hereunder will be used directly or indirectly to fund any
operations in, finance any investments or activities in or make any payments to, a Sanctioned
Person or a Sanctioned Country.



     Section 3.27 Certain Transactions.



     Except for transactions set forth on Schedule 3.27 hereto, none of the Affiliates,
officers, directors, or employees of the Credit Parties or any of their Subsidiaries is presently a
party to any transaction with any Credit Party or any of their Subsidiaries (other than for
services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Credit Parties, any corporation, partnership, trust or
other entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee or partner.



     Section 3.28 Use of Proceeds.



     On the Closing Date, the proceeds of the Extensions of Credit hereunder shall be used,
together with the proceeds from the Initial Public Offering, (i) to pay certain costs, fees and
expenses in connection with the Transactions, (ii) to refinance certain existing Indebtedness of
the Borrower, (iii) to pay any fees and expenses associated with this Credit Agreement on the
Closing Date and (iv) for working capital and other general corporate purposes (including, without
limitation, Capital Expenditures permitted hereunder), in each case not in contravention of any Law
or Loan Document.



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ARTICLE IV




CONDITIONS PRECEDENT



     Section 4.1 Conditions to Closing Date.



     This Credit Agreement shall become effective upon, and the obligation of each Lender to make
the initial Revolving Loans, Term Loan and the Swingline Loan on the Closing Date is subject to,
the satisfaction of the following conditions precedent:




     (a) Execution of Credit Agreement and Credit Documents. The Administrative
Agent shall have received (i) counterparts of this Credit Agreement, executed by a duly
authorized officer of each party hereto, (ii) for the account of each Lender with a
Revolving Commitment requesting a promissory note, a Revolving Note, (iii) for the account
of each Lender with a Term Loan Commitment requesting a promissory note, a Term Loan Note,
(iv) for the account of the Swingline Lender, the Swingline Note, (v) counterparts of the
Security Agreement and the Pledge Agreement, in each case conforming to the requirements of
this Credit Agreement and executed by duly authorized officers of the Credit Parties or
other Person, as applicable, and (vi) counterparts of any other Credit Document, executed by
the duly authorized officers of the parties thereto.




     (b) Authority Documents. The Administrative Agent shall have received the
following:




     (i) Articles of Incorporation; Partnership Agreement. Copies of
the articles of incorporation, partnership agreement or other charter documents of
each Credit Party certified (A) by an officer of such Credit Party to be true and
correct and in full force and effect as of the Closing Date and (B) to be true and
complete as of a recent date by the appropriate Governmental Authority of the state
of its incorporation or formation.




     (ii) Resolutions. Copies of resolutions of the board of directors
or other comparable managing body of each Credit Party approving and adopting the
Credit Documents, the transactions contemplated therein and authorizing execution
and delivery thereof, certified by an officer or managing member of such Credit
Party attached hereto) as of the Closing Date to be true and correct and in force
and effect as of such date.




     (iii) Bylaws. A copy of the bylaws or other operating agreement of
each Credit Party certified by an officer or managing member of such Credit Party as
of the Closing Date to be true and correct and in force and effect as of such date.




     (iv) Good Standing. Copies of (A) certificates of good standing,
existence or its equivalent with respect to the each Credit Party certified as of a
recent date by the appropriate governmental authorities of the state of
incorporation or formation, as the case may be, the state where its chief executive
office is located and each other state in which the failure of such Credit Party to
be qualified to do business could reasonably be expected to have a Material Adverse
Effect and (B) to the extent readily available, a certificate indicating payment of
all corporate and other franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.




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



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     Each officer’s certificate delivered pursuant to this Section 4.1(b) shall be
substantially in the form of Exhibit 4.1(b) hereto.




     (c) Legal Opinion of Counsel. The Administrative Agent shall have
received, in each case, dated the Closing Date and addressed to the Administrative Agent and
the Lenders and in form and substance acceptable to the Administrative Agent:




     (i) a legal opinion of Dechert LLP, counsel for the Credit Parties;




     (ii) a legal opinion of special local counsel for the Borrower and each
other Credit Party incorporated or organized in the State of Ohio.




     (d) Personal Property Collateral. The Administrative Agent shall have
received, in form and substance satisfactory to the Administrative Agent:




     (i) (A) searches of UCC filings in the jurisdiction of the chief executive
office and jurisdiction of formation or organization of each Credit Party, as
applicable, and each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Administrative Agent’s security
interest in the Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens
that are to be terminated on the Closing Date and (B) tax lien and judgment
searches;




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




     (iii) searches of ownership of Intellectual Property in the appropriate
governmental offices;




     (iv) such patent/trademark/copyright filings as requested by the
Administrative Agent in order to perfect the Administrative Agent’s security
interest in the Intellectual Property;




     (v) all stock certificates, if any, evidencing the Equity Interests pledged
to the Administrative Agent pursuant to the Pledge Agreement, together with duly
executed in blank undated stock powers attached thereto;




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




     (vii) duly executed consents as are necessary, in the Administrative
Agent’s sole discretion, to perfect the Lenders’ security interest in the
Collateral.




     (e) [Intentionally Omitted]




     (f) Liability and Casualty Insurance. The Administrative Agent shall have
received copies of insurance policies or certificates of insurance evidencing liability and
casualty insurance (including, but not limited to, business interruption insurance) meeting
the requirements set forth



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herein or in the Security Documents. The Administrative Agent (for the benefit of the
Secured Parties) shall be named as lenders’ loss payee, as its interests may appear, on all
casualty insurance policies providing coverage in respect of any Collateral and as
additional insured, as its interests may appear on all liability insurance policies, in each
case for the benefit of the Lenders.




     (g) Litigation. There shall not exist any pending litigation or
investigation affecting or relating to (i) any Credit Party or any of its Subsidiaries that
in the reasonable judgment of the Administrative Agent and Lenders could materially
adversely affect the any Credit Party or any of its Subsidiaries, this Agreement or the
other Credit Documents, that has not been settled, dismissed, vacated, discharged or
terminated prior to the Closing Date or (ii) this Agreement, the other Credit Documents,
that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing
Date.




     (h) Solvency Certificate. The Administrative Agent shall have received an
officer’s certificate prepared by the chief financial officer of the Borrower as to the
financial condition, solvency and related matters of the Credit Parties and their
Subsidiaries, after giving effect to the Initial Public Offering and the initial borrowings
under the Credit Documents, in substantially the form of Exhibit 4.1(h) hereto.




     (i) Account Designation Notice. The Administrative Agent shall have
received the executed Account Designation Notice Letter in the form of
Exhibit 1.1(a) hereto.




     (j) Consents. The Administrative Agent shall have received evidence that
all boards of directors, governmental, shareholder and material third party consents and
approvals necessary in connection with the Transactions have been obtained and all
applicable waiting periods have expired without any action being taken by any authority that
could restrain, prevent or impose any material adverse conditions on such transactions or
that could seek or threaten any of the foregoing.




     (k) Compliance with Laws. The financings and other Transactions
contemplated hereby shall be in compliance with all applicable laws and regulations
(including all applicable securities and banking laws, rules and regulations).




     (l) Bankruptcy. There shall be no bankruptcy or insolvency proceedings
with respect to Credit Parties or any of their Subsidiaries.




     (m) Initial Public Offering. The Initial Public Offering shall have been
consummated prior to or concurrently with the making of the initial extensions of credit
hereunder.




     (n) Existing Indebtedness of the Credit Parties. The Existing Credit
Agreement shall be terminated, all Indebtedness of the Borrower thereunder and all other
existing Indebtedness for borrowed money of the Borrower and its Subsidiaries (other than
Indebtedness permitted to exist pursuant to Section 6.1) shall be repaid in full and all
security interests related thereto shall be terminated on the Closing Date.




     (o) Financial Statements. The Administrative Agent and the Lenders shall
have received copies of the financial statements referred to in Section 3.1 hereof, each in
form and substance reasonably satisfactory to them.




     (p) Financial Condition Certificate. The Administrative Agent shall have
received a certificate or certificates executed by a Responsible Officer of the Borrower as
of the Closing



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Date stating that (i) no action, suit, investigation or proceeding is pending, ongoing
or, to the knowledge of any Credit Party, threatened in any court or before any other
Governmental Authority that purports to affect any Credit Party or any transaction
contemplated by the Credit Documents, which action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect and (ii) immediately after giving
effect to this Credit Agreement, the other Credit Documents, and all the Transactions
contemplated to occur on such date, (A) no Default or Event of Default exists, (B) all
representations and warranties contained herein and in the other Credit Documents are true
and correct in all material respects, and (C) the Credit Parties are in pro forma compliance
with the initial financial covenant set forth in Section 5.9(a) (as evidenced through
detailed calculations of such financial covenant on a schedule to such certificate) as of
the last day of the fiscal month immediately preceding the Closing Date.




     (q) Adjusted Leverage Ratio. The Administrative Agent shall have received
evidence that, after giving pro forma effect to the Transactions, the ratio of
(i) Consolidated Funded Debt of the Borrower and its Subsidiaries as of September 26, 2010
to (ii) Consolidated EBITDA of the Borrower and its Subsidiaries for the 12-month period
ended on such date does not exceed 1.75 to 1.00.




     (r) Usage of Revolving Commitments. After giving effect to the
Transactions, including the initial Extensions of Credit hereunder on the Closing Date, the
aggregate principal amount of outstanding Revolving Loans, plus outstanding
Swingline Loans plus outstanding LOC Obligations shall not exceed $25,000,000.




     (s) Patriot Act Certificate. The Administrative Agent shall have received
a certificate satisfactory thereto, for benefit of itself and the Lenders, provided by the
Borrower that sets forth information required by the Patriot Act including, without
limitation, the identity of the Borrower, the name and address of the Borrower and other
information that will allow the Administrative Agent or any Lender, as applicable, to
identify the Borrower in accordance with the Patriot Act.




     (t) Fees and Expenses. The Administrative Agent and the Lenders shall have
received all fees and expenses, if any, owing pursuant to the Fee Letters and Section 2.5.




     (u) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent and its counsel.



     Without limiting the generality of the provisions of Section 8.4, for purposes of determining
compliance with the conditions specified in this Section 4.1, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



     Section 4.2 Conditions to All Extensions of Credit.



     The obligation of each Lender to make any Extension of Credit hereunder is subject to the
satisfaction of the following conditions precedent on the date of making such Extension of Credit:




     (a) Representations and Warranties. The representations and warranties
made by the Credit Parties herein, in the other Credit Documents or which are contained in
any certificate



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furnished at any time under or in connection herewith shall be true and
correct in all material
respects on and as of the date of such Extension of Credit as if made on and as of such
date (except for those which expressly relate to an earlier date, which shall remain true
and correct as of such earlier date).




     (b) No Default or Event of Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving effect to the Extension of
Credit to be made on such date unless such Default or Event of Default shall have been
waived in accordance with this Credit Agreement.




     (c) Compliance with Commitments. Immediately after giving effect to the
making of any such Extension of Credit (and the application of the proceeds thereof),
(i) the Aggregate Revolving Exposure shall not exceed the Revolving Committed Amount then in
effect, (ii) the outstanding LOC Obligations shall not exceed the LOC Committed Amount and
(iii) the outstanding Swingline Loans shall not exceed the Swingline Committed Amount.




     (d) Additional Conditions to Revolving Loans. If a Revolving Loan is
requested, all conditions set forth in Section 2.1 shall have been satisfied.




     (e) Additional Conditions to Letters of Credit. If the issuance of a
Letter of Credit is requested, (i) all conditions set forth in Section 2.3 shall have been
satisfied and (ii) there shall exist no Lender that is a Defaulting Lender unless the
Issuing Lender has entered into satisfactory arrangements with the Borrower or such
Defaulting Lender to eliminate the Issuing Lender’s risk with respect to such Defaulting
Lender’s LOC Obligations




     (f) Additional Conditions to Swingline Loans. If a Swingline Loan is
requested, (i) all conditions set forth in Section 2.4 shall have been satisfied and
(ii) there shall exist no Lender that is a Defaulting Lender unless the Swingline Lender has
entered into satisfactory arrangements with the Borrower or such Defaulting Lender to
eliminate the Swingline Lender’s risk with respect to such Defaulting Lender’s obligations
in respect of the Swingline Commitment.




     (g) Incremental Facility. If an Incremental Facility is requested, all
conditions set forth in Section 9.1(b) shall have been satisfied.



     Each request for an Extension of Credit and each acceptance by the Borrower of any such
Extension of Credit shall be deemed to constitute a representation and warranty by the Borrower as
of the date of such Extension of Credit that the applicable conditions in paragraphs (a) through
(g) of this Section, as applicable, have been satisfied.



ARTICLE V




AFFIRMATIVE COVENANTS



     The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated and the Credit
Party Obligations have been paid in full, the Credit Parties shall, and shall cause each of their
Subsidiaries to:



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     Section 5.1 Financial Statements.



     Furnish to the Administrative Agent and each of the Lenders:




     (a) Annual Financial Statements. As soon as available, but in any event
within ninety-one (91) days after the end of each fiscal year of the Borrower, (i) a copy of
the Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at the
end of such fiscal year and the related Consolidated statements of income and retained
earnings and of cash flows of the Borrower and its Consolidated Subsidiaries for such year,
audited by a firm of independent certified public accountants reasonably acceptable to the
Administrative Agent, setting forth in each case in comparative form the figures for the
preceding fiscal year, all such consolidated statements to be in reasonable detail, prepared
in accordance with GAAP, together with management discussion and analysis relating to
important operation and financial developments during such fiscal period, reported on
without a “going concern” or like qualification or exception, or qualification indicating
that the scope of the audit was inadequate to permit such independent certified public
accountants to certify such financial statements without such qualification (it being
understood and agreed that the delivery of the Borrower’s Form 10-K (as filed with the SEC),
if certified as required by Section 5.2(b) below, shall satisfy the requirements in this
clause) and (ii) a list of any new Restaurants acquired or opened (or any Restaurants closed
or sold) within the last fiscal quarter of such fiscal year and, if applicable, an amended
Schedule 3.16(a) reflecting the addition of any new owned or leased Properties (or
the deletion of any owned or leased Properties) as applicable, which amended
Schedule 3.16(a) shall, upon consummation of the applicable acquisition or opening,
or closing or sale, be substituted as a replacement Schedule 3.16(a); and




     (b) Quarterly Financial Statements. As soon as available and in any event
within forty-six (46) days after the end of each of the first three fiscal quarters of the
Borrower, (i) a company-prepared Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such period and related company-prepared
Consolidated statements of income and retained earnings and of cash flows for the Borrower
and its Consolidated Subsidiaries for such quarterly period and for the portion of the
fiscal year ending with such period, in each case setting forth in comparative form the
figures for the corresponding period or periods of the preceding fiscal year (subject to
normal recurring year-end audit adjustments), all in reasonable detail and prepared in
accordance with GAAP, together with management discussion and analysis relating to important
operation and financial developments during such fiscal period, (it being understood and
agreed that the delivery of the Borrower’s Form 10-Q (as filed with the SEC), if certified
as required by Section 5.2(b) below, shall satisfy the requirements in this clause) and
(ii) a list of any new Restaurants acquired or opened (or any Restaurants closed or sold)
within such fiscal quarter and, if applicable, an amended Schedule 3.16(a)
reflecting the addition of any new owned or leased Properties (or the deletion of any owned
or leased Properties) as applicable, which amended Schedule 3.16(a) shall, upon
consummation of the applicable acquisition or opening, or closing or sale, be substituted as
a replacement Schedule 3.16(a);




     (c) [Reserved]




     (d) Annual Financial Plans. As soon as practicable and in any event within
thirty (30) days after the end of each fiscal year, a Consolidated budget and cash flow
projections prepared on a monthly basis of the Borrower and its Consolidated Subsidiaries
for the following fiscal year, in form and detail reasonably acceptable to the
Administrative Agent and the Required Lenders, such budget to be prepared by the Borrower in
a manner consistent with GAAP and to include an operating and capital budget, a summary of
the material assumptions



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made in the preparation of such budget. Such budget shall be accompanied by a certificate of the
managing partner or chief financial officer of the Borrower to the effect that the budgets
and other financial data are based on reasonable estimates and assumptions, all of which are
fair in light of the conditions which existed at the time the budget was made, have been
prepared on the basis of the assumptions stated therein, and reflect, as of the time so
furnished, the reasonable estimate of the Borrower and its Consolidated Subsidiaries of the
budgeted results of the operations and other information budgeted therein;




all such financial statements to fairly present in all material respects the financial
condition and results from operations of the entities and for the periods specified and to
be prepared in reasonable detail and in accordance with GAAP (subject, in the case of
interim statements, to normal recurring year-end audit adjustments and the absence of
footnotes) applied consistently throughout the periods reflected therein and further
accompanied by a description of, and an estimation of the effect on the financial statements
on account of, a change in the application of accounting principles as provided in
Section 1.3.



     Notwithstanding the foregoing, financial statements and reports required to be delivered
pursuant to the foregoing provisions of this Section may be delivered electronically and if so,
shall be deemed to have been delivered on the date (i) on which the Borrower files such documents
with the SEC, (ii) on which the Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address http://www.bbrg.com, (iii) on which such
documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which
each Lender and the Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent), or (iv) on which the Administrative Agent receives
such reports from the Borrower through electronic mail; provided, that, in the cases of
(i), (ii) and (iii) above, the Borrower shall notify the Administrative Agent (by fax or electronic
mail) of the posting of any such documents and provide the Administrative Agent by electronic mail
electronic versions of such documents and, provided, further, that at the
Administrative Agent’s request the Borrower shall provide paper copies of any documents required
hereby to the Administrative Agent.



     Section 5.2 Certificates; Other Information.



     Furnish to the Administrative Agent and each of the Lenders:




     (a) concurrently with the delivery of the financial statements referred to in
Section 5.1(a) above, a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default under Section 5.9,
except as specified in such certificate;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 5.1(a) and 5.1(b) above (commencing with the delivery of the financial statements
for the fiscal year ending December 26, 2010), a certificate of a Responsible Officer
substantially in the form of Exhibit 5.2(b) (i)stating that (A) such financial
statements present fairly the financial position of the Borrower and its Consolidated
Subsidiaries for the periods indicated in conformity with GAAP applied on a consistent basis
(subject, in the case of interim financial statements, to normal year-end audit adjustments
and the absence of footnotes), (B) each of the Credit Parties during such period observed or
performed in all material respects all of its covenants and other agreements, and satisfied
in all material respects every condition, contained in this Credit Agreement to be observed,
performed or satisfied by it, and (C) such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate



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and (ii) providing calculations in reasonable detail required to indicate compliance
with Section 5.9 as of the last day of such period;




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




     (d) within one hundred twenty (120) days after the end of each fiscal year of the
Borrower, a certificate containing information regarding (i) the calculation of Excess Cash
Flow (beginning with the fiscal year ending on or around December 31, 2011) and (ii) the
amount of all Asset Dispositions and Debt Issuances that were made during the prior fiscal
year and amounts received in connection with any Recovery Event during the prior fiscal
year;




     (e) promptly upon receipt thereof, a copy or summary of any other report, or
“management letter” submitted or presented by independent accountants to the Borrower or any
of their respective Subsidiaries in connection with any annual, interim or special audit of
the books of such Person;




     (f) promptly upon their becoming available, copies of (i) all press releases and
other statements made available generally by the Credit Parties to the public concerning
material developments in the business of the Credit Parties and their Subsidiaries, to the
extent such documents are not filed with the SEC, and (ii) any non-routine correspondence or
official notices received by the Credit Parties or any of their Subsidiaries material to the
business of the Credit Parties from any federal, state or local governmental authority which
regulates the operations of the Credit Parties and their Subsidiaries; and




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



     Section 5.3 Payment of Taxes and Other Obligations.



     Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, in accordance with industry practice (subject, where applicable, to specified
grace periods) all its taxes (Federal, state, local and any other taxes) and other obligations and
liabilities of whatever nature and any additional costs that are imposed as a result of any failure
to so pay, discharge or otherwise satisfy such taxes, obligations and liabilities, except when the
amount or validity of any such taxes, obligations and liabilities is currently being contested in
good faith by appropriate proceedings and reserves, if applicable, in conformity with GAAP with
respect thereto have been provided on the books of the Credit Parties.



     Section 5.4 Conduct of Business and Maintenance of Existence.



     Continue to engage in business of the same general type as now conducted by it on the Closing
Date (and other businesses ancillary or related thereto) and preserve, renew and keep in full force
and effect its existence and good standing take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its business and to
maintain its goodwill; comply with all Contractual Obligations and Requirements of Law applicable
to it except to the extent



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that failure to comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.




     Section 5.5 Maintenance of Property; Insurance.




     (a) Keep all material property useful and necessary in its business in good working
order and condition (ordinary wear and tear and obsolescence excepted).




     (b) Maintain with financially sound and reputable insurance companies insurance on
all its property (including without limitation its tangible Collateral) in at least such
amounts and against at least such risks as are usually insured against in the same
geographical area by companies engaged in the same or a similar business (including, without
limitation, hazard and business interruption insurance); and furnish to the Administrative
Agent, upon written request, full information as to the insurance carried. The
Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear,
with respect to any such casualty insurance providing coverage in respect of any Collateral,
and the Administrative Agent shall be named as an additional insured with respect to any
liability insurance, and each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30) days prior
written notice before any such policy or policies shall be altered or canceled, and that no
act or default of any Credit Party or any other Person shall affect the rights of the
Administrative Agent or the Lenders under such policy or policies.




     (c) In case of any material loss, damage to or destruction of the Collateral of any
Credit Party or any part thereof, such Credit Party shall promptly give written notice
thereof to the Administrative Agent generally describing the nature and extent of such
damage or destruction. In case of any loss, damage to or destruction of the Collateral of
any Credit Party or any part thereof, such Credit Party, whether or not the insurance
proceeds, if any, received on account of such damage or destruction shall be sufficient for
that purpose, at such Credit Party’s cost and expense, will promptly repair or replace the
Collateral of such Credit Party so lost, damaged or destroyed unless such Credit Party shall
have reasonably determined that such repair or replacement of the affected Collateral is not
economically feasible or is not deemed in the best business interest of such Credit Party.



     Section 5.6 Inspection of Property; Books and Records; Discussions.



     Keep proper books of records and account in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent, the Administrative Agent (and any of its representatives, including,
without limitation, counsel, accountants, environmental consultants or engineers and other
professional advisors) to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time (at the Borrower’s sole cost and expense
only for the initial visit and inspection each calendar year, except as otherwise provided below)
and upon reasonable notice and as often as may reasonably be desired, and to discuss the business,
operations, properties and financial and other condition of the Credit Parties with officers and
employees of the Credit Parties and with their independent certified public accountants;
provided, however, that when an Event of Default exists the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the sole cost and expense of the Borrower at any time during normal business
hours, with reasonable advance notice.



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     Section 5.7 Notices.




     (a) Immediately after any Credit Party obtains actual knowledge thereof, provide
written notice to the Administrative Agent (which shall transmit such notice to each Lender
as soon as practicable) of the occurrence of any Default or Event of Default.




     (b) Promptly (but in no event later than five (5) Business Days after any Credit
Party obtains actual knowledge thereof) provide written notice of the following to the
Administrative Agent (which shall transmit such notice to each Lender as soon as
practicable):




     (i) the occurrence of any default or event of default under any Contractual
Obligation of any of the Credit Parties which could reasonably be expected to have a
Material Adverse Effect or involve a monetary claim in excess of $5,000,000;




     (ii) any litigation, or any investigation or proceeding (A) affecting any
of the Credit Parties and involving amounts in controversy in excess of $5,000,000
or involving injunctions or requesting injunctive relief by or against any Credit
Party or any Subsidiary of the Credit Parties or (B) affecting or with respect to
this Credit Agreement, any other Credit Document or any Recapitalization Document;




     (iii) (A) the occurrence or expected occurrence of any Reportable Event
with respect to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan or
any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (B) the institution of proceedings or the taking of any other
action by the PBGC or any Credit Party or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;




     (iv) any notice of any material violation received by any Credit Party from
any Governmental Authority including, without limitation, any notice of material
violation of Environmental Laws;




     (v) any labor controversy that has resulted in, or threatens to result in,
a strike or other work action against any Credit Party which could reasonably be
expected to have a Material Adverse Effect;




     (vi) any attachment, judgment, lien, levy or order exceeding $5,000,000
that may be assessed against or threatened against any Credit Party other than
Permitted Liens; and




     (vii) any other development or event which could reasonably be expected to
have a Material Adverse Effect.



     Each notice pursuant to this Section shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto. In the case of any notice of a Default or Event of
Default, the Borrower shall specify that such notice is a Default or Event of Default notice on the
face thereof.



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     Section 5.8 Environmental Laws.




     (a) Comply in all material respects with all applicable Environmental Laws and
obtain and comply in all material respects with and maintain any and all licenses,
approvals, notifications, registrations or permits required by applicable Environmental Laws
except, in each case, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.




     (b) Conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply in
all material respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are being contested in good
faith by appropriate proceedings and the pendency of such proceedings could not reasonably
be expected to have a Material Adverse Effect.




     (c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders,
and their respective employees, agents, officers and directors, from and against any and all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Credit Parties or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall survive repayment of the
Notes and all other amounts payable hereunder.



     Section 5.9 Financial Covenants.




Comply with the following financial covenants:




     (a) Consolidated Total Leverage Ratio. As of the end of each fiscal
quarter ending during the following periods, the Consolidated Total Leverage Ratio shall be
less than or equal to:



	 	 	 
	Period	 	Maximum Ratio
	Closing Date through September 30, 2011
	 	2.00 to 1.00
	 
	October 1, 2011 and thereafter
	 	1.75 to 1.00







     (b) Consolidated Fixed Charge Coverage Ratio. As of the end of each fiscal
quarter ending after the Closing Date, the Consolidated Fixed Charge Coverage Ratio shall be
greater than or equal to 1.50 to 1.00.




     (c) Consolidated Capital Expenditures. The sum of (i) Consolidated Capital
Expenditures for any fiscal year less (ii) the amount of payments of tenant
incentives actually received by the Borrower and its Subsidiaries during such fiscal year,
shall be less than or equal to (A) for fiscal year 2010, $12,000,000 and (B) for each fiscal
year thereafter (y) if the Consolidated Total Leverage Ratio as of the end of the
immediately preceding fiscal year is equal to or less than 1.00 to 1.00, an amount equal to
70% of Consolidated EBITDA for such immediately preceding fiscal year and (z) if the
Consolidated Total Leverage Ratio as of the end of the immediately



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preceding fiscal year is greater than or equal to 1.00 to 1.00, an amount equal to 60% of Consolidated EBITDA
for such immediately preceding fiscal year; provided that the maximum amount of
Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one
hundred (100%) of the unused Consolidated Capital Expenditures from the immediately
preceding fiscal year (calculated without reference to any amounts carried forward to such
preceding year from any earlier year pursuant to this proviso).



     Section 5.10 Additional Guarantors.



     The Credit Parties will cause each of their Domestic Subsidiaries, whether newly formed, after
acquired or otherwise existing, to promptly (and in any event within thirty (30) days after such
Domestic Subsidiary is formed or acquired (or such longer period of time as agreed to by the
Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of
execution of a Joinder Agreement. In connection therewith, the Credit Parties shall give notice to
the Administrative Agent not less than ten (10) days prior to creating a Domestic Subsidiary (or
such shorter period of time as agreed to by the Administrative Agent in its reasonable discretion),
or acquiring the Equity Interests of any other Person. The Credit Party Obligations shall be
secured by, among other things, a first priority perfected security interest in the Collateral of
such new Guarantor and a pledge of 100% of the Equity Interests of such new Guarantor and its
Domestic Subsidiaries and 65% (or such higher percentage that would not result in material adverse
tax consequences for such new Guarantor) of the voting Equity Interests and 100% of the non-voting
Equity Interests of its first-tier Foreign Subsidiaries; provided, that in no event shall
any Credit Party be obligated to provide a pledge of any of the Equity Interests of any Excluded
Subsidiary. In connection with the foregoing, the Credit Parties shall deliver to the
Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially
the same documentation required pursuant to Sections 4.1(b)-(f) and 5.12 and such other documents
or agreements as the Administrative Agent may reasonably request.



     Section 5.11 Compliance with Law.



     Comply with all laws, rules, regulations and orders, and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and its property, except in such instances in
which (a) such law, rule, regulation, order or restriction is being contested in good faith by
appropriate proceedings diligently conducted or (b) such noncompliance with any such law, rule,
regulation, order or restriction, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.



     Section 5.12 Pledged Assets.




     (a) Cause 100% of the Equity Interests in each of its direct or indirect Domestic
Subsidiaries (other than Excluded Subsidiaries) and 65% of the Equity Interests in each of
its Foreign Subsidiaries to be subject at all times to a first priority, perfected Lien in
favor of the Administrative Agent pursuant to the terms and conditions of the Security
Documents or such other security documents as the Administrative Agent shall reasonably
request.




     (b) If, subsequent to the Closing Date, a Credit Party shall acquire any real
property or any securities, instruments, chattel paper or other personal property required
for perfection to be delivered to the Administrative Agent as Collateral hereunder or under
any of the Security Documents, promptly (and in any event within three (3) Business Days)
after any Responsible Officer of a Credit Party acquires knowledge of same notify the
Administrative Agent of same.



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     (c) Each Credit Party shall, and shall cause each of its Subsidiaries (other than
Excluded Subsidiaries) to, take such action at its own expense as requested by the
Administrative Agent (including, without limitation, any of the actions described in
Section 4.1(d) or (e) hereof and delivery of opinions of counsel) to ensure that the
Administrative Agent has a first priority perfected Lien (subject to Permitted Liens) to
secure the Credit Party Obligations in (i) subject to the limitations set forth in the
Security Agreement, all personal property of the Credit Parties located in the United States
(other than any liquor licenses held by Excluded Subsidiaries), (ii) subject to the
limitations set forth in the Security Agreement, to the extent deemed to be material by the
Administrative Agent or the Required Lenders in its or their sole reasonable discretion, all
other personal property of the Credit Parties (other than any liquor licenses held by
Excluded Subsidiaries), (iii) subject to Section 5.17, all owned real property of the Credit
Parties located in the United States and (iv) subject to Section 5.17, all leased real
property of the Credit Parties located in the United States. Each Credit Party shall, and
shall cause each of its Subsidiaries to, adhere to the covenants regarding the location of
personal property as set forth in the Security Documents.



     Section 5.13 [Reserved].



     Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights.




     (a) Notify the Administrative Agent promptly if it knows or has reason to know that
any application, letters patent or registration relating to any Patent, Patent License,
Trademark or Trademark License of the Credit Parties or any of their Subsidiaries may become
abandoned, or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding in the
United States Patent and Trademark Office or any court) regarding a Credit Party’s or any of
its Subsidiary’s ownership of any Patent or Trademark, its right to patent or register the
same, or to enforce, keep and maintain the same, or its rights under any Patent License or
Trademark License, in each case to the extent any such developments could reasonably be
expected to have a Material Adverse Effect.




     (b) Notify the Administrative Agent promptly after it knows or has reason to know
of any adverse determination or development (including, without limitation, the institution
of, or any such determination or development in, any proceeding in any court) regarding any
Copyright or Copyright License of the Credit Parties or any of their Subsidiaries, whether
(i) such Copyright or Copyright License may become invalid or unenforceable prior to its
expiration or termination, or (ii) such Credit Party’s or any of its Subsidiary’s ownership
of such Copyright, its right to register the same or to enforce, keep and maintain the same,
or its rights under such Copyright License, may become affected, in each case to the extent
any such developments could reasonably be expected to have a Material Adverse Effect.




     (c) (i) Concurrently, with the delivery of quarterly and annual financial
statements of the Borrower pursuant to Section 5.1 hereof, provide the Administrative Agent
and its counsel a complete and correct list of all Intellectual Property owned by the Credit
Parties or any of their Subsidiaries that have not been set forth as annexes of such
documents and instruments; and (ii) upon request of the Administrative Agent, execute and
deliver any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent’s security interest in the
Intellectual Property and the general intangibles referred to in clause (i) owned by the
Credit Parties.




     (d) Take all necessary actions, including, without limitation, in any proceeding
before the United States Patent and Trademark Office or the United States Copyright Office,
to



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maintain each material item of Intellectual Property owned by the Credit Parties and their
Subsidiaries, including, without limitation, payment of maintenance fees, filing of
applications for renewal, affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.




     (e) In the event that any Credit Party becomes aware that any Intellectual Property
owned by a Credit Party is infringed, misappropriated or diluted by a third party in any
material respect, notify the Administrative Agent promptly after it learns thereof and,
unless the Credit Parties shall reasonably determine that such Intellectual Property is not
material to the business of the Credit Parties and their Subsidiaries taken as a whole take
such actions as the Credit Parties shall reasonably deem appropriate under the circumstances
to protect such Intellectual Property.



     Section 5.15 Use of Proceeds.



     Use the proceeds of the Extensions of Credit (i) to pay certain costs, fees and expenses in
connection with the Transactions, (ii) to refinance certain existing Indebtedness of the Borrower,
(iii) to pay any fees and expenses associated with this Credit Agreement on the Closing Date and
(iv) for working capital and other general corporate purposes (including, without limitation,
Capital Expenditures permitted hereunder and Permitted Acquisitions), in each case not in
contravention of any Law or Loan Document.



     Section 5.16 Further Assurances.




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




     (b) Intellectual Property. Within (30) days after the Closing Date, the
Borrower and each other applicable Credit Party shall file or cause to be filed with the
United States Patent and Trademark Office such documentation as reasonably requested by the
Administrative Agent so that the applicable records correctly reflect the applicable Credit
Party’s ownership in its current name of the applicable registered patents and trademarks
(or applications therefore) listed on Schedule 3.14.




     (c) Endorsements to Insurance Policies. Unless the Administrative Agent
shall agree otherwise, within sixty (60) days after the Closing Date, each liability and
casualty insurance policy referred to in Section 5.5 shall include satisfactory
endorsements meeting the requirements set forth herein.



     Section 5.17 Further Assurances Regarding Real Property.




     (a) Within thirty (30) days after the Closing Date (or in each case such later date
as may be agreed by the Administrative Agent), the Administrative Agent shall have received
the following, in each case in form and substance reasonably satisfactory to the
Administrative Agent:



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     (i) fully executed and notarized Mortgage Instruments encumbering the owned
real Properties listed in Schedule 3.16(a);




     (ii) a title commitment obtained by the Credit Parties in respect of each
of the owned real Properties listed in Schedule 3.16(a);




     (iii) surveys of the owned real Properties listed in
Schedule 3.16(a);




     (iv) an opinion of counsel to the Credit Parties for each jurisdiction in
which the owned real Properties listed on Schedule 3.16(a) is located; and




     (v) evidence as to (A) whether any Mortgaged Property is a Flood Hazard
Property and (B) if any Mortgaged Property is a Flood Hazard Property, (x) whether
the community in which such Mortgaged Property is located is participating in the
National Flood Insurance Program, (y) the applicable Credit Party’s written
acknowledgment of receipt of written notification from the Administrative Agent (I)
as to the fact that such Mortgaged Property is a Flood Hazard Property and (II) as
to whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program and (z) copies of insurance
policies or certificates of insurance of the Credit Parties and their Subsidiaries
evidencing flood insurance reasonably satisfactory to the Administrative Agent and
naming the Administrative Agent as loss payee on behalf of the Lenders.




     (b) With respect to any leased real property, to the extent there is located at
such any such leased location any personal property Collateral with a fair market value in
excess of $250,000 the Borrower shall use commercially reasonable efforts to obtain a
landlord waiver, in each case, substantially in the form attached as Exhibit 5.17(b)
hereto or otherwise in form and substance satisfactory to the Administrative Agent;
provided that the failure of any such landlord to provide such waiver after the
exercise of commercially reasonable efforts by the Borrower shall not, in and of itself, be
deemed a Default or Event of Default hereunder.



     Section 5.18 Exercise of Rights.



     The Credit Parties will, and will cause each of their Subsidiaries to, enforce all of the
Credit Parties’ and their Subsidiaries’ material rights, and pursue all material remedies available
to the Credit Parties and their Subsidiaries with diligence and in good faith in connection with
the enforcement of any such rights, in each case in accordance with the reasonable business
judgment of their respective boards of directors after taking into account the interests of the
Lenders and the Administrative Agent.



ARTICLE VI




NEGATIVE COVENANTS



     The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated and the Credit
Party Obligations (other than contingent indemnification obligations) have been paid in full, that:




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     Section 6.1 Indebtedness.



     The Credit Parties will not, nor will they permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Indebtedness, except:




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




     (b) Indebtedness existing as of the Closing Date as set forth on Schedule
6.1(b) and any renewals, refinancings or extensions thereof in a principal amount not in
excess of that outstanding as of the date of such renewal, refinancing or extension;




     (c) Indebtedness incurred after the Closing Date consisting of Capital Leases or
Indebtedness incurred to provide all or a portion of the purchase price or cost of
construction of an asset; provided that (i) such Indebtedness when incurred shall
not exceed the purchase price or cost of construction of such asset; (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing; and (iii) the total amount of all such
Indebtedness (excluding any such Indebtedness consisting of a Sale-Leaseback Transaction
permitted under Section 6.12 to the extent such lease is deemed to be a Capital Lease) shall
not exceed $10,000,000 at any time outstanding;




     (d) Indebtedness and obligations owing under Secured Hedging Agreements and other
Hedging Agreements entered into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;




     (e) Indebtedness owed from a Credit Party to another Credit Party;




     (f) Guaranty Obligations in respect of Indebtedness and other obligations of the
Borrower or a Subsidiary to the extent such Indebtedness or other obligation is permitted to
exist or be incurred pursuant to this Section 6.1, in each case to the extent the related
Investment made by the provider of such Guaranty Obligation is permitted under Section 6.5;
and




     (g) other unsecured Indebtedness of Credit Parties which does not exceed $10,000,000 in
the aggregate at any time outstanding.



     Section 6.2 Liens.



     The Credit Parties will not, nor will they permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Lien with respect to any of their respective property or assets of
any kind (whether real or personal, tangible or intangible), whether now owned or hereafter
acquired, except for Permitted Liens. Notwithstanding the foregoing, if a Credit Party shall grant
a Lien on any of its assets in violation of this Section 6.2, then it shall be deemed to have
simultaneously granted an equal and ratable Lien on any such assets in favor of the Administrative
Agent for the benefit of the Lenders.



     Section 6.3 Nature of Business.



     The Credit Parties will not, nor will they permit any Subsidiary to, alter in any material
respect the character or conduct the businesses conducted by the Borrower and its Subsidiaries as
of the Closing Date, and other businesses that are ancillary or related thereto.



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     Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.



     The Credit Parties will not, nor will they permit any Subsidiary to:




     (a) dissolve, liquidate or wind up its affairs, consolidate or merge with another
Person, or sell, transfer, lease or otherwise dispose of its property or assets or agree to
do so at a future time except the following, without duplication, shall be expressly
permitted:




     (i) Specified Sales;




     (ii) the disposition of property or assets as a result of a Recovery Event to
the extent the Net Cash Proceeds therefrom are used to repay Loans pursuant to
Section 2.7(b)(v) or repair or replace damaged property or to purchase or otherwise
acquire new assets or property in accordance with the terms of Section 2.7(b)(v);




     (iii) the sale, lease or transfer of property or assets from a Credit Party to
another Credit Party; provided that prior to or simultaneously with any such sale,
lease or transfer, all actions reasonably required by the Administrative Agent shall
be taken to insure the continued perfection and priority of the Administrative
Agent’s Liens on such property and assets;




     (iv) the consolidation, liquidation or merger of a Credit Party into another
Credit Party or any Subsidiary into a Credit Party; provided that (A) prior to or
simultaneously with any such consolidation, liquidation or merger, all actions
reasonably required by the Administrative Agent shall be taken to insure the
continued perfection and priority of the Administrative Agent’s Liens on the
property and assets of each such Credit Party and (B) if such consolidation,
liquidation or merger involves the Borrower, the Borrower shall be the surviving
entity;




     (v) the termination of any Hedging Agreement permitted pursuant to Section 6.1;




     (vi) Sale-Leaseback Transactions permitted pursuant to Section 6.12(ii);




     (vii) the sale, transfer or other disposition of property or assets in
connection with the closing or relocation of restaurants not to exceed $10,000,000
in any fiscal year or $25,000,000 in the aggregate during the term of this Credit
Agreement; and




     (viii) other sales, leases or transfers of property or assets (excluding sale
and lease-back transactions) in an amount not to exceed $25,000,000 in the aggregate
during the term of this Credit Agreement;



     provided, that, with respect to clauses (i), (ii) and (vi) above, at least 75% of the
consideration received therefor by such Credit Party shall be in the form of cash or Cash
Equivalents; or




     (b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of
related transactions) the property or assets of any Person (other than purchases or other
acquisitions of inventory, leases, materials, property and equipment in the ordinary course
of business, except as otherwise limited or prohibited herein) or (ii) enter into any
transaction of merger or consolidation, except for (A) transactions permitted pursuant to
Section 6.4(a), (B) Investments permitted pursuant to Section 6.5, and (C) Permitted
Acquisitions.



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     Section 6.5 Advances, Investments and Loans.



     The Credit Parties will not, nor will they permit any Subsidiary to, lend money or extend
credit or make advances to any Person, or purchase or acquire any stock, obligations or securities
of, or any other interest in, or make any capital contribution to, any Person except for Permitted
Investments.



     Section 6.6 Transactions with Affiliates.



     Except for transactions expressly permitted hereunder, the Credit Parties will not, nor will
they permit any Subsidiary to, enter into any transaction or series of transactions, whether or not
in the ordinary course of business, with any officer, director, shareholder or Affiliate other than
on terms and conditions substantially as favorable as would be obtainable in a comparable
arm’s-length transaction with a Person other than an officer, director, shareholder or Affiliate;
provided that the Credit Parties shall provide the Administrative Agent with a written
notice of any such proposed permitted transaction a reasonable number of Business Days in advance
of the consummation of such transaction (which written notice shall set forth a summary of the
material terms of such transaction and a copy of all documentation proposed to be executed or
delivered in connection therewith); and provided further that so long as no Default
or Event of Default is continuing the foregoing restriction shall not apply to management fees and
expenses permitted by Section 6.14.



     Section 6.7 Ownership of Subsidiaries; Restrictions.



     The Credit Parties will not, nor will they permit any Subsidiary to, (a) permit any person
(other than the Borrower or any a wholly owned Subsidiary of the Borrower) to own any Equity
Interests of any Subsidiary of the Borrower (other than to satisfy the requirements of
applicable state law with respect to ownership of Equity Interests of a Subsidiary formed primarily
for the purpose of holding the liquor license for a facility operated by the Credit Parties), (b)
permit any Subsidiary of the Borrower to issue or have outstanding any shares of preferred Equity
Interests, (c) permit, create, incur or assume or suffer to exist any Lien on any Equity Interests
of any Subsidiary of the Borrower, except for Permitted Liens, or (d) become a general partner in a
partnership.



     Section 6.8 Fiscal Year; Organizational Documents; Material Contracts; Etc.



     No Credit Party will, nor will they permit any of its Subsidiaries to, (a) change its fiscal
year, (b) amend, modify or change its articles of incorporation, certificate of designation (or
corporate charter or other similar organizational document) operating agreement or bylaws (or other
similar document) in any respect adverse to the interests of the Lenders without the prior written
consent of the Required Lenders, (c) change its state of incorporation, organization or formation
or have more than one state of incorporation, organization or formation, or (d) make any change in
accounting polices or reporting practices, except as required by GAAP.



     Section 6.9 Limitation on Restricted Actions.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any such Person to (a) pay dividends or make any other distributions to any Credit
Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party,
(c) make loans or advances to any Credit Party, (d) sell, lease or transfer any of its properties
or assets to any Credit Party, or (e) act as a Guarantor or encumber its assets pursuant to the
Credit Documents, except (in respect of any of the matters referred



87









 




to in clauses (a)-(d) above) for such encumbrances or restrictions existing under or by reason
of (i) this Credit Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section 6.1(c); provided
that any such restriction contained therein relates only to the asset or assets constructed or
acquired in connection therewith or (iv) any Permitted Lien or any document or instrument governing
any Permitted Lien; provided that any such restriction contained therein relates only to
the asset or assets subject to such Permitted Lien.




     Section 6.10 Restricted Payments; Prepayments of Other Indebtedness.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly:




     (a) declare, order, make or set apart any sum for or pay any Restricted Payment,
except:




     (i) to make dividends payable solely in the same class of Equity Interests of
such Person;




     (ii) to make dividends or other distributions payable to any Credit Party;




     (iii) the Borrower may repurchase, redeem, or otherwise acquire for value any
Equity Interests of the Borrower; provided that the aggregate amount of
Restricted Payments made by the Borrower pursuant to this clause (iii) may not
exceed (A) $5,000,000 million in any fiscal year, and (B) $10,000,000 for all such
Restricted Payments made after the Closing Date; provided, further,
that no Default or Event of Default then exists or would exist after giving effect
to any Restricted Payment made pursuant to this clause (iii), and the Credit Parties
shall demonstrate to the reasonable satisfaction of the Administrative Agent that,
after giving effect to such payment on a Pro Forma Basis, the Credit Parties are in
compliance with each of the financial covenants set forth in Section 5.9;




     (iv) there shall be permitted hereunder (A) the repurchase of Equity Interests
by the Borrower deemed to occur upon the exercise of options, warrants or other
convertible securities to the extent such Equity Interests represents a portion of
the exercise price of those options, warrants or other convertible securities, and
(B) cash payments in lieu of the issuance of fractional shares in connection with
the exercise of options, warrants or other convertible securities;




     (v) so long as no Event of Default shall have occurred and be continuing, the
Borrower may make additional dividends or distributions to its shareholders not
otherwise permitted above; provided that the aggregate amount of all
Restricted Payments made after the Closing Date in reliance on this clause (v) shall
not exceed $5,000,000; and




     (vi) to make payments of earnout obligations in connection with Permitted
Acquisitions.




     (b) if any Default or Event of Default has occurred and is continuing or would be
directly or indirectly caused as a result thereof, make (or give any notice with respect
thereto) any voluntary, optional or other non-scheduled payment, prepayment, redemption,
acquisition for value (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange of any



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Indebtedness of such Person (other than Indebtedness under the Credit Documents) (in
each case, whether or not mandatory); or




     (c) make any payment in respect of any Subordinated Debt in violation of the relevant
subordination provisions.



     Section 6.11 Amendment of Debt Documents.




The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly:




     (a) if any Default or Event of Default has occurred and is continuing or would be
directly or indirectly caused as a result thereof, amend or modify any of the terms of any
Indebtedness of such Person (other than Indebtedness under the Credit Documents) if such
amendment or modification would add or change any terms in a manner adverse to such Person,
or shorten the final maturity or average life to maturity or require any payment to be made
sooner than originally scheduled or increase the interest rate applicable thereto;




     (b) designate any Indebtedness (other than the Obligations) as “Designated Senior
Indebtedness” (or any comparable term) for the purposes of the documentation governing any
Subordinated Debt, or otherwise provide the holders of any Indebtedness (other than the
Obligations) with the right to deliver a “Blockage Notice” or other rights customarily
granted to the holders of “Designated Senior Indebtedness” (or any comparable term); or




     (c) amend or modify any of the terms of any Subordinated Debt of such Person if such
amendment or modification would add or change any terms in a manner adverse to such Person,
shorten the final maturity or average life to maturity thereof or require any payment to be
made sooner than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof.



     Section 6.12 Sale-Leaseback Transactions.



     The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
become or remain liable as lessee or as a guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (a) which any Credit Party or any of their Subsidiaries
has sold or transferred or is to sell or transfer to any other Person (other than the Borrower or
any of its Subsidiaries) or (b) which the Borrower or any of its Subsidiaries intends to use for
substantially the same purpose as any other property which has been or is to be sold or transferred
by the Borrower or any of its Subsidiaries to any Person (other than the Borrower or any of its
Subsidiaries) in connection with such lease (any such transaction, a “Sale-Leaseback
Transaction”); provided that:




     (i) the Credit Parties may remain liable as lessee or as a guarantor or other
surety with respect to any lease entered into by any such Credit Party prior to the
Closing Date and set forth on Schedule 6.12 hereto; and




     (ii) to the extent such Sale-Leaseback Transaction relates to a New Property,
the Credit Parties may become liable as lessee, guarantor or other surety with
respect to a new lease that would otherwise be prohibited by this Section 6.12 to
the extent that (A) such lease, if a Capital Lease, is permitted pursuant to Section
6.1(c), (B) the consideration received shall be at least equal to the fair market
value of the property sold as determined in good faith by the Credit Party’s board
of directors or other comparable



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managing body, (C) such Sale-Leaseback Transaction shall be completed on an
arm’s-length basis on terms reasonably acceptable to the Administrative Agent, (D)
no Default or Event of Default shall exist or would exist after giving effect
thereto, (E) the Credit Parties shall be in pro forma compliance with the financial
covenants set forth in Section 5.9, (F) such Sale-Leaseback Transaction shall be
completed within 360 days of the acquisition or completion of construction,
improvement or remodeling, as the case may be, of such property or asset by the
Credit Parties; (G) the aggregate amount of assets sold pursuant to all
Sale-Leaseback Transactions made under this subsection (ii) shall not exceed
$20,000,000 during the term of this Credit Agreement.



     Section 6.13 No Further Negative Pledges.



     The Credit Parties will not, nor will they permit any Subsidiary to, enter into, assume or
become subject to any agreement prohibiting or otherwise restricting the creation or assumption of
any Lien upon its properties or assets, whether now owned or hereafter acquired, or requiring the
grant of any security for such obligation if security is given for some other obligation, except
(a) pursuant to this Credit Agreement and the other Credit Documents, (b) pursuant to any document
or instrument governing Indebtedness incurred pursuant to Section 6.1(c); provided that any
such restriction contained therein relates only to the asset or assets constructed or acquired in
connection therewith, and (c) in connection with any Permitted Lien or any document or instrument
governing any Permitted Lien; provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien.



     Section 6.14 Management Fees.



     The Credit Parties shall not, nor will they permit any Subsidiary to, directly or indirectly,
pay any management, consulting or similar fees to any Affiliate or to any manager, director,
officer or employee of the Credit Parties or any of their Subsidiaries.



     Section 6.15 Use of Proceeds.



     The Credit Parties will not, and will not permit any Subsidiary to, use the proceeds of any
Extension of Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for
such purpose.



ARTICLE VII




EVENTS OF DEFAULT



     Section 7.1 Events of Default.



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




     (a) Payment Default. (i) The Borrower shall fail to pay any principal on any
Loan or Note when due (whether at maturity, by reason of acceleration or otherwise) in
accordance with the terms thereof or hereof; or (ii) the Borrower shall fail to reimburse
the Issuing Lender for any LOC Obligations when due (whether at maturity, by reason of
acceleration or otherwise) in accordance with the terms hereof; or (iii) the Borrower shall
fail to pay any interest on any Loan



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or any fee or other amount payable hereunder when due (whether at maturity, by reason
of acceleration or otherwise) in accordance with the terms hereof and such failure shall
continue unremedied for three (3) Business Days; or (iv) any Guarantor shall fail to pay on
the Guaranty in respect of any of the foregoing or in respect of any other Guaranty
Obligations hereunder.




     (b) Misrepresentation. Any representation or warranty made or deemed made
herein, in the Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement furnished at any time
under or in connection with this Credit Agreement shall prove to have been incorrect, false
or misleading in any material respect on or as of the date made or deemed made.




     (c) Covenant Default. (i) Any Credit Party shall fail to perform, comply with
or observe any term, covenant or agreement applicable to it contained in Sections 5.1, 5.2,
5.4, 5.6, 5.7, 5.9 or Article VI hereof; or (ii) any Credit Party shall fail to comply with
any other covenant contained in this Credit Agreement or the other Credit Documents or any
other agreement, document or instrument among any Credit Party, the Administrative Agent and
the Lenders or executed by any Credit Party in favor of the Administrative Agent or the
Lenders (other than as described in Sections 7.1(a) or 7.1(c)(i) above), and such breach or
failure to comply is not cured within thirty (30) days of its occurrence.




     (d) Debt Cross-Default. (i) any Credit Party shall default in any payment of
principal of or interest on any Indebtedness (other than the Loans, Reimbursement
Obligations, the Guaranty) in a principal amount outstanding of at least $5,000,000 for the
Borrower and any of its Subsidiaries in the aggregate beyond any applicable grace period
(not to exceed 30 days), if any, provided in the instrument or agreement under which such
Indebtedness was created; (ii) any Credit Party shall default in the observance or
performance of any other agreement or condition relating to any Indebtedness (other than the
Loans, Reimbursement Obligations, the Guaranty) in a principal amount outstanding of at
least $5,000,000 in the aggregate for the Credit Parties and their Subsidiaries or contained
in any instrument or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or to be repurchased, prepaid,
deferred or redeemed (automatically or otherwise); or (iii) any Credit Party shall breach or
default any Secured Hedging Agreement or Secured Cash Management Agreement.




     (e) [Reserved]




     (f) Bankruptcy Default. (i) The Credit Parties or any of their Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect to it, or
seeking to have it judged bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of its
assets, or the Credit Parties or any of their Subsidiaries shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the any Credit
Party or any of its Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a
period



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of 60 days (provided that no Lender shall be required to make an Extension of Credit
during such 60 day period); or (iii) there shall be commenced against any Credit Party or
any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof (provided that no Lender shall be required to make an Extension of Credit
during such 60 day period); or (iv) the Credit Parties or any of their Subsidiaries shall
take any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) the
Credit Parties or any of their Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due.




     (g) Judgment Default. One or more judgments, orders, decrees or arbitration
awards shall be entered against the Credit Parties or any of their Subsidiaries involving in
the aggregate a liability (to the extent not paid when due or covered by insurance) of
$5,000,000 or more and all such judgments, orders, decrees or arbitration awards shall not
have been paid and satisfied, vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof.




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




     (i) Change of Control. A Change of Control shall have occurred.




     (j) Failure of Credit Documents. This Credit Agreement (including the
Guaranty) or any other Credit Document or any provision hereof or thereof shall cease to be
in full force and effect (other than in accordance with its terms) or to give the
Administrative Agent and/or the Lenders the security interests, liens, rights, powers and
privileges purported to be created thereby, or any Credit Party or any Person acting by or
on behalf of any Credit Party shall (i) deny or disaffirm any Credit Party’s obligations
under this Credit Agreement or any other Credit Document or (ii) assert the invalidity or
lack of perfection or priority of any Lien granted to the Administrative Agent pursuant to
the Security Documents.




     (k) Hedging Agreement. Any termination payment shall be due by a Credit Party
under any Hedging Agreement and such amount is not paid within the later to occur of five
(5) Business Days after the due date thereof or the expiration of grace periods, if any, in
such Hedging Agreement.



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     (l) Subordinated Debt. Any default (which is not waived or cured within the
applicable period of grace) or event of default shall occur under any Subordinated Debt or
the subordination provisions contained therein shall cease to be in full force and effect or
to give the Lenders the rights, powers and privileges purported to be created thereby.



     Section 7.2 Acceleration; Remedies.



     Upon the occurrence and during the continuation of an Event of Default, then, and in any such
event, (a) if such event is a Bankruptcy Event, automatically the Commitments shall immediately
terminate and the Loans (with accrued interest thereon), and all other amounts under the Credit
Documents (including without limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and the Borrower shall immediately pay
to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent
drawings under then outstanding Letters of Credit in an amount equal to the maximum amount which
may be drawn under Letters of Credit then outstanding, and (b) if such event is any other Event of
Default, subject to the terms of Section 8.5, with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders, the Administrative
Agent shall, take any or all of the following actions: (i) by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; (ii)
by notice of default to the Borrower declare the Loans (with accrued interest thereon) and all
other amounts owing under this Credit Agreement and the Notes to be due and payable forthwith and
direct the Borrower to pay to the Administrative Agent Cash Collateral as security for the LOC
Obligations for subsequent drawings under then outstanding Letters of Credit in an amount equal to
the maximum amount of which may be drawn under Letters of Credit then outstanding, whereupon the
same shall immediately become due and payable; and/or (iii) exercise on behalf of the Lenders all
of its other rights and remedies under this Credit Agreement, the other Credit Documents and
applicable law. Except as expressly provided above in this Section 7.2, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the Credit Parties.



ARTICLE VIII




THE ADMINISTRATIVE AGENT



     Section 8.1 Appointment and Authority.



     Each of the Lenders and the Issuing Lender hereby irrevocably appoints Wells Fargo to act on
its behalf as the Administrative Agent hereunder and under the other Credit Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the Issuing Lender, and neither the
Borrower nor any other Credit Party shall have rights as a third party beneficiary of any of such
provisions.



     Section 8.2 Nature of Duties.



     The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Credit Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The



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exculpatory provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.




     Section 8.3 Exculpatory Provisions.



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




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




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




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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 9.1 and 7.2) or (ii) in the absence of
its own gross negligence or willful misconduct.



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



     Section 8.4 Reliance by Administrative Agent.



     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by



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it to have been made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making of a Loan, or the
issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender
or the Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to
such Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of
such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.




     Section 8.5 Notice of Default.



     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received written
notice from a Lender or the Borrower referring to this Credit Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default.” In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required Lenders;
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders except to the extent that this Credit
Agreement expressly requires that such action be taken, or not taken, only with the consent or upon
the authorization of the Required Lenders, or all of the Lenders, as the case may be.



     Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.



     Each Lender and the Issuing Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representation or warranty to it and that no act by the Administrative Agent hereinafter
taken, including any review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each Lender and the Issuing
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the Issuing Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this Agreement, any other
Credit Document or any related agreement or any document furnished hereunder or thereunder.



     Section 8.7 Indemnification.



     The Lenders agree to indemnify the Administrative Agent, the Issuing Lender, and the Swingline
Lender in its capacity hereunder and their Affiliates and their respective officers, directors,
agents and employees (to the extent not reimbursed by the Credit Parties and without limiting the
obligation of the Credit Parties to do so), ratably according to their respective Pro Rata Shares
in effect on the date on which indemnification is sought under this Section, from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Credit Party Obligations) be imposed on,
incurred by or asserted against any such indemnitee in any



95









 




way relating to or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the Transactions or any action taken or omitted by any such
indemnitee under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from such indemnitee’s gross negligence or willful misconduct, as determined by a
court of competent jurisdiction. The agreements in this Section shall survive the termination of
this Agreement and payment of the Notes, any Reimbursement Obligation and all other amounts payable
hereunder.




     Section 8.8 The Administrative Agent in Its Individual Capacity.



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



     Section 8.9 Successor Administrative Agent.



     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Lender and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, subject to the Borrower’s approval unless an Event of Default has
occurred and is continuing (such approval not to be unreasonably withheld), to appoint a Lender or
an Affiliate of a Lender as a successor. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30) days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the Issuing Lender, appoint a successor Administrative
Agent; provided, that such successor Administrative Agent has minimum capital and surplus
of at least $500,000,000. If no successor administrative agent has accepted appointment as
Administrative Agent within sixty (60) days after the Administrative Agent giving notice of
resignation, then such resignation shall nonetheless become effective in accordance with such
notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents (except that in the case of any
Collateral held by the Administrative Agent on behalf of the Lenders or the Issuing Lender under
any of the Credit Documents, the retiring Administrative Agent shall continue to hold such
Collateral until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this paragraph.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Credit Documents (if
not already discharged therefrom as provided above in this paragraph). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Credit Documents, the provisions of this Article
and Section 9.5 shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.



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     Any resignation by Wells Fargo Bank, as Administrative Agent pursuant to this Section shall
also constitute its resignation as Issuing Lender and Swingline Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender
and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender shall be discharged from
all of their respective duties and obligations hereunder or under the other Credit Documents, and
(c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender
with respect to such Letters of Credit; provided that Wells Fargo Bank shall remain an
Issuing Lender hereunder with respect to any outstanding Letter of Credit issued prior to its
resignation until such Letter of Credit has expired or is replaced.



     Section 8.10 Other Agents.



     None of the Lenders or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co—agent,” “book manager,” “book
runner,” “lead manager,” “arranger,” “lead arranger” or “co—lead arranger” shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other than, in the case
of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders or other Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely,
on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.



     Section 8.11 [Reserved].



     Section 8.12 Collateral and Guaranty Matters.




     (a) The Lenders irrevocably authorize and direct the Administrative Agent:




     (i) to release any Lien on any Property granted to or held by the
Administrative Agent under any Credit Document (A) upon termination of the Revolving
Commitments and payment in full of all Credit Party Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (B) that is transferred or to be transferred as part of or in
connection with any sale or other disposition permitted under Section 6.4, or (C)
subject to Section 9.1, if approved, authorized or ratified in writing by the
Required Lenders;




     (ii) to subordinate any Lien on any Collateral granted to or held by the
Administrative Agent under any Credit Document to the holder of any Lien on such
Collateral that is permitted by Section 6.2; and




     (iii) to release any Guarantor from its obligations under the applicable
Guaranty if such Person ceases to be a Guarantor as a result of a transaction
permitted hereunder.




     (b) In connection with a termination or release pursuant to this Section 8.12, the
Administrative Agent shall promptly execute and deliver to the applicable Credit Party, at
the Borrower’s expense, all documents that the applicable Credit Party shall reasonably
request to evidence such termination or release. Upon request by the Administrative Agent
at any time, the Required Lenders will confirm in writing such Agent’s authority to release
or subordinate its



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interest in particular types or items of Collateral, or to release any Guarantor from
its obligations under the Guaranty pursuant to this Section 8.12.



     Section 8.13 Secured Hedging Agreements/Bank Products.



     Except as otherwise expressly provided in Section 9.1, no Hedging Agreement Provider or Cash
Management Agreement Provider that obtains the benefits of Sections 2.11 and 7.2, any Guaranty or
any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document
shall have any right to notice of any action or to consent to, direct or object to any action
hereunder or under any other Credit Document or otherwise in respect of the Collateral (including
the release or impairment of any Collateral) other than in its capacity as a Lender and, in such
case, only to the extent expressly provided in the Credit Documents. The Administrative Agent
shall not be required to verify the payment of, or that other satisfactory arrangements have been
made with respect to, Obligations arising under Secured Hedging Agreement or Secured Cash
Management Agreements unless the Administrative Agent has received written notice of such
Obligations, together with such supporting documentation as the Administrative Agent may request,
from the applicable Hedging Agreement Provider or Cash Management Agreement Provider.



ARTICLE IX




MISCELLANEOUS



     Section 9.1 Amendments, Waivers and Release of Collateral.




     (a) General. Neither this Credit Agreement nor any of the other Credit
Documents, nor any terms hereof or thereof may be amended, modified, extended, restated,
replaced or supplemented, (by amendment, waiver, consent or otherwise) except in accordance
with the provisions of this Section nor may the Borrower or any Guarantor be released except
as specifically provided herein or in the Security Documents or otherwise in accordance with
the provisions of this Section 9.1. The Required Lenders may, or, with the written consent
of the Required Lenders, the Administrative Agent may, from time to time, (i) enter into
with the Borrower written amendments, supplements or modifications hereto and to the other
Credit Documents for the purpose of adding any provisions to this Credit Agreement or the
other Credit Documents or changing in any manner the rights of the Lenders or of the
Borrower or any other Credit Party hereunder or thereunder or (ii) waive or consent to the
departure from, on such terms and conditions as the Required Lenders may specify in such
instrument, any of the requirements of this Credit Agreement or the other Credit Documents
or any Default or Event of Default and its consequences; provided, however,
that no such waiver and no such amendment, waiver, supplement, modification, release waiver
or consent shall:




     (A) reduce the amount or extend the scheduled date of maturity of any
Loan or Note or any installment thereon, or reduce the stated rate of any
interest or fee payable hereunder (except in connection with a waiver of
Default Interest which shall be determined by a vote of the Required
Lenders) or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender’s Commitment, in each
case without the written consent of each Lender directly affected thereby;
provided that, it is understood and agreed that (1) no waiver,
modification, reduction or deferral of a mandatory prepayment required
pursuant to Section 2.7(b), nor any amendment of Section 2.7(b) or the
definitions of Asset Disposition, Debt Issuance, Excess



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Cash Flow, or Recovery Event, shall constitute a reduction of the amount of, or an
extension of the scheduled date of, any principal installment of any Loan or
Note (2) any reduction in the stated rate of interest on Revolving Loans
shall only require the written consent of each Lender holding a Revolving
Commitment and (3) any reduction in the stated rate of interest on the Term
Loan shall only require the written consent of each Lender holding a portion
of the outstanding Term Loan; or




     (B) except as contemplated in Section 9.1(c), amend, modify or waive
any provision of this Section 9.1(a) or reduce the percentage specified in
the definition of Required Lenders, without the written consent of all the
Lenders; or




     (C) amend, modify or waive any provision of Article VIII without the
written consent of the then Administrative Agent; or




     (D) except as otherwise provided in Section 8.12, release the Borrower
or all or substantially all of the Guarantors from their respective
obligations hereunder or under the Guaranty, without the written consent of
all of the Lenders; or




     (E) except as otherwise provided in Section 8.12, release all or
substantially all of the value of the Collateral without the written consent
of all the Lenders; or




     (F) subordinate the Loans to any other Indebtedness without the written
consent of all of the Lenders; or




     (G) permit a Letter of Credit to have an original expiry date more than
twelve (12) months from the date of issuance without the consent of each of
the Revolving Lenders; provided, that the expiry date of any Letter
of Credit may be extended in accordance with the terms of Section 2.3(a); or




     (H) permit the Borrower to assign or transfer any of its rights or
obligations under this Credit Agreement or other Credit Documents without
the written consent of all of the Lenders; or




     (I) amend, modify or waive any provision of the Credit Documents
requiring consent, approval or request of the Required Lenders or all
Lenders without the written consent of the Required Lenders or all the
Lenders as appropriate; or




     (J) (i) amend, modify or waive the definition of “Secured Hedging
Agreement,” “Hedging Agreement Provider” or “Secured Party” without the
consent of each Hedging Agreement Provider; or (ii) amend, modify or waive
the definition of “Secured Cash Management Agreement,” “Cash Management
Agreement Provider” or “Secured Party” without the consent of each Cash
Management Agreement Provider; or




     (K) so long as the Revolving Commitments remain outstanding, without
the written consent of the Revolving Lenders holding in the aggregate



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	 	 	 	more than 50% of the Revolving Commitments (or if the Revolving
Commitments have been terminated, 50% of the outstanding Revolving Loans and
Participation Interests (including the Participation Interests of the
Issuing Lender (in its capacity as a Lender) in any Letters of Credit and of
the Swingline Lender (in its capacity as a Lender) in any Swingline Loans)),
amend, modify or waive any provision in Section 4.2 or, solely as such
waiver or amendment relates to the satisfaction of Section 4.2(b), waive any
payment Default or payment Event of Default or any Event of Default under
Section 5.9(a) or Section 5.9(b) (or amend any Credit Document to
effectively waive any existing payment Default or payment Event of Default
or any existing Event of Default under Section 5.9(a) or Section 5.9(b)); or






     (L) amend, modify or waive the order in which Credit Party Obligations
are paid in Section 2.7(b)(viii) or the pro rata treatment of payments in
Section 2.11(a), without the written consent of Lenders holding in the
aggregate at least a majority of the outstanding Term Loan or




     (M) permit or consent to any foreclosure or trustee’s sale with respect
to any Mortgaged Property that has been subject to material contamination in
violation of applicable Environmental Laws without the written consent of
all the Lenders.



     provided, further, that no amendment, waiver or consent affecting the rights
or duties of the Administrative Agent, the Issuing Lender or the Swingline Lender under any Credit
Document shall in any event be effective, unless in writing and signed by the Administrative Agent,
the Issuing Lender and/or the Swingline Lender, as applicable, in addition to the Lenders required
hereinabove to take such action.



     Any such waiver, any such amendment, supplement or modification and any such release shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the other Credit
Parties, the Lenders, the Administrative Agent and all future holders of the Notes. In the case of
any waiver, the Borrower, the other Credit Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the outstanding Loans and Notes
and other Credit Documents, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.



     Notwithstanding any of the foregoing to the contrary, the consent of the Credit Parties shall
not be required for any amendment, modification or waiver of the provisions of Article VIII (other
than the provisions of Section 8.9); provided,
however, that the Administrative Agent will provide
written notice to the Borrower of any such amendment, modification or waiver.




     (b) Voting Rights in Bankruptcy; Defaulting Lenders. Notwithstanding the fact
that the consent of all the Lenders is required in certain circumstances as set forth above,
(A) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization
plan that affects the Loans, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein,
(B) the Required Lenders may consent to allow a Credit Party to use cash collateral in the
context of a bankruptcy or insolvency proceeding, and (C) no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, except (x)
that the Commitments of such Lender may not be increased or extended without the consent of
such Lender and (y) to the extent such amendment,



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waiver or consent is of the type contemplated by clauses (A)-(J) above and such
Defaulting Lender is adversely impacted by such amendment, waiver or consent more than the
other Lenders.




     (c) Incremental Facilities.




     (i) For the avoidance of doubt and notwithstanding any provision to the
contrary set forth in this Agreement or any other Loan Document, this Agreement may
be amended (or amended and restated) at any time and from time to time to increase
the Revolving Committed Amount or to establish one or more additional separate
tranches of term loans (each such increase to the Revolving Committed Amount and/or
establishment of a new tranche term loans being referred to herein as an
“Incremental Facility,” and all of such increases and establishments being
referred to collectively as the “Incremental Facilities”) to be made to the
Borrower by an agreement in writing entered into by the Borrower, the Administrative
Agent and each Person (including any Lender) that shall agree to provide any such
increase to the Revolving Commitments or such separate tranches of term loans (but
without the consent of any other Lender), and each such Person that shall not
already be a Lender shall, at the time such agreement becomes effective, become a
Lender with the same effect as if it had originally been a Lender under this
Agreement with the Revolving Commitment and/or term loan set forth in such
agreement; provided, however, that: (A) the aggregate principal
amount of additional Revolving Commitments and/or separate term loans effected after
the Closing Date pursuant to this Section 9.1(c) shall not exceed $20,000,000; (B)
no Default or Event of Default shall exist at the time that the amendment giving
effect to any such additional Revolving Commitments and/or the making of a separate
term loan, as applicable, becomes effective; (C) to the extent not consistent with
the terms applicable to the existing Term Loan Facility, and subject to the other
requirements of this Section 9.1(c), all terms and conditions in respect of any
Incremental Facility structured as a separate term loan tranche, will be reasonably
satisfactory to the Administrative Agent, (D) no Lender shall be obligated to
participate in any such increase by increasing its own commitment hereunder unless
such Lender elects to do so in its sole discretion at the time of such increase, (E)
any Incremental Facility structured as a separate term loan tranche shall not (1)
have a maturity date that occurs prior to the Maturity Date of the Term Loan or the
final maturity date of any other then existing Incremental Facility structured as a
separate term loan tranche or (2) have a weighted average life to maturity shorter
than the weighted average life to maturity of the Term Loan or any other then
existing Incremental Facility structured as a separate term loan tranche,
respectively, (F) the Applicable Yield of any Incremental Facility structured as a
separate term loan tranche may not exceed the Applicable Yield of the Term Loan by
more than 0.25% (it being understood that the Applicable Rate for the Term Loan may
be increased and/or additional fees may be paid to the Lenders holding the Tranche B
Term Loan to the extent necessary to satisfy such requirement) and (G) the
Applicable Yield of any Incremental Facility consisting of additional Revolving
Commitments may not exceed the Applicable Yield of the Revolving Facility (it being
understood that the Applicable Rate for the Revolving Facility may be increased
and/or additional fees may be paid to the existing Revolving Lenders to the extent
necessary to satisfy such requirement). Subject to the foregoing requirements, the
interest margin applicable to any new Revolving Commitments or Incremental Facility
structured as a separate term loan tranche, and the final maturity of any
Incremental Facility structured as a separate term loan tranche, shall be determined
at the time such Incremental Facility is made available, and all other terms
applicable to any additional Revolving Commitments shall be the same as those
applicable to the initial Revolving Commitments. The Loans and



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Commitments established pursuant to this Section 9.1(c) shall constitute Loans
and Commitments under, and shall be entitled to all the benefits afforded by, this
Agreement and the other Credit Documents and shall, without limitation of the
foregoing, benefit equally and ratably from the Guaranty and security interests
created by the Security Documents, and the Borrower shall take any actions
reasonably required by the Administrative Agent to ensure and/or demonstrate that
the requirements of this sentence are satisfied after the establishment of any such
Incremental Facility.




     (ii) Any such amendment (or amendment and restatement) effected pursuant to
Section 9.1(c) shall amend the provisions of this Agreement and the other Credit
Documents to set forth the terms of each Incremental Facility established thereby
(including the amount and the final maturity thereof, any provisions relating to the
amortization or mandatory prepayment thereof, the interest to accrue and be payable
thereon and any fees to be payable in respect thereof (in each case subject to any
applicable restrictions set forth in subsection (i) of this Section 9.1(c)) and to
effect such other changes (including changes to the provisions of Section 9.1(a),
Section 2.7 and the definition of “Required Lenders”) as the Borrower and the
Administrative Agent shall deem necessary or advisable in connection with the
establishment of any such Incremental Facility; provided, however,
that no such agreement shall: (A) effect any change described in any of clauses of
Section 9.1(a) without the consent of each Person required to consent to such change
under such clause (it being agreed, however, that any increase in the aggregate
Revolving Committed Amount or establishment of any Incremental Facility consisting
of a separate tranche of term loans will not, of itself, be deemed to effect any of
the changes described in Section 9.1(a), and that modifications to Section 2.7,
Section 2.11 or the definition of “Required Lenders” or other provisions relating to
voting provisions to provide the Persons providing the applicable Incremental
Facility with the benefit of such provisions will not, by themselves, be deemed to
effect any of the changes described in Section 9.1(a), or (B) amend Article
V, VI or VII in any manner that by its terms benefits one or
more tranches, but not all tranches, of Loans or Commitments without the prior
written consent of Lenders holding a majority in interest of the Revolving
Commitments then existing, if the Lenders holding Revolving Commitments are not so
benefited, and of Lenders holding a majority in interest of each separate tranche of
term loans then existing and not so benefited, (it being agreed that no provision
requiring the Borrower to prepay term loans of one or more Incremental Facilities
with the proceeds of Asset Dispositions, Recovery Events, Debt Issuances or with the
proceeds of Excess Cash Flow will be deemed to violate this clause).



     Section 9.2 Notices.




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



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	 	(i)	 	If to the Borrower or any other Credit Party:




Bravo Development, Inc.

777 Goodale Boulevard

Columbus, Ohio 43212

Attention: Jim O’Conner

Telecopier: (614) 340-7923

Telephone: (614) 355-0163

Email: joconnor@bbrg.com





	 	(ii)	 	If to the Administrative Agent:




Wells Fargo Bank, National Association

MAC D 1109-019

1525 W WT Harris

Charlotte, NC 28262

Attention: Cary Ritenour

Telecopier: (704) 590-2782

Telephone: (704) 590-2784

Email: carey.ritenour@wachovia.com



with a copy to:



Wells Fargo Bank, National Association

101 Federal Street, 20th Floor

Boston, MA 02110

Attention: Meghan Hinds

Telecopier: (617) 355-0163

Telephone: (704) 545-4301

Email: Meghan.Hinds@wellsfargo.com





     (iii) if to a Lender, to it at its address (or telecopier number) set forth in
its Administrative Questionnaire.




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




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



103









 






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




     (c) Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to the other
parties hereto.



     Section 9.3 No Waiver; Cumulative Remedies.



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



     Section 9.4 Survival of Representations and Warranties.



     All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Credit Agreement and the Notes and the making of the Loans; provided that
all such representations and warranties shall terminate on the date upon which the Commitments have
been terminated and all Credit Party Obligations have been paid in full.



     Section 9.5 Payment of Expenses and Taxes.




     (a) Costs and Expenses. The Credit Parties shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the reasonable fees, charges and disbursements of outside counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the
other Credit Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the Transactions shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Lender and the Swingline Lender in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or Swingline Loan
or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender, the Issuing Lender or the Swingline Lender (including the
fees, charges and disbursements of any outside counsel for the Administrative Agent, any
Lender, the Swingline Lender or the Issuing Lender) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other Credit
Documents, including its rights under this Section, or (B) in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.



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




     (c) Reimbursement by Lenders. To the extent that the Credit Parties for any
reason fail to indefeasibly pay any amount required under paragraph (a) or (b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing
Lender, Swingline Lender or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lender,
Swingline Lender or such Related Party, as the case may be, such Lender’s Pro Rata Share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent), the Issuing Lender or
Swingline Lender in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent), Issuing Lender or
Swingline Lender in connection with such capacity.




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, none of the Credit Parties shall assert, and each of the Credit Parties
hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising
out of, in connection with, or as a result of, this Agreement, any other Credit Document or
any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or
other information transmission



105









 






systems in connection with this Agreement or the other Credit Documents or the
Transactions, other than for actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court
of competent jurisdiction.




     (e) Payments. All amounts due under this Section shall be payable promptly/not
later than five (5) days after demand therefor.




     (f) Survival. The agreements contained in this Section shall survive the
resignation of the Administrative Agent, the Swingline Lender and the Issuing Lender, the
replacement of any Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of the Credit Party Obligations.



     Section 9.6 Successors and Assigns; Participations.




     (a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither the Borrower nor any other
Credit Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of paragraph
(f) of this Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in paragraph
(d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




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




     (B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Commitments (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $1,000,000
(provided, however, that



106









 






simultaneous assignments shall be aggregated in respect of a Lender and
its Approved Funds), unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed).




     (ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loan or the Commitment
assigned, except that this clause (ii) shall not prohibit any Lender from assigning
all or a portion of its rights and obligations among separate Tranches on a non-pro
rata basis.




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




     (A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any
such assignment unless it shall object thereto by written notice to the
Administrative Agent within ten (10) Business Days after having received
notice thereof;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (x) a Revolving Commitment if such assignment is to a Person that
is not a Lender with a Commitment in respect of such facility, an Affiliate
of such Lender or an Approved Fund with respect to such Lender or (y) a Term
Loan Commitment to a Person who is not a Lender, an Affiliate of a Lender or
an Approved Fund; and




     (C) the consent of the Issuing Lender and Swingline Lender (such
consent not to be unreasonably withheld or delayed) shall be required for
assignments in respect of a Revolving Commitment.




     (iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; provided that only
one (1) such fee shall be payable in respect of simultaneous assignments by a Lender
and its Approved Funds), and the assignee, if it is not a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to a Credit Party. No such assignment shall be made
to any Credit Party or any Credit Party’s Affiliates or Subsidiaries.




     (vi) No Assignment to a Defaulting Lender. No such assignment shall be
made to any Defaulting Lender or any Defaulting Lender’s Affiliates or Subsidiaries.




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



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     (viii) Certain Additional Payments. In connection with any assignment
of rights and obligations of any Defaulting Lender hereunder, no such assignment
shall be effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments to
the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (A) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder
(and interest accrued thereon), and (B) acquire (and fund as appropriate) its full
pro rata share of all Loans and Participation Interests in accordance with its Pro
Rata Share. Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become effective
under applicable law without compliance with the provisions of this paragraph, then
the assignee of such interest shall be deemed to be a Defaulting Lender for all
purposes of this Agreement until such compliance occurs.




     Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 2.14 and 9.5 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Charlotte, North Carolina a
copy of each Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.




     (d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or any Credit Party or any Credit Party’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its Commitment and/or
the Loans owing to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely



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responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the Lenders, Issuing Lender and Swingline
Lender shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.




     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver that
affects such Participant. Subject to paragraph (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.14 and 2.16 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.7 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.11 as though it were a Lender.




     (e) Limitations Upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Sections 2.14 and 2.16 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior
written consent. A Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16 as though it were a Lender.




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



     Section 9.7 Right of Set-off; Sharing of Payments.




     (a) If an Event of Default shall have occurred and be continuing, each Lender, the
Issuing Lender, the Swingline Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable
law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the Issuing Lender, the Swingline
Lender or any such Affiliate to or for the credit or the account of the Borrower or any
other Credit Party against any and all of the obligations of the Borrower or such Credit
Party now or hereafter existing under this Agreement or any other Credit Document to such
Lender, the Swingline Lender or the Issuing Lender, irrespective of whether or not such
Lender, the Swingline Lender or the Issuing Lender shall have made any demand under this
Agreement or any other Credit Document and although such obligations of the Borrower or such
Credit Party may be contingent or unmatured or are owed to a branch or office of such
Lender, the Swingline Lender or the Issuing Lender different from the branch or office
holding such deposit or obligated on such indebtedness; provided that in the event
that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set
off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.20 and, pending such payment, shall be
segregated by such Defaulting Lender from



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its other funds and deemed held in trust for the benefit of the Administrative Agent
and the Lenders and (ii) the Defaulting Lender shall provide promptly to the Administrative
Agent a statement describing in reasonable detail the Credit Party Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender,
the Swingline Lender, the Issuing Lender and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff) that such
Lender, the Swingline Lender, the Issuing Lender or their respective Affiliates may have.
Each Lender, the Swingline Lender and the Issuing Lender agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such setoff and
application.




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




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




     (B) the provisions of this paragraph shall not be construed to apply to
(x) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement (including the application of funds arising
from the existence of a Defaulting Lender), (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in Letters of Credit to any assignee or
participant, other than to any Credit Party or any Subsidiary thereof (as to
which the provisions of this paragraph shall apply) or (z) (1) any amounts
applied by the Swingline Lender to outstanding Swingline Loans and (2) any
amounts received by the Issuing Lender and/or Swingline Lender to secure the
obligations of a Defaulting Lender to fund risk participations hereunder.




     (c) Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a participation interest
in the Loans of another Lender pursuant to the foregoing arrangements may exercise against
each Credit Party rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of each Credit Party in the amount of such
participation



     Section 9.8 Table of Contents and Section Headings.



     The table of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Credit Agreement.



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     Section 9.9 Counterparts; Effectiveness; Electronic Execution.




     (a) Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when all of the conditions set forth in
Section 4.1 have been satisfied or waived by the Lenders and it shall have been executed by
the Borrower, the Guarantors and the Administrative Agent and the Lenders, and the
Administrative Agent shall have received copies hereof and thereof (telefaxed or otherwise),
and thereafter this Agreement shall be binding upon and inure to the benefit of the
Borrower, the Guarantors, the Administrative Agent and each Lender and their respective
successors and permitted assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy or email shall be effective as delivery of a manually executed
counterpart of this Agreement.




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



     Section 9.10 Integration; Continuing Agreement.




     (a) This Credit Agreement and the other Credit Documents represent the agreement of the
Credit Parties, the Administrative Agent, the Collateral Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent, the Collateral Agent, any Credit Party or any Lender
relative to the subject matter hereof not expressly set forth or referred to herein or in
the other Credit Documents.




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



     Section 9.11 Severability.



     Any provision of this Credit Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without



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invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.




     Section 9.12 Governing Law.



     This Credit Agreement and the Notes and the rights and obligations of the parties under this
Credit Agreement and the Notes shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.



     Section 9.13 Consent to Jurisdiction; Service of Process; Venue.




     (a) Consent to Jurisdiction. The Borrower and each other Credit Party
irrevocably and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement or any
other Credit Document, or for recognition or enforcement of any judgment, and each of the
parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York sitting State court or, to
the fullest extent permitted by applicable law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or in any other Credit Document shall affect any
right that the Administrative Agent, any Lender, the Swingline Lender or the Issuing Lender
may otherwise have to bring any action or proceeding relating to this Agreement or any other
Credit Document against the Borrower or any other Credit Party or its properties in the
courts of any jurisdiction.




     (b) Service of Process. Each party hereto irrevocably consents to service of
process in the manner provided for notices in Section 9.2. Nothing in this Agreement will
affect the right of any party hereto to serve process in any other manner permitted by
applicable law.




     (c) Venue. The Borrower and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of venue of any action or proceeding arising
out of or relating to this Agreement or any other Credit Document in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.



     Section 9.14 [Reserved].



     Section 9.15 Confidentiality.



     Each of the Administrative Agent, the Lenders, the Swingline Lender and the Issuing Lender
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies



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hereunder, under any other Credit Document, or Secured Hedging Agreement or Secured Cash
Management Agreement or any action or proceeding relating to this Agreement, any other Credit
Document, Secured Hedging Agreement or Secured Cash Management Agreement, or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (g) (i) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, in each case to the extent such party agrees to maintain
confidentiality, (ii) an investor or prospective investor in securities issued by an Approved Fund
that also agrees that Information shall be used solely for the purpose of evaluating an investment
in such securities issued by the Approved Fund and agrees to maintain confidentiality, (iii) a
trustee, collateral manager, servicer, backup servicer, noteholder or secured party in connection
with the administration, servicing and reporting on the assets serving as collateral for securities
issued by an Approved Fund, in each case to the extent such party agrees to maintain
confidentiality, or (iv) a nationally recognized rating agency that requires access to information
regarding the Credit Parties, the Loans and Credit Documents in connection with ratings issued in
respect of securities issued by an Approved Fund (in each case, it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential), (h) with the consent of the
Borrower or (i) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, any
Lender, the Swingline Lender, the Issuing Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.




     For purposes of this Section, “Information” shall mean all information received from
any Credit Party or any of its Subsidiaries relating to any Credit Party or any of its Subsidiaries
or any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender, the Swingline Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by any Credit Party or any of its Subsidiaries; provided that, in
the case of information received from any Credit Party or any of its Subsidiaries after the date
hereof, such information is clearly identified at the time of delivery as confidential or as to
which it is otherwise reasonably clear that such information is not public. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



     Section 9.16 Acknowledgments.



     The Borrower and the other Credit Parties each hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;




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




     (c) no joint venture exists among the Lenders or among the Borrower or the other Credit
Parties and the Lenders.



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     Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages.



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



     Section 9.18 Patriot Act Notice.



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



     Section 9.19 Subordination of Intercompany Debt.



     Each Credit Party agrees that all intercompany Indebtedness among Credit Parties (the
“Intercompany Debt”) is subordinated in right of payment, to the prior payment in full of
all Obligations. Notwithstanding any provision of this Agreement to the contrary, provided
that no Event of Default has occurred and is continuing, Credit Parties may make and receive
payments with respect to the Intercompany Debt to the extent otherwise permitted by this Agreement;
provided that in the event of and during the continuation of any Event of Default, no
payment shall be made by or on behalf of any Credit Party on account of any Intercompany Debt. In
the event that any Credit Party receives any payment of any Intercompany Debt at a time when such
payment is prohibited by this Section 9.19, such payment shall be held by such Credit Party, in
trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to,
the Administrative Agent.



     Section 9.20 Replacement of Lenders.



     If (i) any Lender requests compensation under Section 2.15, (ii) the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, (iii) a Lender does not consent to a proposed amendment, waiver, consent
or release with respect to any Loan Document that requires the consent of each Lender and that has
been approved by the Required Lenders or (iv) any Lender is a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 9.6), all of its interests, rights and
obligations under this Agreement and the related Credit Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 9.6(e);



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     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and funded participations in any unreimbursed drawings under any
Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder and under the other Credit Documents (including any amounts under Section 2.16)
from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);




     (c) in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments thereafter; and




     (d) such assignment does not conflict with applicable Requirements of Laws; and




     (e) in the case of any such assignment resulting from a Lender’s failure to consent to
a proposed change, waiver, discharge or termination with respect to any Credit Document,
the applicable amendment, modification and/or waiver of this Credit Agreement that the
Borrower has requested shall become effective upon giving effect to such assignment (and any
related assignments required to be effected in connection therewith in accordance with
Section 9.19).




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



     Section 9.21 Resolution of Drafting Ambiguities.



     Each party hereto acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of this Agreement and the other Credit Documents to which it is a
party, that it and its counsel reviewed and participated in the preparation and negotiation hereof
and thereof and that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof or thereof.



     Section 9.22 Press Releases and Related Matters.



     The Credit Parties and their Affiliates agree that they will not in the future issue any press
releases or other public disclosure using the name of Administrative Agent or any Lender or their
respective Affiliates or referring to this Agreement or any of the Credit Documents without the
prior written consent of such Person, unless (and only to the extent that) the Credit Parties or
such Affiliate is required to do so under law and then, in any event, the Credit Parties or such
Affiliate will consult with such Person before issuing such press release or other public
disclosure. The Credit Parties consent to the publication by Administrative Agent or any Lender of
customary advertising material relating to the Transactions using the name, product photographs,
logo or trademark of the Credit Parties.



     Section 9.23 Appointment of Borrower.



     Each of the Guarantors hereby appoints the Borrower to act as its agent for all purposes under
this Agreement and agrees that (a) the Borrower may execute such documents on behalf of such
Guarantor as the Borrower deems appropriate in its sole discretion and each Guarantor shall be
obligated by all of the terms of any such document executed on its behalf, (b) any notice or
communication delivered by the Administrative Agent or the Lender to the Borrower shall be deemed
delivered to each Guarantor and



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(c) the Administrative Agent or the Lenders may accept, and be permitted to rely on, any document,
instrument or agreement executed by the Borrower on behalf of each Guarantor.




     Section 9.24 No Advisory or Fiduciary Responsibility.



     In connection with all aspects of each Transaction, each of the Credit Parties acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (a) the credit facility provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Credit Document)
are an arm’s-length commercial transaction between the Credit Parties and their Affiliates, on the
one hand, and the Administrative Agent and WFS, on the other hand, and the Credit Parties are
capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the Transactions and by the other Credit Documents (including any amendment, waiver or other
modification hereof or thereof); (b) in connection with the process leading to such transaction,
the Administrative Agent and WFS each is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for any Credit Party or any of their Affiliates,
stockholders, creditors or employees or any other Person; (c) neither the Administrative Agent nor
WFS has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any
Credit Party with respect to any of the Transactions or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other Credit Document
(irrespective of whether the Administrative Agent or WFS has advised or is currently advising any
Credit Party or any of its Affiliates on other matters) and neither the Administrative Agent nor
WFS has any obligation to any Credit Party or any of their Affiliates with respect to the
Transactions except those obligations expressly set forth herein and in the other Credit Documents;
(d) the Administrative Agent and WFS and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Credit Parties and their
Affiliates, and neither the Administrative Agent nor WFS has any obligation to disclose any of such
interests by virtue of any advisory, agency or fiduciary relationship; and (e) the Administrative
Agent and WFS have not provided and will not provide any legal, accounting, regulatory or tax
advice with respect to any of the Transactions (including any amendment, waiver or other
modification hereof or of any other Credit Document) and the Credit Parties have consulted their
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each
of the Credit Parties hereby waives and releases, to the fullest extent permitted by law, any
claims that it may have against the Administrative Agent or WFS with respect to any breach or
alleged breach of agency or fiduciary duty.



     Section 9.25 Responsible Officers and Authorized Officers.



     The Administrative Agent and each of the Lenders are authorized to rely upon the continuing
authority of the Responsible Officers and the Authorized Officers with respect to all matters
pertaining to the Credit Documents including, but not limited to, the selection of interest rates,
the submission of requests for Extensions of Credit and certificates with regard thereto. Such
authorization may be changed only upon written notice to Administrative Agent accompanied by
evidence, reasonably satisfactory to Administrative Agent, of the authority of the Person giving
such notice and such notice shall be effective not sooner than five (5) Business Days following
receipt thereof by Administrative Agent (or such earlier time as agreed to by the Administrative
Agent).



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ARTICLE X




GUARANTY



     Section 10.1 The Guaranty.



     In order to induce the Lenders to enter into this Credit Agreement, any Hedging Agreement
Provider to enter into any Secured Hedging Agreement and any Cash Management Agreement Provider to
enter into any Secured Cash Management Agreement and to extend credit hereunder and thereunder and
in recognition of the direct benefits to be received by the Guarantors from the Extensions of
Credit hereunder, any Secured Hedging Agreement and any Secured Cash Management Agreement, each of
the Guarantors hereby agrees with the Administrative Agent, the Lenders the Hedging Agreement
Providers and the Cash Management Agreement Providers as follows: Each Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary obligor and not merely
as surety the full and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all indebtedness of the Borrower to the Administrative Agent, the Lenders,
the Hedging Agreement Providers and the any Cash Management Agreement Providers. If any or all of
the indebtedness becomes due and payable hereunder, under any Secured Hedging Agreement or under
any Secured Cash Management Agreement, each Guarantor unconditionally promises to pay such
indebtedness to the Administrative Agent, the Secured Parties or their respective order, or demand,
together with any and all reasonable expenses which may be incurred by the Administrative Agent or
the Secured Parties in collecting any of the Credit Party Obligations. The word “indebtedness” is
used in this Article X in its most comprehensive sense and means any and all advances, debts,
obligations and liabilities of the Borrower arising in connection with this Credit Agreement, the
other Credit Documents, any Secured Hedging Agreement or any Secured Cash Management Agreement,
including specifically all Credit Party Obligations, in each case, heretofore, now, or hereafter
made, incurred or created, whether voluntarily or involuntarily, absolute or contingent, liquidated
or unliquidated, determined or undetermined, whether or not such indebtedness is from time to time
reduced, or extinguished and thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such indebtedness may be or
hereafter become barred by any statute of limitations, and whether or not such indebtedness may be
or hereafter become otherwise unenforceable.



     Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the obligations of each such
Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, Bankruptcy Laws).



     Section 10.2 Bankruptcy.



     Additionally, each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations of the Borrower to the Secured
Parties whether or not due or payable by the Borrower upon the occurrence of any of the events
specified in Section 7.1(f), and unconditionally promises to pay such Credit Party Obligations to
the Administrative Agent for the account of the Secured Parties, or order, on demand, in lawful
money of the United States. Each of the Guarantors further agrees that to the extent that the
Borrower or a Guarantor shall make a payment or a transfer of an interest in any property to the
Administrative Agent or any Secured Party, which payment or transfer or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, or otherwise is avoided,
and/or required to be repaid to the Borrower or a Guarantor, the estate of the Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law,



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state or federal law, common law or equitable cause, then to the extent of such avoidance or
repayment, the obligation or part thereof intended to be satisfied shall be revived and continued
in full force and effect as if said payment had not been made.




     Section 10.3 Nature of Liability.



     The liability of each Guarantor hereunder is exclusive and independent of any security for or
other guaranty of the Credit Party Obligations of the Borrower whether executed by any such
Guarantor, any other guarantor or by any other party, and no Guarantor’s liability hereunder shall
be affected or impaired by (a) any direction as to application of payment by the Borrower or by any
other party, or (b) any other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Credit Party Obligations of the Borrower, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, or (e) any payment made
to the Administrative Agent or any Secured Party on the Credit Party Obligations which the
Administrative Agent or such Secured Party repays the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each of
the Guarantors waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.



     Section 10.4 Independent Obligation.



     The obligations of each Guarantor hereunder are independent of the obligations of any other
Guarantor or the Borrower, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other Guarantor or the Borrower and
whether or not any other Guarantor or the Borrower is joined in any such action or actions.



     Section 10.5 Authorization.



     Each of the Guarantors authorizes the Administrative Agent and each Secured Party without
notice or demand (except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the
terms of the Credit Party Obligations or any part thereof in accordance with this Agreement, any
Secured Hedging Agreement and any Secured Cash Management Agreement, as applicable, including any
increase or decrease of the rate of interest thereon, (b) take and hold security from any Guarantor
or any other party for the payment of this Guaranty or the Credit Party Obligations and exchange,
enforce waive and release any such security, (c) apply such security and direct the order or manner
of sale thereof as the Administrative Agent and the Lenders in their discretion may determine, (d)
release or substitute any one or more endorsers, Guarantors, the Borrower or other obligors and (e)
to the extent otherwise permitted herein, release or substitute any Collateral.



     Section 10.6 Reliance.



     It is not necessary for the Administrative Agent or any Secured Party to inquire into the
capacity or powers of the Borrower or the officers, directors, members, partners or agents acting
or purporting to act on its behalf, and any Credit Party Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.



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     Section 10.7 Waiver.




     (a) Each of the Guarantors waives any right (except as shall be required by applicable
statute and cannot be waived) to require the Administrative Agent or any Secured Party to
(i) proceed against the Borrower, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from the Borrower, any other guarantor or any other
party, or (iii) pursue any other remedy in the Administrative Agent’s or any Secured Party’s
power whatsoever. Each of the Guarantors waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other party other than payment in full
of the Credit Party Obligations (other than contingent indemnity obligations), including
without limitation any defense based on or arising out of the disability of the Borrower,
any other guarantor or any other party, or the unenforceability of the Credit Party
Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Credit Party Obligations. The
Administrative Agent may, at its election, foreclose on any security held by the
Administrative Agent or any Lender by one or more judicial or nonjudicial sales (to the
extent such sale is permitted by applicable law), or exercise any other right or remedy the
Administrative Agent or any Lender may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Credit Party Obligations have been paid in full and the Commitments
have been terminated. Each of the Guarantors waives any defense arising out of any such
election by the Administrative Agent or any of the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantors against the Borrower or any other party or any security.




     (b) Each of the Guarantors waives all presentments, demands for performance, protests
and notices, including without limitation notices of nonperformance, notice of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional Credit Party Obligations. Each Guarantor assumes
all responsibility for being and keeping itself informed of the Borrower’s financial
condition and assets, and of all other circumstances bearing upon the risk of nonpayment of
the Credit Party Obligations and the nature, scope and extent of the risks which such
Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor
any Lender shall have any duty to advise such Guarantor of information known to it regarding
such circumstances or risks.




     (c) Each of the Guarantors hereby agrees it will not exercise any rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) to the claims of any Secured Party
against the Borrower or any other guarantor of the Credit Party Obligations of the Borrower
owing to such Secured Party (collectively, the “Other Parties”) and all contractual,
statutory or common law rights of reimbursement, contribution or indemnity from any Other
Party which it may at any time otherwise have as a result of this Guaranty until such time
as the Credit Party Obligations shall have been paid in full and the Commitments have been
terminated. Each of the Guarantors hereby further agrees not to exercise any right to
enforce any other remedy which the Administrative Agent or any Secured Party now have or may
hereafter have against any Other Party, any endorser or any other guarantor of all or any
part of the Credit Party Obligations of the Borrower and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit of the Secured
Parties to secure payment of the Credit Party Obligations of the Borrower until such time as
the Credit Party Obligations (other than contingent indemnity obligations) shall have been
paid in full and the Commitments have been terminated.



119









 





     Section 10.8 Limitation on Enforcement.



     The Secured Parties agree that this Guaranty may be enforced only by the action of the
Administrative Agent acting upon the instructions of the Required Lenders and that no Secured Party
shall have any right individually to seek to enforce or to enforce this Guaranty, it being
understood and agreed that such rights and remedies may be exercised by the Administrative Agent
for the benefit of the Secured Parties under the terms of this Credit Agreement and under any
Secured Hedging Agreement. The Secured Parties further agree that this Guaranty may not be
enforced against any director, officer, employee or stockholder of the Guarantors.



     Section 10.9 Confirmation of Payment.



     The Administrative Agent and the Lenders will, upon request after payment of the Credit Party
Obligations which are the subject of this Guaranty and termination of the Commitments relating
thereto, confirm to the Borrower, the Guarantors or any other Person that such indebtedness and
obligations have been paid and the Commitments relating thereto terminated, subject to the
provisions of Section 10.2.



[REMAINDER OF PAGE INTENTIONALLY BLANK]





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     Each of the parties hereto has caused a counterpart of this Credit Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 	 	 
	BORROWER:	BRAVO BRIO RESTAURANT GROUP, INC.

 	 
	 	By:  	 	/s/ James J. O’Connor
 	 
	 	Name:  	James J. O’Connor 	 
	 	Title:  	Chief Financial Officer, Treasurer and Secretary 	 
	 



	 	 	 	 	 
	GUARANTORS:	BRAVO DEVELOPMENT OF KANSAS, INC.

 	 
	 	By:  	 	/s/ James J. O’Connor
 	 
	 	Name:  	James J. O’Connor 	 
	 	Title:  	Vice President and Secretary 	 
	 



	 	 	 	 	 
	 	BRIO TUSCAN GRILLE OF MARYLAND, INC.

 	 
	 	By:  	 	/s/ James J. O’Connor
 	 
	 	Name:  	James J. O’Connor 	 
	 	Title:  	Vice President and Secretary 	 
	 
	 	 	 	 	 
	 	CHERRY HILL TWO, LLC

 	 
	 	 	By:  BRAVO BRIO RESTAURANT GROUP, INC., 
its sole member
 	 




	 	 	 	 	 
	 	By:  	 	                                                /s/ James J. O’Connor
 	 
	 	Name:  	James J. O’Connor 	 
	 	Title:  	Chief Financial Officer, Treasurer and Secretary 	 
	 





 









 





	 	 	 	 	 
	AGENT:	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	/s/ Meghan E. Hinds
 	 
	 	Name:  	Meghan E. Hinds 	 
	 	Title:  	Vice President 	 
	 




 









 






	 	 	 	 	 
	LENDERS:	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	 	/s/ Meghan E. Hinds
 	 
	 	Name:  	Meghan E. Hinds 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	 	/s/ Angelo Maragos
 	 
	 	Name:  	Angelo Maragos 	 
	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK

 	 
	 	By:  	 	/s/ Amanda M. Sigg
 	 
	 	Name:  	Amanda M. Sigg 	 
	 	Title:  	Vice President 	 
	 




 









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By:  	 	/s/ Marianne T. Meil
 	 
	 	Name:  	Marianne T. Meil 	 
	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	REGIONS BANK

 	 
	 	By:  	 	/s/ Jay R. Goldstein
 	 
	 	Name:  	Jay R. Goldstein 	 
	 	Title:  	Senior Vice President