exhibitatofourthamendmen






                     EXHIBIT A TO FOURTH AMENDMENT TO CREDIT AGREEMENT                                                                 Conformed through:                              First Amendment to Credit Agreement, dated as of November 13, 2015                           Second Amendment to Credit Agreement, dated as of September 13, 2016                                Third Amendment to Credit Agreement, dated as of April 30, 2018                                                                 Published CUSIP Number: 10964BAM0                               CREDIT AGREEMENT                              dated as of March 12, 2015  amended as of November 13, 2015 and2015, September 13, 2016, April 30, 2018 and December                                      5, 2019                                   by and among                         BRINKER INTERNATIONAL, INC.,                                   as Borrower,                      BRINKER RESTAURANT CORPORATION,                             BRINKER FLORIDA, INC.,                                       and                              BRINKER TEXAS, INC.,                                       and               BRINKER INTERNATIONAL PAYROLL COMPANY, L.P.,                                   as Guarantors,                               The Banks Party Hereto                                       and                             BANK OF AMERICA, N.A.,                              as Administrative Agent                 ______________________________________________  MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,BOFA SECURITIES,                                      INC.,                          JPMORGAN CHASE BANK, N.A.,                         WELLS FARGO SECURITIES, LLC,                      SUNTRUST ROBINSON HUMPHREY, INC.





 






                                     and                THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD.,                              as Joint Lead Arrangers                                 and Bookrunners                          JPMORGAN CHASE BANK, N.A.                                        and                  WELLS FARGO BANK, NATIONAL ASSOCIATION,                               as Syndication Agents      SUNTRUST BANK and THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD.,                             as Documentation Agents   122723226_17





 






                             TABLE OF CONTENTS                                                                            Page  ARTICLE I.     DEFINITIONS AND ACCOUNTING TERMS                              1       Section 1.01.   Certain Defined Terms                                  1       Section 1.02.  Computation of Time Periods                          2526        Section 1.03.  Accounting Terms                                    2526        Section 1.04.  Miscellaneous                                         26       Section 1.05.   Other Interpretive Provisions                       2627        Section 1.06.  Interest Rates                                        27  ARTICLE II.   AMOUNTS AND TERMS OF THE ADVANCES                          2728        Section 2.01. The Advances                                         2728        Section 2.02. Requests for Advances                                  28       Section 2.03.   Borrowings; Advances; Termination of Eurodollar Rate                      Advances                                               28       Section 2.04.  Conversions and Continuations of Borrowings            31       Section 2.05.   Optional Termination and Reduction of the Commitments 32       Section 2.06.  Repayment and Prepayment of Advances; Notes            33       Section 2.07.   Interest on Advances                                  34       Section 2.08.   Interest Rate Determination                           35       Section 2.09.   Fees                                                  35       Section 2.10.   Payments; Computations; Interest on Overdue Amounts   35       Section 2.11.   Consequential Losses on Eurodollar Rate Advances      36       Section 2.12.   Increased Costs                                     3637        Section 2.13. Replacement of Banks                                   37       Section 2.14.   Illegality and Unavailability                         38       Section 2.15.  Taxes                                                3841        Section 2.16.  Payments Pro Rata                                   4144        Section 2.17.  Increase in Commitments                             4244        Section 2.18. Defaulting Banks                                     4345  ARTICLE III.  CONDITIONS                                                 4447        Section 3.01.  Conditions Precedent to Effectiveness               4447        Section 3.02.  Conditions Precedent to Each Borrowing              4548                                        -  i-





 






      Section 3.03.  Administrative Agent                                4649 ARTICLE IV.   GUARANTY                                                   4649       Section 4.01.  Guaranty                                            4649       Section 4.02. Payment                                              4749       Section 4.03.  Waiver                                              4749       Section 4.04.  Acknowledgments and Representations                 4750       Section 4.05.  Subordination                                       4750       Section 4.06.  Guaranty Absolute                                   4850       Section 4.07.  No Waiver; Remedies                                 4850       Section 4.08.  Continuing Guaranty                                 4851       Section 4.09.  Limitation                                          4851       Section 4.10. Effect of Bankruptcy                                 4951       Section 4.11. Keepwell                                             4951 ARTICLE V.    REPRESENTATIONS AND WARRANTIES                             4952       Section 5.01.  Corporate Existence                                 4952       Section 5.02. Corporate Power                                      5052       Section 5.03.  Enforceable Obligations                             5052       Section 5.04.  Financial Statements                                5053       Section 5.05.  Litigation                                          5053       Section 5.06.  Margin Stock; Use of Proceeds                       5153       Section 5.07. Investment Company Act                               5153       Section 5.08. ERISA                                                5153       Section 5.09. Taxes                                                5154       Section 5.10.  Environmental Condition                             5154       Section 5.11. Ownership of the Guarantors                          5254       Section 5.12.  Solvency                                            5254       Section 5.13.  Disclosure                                          5254       Section 5.14.  Anti-Corruption Laws and Sanctions                  5255       Section 5.15.  EEA Financial Institution                           5255       Section 5.16. Use of Plan Assets                                   5255       Section 5.17.  Covered Entities                                      55                                       - ii-   122723226_17





 






ARTICLE VI.   AFFIRMATIVE COVENANTS                                      5255       Section 6.01. Compliance with Laws, Etc                            5355       Section 6.02.  Reporting Requirements                              5356       Section 6.03. Use of Proceeds                                      5558       Section 6.04.  Maintenance of Insurance                            5558       Section 6.05.  Preservation of Corporate Existence, Etc            5558       Section 6.06. Payment of Taxes, Etc                                5558       Section 6.07.  Visitation Rights                                   5659       Section 6.08. Compliance with ERISA and the Code                   5659       Section 6.09.  Additional Guarantors                               5659       Section 6.10.  Collateral Requirement                              5659 ARTICLE VII.  NEGATIVE COVENANTS                                         5760       Section 7.01.  Financial Covenants                                 5760       Section 7.02.  Negative Pledge                                     5861       Section 7.03.  Merger, Sale of Assets and Sale-Leasebacks          5861       Section 7.04.  Agreements to Restrict Dividends, Certain Transfers and Liens 5962       Section 7.05.  Transactions with Affiliates                        6063       Section 7.06. Change of Business                                   6063       Section 7.07.  Limitation on Advances and Investments              6063       Section 7.08.  Accounting Practices                                6063       Section 7.09. Debt                                                 6164       Section 7.10.  Restricted Payments                                 6164 ARTICLE VIII. DEFAULTS                                                   6165       Section 8.01. Defaults                                             6265       Section 8.02. Application of Funds                                 6467 ARTICLE IX.   THE ADMINISTRATIVE AGENT                                   6568       Section 9.01.  Authorization and Action                            6568       Section 9.02.  Administrative Agent’s Reliance, Etc                6569       Section 9.03. Knowledge of Defaults                                6669       Section 9.04.  Rights of the Administrative Agent as a Bank        6670       Section 9.05.  Bank Credit Decision                                6770       Section 9.06.  Successor Administrative Agent                      6771                                       -iii-   122723226_17





 






      Section 9.07.  Joint Lead Arrangers and Bookrunners, Syndication Agents                      and Documentation Agents                            6871       Section 9.08. INDEMNIFICATION                                      6872       Section 9.09.  Collateral Matters                                  6972       Section 9.10. No Bank is an Employee Benefit Plan 69Certain ERISA Matters 73       Section 9.11.  Secured Cash Management Agreements, Secured Hedge                      Agreements, and Secured Bilateral Letters of Credit 7174 ARTICLE X.     MISCELLANEOUS                                             7275       Section 10.01. Amendments, Etc                                     7275       Section 10.02. Notices, Etc                                        7276       Section 10.03. No Waiver; Remedies                                 7376       Section 10.04. Costs, Expenses and Taxes                           7376       Section 10.05. Right of Set-off                                    7578       Section 10.06. Bank Assignments and Participations                 7579       Section 10.07. Governing Law                                       7881       Section 10.08. Interest                                            7881       Section 10.09. Execution in Counterparts                           7983       Section 10.10. Survival of Agreements, Representations and Warranties, Etc 7983       Section 10.11. The Borrower’s Right to Apply Deposits              8083       Section 10.12. Confidentiality                                     8083       Section 10.13. Binding Effect                                      8184       Section 10.14. ENTIRE AGREEMENT                                    8184       Section 10.15. USA PATRIOT ACT                                     8285       Section 10.16. No Fiduciary Relationship                           8285       Section 10.17. Severability                                        8285       Section 10.18. Waiver of Jury Trial                                8286       Section 10.19. Electronic Execution of Assignments and Certain Other                      Documents                                           8386       Section 10.20. Acknowledgement and Consent to Bail-In of EEA Financial                      Institutions                                        8386       Section 10.21. Acknowledgement Regarding Any Supported QFCs          87                                        - iv-   122723226_17





 






EXHIBITS:  Exhibit A-1 Form of Tranche A NoteExhibit A-2 Form of Tranche A-1 Note Exhibit B  Form of Notice of Borrowing Exhibit C  Form of Assignment Exhibit D  Form of Opinion of Counsel for the Borrower and the Guarantors Exhibit E  Form of U.S. Tax Compliance Certificate Exhibit F   Form of Notice of Prepayment   SCHEDULES:  Schedule I  - Banks and Administrative Agent’s Offices; Certain Addresses for Notices Schedule II - Borrower and Guarantors Addresses Schedule III - Permitted Liens Schedule IV - Agreements Restricting Dividends, Certain Transfers and Liens Schedule V - GAAP Exceptions Schedule VI - Investments Schedule VII - Permitted Debt Schedule VIII - Commitments                                        -  v-   122723226_17





 






                             CREDIT AGREEMENT         CREDIT AGREEMENT (this “Agreement”), dated as of March 12, 2015 and amended  as of November 13, 2015 and2015, September 13, 2016, April 30, 2018 and December 5, 2019   by and among BRINKER INTERNATIONAL, INC., a Delaware corporation (the “Borrower”), BRINKER RESTAURANT CORPORATION, a Delaware corporation (“Brinker Restaurant’),  BRINKER FLORIDA, INC., a Delaware corporation (“Brinker Florida”), BRINKER TEXAS,  INC., a Delaware corporation (“Brinker Texas”), BRINKER INTERNATIONAL PAYROLL   COMPANY, L.P., a Delaware limited partnership (“Brinker Payroll”, and together with Brinker  Restaurant, Brinker Florida, Brinker Texas and any Subsidiary that becomes a guarantor  pursuant to Section 6.09, individually, a “Guarantor” and collectively, the “Guarantors”), the  Banks party hereto, and BANK OF AMERICA, N.A., a national banking association, as  administrative agent (in such capacity, the “Administrative Agent”) for the Banks hereunder.                                     RECITALS         WHEREAS, the Borrower, Brinker Restaurant, as guarantor, the banks party thereto (the  “Existing Banks”) and Bank of America, as administrative agent, entered into that certain Credit  Agreement dated as of March 12, 2015 and amended on November 13, 2015 and2015,  September 13, 2016 and April 30, 2018 (the “Existing Credit Agreement”), pursuant to which  the Existing Banks have made available to the Borrower a revolving credit facility (the “Existing   Revolving Facility”);        WHEREAS, the Borrower has requested that the Banks and the Administrative Agent  amend the Existing Credit Agreement in the form of this Agreement, and the Banks and the  Administrative Agent are willing to amend the Existing Credit Agreement in its entirety on the  terms and subject to the conditions set forth herein;         NOW, THEREFORE, in consideration of the mutual covenants and agreements herein  contained, the parties hereto covenant and agree as follows:                                    ARTICLE I.                      DEFINITIONS AND ACCOUNTING TERMS            Section 1.01.  Certain Defined Terms.  As used in this Agreement, the following     terms shall have the following meanings (such meanings to be equally applicable to both the     singular and plural forms of the terms defined):         “Accession Agreement” has the meaning specified in Section 2.17.         “Additional Bank” has the meaning specified in Section 2.01(a).         “Administrative Agent” has the meaning specified in the introduction hereto.         “Administrative Agent’s Office” means the Administrative Agent’s address and, as  appropriate, account as set forth on Schedule I, or such other address or account as the  Administrative Agent may from time to time notify to the Borrower and the Banks.                                          1   122723226_17





 






       “Advances” mean the Tranche A Advances and/or the Tranche A-1 Advances, as the   context may require.Advance” means an advance made by a Bank to the Borrower pursuant to   Article II.         “Affiliate” means any Person that, directly or indirectly, controls, or is controlled by or  under common control with, another Person.  For the purposes of this definition, the terms  “control”, “controlled by” and “under common control with”, as used with respect to any Person,  means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.  Without limiting the generality of the foregoing, a Subsidiary of a Person is an Affiliate of that Person.        “Agreement” has the meaning specified in the introduction hereto.         “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction  applicable to the Borrower or the Subsidiaries from time to time concerning or relating to  bribery, money laundering or corruption.         “Applicable Law” means, as to any Person, all applicable Laws binding upon such   Person or to which such a Person is subject.         “Applicable Lending Office” means, with respect to each Bank, such Bank’s Domestic  Lending Office in the case of a Base Rate Advance, and such Bank’s Eurodollar Lending Office  in the case of a Eurodollar Rate Advance.         “Applicable Rate” means, for any day, the applicable rate per annum set forth below  under the caption “Eurodollar Rate Spread”, “Base Rate Spread” or “Facility Fee Rate”, as the  case may be, based upon the Moody’s Rating and the S&P Rating:                                           Facility   Eurodollar    Base Rate                                          Fee Rate  Rate Spread     Spread                                          (bps per    (bps per      (bps per     Rating Level Ratings (Moody’s/ S&P)  annum)      annum)        annum)    Rating Level 1 ≥ Baa1 or BBB+             12.5     100.0           0.0    Rating Level 2 Baa2 or BBB                15.0     110.0          10.0    Rating Level 3 Baa3 or BBB-               20.0     117.5          17.5    Rating Level 4 Ba1 or BB+                 25.0     137.5          37.5    Rating Level 5 < Ba1 and BB+ or unrated   30.0     170.0          70.0   ; provided that so long as the Borrower and its Subsidiaries shall have demonstrated, by delivery of the financial statements pursuant to Sections 6.02(b) and (c) and the certificate pursuant to  Section 6.02(d) to the Administrative Agent no later than the due dates specified therein, a Debt  to Cash Flow Ratio of less than 2.25 to 1.00 for the twelve month period ending on the fiscal  quarter then most recently ended, the Eurodollar Rate Spread (bps per annum) referenced in the  immediately preceding table shall be 5.0 bps less than the applicable rates set forth in such table  above for all rating levels, commencing one (1) Business Day following the receipt of such                                           2   122723226_17





 






 financial statements and such certificate by the Administrative Agent and through and including  the date of receipt by the Administrative Agent of such financial statements and such certificate  for the next fiscal quarter end date, at which point, the Eurodollar Rate Spread (bps per annum)  shall be recalculated again in accordance with the applicable rates set forth in the table above  and this proviso; provided however that if such financial statements and certificate are not  delivered to the Administrative Agent by the due dates specified in such Sections, then  immediately following the applicable due date, the Eurodollar Rate Spread (bps per annum) shall  be calculated in accordance with the applicable rates set forth in the table above (and the 5.0 bps  discount contemplated under this proviso shall not apply) until one (1) Business Day following  the receipt of such financial statements and such certificate by the Administrative Agent for the  next fiscal quarter end date, at which point, the Eurodollar Rate Spread (bps per annum) shall be  recalculated again in accordance with the applicable rates set forth in the table above and this  proviso.   For the purposes of this definition, (a) if a Moody’s Rating or, an S&P Rating shall not be in  effect (other than by reason of the circumstances referred to in the last sentence of this  definition), then the applicable rating agency shall be deemed to have established a rating in  Rating Level 5 (as set forth in the table above); (b) if the Moody’s Rating and the S&P Rating  shall fall within different Rating Levels, the Applicable Rate shall be based on the higher of the  two ratings unless the ratings differ by more than one Rating Level, in which case the Applicable  Rate shall be based on the Rating Level one level above that corresponding to the lower rating  (in each case, for which purposes, Rating Level 1 is the highest and Rating Level 5 is the  lowest); and (c) if the Moody’s Rating or the S&P Rating shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first publicly announced by Moody’s or S&P.  Each change in the Applicable Rate shall apply during the period commencing on the effective date of such rating change and ending on the date immediately preceding the effective date of the next such change.  If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.  Notwithstanding anything to the contrary herein, as of the Third Amendment Effective Date, the Applicable Rate shall be based upon Rating Level 5 and shall continue to be based upon Rating Level 5 for one hundred eighty (180) days following the Third Amendment Effective Date and thereafter the Applicable Rate shall be based upon the Moody’s Rating and the S&P Rating as set forth in the table above.        “Applicable Usury Laws” means the Texas Finance Code, any other law of the State of  Texas limiting interest rates or the amount of interest that may lawfully be charged and any  applicable Federal law to the extent that it permits Banks to contract for, charge, reserve or receive a greater amount of interest than under the Texas Finance Code or other laws of the State of Texas.                                            3   122723226_17





 






       “Assignment” means an assignment and acceptance entered into by a Bank and an assignee, and accepted by the Administrative Agent, in substantially the form of the attached  Exhibit C.         “Availability Period” means the Tranche A Availability Period or the Tranche A-1   Availability Period, as the context may requireperiod of time commencing on the Fourth   Amendment Effective Date and ending on the Termination Date.         “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In Legislation” means, with respect to any EEA Member Country implementing  Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.         “Bank of America” means Bank of America, N.A. and its successors.         “Bank of America Fee Letter” means the Fee Letter dated August 19, 2016 among the  Borrower, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated.         “Banks” means Tranche A Banks and/or Tranche A-1 Banks, as the context may   require.the Persons with a Commitment or an outstanding Advance as of the Fourth Amendment   Effective Date and each other Person that shall have become a party hereto as a “Bank” pursuant   to an Assignment or an Accession Agreement, other than any such Person that shall have ceased   to be a party hereto pursuant to an Assignment.         “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the  Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly  announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate  plus 1.00% and if the Base Rate shall be less than zero, such rate shall be deemed zero for  purposes of this Agreement.  The “prime rate” is a rate set by Bank of America based upon  various factors including Bank of America’s costs and desired return, general economic  conditions and other factors, and is used as a reference point for pricing some loans, which may  be priced at, above, or below such announced rate.  Any change in such prime rate announced by  Bank of America shall take effect at the opening of business on the day specified in the public  announcement of such change.  If the Base Rate is being used as an alternate rate of interest   pursuant to Section 2.14 hereof, then the Base Rate shall be the greater of clauses (a) and (b)   above and shall be determined without reference to clause (c) above.         “Base Rate Advance” means an Advance which bears interest as provided in Section   2.07(a)(i).         “Base Rate Borrowing” means a Borrowing comprised of Base Rate Advances.         “Beneficial Ownership Certification” means a certification regarding beneficial   ownership required by the Beneficial Ownership Regulation.                                           4   122723226_17





 






       “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person  whose assets include “plan assets,” as defined by Section 3(42) of ERISA, of any such  “employee benefit plan” or “plan”.         “Board” means, as to any Person, the Board of Directors of the Person or the Executive  Committee thereof.         “Borrower” has the meaning specified in the introduction hereto.         “Borrower Materials” has the meaning specified in Section 6.02.         “Borrowing” means a borrowing consisting of simultaneous Advances of the same Class   and Type made to the Borrower by each of the Banks pursuant to Section 2.01.         “Brinker Florida” has the meaning specified in the introduction hereto.         “Brinker Payroll” has the meaning specified in the introduction hereto.         “Brinker Restaurant” has the meaning specified in the introduction hereto.         “Brinker Texas” has the meaning specified in the introduction hereto.         “Business Day” means any day other than a Saturday, Sunday or other day on which  commercial banks are authorized to close under the lawsLaws of, or are in fact closed in, the  state where the Administrative Agent’s Office is located and, if such day relates to any  Eurodollar Rate Advances, means any such day that is also a London Banking Day.         “Capitalized Lease” means at any time, a lease with respect to which the lessee  thereunder is required concurrently to recognize the acquisition of an asset and the incurrence of  a liability in accordance with GAAP.         “Capitalized Lease Obligations” means, with respect to any Person for any period of  determination, the amount of the obligations of such Persons under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.         “Cash Management Agreement” means any agreement to provide cash management  services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer  and other cash management arrangements.         “Cash Management Bank” means any Person that either (a) at the time it enters into a  Cash Management Agreement, is the Administrative Agent, an Affiliate of the Administrative Agent, a Bank or an Affiliate of a Bank or (b) is a party to a Cash Management Agreement at the time it (or its applicable Affiliate) becomes a Bank (either on the Third Amendment Effective Date, prior to, or thereafter as an Eligible Assignee), or (c) prior to the time such Person became                                          5   122723226_17





 






 a Bank, an Affiliate of a Bank, Administrative Agent or an Affiliate thereof, such Person entered  into a Cash Management Agreement that was in effect on the Effective Date, in each case in its  capacity as a party to such Cash Management Agreement.          “Change in Law” means the occurrence, after the Effective Date, of any introduction of  or any change (including without limitation, but without duplication, any change by way of  imposition or increase of reserve requirements included, in the case of Eurodollar Rate  Advances, in the Eurodollar Rate Reserve Percentage) in or in the interpretation, application or  applicability of any law, regulation, guideline or request from any central bank or other governmental authority (whether or not having the force of law); provided that notwithstanding  anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives  promulgated by the Bank for International Settlements, the Basel Committee on Banking  Supervision (or any successor or similar authority) or the United States regulatory authorities, in  each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or, issued or implemented.         “Class” means, when used in reference to any Advance or Borrowing, shall refer to   whether such Advance, or the Advances comprising such Borrowing, are Tranche A Advances   or Tranche A-1 Advances, and, when used in reference to any Commitment, shall refer to   whether such Commitment is a Tranche A Commitment or a Tranche A-1 Commitment.          “Code” means, as appropriate, the Internal Revenue Code of 1986.         “Collateral” means                     (a)  all accounts (as defined in the UCC);                     (b)  all inventory (as defined in the UCC) and all restaurant supplies;                     (c)  all books and records relating to any of the foregoing (including, to              the extent relating to the foregoing, customer data, credit files, ledgers, computer              programs, printouts, and other computer materials and records (and all media on              which such data, files, programs, materials and records are or may be stored));              and                     (d)  all proceeds, products and replacements of, accessions to, and              substitutions for, any of the foregoing, including without limitation proceeds of              insurance policies, to the extent related to a loss related to the foregoing.               In no event shall “Collateral” include any of the Principal Properties.         “Collateral Documents” means, collectively, the Security Agreement, each of the  collateral assignments, security agreement supplements, security agreements, pledge agreements  or other similar agreements delivered to the Administrative Agent pursuant to Section 6.10, and each of the other agreements, instruments or documents, and all amendments, restatements, modifications or supplements thereof or thereto, by or between any one or more of any Loan                                         6   122723226_17





 






 Party that, now or hereafter, creates or purports to create a Lien in favor of the Administrative  Agent for the benefit of the Secured Parties, and all financing statements (or comparable  documents now or hereafter filed in accordance with the UCC or comparable law) against any  such Person as debtor in favor of any the Administrative Agent or a Bank for the benefit of the  Administrative Agent, the Banks and the other Secured Parties, as secured party, as any of the  foregoing may be amended, restated and/or modified from time to time.         “Commitment” means, at any time, with respect to each Bank, such Bank’s Tranche A   Commitment or Tranche A-1 Commitment, as applicable.whether used or unused, the obligation   of each Bank to make Advances in an aggregate amount up to and including the amount set forth   opposite such Bank’s name on Schedule VIII hereto under the caption “Commitments” or in an   Assignment, as such amount may be terminated, reduced or increased pursuant to Section 2.05,   Section 2.17, Section 8.01 or Section 10.06.         “Commitment Letter” means the Commitment Letter dated as of August 19, 2016 among  the Borrower, Bank of America, JPMCB, Wells Fargo Bank and the Joint Lead Arrangers.         “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),  as amended from time to time, and any successor statute.         “Confidential Information” has the meaning specified in Section 10.12.        “Consolidated” refers to the consolidation of the accounts of any Person and its Subsidiaries in accordance with GAAP.        “Controlled Group” means any group of organizations within the meaning of Section  414(b), (c), (m), or (o) of the Code of which the Borrower or its Subsidiaries is a member.         “Corporate Franchise” means the right or privilege granted by the state or government to the Person forming a corporation, and their successors, to exist and do business as a corporation and to exercise the rights and powers incidental to that form of organization or necessarily implied in the grant.        “Covered Entity” has the meaning specified in Section 10.21(b).         “Credit Documents” means this Agreement, including schedules and exhibits hereto, the  Notes, the Fee Letters, the Collateral Documents, and each other agreement, instrument or  document executed by the Borrower or any Guarantor at any time in connection with this  Agreement and any amendments, modifications or supplements hereto or to any other Credit   Document or waivers hereof or to any other Credit Document.         “Debt” means, in the case of any Person, without duplication, (i) indebtedness of such  Person for borrowed money, (ii) obligations of such Person evidenced by bonds, debentures,  notes or other similar instruments, (iii) Capitalized Lease Obligations, and (iv) obligations of  such Person under or relating to letters of credit or guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor  against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses  (i) through (iii) of this definition.  For the purposes of this Agreement, the term Debt shall not                                          7   122723226_17





 






 include any obligation of the Borrower or a Guarantor incurred by entering into, or by guaranteeing, any transaction that is a rate swap, basis swap, forward rate transaction,  commodity swap, commodity option, equity or equity index swap or option, foreign exchange transaction, currency swap or option or any similar transaction.        “Debt to Cash Flow Ratio” has the meaning specified in Section 7.01(b).         “Default” has the meaning specified in Section 8.01.         “Defaulting Bank” means, subject to Section 2.18(b), any Bank that, as determined by the  Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Advances within three Business Days of the date required to be funded by it hereunder unless such Bank notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Bank’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower, the Administrative Agent or any Bank 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 (unless such writing or public statement relates to such Bank’s obligation to fund an Advance hereunder and states that such position is based on such Bank’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied) (provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause  (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or  (d) has, or has a direct or indirect parent company that has, (i) become the subject of a  proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of  debtors, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of  creditors or similar Person charged with reorganization or liquidation of its business or a  custodian appointed for it, (iii) or taken any action in furtherance of, or indicating its consent to,  approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of  a Bail-in Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the  ownership or acquisition of any equity interest in that Bank or any direct or indirect parent  company thereof by a governmental authority.         “Default Rate” has the meaning specified in Section 2.10(e).         “Dividing Person” has the meaning assigned to it in the definition of “Division.”         “Division” means the division of the assets, liabilities and/or obligations of a Person (the   “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or   similar arrangement), which may or may not include the Dividing Person and pursuant to which   the Dividing Person may or may not survive.         “Dollar” and “$” mean lawful money of the United States.                                           8   122723226_17





 






       “Domestic Lending Office” means, with respect to any Bank, the office of such Bank  specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in an  Assignment or such other office of such Bank as such Bank may from time to time specify to the  Borrower and the Administrative Agent.         “EBIT” means for any period, the Consolidated earnings of a Person during such period  from continuing operations, exclusive of (i) gains on sales of assets not in the ordinary course of  business (to the extent such gains are included in earnings from continuing operations), (ii) any  non-recurring, non-cash charges or losses not in the ordinary course of business (to the extent  such charges or losses are included in earnings from continuing operations), (iii) any non-cash  expenses for such period resulting from the grant of stock options or other equity-based  incentives to any director, officer or employee of the Borrower or any Subsidiary pursuant to a  written plan or agreement approved by the Board of the Borrower (to the extent such expenses  are included in earnings from continuing operations) and (iv) extraordinary items, as determined  under GAAP, but without deducting federal, state, foreign and local income taxes and Interest  Expense.         “EBITDA” means, for any period, the Consolidated earnings of a Person during such  period from continuing operations, exclusive of (i) gains on sales of assets not in the ordinary  course of business (to the extent such gains are included in earnings from continuing operations),  (ii) any non-recurring, non-cash charges or losses not in the ordinary course of business (to the  extent such charges or losses are included in earnings from continuing operations), (iii) any  non-cash expenses for such period resulting from the grant of stock options or other equity-based  incentives to any director, officer or employee of the Borrower or any Subsidiary pursuant to a  written plan or agreement approved by the Board of the Borrower (to the extent such expenses  are included in earnings from continuing operations) and (iv) extraordinary items, as determined  under GAAP, but without deducting federal, state, foreign and local income taxes, Interest  Expense, depreciation and amortization.         “EEA Financial Institution” means (a) any credit institution or investment firm  established in any EEA Member Country which is subject to the supervision of an EEA  Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  an institution described in clause (a) of this definition, or (c) any financial institution established  in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)  of this definition and is subject to consolidated supervision with its parent.         “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.        “EEA Resolution Authority” means any public administrative authority or any person  entrusted with public administrative authority of any EEA Member Country (including any  delegee) having responsibility for the resolution of any EEA Financial Institution.         “Effective Date” means the date on which the conditions set forth in Section 3.01 and  Section 3.02 shall have been satisfied (or waived in accordance with Section 10.01).                                            9   122723226_17





 






       “Eligible Assignee” means (i) a Bank or any Affiliate of any Bank; (ii) a commercial  bank or financial institution, in each case with an office in the United States of America  acceptable to the Administrative Agent and, unless a Default has occurred and is continuing, the  Borrower (such acceptance not to be unreasonably withheld and provided that the Borrower shall  be deemed to have provided such acceptance unless it shall specify otherwise in a written notice  to the Administrative Agent within five (5) Business Days after having received written notice of  the proposed assignment from the Administrative Agent) and (iii) a finance company, insurance  company or other financial institution (not already covered by clause (ii) of this definition) or  fund (whether a corporation, partnership or other entity) which is engaged in making, purchasing  or otherwise investing in commercial loans in the ordinary course of its business, and having  total assets in excess of $1,000,000,000, or any other Person, and in the case of each such Person  in this clause (iii), acceptable to the Administrative Agent and, unless a Default has occurred and  is continuing, the Borrower (provided that the Borrower shall be deemed to have provided such  acceptance unless it shall specify otherwise in a written notice to the Administrative Agent  within five (5) Business Days after having received written notice of the proposed assignment  from the Administrative Agent).  Notwithstanding anything to the contrary contained herein,  neither a Defaulting Bank, nor the Borrower or any Guarantor or any Affiliate of either thereof  shall constitute an Eligible Assignee.         “Environment” has the meaning set forth in 42 U.S.C. §9601(8) (1982).        “Environmental Protection Statute” means any local, state or federal law, statute,  regulation, order, consent decree or other Governmental Requirement, domestic or foreign,  arising from or in connection with or relating to the protection or regulation of the Environment,  including, without limitation, those laws, statutes, regulations, orders, decrees and other  Governmental Requirements relating to the disposal, cleanup, production, storing, refining, handling, transferring, processing or transporting of Hazardous Waste, Hazardous Substances or any pollutant or contaminant, wherever located.        “Equity Interests”  means, with respect to any Person, all of the shares of capital stock of  (or other ownership or profit interests in) such Person, all of the warrants, options or other rights  for the purchase or acquisition from such Person of shares of capital stock of (or other ownership  or profit interests in) such Person, all of the securities convertible into or exchangeable for shares  of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or  options for the purchase or acquisition from such Person of such shares (or such other interests),  and all of the other ownership or profit interests in such Person (including partnership, member  or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,  options, rights or other interests are outstanding on any date of determination.         “ERISA” means the Employee Retirement Income Security Act of 1974.1974, as   amended, and the rules and regulations promulgated thereunder.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.         “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the  Board of Governors of the Federal Reserve System, as in effect from time to time.                                         10   122723226_17





 






       “Eurodollar Lending Office” means, with respect to any Bank, the office of such Bank  specified as its “Eurodollar Lending Office” opposite its name on Schedule I hereto or in an  Assignment (or, if no such office is specified, its Domestic Lending Office) or such other office  of such Bank as such Bank may from time to time specify to the Borrower and the Administrative Agent.        “Eurodollar Rate” means:         (a)   for any Interest Period with respect to a Eurodollar Rate AdvanceLoan, the rate              per annum equal to the London Interbank Offered Rate (“LIBOR”) or, if the               London Interbank Offered Rate is no longer calculated or published, a               comparable or successor rate, which rate is approved by the Administrative Agent               in its reasonable discretion,as administered by ICE Benchmark Administration or               any other Person that takes over the administration of such rate for U.S. Dollars               for a period equal in length to such Interest Period (“LIBOR”) as published on the              applicable Bloomberg screen page (or such other commercially available source              providing such quotations as may be designated by the Administrative Agent              from time to time in its reasonable discretion) at approximately 11:00 a.m.,             London time, two London BankingBusiness Days prior to the commencement of              such Interest Period, for Dollar deposits (for delivery on the first day of such              Interest Period) with a term equivalent to such Interest Period; and if the               Eurodollar Rate shall be less than zero, such rate shall be deemed zero for               purposes of this Agreement; and         (b)   for any interest calculation with respect to a Base Rate AdvanceLoan on any date,              the rate per annum equal to LIBOR, at approximatelyor about 11:00 a.m., London              time determined two London Banking Days prior to such date for U.S. Dollar              deposits with a term of one month commencing that day; and         (c)   provided that to the extent a comparable or successor rate is approved by the               Administrative Agent in connection herewith, the approved rate shall be applied               in a manner consistent with market practice; provided, further, that to the extent               such market practice is not administratively feasible for the Administrative Agent,               such approved rate shall be applied in a manner as otherwise reasonably               determined by the Administrative Agent.if the Eurodollar Rate shall be less than               zero, such rate shall be deemed zero for purposes of this Agreement.          “Eurodollar Rate Advance” means any Advance as to which the Borrower shall have selected an interest rate based upon the Eurodollar Rate as provided in Article II.         “Eurodollar Rate Borrowing” means a Borrowing comprised of Eurodollar Rate  Advances.         “Eurodollar Rate Reserve Percentage” of any Bank for any Interest Period for any  Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period  (or if more than one such percentage shall be so applicable, the daily average of such  percentages for those days in such Interest Period during which any such percentage shall be so                                         11   122723226_17





 






 applicable) under regulations issued from time to time by the Board of Governors of the Federal  Reserve System (or any successor) for determining the maximum reserve requirement  (including, without limitation, any emergency, supplemental or other marginal reserve  requirement) for such Bank with respect to liabilities or assets consisting of or including  Eurocurrency Liabilities having a term equal to such Interest Period.         “Exchange Act” means the Securities Exchange Act of 1934.         “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation  if, and to the extent that, all or a portion of the Guaranteed Obligations of such Guarantor of, or  the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any  Guaranteed Obligations thereof) is or becomes illegal under the Commodity Exchange Act or  any rule, regulation or order of the Commodity Futures Trading Commission (or the application  or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to  constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the  time the Guaranteed Obligations of such Guarantor, or a grant by such Guarantor of a security  interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises  under a Master Agreement governing more than one swap, such exclusion shall apply only to the  portion of such Swap Obligation that is attributable to swaps for which such Guaranteed Obligations or security interest is or becomes excluded in accordance with the first sentence of this definition.        “Excluded Taxes” means any of the following Taxes imposed on or with respect to the  Administrative Agent or any Bank or required to be withheld or deducted from a payment to the  Administrative Agent or any Bank, (a) Taxes imposed on or measured by net income (however  denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of  the Administrative Agent or such Bank being organized under the laws of, or having its principal  office or, in the case of any Bank, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,  (b) in the case of a Bank U.S. federal withholding Taxes imposed on amounts payable to or for  the account of the Administrative Agent or any Bank with respect to an applicable interest in a  Borrowing or Commitment pursuant to a law in effect on the date on which (i) such Bank acquires such interest in the Borrowing or Commitment (other than pursuant to an assignment  request by the Borrower under Section 2.13) or (ii) such Bank changes its Applicable Lending  Office, except in each case to the extent that, pursuant to Section 2.15, amounts with respect to such Taxes were payable either to such Bank's assignor immediately before such Bank became a party hereto or to such Bank immediately before it changed its Applicable Lending Office, (c) Taxes attributable to the Administrative Agent’s or such Bank’s failure to comply with Section   2.15(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.         “Existing Banks” has the meaning specified in the recitals hereto.        “Existing Commitment” has the meaning specified in Section 2.01(a).         “Existing Credit Agreement” has the meaning specified in the recitals hereto.         “Existing Revolving Facility” has the meaning specified in the recitals hereto.                                         12   122723226_17





 






       “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.         “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this  Agreement (or any amended or successor version that is substantively comparable and not  materially more onerous to comply with), any current or future regulations or official  interpretations thereof and, any agreementagreements entered into pursuant to Section  1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted   pursuant to any intergovernmental agreement, treaty or convention among Governmental   Authorities entered into in connection with the implementation of the foregoing.         “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted   average of the rates on overnightcalculated by the Federal Reserve Bank of New York based on   such day’s federal funds transactions with members ofby depository institutions (as determined   in such manner as the Federal Reserve System arranged by Federal funds brokers on such day, as   published by the Federal Reserve Bank of New York on the Business Day next succeeding such   dayBank of New York shall set forth on its public website from time to time) and published on   the next succeeding Business Day by the Federal Reserve Bank of New York as the federal   funds effective rate; provided that (a) if such day is not a Business Day,if the Federal Funds Rate  for such day shall be such rate on such transactions on the next preceding Business Day as so   published on the next succeeding Business Day, and (b) if no such rate is so published on such   next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate   (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America   on such day on such transactions as determined by the Administrative Agentas so determined   would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.         “Fee Letters” means, collectively, the Bank of America Fee Letter, the JPMCB Fee  Letter, the Wells Fargo Fee Letter, the Upfront Fee Letter, the Third Amendment Fee Letter and  the ThirdFourth Amendment Fee Letter.         “Financial Officer” means the chief financial officer, the principal accounting officer, any  vice president or assistant vice president with accounting or financial responsibilities, or the  treasurer or any assistant treasurer of the Borrower.         “Foreign Subsidiary” means a Subsidiary of the Borrower organized under the laws of a  jurisdiction other than the United States of America.         “Fourth Amendment Effective Date” means December 5, 2019.         “Fourth Amendment Fee Letter” means the Fee Letter dated December 5, 2019 among   the Borrower, Bank of America and BofA Securities, Inc.         “GAAP” means generally accepted accounting principles for financial reporting as in effect from time to time in the United States of America, applied on a consistent basis.        “Governmental Requirements” means all judgments, orders, writs, injunctions, decrees,  awards, laws, ordinances, statutes, regulations, rules, Corporate Franchises, permits, certificates,                                         13   122723226_17





 






 licenses, authorizations and the like and any other requirements of any government or any  commission, board, court, agency, instrumentality or political subdivision thereof.         “Guaranteed Obligations” means all obligations of the Borrower to the Banks and the  Administrative Agent hereunder and under the Notes and any other Credit Document to which  the Borrower is a party, whether for principal, interest, fees, expenses, indemnities or otherwise, and whether now or hereafter existing.        “Guarantor” has the meaning specified in the introduction hereto.         “Guarantor Joinder” has the meaning specified in Section 6.09.         “Hazardous Substance” has the meaning set forth in 42 U.S.C. §9601(14) and shall also  include each other substance considered to be a hazardous substance under any Environmental  Protection Statute.         “Hazardous Waste” has the meaning set forth in 42 U.S.C. §6903(5) and shall also  include each other substance considered to be a hazardous waste under any Environmental  Protection Statute (including, without limitation, 40 C.F.R. §261.3).         “Hedge Bank” means any Person that either (a) at the time it enters into a Swap Contract  required or permitted under Article VI or VII, is the Administrative Agent, an Affiliate of the  Administrative Agent, a Bank or an Affiliate of a Bank, (b) is a party to a Swap Contract  required or permitted under Article VI or VII at the time it (or its applicable Affiliate) becomes a Bank (either on the Third Amendment Effective Date, prior to, or thereafter as an Eligible  Assignee), or (c) prior to the time such Person became a Bank, an Affiliate of a Bank,  Administrative Agent or an Affiliate thereof,  such Person entered into a Swap Contract that was  in effect on the Effective Date, in each case in its capacity as a party to such Swap Contract.        “Impacted Advances” has the meaning assigned to such term in Section 2.14(b).          “Increasing Bank” has the meaning specified in Section 2.17.         “Indemnified Person” has the meaning specified in Section 10.04(b).        “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower hereunder and (b) to the extent not otherwise described in (a), Other Taxes.        “Insufficiency” means, with respect to any Plan, the amount, if any, by which the present  value of the vested benefits under such Plan exceeds the fair market value of the assets of such  Plan allocable to such benefits.         “Intellectual Property” means, collectively, all intellectual property of a Person,  including, without limitation, (a) inventions, designs, patents, patent applications, copyrights,  copyright applications, trademarks, trademark applications, service marks, trade secrets,  confidential or proprietary information, customer list, know-how, software, and databases; (b) all  embodiments or fixations thereof and all related documentation, applications, registrations and                                         14   122723226_17





 






 franchises; (c) all licenses or other rights to use any of the foregoing; and (d) all books and  records relating to the foregoing.          “Interest Expense” means, with respect to any Person for any period of determination, its  interest expense determined in accordance with GAAP, including, without limitation, all interest  with respect to Capitalized Lease Obligations and all capitalized interest, but excluding deferred  financing fees.         “Interest Payment Date” means, (i) (a) as to any Eurodollar Rate Advance, the last day of  each Interest Period applicable to such Eurodollar Rate Advance and the Termination Date;  provided, however, that if any Interest Period for a Eurodollar Rate Advance exceeds three  months, the respective dates that fall every three months after the beginning of such Interest  Period shall also be Interest Payment Dates; and (b) as to any Base Rate Advance, the last Business Day of each March, June, September and December and the Termination Date and (ii)  as to any Advance, the earliest of (a) the Termination Date, (b) the date of demand therefor with  respect to interest accruing under Section 2.07(b) and Section 2.10(e), and (c) the date of any  prepayment of any Advance, whether or not such prepayment is otherwise permitted hereunder         “Interest Period” means as to each Eurodollar Rate Advance, the period commencing on  the date such Eurodollar Rate Advance is disbursed or converted to or continued as a Eurodollar  Rate Advance and ending on the date one (1), two (2), three (3) or six (6) months thereafter, as  selected by the Borrower in its Notice of Borrowing; provided that:         (a)  any Interest Period that would otherwise end on a day that is not a Business Day              shall be extended to the next succeeding Business Day unless, in the case of a              Eurodollar Rate Advance, such Business Day falls in another calendar month, in             which case such Interest Period shall end on the next preceding Business Day;        (b)   any Interest Period pertaining to a Eurodollar Rate Advance that begins on the             last Business Day of a calendar month (or on a day for which there is no             numerically corresponding day in the calendar month at the end of such Interest             Period) shall end on the last Business Day of the calendar month at the end of             such Interest Period;        (c)   no Interest Period shall extend beyond the Termination Date; and        (d)   Interest Periods commencing on the same date for Eurodollar Rate Advances             comprising the same Borrowing shall be of the same duration.  Interest shall accrue from and including the first day of an Interest Period to but excluding the  last day of an Interest Period.  The Administrative Agent shall promptly advise each Bank in  writing of each Interest Period so selected by the Borrower with respect to each Borrowing.         “Investments” has the meaning specified in Section 7.07.         “JPMCB” means JPMorgan Chase Bank, N.A.                                          15   122723226_17





 






       “JPMCB Fee Letter” means the Fee Letter dated August 19, 2016 among the Borrower,  and JPMCB.         “Joint Lead Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (any   other registered broker-dealer wholly-owned by Bank of America Corporation to which all or   substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment   banking, commercial lending services or related businesses may be transferred following the   date of this Agreement)BofA Securities, Inc., JPMCB, Wells Fargo Securities, LLC, SunTrust  Robinson Humphrey, Inc.  and MUFG Bank, Ltd. (formerly known as   The Bank of  Tokyo-Mitsubishi UFJ, Ltd.), in their capacities as joint lead arrangers and bookrunners for the  credit facility provided for herein.         “LIBOR” has the meaning specified in the definition of Eurodollar Rate, including the   comparable or successor rate if LIBOR is no longer calculated or published.Laws” means,   collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines,   regulations, ordinances, codes and administrative or judicial precedents or authorities, including   the interpretation or administration thereof by any Governmental Authority charged with the   enforcement, interpretation or administration thereof, and all applicable administrative orders,   directed duties, requests, licenses, authorizations and permits of, and agreements with, any   Governmental Authority, in each case whether or not having the force of law.         “LIBOR” has the meaning specified in the definition of Eurodollar Rate.         “LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the   Administrative Agent designates to determine LIBOR (or such other commercially available   source providing such quotations as may be designated by the Administrative Agent from time to   time).         “LIBOR Successor Rate” has the meaning specified in Section 2.14(d).         “LIBOR Successor Rate Conforming Changes” means, with respect to any proposed   LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period,   timing and frequency of determining rates and making payments of interest and other technical,   administrative or operational matters as may be appropriate, in the discretion of the   Administrative Agent, in consultation with the Borrower, to reflect the adoption and   implementation of such LIBOR Successor Rate and to permit the administration thereof by the   Administrative Agent in a manner substantially consistent with market practice (or, if the   Administrative Agent determines that adoption of any portion of such market practice is not   administratively feasible or that no market practice for the administration of such LIBOR   Successor Rate exists, in such other manner of administration as the Administrative Agent   determines is reasonably necessary in connection with the administration of this Agreement).         “Lien” means any mortgage, lien, pledge, charge, deed of trust, security interest,  encumbrance or other type of preferential arrangement to secure or provide for the payment of any obligation of any Person, whether arising by contract, operation of law or otherwise (including, without limitation, the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease or other title retention agreement).                                         16   122723226_17





 






      “Liquid Investments” means:        (a)   direct obligations of, or obligations the principal of and interest on which are             guaranteed or insured by, the United States of America or any agency or             instrumentality thereof;        (b)   (i) negotiable or nonnegotiable certificates of deposit, time deposits, bankers’             acceptances or other similar banking arrangements maturing within twelve (12)             months from the date of acquisition thereof (“bank debt securities”), issued by (A)             any Bank or any Affiliate of any Bank or (B) any other foreign or domestic bank,             trust company or financial institution which has a combined capital surplus and             undivided profit of not less than $100,000,000 or the U.S. Dollar equivalent             thereof, if at the time of deposit or purchase, such bank debt securities are rated             not less than “BB” (or the then equivalent) by the rating service of S&P or of             Moody’s, (ii) commercial paper issued by (A) any Bank or any Affiliate of any             Bank or (B) any other Person if at the time of purchase such commercial paper is            rated not less than “A-2” (or the then equivalent) by the rating service of S&P or            not less than “P-2” (or the then equivalent) by the rating service of Moody’s, or            upon the discontinuance of both of such services, such other nationally            recognized rating service or services, as the case may be, as shall be selected by            the Borrower or a Guarantor, (iii) debt or other securities issued by (A) any Bank            or Affiliate of any Bank or (B) or any other Person, if at the time of purchase such            Person’s debt or equity securities are rated not less than “BB” (or the then            equivalent) by the rating service of S&P or of Moody’s, or upon the            discontinuance of both such services, such other nationally recognized rating            service or services, as the case may be, as shall be selected by the Borrower or a            Guarantor and (iv) marketable securities of a class registered pursuant to Section            12(b) or (g) of the Exchange Act;        (c)  repurchase agreements relating to investments described in clauses (a) and (b)             above with a market value at least equal to the consideration paid in connection             therewith, with any Person who has a combined capital surplus and undivided             profit of not less than $100,000,000 or the U.S. Dollar equivalent thereof, if at the             time of entering into such agreement the debt securities of such Person are rated             not less than “BBB” (or the then equivalent) by the rating service of S&P or of             Moody’s, or upon the discontinuance of both such services, such other nationally             recognized rating service or services, as the case may be, as shall be selected by             the Borrower or a Guarantor; and        (d)   shares of any mutual fund registered under the Investment Company Act of 1940             which invests solely in underlying securities of the types described in clauses (a),            (b) and (c) above.       “Loan Party” means, collectively, the Borrower and each Guarantor.        “LOC Bank” means any Person that has issued (or issues) a performance or financial letter of credit for the account of any Loan Party or any Subsidiary of a Loan Party. For the                                        17  122723226_17





 






 avoidance of doubt (i) at any point that a Bank ceases to be a Bank then such Person (and any Affiliate of such Person) shall cease to be a LOC Bank and (ii) at such time the issuer of any  performance or financial letter of credit for the account of the Borrower and/or any (or one or  more) Subsidiary of the Borrower becomes a Bank (or becomes an Affiliate of a Bank) such  Person shall automatically become a LOC Bank until such time that such Person (or Affiliate of such Person) ceases to be a Bank.        “London Banking Day” means any day on which dealings in Dollar deposits are  conducted by and between banks in the London interbank eurodollar market.         “Majority Banks” means at any time Banks holding more than fifty percent (50%) of the  sum of (i) the then aggregate unpaid principal amount of all Advances held by the Banks, and (ii)  the aggregate unused Total Commitments; provided that any Commitment of, and the portion of  any Advances held or deemed held by, any Defaulting Bank shall be excluded for purposes of  making a determination of Majority Banks.         “Master Agreement” has the meaning specified in the definition of “Swap Contract”.         “Material Adverse Effect” means, relative to any occurrence whatsoever, any effect  which (a) is material and adverse to the financial condition or business operations of the  Borrower and its Subsidiaries, on a Consolidated basis, or (b) adversely affects the legality,  validity or enforceability of this Agreement, any Note, the Bank of America Fee Letter, the  JPMCB Fee Letter, the Wells Fargo Fee Letter or the Upfront Fee Letter or (c) causes a Default.         “Maximum Rate” means at the particular time in question the maximum non-usurious  rate of interest which, under Applicable Usury Law, may then be contracted for, taken, reserved, charged or received under this Agreement, the Notes or under any other agreement entered into in connection with this Agreement or the Notes.  If such maximum non-usurious rate of interest changes after the date hereof, the Maximum Rate shall, from time to time, be automatically increased or decreased, as the case may be, as of the effective date of each change in such maximum rate, in each case without notice to Borrower.        “Moody’s” means Moody’s Investors Service, Inc., and any successor thereto.         “Moody’s Rating” means, at any time, the Borrower’s senior unsecured indebtedness  rating then most recently announced by Moody’s.         “Non-U.S. Bank” has the meaning specified in Section 2.15(e).         “Notice of Borrowing” has the meaning specified in Section 2.02.Notes” means a   promissory note of the Borrower payable to the order of any Bank, in substantially the form of   Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Bank resulting   from Advances.         “Notice of Borrowing” has the meaning specified in Section 2.02.         “Notes” means, collectively, the Tranche A Notes and the Tranche A-1 Notes.Notice of   Prepayment” means a notice of prepayment with respect to an Advance, which shall be                                         18   122723226_17





 






 substantially in the form of Exhibit F or such other form as may be approved by the   Administrative Agent (including any form on an electronic platform or electronic transmission   system as shall be approved by the Administrative Agent), appropriately completed and signed   by a Responsible Officer.          “Obligated Party” has the meaning specified in Section 4.03.         “Obligations” means all advances to, and debts, liabilities, obligations, covenants and  duties of, any Loan Party arising under any Credit Document or otherwise with respect to any  Advance, Secured Cash Management Agreement,  Secured Hedge Agreement or Secured  Bilateral Letter of Credit whether direct or indirect (including those acquired by assumption),  absolute or contingent, due or to become due, now existing or hereafter arising and including  interest and fees that accrue after the commencement by or against any Loan Party of any  proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of  debtors naming such Person as the debtor in such proceeding, regardless of whether such interest  and fees are allowed claims in such proceeding; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party. Without limiting the foregoing, the Obligations include the obligation to pay principal, interest,   Secured Bilateral Letter of Credit commissions, charges, expenses, fees, indemnities and other   amounts payable by any Loan Party under any Credit Document.         “Organization Documents” means, (a) with respect to any corporation, the charter or   certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive  documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability  company, the certificate or articles of formation or organization and operating or limited liability  agreement; and (c) with respect to any partnership, joint venture, trust or other form of business  entity, the partnership, joint venture or other applicable agreement of formation or organization  and any agreement, instrument, filing or notice with respect thereto filed in connection with its  formation or organization with the applicable governmental authority in the jurisdiction of its  formation or organization and, if applicable, any certificate or articles of formation or  organization of such entity.         “Other Connection Taxes” means, with respect to the Administrative Agent or any Bank,  Taxes imposed as a result of a present or former connection between such Administrative Agent  or Bank and the jurisdiction imposing such Tax (other than connections arising from such  Administrative Agent or Bank having executed, delivered, become a party to, performed its  obligations under, received payments under, received or perfected a security interest under,  engaged in any other transaction pursuant to or enforced any provision hereof, or sold or  assigned an interest in any Advance or Borrowing or in this Agreement or any Note or other  Credit Document).         “Other Taxes” has the meaning specified in Section 2.15(b).         “PBGC” means the Pension Benefit Guaranty Corporation (and any successor thereto).         “Patriot Act” means the USA Patriot Act, Title III of Pub. L. 107-56, signed into law on  October 26, 2001.                                         19   122723226_17





 






      “Participant Register” has the meaning specified in Section 10.06(e).        “Permitted Liens” means, with respect to any Person, Liens:        (a)   for taxes, assessments or governmental charges or levies on property of such             Person incurred in the ordinary course of business to the extent the failure to pay             such taxes, assessments or governmental charges or levies would not be in breach             of Sections 6.01 and 6.06;        (b)   imposed by law, such as landlords’, carriers’, warehousemen’s and mechanics’             liens and other similar Liens arising in the ordinary course of business securing             obligations which are not overdue for a period of more than sixty (60) days or             which are being contested in good faith and by appropriate proceedings;        (c)   arising in the ordinary course of business (i) out of pledges or deposits under             workers’ compensation laws, unemployment insurance, old age pensions or other             social security or retirement benefits, or similar legislation or to secure public or             statutory obligations of such Person or (ii) which were not incurred in connection             with the borrowing of money and do not in the aggregate materially detract from             the value or use of the assets of the Borrower and its Subsidiaries in the operation             of their business;        (d)   securing Debt existing on the Second Amendment Effective Date and listed on             the attached Schedule III or reflected in the financial statements referenced in             Section 5.04, provided that the Debt secured by such Liens shall not be renewed,            refinanced or extended if the amount of such Debt so renewed is greater than the            outstanding amount of such Debt on the Second Amendment Effective Date ;       (e)   constituting easements, rights-of-way, restrictions and other similar            encumbrances incurred in the ordinary course of business and encumbrances            consisting of zoning restrictions, easements, licenses, restrictions on the use of            property or minor imperfections in title thereto which, in the aggregate, are not            material in amount, and which do not in any case materially detract from the            value of the property subject thereto or materially interfere with the ordinary            conduct of the business of such Person;       (f)   securing judgments against such Person which are being appealed;       (g)   on real property acquired by such Person after the Second Amendment Effective            Date and securing only Debt of such Person incurred to finance the purchase price            of such property, provided that any such Lien is created within one hundred             eighty (180) days of the acquisition of such property;        (h)   other than those Liens otherwise permitted above, Liens securing Debt of the             Borrower and its Subsidiaries in an aggregate outstanding amount at any time not             to exceed $25,000,000;                                        20  122723226_17





 






       (i)   Liens existing on property owned by a Person whose Equity Interests, or all or              substantially all of whose assets, were acquired by the Borrower or one of its              Subsidiaries after the Second Amendment Effective Date at the time of such              acquisition; provided that such Liens are not created in connection with or in              contemplation of such acquisition and do not attach to any other assets or assets              of any other Person, as applicable;         (j)   Liens granted pursuant to the terms of the Credit Documents;         (k)   Liens granted in cash collateral (including any associated deposit or securities              accounts) to secure obligations incurred in connection with the issuance of letters              of credit, bank guaranties, bankers acceptances and similar instruments; or         (l)   Liens granted in Principal Properties to secure obligations incurred in connection              with Sale-Leaseback Transactions otherwise permitted to be consummated in              accordance with the terms of this Agreement.   Notwithstanding anything herein to the contrary, no Loan Party or any of its Subsidiaries shall  create, assume, incur or suffer to exist, any Lien on or in respect of any of its Intellectual  Property or any of its Principal Properties, in each case, except as permitted under this  Agreement.         “Person” means an individual, partnership, corporation, limited liability company,  limited liability partnership, business trust, joint stock company, trust, unincorporated  association, joint venture or other entity, or a government or any political subdivision or agency  thereof.         “Platform” has the meaning specified in Section 6.02.         “Plan” means an employee pension benefit plan within the meaning of Title IV of ERISA which is either (a) maintained for employees of the Borrower, of any Subsidiary of the Borrower, or of any member of the Controlled Group, or (b) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which the Borrower, any Subsidiary of the Borrower or any member of the Controlled  Group is at the time in question making or accruing an obligation to make contributions or has  within the preceding five plan years made contributions.         “Principal Property” means all restaurant or related equipment and real property, in each  case which is owned by the Borrower or a Subsidiary and which constitutes all or part of any  restaurant located within the United States or Canada.         “Private Bank” has the meaning specified in Section 6.02.         “Projections” has the meaning specified in Section 5.13.         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of   Labor, as any such exemption may be amended from time to time.                                         21   122723226_17





 






        “Public Bank” has the meaning specified in Section 6.02.         “Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets  exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under  the Commodity Exchange Act and can cause another person to qualify as an “eligible contract  participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.         “Rating” means the Moody’s Rating or the S&P Rating, as the case may be.         “Rating Level” means the applicable rating level as set forth in the table under the definition of the Applicable Rate.        “Real Property Holding Company” means any Subsidiary of the Borrower designated as such by the Borrower in a writing delivered to the Administrative Agent, which writing shall include a certification that the principal business of such Subsidiary consists of owning, leasing, dealing in or developing real property.        “Register” has the meaning specified in Section 10.06(c).         “Regulation U” means Regulation U of the FRB, as in effect from time to time and all   official rulings and interpretations thereunder or thereof.         “Related Parties” means, with respect to any Person, such Person’s Affiliates and the   partners, directors, officers, employees, agents, trustees, administrators, managers, advisors,   consultants, service providers and representatives of such Person and of such Person’s Affiliates.         “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal   Reserve Bank of New York, or a committee officially endorsed or convened by the Federal   Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending   a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.         “Rent Expense” means, for any Person for any period of determination, such Person’s  operating lease expense computed in accordance with GAAP, including, without limitation, all  contingent rentals, but excluding all common area maintenance expenses.         “Responsible Officer” means the chief executive officer, the president, the chief financial  officer, any executive, senior or other vice president,  treasurer, assistant treasurer or controller  of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to  Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of  notices given pursuant to Article II, any other officer or employee of the applicable Loan Party  so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.                                         22   122723226_17





 






       “Restricted Payment” means any dividend or other distribution (whether in cash,  securities or other property) with respect to any capital stock or other Equity Interest of the  Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),  including any sinking fund or similar deposit, on account of the purchase, redemption,  retirement, acquisition, cancellation or termination of any such capital stock or other Equity  Interest, or on account of any return of capital to the Borrower’s stockholders, partners or  members (or the equivalent Person thereof).         “Sale-Leaseback Transactions” has the meaning specified in Section 7.03(c).         “Sanctioned Country” means, at any time, a country, territory or region which is itself, or whose government is, the subject or target of any applicable full-scope Sanctions (at the date of this Agreement, Cuba, Iran, North Korea, Sudan, Syria and Crimea).        “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related  list of designated Persons maintained by the Office of Foreign Assets Control of the U.S.  Department of the Treasury, the U.S. Department of State, or by the United Nations Security  Council, the European Union or any European Union member state, Her Majesty’s Treasury of  the United Kingdom or other relevant sanctions authority (b) any Person operating, organized or  resident in a Sanctioned Country or (c) any Person 50% or more owned by any such Person or  Persons described in clause (a) and (b).        “Sanctions” means applicable economic or financial sanctions or trade embargoes  imposed, administered or enforced from time to time by (a) the U.S. government, including those  administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union,  Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.         “SEC” means the United States Securities and Exchange Commission (and any successor  thereto).         “SEC Filing” means a report or statement filed with the SEC pursuant to Section 13, 14,  or 15(d) of the Exchange Act and the regulations thereunder.         “Second Amendment” means that certain Second Amendment to Credit Agreement,  dated as of September 13, 2016, by and among the Borrower, the Guarantors party thereto, the  Banks party thereto and the Administrative Agent.         “Second Amendment Effective Date” means the date on which the conditions set forth in  Section 3 of the Second Amendment shall have been satisfied (or waived in accordance with  Section 10.01).         “Secured Bilateral Letter of Credit” means any performance or financial letter of credit  that is issued by a LOC Bank for the account of any Loan Party or any Subsidiary of a Loan  Party; provided that the aggregate amount of all such Secured Bilateral Letters of Credit shall not  exceed $35,000,000.                                         23   122723226_17





 






       “Secured Cash Management Agreement” means any Cash Management Agreement that  is entered into by and between any Loan Party or any Subsidiary of a Loan Party and any Cash  Management Bank.         “Secured Hedge Agreement” means any Swap Contract required or permitted under  Article VI or VII that is entered into by and between any Loan Party or any Subsidiary of a Loan  Party and any Hedge Bank.         “Secured Parties” means, collectively, the Administrative Agent, the Banks, the Hedge  Banks, the Cash Management Banks, the LOC Banks, each co-agent or sub-agent appointed by  the Administrative Agent from time to time pursuant to Section 9.01, and the other Persons the  Obligations owing to which are or are purported to be secured by the Collateral under the terms  of the Collateral Documents.         “Security Agreement” has the meaning specified in Section 6.10.        “Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” of the Borrower within the meaning of Rule 1-02 of Regulation S-X under the Exchange Act.        “SOFR” with respect to any day means the secured overnight financing rate published   for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark   (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any   successor source) and, in each case, that has been selected or recommended by the Relevant   Governmental Body.         “SOFR-Based Rate” means SOFR or Term SOFR.         “Solvent” means, with respect to any Person, that, as of any date of determination, (a) the amount of the present fair saleable value of the assets of such Person will, as of such date, exceed the amount of all liabilities of such Person, contingent or otherwise, as of such date, as such terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.        “Specified Loan Party” means any Loan Party that is not an “eligible contract  participant” under the Commodity Exchange Act (determined prior to giving effect to Section 1).         “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The   McGraw-Hill Companies,S&P Global Inc., and any successor thereto.                                        24   122723226_17





 






       “S&P Rating” means, at any time, the Borrower’s corporate credit rating then most recently announced by S&P.        “Subsidiary” means, as to any Person, any corporation, limited liability company, association or other business entity in which such Person or one or more of its Subsidiaries  directly or indirectly through one or more intermediaries owns sufficient equity or voting  interests to enable it or them (individually or as a group) ordinarily, in the absence of  contingencies, to elect a majority of the directors (or Persons performing similar functions) of  such entity, and any partnership or joint venture if more than a fifty percent (50%) interest in the  profits or capital thereof is owned directly or indirectly by such Person, or by one or more of its  Subsidiaries, or collectively by such Person and one or more of its Subsidiaries (unless such  partnership can and does ordinarily take major business actions without the prior approval of  such Person or one or more of its Subsidiaries).  Unless the context otherwise clearly requires, any reference to a “Subsidiary” is a reference to a direct or indirect Subsidiary of the Borrower.        “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit  derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or  bond index swaps or options or forward bond or forward bond price or forward bond index  transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor  transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing),  whether or not any such transaction is governed by or subject to any master agreement, and (b)  any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master  Agreement, or any other master agreement (any such master agreement, together with any  related schedules, a “Master Agreement”), including any such obligations or liabilities under any  Master Agreement; provided, however, “Swap Contracts” shall not include any equity based  derivative or similar transaction whether documented pursuant to a Master Agreement or  otherwise.         “Swap Obligation” means with respect to any Guarantor any obligation to pay or perform  under any agreement, contract or transaction that constitutes         “Taxes” has the meaning specified in Section 2.15(a).         “Termination Date” means the earliest of (i) (a) with respect to the Tranche A   Commitment and Tranche A Advances, the Tranche A Termination Date and (b) with respect to   the Tranche A-1 Commitment and Tranche A-1 Advances, the Tranche A-1 Termination   Date,September 12, 2021, (ii) (a) the date of termination in whole of all of the Commitments in  accordance with Section 2.05 and (b) the repayment of all of the aggregate Advances of all  Banks in accordance with Section 2.05 and Section 2.06, and (iii) the termination of the Total  Commitment of all Banks pursuant to Section 8.01, provided that if such date shall not be a  Business Day, the Termination Date shall be the immediately preceding Business Day.                                         25   122723226_17





 






       “Termination Event” means (i) a “reportable event”, as such term is described in Section  4043 of ERISA (other than a “reportable event” not subject to the provision for 30 day notice to  the PBGC), or an event described in Section 4062(e) of ERISA, or (ii) the withdrawal of the  Borrower or any member of the Controlled Group from a Plan during a plan year in which it was a “substantial employer”, as such term is defined in Section 4001(a)(2) of ERISA, or the incurrence of liability by the Borrower or any member of the Controlled Group under Section 4064 of ERISA upon the termination of a Plan or Plan, or (iii) the distribution of a notice of intent to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan amendment as a termination under Section 4041 of ERISA, or (iv) the institution of proceedings to terminate a Plan by the PBGC under Section 4042 of ERISA, or (v) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan.        “Third Amendment Effective Date” means April 30, 2018.         “Third Amendment Fee Letter” means the Fee Letter dated April 30, 2018 among the  Borrower, Bank of America and Merrill Lynch, Pierce, Fenner & Smith Incorporated.         “Third Party Funds” has the meaning specified in Section 10.05.         “Total Commitment” means, with respect to a Bank, at any time, the aggregate amount of  the Commitments (whether used or unused) of such Bank, and with respect to all the Banks, at  any time, the aggregate amount of the Commitments (whether used or unused) of all Banks, in each case, as in effect at such time.        “Tranche A Advance” means an advance made by a Tranche A Bank to the Borrower   pursuant to Section 2.01(b).         “Tranche A Availability Period” means the period of time commencing on the Second   Amendment Effective Date and ending on the Tranche A Termination Date.         “Tranche A Banks” means the Persons with a Tranche A Commitment or an outstanding   Tranche A Advance as of the Second Amendment Effective Date and each other Person that   shall have become a party hereto as a “Tranche A Bank” pursuant to an Assignment or an   Accession Agreement, other than any such Person that shall have ceased to be a party hereto   pursuant to an Assignment.         “Tranche A Commitment” means, at any time, whether used or unused, the obligation of   each Tranche A Bank to make Tranche A Advances in an aggregate amount up to and including   the amount set forth opposite such Bank’s name on Schedule VIII hereto under the caption   “Tranche A Commitments” or in an Assignment, as such amount may be terminated, reduced or   increased pursuant to Section 2.05, Section 2.17, Section 8.01 or Section 10.06.         “Tranche A Note” means a promissory note of the Borrower payable to the order of any   Tranche A Bank, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate   indebtedness of the Borrower to such Tranche A Bank resulting from Tranche A Advances.                                         26   122723226_17





 






      “Tranche A Termination Date” means the earliest of (i) March 12, 2020, (ii) (a) the date  of termination in whole of all of the Tranche A Commitments in accordance with Section 2.05  and (b) the repayment of all of the aggregate Tranche A Advances of all Tranche A Banks in  accordance with Section 2.05 and Section 2.06, and (iii) the termination of the Tranche A  Commitment of all Tranche A Banks pursuant to Section 8.01, provided that if such date shall  not be a Business Day, the Tranche A Termination Date shall be the immediately preceding  Business Day.        “Tranche A-1 Advance” means an advance made by a Tranche A-1 Bank to the Borrower  pursuant to Section 2.01(c).        “Tranche A-1 Availability Period” means the period of time commencing on the Second  Amendment Effective Date and ending on the Tranche A-1 Termination Date.        “Tranche A-1 Banks” means the Persons with a Tranche A-1 Commitment or an  outstanding Tranche A-1 Advance as of the Second Amendment Effective Date and each other  Person that shall have become a party hereto as a “Tranche A-1 Bank” pursuant to an  Assignment or an Accession Agreement, other than any such Person that shall have ceased to be  a party hereto pursuant to an Assignment.        “Tranche A-1 Commitment” means, at any time, whether used or unused, the obligation  of each Tranche A-1 Bank to make Tranche A-1 Advances in an aggregate amount up to and  including the amount set forth opposite such Bank’s name on Schedule VIII hereto under the  caption “Tranche A-1 Commitments” or in an Assignment, as such amount may be terminated,  reduced or increased pursuant to Section 2.05, Section 2.17, Section 8.01 or Section 10.06.        “Tranche A-1 Note” means a promissory note of the Borrower payable to the order of  any Tranche A Bank, in substantially the form of Exhibit A-2 hereto, evidencing the aggregate  indebtedness of the Borrower to such Tranche A-1 Bank resulting from Tranche A-1 Advances.        “Tranche A-1 Termination Date” means the earliest of (i) September 12, 2021, (ii) (a) the  date of termination in whole of all of the Tranche A-1 Commitments in accordance with Section  2.05 and (b) the repayment of all of the aggregate Tranche A-1 Advances of all Tranche A-1  Banks in accordance with Section 2.05 and Section 2.06, and (iii) the termination of the Tranche  A-1 Commitment of all Tranche A-1 Banks pursuant to Section 8.01, provided that if such date  shall not be a Business Day, the Tranche A-1 Termination Date shall be the immediately  preceding Business Day.        “Type” means, with respect to any Advance, its character as either a Eurodollar Rate Advance or Base Rate Advance.        “UCC” means the Uniform Commercial Code of any applicable jurisdiction and, if the applicable jurisdiction shall not have any Uniform Commercial Code, the Uniform Commercial Code as in effect from time to time in the State of Texas.        “UFCA” means the Uniform Fraudulent Conveyance Act.        “United States” means the United States of America.                                       27  122723226_17





 






      “Upfront Fee Letter” means the Fee Letter dated August 19, 2016 among the Borrower, Bank of America, JPMCB, Wells Fargo Bank and the Joint Lead Arrangers.        “UFTA” means the Uniform Fraudulent Transfer Act.        “U.S. Dollars” and “$” mean the lawful currency of the United States of America.        “Wells Fargo Fee Letter” means the Fee Letter dated August 19, 2016 between the Borrower and Wells Fargo Securities, LLC.        “Wells Fargo Bank” means Wells Fargo Bank, National Association.       “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.          Section 1.02.  Computation of Time Periods.  In this Agreement in the computation of   periods of time from a specified date to a later specified date, the word “from” means “from   and including” and the words “to” and “until” each means “to but excluding.”           Section 1.03.  Accounting Terms.  All accounting and financial terms not specifically    defined herein and the compliance with each covenant contained herein with respect to    financial matters (unless a different procedure is otherwise set forth herein) shall be    construed in accordance with GAAP.  Notwithstanding the foregoing, for purposes of    determining compliance with any covenant (including the computation of any financial    covenant) contained herein, Debt of the Borrower and its Subsidiaries shall be deemed to be    carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC    825 and FASB ASC 470-20 on financial liabilities shall be disregarded.  If subsequent to the    date hereof any change shall occur in GAAP or in the application thereof and such change    shall affect the calculation of any financial covenant, or any other provision, set forth herein,    then if the Borrower, by notice to the Administrative Agent, shall request an amendment to    any such financial covenant or other provision to eliminate the effect of such change on such    financial covenant or other provision (or if the Administrative Agent or the Majority Banks,    by notice to the Borrower, shall request an amendment to any such financial covenant or    other provision for such purpose), regardless of whether any such notice is given before or    after such change in GAAP or in the application thereof, then the parties hereto shall enter    into negotiations in an effort to agree upon such an amendment and, until such notice shall    have been withdrawn or such amendment shall have become effective in accordance    herewith, such financial covenant or other provision shall be calculated or interpreted on the    basis of GAAP as in effect and applied immediately before such change shall have become    effective.  Without limiting the foregoing, leases shall continue to be, for all purposes of this Agreement, classified and accounted for on a basis consistent with that reflected in the audited financial statements of the Borrower last delivered to the Administrative Agent prior to the Third Amendment Effective Date, notwithstanding any change in GAAP relating thereto, unless the                                        28  122723226_17





 






 parties hereto shall enter into a mutually acceptable amendment addressing such changes, as  provided for above.            Section 1.04.  Miscellaneous.  The words “hereof”, “herein” and “hereunder” and     words of similar import when used in this Agreement shall refer to this Agreement as a     whole and not to any particular provision of this Agreement, and Article, Section, Schedule     and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this     Agreement, unless otherwise specified.  Unless the context requires otherwise, references     herein or in any Credit Document or any other agreement or document to this Agreement     shall be construed to refer to this Agreement as may be further amended, amended and     restated, restated, supplemented or modified from time to time in accordance with the terms     hereof.            Section 1.05.  Other Interpretive Provisions.  With reference to this Agreement and     each other Credit Document, unless otherwise specified herein or in such other Credit     Document:         (a)   The definitions of terms herein shall apply equally to the singular and plural  forms of the terms defined.  Whenever the context may require, any pronoun shall include the  corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will”  shall be construed to have the same meaning and effect as the word “shall.”  The word “or” is used in the inclusive sense of “and/or.”  Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Credit Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Document in its entirety and not to any particular provision thereof, (d) all references in a Credit Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Credit Document in which such references appear, (e) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (f) 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.         (b)   Section headings herein and in the other Credit Documents are included for  convenience of reference only and shall not affect the interpretation of this Agreement or any  other Credit Document.         (c)   Any reference herein to a merger, transfer, consolidation, amalgamation,   consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply   to a division of or by a limited liability company, or an allocation of assets to a series of a limited                                          29   122723226_17





 






liability company (or the unwinding of such a division or allocation), as if it were a merger,  transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or  similar term, as applicable, to, of or with a separate Person. Any division of a limited liability  company shall constitute a separate Person hereunder (and each division of any limited liability  company that is a Subsidiary, joint venture or any other like term shall also constitute such a  Person or entity).           Section 1.06. Interest Rates.  The Administrative Agent does not warrant, nor accept     responsibility, nor shall the Administrative Agent have any liability with respect to the     administration, submission or any other matter related to the rates in the definition of     “Eurodollar Rate” or with respect to any rate that is an alternative or replacement for or     successor to any of such rate (including, without limitation, any LIBOR Successor Rate) or     the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.                                   ARTICLE II.                    AMOUNTS AND TERMS OF THE ADVANCES           Section 2.01.  The Advances.        (a)   On the Second Amendment Effective Date, in accordance with and upon the  terms and conditions set forth in this Agreement, (i) the Commitment under the Existing  Revolving Facility (the “Existing Commitments”) of each Existing Bank that does not agree to  extend the maturity of its Existing Commitment shall continue hereunder but shall be referred to  as a Tranche A Commitment, (ii) the Existing Commitment of each Existing Bank that agrees to  extend the maturity of its Existing Commitment shall continue hereunder and be reclassified as a  Tranche A-1 Commitment and (iii) the commitments of each Bank party hereto that is not an  Existing Bank prior to the Second Amendment Effective Date (each, an “Additional Bank”) shall  constitute Tranche A-1 Commitments;(b) Each Tranche A Bank, severally and for itself alone, on the terms and conditions hereinafter set forth, hereby agrees to make Tranche A Advances to the Borrower from time to time, on any Business Day during the Tranche A  Availability Period, in an aggregate amount outstanding not to exceed at any time such Bank’s Tranche A Commitment.  Each Borrowing of Tranche A Advances shall be in an aggregate amount of not less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof, and shall consist of Tranche A Advances of the same Type made to the Borrower on the same day by the Tranche A Banks ratably according to their respective Tranche A Commitments and in the case of Tranche A Advances that are Eurodollar Rate Advances, having the same Interest Period. Within the limits of each Bank’s Tranche A Commitment, the Borrower may borrow, prepay pursuant to Section 2.06(b) and reborrow.        (c)   Each Tranche A-1 Bank, severally and for itself alone, on the terms and  conditions hereinafter set forth, hereby agrees to make Tranche A-1 Advances to the Borrower  from time to time, on any Business Day during the Tranche A-1 Availability Period, in an  aggregate amount outstanding not to exceed at any time such Bank’s Tranche A-1 Commitment.   Each Borrowing of Tranche A-1 Advances shall be in an aggregate amount of not less than  $10,000,000 or an integral multiple of $1,000,000 in excess thereof, and shall consist of Tranche  A-1 Advances of the same Type made to the Borrower on the same day by the Tranche A-1                                         30  122723226_17





 






 Banks ratably according to their respective Tranche A-1 Commitments and in the case of   Tranche A-1 Advances that are Eurodollar Rate Advances, having the same Interest Period.    Within the limits of each Bank’s Tranche A-1 Commitment, the Borrower may borrow, prepay   pursuant to Section 2.06(b) and reborrow.              Section 2.02.  Requests for Advances.  During the applicable Availability Period,     each Borrowing shall be made on notice, given not later than 11:00 A.M. (New York City     time) (a) in the case of a proposed Borrowing comprised of Eurodollar Rate Advances, at     least three (3) Business Days prior to the date of the proposed Borrowing, and (b) in the case     of a proposed Borrowing comprised of Base Rate Advances, on the Business Day of the     proposed Borrowing, by the Borrower to the Administrative Agent, which shall give to each     Bank prompt notice thereof by telecopy.  Each such notice of a Borrowing (a “Notice of      Borrowing”) shall be in writing (including by telecopy), in substantially the form of Exhibit      B hereto or such other form as may be approved by the Administrative Agent (including any     form on an electronic platform or electronic transmission system as shall be approved by the     Administrative Agent), appropriately completed and signed by a Responsible Officer of the     Borrower.  Each Notice of Borrowing shall refer to this Agreement and shall specify (i) the     requested date of such Borrowing (which shall be a Business Day), (ii) the requested Type of     Advances comprising such Borrowing, (iii) the requested aggregate principal amount of such     Borrowing, and (iv) in the case of a Borrowing of a Eurodollar Rate Advance, the requested     Interest Period for such Borrowing.            Section 2.03.  Borrowings; Advances; Termination of Eurodollar Rate Advances.        (a)    Advances shall be made as part of a Borrowing consisting of Advances of the same Class and Type made by the applicable Banks ratably in accordance with their respective  Commitments on the borrowing date of the Borrowing of Advances. The failure of any Bank to  make any Advance shall not in itself relieve any other Bank of its obligation to lend hereunder.         (b)   Each Borrowing shall be a Eurodollar Rate Borrowing or a Base Rate Borrowing.  Each Bank may at its option make any Eurodollar Rate Advance by causing the Eurodollar  Lending Office of such Bank to make such Advance, provided, however, that any exercise of  such option shall not affect the obligation of the Borrower to repay such Advance in accordance  with the terms of this Agreement and the applicable Note, if any.  Advances of more than one (1)  interest rate option may be outstanding at the same time, provided, however, that the Borrower  shall not be entitled to request any Advances which, if made, would result in Advances, an  aggregate of more than ten (10) separate Advances of any Bank being outstanding hereunder at  any one time.  For purposes of the foregoing, (i) Eurodollar Rate Advances having different  Interest Periods, regardless of whether they commence on the same date, shall be considered  separate Eurodollar Rate Advances and (ii) Eurodollar Rate Advances and Base Rate Advances,  regardless of whether they commence on the same date, shall be considered separate Advances.         (c)   Each Bank shall, before 1:00 P.M. (New York City time) on the borrowing date  of each requested Borrowing make available at its Applicable Lending Office for the account of  the Administrative Agent at its address referred to in Section 10.02, in immediately available  funds, such Bank’s ratable portion of such requested Borrowing in accordance with its applicable Commitment.  After the Administrative Agent’s receipt of such funds and upon satisfaction of                                         31   122723226_17





 






the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower not later than 2:00 P.M. (New York City time) at such account of the Borrower as the Borrower shall from time to time designate in a notice delivered to the Administrative Agent that is reasonably acceptable to the Administrative Agent.  If the applicable conditions set forth in Article III to any such Borrowing are not met, the Administrative Agent shall so notify the Banks making the Advances comprising such Borrowing and return the funds so received to the respective Banks as soon as practicable.        (d)   Notwithstanding anything in this Agreement to the contrary:              (i)      if any Bank shall, at least one (1) Business Day before the date of any       requested Borrowing to be made, notify the Administrative Agent that the introduction of       or any change in or the interpretation of any lawLaw or regulation makes it unlawful, or       that any central bank or other governmental authority asserts that it is unlawful, for such       Bank or its Eurodollar Lending Office to perform its obligations hereunder to make      Eurodollar Rate Advances or to fund Eurodollar Rate Advances hereunder, the right of       the Borrower to select Eurodollar Rate Advances for such Borrowing or any subsequent       Borrowing shall be suspended until such Bank shall notify the Administrative Agent that       the circumstances causing such suspension no longer exist, and except as provided in       clause (iv) below, each Advance comprising such Borrowing shall be a Base Rate       Advance;              (ii)     if the Majority Banks shall, on or before the date any requested       Borrowing consisting of Eurodollar Rate Advances is to be made, notify the       Administrative Agent that the Eurodollar Rate for such Eurodollar Rate Advances will       not adequately reflect the cost to such Banks of making their respective Eurodollar Rate       Advances, the right of the Borrower to select the Eurodollar Rate for such Borrowing or       any subsequent Borrowing shall be suspended until the Administrative Agent, at the       request of the Majority Banks, shall notify the Borrower and the Banks that the       circumstances causing such suspension no longer exist, and except as provided in clause        (iv) below, each Advance comprising such Borrowing shall be a Base Rate Advance;              (iii)    if the Administrative Agent determines that in connection with any       request for a Eurodollar Rate Advance or a conversion to or continuation thereof that       Dollar deposits are not being offered to banks in the London interbank eurodollar market       for the applicable amount and Interest Period of such Eurodollar Rate Advances or (b)       adequate and reasonable means do not exist for determining the Eurodollar Rate for any       requested Interest Period with respect to a proposed Eurodollar Rate Advance or in       connection with an existing or proposed Base Rate Advance, (A) the Administrative       Agent shall forthwith notify the Borrower and the Banks that the interest rate cannot be       determined for such Eurodollar Rate Advances, (B) the right of the Borrower to select       Eurodollar Rate Advances for such Borrowing or any subsequent Borrowing shall be       suspended until the Administrative Agent shall notify the Borrower and the Banks that       the circumstances causing such suspension no longer exist, and (C) each Advance       comprising such Borrowings shall be a Base Rate Advance;                                         32  122723226_17





 






             (iv)     if the Borrower has requested a proposed Borrowing consisting of        Eurodollar Rate Advances and as a result of circumstances referred to in clauses (i) and       (ii) above, such Borrowing would not consist of Eurodollar Rate Advances, the Borrower        may, by notice given reasonably prior to the time of such proposed Borrowing, cancel        such Borrowing, in which case such Borrowing shall be canceled and no Advances shall        be made as a result of such requested Borrowing; and               (v)      if the Borrower shall fail to select the duration or continuation of any        Interest Period for any Advances consisting of Eurodollar Rate Advances, in accordance        with the provisions contained in Section 2.04(b) and in this Section 2.03(d), the       Administrative Agent will promptly so notify the Borrower and the Banks and such       Advances will be made available to the Borrower on the date of such Borrowing as Base       Rate Advances.        (e)   Each Notice of a Borrowing shall be irrevocable and binding on the Borrower, except as set forth in Section 2.03(d)(iv).  In the case of any Eurodollar Rate Advance requested  by the Borrower in a Notice of Borrowing, the Borrower shall, unless the second following  sentence shall be applicable, indemnify each Bank against any loss, cost or expense incurred by  such Bank if such Eurodollar Rate Advance is not made, including as a result of any failure to  fulfill, on or before the date specified in such Notice of Borrowing for such Borrowing, the  applicable conditions set forth in Article III, including, without limitation, any loss (including  loss of anticipated profits), cost or expense incurred by reason of the liquidation or  reemployment of deposits or other funds acquired by such Bank to fund such Advance to be  made by such Bank as part of such Borrowing when such Advance, as a result of such failure, is  not made on such date.  A certificate in reasonable detail as to the basis for and the amount of  such loss, cost or expense submitted to the Borrower and the Administrative Agent by such Bank  shall be prima facie evidence of the amount of such loss, cost or expense.  If a Borrowing  requested by the Borrower to be comprised of Eurodollar Rate Advances is not made as a  Borrowing comprised of Eurodollar Rate Advances as a result of Section 2.03(d), the Borrower shall indemnify each Bank against any loss (excluding loss of profits), cost or expense incurred by such Bank by reason of the liquidation or reemployment of deposits or other funds acquired by such Bank (prior to the time such Bank is actually aware that such Borrowing will not be so made), to fund the Advance to be made by such Bank as part of such Borrowing.  A certificate in reasonable detail as to the basis for and the amount of such loss, cost or expense submitted to the Borrower and the Administrative Agent by such Bank shall be prima facie evidence of the amount of such loss, cost or expense.        (f)   Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s ratable portion of such Borrowing in accordance with its applicable Commitment, the Administrative Agent may assume that such Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower requesting such Borrowing on such date a corresponding amount.  If, and to the extent that, such Bank shall not have so made such ratable portion of such Borrowing in accordance with its applicable Commitment available to the Administrative Agent, such Bank and the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding                                        33   122723226_17





 






amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii) in the case of such Bank, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing.  If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Advance as part of such Borrowing for purposes of this Agreement.        (g)   The failure of any Bank to make any Advance to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make any Advance to be made by such other Bank on the date of any Borrowing.           Section 2.04.  Conversions and Continuations of Borrowings.  (a) Subject to the    limitations set forth in Section 2.03(b)  and Section 2.03(d), the Borrower shall have the right    at any time upon prior irrevocable notice to the Administrative Agent not later than 11:00    A.M. (New York City time) three (3) Business Days prior to the date of conversion or    continuation, to convert any Borrowing which constitutes a Base Rate Borrowing into a    Eurodollar Rate Borrowing, to convert any Borrowing which constitutes a Eurodollar Rate    Borrowing into a Base Rate Borrowing or, to continue any Borrowing constituting a    Eurodollar Rate Borrowing for an additional Interest Period, subject in each case to the    following:                    (A)   each conversion or continuation shall be made based on the pro             rata Commitment of the Banks in accordance with the respective principal             amounts of the applicable Advances comprising the converted or continued             Borrowing;                    (B)   if less than all the outstanding principal amount of any Borrowing             shall be converted or continued, the aggregate principal amount of such             Borrowing converted or continued shall be in an amount of $10,000,000 or an             integral multiple of $1,000,000 in excess thereof;                    (C)   accrued interest on any Advance (or portion thereof) being             converted or continued shall be paid by the Borrower at the time of conversion or             continuation;                    (D)   if any Eurodollar Rate Borrowing is converted at a time other than             the end of the Interest Period applicable thereto, the Borrower shall pay, upon             demand, any amounts due to the Banks pursuant to Section 2.03(e) and Section              2.06(d) as a result of such conversion;                    (E)   no Interest Period may be selected for any Eurodollar Rate             Borrowing that would end later than the applicable Termination Date;                                        34  122723226_17





 






                   (F)   no Default shall have occurred and be continuing at the time of, or              result from, such conversion or continuation; and                     (G)   each such conversion or continuation shall constitute a              representation and warranty by the Borrower and the Guarantors that no Default              (i) has occurred and is continuing at the time of such conversion or continuation,              or (ii) would result from such conversion or continuation.         (b)   Each notice pursuant to Section 2.04(a) shall be irrevocable, shall be in writing  (or telephone notice promptly confirmed in writing) and shall refer to this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be converted or  continued, (ii) whether such Borrowing is to be converted to or continued as a Eurodollar Rate  Borrowing or a Base Rate Borrowing, (iii) if such notice requests a conversion, the date of such  conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or  continued as a Eurodollar Rate Borrowing, the Interest Period with respect thereto.  If no Interest  Period is specified in any such notice with respect to any conversion to or continuation as a  Eurodollar Rate Borrowing, the Borrower shall be deemed to have selected an Interest Period of  one (1) month’s duration.  The Administrative Agent shall promptly advise the Banks of any  notice given pursuant to Section 2.04(a) and of each applicable Bank’s portion of any converted or continued Borrowing.  If the Borrower shall not have given notice in accordance with Section   2.04(a) to continue any Eurodollar Rate Borrowing into a subsequent Interest Period (and shall  not otherwise have given notice in accordance with Section 2.04(a) to convert such Eurodollar  Rate Borrowing), such Eurodollar Rate Borrowing shall, at the end of the Interest Period  applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued as a  Base Rate Borrowing.  For the avoidance of doubt, no notice shall be required for a Base Rate  Borrowing to continue as a Base Rate Borrowing.           Section 2.05.  Optional Termination and Reduction of the Commitments.  The    Borrower shall have the right, upon at least three (3) Business Days’ notice to the    Administrative Agent, to terminate in whole or reduce in part the unused portions of the    Total Commitments, provided that (a) each partial reduction shall be in the aggregate amount     of at least $10,000,000 and in an integral multiple of $1,000,000 in excess thereof, (b) the     aggregate used amount of the Commitments of each Bank shall not be reduced to an amount     which is less than the aggregate principal amount of the Advances of such Bank then     outstanding, and (c) no Notice of Borrowing has been delivered and is in effect that would     result in aggregate Advances being outstanding in an aggregate amount in excess of the Total     Commitment thereafter.  Such notice shall specify the date and the amount of the reduction     or termination of the Total Commitment.  Any such reduction or termination of the Total     Commitment shall be made ratably among the Banks in accordance with their respective     Commitments and shall be permanent.  Simultaneously with any termination of the Total     Commitment, in whole or in part, the Borrower shall pay to the Administrative Agent for the     accounts of the Banks the accrued and unpaid facility fee as set forth in Section 2.09(a).                                          35   122723226_17





 






          Section 2.06.  Repayment and Prepayment of Advances; Notes.         (a)   The Borrower agrees to repay (i) the Tranche A Banks, all of the Tranche A  Advances in full on the Tranche A Termination Date and (ii) the Tranche A-1 Banks, all of the   Tranche A-1 Advances in full on the Tranche A-1 Termination Date.         (b)   The Borrower may, upon at least one (1) Business Day’s notice in respect of Base  Rate Advances, and, in respect of Eurodollar Rate Advances, upon at least three (3) Business  Days’ notice, to the Administrative Agent pursuant to delivery to the Administrative Agent of a   Notice of Prepayment stating the proposed date (which shall be a Business Day), the Class and  Type of Advances to be prepaid and aggregate principal amount of the prepayment, and if such  notice is given, the Borrower shall, prepay the outstanding principal amounts of the Advances  comprising part of the same Borrowing in whole or ratably in accordance with the Commitments  of the applicable Banks, together with accrued interest to the date of such prepayment on the  principal amount prepaid and all fees and amounts, if any, required to be paid under this  Agreement, including, without limitation, pursuant to Section 2.06(d), Section 2.09(a) and Section 2.11 as a result of such prepayment, provided, however, that each partial prepayment of Advances pursuant to this Section 2.06(b) shall be in an aggregate principal amount not less than  $10,000,000 for each Advance so prepaid and increments of $1,000,000 in excess thereof and in  an aggregate principal amount such that after giving effect thereto no Borrowing of Advances  comprised of Base Rate Advances shall have a principal amount outstanding of less than $5,000,000 and no Borrowing of Advances comprised of Eurodollar Rate Advances shall have a  principal amount outstanding of less than $10,000,000.         (c)   Each notice of prepayment shall specify the prepayment date, the Class and Type  of Borrowing to be prepaid and the aggregate principal amount of each Borrowing to be prepaid,  shall be irrevocable and shall commit the Borrower to prepay such Borrowing by the amount  stated therein.         (d)   In the event that any Bank shall incur any loss or expense (including, without  limitation, any loss or expense incurred by reason of the liquidation or reemployment of deposits  or other funds acquired by the Bank to fund or maintain all or any portion of the outstanding  principal amount of any Advance) as a result of any repayment occurring prior to the last day of  any Interest Period, or prepayment, of a Eurodollar Rate Advance or conversion of any  Eurodollar Borrowing, on a date other than the last day of any Interest Period applicable thereto,  then the Borrower shall pay to the Administrative Agent for the account of such Bank, on  demand, such amount as will reimburse the Bank for such loss or expense.  A certificate as to the  amount of such loss or expense setting forth the calculation thereof, submitted by such Bank to  the Borrower and the Administrative Agent, shall be conclusive and binding for all purposes in  the absence of error.         (e)   The records maintained by the Administrative Agent and the Banks shall be prima  facie evidence of the existence and amounts of the obligations of the Borrower in respect of the Advances, interest and fees due or accrued hereunder, provided that the failure of the  Administrative Agent or any Bank to maintain such records or any error therein shall not in any  manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance  with the terms of this Agreement.  Any Bank may request that Advances made by it be                                         36   122723226_17





 






 evidenced by a Note.  In such event, the Borrower shall prepare, execute and deliver to such  Bank each such Note payable to such Bank.         (f)   All voluntary and mandatory repayments under this Section 2.06 and under this  Agreement (including pursuant to Section 7.03(b)) shall be accompanied by all accrued interest  on the principal amount being repaid or prepaid to the date of prepayment, if any, and all other  fees and amounts required under this Section 2.06 and under this Agreement (including, without  limitation, pursuant to Section 2.06(d), Section 2.09(a) and Section 2.11).            Section 2.07.  Interest on Advances.  (a)  Interest on Advances.  The Borrower shall     pay interest on the unpaid principal amount of each Advance made by each Bank from the     date of such Advance until such principal amount shall be paid in full, at the following rates     per annum (but subject to the provisions of Section 10.08):               (i)      if such Advance is a Base Rate Advance, a rate per annum,        commencing on the applicable borrowing date, equal to the Base Rate in effect from time        to time for such Advance plus the Applicable Rate in effect from time to time for such        Advance, payable on each Interest Payment Date; and               (ii)     if such Advance is a Eurodollar Rate Advance, a rate per annum equal        at all times during the Interest Period for such Advance to the sum of the Eurodollar Rate        for such Interest Period plus the Applicable Rate in effect from time to time for such        Advance, payable on each Interest Payment Date.         (b)   Additional Interest on Eurodollar Rate Advances.  The Borrower shall pay to each  Bank, so long as such Bank shall be required under regulations of the Board of Governors of the  Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each  Eurodollar Rate Advance of such Bank, from the date of such Advance until such principal  amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained  by subtracting (i) the Eurodollar Rate for each Interest Period for such Advance from (ii) the rate  obtained by dividing such Eurodollar Rate by a percentage equal to one hundred percent (100%) minus the Eurodollar Rate Reserve Percentage of such Bank for such Interest Period, payable on  each date on which interest is payable on such Advance.  Such additional interest shall be  determined by such Bank and notified to the Borrower through the Administrative Agent.  A  certificate as to the amount of such additional interest submitted to the Borrower and the  Administrative Agent by such Bank shall be conclusive and binding for all purposes, absent  error.         (c)   Payment of Interest.  All accrued but unpaid interest on all Advances shall be due  and payable in arrears on the Interest Payment Dates related thereto.         (d)   Maximum Interest.  The parties hereto agree that the sum of (i) interest payable in  accordance with this Section 2.07, plus (ii) the fees payable as provided in Section 2.09 to the  extent they would constitute interest under Applicable Usury Law, plus (iii) other consideration  payable hereunder or under the Notes which constitutes interest under Applicable Usury Law                                         37   122723226_17





 






 (whether or not denoted as interest), shall, as more fully provided in Section 10.08, not exceed  the maximum amount allowed under Applicable Usury Law.            Section 2.08.  Interest Rate Determination.  The Administrative Agent shall give     prompt notice to the Borrower and the Banks of the applicable interest rate for each     Eurodollar Rate Advance determined by the Administrative Agent for purposes of Section      2.07.            Section 2.09.  Fees.  (a)  Facility Fee.  The Borrower agrees to pay to the     Administrative Agent, for the account of each Bank, a facility fee on such Bank’s Total     Commitment (regardless of usage) from the date hereof until the applicable Termination     Date in an amount equal to such Bank’s Total Commitment (regardless of usage) multiplied     by the Facility Fee Rate therefor (as such rate is set forth under the definition of the     Applicable Rate), payable in arrears in quarterly installments on the last day of each calendar    quarter so long as any Advance is outstanding or any Bank has any Commitment, on the     effective date of any reduction or termination of the Total Commitment pursuant to Section      2.05 and on the applicable Termination Date.         (b)   Administrative Agent’s Fees.  The Borrower agrees to pay to the Administrative  Agent, for its sole account, the fees separately agreed upon with the Administrative Agent in the Bank of America Fee Letter.            Section 2.10.  Payments; Computations; Interest on Overdue Amounts.  (a) The     Borrower shall make each payment hereunder and under the Notes to be made by it not later     than 11:00 A.M. (New York City time) on the day when due in U.S. Dollars to the     Administrative Agent at its address referred to in Section 10.02 in same day funds.  The     Administrative Agent will promptly thereafter cause to be distributed like funds relating to     the payment of principal, interest or fees ratably (other than amounts payable pursuant to     Section 2.06(d), 2.07(b), 2.11, 2.12, 2.14 or 2.15, which shall not necessarily be paid ratably    to the Banks in accordance with their respective Total Commitment and other than amounts     pursuant to Section 2.09(b) which shall be for the Administrative Agent’s sole account) to     the Banks in accordance with their respective Total Commitment for the account of their    respective Applicable Lending Offices, and like funds relating to the payment of any other     amount payable to any Bank to such Bank for the account of its Applicable Lending Office,     in each case to be applied in accordance with the terms of this Agreement.  In no event shall     any Bank be entitled to share any fees paid to the Administrative Agent pursuant to Section      2.09(b).         (b)   All interest and fees hereunder shall be computed on the basis of a year of 360  days, except that interest computed by reference to the Base Rate shall be computed on the basis  of a year of 365 days (or 366 days in a leap year), in each case for the actual number of days  (including the first day but excluding the last day) occurring in the period for which such interest  or fees are payable.  Each determination by the Administrative Agent (or, in the case of Section   2.07(b), by a Bank) of an interest rate hereunder shall be conclusive and binding for all purposes,  absent error.                                          38   122723226_17





 






       (c)   Whenever any payment hereunder or under the Notes shall be stated to be due on  a day other than a Business Day, such payment shall be made on the next succeeding Business  Day, and such extension of time shall in such case be included in the computation of payment of  interest or fees, as the case may be, provided, however, that if such extension would cause  payment of interest on or principal of Eurodollar Rate Advances to be made in the next  following calendar month, such payment shall be made on the next preceding Business Day.         (d)   Unless the Administrative Agent shall have received notice from the Borrower  prior to the date on which any payment is due by the Borrower to any Bank hereunder that the  Borrower will not make such payment in full, the Administrative Agent may assume that the  Borrower has made such payment in full to the Administrative Agent on such date and the  Administrative Agent may, in reliance upon such assumption, cause to be distributed to each  such Bank on such due date an amount equal to the amount then due such Bank.  If and to the  extent the Borrower shall not have so made such payment in full to the Administrative Agent,  each such Bank shall repay to the Administrative Agent forthwith on demand such amount  distributed to such Bank together with interest thereon, for each day from the date such amount  is distributed to such Bank until the date such Bank repays such amount to the Administrative  Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative  Agent in accordance with banking industry rules on interbank compensation, plus any  administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing.        (e)   Notwithstanding the foregoing, upon the occurrence and during the continuance of any Default, the Applicable Rate shall automatically be increased by 2% per annum (the   “Default Rate”).            Section 2.11.  Consequential Losses on Eurodollar Rate Advances.  If (a) any     payment (or purchase pursuant to Section 2.13) of principal of any Eurodollar Rate Advance     made to the Borrower is made other than on an Interest Payment Date relating to such     Advance, as a result of a prepayment pursuant to Section 2.06(b) or 2.14 or acceleration of     the maturity of the Advances pursuant to Section 8.01 or for any other reason or as a result of     any such purchase; (b) a Eurodollar Rate Advance is converted pursuant to Section 2.04 at a    time other than the end of an Interest Period; or (c) the Borrower fails to make a principal or    interest payment with respect to any Eurodollar Rate Advance on the date such payment is    due and payable, the Borrower shall, upon demand by any Bank (with a copy of such    demand to the Administrative Agent), pay to the Administrative Agent for the account of    such Bank any amounts required to compensate such Bank for any additional losses, costs or    expenses which it may reasonably incur as a result of any such payment or purchase,    including, without limitation, any loss (including loss of reasonably anticipated profits,    except in the case of such a purchase pursuant to Section 2.13), cost or expense incurred by     reason of the liquidation or reemployment of deposits or other funds acquired by such Bank    to fund or maintain such Advance.            Section 2.12.  Increased Costs.  (a)  If, due to any Change in Law, there shall be any     increase in the cost to any Bank of agreeing to make or making, funding or maintaining any     Eurodollar Rate Advance to the Borrower, then the Borrower shall from time to time, upon     demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the                                         39   122723226_17





 






   Administrative Agent for the account of such Bank additional amounts sufficient to    compensate such Bank for such increased cost.  A certificate as to the amount of such   increased cost, submitted to the Borrower and the Administrative Agent by such Bank, shall   be prima facie evidence of the amount of such increased cost.  Promptly after any Bank   becomes aware of any such introduction, change or proposed compliance, such Bank shall   notify the Borrower thereof, provided that the failure to provide such notice shall not affect    such Bank’s rights hereunder, except that such Bank’s right to recover such increased costs    from the Borrower for any period prior to such notice shall be limited to the period of ninety    (90) days immediately prior to the date such notice is given to the Borrower.        (b)   If any Bank determines that any Change in Law affects or would affect the amount of capital or liquidity required or expected to be maintained by such Bank or any corporation controlling such Bank and that the amount of such capital or liquidity is increased by or based upon the existence of such Bank’s Advances or commitment to lend to the Borrower hereunder and other commitments of this type, then, upon receipt of a demand by such Bank (with a copy of such demand to the Administrative Agent), the Borrower shall, within ten (10) days of such demand, notify such Bank and the Administrative Agent if the Borrower desires to replace such Bank in accordance with Section 2.13.  If the Borrower either fails to notify such Bank and the Administrative Agent in accordance with the prior sentence or fails to replace such Bank within the time periods specified in Section 2.13, the Borrower shall promptly pay to the Administrative Agent for the account of such Bank, from time to time as specified by such Bank, additional amounts sufficient to compensate such Bank or such corporation in the light of such circumstances, to the extent that such Bank reasonably determines such increase in capital or liquidity to be allocable to the existence of such Bank’s commitment to lend hereunder.  A certificate as to such amounts submitted to the Borrower and the Administrative Agent by such Bank shall be conclusive and binding for all purposes, absent error.          Section 2.13.  Replacement of Banks.  In the event that (a) any Bank makes a demand   for payment under Section 2.07(b) or Section 2.12, (b) the Borrower is required to make any    payment in respect of Taxes or Other Taxes pursuant to Section 2.15 or (c) any Bank    becomes a Defaulting Bank, the Borrower may within ninety (90) days of the applicable    event, if no Default then exists, replace such Bank with another commercial bank, financial    institution or other Person in accordance with all of the provisions of Section 10.06(a)    (including execution of an appropriate Assignment), provided that (i) all obligations of such    Bank to lend hereunder shall be terminated and the Advances payable to such Bank and all    other obligations owed to such Bank hereunder shall be purchased in full without recourse at    par plus accrued interest at or prior to such replacement, (ii) such replacement shall be    reasonably satisfactory to the Administrative Agent, (iii) if such replacement bank is not    already a Bank hereunder, the Borrower (and, for avoidance of doubt, not the replacement    bank) shall pay to the Administrative Agent an assignment fee of $3,500 in connection with    such replacement, (iv) such replacement shall, from and after such replacement, be deemed    for all purposes to be a “Bank” hereunder with a Commitment in the amount of the    respective Commitment of the assigning Bank immediately prior to such replacement (plus,    if such replacement bank is already a Bank prior to such replacement, the respective    Commitment of such Bank prior to such replacement), as such amount may be changed from    time to time pursuant hereto, and shall have all of the rights, duties and obligations hereunder    of the Bank being replaced, and (v) such other actions shall be taken by the Borrower, such                                       40  122723226_17





 






   Bank and such replacement bank as may be appropriate to effect the replacement of such    Bank with such replacement bank on terms such that such replacement bank has the same    rights, duties and obligations hereunder as such Bank (including, without limitation,    execution and delivery of new Notes to such replacement bank if such replacement bank    shall so request, redelivery to the Borrower in due course of any Notes payable to such Bank    and specification of the information contemplated by Schedule I as to such replacement    bank).           Section 2.14.  Illegality and Unavailability.  (a) Notwithstanding any other provision    of this Agreement, if any Bank shall notify the Administrative Agent that the introduction of    or any change in or in the interpretation of any lawLaw or regulation shall make it unlawful,    or any central bank or other governmental authority shall assert that it is unlawful, for such   Bank or its Applicable Lending Office to make any Advance whose interest is determined by     reference to the Eurodollar Rate Advance or to continue to fund or maintain any Eurodollar     Rate Advance hereunder whose interest is determined by reference to the Eurodollar Rate or     any Governmental Authority has imposed material restrictions on the authority of such Bank     to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on    notice thereof to the Borrower by the Administrative Agent,              (i)      the obligation of such Bank to make or continue any Eurodollar Rate       Advance or to covert Base Rate Advance to Eurodollar Rate Advance shall be suspended       until the Administrative Agent shall notify the Borrower and the Bank that the       circumstances causing such suspension no longer exist, and              (ii)     the Eurodollar Rate Advances then outstanding of such Bank, together       with all accrued interest thereon and all amounts payable pursuant to Section 2.11, shall      be automatically converted to Base Rate Advances, or, at the option of the Borrower,      prepaid in full, unless such Bank shall determine in good faith in its sole opinion that it is      lawful to maintain such Eurodollar Rate Advances made by such Bank to the end of the      Interest Period then applicable thereto., and              (iii)    if such notice asserts the illegality of such Bank making or maintaining        Base Rate Advances the interest rate on which is determined by reference to the        Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate        Advances of such Bank shall, if necessary to avoid such illegality, be determined by the        Administrative Agent without reference to the Eurodollar Rate component of the Base        Rate, in each case until such Bank notifies the Administrative Agent and the Borrower        that the circumstances giving rise to such determination no longer exist.        (b)   If, with respect to any conversion of a Base Rate Advance to a Eurodollar Rate  Advance or the continuation of any Eurodollar Rate Advance pursuant to Section 2.04: in  connection with any request for a Eurodollar Rate Advance or a conversion to or continuation  thereof, (i)  the Administrative Agent determines that (A) Dollar deposits are not being offered to  banks in the London interbank Eurodollar market for the applicable amount and Interest Period  of such Eurodollar Rate Advance, or (B) (x) adequate and reasonable means do not exist for  determining the Eurodollar Rate for any requested Interest Period with respect to a proposed  Eurodollar Rate Advance or in connection with an existing or proposed Base Rate Advance and                                         41  122723226_17





 






(y) the circumstances described in Section 2.14(d)(i) do not apply (in each case with respect to  this clause (i), “Impacted Advances”), or (ii) the Administrative Agent or the Majority Banks  determine that for any reason the Eurodollar Rate for any requested Interest Period with respect  to a proposed Eurodollar Rate Advance does not adequately and fairly reflect the cost to such  Banks of funding such Eurodollar Rate Advance, the Administrative Agent will promptly so  notify the Borrower and each Bank.  Thereafter, (x) the obligation of the Banks to make or  maintain Eurodollar Rate Advances shall be suspended, (to the extent of the affected Eurodollar  Rate Advance or Interest Periods), and (y) in the event of a determination described in the  preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the  utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in  each case until the Administrative Agent (or, in the case of a determination by the Majority  Banks described in clause (ii) of Section 2.14(b), until the Administrative Agent upon instruction  of the Majority Banks) revokes such notice.  Upon receipt of such notice, the Borrower may  revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate  Advances (to the extent of the affected Eurodollar Rate Advances or Interest Periods) or, failing  that, will be deemed to have converted such request into a request for a Borrowing of Base Rate  Advances in the amount specified therein.        (c)   Notwithstanding the foregoing, if the Administrative Agent has made the  determination described in clause (i) of Section 2.14(b), the Administrative Agent, in  consultation with the Borrower, may establish an alternative interest rate for the Impacted  Advances, in which case, such alternative rate of interest shall apply with respect to the Impacted  Advances until (i) the Administrative Agent revokes the notice delivered with respect to the  Impacted Advances under clause (i) of the first sentence of Section 2.14(b), (ii) the  Administrative Agent or the Majority Banks notify the Administrative Agent and the Borrower  that such alternative interest rate does not adequately and fairly reflect the cost to such Banks of  funding the Impacted Advances, or (iii) any Bank determines that any Law has made it unlawful,  or that any Governmental Authority has asserted that it is unlawful, for such Bank or its  Applicable Lending Office to make, maintain or fund Advances whose interest is determined by  reference to such alternative rate of interest or to determine or charge interest rates based upon  such rate or any Governmental Authority has imposed material restrictions on the authority of  such Bank to do any of the foregoing and provides the Administrative Agent and the Borrower  written notice thereof.        (d)   Notwithstanding anything to the contrary in this Agreement or any other Credit  Documents, if the Administrative Agent determines (which determination shall be conclusive  absent manifest error), or the Borrower or Majority Banks notify the Administrative Agent (with,  in the case of the Majority Banks, a copy to the Borrower) that the Borrower or Majority Banks  (as applicable) have determined, that:              (i)      the Administrative Agent is unable to determine the Eurodollar Rate        for the applicable Eurodollar Rate Advance as a result of one or more of the        circumstances provided in Section 2.03(d)(iii); oradequate and reasonable means do not        exist for ascertaining LIBOR for any requested Interest Period, including, without        limitation, because the LIBOR Screen Rate is not available or published on a current        basis and such circumstances are unlikely to be temporary; or                                        42  122723226_17





 






            (ii)     the Majority Banks advise the Administrative Agent that the        Eurodollar Rate as determined by the Administrative Agent will not adequately and fairly        reflect the cost to such Banks of maintaining the applicable Eurodollar Rate        Advance;administrator of the LIBOR Screen Rate or a Governmental Authority having        jurisdiction over the Administrative Agent has made a public statement identifying a        specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made        available, or used for determining the interest rate of loans, provided that, at the time of        such statement, there is no successor administrator that is satisfactory to the        Administrative Agent, that will continue to provide LIBOR after such specific date (such        specific date, the “Scheduled Unavailability Date”); or               (iii)    syndicated loans currently being executed, or that include language        similar to that contained in this Section 2.14, are being executed or amended (as        applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,        then the Administrative Agent forthwith shall give notice thereof to the Borrower and the  Banks, whereupon until the Administrative Agent notifies the Borrower that the circumstances  giving rise to such suspension no longer exist, the obligation of the Banks to convert or continue  after the current Interest Period(s) any Eurodollar Rate Advances shall be suspended until the  Administrative Agent shall notify the Borrower and the Banks that the circumstances causing  such suspension no longer exist, reasonably promptly after such determination by the  Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the  Administrative Agent and the Borrower may amend this Agreement solely for the purpose of  replacing LIBOR in accordance with this Section 2.14 with (x) one or more SOFR-Based Rates  or (y) another alternate benchmark rate giving due consideration to any evolving or then existing  convention for similar U.S. dollar denominated syndicated credit facilities for such alternative  benchmarks and, in each case, including any mathematical or other adjustments to such  benchmark giving due consideration to any evolving or then existing convention for similar U.S.  dollar denominated syndicated credit facilities for such benchmarks, which adjustment or  method for calculating such adjustment shall be published on an information service as selected  by the Administrative Agent from time to time in its reasonable discretion and may be  periodically updated (the “Adjustment;” and any such proposed rate, a “LIBOR Successor  Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day  after the Administrative Agent shall have posted such proposed amendment to all Banks and the  Borrower unless, prior to such time, Banks comprising the Majority Banks have delivered to the  Administrative Agent written notice that such Majority Banks (A) in the case of an amendment  to replace LIBOR with a rate described in clause (x), object to the Adjustment; or (B) in the case  of an amendment to replace LIBOR with a rate described in clause (y), object to such  amendment; provided that for the avoidance of doubt, in the case of clause (A), the Majority  Banks shall not be entitled to object to any SOFR-Based Rate contained in any such amendment.   Such LIBOR Successor Rate shall be applied in a manner consistent with market practice;  provided that to the extent such market practice is not administratively feasible for the  Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise  reasonably determined by the Administrative Agent.                                        43  122723226_17





 






      If no LIBOR Successor Rate has been determined and the circumstances under clause (i)  above exist or the Scheduled Unavailability Date has occurred (as applicable), the  Administrative Agent will promptly so notify the Borrower and each Bank.  Thereafter, (x) the  obligation of the Banks to make or maintain Eurodollar Rate Advances shall be suspended, (to  the extent of the affected Eurodollar Rate Advances or Interest Periods), and (y) the Eurodollar  Rate component shall no longer be utilized in determining the Base Rate.  Upon receipt of such  notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or  continuation of Eurodollar Rate Advances (to the extent of the affected Eurodollar Rate  Advances or Interest Periods) or, failing that, will be deemed to have converted such request into  a request for a Borrowing of Base Rate Advances (subject to the foregoing clause (y)) in the  amount specified therein.        Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall  provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this  Agreement.        In connection with the implementation of a LIBOR Successor Rate, the Administrative  Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to  time and, notwithstanding anything to the contrary herein or in any other Credit Document, any  amendments implementing such LIBOR Successor Rate Conforming Changes will become  effective without any further action or consent of any other party to this Agreement; provided  that, with respect to any such amendment effected, the Administrative Agent shall post each such  amendment implementing such LIBOR Successor Conforming Changes to the Banks reasonably  promptly after such amendment becomes effective.           Section 2.15.  Taxes.  (a)  Any and all payments by the Borrower or a Guarantor    hereunder or under the Notes or any other Credit Document shall be made in accordance with    Section 2.10, and subject to applicable lawApplicable Law and Sections 2.15(c), 2.15(e) and    2.16, free and clear of and without deduction for any and all taxes, levies, imposts,    deductions, charges or withholdings with respect thereto, and all liabilities with respect    thereto, including any interest, additions to tax or penalties applicable thereto (all such taxes,    levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to    as “Taxes”).  If the Borrower or a Guarantor shall be required by lawLaw to deduct any    Taxes from or in respect of any sum payable by it hereunder or under any Note or other    Credit Document to any Bank or the Administrative Agent, (y) the Borrower or such    Guarantor, as the case may be, shall make such deductions and (z) the Borrower or such    Guarantor, as the case may be, shall pay the full amount deducted to the relevant taxation    authority or other authority in accordance with applicable lawApplicable Law, rules and    regulations, and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or    such Guarantor, as the case may be, shall be increased as necessary so that after such    deduction or withholding has been made (including such deductions and withholdings    applicable to additional sums payable under this Section) such Bank or the Administrative    Agent (as the case may be) receives an amount equal to the sum it would have received had    no such deduction or withholding been made.        (b)   In addition, the Borrower or a Guarantor, as the case may be, agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or                                        44  122723226_17





 






 similar levies which arise from any payment made by the Borrower or such Guarantor hereunder  or under any Note or other Credit Document executed by it or from the execution, delivery or  registration of, or otherwise with respect to, this Agreement or any Note or other Credit Document (hereinafter referred to as “Other Taxes”).         (c)   Within thirty (30) days after the date of the payment of Taxes by or at the  direction of the Borrower or such Guarantor, the Borrower will furnish to the Administrative  Agent, at its address referred to in Section 10.02, the original or a certified copy of a receipt  evidencing payment thereof.  If a Bank receives from the relevant jurisdiction imposing such Tax  a refund of a specific Tax item for which it has been indemnified by the Borrower with respect to  which the Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay the  Borrower an amount equal to such refund, together with any interest paid by such jurisdiction  with respect to such refund, provided that the Borrower, upon the request of such Bank, agrees to  promptly repay the amount (or portion thereof) paid over to the Borrower by such Bank in the  event such Bank is required to repay the refund (or portion thereof) to such jurisdiction.         (d)   Without prejudice to the survival of any other agreement of the Borrower or the  Guarantors hereunder, the agreements and obligations of the parties contained in this Section   2.15 shall survive the payment in full of principal and interest hereunder and under the Notes and other Credit Documents.        (e)   Each Bank that is organized under the laws of any jurisdiction other than the United States of America or any state or political subdivision thereof (for purposes of this  Section 2.15(e), each a “Non-U.S. Bank”) shall deliver to the Borrower and the Administrative  Agent on or prior to Effective Date or upon the effectiveness of any Assignment, or at such other times prescribed by applicable lawApplicable Law, (i) two (2) properly completed and signed  originals of United States of America Internal Revenue Service form W-8BEN-E, W-BEN or  W-8ECI, as appropriate, or any successor applicable form, as the case may be, certifying that  such Bank is entitled to benefits under an income tax treaty to which the United States is a party  that eliminates or reduces the rate of withholding tax on payments under this Agreement and the  other Credit Documents or certifying that the income receivable pursuant to this Agreement and  the other Credit Documents is effectively connected with the conduct of a trade or business in  the United States, or (ii) if such Non-U.S. Bank is not a “bank” or other Person described in  Code Section 881(c)(3), two properly completed and signed originals of a statement substantially  in the form of Exhibit E hereto, together with two properly completed and signed originals of  Internal Revenue Service form W-8BEN-E (or W-BEN if applicable), upon which the Borrower is entitled to rely, from any such Non-U.S. Bank or any successor applicable form, together with any other certificate or statement of exemption or reduction required under the Code, in order to establish that such Non-U.S. Bank is entitled to treat the interest payments under this Agreement and the other Credit Documents as portfolio interest that is exempt from withholding tax under the Code.  Thereafter, upon the reasonable request of the Borrower or the Administrative Agent, each such Non-U.S. Bank shall (A) upon the obsolescence of any form previously delivered by such Non-U.S. Bank, promptly submit to the Administrative Agent and the Borrower such additional properly completed and signed originals of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may then be available under then current United States laws and regulations to qualify for a deduction in United States withholding taxes, or such evidence as is reasonably satisfactory to the Borrower                                        45   122723226_17





 






 and the Administrative Agent of an available exemption from United States withholding taxes, in  respect of all payments to be made to such Non-U.S. Bank by the Borrower pursuant to the  Credit Documents, and (B) promptly notify the Administrative Agent of any change in  circumstances which would modify or render invalid any claimed exemption.  If a payment made  to a Bank hereunder or under any Note or other Credit Document would be subject to U.S.  federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the  applicable reporting requirements of FATCA (including those contained in Section 1471(b) or  1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by lawLaw and at such time or times  reasonably requested by the Borrower or the Administrative Agent such documentation  prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code)  and such additional documentation reasonably requested by the Borrower or the Administrative  Agent as may be necessary for the Borrower and the Administrative Agent to comply with their  obligations under FATCA and to determine that such Bank has complied with such Bank’s  obligations under FATCA or to determine the amount to deduct and withhold from such  payment.  Solely for purposes of this paragraph (e), “FATCA” shall include any amendments  made to FATCA after the date of this Agreement.  A Non-U.S. Bank shall not be required to  deliver any form or statement pursuant to this Section 2.15 that such Non-U.S. Bank is not  legally able to deliver.  The Borrower shall not be required to pay additional amounts to any  Bank pursuant to this Section 2.15 to the extent that such Bank did not qualify for a complete exemption from United States withholding taxes at the time such Bank became a party to this Agreement and to the extent that the obligation to pay additional amounts would not have arisen  but for the failure of such Bank to comply with this paragraph (e), except to the extent such Bank  is not able to comply as a result of a change in law.  Any assignee of all or any portion of any  Bank’s rights and obligations under this Agreement shall be subject to this Section 2.15(e).  For  purposes of this Section 2.15, applicable lawApplicable Law includes FATCA.        (f)    Upon the reasonable request of the Borrower, any Bank claiming any additional amounts payable pursuant to this Section 2.15 shall use its reasonable efforts (consistent with its  internal policies and requirements of lawLaw) to change the jurisdiction of its Applicable  Lending Office if such a change would reduce any such additional amounts (or any similar  amount that may thereafter accrue) and would not, in the sole determination of such Bank, be  otherwise disadvantageous to such Bank.         (g)   The Borrower or the applicable Guarantor shall indemnify the Administrative  Agent and each Bank, within 10 days after written demand therefor, for the full amount of any  Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to  amounts payable under this Section) payable or paid by the Administrative Agent or such Bank,  as applicable, or required to be withheld or deducted from a payment to the Administrative  Agent or such Bank, as applicable, and any reasonable expenses arising therefrom or with  respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or  asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment  or liability delivered to the Borrower by a Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive absent error.                                          46   122723226_17





 






      (h)   Each Bank shall severally indemnify the Administrative Agent, within 10 days after written demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to the extent that the Borrower or the applicable Guarantor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and such Guarantor to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 10.06(e)  relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent error.  Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Credit Document or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this paragraph (h).          Section 2.16.  Payments Pro Rata.  Except as provided in Sections 2.06(d), 2.07(b),   2.09(b), 2.11, 2.12, 2.14 or 2.15, each of the Banks agrees that if it should receive any    payment (whether by voluntary payment, by realization upon security, by the exercise of the    right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any    right under this Agreement or the Notes or other Credit Documents, or otherwise) in respect    of any obligation of the Borrower or the Guarantors hereunder or under the Notes or other    Credit Documents of a sum which with respect to the related sum or sums received by other    Banks in accordance with their respective applicable Commitments is in a greater proportion    than the total amount of principal, interest, fees or any other obligation incurred hereunder,    as the case may be, then owed and due to such Bank bears to the total amount of principal,    interest, fees or any such other obligation then owed and due to all of the Banks in    accordance with their respective applicable Commitments immediately prior to such receipt,    then such Bank receiving such excess payment shall purchase for cash without recourse from    the other Banks an interest in the obligations of the Borrower to such Banks in such amount    as shall result in a proportional participation by all of the Banks in accordance with their    respective applicable Commitments in the aggregate unpaid amount of principal, interest,    fees or any such other obligation, as the case may be, owed to all of the Banks in accordance    with their respective applicable Commitments, provided that if all or any portion of such    excess payment is thereafter recovered from such purchasing Bank, such purchase from each    other Bank in accordance with their respective Commitments shall be rescinded and each    such other applicable Bank shall repay to the purchasing Bank the purchase price to the    extent of such other Bank’s ratable share (according to the proportion of (i) the amount of the    participation purchased from such other Bank as a result of such excess payment to (ii) the   total amount of such excess payment) of such recovery together with an amount equal to   such other Bank’s ratable share (according to the proportion of (a) the amount of such other   Bank’s required repayment to (b) the total amount so recovered from the purchasing Bank)   of any interest or other amount paid or payable by the purchasing Bank in respect of the total    amount so recovered.  The Borrower agrees that any Bank so purchasing a participation from    another Bank pursuant to this Section 2.16 may, to the fullest extent permitted by law,    exercise all its rights of payment (including the right of set-off) with respect to such                                        47  122723226_17





 






   participation as fully as if such Bank were the direct creditor of the Borrower in the amount    of such participation.           Section 2.17.  Increase in Commitments.  The Borrower may at any time and from    time to time, by written notice to the Administrative Agent (which shall promptly deliver a    copy to the Banks) executed by a Responsible Officer of the Borrower and one or more    financial institutions (any such financial institution referred to in this Section being called an    “Increasing Bank”), which may include any Tranche A-1 Bank, cause the Tranche A-1     Commitments of the Increasing Banks to be increased (or cause the Increasing Banks to    extend new Tranche A-1 Commitments) in an amount for each Increasing Bank (which shall    not be less than $10,000,000) set forth in such notice, provided that (i) no Bank shall have    any obligation to increase its Commitment pursuant to this paragraph, (ii) all new Tranche     A-1 Commitments and increases in existing Tranche A-1 Commitments becoming effective    under this paragraph during the term of this Agreement shall not exceed $200,000,000 in the    aggregate, (iii) each Increasing Bank, if not already a Bank hereunder, shall be subject to the    approval of the Administrative Agent (which approval shall not be unreasonably withheld)    and (iv) each Increasing Bank, if not already a Bank hereunder, shall become a party to this    Agreement by completing and delivering to the Administrative Agent a duly executed    accession agreement in a form reasonably satisfactory to the Administrative Agent and the    Borrower (an “Accession Agreement”).  New Tranche A-1 Commitments and increases in    Tranche A-1 Commitments shall become effective on the date specified in the applicable    notices delivered pursuant to this Section 2.17.  Upon the effectiveness of any Accession    Agreement to which any Increasing Bank is a party, such Increasing Bank shall thereafter be    deemed to be a party to this Agreement and shall be entitled to all rights, benefits and    privileges accorded a Bank hereunder and subject to all obligations of a Bank hereunder.    Notwithstanding the foregoing, no increase in the Total Commitments (or in the    Commitment of any Bank) pursuant to this paragraph shall become effective unless (i) the    Administrative Agent shall have received documents consistent with those delivered under    Section 3.01(a)(ii) through (v), giving effect to such increase and, (ii) on the effective date of    such increase, the representations and warranties of the Borrower and the Guarantors set    forth in this Agreement shall be true and correct in all material respects and no Default shall    have occurred and be continuing or would result therefrom, and the Administrative Agent    shall have received a certificate to that effect dated such date and executed by a Financial    Officer of the Borrower, and (iii) (x) upon the reasonable request of any Bank made at least     five (5) days prior to the effectiveness of any Accession Agreement, the Borrower shall have     provided to such Bank, and such Bank shall be reasonably satisfied with, the documentation     and other information so requested in connection with applicable “know your customer” and     anti-money-laundering rules and regulations, including, without limitation, the PATRIOT     Act, in each case at least three (3) Business Days prior to the effectiveness of any Accession     Agreement and (y) at least three (3) Business Days prior to the effectiveness of any     Accession Agreement, any Loan Party that qualifies as a “legal entity customer” under the     Beneficial Ownership Regulation shall have delivered, to each Bank that so requests, a     Beneficial Ownership Certification in relation to such Loan Party.  On the effective date of    any increase in the Tranche A-1 Commitments pursuant to this Section 2.17, to the extent    there are outstanding Tranche A-1 Advances, the parties hereto shall implement such    arrangements as may be agreed upon by the Borrower and the Administrative Agent to    ensure that the proportion between the Banks’ outstanding Tranche A-1 Advances, after                                       48  122723226_17





 






    giving effect to such increase, and their respective Tranche A-1 Commitments, after giving     effect to such increase, will be re-established, and the effectiveness of such increase shall be     conditioned on the implementation of such arrangements.  This Section 2.17 shall supersede    any provisions in Section 2.13 or 10.01 to the contrary.            Section 2.18.  Defaulting Banks.  Notwithstanding anything to the contrary contained     in this Agreement, if any Bank becomes a Defaulting Bank, then, until such time as that     Bank is no longer a Defaulting Bank, to the extent permitted by applicable law:         (a)   Waivers and Amendments.  That Defaulting Bank’s right to approve or  disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted  as set forth in Section 10.01.         (b)   Reallocation of Payments.  Any payment of principal, interest, fees or other  amounts received by the Administrative Agent for the account of that Defaulting Bank (whether  voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any  amounts made available to the Administrative Agent by that Defaulting Bank pursuant to Section   10.05), shall be applied at such time or times as may be determined by the Administrative Agent  as follows: first, to the payment of any amounts owing by that Defaulting Bank to the  Administrative Agent hereunder; second, if so determined by the Administrative Agent, to be  held as cash collateral for future funding obligations of that Defaulting Bank; third, as the Borrower may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank 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 that Defaulting Bank to fund Advances under this Agreement; fifth, to the payment of any amounts owing to the Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against that Defaulting Bank as a result of that Defaulting Bank’s breach of its obligations under this Agreement; sixth, so long as no 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 that Defaulting Bank as a result of that  Defaulting Bank’s breach of its obligations under this Agreement; and seventh, to that Defaulting  Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such  payment is a payment of the principal amount of any Advances in respect of which that  Defaulting Bank has not fully funded its appropriate share and (y) such Advances were made at a  time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall  be applied solely to pay the Advances of all non-Defaulting Banks on a pro rata basis in  accordance with their applicable Commitment (computed without giving effect to the applicable  Commitment of any Defaulting Bank) prior to being applied to the payment of any Advances  owed to, that Defaulting Bank.  Any payments, prepayments or other amounts paid or payable to  a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to  post cash collateral pursuant to this Section 2.18(b) shall be deemed paid to and redirected by  that Defaulting Bank, and each Bank irrevocably consents hereto.         (c)   Certain Fees.  That Defaulting Banks shall not be entitled to receive any facility  fee pursuant to Section 2.09(a) for any period during which that Bank is a Defaulting Bank (and                                         49   122723226_17





 






 the Borrower shall not be required to pay any such fee that otherwise would have been required  to have been paid to that Defaulting Bank).         (d)   Defaulting Bank Cure.  If the Borrower and the Administrative Agent agree in  writing in their sole discretion that a Defaulting Bank should no longer be deemed to be a  Defaulting Bank, 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), that Bank will, to the extent  applicable, purchase that portion of outstanding Advances of the other Banks or take such other  actions as the Administrative Agent may determine to be necessary to cause the applicable  Advances to be held on a pro rata basis by the Banks in accordance with their respective  applicable Commitment, whereupon that Bank will cease to be a Defaulting Bank; 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 Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank having been a Defaulting Bank.                                    ARTICLE III.                                   CONDITIONS            Section 3.01.  Conditions Precedent to Effectiveness.  The obligations of the Banks to     make Advances hereunder shall become effective upon the satisfaction of all of the following     conditions precedent:         (a)   Documentation.  The Administrative Agent shall have received the following duly  executed by all the parties thereto, in form and substance satisfactory to the Administrative  Agent and the Banks, and (except for the Notes) in sufficient copies for each Bank:               (i)   this Agreement duly executed by the Borrower, the Guarantor, each Bank        and the Administrative Agent;               (ii)  a certificate of the Secretary or an Assistant Secretary of the Borrower        certifying (A) the Borrower’s certificate of incorporation and by-laws, (B) the names and        true signatures of the officers of the Borrower authorized to sign this Agreement and any        Notes and (C) that a true, correct and complete copy of the resolutions of the Borrower’s        Board authorizing the transactions contemplated hereby is attached thereto and that such        resolutions are in full force and effect;               (iii) a certificate of the Secretary or an Assistant Secretary of the Guarantor        certifying (A) the Guarantor’s certificate of incorporation and by-laws, (B) the names and        true signatures of the officers of the Guarantor authorized to sign this Agreement and (C)        that a true, correct and complete copy of the resolutions of the Guarantor’s Board        authorizing the making and performance of this Agreement by the Guarantor is attached        hereto and that such resolutions are in full force and effect;                                         50   122723226_17





 






             (iv)  a favorable opinion of Jackson Walker L.L.P., legal counsel for each of        the Borrower and the Guarantor, dated the Effective Date, substantially in the form of        Exhibit D hereto; and               (v)   certificates, telecopy confirmation or electronic transmission, in each case,        as of a date reasonably close to the date hereof from the Secretary of State of the state of        incorporation of each of the Borrower and the Guarantor as to the existence and good        standing of the Borrower and the Guarantor, as applicable.         (b)   No Material Adverse Change.  No event or events which have or would  reasonably be expected to have a Material Adverse Effect shall have occurred since June 29,  2016.         (c)   No Default.  No Default or event which, with the giving of notice, the lapse of  time or both, would constitute a Default shall have occurred and be continuing.        (d)    Representations and Warranties.  The representations and warranties contained in Article V hereof shall be true and correct in all material respects on and as of the Effective Date,  except to the extent that such representations and warranties refer to an earlier date, in which  case they shall be true and correct in all material respects on and as of such earlier date.         (e)   No Material Litigation.  No legal or regulatory action or proceeding shall have  commenced and be continuing against the Borrower or any of its Subsidiaries since the date of  this Agreement which has, or would reasonably be expected to have, a Material Adverse Effect.         (f)   Fees and Expenses.  The Administrative Agent shall have received all fees and  other amounts due and payable on or prior to the Effective Date, including fees, charges and  disbursements of counsel and all other out of pocket fees and expenses required to be paid or  reimbursed by the Borrower (which fees, charges and disbursements of counsel and such other  out of pocket fees and expenses shall be limited to those for which invoices have been submitted on or prior to the Effective Date) and fees due and payable in respect of the Fee Letters shall  have been paid in accordance with the terms thereof..         (g)   Certification.  The Administrative Agent shall have received a certificate, dated  the Effective Date and signed by a Financial Officer, confirming compliance with the conditions  set forth in paragraphs (b), (c), (d) and (e) of this Section 3.01.         (h)   Patriot Act.  The Banks shall have received all information required by the Patriot  Act, including the identity of the Borrower and its Subsidiaries, the name and address of the  Borrower and its Subsidiaries and other information that will allow the Administrative Agent or  any Bank, as applicable, to identify the Borrower in accordance with the Patriot Act.            Section 3.02.  Conditions Precedent to Each Borrowing.  The obligation of each Bank     to make an Advance on the occasion of any Borrowing shall be subject to the further     conditions precedent that on the date of such Borrowing (a) the Administrative Agent shall     have received a Notice of Borrowing in accordance with Section 2.02 and (b) the following     statements shall be true (and each of the giving of the applicable Notice of Borrowing and     the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a                                        51   122723226_17





 






   representation and warranty by the Borrower that on the date of such Borrowing such    statements are true):              (i)      the representations and warranties contained in Article V are true and       correct in all material respects on and as of the date of such Borrowing, before and after       giving effect to such Borrowing and to the application of the proceeds therefrom, as       though made on and as of such date, except to the extent that such representations and       warranties refer to an earlier date, in which case they shall be true and correct in all       material respects on and as of such earlier date and except that for the purposes of this       Section 3.02, the representations and warranties contained in Section 5.04(a) shall be       deemed to refer to the most recent statements furnished pursuant to Section 6.02(c);             (ii)     no event has occurred and is continuing, or would result from such      Borrowing or from the application of the proceeds therefrom, which constitutes or with      the giving of notice, the lapse of time or both, would constitute a Default; and             (iii)    after giving effect to any Borrowing of Advances and all other      Borrowings of Advances which have been requested on or prior to such date but which      have not been made prior to such date, the aggregate principal amount of the Advances      owing to any Bank will not exceed the Total Commitment of such Bank.          Section 3.03.  Administrative Agent.  The Administrative Agent shall notify the   Borrower and the Banks of the Effective Date, and such notice shall be conclusive and    binding.  The Administrative Agent shall be entitled to assume that the conditions set forth in    Sections 3.01(b), 3.01(c), 3.01(d), 3.01(e), 3.02(c)(i) and 3.02(c)(ii) have been satisfied    unless the Administrative Agent has received, at its address specified herein, actual written    notice to the contrary from the Borrower, the Guarantors or a Bank.                                   ARTICLE IV.                                   GUARANTY           Section 4.01.  Guaranty.  Each Guarantor hereby unconditionally guarantees the    punctual payment of the Guaranteed Obligations when due, whether at stated maturity, by    acceleration or otherwise, and agrees to pay any and all reasonable expenses (including    counsel fees and expenses) incurred by the Administrative Agent or any Bank in enforcing    any rights hereunder.  Without limiting the generality of the foregoing, each Guarantor’s    liability shall extend to all amounts which constitute part of the Guaranteed Obligations and    would be owed by the Borrower under this Agreement or any of the Notes but for the fact    that they are unenforceable or not allowable due to the existence of a bankruptcy,    reorganization or similar proceeding involving the Borrower.  The guaranty set forth in this    Article IV is a guaranty of payment and not of collection.           Section 4.02.  Payment.  At the time a Guarantor pays any sum which may become    due to the Administrative Agent for the benefit of a Bank under the terms of this Article IV,   written notice of such payment shall be delivered to the Administrative Agent by such   Guarantor, and in the absence of such notice, any sum received by the Administrative Agent                                        52  122723226_17





 






   on behalf of a Bank on account of any of the Guaranteed Obligations shall be conclusively    deemed paid by the Borrower.  All sums paid to the Administrative Agent, on behalf of a    Bank, by such Guarantor may be applied by the Administrative Agent, on behalf of a Bank,    at its discretion, to any of the Guaranteed Obligations.           Section 4.03.  Waiver.  Each Guarantor hereby waives all notices in connection    herewith or in connection with the Guaranteed Obligations, including, without limitation,    notice of intent to accelerate and notice of acceleration, and waives diligence, presentment,   demand, protest, and suit on the part of the Administrative Agent or any Bank in the   collection of any of the Guaranteed Obligations, and agrees that neither the Administrative    Agent nor any Bank shall be required to first endeavor to collect any of the Guaranteed    Obligations from the Borrower, or any other party liable for payment of the Guaranteed   Obligations (hereinafter referred to as an “Obligated Party”), before requiring the Guarantors    to pay the full amount of the Guaranteed Obligations.  Without impairing the rights of the    Administrative Agent or any Bank against the Guarantors, the Borrower or any other    Obligated Party, suit may be brought and maintained against the Guarantors at the election of    the Administrative Agent or any Bank with or without joinder of the Borrower, or any other   Obligated Party, any right to any such joinder being hereby waived by each Guarantor.           Section 4.04.  Acknowledgments and Representations.  Each Guarantor    acknowledges and represents to the Administrative Agent and each Bank that it is receiving    direct and indirect financial and other benefits as a result of this Article IV; represents to the    Administrative Agent and each Bank that after giving effect to this Article IV and the   contingent obligations evidenced hereby it is, and will be, Solvent; acknowledges that it will   derive substantial direct and indirect benefit from the transactions contemplated by this   Agreement; acknowledges that its liability hereunder shall be cumulative and in addition to   any other liability or obligation to the Administrative Agent and each Bank, whether the   same is incurred through the execution of a note, a similar guaranty, through endorsement, or   otherwise; acknowledges that neither the Administrative Agent, any Bank nor any officer,   employee, agent, attorney or other representative of any of them has made any   representation, warranty or statement to the Guarantors to induce them to execute this   Agreement; and each Guarantor acknowledges that it has made its own credit analysis and   decision to enter into this Agreement and undertake the guaranty set forth in this Article IV.           Section 4.05.  Subordination.  Notwithstanding anything to the contrary contained    herein, any right, claim or action which a Guarantor may have against the Borrower or any    other Obligated Party arising out of or in connection with the guaranty set forth in this   Article IV or any other document evidencing or securing the Guaranteed Obligations,    including, without limitation, any right or claim of subrogation, contribution, reimbursement,    exoneration or indemnity, shall be subordinated to the prior payment in full of any amounts   then due under this Agreement, the Credit Documents, or the Notes.  If any amount shall be    paid to a Guarantor on account of any such subrogation, reimbursement, exoneration or    indemnity notwithstanding the foregoing subordination, such amount shall be held in trust    for the benefit of the Banks and shall forthwith be paid to the Administrative Agent to be    credited and applied upon the Guaranteed Obligations then due.                                         53  122723226_17





 






          Section 4.06.  Guaranty Absolute.  Each Guarantor hereby agrees that its obligations     under this Agreement shall be absolute and unconditional, irrespective of (a) the validity or     enforceability of the Guaranteed Obligations or of the Notes, or any other Credit Document     evidencing all or any part of the Guaranteed Obligations, (b) the absence of any attempt to     collect the Guaranteed Obligations from the Borrower or any other Obligated Party or other     action to enforce the same, (c) the waiver or consent by the Administrative Agent and/or any     Bank with respect to any provision of any instrument evidencing the Guaranteed Obligations,     or any part thereof, or any other agreement now or hereafter executed by the Borrower and     delivered to the Administrative Agent and/or any Bank, (d) the surrender, release, exchange,     or alteration by the Administrative Agent and/or any Bank of any security or collateral for the     Guaranteed Obligations, (e) the benefits of §17.001 of the Texas Civil Practice and Remedies     Code, Rule 31 of the Texas Rules of Civil Procedure and any similar statute or rule and each     Guarantor hereby waives any such benefit or (f) any other circumstance which might     otherwise constitute a legal or equitable discharge or defense of a guarantor.            Section 4.07.  No Waiver; Remedies.  No failure on the part of the Administrative     Agent or any Bank to exercise, and no delay in exercising, any right hereunder shall operate     as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude     any other or further exercise thereof or the exercise of any other right.  The remedies herein     provided are cumulative and not exclusive of any remedies provided by law.           Section 4.08.  Continuing Guaranty.  The guaranty set forth in this Article IV is a    continuing guaranty and shall (a) remain in full force and effect until the later of (i) the    payment in full of the Guaranteed Obligations and all other amounts payable under this    guaranty and (ii) the expiration or termination of all Commitments of each Bank, (b) be    binding upon each Guarantor, its successors and assigns, (c) inure to the benefit of, and be    enforceable by, the Administrative Agent and each of the Banks and their respective    successors, transferees and assigns, and (d) not be terminated by a Guarantor or the    Borrower.           Section 4.09.  Limitation.  Notwithstanding any other provision of this Article IV,    each Guarantor’s liability hereunder shall be limited to the lesser of the following amounts    minus, in either case, $100.00:        (a)   the lowest amount which would render the guaranty pursuant to this Article IV a fraudulent transfer under Section 548 of the Bankruptcy Code (11 U.S.C. § 101 et seq.); or        (b)   if the guaranty pursuant to this Article IV is subject to the UFTA or the UFCA or any similar or analogous statute or rule of law, then the lowest amount which would render the guaranty pursuant to this Article IV a fraudulent transfer or fraudulent conveyance under the  UFTA, the UFCA, or any such similar or analogous statute or rule of law.   The amount of the limitation imposed upon each Guarantor’s liability under the terms of the  preceding sentence shall be subject to redetermination as of each date a “transfer” is deemed to  have been made on account of the Guaranty pursuant to this Article IV under applicable law.                                          54   122723226_17





 






         Section 4.10.  Effect of Bankruptcy.  In the event that, pursuant to any insolvency,    bankruptcy, reorganization, receivership or other debtor relief law, or any judgment, order or    decision thereunder, any Bank must rescind or restore any payment, or any part thereof,    received by such Bank in satisfaction of the Guaranteed Obligations, any prior release or    discharge from the terms of the guaranty set forth in this Article IV given to a Guarantor by    the Banks shall be without effect, and the guaranty set forth in this Article IV shall remain in    full force and effect.  It is the intention of each Guarantor that its obligations hereunder shall    not be discharged except by its performance of such obligations and then only to the extent    of such performance.           Section 4.11.  Keepwell.  Each Loan Party that is a Qualified ECP Guarantor at the    time of the grant of the security interest under the Credit Documents, in each case, by any    Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly    and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds    or other support to each Specified Loan Party with respect to such Swap Obligation as may    be needed by such Specified Loan Party from time to time to honor all of its obligations    under the Credit Documents in respect of such Swap Obligation (but, in each case, only up to    the maximum amount of such liability that can be hereby incurred without rendering such    Qualified ECP Guarantor’s obligations and undertakings under this Section 4.11 voidable   under applicable lawApplicable Law relating to fraudulent conveyance or fraudulent transfer,    and not for any greater amount). The obligations and undertakings of each Qualified ECP    Guarantor under this Section shall remain in full force and effect until the Obligations have    been indefeasibly paid and performed in full.  Each Qualified ECP Guarantor intends this    Section to constitute, and this Section shall be deemed to constitute, a guarantee of the    obligations of, and a “keepwell, support, or other agreement” for the benefit of, each    Specified Loan Party for all purposes of the Commodity Exchange Act.                                   ARTICLE V.                      REPRESENTATIONS AND WARRANTIES        Each of the Borrower and each Guarantor represents and warrants as follows:           Section 5.01.  Corporate Existence.  The Borrower and each Guarantor is a    corporation duly organized, validly existing and in good standing under the laws of its    respective state of incorporation.  The Borrower and each Guarantor has all corporate powers    and all governmental licenses, authorizations, certificates, consents and approvals required to    carry on its business as now conducted except where the failure to comply does not or would    not reasonably be expected to have a Material Adverse Effect.  Each Significant Subsidiary    is a Person duly organized, validly existing and in good standing under the laws of its    jurisdiction of formation.  Each Significant Subsidiary has all corporate powers and all    governmental licenses, authorizations, certificates, consents and approvals required to carry    on its business as now conducted except where the failure to comply does not and would not    reasonably be expected to have a Material Adverse Effect.           Section 5.02.  Corporate Power.  The execution, delivery and performance by the    Borrower and each Guarantor of the Credit Documents to which each is a party and the                                        55  122723226_17





 






   consummation of the transactions contemplated by such Credit Documents are within the    Borrower’s and such Guarantor’s corporate powers, respectively, have been duly authorized    by all necessary corporate action, do not contravene (a) the Borrower’s or such Guarantor’s    Certificate of Incorporation or Bylaws or (b) any law or any contractual restriction binding    on or affecting the Borrower or such Guarantor and will not result in or require the creation    or imposition of any Lien prohibited by this Agreement.  At the time of each Borrowing,    such Borrowing and the use of the proceeds of such Borrowing will be within the Borrower’s    corporate powers, will have been duly authorized by all necessary corporate action, will not    contravene (i) the Borrower’s Certificate of Incorporation or Bylaws or (ii) any law or any    contractual restriction binding on or affecting the Borrower and will not result in or require    the creation or imposition of any Lien prohibited by this Agreement.           Section 5.03.  Enforceable Obligations.  This Agreement has been duly executed and    delivered by the Borrower and each Guarantor.  This Agreement is the legal, valid and    binding obligation of the Borrower and each Guarantor enforceable against the Borrower and    such Guarantor, respectively, in accordance with its terms, except as such enforceability may    be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other    laws affecting creditors’ rights generally.  The Notes are the legal, valid and binding    obligations of the Borrower enforceable against the Borrower in accordance with their    respective terms, except as such enforceability may be limited by any applicable bankruptcy,    insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally.    The making and performance by the Borrower and each Guarantor of this Agreement and the    other Credit Documents do not require any license, consent or approval of, registration with,    or any other action by, any governmental authority.           Section 5.04.  Financial Statements.  (a)The Consolidated balance sheet of the    Borrower and its Subsidiaries as of June 29, 2016 and the related Consolidated statements of    income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,    copies of which have been furnished to each Bank, as included in an SEC Filing which has    been furnished to each Bank, fairly present the Consolidated financial condition of the    Borrower and its Subsidiaries as of such date and the Consolidated results of operations of   the Borrower and its Subsidiaries ended on such date, in accordance with GAAP, except as   disclosed therein or on Schedule V to this Agreement.        (b)   Since June 29, 2016 and except as disclosed in an SEC Filing which has been delivered to each Bank prior to the Second Amendment Effective Date or on a Schedule to this Agreement, no event which has or would reasonably be expected to have a Material Adverse Effect has occurred.           Section 5.05.  Litigation.  There is no pending or, to the knowledge of the Borrower    or any Guarantor, threatened action or proceeding affecting the Borrower or any of its    Significant Subsidiaries before any court, governmental agency or arbitrator, which has, or    would reasonably be expected to have, a Material Adverse Effect.           Section 5.06.  Margin Stock; Use of Proceeds.  Neither the Borrower nor any of its    Subsidiaries is engaged in the business of extending credit for the purpose of purchasing or    carrying margin stock (within the meaning of Regulation T, U or X issued by the Board of                                        56  122723226_17





 






   Governors of the Federal Reserve System and except in connection with employee plans    disclosed to the Administrative Agent), and no proceeds of any Advance will be used for the    purpose, whether immediate, incidental or ultimate, of buying or carrying any such margin   stock under such circumstances as to involve the Borrower, a Guarantor, any of their   Subsidiaries or any Bank in a violation of Regulation U.  None of the Borrower, the   Guarantors or any of their Subsidiaries will use the proceeds of any Advance for the purpose   of acquiring or attempting to acquire control of any Person which is obligated to make SEC   Filings unless such acquisition or attempted acquisition (a) is pursuant to an agreement with   such Person, or (b) is not resisted by such Person.          Section 5.07.  Investment Company Act.  Neither the Borrower nor any of its   Subsidiaries is an “investment company” or a company “controlled” by an “investment    company” within the meaning of the Investment Company Act of 1940.           Section 5.08.  ERISA.  The Borrower and its Subsidiaries are in compliance with the    applicable provisions of ERISA, except to the extent that non-compliance thereunder does    not have and would not reasonably be expected to have a Material Adverse Effect.  Neither    the Borrower nor any of its Subsidiaries has incurred any Insufficiency or any material    liability to the PBGC in connection with any Plan established or maintained by the Borrower    or such Subsidiaries which would have, or would reasonably be expected to have, a Material    Adverse Effect.  Except as would not reasonably be expected to have a Material Adverse    Effect, neither the Borrower nor any of its Subsidiaries currently or within the last five years    has sponsored, maintained, contributed to or had an obligation to make contributions to or    has any liability (contingent or otherwise) to any “multiemployer plan” (as such term is    defined by Section 4001(a)(3) of ERISA).           Section 5.09.  Taxes.  As of the Second Amendment Effective Date, the United States    of America federal income tax returns of the Borrower and its Subsidiaries have been    examined through the fiscal year ended June 25, 2014.  The Borrower and its Significant    Subsidiaries have filed all United States of America Federal income tax returns and all other    material domestic tax returns which are required to be filed by them and have paid, or    provided for the payment before the same become delinquent of, all taxes due pursuant to    such returns or pursuant to any assessment received by the Borrower or any such Significant    Subsidiary, other than those taxes (a) contested in good faith by appropriate proceedings or    (b) the nonpayment of which does not have, and would not reasonably be expected to have a    Material Adverse Effect.  The charges, accruals and reserves on the books of the Borrower    and its Subsidiaries in respect of taxes are adequate in the aggregate.           Section 5.10.  Environmental Condition.  To the best of Borrower’s knowledge, the    Borrower and its Subsidiaries are in compliance with all Environmental Protection Statutes    except to the extent that failure to comply does not have, and would not reasonably be    expected to have, a Material Adverse Effect.           Section 5.11.  Ownership of the Guarantors.  On the Second Amendment Effective    Date, the Borrower owns, directly or indirectly, 100% of the issued and outstanding voting    stock of each Guarantor.                                        57  122723226_17





 






         Section 5.12.  Solvency.  The Borrower and each Guarantor is, and after giving effect    to the making of the Advances and to the application of the proceeds therefrom will be,    Solvent.           Section 5.13.  Disclosure.  All financial projections concerning the Borrower that    have been or are hereafter made available to the Administrative Agent, the Banks and the   Joint Lead Arrangers by the Borrower or any of the Borrower’s representatives (or on behalf    of the Borrower or such representatives) in connection with this Agreement and the    transactions contemplated hereby (the “Projections”) have been prepared in good faith based    upon reasonable assumptions.  All reports, financial statements, certificates and all other    information (other than the Projections), which have been made available to the    Administrative Agent, the Banks and the Joint Lead Arrangers by the Borrower or any of the    Borrower’s representatives (or on behalf of the Borrower or such representatives) in    connection with this Agreement, each other Credit Document and the transactions    contemplated thereby, is complete and correct in all material respects as and when furnished    and does not, as and when furnished, contain any untrue statement of a material fact or omit   to state a material fact necessary to make the statements contained therein not misleading. As     of the Fourth Amendment Effective Date, the information included in the Beneficial     Ownership Certification, if applicable, is true and correct in all respects.            Section 5.14.  Anti-Corruption Laws and Sanctions.  The Borrower maintains and    will maintain in effect policies and procedures designed to ensure compliance by the    Borrower, its Subsidiaries and their respective directors, officers, employees and agents with    Anti-Corruption Laws and applicable Sanctions, and the Borrower and, to the knowledge of    the Borrower, its Subsidiaries, are in compliance with Anti-Corruption Laws and applicable    Sanctions in all material respects. To the knowledge of the Borrower, neither this Agreement    nor any Advances made hereunder will, whether directly or, to the knowledge of the    Borrower, indirectly, be used by or for the benefit of a Sanctioned Person or will result in a    violation by any party hereto of Anti-Corruption Laws or applicable Sanctions.           Section 5.15.  EEA Financial Institution.  None of the Borrower or any Guarantor is    an EEA Financial Institution.           Section 5.16.  Use of Plan Assets.  Each Loan Party represents and warrants as of the    ThirdFourth Amendment Effective Date that each such Loan Party is not and will not be    using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section    3(42) of ERISA or otherwise) of one or more Benefit Plans in connection with the Advances     or Commitments.  with respect to such Loan Party’s entrance into, participation in,     administrative of and performance of  the Advances, the Secured Bilateral Letters of Credit,     the Commitments or this Agreement.           Section 5.17. Beneficial Ownership Certificate. As of the Fourth Amendment     Effective Date, the information included in the Beneficial Ownership Certification, if     applicable, is true and correct in all respects.            Section 5.18.Covered Entities.  No Loan Party is a Covered Entity.                                        58  122723226_17





 






                                  ARTICLE VI.                            AFFIRMATIVE COVENANTS         So long as any Advance shall remain unpaid or any Bank shall have any Commitment  hereunder, unless the Majority Banks shall otherwise consent in writing:           Section 6.01.  Compliance with Laws, Etc.  The Borrower and each Guarantor will    comply, and Borrower will cause each Significant Subsidiary to comply, in all material    respects with all applicable lawsApplicable Laws (including, without limitation, ERISA and     applicable Environmental Protection Statutes), rules, regulations and orders, subject to the     exceptions provided elsewhere in this Agreement in provisions relating to laws, rules,     regulations and orders of the nature referenced therein and except where the failure to     comply (a) is contested in good faith by appropriate proceedings or (b) does not have, and     would not reasonably be expected to have, a Material Adverse Effect.  The Borrower will     maintain in effect and enforce policies and procedures designed to ensure compliance by the    Borrower, its Subsidiaries and their respective directors, officers, employees and agents with    Anti-Corruption Laws and applicable Sanctions.            Section 6.02.  Reporting Requirements.  The Borrower and/or the Guarantors will     furnish to each of the Banks:        (a)    As soon as possible and in any event within five (5) days after a Financial Officer of the Borrower or a Guarantor obtains knowledge of a Default or an event which, with the  giving of notice, the lapse of time or both, would constitute a Default, which shall have occurred  and is continuing on the date of such statement, a statement of a Financial Officer, setting forth  the details of such Default or event and the actions, if any, which the Borrower has taken and  proposes to take with respect thereto.         (b)   Promptly after they are available, and in any event within sixty (60) days after the  end of each of the first three (3) quarters of each fiscal year of the Borrower, Consolidated  financial statements of the Borrower and its Consolidated Subsidiaries for such quarter showing  on a Consolidated basis the financial position, results of operations and cash flows as of the end  of and for the thirteen (13) week period of such quarter and for the period from the beginning of  the fiscal year to the end of such quarter, in each case setting forth the comparable information  for the comparable period in the preceding fiscal year, and accompanied by a certificate of a  Financial Officer to the effect that such financial statements present fairly in all material respects  the Consolidated financial position, results of operations and cash flows of the Borrower and its  Consolidated Subsidiaries as of the end of and for the respective period in conformity with GAAP, subject to year-end audit adjustments and the absence of certain notes.  For any such  fiscal quarter the foregoing requirements may be satisfied by the delivery of the Borrower’s SEC  Filing on Form l0-Q for such quarter.         (c)   Promptly after they are available, and in any event within ninety (90) days after  the end of each fiscal year of the Borrower, Consolidated financial statements of the Borrower and its Consolidated Subsidiaries for the fifty-two/fifty-three week period of such fiscal year showing the financial position, results of operations and cash flows as of the end of and for such                                         59   122723226_17





 






 fiscal year, in each case setting forth the comparable information for the preceding fiscal year,  and accompanied by the report of KPMG Peat Marwick or other independent certified public  accountants of recognized national standing, to the effect that based on an audit using generally  accepted auditing standards the financial statements present fairly, in all material respects, the  Consolidated financial position, results of operations and cash flows of the Borrower and its  Consolidated Subsidiaries for the respective periods in conformity with GAAP.  For any fiscal year this requirement may be satisfied by the delivery of the Borrower’s SEC Filing on Form 10-K for such fiscal year.         (d)  Concurrently with the delivery of the financial statements referred to in Sections   6.02(b) and (c), (i) a certificate of a Financial Officer to the effect that no Default or an event  which, with the giving of notice, the lapse of time or both, would constitute a Default, shall have  occurred and be continuing with respect to the covenants contained in Section 7.01 (together with appropriate supporting schedules setting forth the calculations relating to such covenants) or, if such Financial Officer has knowledge that a Default or an event which, with the giving of notice, the lapse of time or both, would constitute a Default, has occurred and is continuing with respect to Section 7.01, specifying the nature thereof and the actions, if any, which the Borrower  has taken and proposes to take with respect thereto, and (ii) a complete and correct list of the  Significant Subsidiaries as of the date thereof, showing, as to each Significant Subsidiary, the  correct name thereof, the jurisdiction of its organization and such Significant Subsidiary’s  proportionate share of the Consolidated assets of the Borrower.         (e)   Promptly after they are available, copies of (i) each SEC Filing, (ii) any reports  provided by the Borrower to its stockholders, and (iii) any press releases or other statements  made available by the Borrower or any of its Subsidiaries to the public generally concerning  material developments in the business or affairs of the Borrower or any of its Subsidiaries.  Any  matter disclosed in a SEC Filing or other report or press release delivered to Banks shall be  deemed disclosed in writing to Banks for all purposes of this Agreement, except with respect to  the reporting requirement set forth in Section 6.02(a).        (f)   Promptly (and in any event, within five (5) days) upon Borrower’s receipt of notice of any change in a Rating, notice thereof to the Administrative Agent.         (g)  Promptly following any request therefor, provide information and documentation   reasonably requested by the Administrative Agent or any Bank for purposes of compliance with   applicable “know your customer” and anti-money-laundering rules and regulations, including,   without limitation, the PATRIOT Act and the Beneficial Ownership Regulation.         (h)   (g) Such other information respecting the financial condition of the Borrower and  its Subsidiaries, or compliance with the terms of this Agreement, as any Bank through the  Administrative Agent may from time to time reasonably request in writing.         The Borrower and each Guarantor hereby acknowledges that (a) the Administrative  Agent and/or the Joint Lead Arrangers will make available to the Banks materials and/or  information provided by or on behalf of the Borrower hereunder (collectively, “Borrower   Materials”) by posting the Borrower Materials on IntraLinks, Syndtrack, ClearPar or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a “Public Bank”)                                         60   122723226_17





 






 may have personnel who do not wish to receive material non-public information with respect to  the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may  be engaged in investment and other market-related activities with respect to such Persons’  securities (all Banks who are not a “Public Bank” shall be referred to as a “Private Bank”).  Any  Bank desiring to be designated a Public Bank shall do so by identifying itself as a Public Bank  by selection of a Public Bank designation on the Platform prior to receiving any of the Borrower  Materials, and failing to do so such Bank shall be presumed to be a Private Bank for all purposes  under this Agreement.  The Borrower hereby agrees that (w) all Borrower Materials that are to  be made available to Public Banks shall be clearly and conspicuously marked “PUBLIC” which,  at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page  thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have  authorized the Administrative Agent, the Joint Lead Arrangers and the Banks to treat such  Borrower Materials as not containing any material non-public information with respect to the  Borrower or its securities for purposes of United States Federal and state securities laws  (provided, however, that to the extent such Borrower Materials constitute Confidential  Information, they shall be treated as set forth in Section 10.12); (y) all Borrower Materials  marked “PUBLIC” are permitted to be made available through a portion of the Platform  designated “Public Side Information;” and (z) the Administrative Agent and the Joint Lead  Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as  being suitable only for posting on a portion of the Platform not designated “Public Side  Information.”           Section 6.03.  Use of Proceeds.  (a) The Borrower will use the proceeds of the    Advances only for working capital and general corporate purposes and not in contravention    of Section 5.06.        (b)    No part of the proceeds of any Advance will knowingly be used, whether directly or indirectly, (i) in furtherance of an offer, payment, promise to pay, authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned Country or (iii) in any manner that would result in the violation by the Borrower, a Guarantor, any Subsidiary, the Administrative Agent or any Bank of any applicable Sanctions.            Section 6.04.  Maintenance of Insurance.  The Borrower will maintain, or cause to be     maintained, insurance coverages on or in respect of its and its Subsidiaries’ business or     properties with such insurers, in such amounts and covering such risks as are consistent with     the Borrower’s normal practices in effect from time to time.  Such insurance arrangements     may include self-insurance or insurance through an Affiliate.            Section 6.05.  Preservation of Corporate Existence, Etc.  Each of the Borrower and     the Guarantor will preserve and maintain, and cause each of its Subsidiaries to preserve and     maintain, its Corporate Franchises in the jurisdiction of its incorporation, and qualify and     remain qualified, and cause each Subsidiary to qualify and remain qualified, as a foreign     corporation in each jurisdiction in which qualification is necessary or desirable in view of its     business and operations or the ownership of its properties unless the failure to so qualify as a     foreign corporation does not have, and would not reasonably be expected to have, a Material                                         61   122723226_17





 






   Adverse Effect, provided, however, that nothing herein contained shall prevent any    transaction permitted by Section 7.03; provided, further, that any Guarantor or other    Subsidiary may change its state of organization to another state of the United States of    America.          Section 6.06.  Payment of Taxes, Etc.  The Borrower and each Guarantor will pay and   discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall   become delinquent, (a) all taxes, assessments and governmental charges or levies imposed   upon it or upon its income or profits or property that are material in amount, prior to the date   on which penalties attach thereto and (b) all lawful claims that are material in amount which,   if unpaid, might by law become a Lien upon its property unless the failure to timely pay any   of the foregoing does not have and would not reasonably be expected to have a Material   Adverse Effect, provided, however, that neither the Borrower, nor any Guarantor, nor any    such Subsidiary shall be required to pay or discharge any such tax, assessment, charge, levy,    or claim which is being contested in good faith and by appropriate proceedings.           Section 6.07.  Visitation Rights.  The Borrower shall permit the representatives of    each Bank, at the expense of such Bank and upon reasonable prior notice to the Borrower, to    visit the principal executive office of the Borrower, and to discuss the affairs, finances and    accounts of the Borrower and its Subsidiaries at the Borrower’s offices with Financial    Officers.           Section 6.08.  Compliance with ERISA and the Code.  The Borrower and its    Subsidiaries will comply, and will cause each other member of any Controlled Group to    comply, with all minimum funding requirements, and all other material requirements, of    ERISA and the Code, if applicable, to any Plan it or they sponsor or maintain, so as not to (a)    give rise to any liability thereunder which has, or would reasonably be expected to have, a    Material Adverse Effect or (b) cause any Termination Event to occur which has, or would    reasonably be expected to have, a Material Adverse Effect.  The Borrower shall ensure that    neither it nor any of its Subsidiaries, maintain, contribute to or incur an obligation to make    contributions to or incur any liability (contingent or otherwise) to any “multiemployer plan”    (as such term is defined by Section 4001(a)(3) of ERISA), except as would not reasonably be    expected to have a Material Adverse Effect.           Section 6.09.  Additional Guarantors.  Within thirty (30) days after the Borrower    reports results of operations for any fiscal quarter hereafter in which the revenues on a    twelve-month trailing basis of any Subsidiary which is not a Guarantor account for 10% or    more of the revenues of the Borrower on a Consolidated basis, the Borrower will cause such    Subsidiary to guaranty the obligations of the Borrower hereunder by entering into a joinder    to this Agreement in form and substance reasonably acceptable to the Administrative Agent    (the “Guarantor Joinder”).  In addition, within thirty (30) days after the Borrower reports    results of operations for any fiscal quarter hereafter for which non-guarantor Subsidiaries    account on a twelve-month trailing basis for greater than 50% of revenues of the Borrower    on a Consolidated basis, the Borrower shall cause additional Subsidiaries to guaranty the    obligations of the Borrower hereunder by entering into one or more Guarantor Joinders such    that Guarantors, in the aggregate, will account for greater than 50% of the revenues of the    Borrower on a Consolidated basis. The foregoing notwithstanding, in no event shall any                                        62  122723226_17





 






    Subsidiary that is a Real Property Holding Company be required to execute and deliver a     Guarantor Joinder, or otherwise guaranty or grant collateral security in respect of the     Obligations.            Section 6.10.  Collateral Requirement.  Within 45 days (or such longer period of time     agreed to by the Administrative Agent in writing in its sole discretion) of the Third     Amendment Effective Date, each Loan Party shall grant a perfected first-priority security     interest and continuing Lien (subject to Permitted Liens) in favor of the Administrative    Agent, for the benefit of the Secured Parties, on all  of its Collateral to secure the Obligations    by delivering to the Administrative Agent a customary security agreement, in form and    substance reasonably satisfactory to the Administrative Agent (together with each other    security agreement and security agreement supplement, in each case as amended, the    “Security Agreement”), duly executed by each Loan Party, together with:        (a)   proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the other Collateral Documents, covering the Collateral described in the Security Agreement and the other Collateral Documents; and        (b)   favorable opinions of counsel to the Loan Parties covering items customary for transactions contemplated by this Section 6.10.  Each Loan Party, at the sole cost and expense of the Loan Parties, shall promptly upon request by the Administrative Agent, or any Bank through the Administrative Agent, (a) correct any defect or error that may be discovered in any Collateral Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Bank through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the provisions of the Collateral Documents, (ii) to the fullest extent permitted by applicable law, subject the Collateral to the Liens in favor of the Administrative Agent (on behalf of the Secured Parties), (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens (subject to Permitted Liens) created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Administrative Agent (on behalf of the Secured Parties) the rights now or hereafter granted to the Secured Parties under any Collateral Document or under any other instrument executed in connection with any Collateral Document to which any Loan Party is a party.                                   ARTICLE VII.                              NEGATIVE COVENANTS        So long as any Advance shall remain unpaid or any Bank shall have any Commitment to the Borrower hereunder, without the written consent of the Majority Banks:           Section 7.01.  Financial Covenants.  The Borrower will not:                                         63   122723226_17





 






       (a)   as of the last day of any fiscal quarter for the immediately preceding twelve (12)  month period, permit the ratio of (i) the sum of (A) EBIT of the Borrower, on a Consolidated  basis, plus (B) Rent Expense of the Borrower, on a Consolidated basis, to (ii) the sum of (A)  Interest Expense of the Borrower, on a Consolidated basis, plus (B) Rent Expense of the  Borrower, on a Consolidated basis, to be less than 1.5 to 1.0, or         (b)   as of the last day of any fiscal quarter, permit the ratio (the “Debt to Cash Flow   Ratio”) of (i) the sum of (x) Debt of the Borrower, on a Consolidated basis, plus (y) the product  of six multiplied by Rent Expense of the Borrower, on a Consolidated basis, for the immediately  preceding twelve-month period, to (ii) the sum of (a) EBITDA of the Borrower, on a  Consolidated basis, for the immediately preceding twelve-month period, plus (b) Rent Expense  of the Borrower, on a Consolidated basis, for the immediately preceding twelve-month period to  exceed 4.25 to 1.0.            Section 7.02.  Negative Pledge.  Neither the Borrower nor the Guarantors will create,     assume, incur or suffer to exist, or permit any of its respective Subsidiaries to create, assume,     incur or suffer to exist, any Lien on or in respect of any of its or their assets or property used,     created or consumed in the operation of its or their business, whether, real, personal, or     mixed, whether tangible or intangible, whether now owned or hereafter acquired, including,     without limitation, the capital stock of any Subsidiary of the Borrower, but excluding any     margin stock (within the meaning of Regulation U issued by the Board of Governors of the    Federal Reserve System), or assign or otherwise convey, or permit any such Subsidiary to    assign or otherwise convey, any right to receive income, in each case to secure or provide for    the payment of any Debt of any Person, except Permitted Liens.  For the avoidance of doubt,    no Loan Party or any of its Subsidiaries shall create, assume, incur or suffer to exist, any    Lien on or in respect of any of its Intellectual Property or any of its Principal Property, in    each case, except as permitted under this Agreement.            Section 7.03.  Merger, Sale of Assets and Sale-Leasebacks.  Neither the Borrower,     the Guarantors nor any of their respective Subsidiaries will:         (a)   merge or consolidate with or into any other Person (including, in each case,   pursuant to a Division) unless (i) (A) either the Borrower or such Guarantor is the surviving  entity, (B) such merger or consolidation is between Subsidiaries (other than a Guarantor (except as would be permitted by clause (A) of this clause (a) or the last proviso of Section 6.05) or (C) such merger or consolidation is between a Subsidiary (other than a Guarantor (except as would be permitted by clause (A) of this clause (a))) and another Person (other than a Guarantor (except  as would be permitted by clause (A) of this clause (a))), and (ii) no Default or an event which,  with the giving of notice, the lapse of time or both, would constitute a Default, shall have  occurred and be continuing at the time of, or shall result from, such merger or consolidation;         (b)   sell, lease or otherwise transfer any of their assets in one transaction or in a series   of transactions  and whether effected pursuant to a Division or otherwise; provided that the  Borrower, the Guarantors or any of their Subsidiaries may sell, lease or otherwise transfer assets  (i) in the ordinary course of business, (ii) to the Borrower, any Guarantor or, so long as no  Default or an event which, with the giving of notice, the lapse of time or both, would constitute a  Default, shall have occurred and is continuing at the time of, or result from, any such sale, lease                                         64   122723226_17





 






 or transfer, any Subsidiaries, (iii) in connection with a Sale-Leaseback Transaction otherwise  permitted by Section 7.03(c) of this Agreement, and (iv) in any other case, so long as the  aggregate book value of all such assets sold, leased or transferred in reliance upon this clause  (iv) (and, for the avoidance of doubt, without giving effect to any transfers permissibly  consummated in reliance upon the prior clauses (i), (ii), or (iii)) shall not exceed fifteen percent (15%) of the Consolidated total assets of the Borrower as of the Second Amendment Effective Date for the term of this Agreement; provided, further, that no sale, lease or transfer consummated in reliance upon the prior clause (iii) or (iv) will be permitted pursuant to this Section 7.03(b) if a Default or an event which, with the giving of notice, the lapse of time or both, would constitute a Default, shall have occurred and is continuing at the time of, or result from, any such sale, lease or transfer; or        (c)   enter into any agreement or arrangement with any other Person providing for the sale or transfer by any Loan Party or any of its Subsidiaries of real or personal property to such Person and the leasing back of such property from such other Person or any other Person to or  from whom funds have been or are to be advanced by such Person on the security of such  property or rental obligations of a Loan Party or any of its Subsidiaries (such transactions,  “Sale-Leaseback Transactions”); provided that the Borrower, the Guarantors or any of their  Subsidiaries may enter into and consummate (i) Sale-Leaseback Transactions between the  Borrower and a Subsidiary or between Subsidiaries, (ii) prior to the Third Amendment Effective  Date, up to $150,000,000 in Sale-Leaseback Transactions, and (iii) on and after the Third  Amendment Effective Date, an aggregate of up to $450,000,000 (plus such additional amounts  representing obligations incurred in connection with fees, costs and expenses incurred in  connection with the consummation of the subject Sale-Leaseback Transactions) of  Sale-Leaseback Transactions during the term of this Agreement, so long as after giving effect  thereto the Borrower is in compliance on a pro forma basis with the Debt to Cash Flow Ratio  covenant in Section 7.01(b); provided, further, that no Sale-Leaseback Transaction will be  permitted pursuant to this Section 7.03(c) if a Default or an event which, with the giving of  notice, the lapse of time or both, would constitute a Default, shall have occurred and is  continuing at the time of, or result from, any such Sale-Leaseback Transaction.            Section 7.04.  Agreements to Restrict Dividends, Certain Transfers and Liens.  Neither the Borrower nor the Guarantors will enter into or suffer to exist, or permit any  Significant Subsidiary to enter into or suffer to exist, any consensual encumbrance or restriction  on the ability of the Borrower, any Guarantor or any Significant Subsidiary, as the case may be, (a) to pay, directly or indirectly, dividends or make any other distributions in respect of its capital stock or pay any Debt or other obligation owed to the Borrower, a Guarantor or to any  Significant Subsidiary, (b) to make loans or advances to the Borrower, a Guarantor or any Significant Subsidiary, (c) to guarantee the Debt of the Borrower, or (d) to create, incur, assume  or suffer to exist Liens on property of such Person, provided, however, that (1) this clause (d)  shall not prohibit (i) any negative pledge incurred or provided in favor of any holder of  obligations permitted hereunder secured by Liens of the type under clauses (d), (h), (i), (k) or (l)  of the definition of Permitted Liens but solely to the extent any such negative pledge relates to  the property that constitutes security for the obligations secured thereby (other than with respect  to this clause (d)(i), any such negative pledge that restricts any Liens on any Intellectual Property  or any Principal Property, in each case, except as otherwise permitted by this Agreement), (ii)  customary anti-assignment provisions contained in any lease, license or other contract, and (iii)                                        65   122723226_17





 






 those encumbrances and restrictions existing on the Second Amendment Effective Date and  described on Schedule IV and those now or hereafter existing that are not more restrictive in any  respect than such encumbrances and restrictions described on Schedule IV, and (2) the foregoing shall not prohibit (A) restrictions applicable to assets subject to an agreement for the sale or disposition of such assets, to the extent such disposition is permitted by this Agreement or is conditioned on the receipt of an amendment or consent in respect thereof, and (B) customary encumbrances and restrictions set forth in definitive documentation governing Sale-Leaseback Transactions, so long as the Borrower in good faith determines that such encumbrances and restrictions will not impair the ability of the Borrower to make principal or interest payments on the Obligations.            Section 7.05.  Transactions with Affiliates.  Except as otherwise permitted in Section   7.03, neither the Borrower nor any Guarantor will make any material sale to, make any material  purchase from, extend material credit to, make material payment for services rendered by, or  enter into any other material transaction with, or permit any of their respective Subsidiaries to  make, any material sale to, make any material purchase from, extend material credit to, make  material payment for services rendered by, or enter into any other material transaction with, any  Affiliate of the Borrower or any Guarantor or of such Subsidiary unless such sales, purchases,  extensions of credit, rendition of services and other transactions are (at the time such sale,  purchase, extension of credit, rendition of services or other transaction is entered into) (a) in the  ordinary course of business, or (b) on terms and conditions believed by the Borrower to be fair in  all material respects to the Borrower or such Guarantor or such Subsidiary, as the case may be.            Section 7.06.  Change of Business.  The Borrower, the Guarantors and their     Subsidiaries, on an aggregate basis, will not materially change the general nature of their     primary business.           Section 7.07.  Limitation on Advances and Investments.  Neither the Borrower nor    the Guarantors will, or will permit any of their respective Subsidiaries to, make or permit to    exist, any loans, advances or capital contributions to, or make any investment in, or purchase    or commit to purchase any stock or other securities or evidences of indebtedness of or    interests in any other Person which is not, or which will not become in connection with such    transaction, a Subsidiary (“Investments”), except the following:         (a)   Liquid Investments;         (b)   trade and customer accounts receivable which are for goods furnished or services  rendered in the ordinary course of business and are payable in accordance with customary trade  terms;         (c)   Investments in respect of joint ventures or similar arrangements relating to the  ownership or operation of food service businesses in which the Borrower and its Subsidiaries in the aggregate are the beneficial owners of not less than 50% of the outstanding equity interests;        (d)   Investments not otherwise permitted by this Section 7.07 in any Person or Persons, in an additional amount not to exceed $100,000,000 in the aggregate per fiscal year;                                         66   122723226_17





 






       (e)   Investments existing on the Second Amendment Effective Date and described on  Schedule VI; and         (f)   Investments by Foreign Subsidiaries in other Subsidiaries or other Persons,  provided that such Investments in other Persons are from the retained earnings of a Foreign Subsidiary or other Person, and any retention by a Subsidiary or other Person of net income.            Section 7.08.  Accounting Practices.  The Borrower and each of its Significant     Subsidiaries will maintain its books of record and account in conformity with GAAP.            Section 7.09.  Debt.  The Borrower and each Guarantor will not, and will not permit     any of their respective Subsidiaries to, directly or indirectly, create, incur or suffer to exist     any direct, indirect, fixed or contingent liability for any Debt, other than (i) the obligations    pursuant to the Credit Documents, (ii) the Debt described on Schedule VII, (iii) additional     Debt of the Borrower which may be guaranteed by a Guarantor (but not guaranteed by any of     the Borrower’s or the Guarantor’s Subsidiaries, other than a Guarantor in the case of Debt of    the Borrower), (iv) intercompany Debt, (v) additional Debt of the Guarantors and the     Borrower’s and the Guarantor’s Subsidiaries, provided, however, the aggregate of all Debt of     the Guarantors and all such Subsidiaries under this clause (v), whether secured or unsecured,     must not exceed $75,000,000 in the aggregate at any one time, and (vi) Debt of Real Property     Holdings Companies incurred in connection with Sale-Leaseback Transactions otherwise     permitted to be consummated in accordance with Section 7.03(c) of this Agreement.            Section 7.10.  Restricted Payments. Neither the Borrower nor any Guarantor will, or     will permit any of their respective Subsidiaries to, declare or make, directly or indirectly, any     Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that,     so long as no Default or event which, with the giving of notice, the lapse of time or both,     would constitute a Default shall have occurred and be continuing at the time of any action     described below or would result therefrom:         (a)   each Subsidiary may make Restricted Payments (i) to the Borrower and any other  Person that owns an Equity Interest in such Subsidiary, ratably according to their respective  holdings of the type of Equity Interest in respect of which such Restricted Payment is being  made, and (ii) each Subsidiary may, without limitation, make Restricted Payments to the  Borrower or any other Subsidiary whose outstanding Equity Interests are 100% owned, directly  or indirectly, by the Borrower;         (b)   the Borrower and each Subsidiary may declare and make dividend payments or  other distributions payable solely in the common stock or other common Equity Interests of such Person; and         (c)  (c)    the Borrower may make and declare (i) regularly scheduled, board  approved, dividend payments in amounts up to (A) $75,000,000 during its fiscal year ended June  28, 2017 and (B) $82,500,000 during its fiscal year ended June 27, 2018 and during each fiscal  year thereafter; (ii) additional Restricted Payments in an amount of up to $125,000,000 during  each fiscal year; (iii) additional Restricted Payments in an aggregate amount of up to  $250,000,000 during the term of this Agreement; and (iv) any Restricted Payments in unlimited                                         67   122723226_17





 






 amounts, so long as after giving effect to the Restricted Payments (and any related Borrowing or  other incurrence of Debt) the Debt to Cash Flow Ratio is equal to or less than 3.75 to 1.00 on a  pro forma basis as of the last fiscal quarter for which financial statements have been delivered to  the Administrative Agent in accordance with the terms hereof.                                   ARTICLE VIII.                                    DEFAULTS            Section 8.01.  Defaults.  If any of the following events (each individually, a     “Default”) shall occur and be continuing:         (a)   the Borrower (i) shall fail to pay any principal of any Advance when the same  becomes due and payable in accordance with the terms hereof, or (ii) shall fail to pay any interest  on any Advance or any fee or other amount to be paid by it hereunder within three (3) Business  Days of the date on which such payment is due; or         (b)   any certification, representation or warranty made by the Borrower or a Guarantor  herein or by the Borrower or a Guarantor (or any of their respective officers) in writing  (including representations and warranties deemed made pursuant to Sections 2.04(a)(G), or 3.02)  under or in connection with any Credit Document shall prove to have been incorrect in any  material respect when made or deemed made; or         (c)   the Borrower or a Guarantor shall fail to perform or observe (i) any term,  covenant or agreement contained in Section 7.01 on its part to be performed or observed, (ii) any  term, covenant or agreement contained in Sections 6.03 or 6.05 (with respect to maintaining the  corporate existence of the Borrower or a Guarantor) or in Article VII (other than Section 7.01)  on its part to be performed or observed and such failure shall continue for five (5) days after the  date notice thereof shall have been given to the Borrower or such Guarantor by the  Administrative Agent or any Bank, or (iii) any term, covenant or agreement contained in any  Credit Document (other than a term, covenant or agreement described in clauses (a), (b) above  and subclauses (i) and (ii) of clause (c)) on its part to be performed or observed and such failure  shall continue for thirty (30) days after the date notice thereof shall have been given to the  Borrower or the applicable Guarantor by the Administrative Agent or any Bank; or         (d)   the Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to  pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $50,000,000 in the aggregate (excluding Debt consisting of the Advances) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt, or any event of default or other event shall occur or condition shall exist under any agreement or instrument creating or evidencing such Debt in such principal amount, and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such event or condition is to accelerate, or to permit the holder or holders of any such Debt or any trustee or agent on its or their behalf to accelerate, the maturity of such Debt, provided, however, a Default or an event which, with the giving of notice, the lapse of time or both, would constitute                                         68   122723226_17





 






a Default, shall have occurred or be continuing for purposes of this clause (d) shall not be deemed to exist due to the acceleration of the maturity of any obligation to a Bank or an affiliate (within the meaning of Regulation U) of a Bank solely by reason of a default in the performance of a term or condition in any agreement or instrument under or by which such obligation is created, evidenced or secured, which term or condition restricts the right of the Borrower or any other Person to sell, pledge or otherwise dispose of any margin stock (within the meaning of Regulation U) held by the Borrower or any such other Person; or        (e)   the Borrower, a Guarantor, or any Significant Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower, a Guarantor or any Significant Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), shall remain undismissed or unstayed for a period of sixty (60) days; or the Borrower, a Guarantor or any Significant Subsidiary shall take any corporate action to authorize any of the actions set forth above in this clause (e); or        (f)   any judgment or order against the Borrower, a Guarantor or any of their respective Consolidated Subsidiaries is rendered for the payment of money in excess of $50,000,000 over the sum of available insurance therefor and adequate cash reserves for which have not been established and set aside solely for the purpose of payment of such judgment or order and such judgment or order remains unsatisfied and either (i) enforcement proceedings shall have been commenced by the creditor upon such judgment or order or (ii) there shall be any period of sixty (60) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or        (g)   the Borrower shall cease to own directly or indirectly 100% of the issued and outstanding voting stock of the Guarantors; or        (h)   any Person shall become the “beneficial owner” (as defined under Exchange Act Rule 13d-3) of at least a majority of the outstanding voting common stock of the Borrower;  then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Majority Banks, after providing notice to the Borrower, declare all of the Commitments and the obligation of each Bank to make Advances to be terminated, whereupon all of the Commitments and each such obligation shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Majority Banks, by notice to the Borrower declare the Advances, all interest thereon and all other amounts payable by the Borrower and the Guarantors under this Agreement to be forthwith due and payable, whereupon such Advances, such interest and all such amounts shall become and be forthwith due and payable, without requirement of any presentment, demand, protest, notice of intent to accelerate, further notice of acceleration or other further notice of any kind (other than the notice expressly provided for above), all of which are hereby expressly waived by the Borrower and each Guarantor, provided, however, that in the                                        69  122723226_17





 






 event of any Default described in Section 8.01(e) with respect to the Borrower or any Guarantor,  (A) all of the Commitments and the obligation of each Bank to make Advances shall  automatically be terminated and (B) the Advances, all such interest and all such amounts shall  automatically become and be due and payable, without presentment, demand, protest, notice of  intent to accelerate, notice of acceleration or any other notice of any kind, all of which are  hereby expressly waived by the Borrower and each Guarantor.            Section 8.02.  Application of Funds.  After the exercise of remedies provided for in  Section 8.01 (or after the Advances have automatically become immediately due and payable as  set forth in the proviso to Section 8.01), any amounts received on account of the Obligations  shall, subject to the provisions of Section 2.18, be applied by the Administrative Agent in the  following order:               First, to payment of that portion of the Obligations constituting fees, indemnities,          expenses and other amounts (including (i) fees, charges and disbursements of counsel          to the Administrative Agent, to the extent payable pursuant to Section 10.04 hereof,          and (ii) amounts payable under Article II) due and payable to the Administrative          Agent in its capacity as such;              Second, to payment of that portion of the Obligations constituting fees,           indemnities and other amounts (other than principal, interest and commitment fees)           due and payable to the Banks (including (i) fees, charges and disbursements of           counsel to the respective Banks arising under the Credit Documents, to the extent           payable pursuant to Section 10.04 hereof, and (ii) amounts payable under Article II,           ratably among them in proportion to the respective amounts described in this clause           Second payable to them;               Third, to payment of that portion of the Obligations constituting unpaid           commitment fees and interest, ratably among the Banks in respect of the respective          amounts described in this clause Third payable to them;              Fourth, to payment of that portion of the Obligations constituting unpaid principal           of the LoansAdvances and Obligations then owing under Secured Hedge           Agreements, Secured Cash Management Agreements and Secured Bilateral Letters           of Credit, ratably among the Banks, the Hedge Banks, the Cash Management Banks,           and the LOC Banks in proportion to the respective amounts described in this clause           Fourth held by them; and               Last, the balance, if any, after all of the Obligations have been paid in full, to the          Borrower or as otherwise required by laws.  Notwithstanding the foregoing, Obligations arising under Secured Cash Management  Agreements, Secured Hedge Agreements, and the Secured Bilateral Letters of Credit shall be  excluded from the application described above if the Administrative Agent has not received  written notice thereof, together with such supporting documentation as the Administrative Agent  may request, from the applicable Cash Management Bank, Hedge Bank or LOC Bank as the case  may be.  Each Cash Management Bank, Hedge Bank or LOC Bank not a party to this Agreement                                         70   122723226_17





 






 that has given the notice contemplated by the preceding sentence shall be deemed to have  acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Bank” party hereto. Excluded Swap  Obligations with respect to any Guarantor shall not be paid with amounts received from such  Guarantor or such Guarantor’s assets, but appropriate adjustments shall be made with respect to  payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth  above in this Section 8.02.”                                    ARTICLE IX.                           THE ADMINISTRATIVE AGENT            Section 9.01.  Authorization and Action.  (a)  Each Bank hereby appoints and     authorizes the Administrative Agent to take such action as administrative agent on its behalf     and to exercise such powers under this Agreement as are delegated to the Administrative     Agent by the terms hereof, together with such powers as are reasonably incidental thereto.     As to any matters not expressly provided for by this Agreement (including, without     limitation, enforcement or collection of the Advances), the Administrative Agent shall not be     required to exercise any discretion or take any action, but shall be required to act or to refrain     from acting (and shall be fully protected in so acting or refraining from acting) upon the     instructions of the Majority Banks, and such instructions shall be binding upon all Banks,     provided, however, that the Administrative Agent shall not be required to take any action     which exposes the Administrative Agent to personal liability or which is contrary to this     Agreement or applicable lawApplicable Law.  The provisions of this Article are solely for     the benefit of the Administrative Agent and the Banks, and none of the Borrower or the     Guarantors shall have any rights as a third party beneficiary of any such provisions.         (b)   The Administrative Agent may perform any of and all its duties and exercise its  rights and powers hereunder or under any other Credit Document by or through any one or more  sub-agents (that is/are Affiliate(s) of the Administrative Agent) appointed by the Administrative  Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties   and exercise its rights and powers by or through their respective Related Parties. The exculpatory  provisions of this Article shall apply to any such sub-agent and to the Related Parties of the   Administrative Agent and any such sub-agent, and shall apply to itstheir respective activities in  connection with the syndication of the credit facility provided for herein as well as activities as  Administrative Agent. The Administrative Agent shall not be responsible for the negligence or   misconduct of any sub-agents except to the extent that a court of competent jurisdiction   determines in a final and nonappealable judgment that the Administrative Agent acted with gross   negligence or willful misconduct in the selection of such sub-agents.         (c)   The Administrative Agent shall also act as the “collateral agent” under the Credit  Documents, and each of the Banks (including in its capacities as a potential Hedge Bank, a  potential Cash Management Bank, and a potential LOC Bank) hereby irrevocably appoints and  authorizes the Administrative Agent to act as the agent of such Bank for purposes of acquiring,  holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to  secure any of the Obligations, together with such powers and discretion as are reasonably  incidental thereto.  In this connection, the Administrative Agent, as “collateral agent” and any                                         71   122723226_17





 






co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.01(b) for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Credit Documents) as if set forth in full herein with respect thereto.           Section 9.02.  Administrative Agent’s Reliance, Etc.  Neither the Administrative    Agent nor any of its directors, officers, agents or employees shall be liable to the Banks for   any action taken or omitted to be taken by it or them under or in connection with this   Agreement, except for its or their own gross negligence or willful misconduct.  Without   limitation of the generality of the foregoing, the Administrative Agent: (i) may consult with    legal counsel (including counsel for the Borrower), independent public accountants and other    experts selected by it and shall not be liable to the Banks for any action taken or omitted to   be taken in good faith by it in accordance with the advice of such counsel, accountants or   experts; (ii) makes no warranty or representation to any Bank and shall not be responsible to   any Bank for any statements, warranties or representations (whether written or oral) made in   or in connection with this Agreement; (iii) shall not have any duty to ascertain or to inquire   as to the performance or observance of any of the terms, covenants or conditions of this   Agreement on the part of the Borrower or to inspect the property (including the books and   records) of the Borrower or any of its Subsidiaries; (iv) shall not be responsible to any Bank   for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of   this Agreement or any other instrument or document furnished pursuant hereto; (v) shall not   be subject to any fiduciary or other implied duties, regardless of whether a Default has   occurred and is continuing; (vi) except as expressly set forth in the Credit Documents, the   Administrative Agent shall not have any duty to disclose, and shall not be liable for the   failure to disclose, any information relating to the Borrower, any Subsidiary or any other   Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as   Administrative Agent or any of its Affiliates in any capacity; (vii) shall not be responsible for    or have any duty to ascertain or inquire into the satisfaction of any condition set forth in    Article III or elsewhere in any Credit Document, other than to confirm receipt of items    expressly required to be delivered to the Administrative Agent or satisfaction of any    condition that expressly refers to the matters described therein being acceptable or   satisfactory to the Administrative Agent; (viii) shall incur no liability to the Banks under or   in respect of this Agreement by acting upon any notice, consent, certificate or other   instrument or writing (which may be by telecopier or other electronic communications)   believed by it to be genuine and signed or sent by the proper party or parties and (ix) shall   incur no liability to the Banks under or in respect of this Agreement by acting upon any   statement made to it orally or by telephone and believed by it to be made by the proper   Person (including, if applicable, a Financial Officer of such Person).           Section 9.03.  Knowledge of Defaults.  The Administrative Agent shall not be    deemed to have knowledge or notice of the occurrence of a Default (other than a failure to    make a payment of principal of or interest on the Advances) unless the Administrative Agent    has received notice from a Bank or the Borrower specifying such Default and stating that    such notice is a “Notice of Default”.  In the event that the Administrative Agent receives                                       72  122723226_17





 






   such a notice of a Default, the Administrative Agent shall give prompt notice thereof to the    Banks.  The Administrative Agent shall (subject to Section 9.08 hereof) take such action with    respect to such Default as shall be directed by the Majority Banks, provided that unless and    until the Administrative Agent shall have received such directions, the Administrative Agent    may (but shall not be obligated to) take such action, or refrain from taking such action, with   respect to such Default as it shall deem advisable in the best interest of the Banks except to   the extent that this Agreement expressly requires that such action be taken, or not be taken,    only with the consent or upon the authorization of the Majority Banks or all of the Banks.           Section 9.04.  Rights of the Administrative Agent as a Bank.  With respect to all its    Commitments and the Advances made by it, the Person serving as the Administrative Agent    shall have the same rights and powers under this Agreement as any other Bank and may    exercise the same as though it were not the Administrative Agent; and the term “Bank” or    “Banks” shall, unless otherwise expressly indicated, include such Person in its individual    capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as    trustee under indentures of, act as financial advisor or in any other advisory capacity and    generally engage in any kind of business with, the Borrower, any of its Subsidiaries and any    Person who may do business with or own securities of the Borrower or any such Subsidiary,    all as if such Person was not the Administrative Agent and without any duty to account    therefor to the Banks.           Section 9.05.  Bank Credit Decision.  (a)  Each Bank expressly acknowledges that     none of the Administrative Agent nor any Joint Lead Arranger has made any representation     or warranty to it, and that no act by the Administrative Agent or any Joint Lead Arranger     hereafter taken, including any consent to, and acceptance of any assignment or review of the     affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any     representation or warranty by the Administrative Agent or any Joint Lead Arranger to any     Bank as to any matter, including whether the Administrative Agent or any Joint Lead     Arranger have disclosed material information in their (or their Related Parties’) possession.     Each Bank represents and acknowledges that it has, independently and without reliance upon    the Administrative Agent, any Joint Lead Arranger or any other Bank and based on the    financial statements referred to in Section 5.04 and such other documents and information as    it has deemed appropriate, made its own credit analysis andof, appraisal of, and investigation     into, the business, prospects, operations, property, financial and other condition and     creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other     regulatory laws relating to the transactions contemplated hereby, and made its own decision    to enter into this Agreement and to extend credit to the Borrower hereunder.  Each Bank also    acknowledges that it will, independently and without reliance upon the Administrative    Agent, any Joint Lead Arranger or any other Bank and based on such documents and    information as it shall deem appropriate at the time, continue to make its own credit analysis,     appraisals and decisions in taking or not taking action under this Agreementor based upon     this Agreement, any other Credit Document or any related agreement or any document     furnished hereunder or thereunder, and to make such investigations as it deems necessary to     inform itself as to the business, prospects, operations, property, financial and other condition     and creditworthiness of the Loan Parties.  Each Bank represents and warrants that (i) the     Credit Documents set forth the terms of a commercial lending facility and (ii) it is engaged in     making, acquiring or holding commercial loans in the ordinary course and is entering into                                        73  122723226_17





 






   this Agreement as a Bank for the purpose of making, acquiring or holding commercial loans     and providing other facilities set forth herein as may be applicable to such Bank, and not for     the purpose of purchasing, acquiring or holding any other type of financial instrument, and     each Bank agrees not to assert a claim in contravention of the foregoing. Each Bank     represents and warrants that it is sophisticated with respect to decisions to make, acquire     and/or hold commercial loans and to provide other facilities set forth herein, as may be     applicable to such Bank, and either it, or the Person exercising discretion in making its     decision to make, acquire and/or hold such commercial loans or to provide such other     facilities, is experienced in making, acquiring or holding such commercial loans or providing     such other facilities.        (b)   Each Bank, by delivering its signature page to this Agreement and funding its Advances on the Effective Date or, Second Amendment Effective Date, Fourth Amendment  Effective Date, or delivering its signature page to an Assignment or an Accession Agreement pursuant to which it shall become a Bank hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Banks on the Effective Date and, Second Amendment Effective Date and the Fourth Amendment  Effective Date.           Section 9.06.  Successor Administrative Agent.  The Administrative Agent may    resign at any time by giving written notice thereof to the Banks and the Borrower.  Upon any    such resignation, the Majority Banks shall have the right to appoint a successor    Administrative Agent that, unless a Default shall have occurred and then be continuing, is    acceptable to the Borrower.  If no successor Administrative Agent shall have been so    appointed by the Majority Banks, and shall have accepted such appointment, within 30 days    after the retiring Administrative Agent’s giving of notice of resignation or the Majority    Banks’ removal of the retiring Administrative Agent, then the retiring Administrative Agent    may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be a    commercial bank organized under the laws of the United States of America or of any State    thereof and having total assets of at least $1,000,000,000; provided that if the Administrative    Agent shall notify the Borrower and the Banks that no Person satisfying such requirements    has accepted such appointment, then such resignation shall nonetheless become effective in    accordance with such notice and (1) the retiring Administrative Agent shall be discharged    from its duties and obligations hereunder and under each other Credit Document and with    respect to the transactions contemplated hereby and (2) all payments, communications and    determinations provided to be made by, to or through the Administrative Agent shall instead    be made by or to each Bank , until such time as the Majority Banks appoint a successor    Administrative Agent as provided for above in this Section.  Upon the acceptance of any    appointment as Administrative Agent hereunder by a successor Administrative Agent, such    successor Administrative Agent shall thereupon succeed to and become vested with all the    rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring    Administrative Agent shall be discharged from its duties and obligations under this    Agreement.  After any retiring Administrative Agent’s resignation or removal hereunder as    Administrative Agent, the provisions of this Article IX shall inure to its benefit as to any    actions taken or omitted to be taken by it while it was Administrative Agent under this    Agreement.                                       74  122723226_17





 






         Section 9.07.  Joint Lead Arrangers and Bookrunners, Syndication Agents and     Documentation Agents.  The Joint Lead Arrangers and Bookrunners, Syndication Agents and    Documentation Agents named on the cover page of this Agreement, in their capacities as    such, shall have no obligation, responsibility or required performance hereunder and shall not    become liable in any manner to any party hereto in respect hereof.          Section 9.08.  INDEMNIFICATION.  THE ADMINISTRATIVE AGENT SHALL   NOT BE REQUIRED TO TAKE ANY ACTION HEREUNDER OR TO PROSECUTE OR   DEFEND ANY SUIT IN RESPECT OF THIS AGREEMENT OR THE NOTES, UNLESS   INDEMNIFIED TO ITS SATISFACTION BY THE BANKS AGAINST LOSS, COST,   LIABILITY AND EXPENSE.  IF ANY INDEMNITY FURNISHED TO THE   ADMINISTRATIVE AGENT SHALL BECOME IMPAIRED, IT MAY CALL FOR   ADDITIONAL INDEMNITY AND CEASE TO DO THE ACTS INDEMNIFIED   AGAINST UNTIL SUCH ADDITIONAL INDEMNITY IS GIVEN.  IN ADDITION, THE   BANKS, JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY THE   ADMINISTRATIVE AGENT (TO THE EXTENT NOT REIMBURSED BY THE   BORROWER OR A GUARANTOR) FROM AND AGAINST ANY AND ALL   LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,   AGREEMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR   NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR   ASSERTED AGAINST THE  ADMINISTRATIVE AGENT IN ANY WAY RELATING   TO OR ARISING OUT OF THE CREDIT DOCUMENTS OR ANY ACTION TAKEN OR   OMITTED BY THE ADMINISTRATIVE AGENT UNDER THE CREDIT DOCUMENTS,   PROVIDED THAT NO BANK SHALL BE LIABLE TO THE ADMINISTRATIVE    AGENT FOR ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES,    DAMAGES, PENALTIES, ACTIONS, AGREEMENTS, SUITS, COSTS, EXPENSES OR    DISBURSEMENTS RESULTING FROM THE ADMINISTRATIVE AGENT’S GROSS    NEGLIGENCE OR WILLFUL MISCONDUCT.  WITHOUT LIMITATION OF THE    FOREGOING, EACH BANK EXPRESSLY AGREES TO INDEMNIFY THE    ADMINISTRATIVE AGENT FROM ITS OWN NEGLIGENCE.  EACH BANK AGREES    TO REIMBURSE THE ADMINISTRATIVE AGENT PROMPTLY UPON DEMAND FOR    ITS RATABLE SHARE, CALCULATED IN ACCORDANCE WITH ITS TOTAL    COMMITMENT, OF ANY OUT-OF-POCKET EXPENSES (INCLUDING COUNSEL    FEES INCURRED BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE    PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION,    AMENDMENT OR ENFORCEMENT WHETHER THROUGH NEGOTIATIONS, LEGAL    PROCEEDINGS OR OTHERWISE OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS    OR RESPONSIBILITIES UNDER, THE CREDIT DOCUMENTS) TO THE EXTENT    THAT THE ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH    EXPENSES BY THE BORROWER OR A GUARANTOR.  THIS SECTION 9.08 SHALL    NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT    REPRESENT LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,    ACTIONS, AGREEMENTS, SUITS, COSTS, EXPENSES, ETC. ARISING FROM ANY    NON-TAX CLAIM.                                         75  122723226_17





 






         Section 9.09.  Collateral Matters.  Each Bank (including in its capacities as a potential    Cash Management Bank, a potential Hedge Bank, and a potential LOC Bank) irrevocably    authorizes the Administrative Agent, at its option and in its discretion,        (a)   to release any Lien on any property granted to or held by the Administrative Agent under any Credit Document (i) upon termination of the Total Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Credit Document, or (iii) subject to Section 10.01, if approved, authorized or ratified in writing by the Majority Banks;        (b)   to subordinate any Lien on any property granted to or held by the Administrative Agent under any Credit Document to the holder of any Lien on such property that is permitted by clause (g) or (i) in the definition of Permitted Liens; and        (c)   upon request by the Administrative Agent at any time, the Majority Banks will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property pursuant to this Section 9.09.           Section 9.10.  No Bank is an Employee Benefit Plan.    Certain ERISA Matters.          (a)   Each Bank, (x) represents and warrants, as of the date such Person became a Bank party hereunder, to, and (y) covenants, from the date such Person becomes a Bank hereunder, from the date such Person becomes a Bank party hereunder to the date such Person ceases being a Bank party to this Agreement, for the benefit of, the Administrative Agent and the Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:              (i)   such Bank is not using “plan assets” (within the meaning of 29 CFR §        2510.3-101, as modified by Section 3(42) of ERISA or otherwise) of one or more Benefit       Plans in connection with the Advances orwith respect to such Bank’s entrance into,        participation in, administration of and performance of the Advances, the Secured        Bilateral Letters of Credit, the Commitments or this Agreement;              (ii)  the transaction exemption set forth in one or more prohibited transaction        class exemption issued by the U.S. Department of Labor, as any such exemption may be        amended from time to time (a “PTE”)PTEs, such as PTE 84-14 (a class exemption for       certain transactions determined by independent qualified professional asset managers),       PTE 95-60 (a class exemption for certain transactions involving insurance company      general accounts), PTE 90-1 (a class exemption for certain transactions involving       insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain       transactions involving bank collective investment funds) or PTE 96-23 (a class       exemption for certain transactions determined by in-house asset managers), is applicable       with respect to such Bank’s entrance into, participation in, administration of and       performance of the Advances, the Secured Bilateral Letters of Credit, the Commitments       and this Agreement;                                        76  122723226_17





 






            (iii) (A) such Bank is an investment fund managed by a “Qualified       Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such       Qualified Professional Asset Manager made the investment decision on behalf of such       Bank to enter into, participate in, administer and perform the Advances, the Secured        Bilateral Letters of Credit, the Commitments and this Agreement, (C) the entrance into,       participation in, administration of and performance of the Advances, the Secured        Bilateral Letters of Credit, the Commitments and this Agreement satisfies the       requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best       knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are       satisfied with respect to such Bank’s entrance into, participation in, administration of and       performance of the Advances, the Secured Bilateral Letters of Credit, the Commitments       and this Agreement; or              (iv)  such other representation, warranty and covenant as may be agreed in       writing between the Administrative Agent, in its sole discretion, and such Bank.        (b)   In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a)(i) above is true with respect to a Bank or such(2) a Bank has not provided another representation, warranty and covenant as provided in accordance with sub-clause (a)(iv) abovein  the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person becomes  became a Bank hereunderparty hereto, to, and (y) covenants, from the date such Person becomesbecame a Bank hereunder,party hereto to the date such Person ceases being a Bank party to this Agreementhereto, for the benefit of, the Administrative Agent and the  Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that: the Administrative Agent is not a  fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into,  participation in, administration of and performance of the Advances, the Secured Bilateral  Letters of Credit, the Commitments and this Agreement (including in connection with the  reservation or exercise of any rights by the Administrative Agent under this Agreement, any  Credit Document or any documents related hereto or thereto).              (i)   none of the Administrative Agent or Joint Lead Arrangers or any of their        respective Affiliates is a fiduciary with respect to the assets of such Bank (including in        connection with the reservation or exercise of any rights by the Administrative Agent        under this Agreement, any Credit Document or any documents related to hereto or        thereto);              (ii)  the Person making the investment decision on behalf of such Bank with        respect to the entrance into, participation in, administration of and performance of the        Advances, the Commitments and this Agreement is independent (within the meaning of        29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a        broker-dealer or other person that holds, or has under management or control, total assets        of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E);              (iii) the Person making the investment decision on behalf of such Bank with        respect to the entrance into, participation in, administration of and performance of the        Advances, the Commitments and this Agreement is capable of evaluating investment                                         77  122723226_17





 






      risks independently, both in general and with regard to particular transactions and        investment strategies (including in respect of the Obligations);              (iv)  the Person making the investment decision on behalf of such Bank with        respect to the entrance into, participation in, administration of and performance of the        Advances, the Commitments and this Agreement is a fiduciary under ERISA or the Code,        or both, with respect to the Advances, the Commitments and this Agreement and is        responsible for exercising independent judgment in evaluating the transactions        hereunder; and              (v)   no fee or other compensation is being paid directly to the Administrative        Agent or the Joints Lead Arrangers or any their respective Affiliates for investment        advice (as opposed to other services) in connection with the Advances, the Commitments        or this Agreement.  The Administrative Agent and the Joint Lead Arrangers hereby informs the Banks that each such  Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary  capacity, in connection with the transactions contemplated hereby, and that such Person has a  financial interest in the transactions contemplated hereby in that such Person or an Affiliate  thereof (i) may receive interest or other payments with respect to the Advances, the  Commitments and this Agreement, (ii) may recognize a gain if it extended the Advances, the  Commitments for an amount less than the amount being paid for an interest in the Advances, the  Commitments by such Bank or (iii) may receive fees or other payments in connection with the  transactions contemplated hereby, the Credit Documents or otherwise, including structuring fees,  commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees,  agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees,  letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees,  processing fees, term out premiums, banker’s acceptance fees, breakage or other early  termination fees or fees similar to the foregoing.           Section 9.11.  Secured Cash Management Agreements, Secured Hedge Agreements,     and Secured Bilateral Letters of Credit.  Except as otherwise expressly set forth herein, no    Cash Management Bank, Hedge Bank, or LOC Bank that obtains the benefits of Section     8.02, any guaranty or any Collateral by virtue of the provisions hereof or of any guaranty by    any Guarantor 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 Bank and, in such case, only to the extent expressly provided in    the Credit Documents.  Subject to the next sentence but notwithstanding any other provision   of this Article IX to the contrary, 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 Cash Management Agreements, Secured Hedge    Agreements, or Secured Bilateral Letters of Credit 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 Cash Management Bank, Hedge    Bank, LOC Bank or the Borrower, as the case may be.  The Administrative Agent shall not    be required to verify the payment of, or that other satisfactory arrangements have been made                                        78  122723226_17





 






   with respect to Obligations arising under Secured Cash Management Agreements, Secured    Hedge Agreements or Secured Bilateral Letters of Credit upon termination of the Total    Commitments and payment in full of all Obligations (other than (A) contingent    indemnification obligations and (B) obligations and liabilities under Secured Cash    Management Agreements, Secured Hedge Agreements and Secured Bilateral Letters of    Credit). Each Cash Management Bank, Hedge Bank and LOC Bank acknowledges and    agrees that the Liens and guarantees under the Credit Documents shall be released at such    time as the Obligations, excluding those under the Secured Cash Management Agreements,   Secured Hedge Agreements and Secured Bilateral Letters of Credit, are repaid in full.                                   ARTICLE X.                                MISCELLANEOUS           Section 10.01.  Amendments, Etc.  No amendment or waiver of any provision of any    Credit Document, nor consent to any departure by the Borrower or the Guarantors therefrom,    shall in any event be effective unless the same shall be in writing and signed by the Borrower    and the Majority Banks and acknowledged by Administrative Agent, and then such waiver or    consent shall be effective only in the specific instance and for the specific purpose for which    given, provided, however, that no amendment, waiver or consent shall do any of the    following:  (a) extend or increase any Commitment of any Bank or subject any Bank to any    additional obligations without the consent of such Bank, (b) reduce the principal of, or    interest on, any Advances of any Bank or any fees or other amounts payable to any Bank    hereunder without the consent of such Bank, provided, however, that only the consent of the     Majority Banks shall be necessary (i) to amend the definition of “Default Rate” or to waive     any obligation of the Borrower to pay interest at the Default Rate or (ii) to amend any     financial covenant hereunder (or any defined term used therein) even if the effect of such     amendment would be to reduce the rate of interest on any Advance or Borrowing or to     reduce any fee payable hereunder, (c) postpone any date fixed for any payment of principal    of, or interest on, any Advances or any fees or other amounts payable hereunder without the    consent of each affected Bank, (d) change the percentage of any Commitment or of the     aggregate unpaid principal amount of any Advances, or the number of Banks, which shall be     required for the Banks or any of them to take any action under this Agreement or any other     Credit Documentdefinition of “Majority Banks” or any other provision hereof specifying the     number or percentage of Banks required to amend, waive or otherwise modify any rights     hereunder or make any determination or grant any consent hereunder, without the consent of    each Bank, (e) release the Borrower or Brinker Restaurant or otherwise change any    obligation of the Borrower or Brinker Restaurant to pay any amount payable by the Borrower    or Brinker Restaurant hereunder without the consent of each Bank, or (f) release all or    substantially all of the Guarantors or release all or substantially all of the Collateral without    the consent of each Bank, or (g) amend this Section 10.01 without the consent of each Bank;    provided, further, that no amendment, waiver or consent shall, unless in writing and signed    by the Administrative Agent in addition to the Banks required above to take such action,    affect the rights or duties of the Administrative Agent under any Credit Document; provided,   further that, each of the Bank of America Fee Letter, the JPMCB Fee Letter, the Wells Fargo    Fee Letter and the Upfront Fee Letter may be amended, or rights and privileges thereunder    waived or modified in a writing executed only by all of the respective parties thereto; and                                       79  122723226_17





 






   provided, further, that no amendment, waiver or consent shall, unless in writing and signed    by the applicable Guarantor in addition to any other party required above to take such action,    affect the rights or duties of such Guarantor under any Credit Document.  Notwithstanding    anything to the contrary herein, no Defaulting Bank shall have any right to approve or    disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or    consent which by its terms requires the consent of all Banks or each affected Bank may be    effected with the consent of the applicable Banks other than Defaulting Banks), except that    (x) no Commitment of any Defaulting Bank may be increased or extended without the    consent of such Bank and (y) any waiver, amendment or modification requiring the consent    of all Banks or each affected Banks that by its terms affects any Defaulting Bank more    adversely than other affected Banks shall require the consent of such Defaulting Bank.           Section 10.02.  Notices, Etc.  All notices and other communications provided for in    this Agreement and each other Credit Document shall be in writing (including telecopy or    email communication) and mailed, telecopied or emailed or delivered, if to any Bank as    specified on Schedule I hereto or specified pursuant to an Assignment; if to the Borrower or    the Guarantors, as specified opposite its name on Schedule II hereto; or, as to the Borrower,    the Guarantors or the Administrative Agent, at such other address as shall be designated by    such party in a prior written notice to the other parties (provided that such address of each of    Borrower, the Guarantors and the Administrative Agent for notice purposes shall be an    address in the United States) and, as to each other party, at such other address as shall be    designated by such party in a prior written notice to the Borrower, such Guarantor and the    Administrative Agent.  All such notices and communications shall, when mailed, telecopied    or emailed, be effective when deposited in the mails, sent by telecopier to any party to the    telecopier number as set forth herein or on Schedule I or Schedule II hereto (or other    telecopy number specified by such party in a written notice to the other parties hereto), or    sent by email to the addresses set forth herein or on Schedule I or Schedule II hereto,    respectively, except that notices to the Administrative Agent pursuant to Article II or IX shall   not be effective until received by the Administrative Agent by physical delivery or telecopy.          Section 10.03.  No Waiver; Remedies.  No failure on the part of any Bank or the   Administrative Agent to exercise, and no delay in exercising, any right under any Credit   Document shall operate as a waiver thereof; nor shall any single or partial exercise of any   such right preclude any other or further exercise thereof or the exercise of any other right.   The remedies provided in the Credit Documents are cumulative and not exclusive of any   remedies provided by law.  Notwithstanding anything to the contrary contained herein or in   any Credit Document, the authority to enforce rights and remedies hereunder and under the   Credit Documents against the Borrower and the Guarantors or any of them shall be vested   exclusively in, and all actions and proceedings at law in connection with such enforcement   shall be instituted and maintained exclusively by, the Administrative Agent in accordance   with Article VIII for the benefit of all the Banks; provided, however, that the foregoing shall    not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and    remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder,    (b) any Bank from exercising setoff rights in accordance with Section 10.05, or (c) any Bank    from filing proofs of claim or appearing and filing pleadings on its own behalf during the   pendency of a proceeding relative to the Borrower or the Guarantors under any insolvency,    bankruptcy, reorganization, receivership or other debtor relief law; and provided, further, that                                       80  122723226_17





 






    if at any time there is no Person acting as Administrative Agent hereunder, then (i) the     Majority Banks shall have the rights otherwise ascribed to the Administrative Agent pursuant     to Article VIII and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the     preceding proviso, any Bank may, with the consent of the Majority Banks, enforce any rights     and remedies available to it and as authorized by the Majority Banks.            Section 10.04.  Costs, Expenses and Taxes.  (a)  The Borrower agrees to pay on     demand (i) all reasonable out-of-pocket costs and expenses of the Administrative Agent in    connection with the preparation, execution, delivery, administration, modification and     amendment or waiver of any Credit Document, including, without limitation, the reasonable     fees and out-of-pocket expenses of one primary counsel to the Administrative Agent (and in     the case of reasonable fees and out-of-pocket expenses of such special counsel in connection     with the preparation, execution and delivery of this Agreement and the other Credit     Documents prior to and on the Effective Date, to the extent presented to the Borrower for     payment no later than thirty (30) days following the Effective Date), with respect to advising     the Administrative Agent and (ii) all reasonable out-of-pocket costs and expenses, if any     (including, without limitation, reasonable counsel fees and expenses), of the Administrative     Agent and each Bank in connection with the enforcement (whether through negotiations,     legal proceedings or otherwise) against the Borrower or the Guarantors of any Credit     Document.         (b)   THE BORROWER AND EACH GUARANTOR, JOINTLY AND  SEVERALLY, AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO  INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT (AND ANY  SUB-AGENT THEREOF), THE JOINT LEAD ARRANGERS AND EACH BANK AND  EACH OF THEIR RESPECTIVE AFFILIATES AND THEIR AND THEIR AFFILIATES’  RESPECTIVE PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,  ADVISORS, TRUSTEES, REPRESENTATIVES AND CONTROLLING PERSONS (EACH,  AN “INDEMNIFIED PERSON”) FROM AND AGAINST ANY AND ALL CLAIMS,  DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT  LIMITATION, REASONABLE FEES, DISBURSEMENTS AND OTHER CHARGES OF  COUNSEL), FOR WHICH ANY INDEMNIFIED PERSON MAY BECOME LIABLE OR  WHICH MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY SUCH  INDEMNIFIED PERSON BY THE BORROWER, A GUARANTOR OR ANY OTHER  PERSON, IN EACH CASE IN CONNECTION WITH OR ARISING OUT OF OR BY  REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY  INVESTIGATION, LITIGATION, OR PROCEEDING OR PREPARATION OF A DEFENSE  IN CONNECTION THEREWITH, WHETHER OR NOT SUCH INDEMNIFIED PERSON IS  A PARTY THERETO), (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,  THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR  THEREUNDER, OR IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF) AND ITS RELATED INDEMNIFIED PERSONS, THE ADMINISTRATION OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS  (INCLUDING IN RESPECT OF ANY MATTERS ADDRESSED IN SECTION 2.15) OR (II)                                        81   122723226_17





 






 ANY ADVANCES OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM  (IN ALL CASES, WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN  PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PERSON), EXCEPT TO THE EXTENT ANY SUCH CLAIM, DAMAGE, LIABILITY OR EXPENSE IS FOUND IN A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PERSON’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR MATERIAL BREACH OF ANY CREDIT DOCUMENT.  THE BORROWER AND EACH GUARANTOR ALSO AGREE THAT NO INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY (WHETHER DIRECT OR INDIRECT, IN CONTRACT OR TORT OR OTHERWISE) TO THE BORROWER OR A GUARANTOR OR THE BORROWER OR A GUARANTOR’S RESPECTIVE SUBSIDIARIES OR AFFILIATES OR TO ANY EQUITY HOLDERS OR CREDITORS OF THE BORROWER OR A GUARANTOR ARISING OUT OF, RELATED TO OR IN CONNECTION WITH ANY ASPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT TO THE EXTENT OF DIRECT, AS OPPOSED TO SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE, DAMAGES DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PERSON’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR MATERIAL BREACH OF ANY CREDIT DOCUMENT.  NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, NO INDEMNIFIED PERSON SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF INFORMATION OR OTHER MATERIALS OBTAINED THROUGH ELECTRONIC TELECOMMUNICATIONS OR OTHER INFORMATION TRANSMISSION SYSTEMS, OTHER THAN FOR DIRECT OR ACTUAL DAMAGES RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON OR FROM SUCH INDEMNIFIED PERSON’S MATERIAL BREACH OF ANY CREDIT DOCUMENT, IN EACH CASE, AS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION.           Section 10.05.  Right of Set-off.  Upon (a) the occurrence and during the continuance    of a Default pursuant to Section 8.01(a) or (b) the making of the request or the granting of     the consent specified by Section 8.01 to authorize the Administrative Agent to declare the     Advances due and payable pursuant to the provisions of Section 8.01, each Bank (other than     a Defaulting Bank) is hereby authorized at any time and from time to time, to the fullest     extent permitted by law, to set off and apply any and all deposits (general or special, time or     demand, provisional or final) at any time held and other indebtedness at any time owing by    such Bank or any affiliate of such Bank to or for the credit or the account of the Borrower or    a Guarantor (but not any other Person) against any and all of the obligations of the Borrower    or a Guarantor now or hereafter existing under the Credit Documents, irrespective of whether    or not such Bank shall have made any demand under this Agreement or any Credit Document     and although such obligations may be unmatured, provided that no Bank shall exercise such     set-off rights with respect to deposits that such Bank knows are held by the Borrower or a     Guarantor for the benefit of another Person (such deposits, “Third Party Funds”), and each     Bank agrees that if it has exercised its set-off rights under this Section 10.05 with respect to     Third Party Funds, such Bank shall promptly return such Third Party Funds to the Borrower     or a Guarantor, as applicable, provided further that in the event that any Defaulting Bank                                        82   122723226_17





 






   shall receive any property of the Borrower or a Guarantor or payment (including by    purported right of set off or otherwise), (x) all amounts so received shall be paid over    immediately to the Administrative Agent for further application in accordance with the    provisions of Section 2.18 and, pending such payment, shall be segregated by such    Defaulting Bank from its other funds and deemed held in trust for the benefit of the    Administrative Agent and the other Banks, and (y) the Defaulting Bank shall provide    promptly to the Administrative Agent a statement describing in reasonable detail the Debt    and other obligations owing to such Defaulting Bank as to which it received such property or    payment.  Each Bank agrees to notify the Borrower and the applicable Guarantor promptly    after such set-off and application made by such Bank, provided that the failure to give such    notice shall not affect the validity of such set-off and application. The rights of each Bank    under this Section 10.05 are in addition to other rights and remedies (including, without    limitation, other rights of set-off) which such Bank may have.          Section 10.06.  Bank Assignments and Participations.  (a)  Assignments.  Any Bank   may assign to one or more banks or other entities all or any portion of its rights and   obligations under this Agreement (including, without limitation, all or a portion of any of its   Commitments, any Advances owing to it, and any Notes held by it) with the consent, not to   be unreasonably withheld, of the Administrative Agent and the Borrower (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 five (5) Business Days after   having received notice thereof and provided, further that the Borrower shall have no such    consent right in the case of assignments to a Bank or any Affiliate of any Bank or if a Default    has occurred and is continuing); provided, however, that (i) each such assignment of an    assigning Bank’s Commitment shall be of a constant, and not a varying, percentage of all of    such Bank’s rights and obligations under this Agreement in respect of such Commitment, (ii)    the amount of each such resulting Commitment, and applicable Advances of the assigning    Bank (unless it is assigning all its Commitment) and the assignee Bank pursuant to each such    assignment (determined as of the date of the Assignment with respect to such assignment)    shall in no event be less than $10,000,000 for any applicable Commitment and shall be an    integral multiple of $1,000,000 (unless each of the Borrower and the Administrative Agent    consents; provided that the Borrower shall have no such consent right if a Default has    occurred and is continuing), (iii) each such assignment shall be to an Eligible Assignee, (iv)    the parties to each such assignment shall execute and deliver to the Administrative Agent, for    its acceptance and recording in the Register, an Assignment, together with any Note or Notes    subject to such assignment, and shall pay all legal and other expenses in respect of such    assignment and (v) the assignor or the assignee shall pay to the Administrative Agent an    assignment fee of $3,500 in connection with such assignment (which shall be waivable by    the Administrative Agent in its sole discretion).  Upon such execution, delivery, acceptance    and recording, from and after the effective date specified in each Assignment, which    effective date shall be at least three (3) Business Days after the execution thereof, (A) the    assignee thereunder shall be a party hereto for all purposes and, to the extent that rights and    obligations hereunder have been assigned to it pursuant to such Assignment, have the rights    and obligations of a Bank hereunder and (B) such Bank thereunder shall, to the extent that    rights and obligations hereunder have been assigned by it pursuant to such Assignment,    relinquish its rights and be released from its obligations to lend under this Agreement (and, in                                        83  122723226_17





 






    the case of an Assignment covering all or the remaining portion of such Bank’s rights and     obligations under this Agreement, such Bank shall cease to be a party hereto).        (b)    Terms of Assignments.  By executing and delivering an Assignment, the Bank thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto the matters set forth in paragraphs 2 and 3 of such Assignment.         (c)  The Register.  The Administrative Agent shall maintain at its address referred to  on Schedule I a copy of each Assignment delivered to and accepted by it and a register for the recordation of the names and addresses of the Banks and all Commitments of, and principal  amount of all Advances owing to, each Bank from time to time (the “Register”).  The entries in  the Register shall be conclusive and binding for all purposes, absent error, and the Borrower, the Guarantors, the Administrative Agent and the Banks may treat each Person whose name is  recorded in the Register as a Bank hereunder for all purposes of this Agreement.  In addition, the  Administrative Agent shall maintain on the Register information regarding the designation, and  revocation of designation, of any Bank as a Defaulting Bank.  The Register shall be available for  inspection by the Borrower, the Guarantors or any Bank at any reasonable time and from time to  time upon reasonable prior notice.        (d)    Procedures.  Upon its receipt of an Assignment executed by a Bank and an assignee pursuant to the terms of this Agreement, the Administrative Agent shall, if such Assignment has been completed and is in substantially the form of the attached Exhibit C, and  otherwise in conformity with this Section 10.06, (i) accept such Assignment, (ii) record the  information contained therein in the Register, and (iii) give prompt notice thereof to the  Borrower and each Guarantor.  Within five (5) Business Days after its receipt of such notice, the  Borrower, at its own expense, shall, if the assignee shall so request, execute and deliver to the  Administrative Agent, in exchange for any surrendered Note, a new Note to the order of such  assignee in an amount equal to the applicable Commitment assumed by it pursuant to such  Assignment and, if such assigning Bank has retained any Commitment hereunder and so  requests, a new Note to the order of such Bank in an amount equal to the Commitment retained  by it hereunder.  Such new Notes shall be dated the effective date of such Assignment and shall  otherwise be in substantially the form of the attached Exhibit A-1 or Exhibit A-2, as applicable.         (e)   Participations.  Each Bank may, without the consent of the Borrower or the  Administrative Agent,  sell participations to one or more banks or other entities (other than a  Defaulting Bank) in or to all or a portion of its rights and obligations under this Agreement  (including, without limitation, all or a portion of any of its Commitments, any Advances owing  to it, and any Notes held by it), provided, however, that (i) such Bank’s obligations under this  Agreement (including, without limitation, all of its Commitments to the Borrower hereunder)  shall remain unchanged, (ii) such Bank shall remain solely responsible to the other parties hereto  for the performance of such obligations, (iii) such Bank shall remain the holder of any such  Notes for all purposes of this Agreement, (iv) the Borrower, the Guarantors, the Administrative  Agent and the other Banks shall continue to deal solely and directly with such Bank in  connection with such Bank’s rights and obligations under this Agreement and shall have no  duties or responsibilities to the participant, (v) such Bank shall not require the participant’s  consent to any matter under this Agreement, except for changes in the principal amount of such  Bank’s Commitment, any Note payable to such Bank, in each case, in which the participant has                                         84   122723226_17





 






 an interest, reductions in such Bank’s fees or interest, in which the participant has an interest, the date any amount in which the participant has an interest is due to such Bank hereunder, or  extending the applicable Termination Date, and (vi) such Bank shall give prompt notice to the  Borrower of each such participation sold by such Bank.  No participant shall have any rights  under any provisions of any of the Credit Documents.  Each Bank that sells a participation shall,  acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on  which it enters the name and address of each Participant and the principal amounts (and stated  interest) of each Participant’s interest hereunder or other obligations under the Credit Documents  (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or  any portion of the Participant Register (including the identity of any Participant or any  information relating to a Participant's interest in any commitments, loans, letters of credit or its  other obligations under any Credit Document) to any Person except to the extent that such  disclosure is necessary to establish that such commitment, loan, letter of credit or other  obligation is in registered form under Section 5f.103-1(c) of the United States Treasury  Regulations.  The entries in the Participant Register shall be conclusive absent manifest error,  and such Bank shall treat each Person whose name is recorded in the Participant Register as the  owner of such participation for all purposes of this Agreement notwithstanding any notice to the  contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as  Administrative Agent) shall have no responsibility for maintaining a Participant Register.         (f)   Permitted Assignments.  Notwithstanding any other provision set forth in this  Agreement, any Bank may assign all or any portion of its rights under this Agreement (including,  without limitation, rights to payments of principal and/or interest under any Notes held by it) to  any subsidiary of such Bank or to any Federal Reserve Bank, without notice to or consent from  the Borrower or the Administrative Agent, provided, however, that such Bank shall not be  released from any of its obligations hereunder as a result of such assignment.         (g)   Certain Additional Payments.  In connection with any assignment of rights and  obligations of any Defaulting Bank 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 Advances, calculated in accordance with the Defaulting Bank’s applicable Commitment, previously requested, required to be funded, but not funded by the Defaulting Bank, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Bank to the Administrative Agent or any Banks hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances in accordance with its applicable Commitment. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Bank 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 Bank for all purposes of this Agreement until such compliance occurs.            Section 10.07.  Governing Law.  This Agreement, the Notes and the other Credit     Documents shall be governed by, and construed in accordance with, the laws of the State of                                        85   122723226_17





 






    Texas (except that Chapter 346 of the Texas Finance Code, which regulates certain revolving     credit loan accounts, shall not apply to this Agreement or any other Credit Document).            Section 10.08.  Interest.  (a) It is the intention of the parties hereto that the     Administrative Agent and each Bank shall conform strictly to Applicable Usury Laws from     time to time in effect.  Accordingly, if the transactions with the Administrative Agent or any     Bank contemplated hereby would be usurious under Applicable Usury Laws, then, in that     event, notwithstanding anything to the contrary in this Agreement, the Notes, or any other     agreement entered into in connection with or as security for this Agreement or the Notes, it is     agreed as follows:  (i) the aggregate of all consideration which constitutes interest under     Applicable Usury Laws that is contracted for, taken, reserved, charged or received by the    Administrative Agent or such Bank, as the case may be, under this Agreement, the Notes, or    under any other agreement entered into in connection with or as security for this Agreement    or the Notes shall under no circumstances exceed the maximum amount allowed by such    Applicable Usury Laws and any excess shall be canceled automatically and, if theretofore    paid, shall at the option of the Administrative Agent or such Bank, as the case may be, be    credited by the Administrative Agent or such Bank, as the case may be, on the principal    amount of the obligations owed to the Administrative Agent or such Bank, as the case may    be, by the Borrower or refunded by the Administrative Agent or such Bank, as the case may    be, to the Borrower, and (ii) in the event that the maturity of any Advance or other obligation    payable to the Administrative Agent or such Bank, as the case may be, is accelerated or in    the event of any required or permitted prepayment, then such consideration that constitutes    interest under Applicable Usury Laws, may never include more than the maximum amount    allowed by such Applicable Usury Laws and excess interest, if any to the Administrative    Agent or such Bank, as the case may be, provided for in this Agreement or otherwise shall be    canceled automatically as of the date of such acceleration or prepayment and, if theretofore    paid, shall, at the option of the Administrative Agent or such Bank, as the case may be, be    credited by the Administrative Agent or such Bank, as the case may be, on the principal    amount of the obligations owed to the Administrative Agent or such Bank, as the case may    be, by the Borrower or refunded by the Administrative Agent or such Bank, as the case may    be, to the Borrower.        (b)   In the event that at any time the rate of interest applicable to any Advance made by any Bank would exceed the Maximum Rate, thereby causing the interest payable under this Agreement or the Notes to be limited to the Maximum Rate, then any subsequent reductions in the applicable rate of interest hereunder or under the Notes shall not reduce the rate of interest charged hereunder or under the Notes below the Maximum Rate until the total amount of interest accrued under this Agreement and the Notes from and after the date hereof equals the amount of interest that would have accrued hereon or thereon if the rates of interest otherwise applicable to this Agreement and the Notes (without limitation by the Maximum Rate) had at all times been in effect.  In the event that upon the final payment of all of the Advances made by any Bank and termination of all of the Commitments of such Bank, the total amount of interest paid to such Bank hereunder and under the Notes is less than the total amount of interest which would have accrued if the interest rates applicable to such Advances pursuant to Sections 2.07(a) and (b) had at all times been in effect, then the Borrower agrees to pay to such Bank, to the extent permitted by Applicable Usury Laws, an amount equal to the excess of (a) the lesser of (i) the amount of interest which would have accrued on such Advances if the Maximum Rate had at all times been                                        86   122723226_17





 






 in effect or (ii) the amount of interest rates applicable to such Advances pursuant to Sections   2.07(a) and (b) had at all times been in effect over (b) the amount of interest otherwise accrued  on such Advances in accordance with this Agreement.         (c)   The maximum non-usurious rate of interest shall be determined, subject to any  applicable Federal law to the extent that it permits Banks to contract for, charge, reserve or receive a greater amount of interest than under the Texas Finance Code or other laws of the State of Texas, by utilizing the applicable weekly ceiling from time to time in effect pursuant to Chapter 303 of the Texas Finance Code.  Pursuant to Section 346.004 of the Texas Finance Code, the parties hereto agree that in no event will the provisions of Chapter 346 of the Texas Finance Code be applicable to the transactions contemplated by the Credit Documents.            Section 10.09.  Execution in Counterparts.  This Agreement may be executed in any     number of counterparts and by different parties hereto in separate counterparts, each of     which when so executed shall be deemed to be an original and all of which taken together     shall constitute one and the same agreement.           Section 10.10.  Survival of Agreements, Representations and Warranties, Etc.  All    warranties, representations and covenants made by the Borrower or the Guarantors or any    officer of the Borrower or the Guarantors herein or in any certificate or other document    delivered in connection with this Agreement shall be considered to have been relied upon by    the Banks and shall survive the issuance and delivery of the Notes and the making of the    Advances regardless of any investigation.  The indemnities and other obligations of the    Borrower contained in this Agreement, and the indemnities by the Banks in favor of the    Agent and its officers, directors, employees and agents, will survive the repayment of the    Advances and the termination of this Agreement.            Section 10.11.  The Borrower’s Right to Apply Deposits.  In the event that any Bank     is placed in receivership or enters a similar proceeding, the Borrower may, to the full extent     permitted by law, make any payment due to such Bank hereunder, to the extent of finally     collected unrestricted deposits of the Borrower in U.S. Dollars held by such Bank, by giving     notice to the Administrative Agent and such Bank directing such Bank to apply such deposits     to such indebtedness.  If the amount of such deposits is insufficient to pay such indebtedness     then due and owing in full, the Borrower shall pay the balance of such insufficiency in     accordance with this Agreement.            Section 10.12.  Confidentiality.  Each Bank and the Administrative Agent agree that     they will not disclose without the prior consent of the Borrower and the Guarantors (other     than to the Joint Lead Arrangers or any Bank and the affiliates, employees, agents, auditors,    accountants, counsel, representatives or other professional advisors (legal or otherwise) of    the Administrative Agent, the Joint Lead Arrangers or any Bank who have a contractual,    fiduciary or professional duty to maintain the confidentiality of the information and not    breach such duty) any information with respect to the Borrower or the Guarantors or their    Subsidiaries which is furnished pursuant to this Agreement and which is not disclosed in an    SEC Filing, a report to stockholders, a press release, or has otherwise become generally    available to the public otherwise than through a breach hereof (the “Confidential      Information”), provided that any Bank may disclose any such Confidential Information (a) as                                         87   122723226_17





 






   may be required or appropriate in any report, statement or testimony submitted to or required    by any municipal, state or Federal regulatory body having or claiming to have jurisdiction   over such Bank or submitted to or required or requested by the Board of Governors of the   Federal Reserve System or the Federal Deposit Insurance Corporation or similar   organizations (whether in the United States of America or elsewhere) or their successors, (b)   as may be required or appropriate in response to any summons or subpoena in connection   with any litigation, (c) in order to comply with any law, order, regulation or ruling applicable   to such Bank, (d) to any other party hereto, (e) in connection with the exercise of any   remedies hereunder or under any other Credit Document or any action or proceeding relating   to this Agreement or any other Credit Document or the enforcement of rights hereunder or   thereunder; and (f) to an assignee or participant or prospective assignee or participant in   connection with any contemplated transfer of any of the Notes or any interest therein by such   Bank, provided that such assignee or participant or prospective assignee or participant    executes an agreement with the Borrower and the Guarantors agreeing to comply with the    provisions contained in this Section 10.12.  In the event that the Administrative Agent or any    Bank becomes legally compelled or otherwise obligated to disclose any of the Confidential    Information (other than to regulatory or supervisory authorities having jurisdiction over such    Bank) and unless otherwise prohibited by applicable laws or regulations, such Person will    promptly, after obtaining knowledge of its obligation to disclose such information, provide    the Borrower with notice so that the Borrower may seek a protective order or other    appropriate remedy or waive compliance with this Section.  In the event such protective    order or other remedy is not obtained, such Person will furnish only that portion of the    Confidential Information which it is advised by legal counsel is legally required and will    exercise its best efforts to obtain reliable assurances that confidential treatment will be    accorded the Confidential Information.  In the event that compliance with this Section is    waived by the Borrower, such Person may disclose any and all information at issue without    liability to the Borrower, the Guarantors or any other Person.  Notwithstanding the foregoing,    the Administrative Agent and each Bank may, and the Borrower hereby authorizes the    Administrative Agent and each Bank to, include references to the Borrower, its Subsidiaries    and the Guarantors, and utilize any logo or other distinctive symbol associated with the    Borrower, its Subsidiaries and the Guarantors, solely in connection with any advertising,    promotion or marketing undertaken by the Administrative Agent or such Bank in the    ordinary course of its business, or, subject to the Borrower’s prior review and approval of    any such action by the Administrative Agent or such Bank (which approval shall not be    unreasonably withheld), outside of the ordinary course of its business.  Each of the    Administrative Agent and the Banks acknowledges that (a) it has no interest or right in any    logo or other distinctive symbol associated with the Borrower, its Subsidiaries or the    Guarantors, except for the limited right to use as expressly permitted by the preceding    sentence, and no other rights of any kind are granted hereunder, by implication or otherwise,    and (b) the Borrower, such Subsidiary or the Guarantors, as applicable, is the sole and    exclusive owner of all right, title and interest in such logo or other distinctive symbol    associated with the Borrower, its Subsidiaries or the Guarantors.          Section 10.13.  Binding Effect.  This Agreement shall be binding upon and inure to   the benefit of the Borrower, each Guarantor, the Administrative Agent, each Bank and their   respective successors and permitted assigns, except that the Borrower and the Guarantors                                        88  122723226_17





 






    shall not have the right to assign any of their respective rights hereunder or any interest     herein without the prior written consent of the Banks.  The rights of the Banks to assign this     Agreement are set forth in and are subject to the provisions of Section 10.16.            Section 10.14.  ENTIRE AGREEMENT.  PURSUANT TO SECTION 26.02 OF THE     TEXAS BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE     AMOUNT INVOLVED IN THE LOAN AGREEMENT EXCEEDS $50,000 IN VALUE IS     NOT ENFORCEABLE UNLESS THE LOAN AGREEMENT IS IN WRITING AND     SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY’S AUTHORIZED     REPRESENTATIVE.         THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT  SUBJECT TO THE PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY  FROM THE WRITTEN LOAN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN AGREEMENT.  THIS WRITTEN AGREEMENT, THE OTHER CREDIT DOCUMENTS AND THE COMMITMENT LETTER REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES; PROVIDED THAT IN CASE OF A CONFLICT BETWEEN THE COMMITMENT LETTER  AND THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL.            Section 10.15.  USA PATRIOT ACT.  Each Bank that is subject to the Act (as     hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Bank)     hereby notifies the Borrower and each Guarantor that pursuant to the requirements of the     USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the     “Act”), it is required to obtain, verify and record information that identifies the Borrower,     each Guarantor and their respective Subsidiaries, which information includes the name and     address of the Borrower and other information that will allow such Bank or the     Administrative Agent, as applicable, to identify the Borrower, each Guarantor and their     respective Subsidiaries in accordance with the Act.  The Borrower, each Guarantor and their     respective Subsidiaries shall, promptly following a reasonable request by the Administrative     Agent or any Bank, provide all documentation and other information that the Administrative     Agent or such Bank requests in order to comply with its ongoing obligations under     applicable “know your customer” and anti-money laundering rules and regulations, including     the Act.            Section 10.16.  No Fiduciary Relationship.  The Borrower and each Guarantor, on     behalf of itself and its Subsidiaries, agrees that in connection with all aspects of the     transactions contemplated hereby and any communications in connection therewith, the     Borrower, the Guarantors, the other Subsidiaries and their Affiliates, on the one hand, and     the Administrative Agent, the Banks and their Affiliates, on the other hand, will have a     business relationship that does not create, by implication or otherwise, any fiduciary duty on    the part of the Administrative Agent, the Banks or their Affiliates, and no such duty will be    deemed to have arisen in connection with any such transactions or communications.                                         89   122723226_17





 






         Section 10.17.  Severability.  If any provision of this Agreement or the other Credit    Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and    enforceability of the remaining provisions of this Agreement and the other Credit Documents    shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith    negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions    the economic effect of which comes as close as possible to that of the illegal, invalid or    unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not    invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting   the foregoing provisions of this Section 10.17, if and to the extent that the enforceability of    any provisions in this Agreement relating to Defaulting Bank shall be limited by any    insolvency, bankruptcy, reorganization, receivership or other debtor relief law, as determined    in good faith by the Administrative Agent, then such provisions shall be deemed to be in    effect only to the extent not so limited.           Section 10.18.  Waiver of Jury Trial.  EACH PARTY HERETO HEREBY    IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY    APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY    LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR    RELATING TO THIS AGREEMENT OR ANY OTHER 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.  THE    ADMINISTRATIVE AGENT, THE BORROWER AND EACH GUARANTOR HEREBY    ACKNOWLEDGES THAT THE UNITED STATES ADDRESS DESIGNATED    PURSUANT TO SECTION 10.02 SHALL BE SUCH PERSON’S ADDRESS FOR    PURPOSES OF SERVICE OF PROCESS HEREUNDER.          Section 10.19.  Electronic Execution of Assignments and Certain Other Documents.   The words “delivery”, “execute,” “execution,” “signed,” “signature,” and words of like   import in or related to any document to be signed in connection with this Agreement and the   transactions contemplated hereby (including without limitation Assignments, amendments or   other modifications, Notices of Borrowing, waivers and consents) shall be deemed to include   electronic signatures, the electronic matching of assignment terms and contract formations on   electronic platforms approved by the Administrative Agent, 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; provided that notwithstanding anything contained herein to the contrary    the Administrative Agent is under any obligation to agree to accept electronic signatures in                                       90  122723226_17





 






   any form or in any format unless expressly agreed to by the Administrative Agent pursuant to    procedures approved by it.           Section 10.20.  Acknowledgement and Consent to Bail-In of EEA Financial     Institutions.  Notwithstanding anything to the contrary in any Credit Document or in any    other agreement, arrangement or understanding among any such parties, each party hereto    acknowledges that any liability of any Bank that is an EEA Financial Institution arising    under any Credit Document, to the extent such liability is unsecured, may be subject to the    write-down and conversion powers of an EEA Resolution Authority and agrees and consents    to, and acknowledges and agrees to be bound by:        (a)   the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Bank that is an EEA Financial Institution; and        (b)   the effects of any Bail-in Action on any such liability, including, if applicable:              (i)   a reduction in full or in part or cancellation of any such liability;              (ii)  a conversion of all, or a portion of, such liability into shares or other       instruments of ownership in such EEA Financial Institution, its parent undertaking, or a       bridge institution that may be issued to it or otherwise conferred on it, and that such       shares or other instruments of ownership will be accepted by it in lieu of any rights with       respect to any such liability under this Agreement or any other Credit Document; or              (iii) the variation of the terms of such liability in connection with the exercise       of the write-down and conversion powers of any EEA Resolution Authority.           Section 10.21.Acknowledgement Regarding Any Supported QFCs.  To the extent that     the Credit Documents provide support, through a guarantee or otherwise, for any Swap     Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit     Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as     follows with respect to the resolution power of the Federal Deposit Insurance Corporation     under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform     and Consumer Protection Act (together with the regulations promulgated thereunder, the     “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit     Support (with the provisions below applicable notwithstanding that the Loan Documents and     any Supported QFC may in fact be stated to be governed by the laws of the State of New     York and/or of the United States or any other state of the United States):         (a)   In the event a Covered Entity that is party to a Supported QFC (each, a “Covered  Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of  such Supported QFC and the benefit of such QFC Credit Support (and any interest and  obligation in or under such Supported QFC and such QFC Credit Support, and any rights in  property securing such Supported QFC or such QFC Credit Support) from such Covered Party  will be effective to the same extent as the transfer would be effective under the U.S. Special  Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,                                         91  122723226_17





 






obligation and rights in property) were governed by the laws of the United States or a state of the  United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes  subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan  Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that  may be exercised against such Covered Party are permitted to be exercised to no greater extent  than such Default Rights could be exercised under the U.S. Special Resolution Regime if the  Supported QFC and the Loan Documents were governed by the laws of the United States or a  state of the United States. Without limitation of the foregoing, it is understood and agreed that  rights and remedies of the parties with respect to a Defaulting Bank shall in no event affect the  rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.          (b)   As used in this Section 10.21, the following terms have the following meanings:              “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined        under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.              “Covered Entity” means any of the following:  (i) a “covered entity” as that term        is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered        bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);        or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12        C.F.R. § 382.2(b).              “Default Right” has the meaning assigned to that term in, and shall be interpreted        in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.              “QFC” has the meaning assigned to the term “qualified financial contract” in, and        shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).                  [The balance of this page has been intentionally left blank.]                                         92  122723226_17





 






      IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.                                      BORROWER:                                      BRINKER INTERNATIONAL, INC.                                      By:__________________________                                     Name:                                     Title:                                      GUARANTORS:                                      BRINKER RESTAURANT CORPORATION                                      By:__________________________                                     Name:                                     Title:                                      BRINKER FLORIDA, INC.                                      By:__________________________                                     Name:                                     Title:                                      BRINKER TEXAS, INC.                                      By:__________________________                                     Name:                                     Title:                                      BRINKER INTERNATIONAL PAYROLL                                      COMPANY, L.P.                                      By:__________________________                                     Name:                                     Title:                                  Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                    ADMINISTRATIVE AGENT:                                      BANK OF AMERICA, N.A.                                      By:__________________________                                     Name:                                     Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                           BANKS:                                          BANK OF AMERICA, N.A.                                          By:__________________________                                        Name:                                        Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                                                 JPMORGAN CHASE BANK, N.A.                                                                    By:__________________________                                                                  Name:                                                                  Title:                                                        Brinker International, Inc.                                                          Credit Agreement                                                           Signature Page  122723226_17





 






                                                                 WELLS FARGO BANK, N.A.                                                                    By:__________________________                                                                  Name:                                                                  Title:                                                        Brinker International, Inc.                                                          Credit Agreement                                                           Signature Page  122723226_17





 






                                        THEMUFG BANK OF TOKYO-MITSUBISHI                                          UFJ, LTD.                                          By:__________________________                                         Name:                                         Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                                                 SUNTRUST BANK                                                                   By:__________________________                                                                  Name:                                                                  Title:                                                        Brinker International, Inc.                                                          Credit Agreement                                                           Signature Page  122723226_17





 






                                       U.S. BANK NATIONAL ASSOCIATION                                          By:__________________________                                        Name:                                        Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                                                 BARCLAYS BANK PLC                                                                   By:__________________________                                                                  Name:                                                                  Title:                                                        Brinker International, Inc.                                                          Credit Agreement                                                           Signature Page  122723226_17





 






                                                                 REGIONS BANK                                                                    By:__________________________                                                                  Name:                                                                  Title:                                                        Brinker International, Inc.                                                          Credit Agreement                                                           Signature Page  122723226_17





 






                                       COMPASSASSOCIATED BANK                                         NATIONAL ASSOCIATION                                         By:__________________________                                        Name:                                        Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                       GREENSTONE FARM CREDIT SERVICES,                                         ACAPNC BANK, NATIONAL                                         ASSOCIATION                                         By:__________________________                                        Name:                                        Title:                                   Brinker International, Inc.                                   Credit Agreement                                   Signature Page  122723226_17





 






                                 SCHEDULE I                BANK AND ADMINISTRATIVE AGENT ADDRESSES  ADMINISTRATIVE AGENT: (for payments and Requests for Advances):  BANK OF AMERICA, N.A. 101 North Tryon Street One Independence Center Mail Code: NC1-001-05-46 Charlotte, NC 28255-0001 Attention: Charles HensleyKatrina Burton  Telephone:  980/388.3225386.0987 Telecopy:   704/719.5362719.8950  (Other Notices as Administrative Agent -  for financial statements, compliance certificates, maturity extension and commitment change notices, etc):  Bank of America, N.A. Agency Management 900 West Trade Street Gateway Village Mail Code: NC1-026-06-03 Charlotte, NC 28255-0001 Attention: Erik TruetteKelly Weaver Email: erik.m.truette@baml.com              kelly.weaver@bofa.com Telephone: 980/387.5451 387.5452 Telecopy: 704/409.0015 208.2871                                   SCHEDULE I- 1  122766109_14





 






CO-SYNDICATION AGENTS:  JPMORGAN CHASE BANK, N.A. 10 South Dearborn Street, 10th Floor Mail Code: IL1-0010 Chicago, Illinois 60603 Attn: Non-Agented Servicing Team  Telephone: 312/385-7072 Telecopy:  312/256-2608  WELLS FARGO BANK, N.A.  1808 Aston Avenue, #250 Carlsbad, CA 92008 Attn: Denise Crouch  Telephone: 760/918-2700 Telecopy:  866/968/1299                                   SCHEDULE I- 2  122766109_14





 






BANKS:  BANK OF AMERICA, N.A. Agency Management 101 South Tryon Street Bank of America Plaza Mail Code: NC1-002-15-36 Charlotte, NC 28255-0001 Attention: Erik Truette  Telephone: 980/387.5451 Telecopy: 704/409.0015  JPMORGAN CHASE BANK, N.A. 10 South Dearborn Street, 10th Floor Mail Code: IL1-0010 Chicago, IL 60603 Attn: Non-Agented Servicing Team  Telephone: 312/385-7072 Telecopy:  312/256-2608  WELLS FARGO BANK, N.A. 1808 Aston Avenue, #250 Carlsbad, CA 92008 Attn: Denise Crouch  Telephone: 760/918-2700 Telecopy:  866/968/1299  THEMUFG BANK OF TOKYO-MITSUBISHI UFJ, LTD. 1251 Avenue of the Americas New York, NY 10020 Attn: Rolando Uy  Telephone: 201/413-8570 Telecopy:  201/521-2338  SUNTRUST BANK 200 Crescent Court, Suite 850 Dallas, TX 75201 Attn: Justin Lien  Telephone: 214/880-0104 Telecopy:  214/468-9218                                  SCHEDULE I- 1  122766109_14





 






US BANK NATIONAL ASSOCIATION 400 City Center Oshkosh, WI 54901 Attn: Wendee Hable  Telephone: 920/237-7367 Telecopy:  920/237-7993  BARCLAYS BANK PLC 745 7TH Avenue, 25th Floor New York, NY 10019 Attn: Nicholas Guzzardo  Telephone: 212/320-6759 Telecopy:  212/526-5115  REGIONS BANK 201 Milan Parkway Birmingham, AL 35211 Attn: Moronica Fortner  Telephone: 205/420-7726 Telecopy:  205/261-7069  COMPASS ASSOCIATED BANK NATIONAL ASSOCIATION 8080 N.Central Expwy5950 Sherry Lane, Suite 120450 Dallas, TX 75206 75225 Attn: Christina WhitlockDean H. Rosencrans  Telephone:  469/886-6655  PNC BANK, NATIONAL ASSOCIATION 200 Crescent Court, Suite 400 Dallas, TX 75201 Attn: R. Ruining Nguyen  Telephone: 214/346-2780871-1232 Telecopy:   866/984/8668  GREENSTONE FARM CREDIT SERVICES, ACA 1760 Abbey Road                                  SCHEDULE I- 2  122766109_14





 






East Lansing, MI 48823 Attn: Amber Selle  Telephone:  517/324-0211 Telecopy:   517/318-1240                                   SCHEDULE I- 3  122766109_14





 






                                SCHEDULE II                   BORROWER AND GUARANTOR ADDRESSES  BORROWER:  BRINKER INTERNATIONAL, INC. 6820 LBJ Freeway Dallas, Texas  75240  Attn: General Counsel Telephone: 972/980-9917 Telecopy:  972/770-9465  Copy to:    Chief Financial Officer Telephone: 972/980-9917 Telecopy:  972/628-8722  GUARANTORS:  BRINKER RESTAURANT CORPORATION BRINKER FLORIDA, INC. BRINKER TEXAS, INC. BRINKER INTERNATIONAL PAYROLL COMPANY, L.P.  6820 LBJ Freeway Dallas, Texas  75240  Attn:       General Counsel Telephone: 972/980-9917 Telecopy:  972/770-9465  Copy to:    Chief Financial Officer Telephone: 972/980-9917 Telecopy:  972/628-8722                                  SCHEDULE II- 1  122766109_14





 






                                   SCHEDULE III                                   PERMITTED LIENS           Subsidiary                Amount          Description          Maturity Brinker Restaurant Corporation   $37,532,426      Liens on assets  Various dates through (consolidated) (includes $838,869                 acquired with           2031 for Brinker Texas, Inc. and                         respect to $69,961 for Brinker Florida, Inc.)              Capitalized Lease                                                    Obligations                                      SCHEDULE III- 1   122766109_14





 






                                SCHEDULE IV   AGREEMENTS RESTRICTING DIVIDENDS, CERTAIN TRANSFERS AND LIENS                                      None.                                  SCHEDULE IV- 1  122766109_14





 






                                SCHEDULE V                               GAAP EXCEPTIONS                                       None.                                  SCHEDULE V- 1  122766109_14





 






                                    SCHEDULE VI                                     INVESTMENTS            Company                    Amount                      Description   Las Nuevas Delicias  Gastronomicas, S. De R.L. De                           Mexico joint venture with CMR,  C.V.                            $10,257,169.00                S.A.B. de C.V.                                                         Investment in Merchant Customer  Merchant Customer Exchange          $0.00                        Exchange                                      SCHEDULE VI- 1  122766109_14





 






                                   SCHEDULE VII                                   PERMITTED DEBT                           Description                                   Amount      2.60% Notes due 2018 pursuant to the Indenture dated     April 30, 2013, between Brinker International, Inc. and  $250,000,000     Wilmington Trust, National Association, as Trustee     3.875% Notes due 2023 pursuant to the Indenture dated     April 30, 2013, between Brinker International, Inc. and  $300,000,000     Wilmington Trust, National Association, as Trustee     Capitalized Lease Obligations of Brinker Restaurant     Corporation (consolidated) (includes $838,869 for Brinker                                                              $37,532,426     Texas, Inc. and $69,961 for Brinker Florida, Inc.) with     various maturity dates through 2031     Undrawn standby letters of credits                       $28,087,303                                     SCHEDULE VII- 1 122766109_4





 






                               SCHEDULE VIII                                 COMMITMENTS                                     Tranche A       Tranche A-1 Commitment              Bank                 Commitment Bank of America, N.A.                  -                $160,000,000.00 JPMorgan Chase Bank, N.A.              -                $160,000,000.00 Wells Fargo Bank, N.A.National         - Association                                             $160,000,000.00 TheMUFG Bank                 of        - Tokyo-Mitsubishi UFJ, Ltd.                              $125,000,000.00 SunTrust Bank                          -          $110,000,000.00140,000,000.00 U.S. Bank National Association         -                $  75,000,000.00 Barclays Bank PLC                      -                $  50,000,000.00 Regions Bank                           -                $  50,000,000.00 CompassPNC Bank, National                               -$  50,000,000.00 Association                      $  85,555,555.56 GreenStone Farm Credit                                  -$  30,000,000.00 ServicesAssociated        Bank, ACANational Association          $  24,444,444.44 Total                            $110,000,000.00 $890,000,000.001,000,000,000.00                                 SCHEDULE VIII- 1  122766109_14





 






                                 EXHIBIT A-1                          FORM OF TRANCHE A NOTE  U.S. $________                               Dated:        __________, 20____        FOR VALUE RECEIVED, the undersigned, Brinker International, Inc., a Delaware corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of ___________ (the “Tranche A Bank”) or its registered assigns, for the account of its Applicable Lending Office (as defined in the Credit Agreement referred to below) or any other office designated by the Tranche  A Bank, the principal amount of each Tranche A Advance (as defined below) made by the Tranche A Bank to the Borrower pursuant to the Credit Agreement on the date such Tranche A  Advance is due and payable as set forth in the Credit Agreement.        The Borrower promises to pay interest on the unpaid principal amount of each Tranche A  Advance from the date of such Tranche A Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.        The Borrower further promises to pay interest, on demand, on any overdue principal and, to the extent permitted by applicable law, overdue interest from their due dates at such interest rates as are specified in the Credit Agreement.        Both principal and interest are payable in lawful money of the United States of America to Bank of America, N.A., as Administrative Agent, at the Administrative Agent’s Office (as defined in the Credit Agreement referred to below), in same day funds.  Each Tranche A Advance made by the Tranche A Bank to the Borrower and the maturity thereof, and all payments made on account of principal thereof and interest thereon and the respective dates thereof, shall be recorded by the Tranche A Bank and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Tranche A Note; provided, however, that failure of the Tranche A Bank to make such notation or any error therein shall not in any manner affect the obligations of the Borrower under this Tranche A Note or the Credit Agreement.        This Tranche A Note is one of the Notes referred to in, and is subject to and entitled to the benefits of, the Credit Agreement, dated as of March 12, 2015 (as amended and as itby the  First Amendment to Credit Agreement dated as of November 13, 2015, the Second Amendment  to Credit Agreement dated as of September 13, 2016, the Third Amendment to Credit Agreement  dated as of April 30, 2018 and the Fourth Amendment to Credit Agreement dated as of  November [●], 2019, and as the same may be further amended, amended and restated, restated, supplemented or modified from time to time in accordance with its terms, the “Credit  Agreement”), among the Borrower, Brinker Restaurant Corporation, a Delaware corporation,  Brinker Florida, Inc., a Delaware corporation, Brinker Texas, Inc., a Delaware corporation, each  as a Guarantor, the Tranche Athe Guarantors party thereto, the Bank and certain other banks parties thereto and Bank of America, N.A., as Administrative Agent for the Tranche A Bank and all such other banks.  The Credit Agreement, among other things, (a) provides for the making of revolving credit advances (the “Tranche A Advances”) by the Tranche A Bank to the Borrower from time to time pursuant to Section 2.01(b) of the Credit Agreement in an aggregate outstanding principal amount not to exceed at any time the U.S. dollar amount first above                                             A-1 122764007_3





 






mentioned and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.  Capitalized terms used herein which are not defined herein and are defined in the Credit Agreement are used herein as therein defined.        The Borrower hereby waives presentment for payment, notice of nonpayment, demand, protest, notice of protest, notice of dishonor, notice of intent to accelerate, notice of acceleration and any other notice of any kind, except as provided in the Credit Agreement.  No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.        This Tranche A Note and the Tranche A Advances evidenced hereby may be transferred in whole or in part only by registration of such transfer on the Register maintained for such purpose by or on behalf of the undersigned as provided in Section 10.06(c) of the Credit Agreement.        This Tranche A Note shall be governed by, and construed in accordance with, the laws of the State of Texas (except that Chapter 346 of the Texas Finance Code, which regulates certain revolving credit loan accounts, shall not apply to this Tranche A Note).                      [Remainder of Page Intentionally Left Blank]                                       A-1- 2  122764007_13





 






                                    BRINKER INTERNATIONAL, INC.                                      By:________________________________                                     Name: _____________________________                                     Title: ______________________________                                       A-1- 3  122764007_13





 






                    TRANCHE A ADVANCES, MATURITIES                 AND PAYMENTS OF PRINCIPAL AND INTEREST                          Rate of           Amount and    Interest   Amount of             Type of    Applicable   Principal  Amount of     Unpaid Borrowing  Tranche A  to Tranche A  Paid or    Interest Paid Principal Notation   Date      Advance     Advance     Prepaid    or Prepaid   Balance   Made By                                       A-1- 4  122764007_13





 






                                EXHIBIT A-2                         FORM OF TRANCHE A-1 NOTE  U.S. $________                               Dated:        __________, 20____        FOR VALUE RECEIVED, the undersigned, Brinker International, Inc., a Delaware  corporation (the “Borrower”), HEREBY PROMISES TO PAY to the order of ___________ (the  “Tranche A-1 Bank”) or its registered assigns, for the account of its Applicable Lending Office  (as defined in the Credit Agreement referred to below) or any other office designated by the  Tranche A-1 Bank, the principal amount of each Tranche A-1 Advance (as defined below) made  by the Tranche A-1 Bank to the Borrower pursuant to the Credit Agreement on the date such  Tranche A-1 Advance is due and payable as set forth in the Credit Agreement.        The Borrower promises to pay interest on the unpaid principal amount of each Tranche  A-1 Advance from the date of such Tranche A-1 Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.        The Borrower further promises to pay interest, on demand, on any overdue principal and,  to the extent permitted by applicable law, overdue interest from their due dates at such interest  rates as are specified in the Credit Agreement.        Both principal and interest are payable in lawful money of the United States of America  to Bank of America, N.A., as Administrative Agent, at the Administrative Agent’s Office (as  defined in the Credit Agreement referred to below), in same day funds.  Each Tranche A-1  Advance made by the Tranche A-1 Bank to the Borrower and the maturity thereof, and all  payments made on account of principal thereof and interest thereon and the respective dates  thereof, shall be recorded by the Tranche A-1 Bank and, prior to any transfer hereof, endorsed on  the grid attached hereto which is part of this Tranche A-1 Note; provided, however, that failure  of the Tranche A-1 Bank to make such notation or any error therein shall not in any manner  affect the obligations of the Borrower under this Tranche A-1 Note or the Credit Agreement.        This Tranche A-1 Note is one of the Notes referred to in, and is subject to and entitled to  the benefits of, the Credit Agreement, dated as of March 12, 2015 (as amended and as it may be  further amended, amended and restated, restated, supplemented or modified from time to time in  accordance with its terms, the “Credit Agreement”), among the Borrower, Brinker Restaurant  Corporation, a Delaware corporation, Brinker Florida, Inc., a Delaware corporation, Brinker  Texas, Inc., a Delaware corporation, each as a Guarantor, the Tranche A-1 Bank and certain  other banks parties thereto and Bank of America, N.A., as Administrative Agent for the Tranche  A-1 Bank and all such other banks.  The Credit Agreement, among other things, (a) provides for the making of revolving credit advances (the “Tranche A-1 Advances”) by the Tranche A-1  Bank to the Borrower from time to time pursuant to Section 2.01(b) of the Credit Agreement in  an aggregate outstanding principal amount not to exceed at any time the U.S. dollar amount first  above mentioned and (b) contains provisions for acceleration of the maturity hereof upon the  happening of certain stated events and also for prepayments on account of principal hereof prior  to the maturity hereof upon the terms and conditions therein specified.  Capitalized terms used                                      A-2B- 1  122764007_13





 






herein which are not defined herein and are defined in the Credit Agreement are used herein as  therein defined.        If the Tranche A-1 Bank was a party to the Existing Credit Agreement this Tranche A-1  Note amends and restates any promissory note executed and delivered by the Borrower in favor  of the Tranche A-1 Bank in connection with such Existing Credit Agreement (the “Original  Note”). This Tranche A-1 Note amends and restates, and is given as a substitution of, the  Original Note. This Tranche A-1 Note is not intended to constitute, nor shall it constitute, an  interruption, suspension of continuity, satisfaction, discharge of prior duties, payment, novation  or termination of the indebtedness, loans, liabilities, expenses or obligations represented by the  Original Note, and this Tranche A-1 Note is entitled to all of the rights and benefits originally  pertaining to the Original Note as such rights and benefits may have been amended as provided  in the Credit Agreement.        The Borrower hereby waives presentment for payment, notice of nonpayment, demand,  protest, notice of protest, notice of dishonor, notice of intent to accelerate, notice of acceleration  and any other notice of any kind, except as provided in the Credit Agreement.  No failure to  exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall  operate as a waiver of such rights.        This Tranche A-1 Note and the Tranche A-1 Advances evidenced hereby may be  transferred in whole or in part only by registration of such transfer on the Register maintained for  such purpose by or on behalf of the undersigned as provided in Section 10.06(c) of the Credit  Agreement.        This Tranche A-1 Note shall be governed by, and construed in accordance with, the laws  of the State of Texas (except that Chapter 346 of the Texas Finance Code, which regulates  certain revolving credit loan accounts, shall not apply to this Tranche A-1 Note).                      [Remainder of Page Intentionally Left Blank]                                      A-2B- 2  122764007_13





 






                                    BRINKER INTERNATIONAL, INC.                                      By:________________________________                                     Name: _____________________________                                     Title: ______________________________                                      A-2B- 3  122764007_13





 






                   TRANCHE A-1 ADVANCES, MATURITIES                AND PAYMENTS OF PRINCIPAL AND INTEREST                          Rate of            Amount and    Interest   Amount of              Type of    Applicable   Principal  Amount of     Unpaid  Borrowing Tranche A-1  to Tranche   Paid or    Interest Paid Principal Notation    Date      Advance   A-1 Advance   Prepaid    or Prepaid   Balance   Made By                                    EXHIBIT B                      FORM OF NOTICE OF BORROWING                                      [Date]                                     A-2B- 4  122764007_13





 






Bank of America, N.A., as Administrative Agent       for the Banks parties       to the Credit Agreement       referred to below 101 North Tryon Street One Independence Center Mail Code: NC1-001-05-46 Charlotte, NC 28255-0001 Attention: Charles HensleyKatrina Burton Telecopy:  (704-)719-53628950 Email:  charles.hensley@baml.comkburton2@bofa.com  Ladies and Gentlemen:        The undersigned, Brinker International, Inc., a Delaware corporation (the “Borrower”), refers to the Credit Agreement, dated as of March 12, 2015 (as amended and as it may be further amended, amended and restated, restated, supplemented or modified from time to time in accordance with its terms, the “Credit Agreement”; capitalized terms defined therein and not defined herein being used herein as therein defined), among the undersigned, Brinker Restaurant Corporation, a Delaware corporation, Brinker Florida, Inc., a Delaware corporation, and Brinker Texas, Inc., a Delaware corporation, Brinker International Payroll Company, L.P., a Delaware  limited partnership, each as a Guarantor, certain Banks parties thereto, and Bank of America, N.A., as Administrative Agent, and hereby gives you notice, irrevocably pursuant to Section 2.02 of the Credit Agreement, that the undersigned hereby requests a Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02 of the Credit Agreement:        A Borrowing of:                     Advances       Borrowing Date of Borrowing (which is a       Business Day)                       _______________________________       Aggregate Principal Amount of       Borrowing1                          _______________________________       Class of Advance                    [Tranche A Advance] [Tranche A-1                                            Advance]       Type of Advance                     [Eurodollar Rate Advance] [Base Rate                                           Advance]       For Eurodollar Rate Advances:       with an Interest Period of [1] [2] [3] [6]                                           months   1 For Advances: not less than $10,000,000 or greater than the unused Total Commitment and in integral   multiples of $1,000,000.                                      A-2B- 5  122764007_13





 






      The Borrower hereby requests that the proceeds of the Borrowing requested hereunder be remitted by the Administrative Agent to the following account of the Borrower:        Wire To:                            _______________________________       ABA:                                _______________________________       Account #:                          _______________________________       Account Location:                   _______________________________        The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:        (a)  the representations and warranties contained in Article V of the Credit Agreement are true and correct in all material respects on and as of the date of the Proposed Borrowing, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date and the representations and warranties contained in Section 5.04(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.02(c) of the Credit Agreement;        (b)  no event has occurred and is continuing, or would result from the Proposed Borrowing or from the application of the proceeds therefrom, which constitutes or with the giving of notice, the lapse of time or both, would constitute a Default; and        (c)  after giving effect to the Proposed Borrowing of Advances and all other Borrowings of Advances which have been requested on or prior to the date of the Proposed Borrowing of Advances but which have not been made prior to such date, the aggregate principal amount of Advances owing to any Bank will not exceed the Total Commitment of such Bank.                                      A-2B- 6  122764007_13





 






                                    Very truly yours,                                      BRINKER INTERNATIONAL, INC.                                      By:________________________________                                     Name: _____________________________                                     Title: ______________________________                                      A-2B- 7  122764007_13





 






                                  EXHIBIT C                             FORM OF ASSIGNMENT                         ASSIGNMENT AND ASSUMPTION               This Assignment and Assumption (this “Assignment and Assumption”) is dated  as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4  Capitalized  terms used but not defined herein shall have the meanings given to them in the Credit Agreement  identified below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.              For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the facility identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Bank)] [the respective Assignors (in their respective capacities as Banks])] against any Person, whether known or  unknown, arising under or in connection with the Credit Agreement, any other documents or  instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and  assignment is without recourse to [the][any] Assignor and, except as expressly provided in this  Assignment and Assumption, without representation or warranty by [the][any] Assignor.    1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single    Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors, choose the second    bracketed language.  2  For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single    Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees, choose the second bracketed    language.  3  Select as appropriate.  4  Include bracketed language if there are either multiple Assignors or multiple Assignees.                                       C- 1   122764007_13





 






      1.    Assignor[s]: ______________________________                          ______________________________        2.    Assignee[s]: ______________________________                          ______________________________             [if applicable, for each Assignee, indicate Affiliate of [identify Bank]]        3.    Borrower:   Brinker International, Inc.  4.    Administrative Agent: Bank of America, N.A., as the administrative agent under       the Credit Agreement  5.    Credit Agreement: Credit Agreement, dated as of March 12, 20152015, among       the Borrower, Brinker Restaurant Corporation, Brinker Florida, Inc., Brinker       Texas, Inc., Brinker International Payroll Company, L.P., a Delaware limited        partnership, each as a Guarantor, the Banks from time to time party thereto, and       the Administrative Agent, as amended and as it may be further amended,       amended and restated, restated, supplemented or modified from time to time in       accordance with its terms.        6.    Assigned Interest:                               Aggregate Aggregate  ClassAmo  Percentage                              Amount    Amount of    unt of   Assigned                    Facility     of     Commitm   Commitme       of     CUSIP Assignor Assignee Assigned7  Commitm     ents/      nts/     Commitm   Num   [s]5     [s]6                ents    Advances   Advances     ents/    ber                               for all  Assignedf  Assigned  Advances9                               Banks8     or all                 8                                         Banks7                    ________   $_______  $_______  $_________  ________                     ____       ___        ___                  __%                   ________   $_______  $_______  $_________  ________                     ____       ___        ___                  __%                   ________   $_______  $_______  $_________  ________                     ____       ___        ___                  __%  5  List each Assignor, as appropriate. 6 List each Assignee, as appropriate. 7   List each Class of Advance assigned, as appropriate  8 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into   account any payments or prepayments made between the Trade Date and the Effective Date. 7 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into   account any payments or prepayments made between the Trade Date and the Effective Date. 98  Set forth, to at least 9 decimals, as a percentage of the Commitment/Advances of all Banks thereunder.                                      C- 2  122764007_13





 






      [7.   Trade Date: __________________]109        Effective Date:  __________________, 20__ [TO BE INSERTED BY       ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE       DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]        The terms set forth in this Assignment and Assumption are hereby agreed to:                                            ASSIGNOR                                           [NAME OF ASSIGNOR]                                            By:  _____________________________                                                 Name:                                                 Title:                                            ASSIGNEE                                           [NAME OF ASSIGNEE]                                            By:  _____________________________                                                 Name:                                                 Title:       Accepted:        BANK OF AMERICA, N.A., as         Administrative Agent        By:   _________________________________             Name:             Title:        [Consented to:]1110        BRINKER INTERNATIONAL, INC.        By:   _________________________________             Name:             Title:   109 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined    as of the Trade Date. 1110 To be added only if the consent of the Borrower is required pursuant to the terms of the Credit Agreement.                                      C- 3  122764007_13





 






                             ANNEX 1 TO ASSIGNMENT AND ASSUMPTION                     STANDARD TERMS AND CONDITIONS FOR                         ASSIGNMENT AND ASSUMPTION   1.    Representations and Warranties.   1.1.  Assignor.  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and  beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is  free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and  Assumption and to consummate the transactions contemplated hereby; and (b) assumes no  responsibility with respect to (i) any statements, warranties or representations made in or in  connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality,  validity, enforceability, genuineness, sufficiency or value of the Credit Documents or any  collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the  performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other  Person of any of their respective obligations under any Credit Document.   1.2.  Assignee.  [The][Each] Assignee (a) represents and warrants that (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and  Assumption and to consummate the transactions contemplated hereby and to become a Bank  under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section   10.06 of the Credit Agreement (subject to such consents, if any, as may be required thereunder),  (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit  Agreement as a Bank thereunder and, to the extent of [the][the relevant] Assigned Interest, shall  have the obligations of a Bank thereunder, (iv) it is sophisticated with respect to decisions to  acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.02(c) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Non-U.S. Bank, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Bank.                                       C- 4   122764007_13





 






 2.    Payments.  From and after the Effective Date, the Administrative Agent shall make all  payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.  3.     General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of Texas.                                         C- 5   122764007_13





 






                                  EXHIBIT D   FORM OF LEGAL OPINION OF BORROWER’S AND GUARANTOR’S COUNSEL                                  September 13, 2016   To each of the Banks as defined in  the Credit Agreement herein described  and to Bank of America, N.A., as Administrative Agent   Ladies and Gentlemen:               This opinion is furnished to you pursuant to § 3(a)(iv) of the Second Amendment  to Credit Agreement dated as of September 13, 2016 (the “Amendment”) among (i) Brinker  International, Inc., a Delaware corporation, as borrower (the “Borrower”), (ii) Brinker  Restaurant Corporation, a Delaware corporation (“Brinker Restaurant”), Brinker Florida, Inc., a  Delaware corporation (“Brinker Florida”), and Brinker Texas, Inc., a Delaware corporation  (“Brinker Texas” and together with Brinker Restaurant and Brinker Florida, each a “Guarantor”  and together the “Guarantors”) as guarantors, and (iii) the banks party thereto (the “Banks”), and Bank of America, N.A., as Administrative Agent for the Banks (in such capacity, the “Administrative Agent”) which amends the Borrower’s Credit Agreement dated as of March 12,  2015 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing   Credit Agreement”), pursuant to which the Existing Banks have made available to the Borrower  a revolving credit facility (the Existing Credit Agreement as so amended by the Amendment, the  “Amended Credit Agreement”).  Capitalized terms defined in the Amended Credit Agreement  are used herein with the same meaning unless otherwise defined herein.                             DOCUMENTS EXAMINED               In our capacity as special counsel for the Borrower and the Guarantors, we have  examined the originals, copies or forms, certified or otherwise identified to our satisfaction, of  the following documents (items (i) and (ii) below, the “Documents”):         (i)   The Amended Credit Agreement;        (ii)   The Notes issued on the date hereof, if any (the “Notes”);        (iii)  Certificate of Incorporation of the Borrower as filed with the Secretary of State of  Delaware on September 30, 1983, and all amendments thereto through the date hereof (the  “Borrower Certificate of Incorporation”);        (iv)   Certificate of Incorporation of Brinker Restaurant as filed with the Secretary of State of Delaware on June 29, 1990, and all amendments thereto through the date hereof (the “Brinker Restaurant Certificate of Incorporation”);                                         D- 1  16771276v.5  122764007_13





 






      (v)    Certificate of Incorporation of Brinker Florida as filed with the Secretary of State of Delaware on September 10, 1990, and all amendments thereto through the date hereof (the  “Brinker Florida Certificate of Incorporation”);        (vi)   Certificate of Incorporation of Brinker Texas as filed with the Secretary of State of Delaware on December 21, 2006, and all amendments thereto through the date hereof (the “Brinker Texas Certificate of Incorporation” and together with the Brinker Restaurant Certificate  of Incorporation and the Brinker Florida Certificate of Incorporation, the “Guarantors   Certificates of Incorporation“);       (vii)   Bylaws of the Borrower (the “Borrower Bylaws”);       (viii)  Bylaws of each of the Guarantors (the “Guarantors Bylaws”); and        (ix)   The certificates (including attachments) delivered to the Administrative Agent  pursuant to § 3.01 of the Amended Credit Agreement.               In addition, we have examined and relied upon such certificates of public officials  and other certificates, opinions and instruments as we have deemed relevant and necessary as a  basis for our opinion hereinafter set forth.  As to matters of fact material to our opinion, we have,  when relevant facts were not independently established, relied upon certificates of  representatives of the Borrower and the Guarantors and upon representations and warranties set  forth in the Amended Credit Agreement, and have not conducted any special inquiry or investigation in respect of such matters.              As used herein, (i) “Disclosed” means disclosed in the Amended Credit  Agreement or the SEC Filings of the Borrower filed with the SEC prior to the date hereof and  (ii) “Knowledge” means the current, actual knowledge of the attorneys of this firm who are  involved in the representation of the Borrower and the Guarantors in connection with the  transactions contemplated by the Amended Credit Agreement, without any independent  investigation.                                  ASSUMPTIONS               In rendering this opinion, we have assumed, with your consent and without any  independent investigation, all of the following:               (A)   the genuineness of all signatures (other than those of the officers of the  Borrower and each of the Guarantors who executed the Amended Credit Agreement and the  Notes), the authenticity of all documents submitted to us as originals and the conformity to  authentic original documents of all documents submitted as certified, conformed or photostatic  copies;               (B)   that each of the parties to the Documents other than the Borrower and the  Guarantors (the “Other Parties”) is duly organized, validly existing and in good standing under  the laws of its jurisdiction of incorporation or formation and has full power and authority to  execute, deliver and perform its obligations under each of the Documents to which it is a party,                                        D- 2   122764007_13





 






 that each of the Documents has been duly authorized, executed and delivered by each of the  Other Parties thereto, that each of the Documents constitutes a valid and legally binding obligation of each of the Other Parties thereto and is enforceable against the Other Parties in accordance with its terms, that each of the Other Parties has fulfilled and complied with its obligations under the Documents to the extent required thereunder to date, and that the Borrower and the Guarantors have received or will concurrently herewith receive the consideration provided in the Documents to be received at or prior to the date hereof;              (C)    that all of the Documents will be performed strictly in accordance with the terms thereof; and              (D)    that the representations and warranties as to factual matters contained in the Documents are true and correct.                                     OPINION              Based upon the foregoing and having due regard for the legal considerations we  deem relevant, and subject to the further qualifications and limitations hereinafter set forth, we are of the opinion that:              1.     Each of the Borrower and the Guarantors is a corporation validly existing and in good standing under the Delaware General Corporation Law, as amended (the “DGCL”),  and has the corporate power and authority under the DGCL to enter into and perform the  Amended Credit Agreement and the Notes.               2.    The execution and delivery by the Borrower of each of the Amended  Credit Agreement and the Notes issued on the date hereof and the performance by the Borrower  of its obligations thereunder have been duly and validly authorized by all necessary corporate  action of the Borrower; each of the Amended Credit Agreement and the Notes issued on the date  hereof has been duly executed and delivered by the Borrower; and each of the Amended Credit  Agreement and the Notes issued on the date hereof constitutes a valid and binding obligation of  the Borrower enforceable against the Borrower in accordance with its terms, in each case except  as enforcement of the Amended Credit Agreement or the Notes may be limited by applicable  bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer, moratorium or other  laws affecting creditors’ rights generally, and subject to general equity principles and to  limitations on availability of equitable relief, including specific performance.               3.    The execution and delivery by the Guarantors of the Amended Credit  Agreement and the performance by the Guarantors of their respective obligations thereunder  have been duly and validly authorized by all necessary corporate actions of the Guarantors; the  Amended Credit Agreement has been duly executed and delivered by the Guarantors; and the  Amended Credit Agreement constitutes a valid and binding obligation of the Guarantors  enforceable against the Guarantors in accordance with its terms, except as enforcement may be  limited by applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer,  moratorium or other laws affecting creditors’ rights generally, and subject to general equity  principles and to limitations on availability of equitable relief, including specific performance.                                         D- 3   122764007_13





 






            4.    Neither the execution and delivery of the Amended Credit Agreement or the Notes issued on the date hereof nor the consummation of the transactions contemplated therein will violate any provision of the Borrower Certificate of Incorporation, any of the Guarantors Certificates of Incorporation, the Borrower Bylaws or any of the Guarantors Bylaws, or to our Knowledge, conflict with or violate any statute, judgment, order, decree or regulation or rule of any court, governmental authority or arbitrator applicable or relating to the Borrower or any of the Guarantors.              5.    To our Knowledge and except as Disclosed, there are  no actions, suits, proceedings or claims or investigations pending or threatened against or affecting the Borrower or any of the Guarantors or any of their respective properties before any court, governmental agency or regulatory authority which would (i) have a Material Adverse Effect or (ii) impair the ability of the Borrower or the Guarantors to perform their obligations under the Amended Credit Agreement or the Notes issued on the date hereof.              6.    Neither the Borrower nor any of the Guarantors is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.                 FURTHER QUALIFICATIONS AND LIMITATIONS              The opinions expressed above are expressly subject to the following qualifications and limitations:              (a)  We express no opinion as to (i) the specific remedy that any court or other authority or body might grant in connection with the enforcement of rights under any of the Documents, as to the availability of equitable remedies, as such, in connection with the enforcement of such rights, or as to the effects of the application of principles of equity (regardless of whether enforcement is considered in proceedings in law or in equity), (ii) the application of any securities laws to any of the transactions contemplated by any of the Documents, or (iii) the effect of any environmental, antitrust or tax laws of the United States of America or of the State of Texas.              (b)  We express no opinion as to the validity or enforceability of (i) any provisions purporting to entitle a party to indemnification or release from liability in respect of any matters arising in whole or in part by reason of any illegal, wrongful, knowing or negligent act or omission of such party, (ii) any provisions that purport to restrict access to or waive remedies or defenses, to waive any rights to notices or to establish evidentiary standards, (iii) any provisions relating to liquidated damages, set-offs, waivers, releases, suretyship defenses, delays or omissions of enforcement of rights or remedies, severability, consent judgments or summary proceedings, (iv) any provisions purporting to irrevocably appoint attorneys-in-fact or other agents, (v) any provisions purporting to restrict or limit transfer, alienation or encumbrancing of property, (vi) any provisions that relate to submissions to jurisdiction, waivers or ratifications of future acts, the rights of, third parties or transferability of assets which by their nature are nontransferable, (vii) provisions that contain any agreement to agree, or (viii) provisions that purport to negate or control over present or future laws which are contrary to such provisions.                                       D- 4  122764007_13





 






             (c)  To the extent that the opinions given in Sections 2, 3 and 4 constitute  opinions with respect to laws relating to usury, such opinions are expressly limited to the opinion  that the Amended Credit Agreement and the Notes do not require the payment of interest at a  rate which is usurious.  In rendering such opinion, we have relied upon and assumed the applicability of Chapter 303 of the Texas Finance Code, as currently in effect, and have assumed that (i) there are no fees, points or other charges or forms of compensation to the Administrative Agent, the Syndication Agent, or any Bank in respect of the Amended Credit Agreement or the issuance of the Notes or any commitment to pay any such charges or other forms of compensation, other than those specifically disclosed in the Amended Credit Agreement, the Commitment Letter, the Bank of America Fee Letter, the JPMCB Fee Letter, the Wells Fargo Fee Letter and the Upfront Fee Letter, (ii) all fees and charges provided for in the Amended Credit Agreement, the Commitment Letter, the Bank of America Fee Letter, the JPMCB Fee Letter, the Wells Fargo Fee Letter and the Upfront Fee Letter to be paid by Borrower or the Guarantors to the Administrative Agent, Joint Lead Arrangers and Book Runners, the Syndication Agents or any Bank constitute bona fide commitment fees, arrangement fees, or administrative agent’s fees, as applicable, and not interest, (iii) all charges for reimbursement of services paid to third parties will be for actual out-of-pocket expenses paid to third parties for services actually rendered by such parties, (iv) the Administrative Agent, the Syndication Agent, the Banks, the Borrower and the Guarantors will comply with the “usury savings clause” and other provisions of the Amended Credit Agreement to the effect that the Borrower and the Guarantors will never be required to pay interest (including all compensation that constitutes  interest under applicable law) on the Notes or otherwise in respect of the Amended Credit  Agreement in excess of the maximum rate or amount of interest that may lawfully be contracted  for, charged or collected thereon or in connection therewith under applicable Texas law  (collectively, the “Savings Clauses”), and (v) in complying with the provisions of the Saving  Clauses, the Administrative Agent, the Syndication Agent and such Bank will give due  consideration to all fees, charges or other compensation which under applicable Texas law may  be or is deemed to be interest.               (d)  We are members of the Bar of the State of Texas. This opinion relates  only to the Federal laws of the United States of America, the laws of the State of Texas and the  DGCL as currently in effect, and we express no opinion with regard to any matters that may be governed or affected by any other laws.              (e)   This opinion is limited solely to the matters stated herein and no opinion is  to be inferred or may be implied beyond the matters expressly stated herein.               The opinions expressed herein are solely for the benefit of you and your counsel  in connection with the transactions contemplated by the Amended Credit Agreement and may  not be used or relied upon by any other person or entity or for any other purpose whatsoever.  The opinions expressed herein are as of the date first set forth above, and we do not assume or  undertake any responsibility or obligation to supplement or to update such opinions to reflect any  facts or circumstances which may hereafter come to our attention or any changes in the laws  which may hereafter occur.                                       Very truly yours,                                        D- 5   122764007_13





 






                                  EXHIBIT E                 FORM OF U.S. TAX COMPLIANCE CERTIFICATE         This certificate is delivered pursuant to Section 2.15(e) of the Credit Agreement, dated as  of March 12, 2015 (as amended and as it may be further amended, amended and restated,  restated, supplemented or modified from time to time in accordance with its terms, the “Credit   Agreement”) among BRINKER INTERNATIONAL, INC. (the “Borrower”), BRINKER  RESTAURANT CORPORATION, as a Guarantor, BRINKER FLORIDA, INC., as a Guarantor,  BRINKER TEXAS, INC., as a Guarantor,  the Banks party thereto and BANK OF AMERICA,  N.A., as Administrative Agent.  Capitalized terms defined in the Credit Agreement are used  herein with the same meaning unless otherwise defined herein.         The undersigned hereby represents and warrants to the Administrative Agent and the  Borrower that:         1.    the undersigned is the sole record and beneficial owner of the Advances or the  transactions evidenced by the Note(s), if any, registered in its name in respect of which it is  providing this certificate;         2.    the undersigned is not a bank (within the meaning of Section 881(c)(3)(A) of the  Code) and, in this regard, further represents and warrants that:               (a)  the undersigned is not subject to regulatory or other legal requirements as a        bank in any jurisdiction; and               (b)  the undersigned has not been treated as a bank for purposes of any tax,        securities law or other filing or submission made to any governmental authority, any        application made to a rating agency or qualification for any exemption from tax,        securities law or other legal requirements;         3.    the undersigned is not a 10-percent shareholder (within the meaning of Section  881(c)(3)(B) of the Code) of the Borrower;         4.    the income from the Advances or the transactions evidenced by the Note(s), if  any, held by the undersigned is not effectively connected with the conduct of a trade or business with the United States; and        5.     the undersigned is not a controlled foreign corporation related (within the meaning of Section 864(d)(4) of the Code) to the Borrower.        The undersigned has furnished you with a certificate of our non-U.S. person status on Internal Revenue Service Form W-8BEN.  By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall so inform the Administrative Agent and the Borrower in writing within thirty days of such change and (b) the undersigned shall furnish to the Administrative Agent and the Borrower a properly completed and currently effective certificate in either the calendar year in which payment is to be                                        E-1  122764007_3





 






made by the Borrower to the undersigned under the Credit Agreement, or in either of the two calendar years preceding such payment.        IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed as of ________ __, 20___.                                      [NAME OF BANK]                                      By:___________________                                       Name:                                       Title:                                       DE- 2  122764007_13





 






                                 EXHIBIT F                      FORM OF NOTICE OF PREPAYMENT                                                         Date:  ___________, _____11 Bank of America, N.A., as Administrative Agent       for the Banks parties       to the Credit Agreement       referred to below 101 North Tryon Street One Independence Center Mail Code: NC1-001-05-46 Charlotte, NC 28255-0001 Attention: Katrina Burton Telecopy:  (704)719-8950 Email: kburton2@bofa.com  Ladies and Gentlemen:        Reference is made to that certain Credit Agreement, dated as of March 12, 2015 (as  amended, restated, extended, supplemented or otherwise modified in writing from time to time,  the “Agreement;” the terms defined therein being used herein as therein defined), among Brinker  International, Inc., a Delaware corporation (the “Borrower”), the Guarantors from time to time  party thereto, the Banks from time to time party thereto, and Bank of America, N.A., as  Administrative Agent for such Banks.        The Borrower hereby requests to prepay1213:       Indicate:    Indicate:    Indicate:         For Eurodollar Rate        Applicable   Requested    Base Rate Advance Advances        Borrower     Amount       or                Indicate:         Name                      Eurodollar Rate   Interest Period (e.g. 1, 2,                                  Advance           3 or 6 month interest                                                    period)                                       BRINKER INTERNATIONAL, INC.  11 Note to Borrower.  All prepayments submitted under a single Notice of Prepayment must be   effective on the same date.  If multiple effective dates are needed, multiple Notice of Prepayment will   need to be prepared and signed. 12 Note to Borrower.  Complete a new row for each Borrowing being prepaid.  13 Note to Borrower. Scheduled payments and advances should only be processed by auto debit, wire   or to BAC’s ACH account (not check or cashier’s check).  Unscheduled payments should only be   received by wire or DDA transfers (not ACH or check or cashier’s check).                                      F-  1  122764007_3





 






                                    By:                                          Name:                                          Title:                                          F-  2  122764007_3