Exhibit 10.2


 


EXECUTION COPY


 


$375,000,000



CREDIT AGREEMENT



Dated as of May 3, 2006



Among



NPC INTERNATIONAL, INC.,

as Borrower,



NPC ACQUISITION HOLDINGS, LLC

and

THE OTHER GUARANTORS PARTY HERETO,

as Guarantors,



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, Collateral Agent and Issuing Bank,



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Syndication Agent,



BANK OF AMERICA, N.A. 

and, 

SUNTRUST BANK

as Co-Documentation Agents


 


and



THE LENDERS SIGNATORY HERETO












 


J.P. MORGAN SECURITIES INC. 

and


MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


as Joint
Lead Arrangers and Joint Bookrunners


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS AND ACCOUNTING MATTERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Certain Defined Terms

  	
  2

  
	
  Section 1.02

  	
  Accounting Terms; GAAP

  	
  36

  
	
  Section 1.03

  	
  Terms Generally

  	
  36

  
	
  Section 1.04

  	
  Resolution of Drafting Ambiguities

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  COMMITMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Loans and Letters of Credit

  	
  37

  
	
  Section 2.02

  	
  Borrowings, Continuations and Conversions,
  Letters of Credit

  	
  39

  
	
  Section 2.03

  	
  Letters of Credit

  	
  40

  
	
  Section 2.04

  	
  Changes of Commitments

  	
  45

  
	
  Section 2.05

  	
  Fees

  	
  45

  
	
  Section 2.06

  	
  Several Obligations

  	
  47

  
	
  Section 2.07

  	
  Notes

  	
  47

  
	
  Section 2.08

  	
  Prepayments

  	
  47

  
	
  Section 2.09

  	
  [RESERVED]

  	
  51

  
	
  Section 2.10

  	
  [RESERVED]

  	
  51

  
	
  Section 2.11

  	
  Lending Offices

  	
  51

  
	
  Section 2.12

  	
  Increase in Commitments

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  PAYMENTS OF PRINCIPAL AND INTEREST

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Repayment of Loans

  	
  53

  
	
  Section 3.02

  	
  Interest

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS;
  ETC.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payments

  	
  54

  
	
  Section 4.02

  	
  Pro Rata Treatment

  	
  55

  
	
  Section 4.03

  	
  Computations

  	
  55

  
	
  Section 4.04

  	
  Non-receipt of Funds by the Administrative
  Agent

  	
  56

  
	
  Section 4.05

  	
  Set-off, Sharing of Payments, Etc.

  	
  56

  
	
  Section 4.06

  	
  Taxes

  	
  57

  



 


i





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  CAPITAL ADEQUACY AND ADDITIONAL COSTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Alternate Rate of Interest

  	
  59

  
	
  Section 5.02

  	
  Increased Costs

  	
  60

  
	
  Section 5.03

  	
  Break Funding Payments

  	
  61

  
	
  Section 5.04

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Initial Funding

  	
  62

  
	
  Section 6.02

  	
  Initial and Subsequent Loans and Letters of
  Credit

  	
  68

  
	
  Section 6.03

  	
  Conditions Precedent for the Benefit of
  Lenders

  	
  68

  
	
  Section 6.04

  	
  No Waiver, Etc

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Corporate Existence

  	
  69

  
	
  Section 7.02

  	
  Financial Condition

  	
  69

  
	
  Section 7.03

  	
  Litigation

  	
  70

  
	
  Section 7.04

  	
  No Breach

  	
  70

  
	
  Section 7.05

  	
  Authority

  	
  70

  
	
  Section 7.06

  	
  Approvals

  	
  71

  
	
  Section 7.07

  	
  Use of Loans

  	
  71

  
	
  Section 7.08

  	
  ERISA

  	
  71

  
	
  Section 7.09

  	
  Taxes

  	
  72

  
	
  Section 7.10

  	
  Titles, Etc.

  	
  73

  
	
  Section 7.11

  	
  No Material Misstatements

  	
  74

  
	
  Section 7.12

  	
  Investment Company Act

  	
  74

  
	
  Section 7.13

  	
  Capital Securities and Subsidiaries

  	
  74

  
	
  Section 7.14

  	
  Labor Matters

  	
  75

  
	
  Section 7.15

  	
  Defaults

  	
  75

  
	
  Section 7.16

  	
  Environmental Matters

  	
  75

  
	
  Section 7.17

  	
  Compliance with the Law

  	
  76

  
	
  Section 7.18

  	
  Insurance

  	
  77

  
	
  Section 7.19

  	
  Restriction on Liens

  	
  77

  
	
  Section 7.20

  	
  Material Agreements

  	
  77

  
	
  Section 7.21

  	
  Solvency

  	
  77

  
	
  Section 7.22

  	
  Fiscal Year

  	
  78

  
	
  Section 7.23

  	
  Stockholders of Holdings

  	
  78

  
	
  Section 7.24

  	
  Intellectual Property

  	
  78

  
	
  Section 7.25

  	
  Security Instruments

  	
  78

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  Section 7.26

  	
  Acquisition Documents

  	
  79

  
	
  Section 7.27

  	
  [RESERVED]

  	
  80

  
	
  Section 7.28

  	
  Subordination of Senior Subordinated Notes

  	
  80

  
	
  Section 7.29

  	
  Franchise Agreements

  	
  80

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Reporting Requirements

  	
  80

  
	
  Section 8.02

  	
  Litigation and Other Notices

  	
  82

  
	
  Section 8.03

  	
  Maintenance, Etc.

  	
  83

  
	
  Section 8.04

  	
  Environmental Matters

  	
  84

  
	
  Section 8.05

  	
  Further Assurances

  	
  85

  
	
  Section 8.06

  	
  Performance of Obligations

  	
  85

  
	
  Section 8.07

  	
  ERISA Information and Compliance

  	
  85

  
	
  Section 8.08

  	
  Certain Agreements

  	
  86

  
	
  Section 8.09

  	
  Additional Collateral; Additional
  Guarantors

  	
  86

  
	
  Section 8.10

  	
  Taxes

  	
  88

  
	
  Section 8.11

  	
  Information Regarding Collateral

  	
  89

  
	
  Section 8.12

  	
  Interest Rate Protection

  	
  89

  
	
  Section 8.13

  	
  Post-Closing Collateral Matters

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Debt

  	
  92

  
	
  Section 9.02

  	
  Liens

  	
  93

  
	
  Section 9.03

  	
  Investments, Loans and Advances

  	
  94

  
	
  Section 9.04

  	
  Restricted Payments

  	
  96

  
	
  Section 9.05

  	
  Sale and Leaseback Transactions

  	
  97

  
	
  Section 9.06

  	
  Nature of Business; Franchises

  	
  97

  
	
  Section 9.07

  	
  [RESERVED]

  	
  97

  
	
  Section 9.08

  	
  Mergers and Consolidations

  	
  98

  
	
  Section 9.09

  	
  Proceeds of Loans; Letters of Credit

  	
  98

  
	
  Section 9.10

  	
  ERISA Compliance

  	
  99

  
	
  Section 9.11

  	
  [RESERVED]

  	
  100

  
	
  Section 9.12

  	
  Maximum Total Leverage Ratio

  	
  100

  
	
  Section 9.13

  	
  Minimum Interest Coverage Ratio

  	
  100

  
	
  Section 9.14

  	
  Limitation on Capital Expenditures

  	
  101

  
	
  Section 9.15

  	
  [RESERVED]

  	
  101

  
	
  Section 9.16

  	
  Asset Sales

  	
  101

  
	
  Section 9.17

  	
  Environmental Matters

  	
  102

  
	
  Section 9.18

  	
  Transactions with Affiliates

  	
  102

  
	
  Section 9.19

  	
  Subsidiaries

  	
  103

  



 


iii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 9.20

  	
  Negative Pledge Agreements, Etc.

  	
  103

  
	
  Section 9.21

  	
  Change of Fiscal Year

  	
  104

  
	
  Section 9.22

  	
  Acquisitions

  	
  104

  
	
  Section 9.23

  	
  Prepayments of Other Debt; Modifications of
  Organizational Documents and Other Documents, Etc

  	
  104

  
	
  Section 9.24

  	
  Limitation on Issuance of Capital
  Securities

  	
  105

  
	
  Section 9.25

  	
  Business

  	
  105

  
	
  Section 9.26

  	
  [RESERVED]

  	
  106

  
	
  Section 9.27

  	
  Embargoed Person

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT; REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Events of Default

  	
  106

  
	
  Section 10.02

  	
  Remedies

  	
  108

  
	
  Section 10.03

  	
  Application of Proceeds

  	
  109

  
	
  Section 10.04

  	
  Holdings’ Right to Cure

  	
  110

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
   

  
	
   

  	
   

  	
   

  
	
  THE ADMINISTRATIVE AGENT AND THE COLLATERAL
  AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
   

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Waiver

  	
  113

  
	
  Section 12.02

  	
  Notices

  	
  113

  
	
  Section 12.03

  	
  Payment of Expenses, Indemnities, Etc.

  	
  114

  
	
  Section 12.04

  	
  Waivers; Amendments

  	
  117

  
	
  Section 12.05

  	
  [RESERVED]

  	
  119

  
	
  Section 12.06

  	
  Successors and Assigns; Assignments and
  Participations

  	
  119

  
	
  Section 12.07

  	
  Invalidity

  	
  123

  
	
  Section 12.08

  	
  Counterparts

  	
  123

  
	
  Section 12.09

  	
  [RESERVED]

  	
  123

  
	
  Section 12.10

  	
  Survival

  	
  123

  
	
  Section 12.11

  	
  Captions

  	
  123

  
	
  Section 12.12

  	
  No Oral Agreements

  	
  123

  
	
  Section 12.13

  	
  Governing Law; Submission to Jurisdiction

  	
  124

  
	
  Section 12.14

  	
  Interest

  	
  125

  
	
  Section 12.15

  	
  Confidentiality

  	
  125

  
	
  Section 12.16

  	
  USA Patriot Act Notice

  	
  127

  
	
  Section 12.17

  	
  Obligations Absolute

  	
  127

  



 


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  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  The Guarantee

  	
  127

  
	
  Section 13.02

  	
  Obligations Unconditional

  	
  128

  
	
  Section 13.03

  	
  Reinstatement

  	
  129

  
	
  Section 13.04

  	
  Subrogation; Subordination

  	
  129

  
	
  Section 13.05

  	
  Remedies

  	
  130

  
	
  Section 13.06

  	
  Instrument for the Payment of Money

  	
  130

  
	
  Section 13.07

  	
  Continuing Guarantee

  	
  130

  
	
  Section 13.08

  	
  General Limitation on Guarantee Obligations

  	
  130

  
	
  Section 13.09

  	
  Release of Guarantors

  	
  130

  
	
  Section 13.10

  	
  Right of Contribution

  	
  131

  



 


v





















 


ANNEXES,
EXHIBITS AND SCHEDULES


 


	
  Annex I

  	
  -

  	
  List of Percentage Shares, Maximum
  Revolving Credit Amounts and Term Loans

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Administrative Questionnaire

  
	
  Exhibit B

  	
  -

  	
  Form of Assignment Agreement

  
	
  Exhibit C

  	
  -

  	
  Form of Compliance Certificate

  
	
  Exhibit D

  	
  -

  	
  Form of Intercompany Note

  
	
  Exhibit E

  	
  -

  	
  Form of Joinder Agreement

  
	
  Exhibit F

  	
  -

  	
  Form of Landlord Consent Agreement

  
	
  Exhibit G

  	
  -

  	
  Form of Mortgage

  
	
  Exhibit H-1

  	
  -

  	
  Form of Perfection Certificate

  
	
  Exhibit H-2

  	
  -

  	
  Form of Perfection Certificate
  Supplement

  
	
  Exhibit I-1

  	
  -

  	
  Form of Revolving Credit Note

  
	
  Exhibit I-2

  	
  -

  	
  Form of Term Note

  
	
  Exhibit I-3

  	
  -

  	
  Form of Swingline Note

  
	
  Exhibit J

  	
  -

  	
  Form of Security Agreement

  
	
  Exhibit K

  	
  -

  	
  List of Security Instruments

  
	
  Exhibit L

  	
  -

  	
  Form of Borrowing, Continuation and
  Conversion Request

  
	
  Exhibit M

  	
  -

  	
  Form of Legal Opinions

  
	
  Exhibit N

  	
  -

  	
  Form of Solvency Certificate

  
	
  Exhibit O

  	
  -

  	
  Form of Exemption Certificate

  
	
   

  	
   

  	
   

  
	
  Schedule 1.01(a)

  	
  -

  	
  Debt to Be Refinanced

  
	
  Schedule 1.01(b)

  	
  -

  	
  Existing Letters of Credit

  
	
  Schedule 1.01(c)

  	
  -

  	
  Certain Liens

  
	
  Schedule 3.01(b)

  	
  -

  	
  Amortization of Term Loans

  
	
  Schedule 6.01(l)

  	
  -

  	
  Local Counsel

  
	
  Schedule 7.02

  	
  -

  	
  Liabilities

  
	
  Schedule 7.03

  	
  -

  	
  Litigation

  
	
  Schedule 7.10

  	
  -

  	
  Titles, etc.

  
	
  Schedule 7.16

  	
  -

  	
  Environmental Matters

  
	
  Schedule 7.18

  	
  -

  	
  Insurance

  
	
  Schedule 7.20

  	
  -

  	
  Material Agreements

  
	
  Schedule 7.23

  	
  -

  	
  Stockholders of Holdings

  
	
  Schedule 9.01

  	
  -

  	
  Debt

  
	
  Schedule 9.02

  	
  -

  	
  Liens

  
	
  Schedule 9.03

  	
  -

  	
  Investments, Loans and Advances

  
					



 


vi





















 


THIS
CREDIT AGREEMENT dated as of May 3, 2006 is among
NPC INTERNATIONAL, INC., a
corporation formed under the laws of the State of Kansas (the “Borrower”);
NPC ACQUISITION HOLDINGS, LLC, a
limited liability company formed under the laws of the State of Delaware (“Holdings”);
the other Guarantors party hereto; each of the lenders that is a signatory
hereto or which becomes a signatory hereto as provided in Section 12.06
(individually, together with its successors and assigns, a “Lender” and,
collectively, the “Lenders”); MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, as syndication agent (in such
capacity, together with its successors, the “Syndication Agent”); BANK OF AMERICA, N.A. and SUNTRUST
BANK, as co-documentation agents (in such capacity, together with
their successors, the “Documentation Agents”); and JPMORGAN
CHASE BANK, N.A. (in its individual capacity, “JPMC”), as
administrative agent (in such capacity, together with its successors, the “Administrative
Agent”) and collateral agent (in such capacity, together with its
successors, the “Collateral Agent”) for the Secured Parties.


 


R E C I T
A L S


 


WHEREAS,
Holdings has entered into a stock purchase agreement, dated as of March 3,
2006 (as amended, supplemented or otherwise modified from time to time in
accordance with the provisions hereof and thereof, the “Acquisition
Agreement”), with O. Gene Bicknell, the Borrower and the stockholders of
the Borrower to acquire (potentially through Intermediate Holdco) the Borrower
(collectively, with the acquisition by Holdings, Intermediate Holdco and/or the
Borrower on the Closing Date of all Capital Securities of Hawk-Eye Pizza, LLC,
a Kansas limited liability company, the “Acquisition”).


 


WHEREAS, the
Refinancing, the Acquisition, the issuance of the Senior Subordinated Notes and
the Equity
Financing shall be consummated simultaneously herewith.


 


WHEREAS, the Borrower
has requested the Lenders to extend credit in the form of (a) Term
Loans on the Closing Date, in the aggregate principal amount of $300.0 million,
and (b) Revolving Credit Loans at any time and from time to time prior to
the Revolving Credit Termination Date, in an aggregate principal amount at any
time outstanding not in excess of $75.0 million, no more than $5.0 million of
which may be drawn on the Closing Date.


 


WHEREAS, the
Borrower has requested the Swingline Lender to make Swingline Loans, at any
time and from time to time prior to the Revolving Credit Termination Date, in
an aggregate principal amount at any time outstanding not in excess of $15.0 million.


 


WHEREAS, the
Borrower has requested the Issuing Bank to issue letters of credit, in an aggregate
face amount at any time outstanding not in excess of $30.0 million, to support
payment obligations incurred in the ordinary course of business by the Borrower
and its Subsidiaries.


 


WHEREAS, the
proceeds of the Loans are to be used in accordance with Section 7.07.


 


NOW,
THEREFORE, the Lenders are willing to extend such credit to the Borrower and
the Issuing Bank is willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein. Accordingly,
the parties hereto agree as follows:


 





















 


ARTICLE I


 


Definitions and Accounting Matters


 


Section 1.01                                Certain
Defined Terms. As used herein, the following terms shall have the following
meanings:


 


“Acquired
Fee-Owned Restaurant” shall mean a Restaurant acquired after the Closing
Date by the Borrower or any of its Subsidiaries if (i) immediately prior
to the consummation of such acquisition the owner of such Restaurant owns in
fee the Restaurant Location with respect thereto and (ii) such Restaurant
Location is acquired in such acquisition by the Borrower or any of its Subsidiaries.


 


“Acquisition”
shall have the meaning assigned to such term in the recitals hereto.


 


“Acquisition
Agreement” shall have the meaning assigned to such term in the recitals hereto.


 


“Acquisition
Consideration” shall mean the purchase consideration for any Permitted
Acquisition and all other payments by the Borrower or any of its Subsidiaries
to or for the account of the applicable seller in exchange for, or as part of,
or in connection with, any Permitted Acquisition, whether paid in cash or by
exchange of Capital Securities or of properties or otherwise and whether
payable at or prior to the consummation of such Permitted Acquisition or deferred
for payment at any future time, whether or not any such future payment is
subject to the occurrence of any contingency, and includes any and all payments
representing the purchase price and any assumptions of Debt, “earn-outs” and
other agreements to make any payment the amount of which is, or the terms of
payment of which are, in any respect subject to or contingent upon the
revenues, income, cash flow or profits (or the like) of any Person or business;
provided that any such future payment that is subject to a contingency
shall be considered Acquisition Consideration only to the extent of the
reserve, if any, required under GAAP at the time of such sale to be established
in respect thereof by the Borrower or any of its Subsidiaries.


 


“Acquisition
Documents” shall mean the collective reference to the Acquisition Agreement
and all exhibits, schedules and attachments thereto.


 


“Act”
shall have the meaning assigned to such term in Section 12.16.


 


“Administrative
Agent” shall have the meaning assigned to such term in the preamble hereto.


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in substantially
the form of Exhibit A.


 


“Affiliate”
of any Person shall mean (i) any Person directly or indirectly Controlled
by, Controlling or under common control with such first Person (excluding any
trustee under or any committee with responsibility for administering any Plan),
(ii) any director or officer of such first Person or of any Person
referred to in clause (i) above and (iii) if any Person in clause (i) above


 


2





















 


is an
individual, any member of the immediate family (including parents, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who
is controlled by any such member or trust. For purposes of this definition, any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of
a corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to “Control” (including, with its correlative meanings, “Controlled
by” and “under common Control with”) such corporation or other
Person.


 


“Agents”
shall mean the Administrative Agent and the Collateral Agent; and “Agent”
shall mean any of them.


 


“Aggregate
Commitments” at any time shall equal the sum of the Aggregate Maximum
Revolving Credit Amounts and the Aggregate Term Commitments.


 


“Aggregate
Maximum Revolving Credit Amounts” at any time shall equal the sum of the
Maximum Revolving Credit Amounts of the Revolving Credit Lenders. As of the
Closing Date, the Aggregate Maximum Revolving Credit Amounts equal $75.0
million.


 


“Aggregate
Term Commitments” at any time shall equal the sum of the Term Commitments
of the Term Lenders.


 


“Agreement”
shall mean this Credit Agreement, as the same may from time to time be
amended, amended and restated, supplemented or otherwise modified.


 


“Applicable
Lending Office” shall mean, for each Lender and for each Type of Loan, the
lending office of such Lender (or an Affiliate of such Lender) designated for
such Type of Loan on the signature pages hereof or such other offices of
such Lender (or of an Affiliate of such Lender) as such Lender may from
time to time specify to the Administrative Agent and the Borrower as the office
by which its Loans of such Type are to be made and maintained.


 


“Applicable
Margin” shall mean, on any day and with respect to (i) any LIBOR Rate
Term Loan, 1.75%, (ii) any Base Rate Term Loan, 0.75% and (iii) any
Revolving Credit Loan and Swingline Loan (which shall only be Base Rate Loans),
the applicable per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Leverage Ratio as of the end of the most
recent Test Period:


 


	
  Leverage Ratio

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  LIBOR

  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  >4.75:1.00

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
  >3.50:1.00
  and < 4.75:1.00

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
  <
  3.50:1.00

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  



 


The Applicable
Margin shall be established as of each date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 8.01(a) or
(b) and Section 8.01(c). 


 


3





















 


Each change in
the Applicable Margin resulting from a change in (or an initial calculation of)
the Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 8.01(a) or
(b) and Section 8.01(c), respectively, indicating such
change (or calculation) until the date immediately preceding the next date of
delivery of such financial statements and certificates indicating another such
change; provided, however, if the Borrower shall fail to deliver
any required financial statements or certificates within the time period
required by such Sections or if an Event of Default under Section 10.01(a) has
occurred and is continuing, the Applicable Margin shall be the highest
percentage amount stated for each Type of Revolving Credit Loan as set forth in
the above table from the date such item was required to be delivered or such
Event of Default occurred, as the case may be, until the appropriate
financial statements and certificates are so delivered or until such Event of
Default ceases to be continuing, as the case may be. Notwithstanding the
foregoing, during the period beginning on the Closing Date and ending on the
date on which the items required to be delivered pursuant to Sections 8.01(b) and
(c) with respect to the second Fiscal Quarter commenced after the
Closing Date are delivered, the Applicable Margin shall be (a) 1.25% for
Base Rate Loans and (b) 2.25% for LIBOR Loans.


 


“Approved
Fund” shall have the meaning assigned to such term in Section 12.06.


 


“Arrangers”
shall mean the Joint Lead Arrangers named on the cover page hereof.


 


“Asset Sale”
shall mean (a) any sale, transfer, lease or other disposition of any
Property of Holdings or any Subsidiary, except (x) any transaction
permitted by Section 9.03 and (y) a sale, transfer, lease or
other disposition of (i) cash, (ii) Cash Equivalents, (iii) inventories
or trade fixtures in the ordinary course of business or accounts receivable in
connection with the collection or compromise thereof in the ordinary course of
business (which ordinary course shall specifically not include a receivables
financing or securitization facility), (iv) any Property by Holdings to a
Wholly-Owned Subsidiary or by a Wholly-Owned Subsidiary to Holdings or another
Wholly-Owned Subsidiary, or (v) any property subject to Casualty Events
upon receipt of the Net Cash Proceeds of such Casualty Event and (b) any
issuance or sale of any Capital Securities of any Subsidiary of Holdings, in
each case, to any Person other than (i) the Borrower, (ii) any
Wholly-Owned Subsidiary or (iii) other than for purposes of Section 9.16,
any other Subsidiary.


 


“Assignee”
shall have the meaning assigned such term in Section 12.06(b).


 


“Assignment
Agreement” shall mean an assignment agreement, in substantially the form of
Exhibit B, or any other form approved by the Administrative
Agent.


 


“Auto-Extension
Letter of Credit” shall have the meaning assigned such term in Section 2.03(c).


 


“Available
Amount” shall mean, for any date, (a) an amount not less than zero,
determined on a cumulative basis, equal to the Available Percentage of Excess
Cash Flow for all Excess Cash Flow Periods ending after the Closing Date and
prior to such time and for which Excess Cash Flow has been applied as a
mandatory prepayment of the Loans in accordance with Section 2.08(f) plus
(b) the cumulative amount of Equity Proceeds, but only in the case of each



 


4





















 


of clauses (a) and
(b) to the extent such amount has not been previously applied to (i) make
an Investment in accordance with Section 9.03(l), (ii) make,
in whole or in part, a Capital Expenditure pursuant to Section 9.14,
(iii) pay, in whole or in part, Acquisition Consideration for a Permitted
Acquisition or (iv) make a Restricted Payment pursuant to Section 9.04(g).
For purposes of this definition “Available Percentage” shall mean, for any
Excess Cash Flow Period, (x) if the Leverage Ratio as of the end of the
Test Period ending corresponding with the end of such Excess Cash Flow Period
is greater than or equal to 4.50:1.00, 25%, (y) if the Leverage Ratio as of the
end of such Test Period is greater than or equal to 3.50:1.00 but less than
4:50:1.00, 50%, and (z) if the Leverage Ratio as of the end of such Test Period
is less than 3.50:1.00, 75%.


 


“Base Rate”
shall mean, with respect to any Base Rate Loan, for any day, the higher of (i) the
Federal Funds Rate for any such day plus 1/2 of 1% or (ii) the Prime Rate
for such day. Each change in any interest rate provided for herein based upon
the Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.


 


“Base Rate
Loans” shall mean Loans that bear interest at rates based upon the Base
Rate.


 


“Base Rate
Revolving Credit Loans” shall mean Base Rate Loans that are Revolving
Credit Loans.


 


“Board of
Directors” shall mean, with respect to any Person, (i) in the case of
any corporation, the board of directors of such Person, (ii) in the case
of any limited liability company, the board of managers of such Person or the
managing member of such Person, as applicable, (iii) in the case of any
partnership, the Board of Directors of the general partner of such Person and (iv) in
any other case, the functional equivalent of the foregoing.


 


“Borrower”
shall have the meaning assigned to such term in the preamble hereto.


 


“Business
Day” shall mean any day other than a day on which commercial banks are
authorized or required to close in Houston, Texas or New York, New York and, if
such day relates to a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or a conversion of or into, or the Interest Period
for, a LIBOR Loan or a notice by the Borrower with respect to any such
borrowing or continuation, payment, prepayment, conversion or Interest Period,
any day which is also a day on which dealings in Dollar deposits are carried
out in the London interbank market.


 


“Capital
Expenditures Expansion Amount” shall mean, for any test period in which
Total Capital Expenditures are measured, $35,000 multiplied by the number of
Restaurant Locations acquired or built during such test period.


 


“Capital
Security” shall mean (i) any capital stock, partnership, membership,
joint venture or other ownership or equity interest, participation or
securities (whether voting or non-voting, whether preferred, common or
otherwise, and including any stock appreciation, contingent interest or similar
right) and (ii) any option, warrant, security or other right (including
debt securities or other evidence of Debt) directly or indirectly convertible
into or exercisable or exchangeable for, or otherwise to acquire directly or
indirectly, any stock, partnership, membership, 


 


5





















 


joint venture
or other ownership or equity interest, participation or security described in
clause (i) hereof.


 


“Capitalized
Lease Obligation” shall mean any rental obligation which, under GAAP, would
be required to be capitalized on the books of the Borrower or any of its
Subsidiaries, taken at the amount thereof accounted for as indebtedness in
accordance with such principles; provided that in the event of a change
of GAAP rental obligations not classified as Capitalized Lease Obligations
prior to such change shall not be reclassified as Capitalized Lease Obligations
solely by reason of such change and in the event of a change in the auditors of
the Borrower up to $10.0 million of rental obligations not classified as
Capitalized Lease Obligations prior to such change that are reclassified shall
not be counted as Capitalized Lease Obligations for purposes of this Agreement.


 


“Cash
Equivalents” shall mean:


 


(i)                                     direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, maturing within one year
from the date of creation thereof,


 


(ii)                                  commercial
paper and loan participations maturing within 270 days from the date of
creation thereof rated in the highest grade by Standard & Poor’s
Corporation or Moody’s Investors Service, Inc.,


 


(iii)                               deposits
maturing within one year from the date of creation thereof with, including
certificates of deposit issued by, any Lender or any office located in the
United States of any other bank or trust company which is organized under the
laws of the United States or any state thereof, has capital, surplus and
undivided profits aggregating at least $100.0 million (as of the date of such
Lender’s or bank or trust company’s most recent financial reports) and has a
short term deposit rating of no lower than A2 or P2, as such rating is set
forth from time to time, by Standard & Poor’s Corporation or Moody’s
Investors Service, Inc., respectively, or deposits maturing within one
year from the date of creation thereof with, including certificates of deposit
issued by, any bank or trust company which is organized under the laws of the
United States or any state thereof, and has assets of at least $1.0 billion or
the equivalent thereof,


 


(iv)                              repurchase
obligations with a term of less than 90 days for underlying securities of the
type described in clause (i) entered into with commercial banks or trust
companies meeting the qualifications specified in clause (iii), and


 


(v)                                 deposits
in money market funds investing over 90% of their assets in investments
described in clause (i), (ii) or (iii).


 


“Cash
Interest Expense” shall mean, for any period, Consolidated Interest Expense
for such period, less the sum of (a) interest
on any debt paid by the increase in the principal amount of such debt including
by issuance of additional debt of such kind, (b) items described in
clause (c) or, other than to the extent paid in cash by the Borrower
and its Subsidiaries, clause (f) 


 


6





















 


of the definition
of “Consolidated Interest Expense” and (c) gross interest income of the
Borrower and its Consolidated Subsidiaries for such period.


 


“Casualty
Event” shall mean any involuntary loss of title, any involuntary loss of,
damage to or any destruction of, or any condemnation or other taking (including
by any Governmental Authority) of, any property of Holdings or any of its
Subsidiaries. “Casualty Event” shall include but not be limited to any taking
of all or any part of any Real Property of any Person or any part thereof,
in or by condemnation or other eminent domain proceedings pursuant to any Governmental
Requirement, or by reason of the temporary requisition of the use or occupancy
of all or any part of any Real Property of any Person or any part thereof
by any Governmental Authority, civil or military, or any settlement in lieu
thereof.


 


“CERCLA”
shall have the meaning assigned to such term in the definition of “Environmental
Laws.”


 


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


 


A “Change
of Control” shall be deemed to have occurred if:


 


(a)                                  the
Borrower at any time ceases to own, beneficially and of record, 100% of the
Capital Securities of NPC Management, or Holdings ceases to own, beneficially
and of record, 100% of the Capital Securities of the Borrower (it being
understood that Intermediate Holdco owning of record 100% of the Capital
Securities of the Borrower for a period of up to 20 days after the Closing Date
shall not be deemed a violation of this clause);


 


(b)                                 at
any time a “change of control” or similar event occurs under any Material
Indebtedness;


 


(c)                                  at
any time prior to the consummation of an IPO, the Permitted Holders
(collectively) cease to have the power, directly or indirectly, to vote or
direct the voting of the Voting Stock of Holdings representing a majority of
the voting power of the total outstanding Voting Stock of Holdings; provided
that the occurrence of the foregoing event shall not be deemed a Change of
Control if, and for any reason whatsoever, (A) the Permitted Holders
otherwise have the right, directly or indirectly, to designate (and do so
designate) a majority of the members of the Board of Directors of Holdings or
of the sole managing member of Holdings, or a Permitted Holder serves as the
sole managing member of Holdings, or (B) the Permitted Holders own,
directly or indirectly, of record and beneficially an amount of the Capital
Securities of Holdings equal to an amount more than fifty percent (50%) of the
amount of the Capital Securities of Holdings owned, directly or indirectly, by
the Permitted Holders of record and beneficially as of the Closing Date and
such ownership by the Permitted Holders represents the block of Voting Stock 


 


7





















 


of Holdings held by any Person, or related group for purposes of Section 13(d) of
the Exchange Act, having the largest aggregate voting power; or


 


(d)                                 (i) the
Permitted Holders (collectively) shall fail to own, or to have the power to
vote or direct the voting of, Voting Stock of Holdings representing more than
35% of the voting power of the total outstanding Voting Stock of Holdings, (ii) the
Permitted Holders cease to own Capital Securities representing more than 35% of
the total economic interests of the Capital Securities of Holdings or (iii) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that for purposes of this clause such person or group shall be
deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of Voting Stock of
Holdings representing more than 25% of the voting power of the total
outstanding Voting Stock of Holdings, and the Permitted Holders (collectively)
cease to have the power, directly or indirectly, to vote or direct the voting
of the Voting Stock of Holdings representing a majority of the voting power of
the total outstanding Voting Stock of Holdings; or


 


(e)                                  upon
and following an IPO, during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of
Holdings (together with any new directors whose election to such Board of
Directors or whose nomination for election was approved by a vote of a majority
of the members of the Board of Directors of Holdings, which members comprising
such majority are then still in office and were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of Holdings.


 


For purposes
of this definition, a person shall not be deemed to have beneficial ownership
of Capital Securities subject to a stock purchase agreement, merger agreement
or similar agreement until the consummation of the transactions contemplated by
such agreement.


 


“Class,”
when used in reference to any Loan, refers to whether such Loan is a Revolving
Credit Loan, Term Loan (or Incremental Term Loan of a new tranche) or Swingline
Loan and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Credit Commitment, Term Loan Commitment (or
Incremental Term Commitment of a new tranche) or Swingline Commitment, in each
case, under this Agreement.


 


“Closing
Date” shall mean May 3, 2006.


 


“Closing
Date Financial Statements” shall have the meaning assigned to such term in Section 7.02(a).


 


“Closing
Date Intercompany Note” shall mean the intercompany note issued on the
Closing Date by Intermediate Holdco to the Borrower evidencing intercompany
debt the proceeds of which shall be used, together with the proceeds of the
Equity Financing, to consummate the Acquisition.


 


8





















 


“Code”
shall mean the Internal Revenue Code of 1986 and the regulations promulgated
and rulings issued thereunder, as amended from time to time, and any successor
statute.


 


“Collateral”
shall mean, collectively, all of the Security Agreement Collateral, the Mortgaged
Property and all other property of whatever kind and nature subject or
purported to be subject from time to time to a Lien under any Security
Instrument.


 


“Collateral
Agent” shall have the meaning assigned to such term in the preamble hereto.


 


“Commitment”
shall mean for any Lender, its Revolving Credit Commitment and/or Term
Commitment, as applicable, and for the Swingline Lender, its Swingline
Commitment.


 


“Companies”
shall mean Holdings and its Subsidiaries; and “Company” shall mean any
one of them.


 


“Compliance
Certificate” shall mean a certificate substantially in the form of Exhibit C.


 


“Consolidated
Amortization Expense” shall mean, for any period, the amortization expense
of the Borrower and its Consolidated Subsidiaries for such period, determined
in accordance with GAAP.


 


“Consolidated
Debt” shall mean, without duplication, all Debt, excluding any liabilities,
obligations and guarantees if owed or guaranteed by a Subsidiary to the
Borrower, or another Subsidiary of the Borrower, or by the Borrower to a
Subsidiary.


 


“Consolidated
Debt for Borrowed Money” shall mean, without duplication, all Debt for
Borrowed Money, excluding any liabilities, obligations and guarantees if owed
or guaranteed by a Subsidiary to the Borrower, or another Subsidiary of the
Borrower, or by the Borrower to a Subsidiary.


 


“Consolidated
Depreciation Expense” shall mean, for any period, the depreciation expense
of the Borrower and its Consolidated Subsidiaries for such period, determined
in accordance with GAAP.


 


“Consolidated
EBITDA” shall mean, for any period, Consolidated Net Income for such
period, adjusted by (x) adding thereto,
in each case only to the extent (and in the same proportion) deducted in
determining such Consolidated Net Income and without duplication (and with
respect to the portion of Consolidated Net Income attributable to any
Subsidiary of the Borrower only if a corresponding amount would be permitted at
the date of determination to be distributed to the Borrower by such Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its Organizational Documents and all agreements, instruments and Governmental
Requirements applicable to such Subsidiary or its equityholders):


 


(a)                                  Consolidated
Interest Expense for such period,


 


(b)                                 Consolidated
Amortization Expense for such period,


 


(c)                                  Consolidated
Depreciation Expense for such period,


 


9





















 


(d)                                 Consolidated
Tax Expense for such period,


 


(e)                                  Pre-Opening
Expenses,


 


(f)                                    the
aggregate amount of all other non-cash charges reducing Consolidated Net Income
(excluding any non-cash charge that results in an accrual of a reserve for cash
charges in any future period) for such period (including without limitation
non-cash expenses relating to the payment of employee and director
compensation), and


 


(y) subtracting therefrom the aggregate amount of
all non-cash items increasing Consolidated Net Income (other than the accrual
of revenue or recording of receivables in the ordinary course of business and
amortization of cash received and recorded of deferral revenues) for such period.


 


Other than for
purposes of calculating Excess Cash Flow, Consolidated EBITDA shall (i) be
calculated on a Pro Forma Basis to give effect to the Acquisition, any
Permitted Acquisition and Asset Sales (other than any dispositions in the
ordinary course of business) consummated at any time on or after the first day
of the Test Period thereof as if the Acquisition and each such Permitted
Acquisition had been effected on the first day of such period and as if each
such Asset Sale had been consummated on the day prior to the first day of such
period and (ii) without duplication of clause (i) include (or
exclude) Consolidated EBITDA attributable to acquired (or disposed of)
Restaurants prior to the date of such acquisition (or disposition) and during the
applicable Test Period adjusted for tangible operational changes achievable
within one year after the consummation of the acquisition (or disposition) due
to field expense differentials, royalty payments to be made to Pizza Hut, Inc.,
contractual rent payments on real estate and equipment and general and
administrative cost differences, payments in respect of supply contracts and
insurance policies, all as certified by the President or Chief Financial
Officer of the Borrower, together with appropriate documentation supporting the
reasonableness of any such adjustments.


 


“Consolidated
Interest Coverage Ratio” shall mean, for any Test Period, the ratio of
(x) Consolidated EBITDA plus Rent Expense (to the extent deducted
in the determination of Consolidated Net Income for such Test Period) for such
Test Period to (y) Consolidated Interest Expense plus Rent Expense
for such Test Period.


 


“Consolidated
Interest Expense” shall mean, for any period, the total consolidated
interest expense of the Borrower and its Consolidated Subsidiaries for such
period determined in accordance with GAAP plus, without duplication:


 


(a)                                  imputed
interest on Capitalized Lease Obligations of the Borrower and its Subsidiaries
for such period;


 


(b)                                 commissions,
discounts and other fees and charges owed by the Borrower or any of its
Subsidiaries with respect to letters of credit securing financial obligations,
bankers’ acceptance financing and receivables financings for such period;


 


(c)                                  cash
contributions to any employee stock ownership plan or similar trust made by the
Borrower or any of its Subsidiaries to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person (other than
Holdings or a 


 


10





















 


Wholly-Owned Subsidiary) in connection with Debt incurred by such plan
or trust for such period;


 


(d)                                 all
interest paid or payable with respect to discontinued operations of the
Borrower or any of its Subsidiaries for such period;


 


(e)                                  the
interest portion of any deferred payment obligations of the Borrower or any of
its Subsidiaries for such period;


 


(f)                                    all
interest on any Debt of the Borrower or any of its Subsidiaries of the type
described in clause (vi), (vii) or (viii) of the definition of “Debt”
for such period;


 


provided
that (a) debt issuance costs, debt discount or premium and other financing
fees and expenses shall be excluded from the calculation of Consolidated
Interest Expense and (b) Consolidated Interest Expense shall be calculated
after giving effect to Hedging Agreements related to interest rates (including
associated costs), but excluding unrealized gains and losses with respect to
Hedging Agreements related to interest rates.


 


Consolidated
Interest Expense shall (i) be calculated on a Pro Forma Basis to give
effect to any Debt incurred, assumed or permanently repaid or extinguished
during the relevant Test Period in connection with the Acquisition, any
Permitted Acquisitions and Asset Sales (other than any dispositions in the
ordinary course of business) as if such incurrence, assumption, repayment or
extinguishing had been effected on the first day of such period and (ii) without
duplication of clause (i), include (or exclude) Consolidated Interest Expense
attributable to acquired (or disposed of) Restaurants prior to the date of such
acquisition (or disposition) and during the applicable Test Period.


 


“Consolidated
Net Income” shall mean for any period the net income or loss of the
Borrower and its Consolidated Subsidiaries for such period determined in
accordance with GAAP, adjusted by (a) subtracting therefrom, without
duplication, to the extent included in calculating such consolidated net income
or loss, (i) net earnings or losses attributable to minority interests in
Subsidiaries; (ii) extraordinary gains or losses, together with any
related provision for taxes on any such gain (or the tax effect of any such
loss); (iii) net earnings or losses of any Subsidiary accrued prior to the
date it became a Subsidiary; (iv) net earnings of any business entity
(other than a Subsidiary) in which the Borrower or any of its Subsidiaries has
an ownership interest unless such net earnings shall have been received by the
Borrower or, subject to clause (v), any of its Subsidiaries in the form of
cash distributions; (v) any portion of net earnings of any Subsidiary of
the Borrower which for any reason is unavailable for distribution to the
Borrower; (vi) any reversal of any contingency reserve to the extent such
contingency reserve was established prior to the Closing Date; (vii) any
gain (or loss), together with any related provisions for taxes on any such gain
(or the tax effect of any such loss), realized during such period by the
Borrower or any of its Subsidiaries upon any Asset Sale (other than any dispositions
in the ordinary course of business) by the Borrower or any of its Subsidiaries;
and (viii) unrealized gains and losses with respect to Hedging Obligations
for such period, and (b) adding thereto, without duplication, to the
extent deducted in calculating such consolidated net income or loss, (i) cash
expenses relating to the payment of employee and director compensation in the form of
Capital Securities, (ii) to the extent permitted to be made under this
Agreement, management fees paid 


 


11





















 


pursuant to
the Management Services Agreement, (iii) expenses incurred prior to the
Closing Date by the Chairman of the Borrower on behalf of or for the account of
the Borrower and its Subsidiaries, including, without limitation, salaries of
any assistant, travel expenses and expenses related to aircraft and (iv) any
non-recurring fees and expenses incurred during such period, or any amortization
thereof for such period, in connection with any acquisition, investment, asset
disposition, issuance or repayment of debt, issuance of equity securities,
refinancing transaction or amendment or other modification of any debt
instrument (in each case, including any such transaction consummated prior to
the Closing Date but not any such transaction undertaken but not completed) and
any non-recurring charges or merger costs incurred during such period as a
result of any such transaction.


 


“Consolidated
Subsidiaries” shall mean each Subsidiary of a Person (whether now existing
or hereafter created or acquired) the financial statements of which shall be
(or should have been) consolidated with the financial statements of such Person
in accordance with GAAP. Unless otherwise indicated, each reference to the term
“Consolidated Subsidiary” shall mean a Subsidiary consolidated with the
Borrower.


 


“Consolidated
Tax Expense” shall mean, for any period, the tax expense of the Borrower
and its Consolidated Subsidiaries for such period, determined in accordance
with GAAP.


 


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


 


“Controlled
Investment Affiliate” means, as to any Person, any other Person which
directly or indirectly is in Control of, is Controlled by, or is under common
Control with, such Person and is organized by such Person (or any Person
Controlling such Person) primarily for making equity or debt investments in
Holdings or other portfolio companies.


 


“Convertible
Securities” shall mean any debt instrument that is by its terms convertible
into an equity interest in Holdings or any of its Subsidiaries.


 


“Covered
Taxes” shall mean all Taxes other than Excluded Taxes.


 


“Cure
Amount” shall have the meaning given to such term in Section 10.04(a).


 


“Cure Right”
shall have the meaning given to such term in Section 10.04(a).


 


“Debt” shall
mean, for any Person the sum of the following (without duplication):  (i) all payment obligations of such
Person for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments (including principal, interest, fees and charges); (ii) all
payment obligations of such Person (whether contingent or otherwise) in respect
of bankers’ acceptances, letters of credit, surety or other bonds and similar
instruments; (iii) all obligations of such Person to pay the deferred
purchase price of Property or services (other than for borrowed money and other
than trade accounts payable in the ordinary course of business that are not overdue
by more than 120 days); (iv) Capitalized Lease Obligations of such Person
(whether contingent or 


 


12





















 


otherwise); (v) the
purchase price for any asset leased to such Person pursuant to a “synthetic
lease” (i.e., a lease that is treated as an operating lease in
accordance with GAAP) or similar arrangement that such Person would have to pay
in order to acquire the asset that is the subject of such lease or arrangement
at the end of the stated term thereof; (vi) all Debt (as described in the
other clauses of this definition) of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person; (vii) all
Debt (as described in the other clauses of this definition) of others
guaranteed by such Person or in which such Person otherwise assures a creditor
against loss of the debtor or payment obligations of others; (viii) all
obligations or undertakings of such Person to maintain or cause to be
maintained the financial position of others; (ix) obligations to pay for
goods or services whether or not such goods or services are actually received
or utilized by such Person (other than trade accounts payable or commitments in
the ordinary course of business that are not overdue by more than 120 days);
(x) any Disqualified Capital Stock of such Person; (xi) any Debt of a
Special Entity or other third parties for which such Person is liable either by
agreement or because of a Governmental Requirement; and (xii) all Hedging
Obligations of such Person. The Debt of any Person shall include the Debt of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
(other than in the case of general partner liability) to the extent that terms
of such Debt expressly provide that such Person is not liable therefor.


 


“Debt for
Borrowed Money” shall mean, for any Person, such Person’s Debt, but without
giving effect to clauses (ii), (v), and (xii), and contingent obligations set
forth in clause (iv), in each case of the definition of Debt.


 


“Debt
Issuance” shall mean the incurrence by Holdings or any of its Subsidiaries
of any Debt after the Closing Date (other than as permitted by Section 9.01).


 


“Debt
Service” shall mean, for any period, Cash Interest Expense for such period
plus scheduled principal amortization of all Debt for such period.


 


“Default”
shall mean an Event of Default or an event which with notice or lapse of time
or both would become an Event of Default.


 


“Disqualified
Capital Stock” shall mean any Capital Security of any Person which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event (other than, in
respect of stock options, warrants or other Capital Securities held by
employees or directors of such Person or its Affiliates, the termination of employment
or retirement of such employees or directors), (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the first anniversary of the Final Maturity Date, (b) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) debt securities or (ii) any Capital Securities
referred to in (a) above, in each case at any time on or prior to the
first anniversary of the Final Maturity Date, or (c) contains any
repurchase obligation which may come into effect prior to payment in full
of all Obligations; provided, however, that any Capital
Securities that would not constitute Disqualified Capital Stock but for
provisions thereof giving holders thereof (or the holders of any security into
or for which such Capital Securities 


 


13





















 


is
convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Capital Securities upon the occurrence of a change in
control or an asset sale occurring prior to the first anniversary of the Final
Maturity Date shall not constitute Disqualified Capital Stock if such Capital
Securities provide that the issuer thereof will not redeem any such Capital
Securities pursuant to such provisions prior to the repayment in full of the
Obligations.


 


“Documentation
Agents” shall have the meaning assigned to such term in the preamble
hereto.


 


“Dollars”
and “$” shall mean lawful money of the United States of America.


 


“Embargoed
Person” shall have the meaning given to such term in Section 9.27.


 


“Environmental Laws”
shall mean any and all Governmental Requirements pertaining to the environment
and health (to the extent relating to exposure to Hazardous Materials) in any
and all jurisdictions in which Holdings, the Borrower or any Subsidiary is
conducting or has conducted business, or where any Property of Holdings, the Borrower
or any Subsidiary is or was located, including without limitation, the Oil
Pollution Act of 1990 (“OPA”), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980
(“CERCLA”), as amended, the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as amended, the Resource
Conservation and Recovery Act of 1976 (“RCRA”), as amended, the Safe
Drinking Water Act, as amended, the Toxic Substances Control Act, as amended,
the Superfund Amendments and Reauthorization Act of 1986, as amended, the
Hazardous Materials Transportation Act, as amended. The term “oil” shall have
the meaning specified in OPA and the terms “hazardous substance” and “release”
(or “threatened release”) have the meanings specified in CERCLA; provided,
however, that (i) in the event either OPA or CERCLA is amended so
as to broaden the meaning of any term defined thereby, such broader meaning
shall apply subsequent to the effective date of such amendment and (ii) to
the extent the laws of the state in which any Property of Holdings or any
Subsidiary is located establish a meaning for “oil,” “hazardous substance” or “release”
which is broader than that specified in either OPA or CERCLA, such broader
meaning shall apply.


 


“Equity
Financing” shall mean the cash equity investment in Holdings by the Equity
Investors as the same is further invested in cash equity in Intermediate Holdco
and then used, together with certain proceeds from the Closing Date
Intercompany Note, to consummate the Acquisition, in an amount not less than
$160.0 million on terms and conditions reasonably satisfactory to the
Administrative Agent.


 


“Equity
Investors” shall mean Sponsor, its Controlled Investment Affiliates (other
than Holdings and its Subsidiaries) and one or more investors reasonably
satisfactory to the Administrative Agent.


 


“Equity
Proceeds” shall mean the aggregate sum of (i) the net proceeds
received after the Closing Date by Holdings (a) from the issuance or sale
of Qualified Capital Stock of Holdings or (b) any contributions to the
capital of Holdings plus (ii) the net proceeds received after the
Closing Date by Holdings upon (a) the exercise of any warrants, options or
similar instruments with respect to Qualified Capital Stock issued by Holdings
and (b) the conversion of any Convertible 


 


14





















 


Securities
into common stock or other Qualified Capital Stock, but in the case of each of
clauses (i) and (ii) excluding any Cure Amount.


 


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


 


“ERISA
Affiliate” shall mean each trade or business (whether or not incorporated)
which together with Holdings or any of its Subsidiaries would be deemed to be a
“single employer” within the meaning of Section 4001(b)(1) of ERISA
or subsections (b), (c), (m) or (o) of Section 414 of the Code.


 


“ERISA
Event” shall mean (i) a “reportable event” described in Section 4043
of ERISA and the regulations issued thereunder, (ii) the withdrawal of
Holdings, any of its Subsidiaries or any ERISA Affiliate from a Plan during a
plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA, (iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (iv) the institution of proceedings to terminate a Plan by the
PBGC, 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.


 


“Event of
Default” shall have the meaning assigned such term in Section 10.01.


 


“Excepted
Liens” shall mean:  (i) Liens
for taxes, assessments or other governmental charges or levies not yet due (or
not delinquent and payable without interest or penalty so long as so payable)
or which are being contested in good faith by appropriate action and for which
adequate reserves have been maintained in accordance with GAAP; (ii) Liens
in connection with workers’ compensation, unemployment insurance or other
social security, old age pension or public liability obligations not yet due or
which are being contested in good faith by appropriate action and for which
adequate reserves have been maintained in accordance with GAAP; (iii) operators’,
vendors’, carriers’, warehousemen’s, repairmen’s, mechanics’, workers’, materialmen’s,
construction or other like Liens arising by operation of law in the ordinary
course of business or statutory landlord’s liens, each of which is in respect
of obligations that have not been outstanding more than 90 days or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves have been maintained in accordance with GAAP; (iv) any Liens
reserved in leases for rent or royalties and for compliance with the terms of
the leases in the case of leasehold estates, to the extent that any such Lien referred
to in this clause does not materially impair the use of the Property covered by
such Lien for the purposes for which such Property is held by the Borrower or
any Subsidiary or materially impair the value of such Property subject thereto;
(v) encumbrances (other than to secure the payment of borrowed money or
the deferred purchase price of Property or services), easements, restrictions,
servitudes, permits, conditions, covenants, exceptions or reservations in any
rights of way or other Property of the Borrower or any Subsidiary for the
purpose of roads, pipelines, transmission lines, transportation lines,
distribution lines for the removal of gas, oil, coal or other minerals or
timber, and other like purposes, or for the joint or common use of real estate,
rights of way, facilities and equipment, and defects, irregularities, zoning
restrictions, encroachments and deficiencies in title of any rights of way or
other Property which in the aggregate do not materially impair the use of 


 


15





















 


such rights of
way or other Property for the purposes of which such rights of way and other
Property are held by the Borrower or any Subsidiary or materially impair the
value of such Property subject thereto; (vi) Liens pursuant to the
Security Instruments; (vii) Liens arising out of judgments, attachments or
awards not resulting in a Default and in respect of which the applicable
Company shall in good faith be prosecuting an appeal or proceedings for review
in respect of which there shall be secured a subsisting stay of execution
pending such appeal or proceedings and, in the case of any such Lien which has
or may become a Lien against any of the Collateral, the Borrower shall
maintain cash reserves adequate to satisfy its good faith estimate of the
amount of such Lien; (viii) Liens (other than any Lien imposed by ERISA)
(x) imposed by Governmental Requirements or deposits made in connection
therewith in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security
legislation, (y) incurred in the ordinary course of business to secure the
performance of tenders, statutory obligations (other than excise taxes),
surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money bonds
and other similar obligations (exclusive of obligations for the payment of
borrowed money) or (z) arising by virtue of deposits made in the ordinary
course of business to secure liability for premiums to insurance carriers; provided
that (A) with respect to clauses (x), (y) and (z) of this clause
(viii), such Liens are for amounts not yet due and payable or delinquent or, to
the extent such amounts are so due and payable, such amounts are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP and (B) to the extent such
Liens are not imposed by Governmental Requirements, such Liens shall in no
event encumber any property other than cash and cash equivalents; (ix) Liens
arising out of conditional sale, title retention, consignment or similar arrangements
for the sale of goods entered into by any Company in the ordinary course of
business in accordance with the past practices of such Company;
(x) bankers’ Liens, rights of setoff and other similar Liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more accounts
maintained by any Company, in each case granted in the ordinary course of business
in favor of the bank or banks with which such accounts are maintained, securing
amounts owing to such bank with respect to cash management and operating
account arrangements, including those involving pooled accounts and netting arrangements;
provided that, unless such Liens are non-consensual and arise by
operation of law, in no case shall any such Liens secure (either directly or
indirectly) the repayment of any Debt; (xi) licenses of Intellectual
Property granted by any Company in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of business of
the Companies; (xii) the filing of UCC financing statements solely as a
precautionary measure in connection with operating leases or consignment of
goods; (xiii) the existence of the “equal and ratable” clause in the
Senior Subordinated Notes Documents (but not any security interests granted
pursuant thereto); (xiv) leases, licenses, subleases or sublicenses
granted to others in the ordinary course of business; and (xv) Liens
(x) on cash advances in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Section 9.03 to be applied
against the purchase price for such Investment and (y) consisting of an
agreement to dispose of any property in an Asset Sale permitted under Section 9.16,
in each case, solely to the extent such Investment or disposition, as the case may be,
would have been permitted on the date of the creation of such Lien.


 


“Excess
Amount” shall have the meaning assigned to such term in Section 2.08(g).


 


16





















 


“Excess
Cash Flow” shall mean, for any Excess Cash Flow Period, Consolidated EBITDA
for such Excess Cash Flow Period, minus, without duplication:


 


(a)                                  Debt
Service for such Excess Cash Flow Period;


 


(b)                                 any
voluntary prepayments of Term Loans and any permanent voluntary reductions to
the Revolving Credit Commitments to the extent that an equal amount of the
Revolving Credit Loans simultaneously is repaid, in each case so long as such
amounts are not already reflected in Debt Service, during such Excess Cash Flow
Period;


 


(c)                                  Total
Capital Expenditures during such Excess Cash Flow Period (excluding Total
Capital Expenditures made in such Excess Cash Flow Period where a certificate
in the form contemplated by the following clause (d) was previously
delivered) that are paid in cash;


 


(d)                                 Total
Capital Expenditures that the Borrower or any of its Subsidiaries shall, during
such Excess Cash Flow Period, become obligated to make but that are not made
during such Excess Cash Flow Period; provided that the Borrower shall
deliver a certificate to the Administrative Agent not later than 90 days
after the end of such Excess Cash Flow Period, signed by a Responsible Officer
of the Borrower and certifying that such Total Capital Expenditures will be
made in the following Excess Cash Flow Period;


 


(e)                                  taxes
of the Borrower and its Subsidiaries that were paid in cash during such Excess
Cash Flow Period or will be paid within six months after the end of such Excess
Cash Flow Period and for which reserves have been established; and


 


(f)                                    to
the extent permitted to be made pursuant to Section 9.18,
management fees paid pursuant to the Management Services Agreement;


 


provided
that any amount deducted pursuant of any of the foregoing clauses that will be
paid after the close of such Excess Cash Flow Period shall not be deducted
again in a subsequent Excess Cash Flow Period; plus, without
duplication:


 


(i)                                     all
proceeds received during such Excess Cash Flow Period of any Debt to the extent
used to finance Total Capital Expenditures (other than Debt under this Agreement
to the extent there is no corresponding deduction to Excess Cash Flow above in
respect of the use of such borrowings); and


 


(ii)                                  to
the extent any permitted Total Capital Expenditures referred to in clause (d) above
do not occur in the Excess Cash Flow Period specified in the certificate of the
Borrower provided pursuant to clause (d) above, such amounts of Total
Capital Expenditures that were not so made in the Excess Cash Flow Period
specified in such certificates.


 


“Excess
Cash Flow Period” shall mean (i) the period taken as one accounting
period consisting of the last two Fiscal Quarters of 2006 and (ii) each
fiscal year of the Borrower thereafter.


 


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


 


17





















 


“Excluded
Assets” shall mean (i) the Voting Stock issued by the Borrower or any
of its Subsidiaries (but specifically excluding the proceeds from the sale or
other disposition of any such Voting Stock, dividends (other than those paid in
such Voting Stock) thereon and other proceeds thereof), (ii) the right,
title and interest of the Borrower or any of its Subsidiaries that is a Pizza
Hut franchisee under any Pizza Hut Franchise Agreement to the extent a pledge
thereof is prohibited by the express terms thereof (but specifically excluding
the proceeds of the sale or other disposition of such right, title and interest
or any portion thereof or other proceeds thereof), (iii) the Capital
Securities of Roma Restaurant Holdings, Inc. and (iv) the Capital
Securities of NPC Bar Management Corporation.


 


“Excluded
Taxes” shall mean with respect to each Lender, the Issuing Bank and
the Administrative Agent or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by a jurisdiction (or any political
subdivision thereof) as a result of a present or former connection between such
recipient and the jurisdiction (or political subdivision thereof) (other than a
connection arising or deemed to arise solely as a result of any transactions
contemplated by the Loan Documents), (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by a jurisdiction
described in clause (a), (c) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 4.06(g)),
any United States federal withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new lending office), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrower
with respect to such United States federal withholding tax pursuant to Section 4.06;
provided that this clause (c) shall not apply to any tax
imposed on a Lender in connection with an interest or participation in any Loan
or other obligation that such Lender was required to acquire pursuant to Section 4.05;
and (d) any tax resulting from the failure of a Lender or Participant to
comply with the provisions of Section 4.06(e).


 


“Executive
Order” shall mean Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001.


 


“Existing
Credit Agreement” shall mean that certain Credit Agreement dated as of June 3,
2004, as amended, among the Borrower, NPC Management, JPMC, as administrative
agent, and the lenders and other parties thereto.


 


“Existing
Issuing Bank” shall mean each bank which issued Existing Letters of Credit.


 


“Existing
Letters of Credit” means all letters of credit outstanding on the Closing
Date, as more fully described on Schedule 1.01(b).


 


“Fair
Market Value” shall mean, at any time and with respect to any property, the
sale value of such property that would be realized in an arm’s-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).


 


18





















 


“Federal
Funds Rate” shall mean, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight federal funds transactions with a member of the Federal
Reserve System arranged by federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (i) if the date for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (ii) if such rate is not so published
for any day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent on such day on such transactions as determined
by the Administrative Agent.


 


“Fee
Letters” shall mean collectively (i) that certain letter agreement
between the Administrative Agent and Holdings dated April 3, 2006
concerning certain administrative fees in connection with this Agreement, as
the same may be amended or replaced from time to time, and (ii) that
certain letter agreement among JPMC, J.P. Morgan Securities Inc. and Merrill
Lynch Capital Corporation and Holdings dated April 3, 2006 concerning
certain fees in connection with this Agreement, as the same may be amended
or replaced from time to time.


 


“Final
Maturity Date” shall mean the later of the (i) Term Loan Maturity Date
and (ii) any Incremental Term Loan Maturity Date applicable to existing
Incremental Term Loans, as of any date of determination.


 


“Financial
Officer” of any Person shall mean the chief financial officer, principal accounting
officer, treasurer, assistant treasurer, controller or assistant controller of
such Person.


 


“Fiscal
Quarters” shall mean the quarterly fiscal periods of Holdings ending on the
last Tuesday of March, June, September and December in each year.


 


“Foreign
Lender” shall mean any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.


 


“Foreign
Subsidiary” shall mean a Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any state thereof or the District
of Columbia.


 


“Franchise
Agreement” shall mean the Pizza Hut Franchise Agreements and each franchise
agreement related to a Restaurant pursuant to which the Borrower or any
Guarantor operates Restaurants, as the same may from time to time be
amended, supplemented, restated or otherwise modified.


 


“GAAP”
shall mean generally accepted accounting principles in the United States of
America in effect from time to time.


 


“Governmental
Authority” shall mean the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


19





















 


“Governmental
Real Property Disclosure Requirements” shall mean any Governmental
Requirement requiring notification of the buyer, lessee, mortgagee, assignee or
other transferee of any Real Property, facility, establishment or business, or
notification, registration or filing to or with any Governmental Authority, in
connection with the sale, lease, mortgage, assignment or other transfer
(including any transfer of control) of any Real Property, facility,
establishment or business, of the actual or threatened presence or “release” in
or into the environment, or the use, disposal or handling of a “hazardous
substance” on, at, under or near the Real Property, facility, establishment or
business to be sold, leased, mortgaged, assigned or transferred (terms in quotations
are defined within the definition of Environmental Laws).


 


“Governmental
Requirement” shall mean the common law and any applicable law, statute,
code, ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or other
legally enforceable directive or requirement, including, without limitation,
Environmental Laws, energy regulations and occupational, safety and health
standards or controls, of any Governmental Authority.


 


“Guaranteed
Obligations” shall have the meaning assigned to such term in Section 13.01.


 


“Guarantor”
shall mean Holdings, Intermediate Holdco, the Subsidiaries listed on the signature
pages hereof and all existing, newly created and acquired Subsidiaries
required to guarantee this Agreement pursuant to Section 8.09(b).


 


“Hazardous
Materials” shall mean any material, substance, pollutant, contaminant,
chemical, constituent, compound or waste, including without limitation any
asbestos or any asbestos-containing material, polychlorinated biphenyls,
hazardous substance, oil, petroleum, crude oil or any fraction thereof, subject
to regulation or which can give rise to liability under any applicable Environmental
Laws.


 


“Hedging
Agreements” shall mean any commodity, interest rate or currency swap, cap,
floor, collar, forward agreement or other exchange or protection agreements or
any option with respect to any such transaction.


 


“Hedging
Obligations” shall mean obligations under or with respect to Hedging Agreements.


 


“Highest
Lawful Rate” shall mean, with respect to each Lender, the maximum
nonusurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the Loans or on any
other Obligations under laws applicable to such Lender which are presently in
effect or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.


 


“Holdings”
shall have the meaning assigned to such term in the preamble hereto.


 


“Increase
Effective Date” shall have the meaning assigned to such term in Section 2.12(a).


 


20





















 


“Incremental
Term Commitment” shall have the meaning assigned to such term in Section 2.12(a).


 


“Incremental
Term Loan” shall have the meaning assigned to such term in Section 2.12(c).


 


“Incremental
Term Loan Maturity Date” shall have the meaning assigned to such term in Section 2.12(c).


 


“Increase
Joinder” shall have the meaning assigned to such term in Section 2.12(c).


 


“Indemnified
Parties” shall have the meaning assigned such term in Section 12.03(a)(ii).


 


“Indemnity
Matters” shall mean any and all actions, suits, proceedings (including any
investigations, litigation or inquiries), claims, demands and causes of action
made or threatened against a Person and, in connection therewith, all losses,
liabilities, damages (including, without limitation, consequential damages) or
reasonable costs and expenses of any kind or nature whatsoever incurred by such
Person whether caused by the sole or concurrent negligence of such Person
seeking indemnification.


 


“Intermediate
Holdco” shall mean NPC Acquisition Finance Corp., a Kansas corporation.


 


“Initial
Funding” shall mean the funding of the initial Loans or issuance of the
initial Letters of Credit upon satisfaction of the conditions set forth in Sections
6.01 and 6.02.


 


“Intellectual
Property” shall have the meaning assigned to such term in Section 7.24(a).


 


“Intercompany
Note” shall mean a promissory note substantially in the form of Exhibit D
or such other form reasonably satisfactory to the Administrative Agent.


 


“Interest
Period” shall mean, with respect to any LIBOR Loan, the period commencing
on the date such LIBOR Loan is made and ending on the numerically corresponding
day in the first, second, third or sixth calendar month thereafter, as the
Borrower may select as provided in Section 2.02 (or such
longer period as may be requested by the Borrower and agreed to by each
Lender of the applicable Class of Loans), except that each Interest Period
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month.


 


Notwithstanding
the foregoing:  (i) no Interest
Period may end after (A) the Revolving Credit Termination Date with
respect to Revolving Credit Loans, (B) the Term Loan Maturity Date with
respect to Term Loans (other than Incremental Term Loans) or (C) the
applicable Incremental Term Loan Maturity Date with respect to the applicable
Incremental Term Loans; (ii) no Interest Period for any LIBOR Loan may end
after the due date of any installment, if any, provided for in Section 3.01
to the extent that such LIBOR Loan would need to be prepaid prior to the end of
such Interest Period in order for such installment to be paid when due; (iii) each
Interest Period which would otherwise end on a day which is not a Business Day
shall end on the 


 


21





















 


next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); and (iv) no
Interest Period shall have a duration of less than one month and, if the
Interest Period for any LIBOR Loans would otherwise be for a shorter period,
such Loans shall not be available hereunder.


 


“Investments”
shall have the meaning assigned to such term in Section 9.03.


 


“IPO”
shall mean the first underwritten public offering by Holdings of its Capital
Securities after the Closing Date pursuant to a registration statement filed
with the Securities and Exchange Commission in accordance with the Securities
Act.


 


“Issuing
Bank” shall mean JPMC or any other Lender agreed to between the Borrower
and the Administrative Agent to issue Letters of Credit.


 


“Joinder
Agreement” shall mean a joinder agreement substantially in the form of
Exhibit E.


 


“Landlord
Consent Agreement” shall mean a Landlord Consent Agreement, substantially
in the form of Exhibit F, or such other form as may reasonably
be acceptable to the Administrative Agent.


 


“LC
Commitment” at any time shall mean the lesser of (i) $30.0 million and
(ii) the aggregate Maximum Revolving Credit Amounts at such time.


 


“LC
Disbursement” means a payment made by the Issuing Bank pursuant to a Letter
of Credit.


 


“LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Revolving Credit Percentage Share of the total LC Exposure at
such time.


 


“Leased
Mortgaged Property” means each Mortgaged Property leased to a Loan Party as
lessee and identified on Schedule 8(a)(ii) to the Perfection
Certificate dated the Closing Date (which shall be each leased property
mortgaged under the Existing Credit Agreement).


 


“Lender”
shall have the meaning assigned to such term in the preamble hereto.


 


“Lender
Affiliate” means (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any Person that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of credit
in the ordinary course of its business and is administered or managed by a
Lender or an Affiliate of such Lender and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit,
any other fund that invests in bank loans and similar extensions of credit and
is managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.


 


22





















 


“Letter of
Credit” means any letter of credit issued pursuant to this Agreement.


 


“Leverage
Ratio” shall mean, at any date of determination, the ratio of Consolidated
Debt for Borrowed Money on such date to Consolidated EBITDA for the Test Period
then most recently ended.


 


“LIBOR”
shall mean the rate of interest determined by the Administrative Agent to be
the rate per annum at which deposits in Dollars are offered by leading
reference banks in the London interbank market to JPMC at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of the applicable
Interest Period for a period equal to such Interest Period and in an amount
substantially equal to the amount of the applicable Loan.


 


“LIBOR
Adjusted Rate” shall mean, with respect to any LIBOR Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Administrative Agent to be equal to the quotient of (i) LIBOR for such
Loan for the Interest Period for such Loan divided by (ii) 1 minus the
Reserve Requirement for such Loan for such Interest Period.


 


“LIBOR
Loans” shall mean Loans the interest rates on which are determined on the basis
of rates referred to in the definition of “LIBOR Adjusted Rate.”


 


“Lien”
shall mean, with respect to any property, (a) any mortgage, deed of trust,
lien, pledge, charge, hypothecation or security interest of any kind or any
arrangement to provide priority or preference intended to have the effect of a
lien or security interest, including any easement, right-of-way or other
encumbrance on title to Real Property that disrupts the proper use and
functioning of the Real Property, in each of the foregoing cases whether
voluntary or imposed by law, and any agreement to give any of the foregoing;
and (b) the lien or retained security title of a conditional vendor under
any conditional sale agreement or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such property.


 


“Loan
Documents” shall mean this Agreement, the Notes, all Letters of Credit, the
Fee Letters and the Security Instruments.


 


“Loan
Parties” shall mean the Borrower and the Guarantors.


 


“Loans”
shall mean the loans as provided for by Sections 2.01(a), (b) and
(c). “Loans” shall include the Revolving Credit Loans, the Swingline
Loans and the Term Loans.


 


“Majority
Lenders” shall mean Lenders having more than 50% of the sum of all Loans
outstanding, LC Exposure and unused Revolving Credit Commitments and Term Loan
Commitments.


 


“Management
Services Agreement” shall mean that certain advisory agreement dated as of May 3,
2006 between the Borrower and an Affiliate of the Sponsor.


 


“Material
Adverse Change” shall have the meaning assigned to such term in Section 7.02(a).


 


23





















 


“Material
Adverse Effect” shall mean any set of circumstances or events having a material
adverse change in (a) the business, operations, Property or condition of
Holdings and its Subsidiaries, taken as a whole, or (b) the validity or
enforceability as to any Loan Party of any Loan Documents or (c) the
rights or remedies of the Administrative Agent, the Collateral Agent and Lenders
under the Loan Documents, taken as a whole.


 


“Material
Indebtedness” shall mean (a) Debt under the Senior Subordinated Notes
Documents and (b) any other Debt (other than the Loans and Letters of
Credit, Hedging Obligations and Capitalized Lease Obligations) of Holdings or
any of its Subsidiaries in an outstanding principal amount exceeding $5.0
million.


 


“Maximum
Revolving Credit Amount” shall mean, as to each Revolving Credit Lender,
the amount set forth opposite such Lender’s name on Annex I under the
caption “Maximum Revolving Credit Amounts” (as the same may be reduced
pursuant to Section 2.04(b) pro rata
to each Revolving Credit Lender based on its Revolving Credit Percentage
Share), as modified from time to time to reflect any assignments permitted by Section 12.06(b).


 


“Mortgage”
shall mean, whether one or more, each mortgage, deed of trust, security
agreement, fixture filing and financing statement, in the form attached
hereto as Exhibit G or such other form as is reasonably
acceptable to the Collateral Agent, whether relating to a fee or leasehold
interest, executed by the Borrower and any Guarantor, and granting a Lien in
favor of the Collateral Agent to secure the Secured Obligations, as from time
to time may be amended, supplemented, restated or otherwise modified.


 


“Mortgaged
Property” shall mean (a) each Real Property identified as an Owned Mortgaged
Property on Schedule 8(a)(i) or a Leased Mortgaged Property on
Schedule 8(a)(ii), in each case to the Perfection Certificate dated
the Closing Date and (b) each Real Property, if any, which shall be
subject to a Mortgage delivered after the Closing Date pursuant to Section 8.09(c).


 


“Multiemployer
Plan” shall mean a Plan defined as such in Section 3(37) or 4001(a)(3) of
ERISA.


 


“Net Cash
Proceeds” shall mean:


 


(a)                                  with
respect to any Asset Sale, the cash proceeds received by Holdings or any of its
Subsidiaries (including cash proceeds subsequently received (as and when received
by Holdings or any of its Subsidiaries) in respect of non-cash consideration
initially received) net of (i) selling expenses (including brokers’ fees
or commissions, legal, accounting and other professional and transactional
fees, all transfer and other taxes payable by the Borrower and its Subsidiaries
in connection with such Asset Sale, including, without limitation, additional
income taxes paid or payable as a result of such sale as estimated in the
Borrower’s good faith); (ii) amounts provided as a reserve, in accordance
with GAAP, against (x) any liabilities under any indemnification
obligations associated with such Asset Sale or (y) any other liabilities
retained by Holdings or any of its Subsidiaries associated with the Property
sold in such Asset Sale (provided that, to the extent and at the time
any such amounts are released from such reserve, such amounts shall constitute 


 


24





















 


Net Cash Proceeds); (iii) the Borrower’s good faith estimate of
payments required to be made with respect to unassumed liabilities relating to
the Property sold within 90 days of such Asset Sale (provided that,
to the extent such cash proceeds are not used to make payments in respect of
such unassumed liabilities within 90 days of such Asset Sale, such cash
proceeds shall constitute Net Cash Proceeds); (iv) the principal amount,
premium or penalty, if any, interest and other amounts on any Debt for borrowed
money which is secured by a Lien on the properties sold in such Asset Sale (so
long as such Lien was permitted to encumber such properties under the Loan
Documents at the time of such sale) and which is repaid with such proceeds
(other than any such Debt assumed by the purchaser of such properties); and (v) with
respect to no more than 40 Sale and Leaseback Transactions after the Closing
Date of an owned Real Property that replaces, rebuilds or relocates a leased
Real Property after the closure thereof, amounts spent to replace, rebuild or
relocate such leased Restaurant within 18 months prior to such transaction;


 


(b)                                 with
respect to any Debt Issuance by Holdings or any of its Subsidiaries, the cash
proceeds thereof, net of fees, commissions, costs and other expenses incurred
in connection therewith; and


 


(c)                                  with
respect to any Casualty Event, the cash insurance proceeds, condemnation awards
and other compensation received in respect thereof, net of all costs and
expenses (including legal, accounting and other professional and transactional
fees and all transfer and other taxes) incurred in connection with such
Casualty Event.


 


“Notes”
shall mean the Notes provided for by Section 2.07, together with
any and all renewals, extensions for any period, increases, rearrangements,
substitutions or modifications thereof. The “Notes” shall include the Revolving
Credit Notes, the Swingline Note and the Term Notes.


 


“NPC
Management” shall mean, NPC Management, Inc., a corporation formed
under the laws of the State of Delaware.


 


“Obligations”
shall mean (a) obligations of the Borrower and the other Loan Parties from
time to time arising under or in respect of the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by the Borrower and the other Loan Parties under
this Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement obligations in respect of Letters of
Credit, interest thereon and obligations to provide cash collateral and (iii) all
other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrower and the other Loan
Parties under this Agreement and the other Loan Documents, and (b) the due
and punctual performance 


 


25





















 


of all
covenants, agreements, obligations and liabilities of the Borrower and the
other Loan Parties under or pursuant to this Agreement and the other Loan
Documents.


 


“Officers’
Certificate” shall mean a certificate executed by one of the Responsible
Officers, each in his or her official (and not individual) capacity.


 


“OPA”
shall have the meaning assigned to such term in the definition of “Environmental
Laws.”


 


“Organizational
Documents” shall mean, with respect to any Person, (i) in the case of
any corporation, the certificate of incorporation and by-laws (or similar
documents) of such Person, (ii) in the case of any limited liability
company, the certificate of formation and operating agreement (or similar
documents) of such Person, (iii) in the case of any limited partnership,
the certificate of formation and limited partnership agreement (or similar
documents) of such Person, (iv) in the case of any general partnership,
the partnership agreement (or similar document) of such Person and (v) in
any other case, the functional equivalent of the foregoing.


 


“Other
Taxes” shall have the meaning assigned such term in Section 4.06(b).


 


“Owned
Mortgaged Property” means each Mortgaged Property owned by a Loan Party and
identified on Schedule 8(a)(i) to the Perfection Certificate
dated the Closing Date.


 


“Participant”
shall have the meaning assigned to such term in Section 12.06(c)(i).


 


“Payment
Date” shall mean the last day of each March, June, September and
December; provided, however, that if any such day is not a
Business Day, such Payment Date shall be the next succeeding Business Day.


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions.


 


“Perfection
Certificate” shall mean a certificate in the form of Exhibit H-1
or any other form approved by the Collateral Agent, as the same shall be
supplemented from time to time by a Perfection Certificate Supplement or
otherwise.


 


“Perfection
Certificate Supplement” shall mean a certificate supplement in the form of
Exhibit H-2 or any other form approved by the Collateral
Agent.


 


“Permitted
Acquisition” shall mean any transaction or series of related
transactions for the direct or indirect (a) acquisition of all or
substantially all of the property of any Person, or of any business or division
of any Person; (b) acquisition of in excess of 50% of the Capital Securities
of any Person, and otherwise causing such Person to become a Subsidiary of such
Person; or (c) merger or consolidation or any other combination with any
Person, if each of the following conditions is met:


 


(i)                                     no
Default then exists or would result therefrom;


 


26





















 


(ii)                                  after
giving effect to such transaction on a Pro Forma Basis, (A) the Borrower
shall be in compliance with all covenants set forth in Sections 9.12
and 9.13 as of the most recent Test Period (assuming, for purposes of Sections 9.12
and 9.13, that such transaction, and all other Permitted Acquisitions
consummated since the first day of the relevant Test Period for each of the
financial covenants set forth in Sections 9.12 and 9.13
ending on or prior to the date of such transaction, had occurred on the first
day of such relevant Test Period), and (B) the Borrower would be able to
borrow at least $10.0 million of additional Revolving Credit Loans pursuant to Section 2.01(a);


 


(iii)                               if
(x) the most recent Compliance Certificate delivered pursuant to Section 8.01(c) indicates
a lack of compliance with any of Sections 9.12, 9.13 or 9.14,
in each case, without giving effect to the exercise of any Cure Right during
the applicable test period or (y) the Borrower has failed to deliver a
Compliance Certificate as required by Section 8.01(c), such
transaction does not occur during the period commencing with, in the case of
clause (x) above, the date such Compliance Certificate is delivered or, in the
case of clause (y) above, the date such Compliance Certificate was required to
be delivered and ending on, in each case, the date on which the next Compliance
Certificate that indicates compliance with Sections 9.12, 9.13
and 9.14 without giving effect to the exercise of any Cure Right during
the applicable test periods is delivered pursuant to Section 8.01(c);


 


(iv)                              the
Person or business to be acquired shall be, or shall be engaged in, a business
of the type that the Borrower and the Subsidiaries are permitted to be engaged
in under Section 9.06 and the property acquired in connection with
any such transaction shall be made subject to the Lien under the Security
Instruments in accordance with Section 8.09 and shall be free and
clear of any Liens, other than Permitted Collateral Liens;


 


(v)                                 the
Board of Directors of the Person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which
opposition has not been publicly withdrawn);


 


(vi)                              all
transactions in connection therewith shall be consummated in accordance with
all applicable Governmental Requirements;


 


(vii)                           with
respect to any transaction involving Acquisition Consideration of more than
$20.0 million, unless the Administrative Agent shall otherwise agree, the Borrower
shall have provided the Administrative Agent and the Lenders with (A) historical
financial statements for the last two fiscal years (or, if less, the number of
years since formation) of the Person or business to be acquired (audited if
available) and unaudited financial statements thereof for the most recent
interim period which are available and (B) all such other information and
data relating to such transaction or the Person or business to be acquired as may be
reasonably requested by the Administrative Agent or the Majority Lenders;


 


(viii)                        at
least 10 Business Days prior to the proposed date of consummation of the transaction,
the Borrower shall have delivered to the Agents and the Lenders an Officers’
Certificate certifying that (A) such transaction complies with this
definition (which 


 


27





















 


shall have
attached thereto reasonably detailed backup data and calculations showing such
compliance), and (B) such transaction would not reasonably be expected to
have a Material Adverse Effect; and


 


(ix)                                after
giving effect to such transaction on a Pro Forma Basis, the Leverage Ratio
shall be at least 0.25:1.00 less than the maximum Leverage Ratio permitted
under Section 9.12 as of the end of the latest Test Period.


 


“Permitted
Collateral Liens” shall mean (a) in the case of Collateral other than
Mortgaged Property, the Liens permitted by Section 9.02 and (b) in
the case of Mortgaged Property, “Permitted Collateral Liens” shall mean the
Liens permitted by Sections 9.02(a), (c), (d), (e) and
(f), and those described in clauses (i), (iii), (v) and (vii) of
the definition of “Excepted Liens”; provided, however, on the
Closing Date or upon the date of delivery of each additional Mortgage under Section 8.05
or 8.09, Permitted Collateral Liens in the case of Mortgaged Property
shall mean only those Liens set forth in Schedule B to the applicable Mortgage
or identified on Schedule 1.01(c).


 


“Permitted
Cure Security” shall mean a Capital Security of Holdings constituting Qualified
Capital Stock.


 


“Permitted
Holders” shall mean (a) Sponsor and its Controlled Investment Affiliates,
(b)(i) Merrill Lynch & Co., Inc. (and its successors in
interest) and its Subsidiaries and (ii) any group (as defined in Section 13(d) of
the Exchange Act) that includes Merrill Lynch & Co., Inc. and the
Sponsor so long as Merrill Lynch & Co., Inc. and the Sponsor have
beneficial ownership, of Voting Stock of Holdings representing a majority of
the voting power of the total outstanding Voting Stock of Holdings and (c)(i) in
the event the Sponsor is not a Subsidiary of Merrill Lynch & Co., Inc.,
(x) any Person that owns over 90% of the Sponsor and (y) such Person’s
Controlled Investment Affiliates and (ii) any group (as defined in Section 13(d) of
the Exchange Act) that includes such Person and the Sponsor.


 


“Permitted
Liens” shall mean Liens permitted pursuant to Section 9.02.


 


“Person”
shall mean any individual, corporation, company, voluntary association,
partnership, joint venture, trust, unincorporated organization or government or
any agency, instrumentality or political subdivision thereof, or any other form of
entity.


 


“Pizza Hut
Franchise Agreements” shall mean each franchise agreement between Pizza Hut, Inc.
and the Borrower or any Guarantor pursuant to which the Borrower or any
Guarantor operates Pizza Hut Restaurants, as the same may from time to
time be amended, supplemented, restated or otherwise modified.


 


“Pizza Hut
Leases” shall mean the various lease and sublease agreements, including
such lease and sublease agreements which are in existence on the Closing Date
and described or referred to on Schedule 7.20, pursuant to which
Holdings or any of its Subsidiaries leases Restaurant Locations in respect of
Pizza Hut Restaurants, as the same may from time to time be amended, supplemented,
restated or otherwise modified.


 


28





















 


“Pizza Hut
Restaurants” shall mean the Pizza Hut and Wing Street restaurants owned and
operated by Holdings or any of its Subsidiaries on the Closing Date, and any
other Pizza Hut restaurants in which Holdings or any of its Subsidiaries
acquires an interest and operates after the Closing Date.


 


“Plan”
shall mean any employee pension benefit plan, as defined in Section 3(2) of
ERISA, which (i) is currently or hereafter sponsored, maintained or
contributed to by Holdings, any of its Subsidiaries or an ERISA Affiliate or (ii) was
at any time during the preceding three calendar years sponsored, maintained or
contributed to, by Holdings, any of its Subsidiaries or an ERISA Affiliate.


 


“Post-Default
Rate” shall mean, in respect of any overdue principal of any Loan or any
other overdue amount payable by the Borrower under this Agreement or any other
Loan Document, a rate per annum during the period commencing on the date such
principal or amount is due until such principal or amount is paid in full equal
to 2% per annum above the Base Rate as in effect from time to time plus the
Applicable Margin (if any), but in no event to exceed the Highest Lawful Rate; provided,
however, for a LIBOR Loan, the “Post-Default Rate” for such principal
shall be, for the period commencing on the date such principal is due and
ending on the earlier to occur of the last day of the Interest Period therefor
or the date such principal is paid, 2% per annum above the interest rate for
such Loan as provided in Section 3.02(a)(ii), but in no event to
exceed the Highest Lawful Rate.


 


“Pre-Opening
Expenses” shall mean all cash expenses incurred in preparation of a
Restaurant opening, to the extent not capitalized and amortized in accordance
with GAAP.


 


“Prime Rate”
shall mean the rate of interest from time to time announced publicly by the
Administrative Agent at its principal office in New York City as its prime
commercial lending rate. Such rate is set by the Administrative Agent as a
general reference rate of interest, taking into account such factors as the
Administrative Agent may deem appropriate, it being understood that many
of the Administrative Agent’s commercial or other loans are priced in relation
to such rate, that it is not necessarily the lowest or best rate actually
charged to any customer and that the Administrative Agent may make various
commercial or other loans at rates of interest having no relationship to such
rate.


 


“Principal
Office” shall mean the principal office of the Administrative Agent,
presently located at 1111 Fannin, 10th Floor, Houston, Texas 77002.


 


“Pro Forma
Basis” shall mean on a basis in accordance with GAAP and Regulation S-X and
otherwise reasonably satisfactory to the Administrative Agent.


 


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


 


“Purchase
Money Obligation” shall mean, for any Person, the obligations of such
Person in respect of Debt (including Capitalized Lease Obligations) incurred
for the purpose of financing all or any part of the purchase price of any
property (including Capital Securities of any Person) or the cost of
installation, construction or improvement of any property and any refinancing 


 


29





















 


or extensions
thereof; provided, however,
that (i) such Debt is incurred within one year after such acquisition,
installation, construction or improvement of such property by such person and (ii) the
amount of such Debt does not exceed 100% of the cost of such acquisition,
installation, construction or improvement, as the case may be.


 


“Qualified
Capital Stock” of any Person shall mean any Capital Securities of such
Person that are not Disqualified Capital Stock.


 


“Quarterly
Dates” shall mean the last Tuesday of each March, June, September, and
December, in each year; provided, however, that if any such day
is not a Business Day, such Quarterly Date shall be the next succeeding
Business Day.


 


“RCRA”
shall have the meaning assigned to such term in the definition of “Environmental
Laws.”


 


“Real
Property” shall mean, collectively, all right, title and interest
(including any leasehold, mineral or other estate running in favor of owner,
lessee or licensee) in and to any and all parcels of or interests in real
property owned, leased or operated by any Person, whether by lease, license or
other means, together with, in each case, all easements, hereditaments and appurtenances
relating thereto, all improvements and appurtenant fixtures and equipment, all
general intangibles and contract rights and other property and rights
incidental to the ownership, lease or operation thereof.


 


“Recent
Restaurant” means any Restaurant existing as of the Closing Date that was rebuilt,
constructed or acquired within 18 months prior to the Closing Date.


 


“Refinancing”
shall mean the repayment in full, and the termination of any commitment to make
extensions of credit in connection with, all of the outstanding indebtedness of
the Borrower or any of its Subsidiaries listed on Schedule 1.01(a).


 


“Register”
shall have the meaning assigned to such term in Section 12.06(b)(iv).


 


“Regulation
D” shall mean Regulation D of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be amended or supplemented from
time to time.


 


“Regulation
S-X” shall mean Regulation S-X promulgated under the Securities Act.


 


“Regulatory
Change” shall mean, with respect to any Lender, any change after the
Closing Date in any Governmental Requirement (including Regulation D) or the
adoption or making after such date of any interpretations, directives or
requests applying to a class of lenders (including such Lender or its
Applicable Lending Office) of or under any Governmental Requirement (whether or
not having the force of law) by any Governmental Authority charged with the
interpretation or administration thereof.


 


30





















 


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


 


“Rent
Expense” shall mean operating lease expense minus (plus) deferred rent
expense (income) attributable to straight lining of escalation clauses in
leases, determined in accordance with GAAP, of the Borrower and its
Consolidated Subsidiaries for the applicable Test Period. Rent Expense shall (i) be
calculated on a Pro Forma Basis to give effect to the Acquisition, any
Permitted Acquisition and Asset Sales (other than any dispositions in the
ordinary course of business) consummated at any time on or after the first day
of the Test Period thereof as if the Acquisition and each such Permitted
Acquisition had been effected on the first day of such period and as if each
such Asset Sale had been consummated on the day prior to the first day of such
period, (ii) without duplication of clause (i), include (or exclude) Rent
Expense attributable to acquired (or disposed of) Restaurants prior to the date
of such acquisition (or disposition) and during the applicable Test Period
adjusted for tangible operational changes achievable within one year after the
consummation of the acquisition (or disposition) due to contractual rent
payments on real estate as certified by the President or Chief Financial
Officer of the Borrower, together with appropriate documentation supporting the
reasonableness of any such adjustments and (iii) exclude any lease
expenses to which previously established closure reserves are applicable so
long as such expenses were deducted in the calculation of Consolidated EBITDA
for the period during which such reserves were established.


 


“Required
Payment” shall have the meaning assigned such term in Section 4.04.


 


“Reserve
Requirement” shall mean, for any Interest Period for any LIBOR Loan, the
average maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D by member banks of the Federal Reserve System in New York
City with deposits exceeding one billion Dollars against “Eurocurrency
liabilities” (as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks by reason of any
Regulatory Change against (i) any category of liabilities which includes
deposits by reference to which LIBOR is to be determined as provided in the
definition of “LIBOR” or (ii) any category of extensions of credit or other
assets which include a LIBOR Loan.


 


“Responsible
Officer” of any Person shall mean any executive officer or Financial
Officer of such Person and any other officer or similar official thereof with
responsibility for the administration of the obligations of such Person in
respect of this Agreement.


 


“Restaurants”
shall mean the Pizza Hut Restaurants and any other quick service restaurant
owned and operated by Holdings or any of its Subsidiaries on the Closing Date,
and any other such restaurants in which Holdings or any of its Subsidiaries
acquires an interest and operates after the Closing Date.


 


“Restaurant
Leases” shall mean the Pizza Hut Leases and the various lease and sublease
agreements, including such lease and sublease agreements which are in existence
on the Closing Date and described or referred to on Schedule 7.20,
pursuant to which Holdings or any of its 


 


31





















 


Subsidiaries
leases Restaurant Locations, as the same may from time to time be amended,
supplemented, restated or otherwise modified.


 


“Restaurant
Location” shall mean, with respect to any Restaurant, the Real Property
upon which such Restaurant is located.


 


“Restricted
Payments” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Capital Securities of
Holdings 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 Securities or any option, warrant or other right to acquire
any such Capital Securities.


 


“Revolving
Credit Commitment” shall mean, for any Revolving Credit Lender, its obligation
to make Revolving Credit Loans and participate in the issuance of Letters of
Credit up to such Revolving Credit Lender’s Maximum Revolving Credit Amount.


 


“Revolving
Credit Lenders” shall mean the Lenders obligated to make Revolving Credit
Loans pursuant to the terms of this Agreement.


 


“Revolving
Credit Loans” shall mean the Loans made pursuant to Section 2.01(a).


 


“Revolving
Credit Notes” shall mean the promissory note or notes (whether one or more)
of the Borrower described in Section 2.07 and being in the form of
Exhibit I-1.


 


“Revolving
Credit Percentage Share” shall mean, for any Revolving Credit Lender, the
percentage of the Aggregate Maximum Revolving Credit Amounts represented by
such Lender’s Maximum Revolving Credit Amount.


 


“Revolving
Credit Termination Date” shall mean the earlier to occur of (i) May 3,
2012 or (ii) the date that the Commitments are sooner terminated pursuant
to Section 2.04(b) or 10.02.


 


“Sale and
Leaseback Transaction” shall mean any arrangement, directly or indirectly,
with any other Person whereby a Person shall sell, lease or otherwise transfer
any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred.


 


“SEC”
shall mean the Securities and Exchange Commission or any successor Governmental
Authority.


 


“Secured
Obligations” shall mean (a) the Obligations, (b) the due and
punctual payment and performance of all obligations of the Borrower and the
other Loan Parties under each Hedging Agreement entered into with any
counterparty that is a Secured Party and (c) at the Borrower’s
option, the due and punctual payment and performance of all obligations of
the Borrower and the other Loan Parties (including overdrafts and related
liabilities) under each Treasury Services Agreement entered into with any
counterparty that is a Secured Party.


 


32





















 


“Secured
Parties” shall mean, collectively, the Administrative Agent, the Collateral
Agent, each other Agent, the Lenders and each counterparty to a Hedging
Agreement or, at the Borrower’s option, Treasury Services Agreement if at the
date of entering into such Hedging Agreement or Treasury Services Agreement
such Person was a Lender or an Affiliate of a Lender and such Person executes
and delivers to the Administrative Agent a letter agreement in form and
substance acceptable to the Administrative Agent pursuant to which such Person (i) appoints
the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees
to be bound by the provisions of Sections 10.03, 12.03 and 12.13
as if it were a Lender.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 


“Securities
Collateral” shall have the meaning assigned to such term in the Security
Agreement.


 


“Security
Agreement” shall mean a Security Agreement substantially in the form of
Exhibit J among the Loan Parties and Collateral Agent for the
benefit of the Secured Parties.


 


“Security
Agreement Collateral” shall mean all property pledged or granted as
collateral pursuant to the Security Agreement (a) on the Closing Date or (b) thereafter
pursuant to Section 8.09.


 


“Security
Instruments” shall mean the agreements or instruments described or referred
to in Exhibit K, and any and all other agreements or instruments
now or hereafter executed and delivered by the Borrower or any other Person
(other than participation or similar agreements between any Lender and any
other lender or creditor with respect to any Obligations pursuant to this
Agreement) in connection with, or as security for the payment or performance
of, the Secured Obligations, the Notes, this Agreement, or reimbursement
obligations under the Letters of Credit, as such agreements may be
amended, supplemented or restated from time to time.


 


“Senior
Subordinated Notes” shall mean the Borrower’s 9.5% Senior Subordinated
Notes due 2014 issued pursuant to the Senior Subordinated Notes Indenture and
any registered notes issued by the Borrower in exchange for, and as
contemplated by, such notes with substantially identical terms as such notes.


 


“Senior
Subordinated Notes Documents” shall mean the Senior Subordinated Notes, the
Senior Subordinated Notes Indenture, the Senior Subordinated Notes Guarantees
and all other documents executed and delivered with respect to the Senior
Subordinated Notes or the Senior Subordinated Notes Indenture.


 


“Senior
Subordinated Notes Guarantees” shall mean the guarantees of the Subsidiary
Guarantors pursuant to the Senior Subordinated Notes Indenture.


 


“Senior
Subordinated Notes Indenture” shall mean that certain indenture dated as of
the date hereof among the Borrower, the Guarantors and Wells Fargo Bank,
National Association, as trustee, pursuant to which the Senior Subordinated
Notes are issued as in effect on the date 


 


33





















 


hereof and
thereafter amended from time to time in accordance with the requirements of
this Agreement.


 


“Special
Entity” shall mean any joint venture, limited liability company or
partnership, general or limited partnership or any other type of partnership or
company other than a corporation in which a Person or one or more of its
Subsidiaries is a member, owner, partner or joint venturer and owns, directly
or indirectly, at least a majority of the equity of such entity or controls
such entity, but excluding any tax partnerships that are not classified as
partnerships under state law. For purposes of this definition, any Person which
owns directly or indirectly an equity investment in another Person which allows
the first Person to manage or elect managers who manage the normal activities
of such second Person will be deemed to “control” such second Person (e.g.
a sole general partner controls a limited partnership).


 


“Sponsor”
shall mean ML Global Private Equity Fund, L.P.


 


“Subsidiary”
shall mean (i) any corporation of which at least a majority of the outstanding
shares of stock having by the terms thereof ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) are at the time directly or indirectly owned or controlled by
another Person or one or more of such Person’s Subsidiaries or by such Person
and one or more of its Subsidiaries and (ii) any Special Entity. Unless
otherwise indicated herein, each reference to the term “Subsidiary” shall mean
a Subsidiary of Holdings.


 


“Survey”
shall mean (i) a survey of any Owned Mortgaged Property (and all
improvements thereon) prepared by a surveyor or engineer licensed to perform surveys
in the jurisdiction where such Mortgaged Property is located, which survey was
delivered in 2001 in connection with that certain Credit Agreement dated as of August 31,
2001 among the Borrower, NPC Management, JPMC, as administrative agent, and the
lenders and other parties thereto, or (ii) an affidavit of no change
executed by the Borrower specifying that the applicable Owned Mortgaged
Property has not been materially changed since the applicable survey was delivered
in 2001.


 


“Swingline
Commitment” shall mean, for the Swingline Lender, its obligation to make
Swingline Loans up to $15.0 million.


 


“Swingline
Lender” shall mean JPMC or such other Lender as the Administrative Agent,
the Borrower and the Swingline Lender shall agree.


 


“Swingline
Loans” shall mean the Loans made pursuant to Section 2.01(c).


 


“Swingline
Note” shall mean the promissory note or notes (whether one or more) of the
Borrower described in Section 2.06 and being in the form of Exhibit I-3.


 


“Syndication
Agent” shall have the meaning assigned to such term in the preamble hereto.


 


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“Taxes”
(i) means any and all present or future taxes, duties, levies,
assessments, imposts, deductions, withholdings or other similar charges or fees
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto (whether domestic or foreign and including any
federal, state, United States possession, country, local, provincial or foreign
government or any subdivision or taxing agency thereof), whether computed on a
separate, consolidated, unitary, combined or other basis and any and all
liabilities (including interest, fines, penalties or additions to tax) with
respect to the foregoing, and (ii) any transferree, successor, joint and
several, contractual or other liability (including liability pursuant to
Treasury Regulation § 1.1502-6 (or any similar provision of state, local
or non-United States law)) in respect of any item described in clause (i).


 


“Term
Commitment” shall mean, as to each Lender, its obligation to make a Term
Loan in the amount set forth opposite such Lender’s name under “Term Loans” on Annex
I, as the same may be modified from time to time to reflect any
assignment permitted by Section 12.06(b) or by an Increase
Joinder.


 


“Term
Lenders” shall mean the Lenders obligated to make and/or thereafter holding
Term Loans.


 


“Term Loan
Maturity Date” shall mean May 3, 2013.


 


“Term Loans”
shall mean the term loans made pursuant to Section 2.01(b) and
any Incremental Term Loans.


 


“Term Notes”
shall mean the promissory note or notes (whether one or more) of the Borrower
described in Section 2.06 and being in the form of Exhibit I-2.


 


“Test
Period” shall mean, at any time, the four consecutive fiscal quarters of
the Borrower then last ended (in each case taken as one accounting period) for
which financial statements have been delivered pursuant to Section 8.01(a) or
(b).


 


“Title
Company” shall mean any title insurance company as shall be retained by the
Borrower and reasonably acceptable to the Administrative Agent.


 


“Title
Policy” shall have the meaning assigned to such term in Section 6.01(q)(iii).


 


“Total
Capital Expenditures” shall mean, for any period, all expenditures of
Holdings and its Consolidated Subsidiaries for such period in respect of fixed
assets, determined in accordance with GAAP, but excluding (i) the Net Cash
Proceeds from any Asset Sale or Casualty Event that are applied by Holdings and
its Consolidated Subsidiaries to the acquisition or construction of fixed
assets and (ii) Permitted Acquisitions.


 


“Transaction
Documents” shall mean the Acquisition Documents, the Senior Subordinated
Notes Documents and the Loan Documents.


 


“Transactions”
shall mean, collectively, the transactions to occur on or prior to the Closing
Date pursuant to the Transaction Documents, including (a) the consummation
of the Acquisition;


 


35





















 


(b) the
execution, delivery and performance of the Loan Documents and the initial
borrowings hereunder; (c) the Refinancing; (d) the Equity Financing; (e) the
issuance of the Senior Subordinated Notes; and (f) the payment of all fees
and expenses to be paid on or prior to the Closing Date and owing in connection
with the foregoing.


 


“Transferred
Guarantor” shall have the meaning assigned to such term in Section 13.09.


 


“Treasury
Services Agreement” shall mean any agreement relating to treasury,
depositary and cash management services or automated clearinghouse transfer of
funds.


 


“Type,”
when used in reference to any Loan refers to whether the rate of interest on
such Loan is determined by reference to the LIBOR Adjusted Rate or the Base
Rate.


 


“Voting
Stock” shall mean, with respect to any Person, any class or classes of
Capital Securities pursuant to which the holders thereof as an aggregate, have
the general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors of such Person.


 


“Wholly-Owned
Subsidiary” shall mean, as to any Person, any Subsidiary of which all of
the outstanding shares of capital stock or other equity interests, on a
fully-diluted basis, are owned by such Person or one or more of its
Wholly-Owned Subsidiaries or by such Person and one or more of its Wholly-Owned
Subsidiaries. Unless otherwise indicated, each reference to a “Wholly-Owned
Subsidiary” shall mean a Wholly-Owned Subsidiary of Holdings.


 


Section 1.02                                Accounting
Terms; GAAP. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of any
provision hereof by setting forth such elimination in reasonable detail
(including a reconciliation to GAAP) in the applicable Compliance Certificate
or certificates or by an amendment to any provision hereof (or if the Administrative
Agent notifies the Borrower that the Majority Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such certificate request is withdrawn or
such provision amended in accordance herewith.


 


Section 1.03                                Terms
Generally. 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.”  Unless the context requires otherwise (a) any
definition of or reference to any Loan Document, agreement, instrument or other
document herein 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), (b) any reference herein to any Person
shall be construed to include such 


 


36





















 


Person’s successors
and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words
of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, (e) any reference to any law or regulation herein shall refer
to such law or regulation as amended, modified or supplemented from time to
time, (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
and (g) “on,” when used with respect to the Mortgaged Property or any
property adjacent to the Mortgaged Property, means “on, in, under, above or
about.”


 


Section 1.04                                Resolution
of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it
was represented by counsel in connection with the execution and delivery of the
Loan Documents to which it is a party, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and thereof and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation hereof or
thereof.


 


ARTICLE II


 


Commitments


 


Section 2.01                                Loans
and Letters of Credit.


 


(a)                                  Revolving
Credit Loans. Each Revolving Credit Lender severally agrees, on the terms
and conditions of this Agreement, to make Revolving Credit Loans to the
Borrower during the period from and including (i) the Closing Date or (ii) such
later date that such Revolving Credit Lender becomes a party to this Agreement
as provided in Section 12.06(b), to and up to, but excluding, the
Revolving Credit Termination Date in an aggregate principal amount at any one
time outstanding up to, but not exceeding, the amount of such Revolving Credit
Lender’s Revolving Credit Commitment as then in effect; provided, however,
that (x) the sum of the aggregate principal amount of all such Revolving Credit
Loans by all Revolving Credit Lenders hereunder at any one time outstanding,
plus the LC Exposure, plus the aggregate amount of Swingline Loans outstanding
shall not exceed the Aggregate Maximum Revolving Credit Amounts and (y) not
more than $5.0 million of Revolving Credit Loans may be made on the
Closing Date. Subject to the terms of this Agreement, during the period from
the Closing Date to and up to, but excluding, the Revolving Credit Termination
Date, the Borrower may borrow, repay and reborrow the amount described in
this Section 2.01(a).


 


(b)                                 Term
Loans. Each Term Lender severally agrees, subject to the terms and
conditions of this Agreement, to make Term Loans to the Borrower equal to its
Term Commitment. Such Term Loans shall be made by way of a single borrowing
made on the Closing Date. Any portion of each Term Lender’s Term Commitment not
utilized by such borrowing on such date shall be permanently canceled.


 


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(c)                                  Swingline
Loans.


 


(i)                                     Solely
for ease of administration of the Revolving Credit Loans, the Swingline Lender
agrees, on the terms and conditions of this Agreement, to make Swingline Loans
to the Borrower during the period from and including the Closing Date to and up
to, but excluding, the Revolving Credit Termination Date in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of the
Swingline Commitment; provided, however, the Swingline Lender
shall not make any Swingline Loan pursuant hereto to the extent that after giving
effect to such Swingline Loan, (i) the outstanding Swingline Loans exceed
the Swingline Commitment, (ii) the sum of all (A) Revolving Credit Loans
then outstanding, plus (B) Swingline Loans outstanding, plus (C) the
LC Exposure exceeds the Aggregate Maximum Revolving Credit Amounts, or (iii) the
Swingline Lender has knowledge of the occurrence of a Default. Subject to the
terms of this Agreement, during the period from the Closing Date to but excluding,
the Revolving Credit Termination Date, the Borrower may borrow, repay and
reborrow Swingline Loans under this Section 2.01(c).


 


(ii)                                  The
Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower maintained
with the Swingline Lender by no later than 2:30 p.m. Houston, Texas time
on the requested date of such Swingline Loan.


 


(iii)                               The
Borrower and each Revolving Credit Lender which is or may become a party
hereto acknowledge that all Swingline Loans are to be made solely by the
Swingline Lender to the Borrower, but that such Revolving Credit Lender shall
share the risk of loss with respect to such Swingline Loans from and after the
date Swingline Lender demands that each Revolving Lender purchase its Revolving
Credit Percentage Share of each Swingline Loan in an amount equal to such
Revolving Credit Lender’s Revolving Credit Percentage Share of such Swingline
Loan. Upon demand made by the Swingline Lender, each Revolving Credit Lender
(including the Swingline Lender) shall, according to its Revolving Credit
Percentage Share of such Swingline Loan, promptly provide to the Swingline
Lender its purchase price therefor in an amount equal to its Revolving Credit
Percentage Share therein, in which case such Swingline Loan shall be deemed
from and after such date a Revolving Credit Loan made under Section 2.01(a).
The obligation of each Revolving Credit Lender to so provide its purchase price
to the Swingline Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default or any other occurrence or event.


 


(iv)                              The
Borrower at its option may request a Revolving Credit Loan pursuant to Section 2.01(a) in
an amount sufficient to repay any or all Swingline Loans on any date, and the
Administrative Agent shall, upon the receipt of such Revolving Credit Loan,
provide to the Swingline Lender the amount necessary to repay such Swingline
Loan or Loans (which the Swingline Lender shall then apply to such repayment)
and credit any balance of the Revolving Credit Loan in immediately available
funds to the Borrower’s account. The proceeds of such Revolving Credit Loans
shall be paid to the Swingline Lender for application to the outstanding
Swingline Loans and the Revolving Credit Lenders shall then be deemed to have
made Revolving Credit Loans pursuant to Section 2.01(a) in the
amount of such advances. The obligation of the Swingline Lender to fund Swingline
Loans shall cease upon the earlier of (i) the occurrence 


 


38





















 


of a Default, or (ii) the Revolving
Credit Termination Date; provided that when a Default is no longer
continuing, the Swingline Lender shall be obligated to provide Swingline Loans
provided all other conditions to making Loans are satisfied.


 


(v)                                 If
not sooner converted to a Revolving Credit Loan pursuant to Section 2.01(c)(iii) or
(iv), the Borrower shall repay to the Swingline Lender each Swingline
Loan (together with all interest accrued thereon until the date of payment) not
later than 30 days after the date such Swingline Loan was advanced, but in any
event on or before the Revolving Credit Termination Date. If the Borrower
instructs the Swingline Lender to debit its demand deposit account in an amount
of any payment with respect to a Swingline Loan, or the Swingline Lender
otherwise receives repayment after 2:00 p.m. Houston, Texas time, on a Business
Day, such payment shall be deemed received on the next Business Day.


 


(d)                                 Limitation
on Types of Loans. Subject to the other terms and provisions of this
Agreement, at the option of the Borrower, the Loans (other than Swingline
Loans) may be Base Rate Loans or LIBOR Loans; provided that, without
the prior written consent of the Administrative Agent, no more than twelve (12)
LIBOR Loans may be outstanding at any time. Each Swingline Loan shall be a
Base Rate Loan.


 


Section 2.02                                Borrowings,
Continuations and Conversions, Letters of Credit.


 


(a)                                  Borrowings.
The Borrower shall give the Administrative Agent (which shall promptly notify
the Lenders) advance notice as hereinafter provided of each borrowing
hereunder, which shall specify (i) the aggregate amount of such borrowing,
(ii) the Type, (iii) the date (which shall be a Business Day) of the
Loans to be borrowed, and (iv) (in the case of LIBOR Loans) the duration
of the Interest Period therefor.


 


(b)                                 Minimum
Amounts. All Base Rate Loan borrowings shall be in amounts of at least $1.0
million or the remaining balance of the Aggregate Maximum Revolving Credit
Amounts, if less, or any whole multiple of $1.0 million in excess thereof, and
all LIBOR Loans shall be in amounts of at least $1.0 million or any whole
multiple of $1.0 million in excess thereof. All Swingline Loans shall be in
amounts of at least $100,000 or any whole multiple of $100,000 in excess
thereof.


 


(c)                                  Notices.
All borrowings, continuations and conversions shall require advance written
notice to the Administrative Agent (which shall promptly notify the applicable
Lenders), in the form of Exhibit L (or telephonic notice
promptly confirmed by such a written notice), which in each case shall be
irrevocable, from the Borrower to be received by the Administrative Agent (i) not
later than 10:00 a.m. Houston, Texas time on the date of each Swingline
Loan and (ii) with respect to all Loans other than Swingline Loans, not
later than 11:00 a.m. Houston, Texas time at least one Business Day prior
to the date of each Base Rate Loan borrowing and three Business Days prior to
the date of each LIBOR Loan borrowing, continuation or conversion. Without in
any way limiting the Borrower’s obligation to confirm in writing any telephonic
notice, the Administrative Agent may act without liability upon the basis
of telephonic notice believed by the Administrative Agent in good faith to be
from the Borrower prior to receipt of written confirmation. In each such case,
the Borrower hereby waives the right to dispute 


 


39





















 


the Administrative Agent’s
record of the terms of such telephonic notice except in the case of gross negligence
or willful misconduct by the Administrative Agent.


 


(d)                                 Continuation
Options. Subject to the provisions made in this Section 2.02(d),
the Borrower may elect to continue all or any part of any LIBOR Loan
beyond the expiration of the then current Interest Period relating thereto by
giving advance notice as provided in Section 2.02(c) to the
Administrative Agent (which shall promptly notify the applicable Lenders) of
such election, specifying the amount of such Loan to be continued and the
Interest Period therefor. In the absence of such a timely and proper election,
the Borrower shall be deemed to have elected to convert such LIBOR Loan to a
Base Rate Loan pursuant to Section 2.02(e). All or any part of
any LIBOR Loan may be continued as provided herein; provided that (i) any
continuation of any such Loan shall be (as to each Loan as continued for an
applicable Interest Period) in amounts of at least $1.0 million or any whole
multiple of $1.0 million in excess thereof and (ii) no Default shall have
occurred and be continuing. If a Default shall have occurred and be continuing,
each LIBOR Loan shall be converted to a Base Rate Loan on the last day of the
Interest Period applicable thereto.


 


(e)                                  Conversion
Options. The Borrower may elect to convert all or any part of any
LIBOR Loan on the last day of the then current Interest Period relating thereto
to a Base Rate Loan by giving advance notice to the Administrative Agent (which
shall promptly notify the applicable Lenders) of such election. Subject to the
provisions made in this Section 2.02(e), the Borrower may elect
to convert all or any part of any Base Rate Loan (other than a Swingline
Loan) at any time and from time to time to a LIBOR Loan by giving advance
notice as provided in Section 2.02(c) to the Administrative
Agent (which shall promptly notify the applicable Lenders) of such election.
All or any part of any outstanding Loan may be converted as provided
herein; provided that (i) any conversion of any Base Rate Loan into
a LIBOR Loan shall be (as to each such Loan into which there is a conversion
for an applicable Interest Period) in amounts of at least $1.0 million or any
whole multiple of $1.0 million in excess thereof and (ii) no Default shall
have occurred and be continuing. If a Default shall have occurred and be
continuing, no Base Rate Loan may be converted into a LIBOR Loan.


 


(f)                                    Advances.
Not later than 11:00 a.m. Houston, Texas time on the date specified for
each borrowing hereunder, each Lender shall make available the amount of the
Loan to be made by it on such date to the Administrative Agent, to an account
which the Administrative Agent shall specify, in immediately available funds,
for the account of the Borrower. The amounts so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower by depositing the same, in immediately available
funds, in an account of the Borrower, designated by the Borrower and maintained
at the Principal Office.


 


Section 2.03                                Letters
of Credit.


 


(a)                                  General.
Subject to the terms and conditions set forth herein, the Borrower may request
the issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time prior to the Revolving Credit Termination Date. In the event
of any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application 


 


40





















 


or other agreement submitted by
the Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.


 


All Existing
Letters of Credit shall be deemed to be issued under this Agreement and shall
constitute Letters of Credit subject to the terms of this Agreement.


 


(b)                                 Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy
(or transmit by electronic communication, if arrangements for doing so have
been approved by the Issuing Bank) to the Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall
submit a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension the LC Exposure shall not exceed the LC Commitment.


 


(c)                                  Expiration
Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that
is five Business Days prior to the Revolving Credit Termination Date. If the
Borrower so requests, the Issuing Bank may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic extension provisions
(each, an “Auto-Extension Letter of Credit”). Unless otherwise directed
by the Issuing Bank, the Borrower shall not be required to make a specific
request to the Issuing Bank for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed
to have authorized (but may not require) the Issuing Bank to permit the
extension of such Letter of Credit at any time to an expiry date not later than
the earlier of (i) one year from the date of such extension and (ii) the
date that is five Business Days prior to the Revolving Credit Termination Date;
provided that the Issuing Bank shall not
permit any such extension if (x) the Issuing Bank has determined that it
would have no obligation at such time to issue such Letter of Credit in its extended
form under the terms hereof or (y) it has received notice on or
before the day that is two Business Days before the date which has been agreed
upon pursuant to the proviso of the first sentence of this paragraph, (1) from
the Administrative Agent that any Revolving Credit Lender directly affected
thereby has elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable conditions
specified in Section 6.02 are not then satisfied.


 


41





















 


(d)                                 Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of
the Issuing Bank or the Revolving Credit Lenders, the Issuing Bank hereby
grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Revolving Credit Percentage Share of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender’s Revolving Credit Percentage Share of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever.


 


(e)                                  Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Houston,
Texas time, on the Business Day after the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement prior
to 10:00 a.m., Houston, Texas time, on the date such LC Disbursement is
made, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, Houston, Texas time, on the
Business Day immediately following the day that the Borrower receives such notice
(or the second Business Day immediately following the day that the Borrower
receives such notice if delivered after 10:00 a.m. Houston, Texas time); provided
that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.02(c) that such payment
be financed with an Base Rate Revolving Credit Loan or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting Base Rate
Revolving Credit Loan or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Revolving Credit Percentage Share thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Revolving Credit Percentage Share of the payment then due from the
Borrower, in the same manner as provided in Sections 2.02(f) and
4.04 with respect to Loans made by such Lender (and Sections 2.02(f) and
4.04 shall apply, mutatis  mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the Issuing
Bank the amounts so received by it from the Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant
to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other
than the funding of Base Rate Revolving 


 


42





















 


Credit Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement.


 


(f)                                    Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter
of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document that
does not strictly comply with the terms of such Letter of Credit, or (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank’s failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.


 


(g)                                 Disbursement
Procedures. The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a
Letter of Credit. The Issuing Bank shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.


 


43





















 


(h)                                 Interim
Interest. If the Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that the Borrower reimburses such LC Disbursement, at the rate per
annum then applicable to Base Rate Revolving Credit Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 3.02(b) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section to reimburse
the Issuing Bank shall be for the account of such Lender to the extent of such
payment.


 


(i)                                     Replacement
of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced
Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Bank. At the time any such
replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section 2.05(b).
From and after the effective date of any such replacement, (i) the successor
Issuing Bank shall have all the rights and obligations of the Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


 


(j)                                     Cash
Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative
Agent or the Majority Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (e), (f) or (g) of Section 10.01.
Such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and reasonable discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at 


 


44





















 


such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Lenders with
LC Exposure representing greater than 50% of the total LC Exposure), be applied
to satisfy other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.


 


Section 2.04                                Changes
of Commitments.


 


(a)                                  The
Aggregate Maximum Revolving Credit Amounts shall at all times be equal to the
Aggregate Maximum Revolving Credit Amounts after adjustments resulting from
reductions pursuant to Section 2.04(b).


 


(b)                                 The
Borrower shall have the right to terminate or to reduce the amount of the
Aggregate Maximum Revolving Credit Amounts at any time, or from time to time,
upon not less than three (3) Business Days’ prior notice delivered before
11:00 a.m. Houston, Texas time to the Administrative Agent (which shall
promptly notify the Revolving Credit Lenders) of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which shall not be less than $5.0 million or any whole
multiple of $1.0 million in excess thereof) and shall be irrevocable and
effective only upon receipt by the Administrative Agent.


 


(c)                                  The
Aggregate Maximum Revolving Credit Amounts, once terminated or reduced, may not
be reinstated or increased.


 


Section 2.05                                Fees.


 


(a)                                  Commitment
Fee. The Borrower shall pay to the Administrative Agent for the account of
each Revolving Credit Lender a commitment fee on the daily average unused
amount of the Aggregate Maximum Revolving Credit Amounts (subtracting therefrom
the LC Exposure) for the period from and including the Closing Date up to, but
excluding, the Revolving Credit Termination Date at a rate per annum equal to
the applicable per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Leverage Ratio as of the most recent Test
Period:


 




	
  Leverage Ratio

  	
   

  	
  Commitment Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  >4.75:1.00

  	
   

  	
  0.500

  	
  %

  
	
  >3.50:1.00
  and < 4.75:1.00

  	
   

  	
  0.500

  	
  %

  
	
  <
  3.50:1.00

  	
   

  	
  0.375

  	
  %

  






 


The commitment
fee shall be established as of each date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 8.01(a) or
(b) and Section 8.01(c). Each change in the commitment
fee resulting from a change in (or an initial calculation of) the Leverage
Ratio shall be effective on and after the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 8.01(a) or
(b) and Section 8.01(c), 


 


45





















 


respectively,
indicating such change (or calculation) until the date immediately preceding
the next date of delivery of such financial statements and certificates
indicating another such change; provided, however, if the
Borrower shall fail to deliver any required financial statements or certificates
within the time period required by such Sections or if an Event of Default
under Section 10.01(a) has occurred and is continuing, the
commitment fee shall be the highest percentage amount set forth in the above
table from the date such item was required to be delivered or such Event of
Default occurred, as the case may be, until the appropriate financial
statements and certificates are so delivered or until such Event of Default
ceases to be continuing, as the case may be. Notwithstanding the
foregoing, during the period beginning on the Closing Date and ending on the
date on which the items required to be delivered pursuant to Sections 8.01(b) and
(c) with respect to the second Fiscal Quarter commenced after the
Closing Date are delivered, the commitment fee will be 0.50%.


 


Accrued
commitment fees shall be payable quarterly in arrears on each Quarterly Date
and on the Revolving Credit Termination Date. For purposes of computing the
commitment fees payable hereunder, outstanding Swingline Loans shall be
disregarded.


 


(b)                                 Letter
of Credit Fees. The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Revolving Credit Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the
same Applicable Margin used to determine the interest rate applicable to
Revolving Credit Loans that are LIBOR Loans on the average daily amount of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Closing Date to but
excluding the later of the date on which such Lender’s Revolving Credit
Commitment terminates and the date on which such Revolving Credit Lender ceases
to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee,
which shall accrue at the rate of 0.125% per annum on the average daily amount
of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Closing Date to but
excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there ceases to be any LC Exposure, as well
as the Issuing Bank’s standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable
quarterly in arrears on each Quarterly Date; provided that all such fees
shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving
Credit Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).


 


(c)                                  Fee
Letters. The Borrower shall pay such fees as are set forth in the Fee
Letters on the dates and in the manner specified therein.


 


(d)                                 All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to (unless otherwise called for by a Fee Letter) the Administrative
Agent (or to the 


 


46





















 


Issuing Bank, in the case of
fees payable to it) for distribution, in the case of facility fees and
participation fees, to the Lenders. Fees paid shall not be refundable under any
circumstances.


 


Section 2.06                                Several
Obligations. The failure of any Lender to make any Loan to be made by it or
to provide funds for disbursements or reimbursements under Letters of Credit on
the date specified therefor shall not relieve any other Lender of its
obligation to make its Loan or provide funds on such date, but no Lender shall
be responsible for the failure of any other Lender to make a Loan to be made by
such other Lender or to provide funds to be provided by such other Lender.


 


Section 2.07                                Notes.
The Revolving Credit Loans (other than Swingline Loans) made by each Revolving
Credit Lender shall, at the request of such Revolving Credit Lender, be evidenced
by a single promissory note of the Borrower in substantially the form of Exhibit I-1,
dated (i) the Closing Date or (ii) the effective date of an
Assignment pursuant to Section 12.06(b), payable to the order of
such Revolving Credit Lender in a principal amount equal to its Maximum
Revolving Credit Amount as originally in effect and otherwise duly completed
and such substitute Notes as required by Section 12.06(b). The Term
Loans made by each Term Lender shall, at the request of such Term Lender, be
evidenced by a single promissory note of the Borrower in substantially the form of
Exhibit I-2, dated as of (i) the Closing Date or (ii) the
effective date of an Assignment pursuant to Section 12.06(b), payable to
the order of such Term Lender and otherwise duly completed. The Swingline Loans
made by the Swingline Lender resulting from the advances under Section 2.01(c) shall,
at the request of the Swingline Lender, be evidenced by a promissory note of
the Borrower in substantially the form of Exhibit I-3, dated
the Closing Date, payable to the order of the Swingline Lender in a principal
amount equal to the Swingline Commitment. The date, amount, Type, interest rate
and Interest Period of each Loan made by each Lender, and all payments made on
account of the principal thereof, shall be recorded by such Lender on its books
for its Notes, and, prior to any transfer may be endorsed by such Lender
on the schedule attached to such Notes or any continuation thereof or on
any separate record maintained by such Lender. Failure to make any such
notation or to attach a schedule shall not affect any Lender’s or the
Borrower’s rights or obligations in respect of such Loans or affect the validity
of such transfer by any Lender of its Note.


 


Section 2.08                                Prepayments.


 


(a)                                  Voluntary
Prepayments. The Borrower may prepay the Loans, subject to Section 2.08(g),
Section 2.08(h), Section 2.08(i) and Section 5.03
with the amount of the prepayment being at least $1.0 million for all Loans
other than Swingline Loans and at least $100,000 for Swingline Loans or the
remaining aggregate principal balance outstanding on the relevant Loans.


 


(b)                                 Revolving
Credit Loan Prepayments. If, after giving effect to any termination or
reduction of the Aggregate Maximum Revolving Credit Amounts pursuant to Section 2.03(b),
the outstanding aggregate principal amount of the Revolving Credit Loans and
the Swingline Loans, plus the LC Exposure exceeds the Aggregate Maximum
Revolving Credit Amounts, the Borrower shall (i) prepay the Revolving
Credit Loans and the Swingline Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess, together with
interest on the principal amount paid accrued to the date of such prepayment
and (ii) if any excess 


 


47





















 


remains after prepaying all of
the Revolving Credit Loans and the Swingline Loans because of LC Exposure, pay
to the Administrative Agent on behalf of the Revolving Credit Lenders an amount
equal to the excess to be held as cash collateral as provided in Section 2.03(j)
hereof.


 


(c)                                  Asset
Sales. Not later than five Business Days following the receipt of any Net
Cash Proceeds of any Asset Sale by Holdings or any of its Subsidiaries, the
Borrower shall make prepayments in accordance with Sections 2.08(g) and
(h) in an aggregate amount equal to 100% of such Net Cash Proceeds;
provided that:


 


(i)                                     no such prepayment
shall be required under this Section 2.08(c) with respect to (A) any
Asset Sale permitted by Section 9.16(a), (B) the disposition
of property which constitutes a Casualty Event, (C) the first eight Sale
and Leaseback Transactions involving Recent Restaurants consummated in
accordance with Section 9.05 after the Closing Date, (D) any
Sale and Leaseback Transaction whereby a leased Restaurant Location that is
subsequently purchased by a Person is then within 90 days of such purchase sold
and leased-back by such purchasing Person, or (E) Asset Sales for Fair
Market Value resulting in no more than $750,000 in Net Cash Proceeds per Asset
Sale (or series of related Asset Sales) and less than $2.5 million in
Net Cash Proceeds in any fiscal year; provided that clause (E) shall
not apply in the case of any Asset Sale described in clause (b) of
the definition thereof;


 


(ii)                                  in the case of Net
Cash Proceeds from Asset Sales permitted by Section 9.16 (other
than those described by clause (i) above or clause (iii) below), so
long as no Event of Default shall exist or arise therefrom, such proceeds shall
not be required to be so applied on such date to the extent that the Borrower
shall have delivered an Officers’ Certificate to the Administrative Agent on or
prior to such date stating that such Net Cash Proceeds are expected to be
reinvested in assets useful for its business within 365 days following the
date of such Asset Sale (which Officers’ Certificate shall set forth the estimates
of the proceeds to be so expended); provided that if all or any portion
of such Net Cash Proceeds is not so reinvested within such 365-day period (or,
if the applicable Company shall have entered into a legally binding commitment
to reinvest such Net Cash Proceeds within such 365-day period, 540 days
following the date of such Asset Sale), such unused portion shall be applied on
the last day of such period as a mandatory prepayment as provided in this Section 2.08(c);
provided,  further, that if the property subject to such Asset
Sale constituted Collateral, then all Property (to the extent of a type that
would otherwise constitute Collateral) purchased with the Net Cash Proceeds
thereof pursuant to this subsection shall be made subject to the Lien of
the applicable Security Instruments in favor of the Collateral Agent, for its
benefit and for the benefit of the other Secured Parties in accordance with Sections 8.05
and 8.09; and


 


(iii)                               in the case of Net Cash
Proceeds from a Sale and Leaseback Transaction of a Restaurant Location in existence
on the Closing Date (it being understood that any Acquired Fee-Owned Restaurant
shall not be subject to this clause (iii) and that Sale and Leaseback
Transactions involving Recent Restaurants consummated in accordance with Section 9.05
after the Closing Date shall not be subject to this clause (iii)), so long as
no Event of Default shall then exist or would arise therefrom, up to 50% of
such proceeds 


 


48





















 


shall not be required to be so applied on such date to the extent that
the Borrower shall have delivered an Officers’ Certificate to the
Administrative Agent on or prior to such date stating that such Net Cash
Proceeds are expected to be reinvested in assets useful for its business within
365 days following the date of such Asset Sale (which Officers’
Certificate shall set forth the estimates of the proceeds to be so expended); provided
that if all or any portion of such Net Cash Proceeds is not so reinvested
within such 365-day period (or, if the applicable Company shall have entered
into a legally binding commitment to reinvest such Net Cash Proceeds within
such 365-day period, 540 days following the date of such Asset Sale), such
unused portion shall be applied on the last day of such period as a mandatory
prepayment as provided in this Section 2.08(c); provided, further,
that if the property subject to such Asset Sale constituted Collateral, then
all Property (to the extent of a type that would otherwise constitute
Collateral) purchased with the Net Cash Proceeds thereof pursuant to this subsection shall
be made subject to the Lien of the applicable Security Instruments in favor of
the Collateral Agent, for its benefit and for the benefit of the other Secured
Parties in accordance with Sections 8.05 and 8.09.


 


(d)                                 Debt
Issuance. Not later than one Business Day following the receipt of any Net
Cash Proceeds of any Debt Issuance by Holdings or any of its Subsidiaries, the
Borrower shall make prepayments in accordance with Sections 2.08(g) and
(h) in an aggregate amount equal to 100% of such Net Cash Proceeds.


 


(e)                                  Casualty
Events. Not later than one Business Day following the receipt of any Net
Cash Proceeds from a Casualty Event by Holdings or any of its Subsidiaries, the
Borrower shall make prepayments in accordance with Sections 2.08(g) and
(h) in an aggregate amount equal to 100% of such Net Cash Proceeds;
provided that:


 


(i)                                     so long as no
Event of Default shall then exist or arise therefrom, such proceeds shall not
be required to be so applied on such date to the extent that the Borrower shall
have delivered an Officers’ Certificate to the Administrative Agent on or prior
to such date stating that such proceeds are expected to be used to repair,
replace or restore any property in respect of which such Net Cash Proceeds were
paid or to reinvest in assets useful for its business, no later than 24 months
following the date of receipt of such proceeds; provided that if the
property subject to such Casualty Event constituted Collateral under the
Security Instruments, then all Property (to the extent of a type that would
otherwise constitute Collateral) purchased with the Net Cash Proceeds thereof
pursuant to this subsection shall be made subject to the Lien of the
applicable Security Instruments in favor of the Collateral Agent, for its
benefit and for the benefit of the other Secured Parties in accordance with Sections 8.05
and 8.09; and


 


(ii)                                  if any portion of
such Net Cash Proceeds shall not be so applied within such 365-day period, such
unused portion shall be applied on the last day of such period as a mandatory
prepayment as provided in this Section 2.08(e).


 


(f)                                    Excess
Cash Flow. No later than 30 days following the earlier of (i) 90 days
after the end of each Excess Cash Flow Period and (ii) the date on which
the financial statements with respect to such fiscal year in which such Excess
Cash Flow Period occurs are delivered pursuant to Section 8.01(a),
the Borrower shall make prepayments in accordance with Sections 2.08(g)


 


49






 










 


and (h) in an aggregate amount equal
to the Applicable Percentage of Excess Cash Flow for the Excess Cash Flow
Period then ended. “Applicable Percentage” means (i) if the Leverage
Ratio as of the end of the Test Period ending corresponding with the end of
such Excess Cash Flow Period is greater than or equal to 4.50:1.00, 75%, (ii)
if the Leverage Ratio as of the end of such Test Period is greater than or
equal to 3.50:1.00 but less than 4:50:1.00, 50%, and (iii) if the Leverage
Ratio as of the end of such Test Period is less than 3.50:1.00, 25%.


 


(g)                                 Application
of Prepayments. Prior to any optional or mandatory prepayment hereunder,
the Borrower shall select the borrowing or borrowings to be prepaid and shall
specify such selection in the notice of such prepayment pursuant to Section 2.08(h),
subject to the provisions of this Section 2.08(g). Any prepayments
pursuant to Section 2.08(a), (c), (d), (e) or (f)
shall be applied to reduce scheduled installments of Term Loans required under Section 3.01(b),
first, to such scheduled prepayments due on dates occurring within the
12 months following such prepayment in direct order of maturity and, second,
on a pro rata basis among the installments remaining
to be made on each other term loan payment date.


 


Amounts to be applied pursuant to this Section 2.08
to the prepayment of Term Loans shall be applied, as applicable, first to
reduce outstanding Base Rate Loans. Any amounts remaining after each such
application shall be applied to prepay LIBOR Term Loans or LIBOR Revolving
Credit Loans, as applicable. Notwithstanding the foregoing, if the amount of
any prepayment of Loans required under this Section 2.08 shall be
in excess of the amount of the Base Rate Loans at the time outstanding (an “Excess
Amount”), only the portion of the amount of such prepayment as is equal to
the amount of such outstanding Base Rate Loans shall be immediately prepaid
and, at the election of the Borrower, the Excess Amount shall be either (A) deposited
in an escrow account on terms reasonably satisfactory to the Collateral Agent
and applied to the prepayment of LIBOR Loans on the last day of the then
next-expiring Interest Period for LIBOR Loans; provided that
(i) interest in respect of such Excess Amount shall continue to accrue
thereon at the rate provided hereunder for the Loans which such Excess Amount
is intended to repay until such Excess Amount shall have been used in full to
repay such Loans and (ii) at any time while a Default has occurred and is
continuing, the Administrative Agent may, and upon written direction from the
Majority Lenders shall, apply any or all proceeds then on deposit to the
payment of such Loans in an amount equal to such Excess Amount or
(B) prepaid immediately, together with any amounts owing to the Lenders
under Section 5.03.


 


(h)                                 Notice
of Prepayment. The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by written
notice of any prepayment hereunder (i) in the case of prepayment of a
LIBOR Adjusted Rate borrowing, not later than 11:00 a.m. Houston, Texas time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of a Base Rate borrowing, not later than 11:00 a.m. Houston, Texas
time, one Business Day before the date of prepayment and (iii) in the case
of prepayment of a Swingline Loan, not later than 11:00 a.m. Houston, Texas
time, on the date of prepayment. Each such notice shall be irrevocable. Each
such notice shall specify the prepayment date (which shall be a Business Day),
the principal amount of each borrowing or portion thereof to be prepaid and, in
the case of a mandatory prepayment, a reasonably detailed calculation of the
amount of such prepayment. Promptly following receipt of any such notice (other
than a notice relating solely to Swingline Loans), the Administrative Agent
shall advise the Lenders of the


 


50

















 


contents thereof. Each partial prepayment of
any borrowing shall be in an amount that would be permitted as provided in Section 2.08(a),
except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a borrowing shall be applied ratably to the
Loans included in the prepaid borrowing and otherwise in accordance with this Section 2.08.
Prepayments shall be accompanied by accrued interest.


 


(i)                                     Generally;
Premium. Prepayments permitted or required under this Section 2.08
shall be without premium or penalty, except as required under Section 5.03
for prepayment of LIBOR Loans and as required by the last sentence of this
subsection (i). Any prepayments of the Revolving Credit Loans may be reborrowed
subject to the then effective Aggregate Maximum Revolving Credit Amounts. Any
prepayments of the Swingline Loans may be reborrowed subject to the provisions
of Section 2.01(d). Any prepayments or repayments on the Term Loans may
not be reborrowed. Any prepayment of Term Loans required by Section 2.08(d)
on or prior to the first anniversary of the Closing Date, shall be accompanied
by a premium equal to 1% of the aggregate principal amount of the Term Loans prepaid.


 


Section 2.09                                [RESERVED].


 


Section 2.10                                [RESERVED].


 


Section 2.11                                Lending
Offices. The Loans of each Type made by each Lender shall be made and
maintained at such Lender’s Applicable Lending Office for Loans of such Type.


 


Section 2.12                                Increase
in Commitments.


 


(a)                                  Borrower
Request. The Borrower may by written notice to the Administrative Agent
elect to request the establishment of one or more new Term Commitments (each,
an “Incremental Term Commitment”) by an amount not in excess of $100.0
million in the aggregate and not less than $25.0 million individually. Each
such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes
that the increased or new Commitments shall be effective, which shall be a date
not less than 10 Business Days after the date on which such notice is delivered
to the Administrative Agent and (ii) the identity of each Person (who must be
reasonably satisfactory to the Administrative Agent) to whom the Borrower proposes
any portion of such increased or new Commitments be allocated and the amounts
of such allocations; provided that any existing Lender approached to
provide all or a portion of the increased or new Commitments may elect or
decline, in its sole discretion, to provide such increased or new Commitment.


 


(b)                                 Conditions.
The increased or new Commitments shall become effective, as of such Increase
Effective Date; provided that:


 


(i)                                     each
of the conditions set forth in Section 6.02 shall be satisfied;


 


(ii)                                  no
Default shall have occurred and be continuing or would result from the
borrowings to be made on the Increase Effective Date;


 


51

















 


(iii)                               after
giving pro forma effect to the borrowings to be made on the Increase Effective
Date and to any change in Consolidated EBITDA and any increase in Debt
resulting from the consummation of any Permitted Acquisition concurrently with
such borrowings as of the date of the most recent financial statements
delivered pursuant to Section 8.01(a) or (b), the Borrower shall
be in compliance with the covenants set forth in Sections 9.12 and 9.13;
and


 


(iv)                              the
Borrower shall deliver or cause to be delivered legal opinions and other
documents reasonably requested by the Administrative Agent in connection with
any such transaction.


 


(c)                                  Terms
of New Loans and Commitments. The terms and provisions of Loans made
pursuant to the new Commitments shall be as follows:


 


(i)                                     terms
and provisions of Loans made pursuant to Incremental Term Commitments (“Incremental
Term Loans”) shall be, except as otherwise set forth herein or in the
Increase Joinder, identical to the Term Loans (it being understood that
Incremental Term Loans may be part of an existing tranche of Term Loans);


 


(ii)                                  the
weighted average life to maturity of all new Term Loans shall be no shorter
than the weighted average life to maturity of the Revolving Credit Loans and
the existing Term Loans;


 


(iii)                               the
maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity
Date”) shall not be earlier than the Final Maturity Date; and


 


(iv)                              the
Applicable Margins for the new Term Loans shall be determined by the Borrower
and the applicable new Lenders; provided, however, that the Applicable Margins for the new Term Loans shall
not be greater than the highest Applicable Margins that may, under any
circumstances, be payable with respect to Term Loans plus 50 basis points (and
the Applicable Margins applicable to the Term Loans shall be increased to the
extent necessary to achieve the foregoing).


 


The increased
or new Commitments shall be effected by a joinder agreement (the “Increase
Joinder”) executed by the Borrower, the Administrative Agent and each
Lender making such increased or new Commitment, in form and substance
satisfactory to each of them. The Increase Joinder may, without the consent of
any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent, to effect the provisions of this Section 2.12. In
addition, unless otherwise specifically provided herein, all references in Loan
Documents to Term Loans shall be deemed, unless the context otherwise requires,
to include references to Incremental Term Loans made pursuant to this
Agreement.


 


(d)                                 Making
of New Term Loans. On any Increase Effective Date on which new Commitments
for Term Loans are effective, subject to the satisfaction of the foregoing
terms and conditions, each Lender of such new Commitment shall make a Term Loan
to Borrower in an amount equal to its new Commitment.


 


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(e)                                  Equal
and Ratable Benefit. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan Documents,
and shall, without limiting the foregoing, benefit equally and ratably from the
Guarantees and security interests created by the Security Instruments, except
that the new Loans may be subordinated in right of payment or the Liens
securing the new Loans may be subordinated, in each case, as set forth in the
Increase Joinder. The Loan Parties shall take any actions reasonably required
by the Administrative Agent to ensure and/or demonstrate that the Lien and
security interests granted by the Security Instruments continue to be perfected
under the UCC or otherwise after giving effect to the establishment of any such
Class of Term Loans or any such new Commitments.


 


ARTICLE III



Payments of Principal and Interest


 


Section 3.01                                Repayment
of Loans.


 


(a)                                  Revolving
Credit Loans. On the Revolving Credit Termination Date the Borrower shall
repay the outstanding principal amount of the Revolving Credit Loans.


 


(b)                                 Term
Loans. The aggregate principal amount of the Term Loans shall be payable in
installments on the dates and in the principal amounts as set forth in Schedule 3.01(b),
with final payment of the remaining principal balance on the Term Loans due on
the Term Loan Maturity Date or Incremental Term Loan Maturity Date, as
applicable.


 


(c)                                  Swingline
Loans. The principal amount of each advance of a Swingline Loan shall be
repaid pursuant to the provisions of Section 2.01(c).


 


(d)                                 Generally.
The Borrower will pay to the Administrative Agent, for the account of each
Lender, the principal payments required by this Section 3.01.


 


Section 3.02                                Interest.


 


(a)                                  Interest
Rates. The Borrower will pay to the Administrative Agent, for the account
of each Lender or the Swingline Lender, interest on the unpaid principal amount
of each Loan made by such Lender for the period commencing on the date such
Loan is made to, but excluding, the date such Loan shall be paid in full, at
the following rates per annum:


 


(i)                                     if
such a Loan is a Base Rate Loan, the Base Rate (as in effect from time to time)
plus the Applicable Margin, but in no event to exceed the Highest Lawful Rate;
and


 


(ii)                                  if
such a Loan is a LIBOR Loan, for each Interest Period relating thereto, the
LIBOR Adjusted Rate for such Loan plus the Applicable Margin (as in effect from
time to time), but in no event to exceed the Highest Lawful Rate.


 


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(b)                                 Post-Default
Rate. Notwithstanding the foregoing, the Borrower will pay to the
Administrative Agent, for the account of each Lender interest at the applicable
Post-Default Rate on any overdue principal of any Loan made by such Lender, and
(to the fullest extent permitted by law) on any other overdue amount payable by
the Borrower hereunder, under any Loan Document or under any Note held by such
Lender to or for account of such Lender, for the period commencing on the date
such principal or amount is due until the same is paid in full.


 


(c)                                  Due
Dates. Accrued interest on Base Rate Loans shall be payable on each Payment
Date and (other than with respect to Revolving Credit Loans prepaid or repaid
prior to the Revolving Credit Termination Date without any reduction in the Maximum
Revolving Credit Amount) on the date of any required prepayment due to a
Commitment reduction, any prepayment pursuant to Section 2.08 or
repayment pursuant to Section 3.01, and accrued interest on each LIBOR
Loan shall be payable on the last day of the Interest Period therefor, the date
of any required prepayment due to a Commitment reduction, any prepayment
pursuant to Section 2.08 or repayment pursuant to Section 3.01
and, if such Interest Period is longer than three months at three-month
intervals following the first day of such Interest Period, except that interest
payable at the Post-Default Rate shall be payable from time to time on demand
and interest on any LIBOR Loan that is converted into a Base Rate Loan
(pursuant to Section 5.03) shall be payable on the date of
conversion (but only to the extent so converted). Any accrued and unpaid
interest outstanding on the Revolving Credit Loans on the Revolving Credit
Termination Date shall be paid on such date. Any accrued and unpaid interest on
the Term Loans (other than the Incremental Term Loans) on the Term Loan
Maturity Date shall be paid on such date and any accrued and unpaid interest on
any Incremental Term Loan shall be paid on the applicable Incremental Term Loan
Maturity Date. Accrued interest on Swingline Loans shall be paid pursuant to Section 2.01(c).


 


(d)                                 Determination
of Rates. Promptly after the determination of any interest rate provided
for herein or any change therein, the Administrative Agent shall notify the
Lenders to which such interest is payable and the Borrower thereof. Each determination
by the Administrative Agent of an interest rate or fee hereunder shall, except
in cases of manifest error, be final, conclusive and binding on the parties.


 


ARTICLE IV



Payments; Pro Rata Treatment; Computations; Etc.


 


Section 4.01                                Payments.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement, the
Notes or any other Loan Document shall be made in Dollars, in immediately
available funds, to the Administrative Agent at such account as the Administrative
Agent shall specify by notice to the Borrower from time to time, not later than
12:30 p.m. (other than Swingline Loans, for which payments shall be made not later
than 2:00 p.m.) Houston, Texas time on the date on which such payments shall
become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Such payments
shall be made without (to the fullest extent permitted


 


54

















 


by applicable
law) defense, set-off or counterclaim and in connection therewith, the Borrower
and each Guarantor hereby waives (to the fullest extent permitted by applicable
law) all defenses, rights of set-off and counterclaims it may have with respect
to such payments. Each payment received by the Administrative Agent under this
Agreement or any Note for account of a Lender shall be paid promptly to such
Lender in immediately available funds. Except as otherwise provided in the
definition of “Interest Period”, if the due date of any payment under this
Agreement or any Note would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and interest
applicable to the amount to be paid shall be payable for the period of such
extension. At the time of each payment to the Administrative Agent of any
principal of or interest on any borrowing, the Borrower shall notify the
Administrative Agent of the Loans to which such payment shall apply; provided,
however, in the absence of such notice the Administrative Agent may
specify the Loans to which such payment shall apply, but to the extent possible
such payment or prepayment will be applied first to the Loans comprised of Base
Rate Loans in accordance with 2.08(g).


 


Section 4.02                                Pro
Rata Treatment. Except for Swingline Loans and to the extent otherwise
provided herein each Lender agrees that: 
(i) each borrowing from the Revolving Credit Lenders under Section 2.01(a)
and each continuation and conversion under Section 2.02 shall be made
from the Revolving Credit Lenders pro rata in
accordance with their Revolving Credit Percentage Share, each payment of fees
under Section 2.05(a) and Section 2.05(b)(i) shall be made
for account of the Revolving Credit Lenders pro rata in
accordance with their Revolving Credit Percentage Share, and each termination
or reduction of the amount of the Aggregate Maximum Revolving Credit Amounts
under Section 2.04(b) shall be applied to the Revolving Credit
Commitment of each Revolving Credit Lender, pro rata according
to the amounts of its respective Revolving Credit Commitment; (ii) the
Term Loans made under Section 2.01(b) and each continuation and conversion
thereof under Section 2.02 shall be made from the Term Lenders pro rata by each Term Lender in accordance with the amount
that such Term Lender’s Term Loan bears to the amount of all Term Loans;
(iii) each payment of principal of Revolving Credit Loans by the Borrower
shall be made for account of the Revolving Credit Lenders pro rata
in accordance with the respective unpaid principal amount of the Revolving
Credit Loans held by the Revolving Credit Lenders; (iv) each payment of
principal of Term Loans by the Borrower shall be made for account of the Term
Lenders pro rata in accordance with the
respective unpaid principal amount of the Term Loans held by the Term Lenders;
(v) each payment of interest on Revolving Credit Loans by the Borrower
shall be made for account of the Revolving Credit Lenders pro rata
in accordance with the amounts of interest due and payable to the respective
Revolving Credit Lenders; (vi) each payment of interest on Term Loans by
the Borrower shall be made for account of the Term Lenders pro rata
in accordance with the amounts of interest due and payable to the respective
Term Lenders; and (vii) each reimbursement by the Borrower of disbursements
under Letters of Credit shall be made for account of the Issuing Bank or, if
funded by the Revolving Credit Lenders, pro rata for
the account of the Revolving Credit Lenders, in accordance with the amounts of
reimbursement obligations due and payable to each respective Revolving Credit
Lender.


 


Section 4.03                                Computations.
Interest on Loans and fees shall be (subject to the next sentence) computed on
the basis of a year of 360 days and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which such interest
is payable, unless such calculation would exceed the Highest Lawful Rate, in
which case interest shall be calculated


 


55

















 


on the per
annum basis of a year of 365 or 366 days, as the case may be. Interest on Base
Rate Loans based on the Prime Rate shall be computed on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed (including the
first day but excluding the last day) occurring in the period for which such
interest is payable.


 


Section 4.04                                Non-receipt
of Funds by the Administrative Agent. Unless the Administrative Agent shall
have been notified by a Lender or the Borrower prior to the date on which such
notifying party is scheduled to make payment to the Administrative Agent (in
the case of a Lender) of the proceeds of a Loan or a payment under a Letter of
Credit to be made by it hereunder or (in the case of the Borrower) a payment to
the Administrative Agent for account of one or more of the Lenders hereunder
(such payment being herein called the “Required Payment”), which notice
shall be effective upon receipt, that it does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available to the intended
recipient(s) on such date and, if such Lender or the Borrower (as the case may
be) has not in fact made the Required Payment to the Administrative Agent, the
recipient(s) of such payment and (in the case of payments that should have been
made by a Lender) such Lender shall, on demand, repay to the Administrative
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by the Administrative Agent until, but excluding, the date the
Administrative Agent recovers such amount at a rate per annum which, for any
Lender as recipient, will be equal to the greater of the Federal Funds Rate and
a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, and for the Borrower as recipient,
will be equal to the Base Rate plus the Applicable Margin. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan, if applicable.


 


Section 4.05                                Set-off,
Sharing of Payments, Etc.


 


(a)                                  The
Borrower agrees that, in addition to (and without limitation of) any right of
set-off, bankers’ lien or counterclaim a Lender may otherwise have, each Lender
shall have the right and be entitled (after consultation with the
Administrative Agent), upon the occurrence of an Event of Default, at its
option, to offset balances held by it or by any of its Affiliates for account
of the Borrower or any Guarantor at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of such Lender’s
Loans, or any other amount payable to such Lender hereunder, which is not paid
when due (regardless of whether such balances are then due to the Borrower), in
which case it shall promptly notify the Borrower and the Administrative Agent
thereof, provided that such Lender’s failure to give such notice shall
not affect the validity thereof.


 


(b)                                 If
any Lender shall obtain payment of any principal of or interest on any Loan
made by it to the Borrower under this Agreement (or reimbursement as to any
Letter of Credit) through the exercise of any right of set-off, banker’s lien
or counterclaim or similar right or otherwise, and, as a result of such
payment, such Lender shall have received a greater percentage of the principal
or interest (or reimbursement) then due hereunder by the Borrower to such
Lender than the percentage received by any other Lenders, it shall promptly (i)
notify the Administrative


 


56

















 


Agent and each other Lender thereof and (ii)
purchase from such other Lenders a participation in (or, if and to the extent
specified by such Lender, direct interests in) the Loans (or participations in
Letters of Credit) made by such other Lenders (or in interest due thereon, as
the case may be) in such amounts, and make such other adjustments from time to
time as shall be equitable, to the end that all the Lenders shall share the
benefit of such excess payment (net of any expenses which may be incurred by
such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal and/or
interest on the Loans held by each of the Lenders (or reimbursements of Letters
of Credit). To such end all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The Borrower agrees that
any Lender so purchasing a participation (or direct interest) in the Loans made
by other Lenders (or in interest due thereon, as the case may be) may exercise
all rights of set-off, banker’s lien, counterclaim or similar rights with respect
to such participation as fully as if such Lender were a direct holder of Loans
(or Letters of Credit) in the amount of such participation. Nothing contained
herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise, and retain the benefits of exercising, any
such right with respect to any other indebtedness or obligation of the Borrower.
If under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a set-off to which this Section 4.05
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders entitled under this Section 4.05 to share the benefits of
any recovery on such secured claim.


 


Section 4.06                                Taxes.


 


(a)                                  Payments
Free and Clear. Any and all payments by the Borrower hereunder shall be
made, in accordance with Section 4.01, free and clear of and
without deduction for any and all Covered Taxes, except as otherwise required
by law. If the Borrower shall be required by law to deduct any Covered Taxes
from or in respect of any sum payable hereunder to the Lenders, the Issuing
Bank or the Administrative Agent then (i) the sum payable shall be increased
by the amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.06)
such Lender, the Issuing Bank or the Administrative Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance with applicable
law.


 


(b)                                 Other
Taxes. In addition, to the fullest extent permitted by applicable law, the
Borrower agrees to pay any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, any Assignment Agreement or any Loan Document, and
any interest, additions to Tax or penalties applicable thereto (hereinafter
referred to as “Other Taxes”).


 


(c)                                  INDEMNIFICATION.
 TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER WILL INDEMNIFY AND HOLD HARMLESS EACH LENDER AND
THE ISSUING BANK, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT FOR THE
FULL AMOUNT


 


57

















 


OF COVERED TAXES AND OTHER TAXES (INCLUDING,
BUT NOT LIMITED TO, ANY COVERED TAXES OR OTHER TAXES IMPOSED BY ANY GOVERNMENTAL
AUTHORITY ON AMOUNTS PAYABLE UNDER THIS SECTION 4.06) PAYABLE BY
SUCH LENDER, THE ISSUING BANK OR THE ADMINISTRATIVE AGENT OR THE COLLATERAL
AGENT (ON THEIR BEHALF OR ON BEHALF OF ANY LENDER), AS THE CASE MAY BE, AND ALL
EXPENSES WITH RESPECT THERETO, WHETHER OR NOT SUCH COVERED TAXES OR OTHER TAXES
WERE CORRECTLY OR LEGALLY ASSERTED. ANY PAYMENT PURSUANT TO SUCH INDEMNIFICATION
SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE DATE ANY LENDER, THE ISSUING
BANK, THE COLLATERAL AGENT OR THE ADMINISTRATIVE AGENT, AS THE CASE MAY BE,
MAKES WRITTEN DEMAND THEREFOR. A CERTIFICATE AS TO THE AMOUNT OF SUCH PAYMENT
OR LIABILITY DELIVERED TO THE BORROWER BY A LENDER OR THE ISSUING BANK (WITH A
COPY TO THE ADMINISTRATIVE AGENT), OR BY THE ADMINISTRATIVE AGENT ON ITS OWN
BEHALF OR ON BEHALF OF A LENDER OR THE ISSUING BANK, SHALL BE CONCLUSIVE ABSENT
MANIFEST ERROR. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 4.06 TO THE
CONTRARY, THE BORROWER SHALL BE UNDER NO OBLIGATION TO ANY LENDER, THE ISSUING
BANK OR ANY AGENT WITH RESPECT TO ANY ADDITIONAL AMOUNTS DESCRIBED IN
SUBSECTIONS (A) AND (C) OF THIS SECTION 4.06 TO THE EXTENT THAT THE LENDER,
ISSUING BANK OR AGENT (AS THE CASE MAY BE) DOES NOT NOTIFY THE BORROWER WITHIN
120 DAYS AFTER THE LENDER, ISSUING BANK OR AGENT (AS THE CASE MAY BE) HAS ACTUAL
KNOWLEDGE OF THE TAX CLAIM GIVING RISE TO SUCH ADDITIONAL AMOUNTS, AND THE BORROWER
DOES NOT OTHERWISE HAVE ACTUAL KNOWLEDGE OF SUCH TAX CLAIM BEFORE THE END OF
SUCH 120 DAY PERIOD.


 


(d)                                 As
soon as practicable after any payment of Covered Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.


 


(e)                                  Each
Foreign Lender shall deliver to the Borrower and the Administrative Agent (or,
in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of “portfolio interest,”
a statement substantially in the form of Exhibit O and a Form
W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Foreign Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Foreign Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Foreign
Lender also shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Foreign Lender. Any Lender,
if requested by the Borrower or the Administrative Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to U.S.
federal backup withholding or U.S. federal information reporting requirements.
Each Foreign Lender shall promptly notify the Borrower and the


 


58

















 


Administrative Agent at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower or the Administrative Agent (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Foreign Lender shall
not be required to deliver any form pursuant to this paragraph that such
Foreign Lender is not legally able to deliver.


 


(f)                                    If
the Administrative Agent, the Issuing Bank or any Lender determines, in its sole
discretion, that it has received a refund of any Covered Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section 4.06,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 4.06 with respect to the Covered Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative
Agent, the Issuing Bank or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that the Borrower, upon the request of the Administrative
Agent, the Issuing Bank or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, the Issuing Bank
or such Lender in the event the Administrative Agent, the Issuing Bank or such
Lender is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary, in no event will the Administrative
Agent, the Issuing Bank or any Lender be required to pay any amount to the
Borrower the payment of which would place the Administrative Agent, the Issuing
Bank or such Lender in a less favorable net after-Tax position than the
Administrative Agent, the Issuing Bank or such Lender would have been in if the
additional amounts or indemnity payments giving rise to such refund of any
Covered Taxes or Other Taxes had never been paid. This paragraph shall not be
construed to require the Administrative Agent, the Issuing Bank or any Lender
to make available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Borrower or any other Person.


 


(g)                                 Any
Lender claiming any additional amounts payable pursuant to this Section 4.06
shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested by the
Borrower or the Administrative Agent or to change the jurisdiction of its
Applicable Lending Office or to cooperate with Borrower in contesting any Tax
in question if the making of such a filing or change or such cooperation would
avoid the need for or reduce the amount of any such additional amounts that may
thereafter accrue and would not, in the sole determination of such Lender,
result in any unreimbursed cost or be otherwise disadvantageous to such Lender.


 


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


 


ARTICLE V



Capital Adequacy and Additional Costs


 


Section 5.01                                Alternate
Rate of Interest. If prior to the commencement of any Interest Period for a
LIBOR Adjusted Rate borrowing:


 


59

















 


(a)                                  the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBOR Adjusted Rate for such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Majority Lenders that the LIBOR Adjusted
Rate for such Interest Period will not adequately and fairly reflect the cost
to such Lenders of making or maintaining their Loans included in such borrowing
for such Interest Period;


 


then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any notice by the
Borrower that requests the conversion of any LIBOR Adjusted Rate borrowing of
Revolving Credit Loans to, or continuation of any borrowing of Revolving Credit
Loans as, a LIBOR Adjusted Rate borrowing shall be ineffective and (ii) if the
Borrower requests a LIBOR Adjusted Rate borrowing of Revolving Credit Loans,
such borrowing shall be made as an Base Rate borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of
borrowings, then the other Type of borrowings shall be permitted.


 


Section 5.02                                Increased
Costs.


 


(a)                                  If
any Change in Law shall:


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the LIBOR Adjusted
Rate) or the Issuing Bank; or


 


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


 


and the result
of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any LIBOR Loan (or of maintaining its obligation to make any
such Loan) or to increase the cost to such Lender or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered (except
for costs or reductions resulting from Covered Taxes or Other Taxes
indemnifiable under Section 4.06 or from any Excluded Taxes).


 


(b)                                 If
any Lender or the Issuing Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender’s or the Issuing Bank’s capital or on the capital of such
Lender’s or the Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a


 


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level below that which such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the Issuing Bank’s policies and the policies of such Lender’s or the Issuing
Bank’s holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


(c)                                  A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, and the circumstances or events giving rise to such amount
or amounts, as specified in paragraph (a) or (b) of this Section 5.02
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or the Issuing Bank, as the case may
be, the amount shown as due on any such certificate within 10 days after
receipt thereof.


 


(d)                                 Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender or the Issuing Bank pursuant to
this Section for any increased costs or reductions incurred more than 120 days
prior to the date that such Lender or the Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation
therefor; provided  further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 120-day period referred
to above shall be extended to include the period of retroactive effect thereof.


 


Section 5.03                                Break
Funding Payments. In the event of (a) the payment of any principal of any
LIBOR Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any LIBOR
Loan other than on the last day of the Interest Period applicable thereto, (c)
the failure to borrow, convert, continue or prepay any LIBOR Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.08(h) and is revoked in accordance
therewith) or (d) the assignment of any LIBOR Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 5.04, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense attributable
to such event. In the case of a LIBOR Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBOR Adjusted
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for dollar deposits of a comparable amount and period from
other banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this Section
5.03 shall be delivered


 


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to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 Business
Days after receipt thereof.


 


Section 5.04                                Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  If
any Lender requests compensation under Section 5.02, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.06,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 5.02 or 4.06, as
the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.


 


(b)                                 If
any Lender requests compensation under Section 5.02, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.06,
or if any Lender defaults in its obligation to fund Loans hereunder, or if the
Borrower exercises its replacement rights under Section 12.04(d), then
the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 12.06), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) the Borrower shall have received the prior written consent of the
Administrative Agent (and if a Commitment is being assigned, the Issuing Bank),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 5.02
or payments required to be made pursuant to Section 4.06, such
assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


 


ARTICLE VI



Conditions Precedent


 


Section 6.01                                Initial
Funding. The obligation of the Lenders to make the Initial Funding is
subject to the receipt by the Administrative Agent and the Lenders of all fees
payable pursuant to the Fee Letters and/or Section 2.05 on or before the
Closing Date and the receipt by the Agents of the following documents and
satisfaction of the other conditions provided in this Section 6.01,


 


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each of which
shall be reasonably satisfactory to the Administrative Agent in form and
substance:


 


(a)                                  A
certificate of the Secretary or an Assistant Secretary of the Borrower setting
forth (i) resolutions of its board of directors with respect to the
authorization of the Borrower to execute and deliver the Loan Documents to
which it is a party and to enter into the transactions contemplated in those
documents, (ii) the officers of the Borrower (y) who are authorized to sign the
Loan Documents to which the Borrower is a party and (z) who will, until
replaced by another officer or officers duly authorized for that purpose, act
as its representative for the purposes of signing documents and giving notices
and other communications in connection with this Agreement and the transactions
contemplated hereby, (iii) specimen signatures of the authorized officers, and
(iv) the articles or certificate of incorporation and bylaws of the Borrower,
certified as being true and complete. The Administrative Agent, the Collateral
Agent, each Issuing Bank and the Lenders may conclusively rely on such
certificate until the Administrative Agent receives notice in writing from the
Borrower to the contrary.


 


(b)                                 A
certificate of the Secretary or an Assistant Secretary of each Guarantor
setting forth (i) resolutions of its Board of Directors with respect to the
authorization of such Guarantor to execute and deliver the Loan Documents to
which it is a party and to enter into the transactions contemplated in those
documents, (ii) the officers of such Guarantor (y) who are authorized to sign
the Loan Documents to which such Guarantor is a party and (z) who will, until
replaced by another officer or officers duly authorized for that purpose, act
as its representative for the purposes of signing documents and giving notices
and other communications in connection with this Agreement and the transactions
contemplated hereby, (iii) specimen signatures of the authorized officers, and
(iv) the articles or certificate of incorporation and bylaws, or other constitutive
documents, of such Guarantor, certified as being true and complete. The
Administrative Agent, the Collateral Agent, each Issuing Bank and the Lenders
may conclusively rely on such certificate until they receive notice in writing
from such Guarantor to the contrary.


 


(c)                                  Good
standing certificates for the Borrower and for each Guarantor (i) from the
Secretary of State of the jurisdiction in which each such entity is
incorporated or organized, in each case dated as of a date not earlier than
five Business Days prior to the Closing Date, (ii) from the Secretary of
State in each other jurisdiction in which the Borrower or any Guarantor is
qualified to do business as a foreign corporation, in each case other than with
respect to California dated as of a date not earlier than ten Business Days
prior to the Closing Date and with respect to California dated as of a date not
earlier than thirty days prior to the Closing Date, and (iii) bring-down
good standing evidence as of the Closing Date with respect to each qualification
cited in clauses (i) and (ii).


 


(d)                                 A
Compliance Certificate, duly and properly executed by a Responsible Officer of
Holdings and the Borrower and dated as of the date of the Initial Funding, but
excluding information required by clauses (c) and (d) as set forth on the form
of Compliance Certificate.


 


(e)                                  Notes,
duly completed and executed, for each Lender who requests Notes.


 


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(f)                                    A
certificate of insurance coverage of the Borrower evidencing that the Borrower
is carrying insurance in accordance with Section 7.18 and naming the
Collateral Agent as loss payee.


 


(g)                                 There
shall have been delivered to the Administrative Agent an executed counterpart
of each of the Loan Documents and the Perfection Certificate.


 


(h)                                 The
Transactions shall have been consummated or shall be consummated simultaneously
on the Closing Date, in each case in all material respects in accordance with
the terms hereof and the terms of the Transaction Documents, without the waiver
or amendment of any such terms not approved by the Lenders (which approval
shall not be unreasonably withheld).


 


(i)                                     The
Borrower shall have received $200.0 million in gross proceeds from the issuance
and sale of the Senior Subordinated Notes, and the Senior Subordinated Notes
Indenture shall be in form and substance reasonably satisfactory to the Lenders.


 


(j)                                     The
Refinancing shall have been consummated in full to the satisfaction of the
Lenders with all liens in favor of the existing lenders being unconditionally
released; the Administrative Agent shall have received a “pay-off” letter in
form and substance reasonably satisfactory to the Administrative Agent with
respect to all debt being refinanced in the Refinancing; and the Administrative
Agent shall have received from any Person holding any Lien securing any such
debt, such UCC termination statements, mortgage releases, releases of security
interests in Intellectual Property and other instruments, in each case in
proper form for recording, as the Administrative Agent shall have reasonably
requested to release and terminate of record the Liens securing such debt.


 


(k)                                  After
giving effect to the Transactions and the other transactions contemplated
hereby, no Company shall have outstanding any Debt or preferred stock other
than (i) the Loans and Letters of Credit hereunder, (ii) the Senior
Subordinated Notes, (iii) the Debt listed on Schedule 9.01 and
(iv) Debt owed to the Borrower or any Guarantor.


 


(l)                                     The
Administrative Agent shall have received, on behalf of itself, the other
Agents, the Arrangers, the Lenders and the Issuing Bank, a favorable written
opinion of (i) Shearman & Sterling LLP, special counsel for the Loan Parties,
(ii) Stinson Morrison Hecker LLP, Kansas counsel for the Borrower, (iii)
Richards, Layton & Finger, P.A., Delaware counsel to the Borrower and
(iv) each local counsel listed on Schedule 6.01(l), in each
case (A) dated the Closing Date or such later date as is reasonably
satisfactory to the Administrative Agent, (B) addressed to the Agents, the
Issuing Bank and the Lenders and (C) covering the matters set forth in Exhibit M
and such other matters relating to the Loan Documents and the Transactions as
the Administrative Agent shall reasonably request.


 


(m)                               Solvency
certificates in the form of Exhibit N, dated the Closing Date and
signed by the chief financial officer of the Borrower and by the chairman, vice
president or secretary of Holdings.


 


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(n)                                 All
material governmental and third party approvals necessary in connection with
the Transactions, the financing thereof and the continuing operations of the
Borrower and its subsidiaries (including shareholder approvals, if any, but
excluding approvals relating to Landlord Consent Agreements) shall have been
obtained on reasonably satisfactory terms and shall be in full force and
effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose material adverse conditions on the Transactions.
There shall not exist any action, suit, investigation, litigation or proceeding
pending or threatened in any court or before any arbitrator or Governmental
Authority that has or would reasonably be expected to have a material adverse effect
on the Borrower and its subsidiaries, the Transactions or any of the transactions
contemplated hereby.


 


(o)                                 The
Arrangers and Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses
(including the reasonable legal fees and expenses of Cahill Gordon &
Reindel LLP, special counsel to the Agents, and the reasonable fees and
expenses of any local counsel) required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document.


 


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


 


(i)                                     All
certificates or instruments representing or evidencing the Securities
Collateral accompanied by instruments of transfer and stock powers undated and
endorsed in blank, or, in the case of stock certificates and stock powers,
arrangements for the execution and delivery thereof promptly following the
Closing Date shall have been made in a manner reasonably acceptable to the
Administrative Agent.


 


(ii)                                  The
Intercompany Note executed by and among Holdings and each of its Subsidiaries,
and the Closing Date Intercompany Note, each accompanied by instruments of transfer
undated and endorsed in blank.


 


(iii)                               All
other certificates, agreements, including control agreements, or instruments
necessary to perfect the Collateral Agent’s security interest in all Chattel
Paper, all Instruments, the central cash concentration account maintained at
JPMorgan Chase Bank, N.A. and all Investment Property of each Loan Party (as
each such term is defined in the Security Agreement and to the extent required
by the Security Agreement).


 


(iv)                              UCC
financing statements in appropriate form for filing under the UCC, filings with
the United States Patent and Trademark Office and United States Copyright
Office and such other documents under applicable Governmental Requirements in
each jurisdiction as the Collateral Agent may deem reasonably necessary to
perfect the Liens created, or purported to be created, by the Security
Instruments.


 


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(v)                                 Certified
copies of UCC, tax and judgment lien searches, each of a recent date listing
all effective financing statements, lien notices or comparable documents that
name any Loan Party as debtor and that are filed in those state and county
jurisdictions in which any material property of any Loan Party is located and the
state and county jurisdictions in which any Loan Party is organized or
maintains its principal place of business, none of which encumber the
Collateral covered or intended to be covered by the Security Instruments (other
than Permitted Collateral Liens or any other Liens acceptable to the Collateral
Agent).


 


(vi)                              Evidence
acceptable to the Collateral Agent of payment or arrangements for payment by
the Loan Parties of all applicable recording taxes, fees, charges, costs and
expenses required for the recording of the Security Instruments.


 


(q)                                 Real
Property Requirements. The Collateral Agent shall have received (it being
understood that (x) the conditions set forth in this clause (q) will not be
satisfied with respect to certain Owned Mortgaged Properties on or before the
Closing Date, (y) the satisfaction of such conditions is not a condition
precedent to the Lenders’ making of the Initial Funding and (z) the obligation
to satisfy such conditions is a covenant set forth in Section 8.13(b)):


 


(i)                                     A
Mortgage encumbering each Owned Mortgaged Property in favor of the Collateral
Agent, for the benefit of the Secured Parties, duly executed and acknowledged
by each Loan Party that is the owner of or holder of any interest in such Owned
Mortgaged Property, and otherwise in form for recording in the recording office
of each applicable political subdivision where each such Owned Mortgaged
Property is situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording
or filing thereof to create a lien under applicable Governmental Requirements,
and such financing statements and any other instruments necessary to grant a
mortgage lien under the laws of any applicable jurisdiction, all of which shall
be in form and substance reasonably satisfactory to Collateral Agent.


 


(ii)                                  With
respect to each Owned Mortgaged Property, such consents, approvals, amendments,
supplements, estoppels, tenant subordination agreements or other instruments as
necessary in order for the owner or holder of the fee or leasehold interest
constituting such Owned Mortgaged Property to grant the Lien contemplated by
the Mortgage with respect to such Owned Mortgaged Property and consummate the
Transactions.


 


(iii)                               With
respect to each Mortgage on any Owned Mortgaged Property, a policy of title
insurance (or marked up title insurance commitment having the effect of a
policy of title insurance) insuring the Lien of such Mortgage as a valid first
mortgage Lien on the Owned Mortgaged Property and fixtures described therein in
the amount of $1,000,000, which policy (or such marked-up commitment) (each, a
“Title Policy”) shall (A) be issued by the Title Company,
(B) to the extent necessary, include such reinsurance arrangements (with
provisions for direct 


 


66

















 


access, if necessary) as shall be reasonably acceptable to the
Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if
available under applicable law (i.e., policies
which insure against losses regardless of location or allocated value of the
insured property up to a stated maximum coverage amount), (D) have been
supplemented by the following endorsements or affirmative coverage in the policy
as shall be reasonably requested by the Collateral Agent (including endorsements
on matters relating to first loss, last dollar, survey, variable rate, mortgage
recording tax, revolving credit, waiver of arbitration, creditor rights and
so-called comprehensive coverage over covenants and restrictions), and
(E) contain no exceptions to title other than exceptions reasonably acceptable
to the Collateral Agent.


 


(iv)                              With
respect to each Owned Mortgaged Property, such affidavits, certificates,
information (including financial data) and instruments of indemnification
(including a so-called “gap” indemnification) as shall be required to induce
the Title Company to issue the Title Policy/ies and endorsements contemplated
above.


 


(v)                                 Evidence
reasonably acceptable to the Collateral Agent of payment by the Borrower of all
Title Policy premiums, search and examination charges, escrow charges and
related charges, mortgage recording taxes, fees, charges, costs and expenses
required for the recording of the Mortgages and issuance of the Title Policies
referred to above.


 


(vi)                              With
respect to each Real Property or Mortgaged Property, access to copies of all
leases in which the Borrower or any Subsidiary holds the lessor’s interest or
other agreements relating to possessory interests, if any. To the extent any of
the foregoing affect any Owned Mortgaged Property, such agreement shall be
subordinate to the Lien of the Mortgage to be recorded against such Owned
Mortgaged Property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement, and shall otherwise be
reasonably acceptable to the Collateral Agent.


 


(vii)                           With
respect to each Owned Mortgaged Property, each Company shall have made all
notifications, registrations and filings, to the extent required by, and in
accordance with, all Governmental Real Property Disclosure Requirements
applicable to such Owned Mortgaged Property.


 


(viii)                        Surveys
with respect to each Owned Mortgaged Property (other than store numbers 1646,
4356 and 2002 listed on Schedule 8(a)(i) to the Perfection Certificate
dated the Closing Date).


 


(ix)                                A
completed Federal Emergency Management Agency Standard Flood Hazard
Determination with respect to each Mortgaged Property.


 


(r)                                    USA
Patriot Act. The Lenders shall have received, sufficiently in advance of
the Closing Date, all documentation and other information that may be required
by the


 


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Lenders in order to enable compliance with applicable “know your
customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
including the information described in Section 12.16.


 


(s)                                  Such
other documents as the Administrative Agent or any Lender or special counsel to
the Administrative Agent may reasonably request.


 


Section 6.02                                Initial
and Subsequent Loans and Letters of Credit. The obligation of the Lenders
to make Loans to the Borrower upon the occasion of each borrowing hereunder and
to issue, renew, extend or reissue any Letters of Credit hereunder (including
the Initial Funding) is subject to the delivery of a borrowing notice in
accordance with Section 2.02(c) and the further conditions precedent
that, as of the date of such Loans and after giving effect thereto:


 


(a)                                  no
Default shall exist; and


 


(b)                                 the
representations and warranties made by the Borrower in Article VII
and in the other Loan Documents shall be true on and as of the date of the
making of such Loans or issuance, renewal, extension or reissuance of a Letter
of Credit with the same force and effect as if made on and as of such date and
following such new borrowing, except to the extent such representations and
warranties are expressly limited to an earlier date.


 


Each request for a borrowing or issuance, renewal,
extension or reissuance of a Letter of Credit by the Borrower hereunder shall
constitute a certification by the Borrower to the effect set forth in Section
6.02(b) (both as of the date of such notice and as of the date of such
borrowing or issuance, renewal, extension or reissuance of a Letter of Credit).


 


Section 6.03                                Conditions
Precedent for the Benefit of Lenders. All conditions precedent to the
obligations of the Lenders to make any Loan are imposed hereby solely for the
benefit of the Lenders, and no other Person may require satisfaction of any
such condition precedent or be entitled to assume that the Lenders will refuse
to make any Loan in the absence of strict compliance with such conditions
precedent.


 


Section 6.04                                No
Waiver, Etc. For purposes of determining compliance with the conditions
specified in Section 6.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from such Lender prior to the Closing Date specifying its
objection thereto and such Lender shall not have made available to the
Administrative Agent such Lender’s ratable portion of the Initial Funding. No
waiver of any condition precedent shall preclude the Administrative Agent or
the Lenders from requiring such condition to be met prior to making any
subsequent Loan.


 


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ARTICLE VII



Representations and Warranties


 


Each Loan Party represents and warrants to
the Administrative Agent, the Collateral Agent, the Issuing Bank and the
Lenders that each representation and warranty herein is given as of the Closing
Date and shall be deemed repeated and reaffirmed on the dates of each borrowing
of a Loan and issuance, renewal, extension or reissuance of a Letter of Credit
as provided in Section 6.02:


 


Section 7.01                                Corporate
Existence. Each corporate Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. Each other Company is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.
Each Company (i) has all requisite power, and has all governmental licenses,
authorizations, consents and approvals desirable to own its assets and carry on
its business as now being or as proposed to be conducted and (ii) is qualified
to do business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary except, in each case of
clauses (i) and (ii), where the failure to do so would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.


 


Section 7.02                                Financial
Condition.


 


(a)                                  The
audited consolidated balance sheet of the Borrower as at December 27, 2005 and
December 28, 2004 and the consolidated statement of income, stockholders’
equity and cash flows of the Borrower for the fiscal years ended on December
27, 2005, December 28, 2004 and December 30, 2003 (collectively, the “Closing
Date Financial Statements”) with the opinion thereon of KPMG heretofore
furnished to the Administrative Agent are complete and correct and fairly
present the consolidated financial condition of the Borrower as at said dates
and the results of its operations for such fiscal years all in accordance with
GAAP, as applied on a consistent basis. Neither the Borrower nor any of its
Subsidiaries has on the Closing Date any Debt in excess of $1,000,000 individually
or in excess of $5,000,000 in the aggregate, except as referred to or reflected
or provided for in the Closing Date Financial Statements or in Schedule 7.02.
On the Closing Date, since the date of the latest balance sheet included in the
Closing Date Financial Statements there has not occurred or become known to any
Company any circumstance, change in or effect on the Borrower and its
Subsidiaries’ business of owning and operating retail food service
establishments at various locations in the United States, the Borrower or any
Subsidiary that, individually or in the aggregate with all other circumstances,
changes in or effects on such business, the Borrower or any Subsidiary, is or
is reasonably likely to be materially adverse to such business, franchise
relationships, results of operations or the financial condition of the Borrower
and its Subsidiaries taken as a whole (any of the foregoing, a “Material
Adverse Change”); provided that none of the following shall be
considered in determining whether there has been a Material Adverse
Change:  (i) changes in general economic
conditions, (ii) changes in laws or interpretations thereof by any governmental
authority, (iii) changes in generally accepted accounting principles, or (iv)
changes in current conditions caused by acts of terrorism or war (whether or
not pending, threatened or declared) occurring after March 3, 2006, which,
in the


 


69

















 


case of each of clauses (i)-(iv), do not
materially disproportionately affect the Borrower and its Subsidiaries relative
to other Persons operating in the same industry. On all dates after the Closing
Date, since the date of the latest balance sheet included in the Closing Date
Financial Statements, there has been no change or event having a Material
Adverse Effect.


 


(b)                                 The
forecasts of financial performance of the Borrower and its Subsidiaries
furnished to the Lenders have been prepared in good faith by the Borrower and
based on assumptions believed by the Borrower to be reasonable at the time they
were made.


 


(c)                                  The
Borrower has heretofore delivered to the Lenders the Borrower’s unaudited pro forma consolidated balance sheet and statements of
income and cash flows and pro forma
EBITDA for the fiscal year ended December 27, 2005 after giving effect to the
Transactions as if they had occurred on such date in the case of the balance
sheet and as of the beginning of the period presented in the case of the
statements of income and cash flows. Such pro forma
financial statements have been prepared in good faith by the Loan Parties,
based on the assumptions stated therein (which assumptions are believed by the
Loan Parties on the date hereof and on the Closing Date to be reasonable),
accurately reflect in all material respects all adjustments required to be made
to give effect to the Transactions, and in accordance with Regulation S-X, and
present fairly in all material respects the pro forma
consolidated financial position and results of operations of the Borrower as of
such date and for such periods, assuming that the Transactions had occurred at
such dates.


 


Section 7.03                                Litigation.
Except as disclosed to the Lenders in Schedule 7.03 hereto, there is no
litigation, legal, administrative or arbitral proceeding, investigation or
other action of any nature, pending or, to the knowledge of the Borrower
threatened against or affecting any Company which involves the possibility of
any judgment or liability against any Company not fully covered by insurance (except
for normal deductibles), and which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.


 


Section 7.04                                No
Breach. The Transactions will not (A) conflict with or result in a
breach of, or require any consent which has not been obtained as of the Closing
Date under, (i) the respective Organizational Documents of any Company,
(ii) any Governmental Requirement or (iii) any agreement or
instrument (including the Franchise Agreements) to which any Company is a party
or by which it is bound or to which it or its Properties are subject, or
(B) constitute a default under any such agreement or instrument, or result
in the creation or imposition of any Lien upon any of the revenues or assets of
any Company pursuant to the terms of any such agreement or instrument other
than the Liens created by the Loan Documents, except, in the case of clauses
(A)(ii), (A)(iii) and (B) only, for conflicts, unobtained consents, breaches,
defaults and Liens that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. There is no existing default
under any Organizational Document of any Company or any event which, with the
giving of notice or passage of time or both, would constitute a default by any
party thereunder.


 


Section 7.05                                Authority.
The Transactions to be entered into by each Loan Party are within such Loan
Party’s powers and have been duly authorized by all necessary action on the
part of such Loan Party. Each Company has all necessary power and authority to
execute, deliver and perform its obligations under the Loan Documents to which
it is a party; and the execution,


 


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delivery and
performance by each Company of the Loan Documents to which it is a party, have
been duly authorized by all necessary corporate action on its part; and the
Loan Documents constitute the legal, valid and binding obligations of each
Company, enforceable in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or other laws of general application affecting
the enforcement of creditor’s rights and by general principles of equity
limiting the availability of certain remedies.


 


Section 7.06                                Approvals.
No authorizations, approvals or consents of, and no filings or registrations
with, any Governmental Authority are necessary for the execution, delivery or
performance by any Company of the Loan Documents or for the validity or
enforceability thereof, except for the recording and filing of certain of the
Security Instruments as required by this Agreement.


 


Section 7.07                                Use
of Loans. The proceeds of (a) the Term Loans shall be used to finance the
Transactions and to pay related fees and expenses and (b) the Revolving Credit
Loans are for general corporate purposes (not to exceed $5.0 million on the
Closing Date). No Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying margin stock (within
the meaning of Regulation T, U or X of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of any Loan hereunder will be used
to buy or carry any margin stock.


 


Section 7.08                                ERISA.


 


(a)                                  Holdings,
each of its Subsidiaries and each ERISA Affiliate have complied in all material
respects with ERISA and, where applicable, the Code regarding each Plan, except
as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


(b)                                 Each
Plan is, and has been, maintained in substantial compliance with ERISA and,
where applicable, the Code.


 


(c)                                  No
act, omission or transaction has occurred which could result in imposition on
Holdings, any of its Subsidiaries or any ERISA Affiliate (whether directly or
indirectly) of (i) either a civil penalty assessed pursuant to Section 502(c),
(i) or (l) of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of
the Code or (ii) breach of fiduciary duty liability damages under Section 409
of ERISA, except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


(d)                                 No
Plan (other than a defined contribution plan) or any trust created under any
such Plan has been terminated since September 2, 1974. No liability to the
PBGC (other than for the payment of current premiums which are not past due) by
Holdings, any of its Subsidiaries or any ERISA Affiliate has been or is
expected by Holdings, any of its Subsidiaries or any ERISA Affiliate to be
incurred with respect to any Plan, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No ERISA
Event with respect to any Plan has occurred.


 


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(e)                                  Full
payment when due has been made of all amounts which Holdings, any of its
Subsidiaries or any ERISA Affiliate is required under the terms of each Plan or
applicable law to have paid as contributions to such Plan, and no accumulated
funding deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, exists with respect to any Plan, except as would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(f)                                    The
actuarial present value of the benefit liabilities under each Plan which is subject
to Title IV of ERISA does not, as of the end of Holdings’ most recently ended
fiscal year, exceed the current value of the assets (computed on a plan
termination basis in accordance with Title IV of ERISA) of such Plan
allocable to such benefit liabilities. The term “actuarial present value of the
benefit liabilities” shall have the meaning specified in Section 4041 of ERISA.


 


(g)                                 None
of Holdings, any of its Subsidiaries or any ERISA Affiliate sponsors, maintains,
or contributes to an employee welfare benefit plan, as defined in Section 3(1)
of ERISA, including, without limitation, any such plan maintained to provide
benefits to former employees of such entities, that may not be terminated by
Holdings, a Subsidiary of Holdings or any ERISA Affiliate in its sole
discretion at any time without any material liability.


 


(h)                                 None
of Holdings, any of its Subsidiaries or any ERISA Affiliate sponsors, maintains
or contributes to, or has at any time in the preceding six calendar years,
sponsored, maintained or contributed to, any Multiemployer Plan.


 


(i)                                     None
of Holdings, any of its Subsidiaries or any ERISA Affiliate is required to
provide security under Section 401(a)(29) of the Code due to a Plan amendment
that results in an increase in current liability for the Plan.


 


Section 7.09                                Taxes.
The Borrower and each of the Guarantors has timely filed all United States
federal income tax returns and all other material Tax returns which are
required to be filed by them and have timely paid all material Taxes due and
payable by them, whether or not shown on such Tax returns, except such Taxes,
if any, (i) that are being contested in good faith by appropriate proceedings
and for which adequate reserves are being maintained in accordance with GAAP
and (ii) which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. Each of the Borrower and the
Guarantors has made adequate provision in accordance with GAAP for all Taxes
not yet due and payable. Each of the Borrower and the Guarantors is unaware of
any proposed or pending tax assessments, deficiencies or audits that would
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect. Neither the Borrower nor any of its Guarantors has ever been a
party to any understanding or arrangement constituting a “tax shelter” within
the meaning of Section 6662(d)(2)(C)(iii) of the Code or within the meaning of
Section 6111(c) or Section 6111(d) of the Code as in effect immediately prior
to the enactment of the American Jobs Creation of 2004, or has ever “participated”
in a “reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4, except as would not be reasonably expected to, individually or in the
aggregate, have a Material Adverse Effect.


 


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Section 7.10                                Titles,
Etc.


 


(a)                                  Except
as set out in Schedule 7.10, each of Holdings and its Subsidiaries
has good and defensible title to its material (individually or in the
aggregate) Properties, free and clear of all Liens, except Permitted Collateral
Liens or Permitted Liens in the case of Property not constituting Collateral.


 


(b)                                 All
leases and agreements necessary for the conduct of the business of Holdings and
its Subsidiaries are valid and subsisting, in full force and effect and there exists
no default or event or circumstance which with the giving of notice or the
passage of time or both would give rise to a default under any such lease or
leases, which would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


(c)                                  The
rights, Properties and other assets presently owned, leased or licensed by
Holdings and its Subsidiaries including, without limitation, all easements and
rights of way, include all rights, Properties and other assets necessary to permit
Holdings and its Subsidiaries to conduct their business in all material
respects in the same manner (except for changes permitted under the Loan
Documents) as their business has been conducted prior to the Closing Date.


 


(d)                                 Except
as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, all of the assets and Properties of Holdings and its
Subsidiaries which are reasonably necessary for the operation of its business
are in good working condition and are maintained in accordance with prudent business
standards.


 


(e)                                  Schedules
8(a) and 8(b) to the Perfection Certificate dated the Closing Date
contain a true and complete list of each interest in Real Property
(i) owned by any Company as of the date hereof and describes the type of
interest therein held by such Company and whether such owned Real Property is
leased and (ii) leased, subleased or otherwise occupied or utilized by any
Company, as lessee, sublessee, franchisee or licensee, as of the date hereof and
describes the type of interest therein held by such Company as of the date
hereof and, as of the date hereof, whether such Real Property is a Mortgaged
Property and, in each of the cases described in clauses (i) and (ii) of this Section 7.10(e),
whether any lease requires the consent of the landlord or tenant thereunder, or
other party thereto, to the Transactions, except those consents the failure to
obtain would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


(f)                                    Except
as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, no Company has received any notice of, or has any
knowledge of, the occurrence or pendency or contemplation of any Casualty Event
affecting all or any portion of its property. No Mortgage encumbers improved
Real Property that is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood
hazards within the meaning of the National Flood Insurance Act of 1968 unless
flood insurance available under such Act has been obtained in accordance with Section
7.18.


 


(g)                                 Collateral.
Except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, each Company owns or has rights to use all
of the Collateral and all rights with respect to any of the foregoing used in,
necessary for or material to


 


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each Company’s business as currently conducted.
The use by each Company of such Collateral and all such rights with respect to
the foregoing do not infringe on the rights of any Person other than such
infringement which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No claim has been made and remains
outstanding that any Company’s use of any Collateral does or may violate the
rights of any third party that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


Section 7.11                                No
Material Misstatements. No written information, statement, exhibit,
certificate, document or report furnished to the Administrative Agent and the
Lenders (or any of them) by the Borrower or any Guarantor in connection with
any Loan Document or included therein or delivered pursuant thereto contained
or contains any material misstatement of fact or omitted or omits to state a
material fact or any fact necessary to make the statements contained therein
not materially misleading in the light of the circumstances in which made as of
the date such information is dated or provided; provided that, with
respect to projected financial information, the Borrower and Guarantors
represent and warrant only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time, it being
understood that such projected financial information may vary from actual
results and that such variances may be material. There is no fact peculiar to
any Company which has had a Material Adverse Effect or in the future would
reasonably be expected, individually or in the aggregate, to have (so far as
the Borrower or Holdings can now reasonably foresee) a Material Adverse Effect
and which has not been set forth in this Agreement or the other documents,
certificates and statements furnished to the Administrative Agent by or on
behalf of any Company prior to, or on, the Closing Date in connection with the
Transactions.


 


Section 7.12                                Investment
Company Act. Neither Holdings nor any of its Subsidiaries is an “investment
company” or a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended.


 


Section 7.13                                Capital
Securities and Subsidiaries.


 


(a)                                  Schedules 1(a)
and 10(a) to the Perfection Certificate dated the Closing Date set forth
a list of (i) all the Subsidiaries of Holdings and their jurisdictions of
organization as of the Closing Date and (ii) the number of each class of
its Capital Securities authorized, and the number outstanding, on the Closing
Date and the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the Closing Date. All
Capital Securities of each Company are duly and validly issued and, in the case
that such Company is a corporation, are fully paid and non-assessable, and,
other than the Capital Securities of Holdings and the Borrower, are owned by
the Borrower, directly or indirectly through Wholly-Owned Subsidiaries. All
Capital Securities of NPC Management are owned directly by the Borrower. All
Capital Securities of the Borrower are owned directly by Holdings. Each Loan
Party is the record and beneficial owner of, and has good and marketable title
to, the Capital Securities pledged by it under the Security Agreement, free of
any and all Liens, rights or claims of other Persons, except the security
interest created by the Security Agreement, and there are no outstanding
warrants, options or other rights to purchase, or shareholder, voting trust or
similar agreements outstanding with respect to, or property that is convertible
into, or that requires the issuance or sale of, any such Capital Securities
pledged under the Security Agreement.


 


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(b)                                 No
consent of any Person including any other general or limited partner, any other
member of a limited liability company, any other shareholder or any other trust
beneficiary is necessary in connection with the creation, perfection or first
priority status of the security interest of the Collateral Agent in any Capital
Securities pledged to the Collateral Agent for the benefit of the Secured
Parties under the Security Agreement or the exercise by the Collateral Agent of
the voting or other rights provided for in the Security Agreement or the
exercise of remedies in respect thereof.


 


(c)                                  An
accurate organizational chart, showing the ownership structure of Holdings, the
Borrower, the Borrower and each Subsidiary on the Closing Date, and after
giving effect to the Transactions, is set forth on Schedule 10(a) to the
Perfection Certificate dated the Closing Date.


 


Section 7.14                                Labor
Matters. As of the Closing Date, there are no strikes, lockouts or
slowdowns against any Company pending or, to the knowledge of any Company,
threatened. The hours worked by and payments made to employees of any Company
have not been in violation of the Fair Labor Standards Act of 1938, as amended,
or any other applicable federal, state, local or foreign law dealing with such
matters in any manner which would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. All payments due from any
Company, or for which any claim may be made against any Company, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of such Company except where the
failure to do so would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which any Company is bound.


 


Section 7.15                                Defaults.
No Company is in default nor has any event or circumstance occurred which, but
for the expiration of any applicable grace period or the giving of notice, or
both, would constitute a default under any material agreement or instrument to
which any Company is a party or by which any Company is bound which default
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


Section 7.16                                Environmental
Matters. Except (i) as provided in Schedule 7.16 or
(ii) as would not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect:


 


(a)                                  Each
Company and its businesses, operations and any of its Real Properties are in
compliance with, and such Company has no liability under, any applicable Environmental
Laws;


 


(b)                                 Without
limitation of clause (a) above, no Real Property of any Company nor the
operations currently conducted thereon or, to the best knowledge of the Loan
Parties, any operations conducted thereon by any prior owner or operator of
such Real Property or operation, are in violation of or subject to any
existing, pending or threatened action, suit, investigation or proceeding by or
before any court or Governmental Authority or to any remedial obligations under
Environmental Laws;


 


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(c)                                  All
notices, permits, licenses or similar authorizations, if any, required to be
obtained or filed in connection with the businesses and operations of the
Companies or ownership, operations and use of any and all Real Property of the
Companies, including without limitation past or present treatment, storage,
disposal or release of Hazardous Materials into the environment, have been duly
obtained or filed, are in full force and effect, and the Companies are in
compliance with the terms and conditions of all such notices, permits, licenses
and similar authorizations;


 


(d)                                 All
Hazardous Materials generated at any Real Property of the Companies have in the
past been transported, treated and disposed of in accordance with Environmental
Laws, and, to the best knowledge of the Loan Parties, all such transport
carriers and treatment and disposal facilities have been and are operating in
compliance with Environmental Laws and are not the subject of any existing,
pending or threatened action or investigation by any Governmental Authority in
connection with any Environmental Laws;


 


(e)                                  No
Hazardous Materials have been disposed of or otherwise released and there has
been no threatened release of any Hazardous Materials on, at, under, from or to
any Real Property of the Companies except in compliance with Environmental Laws
or which would not reasonably be expected to result in liability under any
Environmental Laws;


 


(f)                                    No
Company has any known contingent liability in connection with any release or
threatened release of any Hazardous Material into the environment;


 


(g)                                 No
Company is paying for or conducting any remedial action at any location
pursuant to any Environmental Laws; and


 


(h)                                 The
Companies have made available to the Lenders all material records, including
all environmental assessments, audits, reports and sampling data, in their possession
or control as of the Closing Date concerning compliance with or actual or
potential liability under any Environmental Laws, including those concerning
the actual or suspected existence of Hazardous Material at any Real Property or
facilities now or previously owned, leased or operated by any of them.


 


Section 7.17                                Compliance
with the Law. No Company has violated any Governmental Requirement or
failed to obtain any license, permit, franchise or other governmental authorization
necessary for the ownership of any of its Properties or the conduct of its
business, which violation or failure would reasonably be expected to have (in
the event such violation or failure were asserted by any Person through
appropriate action), individually or in the aggregate, a Material Adverse
Effect. To the knowledge of the Loan Parties, none of the Loan Parties or their
Subsidiaries is in violation of any Governmental Requirement relating to
terrorism or money laundering, including the Executive Order and the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Public Law 107-56, in any material respect.


 


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Section 7.18                                Insurance.
Schedule 7.18 attached hereto contains an accurate and complete
description of all material policies of fire, liability, workers’ compensation
and other forms of insurance owned or held by any Company as of the date
hereof. All such policies are in full force and effect, all premiums with
respect thereto covering all periods up to and including the Closing Date have
been paid, and as of the date hereof no notice of cancellation or termination
has been received with respect to any such policy, except as set forth on Schedule
7.18. As of the date hereof, such policies are sufficient for compliance
with all requirements of law and of all agreements to which any Company is a
party; to the best of the Companies’ knowledge, are valid, outstanding and
enforceable policies; provide adequate insurance coverage in at least such
amounts and against at least such risks (but including in any event public
liability) as are usually insured against in the same general area by companies
engaged in the same or a similar business in similar locations for the assets
and operations of each Company; to the best of the Companies’ knowledge, will
remain in full force and effect through the respective dates set forth in Schedule 7.18
without the payment of additional premiums; and will not in any way be affected
by, or terminate or lapse by reason of, the transactions contemplated by this
Agreement. Schedule 7.18 identifies all material risks as of the date
hereof, if any, which the Borrower and each Guarantor and their respective
Board of Directors, governing bodies or officers have designated as being self
insured. As of the date hereof, no Company has been refused any insurance with
respect to its assets or operations, nor has its coverage been limited below
usual and customary policy limits, by an insurance carrier to which it has
applied for any such insurance or with which it has carried insurance during
the last three years.


 


Section 7.19                                Restriction
on Liens. No Company is a party to any agreement (other than this Agreement
and the Security Instruments) which either restricts or purports to restrict
its ability to grant Liens to other Persons on or in respect of their
respective assets or Properties, except for any agreement that any Company is
permitted to enter into under Section 9.20(i).


 


Section 7.20                                Material
Agreements. Set forth on Schedule 7.20 hereto is a complete and
correct list of all Franchise Agreements, leases and material debt agreements
and indentures in effect as of the Closing Date. The Borrower has heretofore
delivered or made available to the Administrative Agent a complete and correct
copy of all Franchise Agreements, all leases, and all such material debt
agreements and indentures, including any modifications or supplements thereto,
as in effect on the Closing Date.


 


Section 7.21                                Solvency.
Immediately after the Initial Funding and after giving effect to the
application of the proceeds of the Initial Funding and the Transactions with
respect to Holdings and its Subsidiaries on a consolidated basis, (a) the fair
value of their Property, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of their Property will be greater than the amount that will be
required to pay the probable liability of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) Holdings and its Subsidiaries will be able to
pay their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) Holdings and its
Subsidiaries will not have unreasonably small capital with which to conduct the
business in which they are engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.


 


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Section 7.22                                Fiscal
Year. The fiscal year of the Borrower and its Subsidiaries consists of 52
or 53 weeks, as the case may be, ending on the last Tuesday of December and
having fiscal quarters ending on the last Tuesday of March, June, September and
December in each year.


 


Section 7.23                                Stockholders
of Holdings. On the Closing Date, the ownership of the Capital Securities
of Holdings is as set forth on Schedule 7.23 attached hereto.


 


Section 7.24                                Intellectual
Property.


 


(a)                                  Each
Loan Party owns, or is licensed to use, all patents, patent applications,
trademarks, trade names, service marks, copyrights, technology, trade secrets,
proprietary information, domain names, know-how and processes necessary for the
conduct of its business as currently conducted (the “Intellectual Property”),
except for those the failure to own or license which, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect. No claim has been asserted and is pending by any Person against any
Company challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does any
Loan Party know of any valid basis for any such claim, except for such claims
that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect. The use of such Intellectual Property by each
Loan Party does not infringe the rights of any Person, except for such claims
and infringements that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.


 


(b)                                 Except
pursuant to licenses and other user agreements entered into by each Loan Party
in the ordinary course of business that are listed in Schedule 12(a) or 12(b)
to the Perfection Certificate, on and as of the date hereof (i) each Loan
Party owns and possesses the right to use, and has done nothing to authorize or
enable any other Person to use, any Copyright, Patent or Trademark (as such
terms are defined in the Security Agreement) listed in Schedule 12(a) or
12(b) to the Perfection Certificate and (ii) all registrations
listed in Schedule 12(a) or 12(b) to the Perfection Certificate
are valid and in full force and effect.


 


(c)                                  To
each Loan Party’s knowledge, on and as of the date hereof, there is no material
violation by others of any right of such Loan Party with respect to any
copyright, patent or trademark listed in Schedule 12(a) or 12(b)
to the Perfection Certificate, pledged by it under the name of such Loan Party.


 


Section 7.25                                Security
Instruments.


 


(a)                                  The
Security Agreement is effective to create in favor of the Collateral Agent for
the benefit of the Secured Parties, legal, valid and enforceable Liens on, and
security interests in, the Security Agreement Collateral and, when
(i) financing statements and other filings in appropriate form are filed
in the offices specified on Schedule 7 to the Perfection
Certificate and (ii) upon the taking of possession or control by the
Collateral Agent of the Security Agreement Collateral with respect to which a
security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by each Security
Agreement), the Liens created by the Security Agreement shall constitute fully
perfected Liens on, and security interests in, all


 


78

















 


right, title and interest of the grantors in
the Security Agreement Collateral (other than deposit accounts that are not the
central cash concentration account maintained at JPMorgan Chase Bank, N.A. and
such Security Agreement Collateral in which a security interest cannot be perfected
under the UCC as in effect at the relevant time in the relevant jurisdiction),
in each case subject to no Liens other than Permitted Collateral Liens.


 


(b)                                 When
the financing statements in appropriate form are filed in the offices specified
on Schedule 7 to the Perfection Certificate and the Security
Agreement or a short form thereof is filed in the United States Patent and
Trademark Office and the United States Copyright Office, the Liens created by
such Security Agreement shall constitute fully perfected Liens on, and security
interests in, all right, title and interest of the grantors thereunder in
Patents (as defined in the Security Agreement) registered or applied for with
the United States Patent and Trademark Office or Copyrights (as defined in such
Security Agreement) registered or applied for with the United States Copyright
Office, as the case may be, in each case subject to no Liens other than Permitted
Collateral Liens.


 


(c)                                  Each
Mortgage is effective to create, in favor of the Collateral Agent, for its
benefit and the benefit of the Secured Parties, legal, valid and enforceable
first priority Liens on, and security interests in, all of the Loan Parties’
right, title and interest in and to the Mortgaged Properties thereunder and the
proceeds thereof, subject only to Permitted Collateral Liens or other Liens
acceptable to the Collateral Agent, and when the Mortgages are filed in the
offices specified on Schedule 8(a) to the Perfection Certificate
dated the Closing Date (or, in the case of any Mortgage executed and delivered
after the date thereof in accordance with the provisions of Sections 8.05
and 8.09, when such Mortgage is filed in the applicable offices in
accordance with the provisions of Sections 8.05 and 8.09),
the Mortgages shall constitute fully perfected Liens on, and security interests
in, all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right
to any other Person, other than Liens permitted by such Mortgage.


 


(d)                                 Each
Security Instrument delivered pursuant to Sections 8.05 and 8.09
will, upon execution and delivery thereof, be effective to create in favor of
the Collateral Agent, for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, all of the Loan Parties’
right, title and interest in and to the Collateral thereunder, and (i) when
all appropriate filings or recordings are made in the appropriate offices as
may be required under applicable law and (ii) upon the taking of
possession or control by the Collateral Agent of such Collateral with respect
to which a security interest may be perfected only by possession or control
(which possession or control shall be given to the Collateral Agent to the extent
required by any Security Instrument), such Security Instrument will constitute
fully perfected Liens on, and security interests in, all right, title and
interest of the Loan Parties in such Collateral, in each case subject to no
Liens other than the applicable Permitted Collateral Liens.


 


Section 7.26                                Acquisition
Documents . The Lenders have been furnished true and complete copies of each
Acquisition Document to the extent executed and delivered on or prior to the
Closing Date.


 


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Section 7.27                                [RESERVED].


 


Section 7.28                                Subordination
of Senior Subordinated Notes. The Secured Obligations are “Senior
Indebtedness” (or the equivalent thereof), the Guaranteed Obligations are
“Guarantor Senior Indebtedness” (or the equivalent thereof) and the Secured
Obligations and the Guaranteed Obligations are “Designated Senior Indebtedness”
(or the equivalent thereof), in each case, within the meaning of the Senior
Subordinated Notes Documents.


 


Section 7.29                                Franchise
Agreements.  There is a Franchise Agreement in full
force and effect for each Restaurant, except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; no
Franchise Agreement as in effect immediately prior to the Closing Date has been
amended or modified in any manner materially adverse to the Lenders; no default
by any Company exists under any Franchise Agreement that would result in
termination of such Franchise Agreement, except for defaults that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


ARTICLE VIII


Affirmative Covenants


 


Until the Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been reimbursed, the Loan
Parties covenant and agree with the Lenders that:


 


Section 8.01                                Reporting
Requirements. The Borrower shall deliver, or shall cause to be delivered,
to the Administrative Agent for prompt distribution to the Lenders:


 


(a)                                  Annual
Reports. As soon as available and in any event within 90 days (or such
earlier date on which the Borrower is required to file a Form 10-K under the Exchange
Act) after the end of each fiscal year, beginning with the fiscal year ending
December 26, 2006, (i) the consolidated balance sheet of the Borrower
as of the end of such fiscal year and related consolidated statements of
income, cash flows and stockholders’ equity for such fiscal year, in
comparative form with such financial statements as of the end of, and for, the
preceding fiscal year, and notes thereto, all prepared (to the extent required
by law) in accordance with Regulation S-X and accompanied by an opinion of
Deloitte & Touche LLP or other independent public accountants of recognized
national standing reasonably satisfactory to the Administrative Agent (which
opinion shall not be qualified as to scope or contain any going concern or
other qualification), stating that such financial statements fairly present, in
all material respects, the consolidated financial condition, results of
operations and cash flows of the Borrower as of the dates and for the periods
specified in accordance with GAAP and (ii) a narrative report and
management’s discussion and analysis, in a form reasonably satisfactory to the
Administrative Agent, of the financial condition and results of operations of
Holdings for such fiscal year, as compared to amounts for the previous fiscal
year and budgeted amounts (it being understood that the information required by
clause (a) may be furnished in the form of a Form 10-K


 


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and that the format of the Borrower’s “board report” shown to the
Administrative Agent prior to the Closing Date will meet the format requirements
of clause (ii)).


 


(b)                                 Quarterly
Reports. As soon as available and in any event within 45 days (or such
earlier date on which the Borrower is required to file a Form 10-Q under the Exchange
Act) after the end of each of the first three fiscal quarters of each fiscal
year, beginning with the fiscal quarter ending March 28, 2006,
(i) the consolidated balance sheet of the Borrower as of the end of such
fiscal quarter and related consolidated statements of income and cash flows for
such fiscal quarter and for the then elapsed portion of the fiscal year, in
comparative form with the consolidated statements of income and cash flows for
the comparable periods in the previous fiscal year, and notes thereto, all
prepared (to the extent required by law) in accordance with Regulation S-X and
accompanied by a certificate of a Financial Officer stating that such financial
statements fairly present, in all material respects, the consolidated financial
condition, results of operations and cash flows of the Borrower as of the date
and for the periods specified in accordance with GAAP consistently applied, and
on a basis consistent with audited financial statements referred to in
clause (a) of this Section, subject to normal year-end audit adjustments
and (ii) a narrative report and management’s discussion and analysis, in a
form reasonably satisfactory to the Administrative Agent, of the financial
condition and results of operations for such fiscal quarter and the then
elapsed portion of the fiscal year, as compared to the comparable periods in
the previous fiscal year and budgeted amounts (it being understood that the
information required by clause (b) may be furnished in the form of a Form 10-Q
and that the format of the Borrower’s “board report” shown to the
Administrative Agent prior to the Closing Date will meet the format requirements
of clause (ii)).


 


(c)                                  Compliance
Certificate. At the time it furnishes, or causes to be furnished, each set
of financial statements pursuant to Section 8.01(a) or (b) above
beginning with the financial statements for the fiscal quarter ending September
26, 2006, a Compliance Certificate executed by a Responsible Officer (i)
certifying as to the matters set forth therein and stating that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail), and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrower is in
compliance with Sections 9.03, 9.04, 9.05, 9.12,
9.13, 9.14 and 9.16 as of the end of the respective Fiscal
Quarter or fiscal year; and concurrently with any delivery of financial
statements under Section 8.01(a) above, beginning with the fiscal
year ending December 26, 2006, a report of the accounting firm opining on
or certifying such financial statements stating that in the course of its
regular audit of the financial statements of the Borrower and its Subsidiaries,
which audit was conducted in accordance with generally accepted auditing
standards and, to the extent available from such accounting firm, stating such
accounting firm obtained no knowledge that any Default insofar as it relates to
financial or accounting matters has occurred or, if in the opinion of such
accounting firm such a Default has occurred, specifying the nature and extent
thereof.


 


(d)                                 Notice
of Default, Etc. Promptly (and in any event within three Business Days)
after the Borrower knows that any Default or any Material Adverse Effect has occurred,


 


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a notice of such Default or Material Adverse Effect, describing the
same in reasonable detail and the action the Borrower proposes to take with
respect thereto.


 


(e)                                  [RESERVED]


 


(f)                                    SEC
Filings, Etc. Promptly upon its becoming available and not otherwise
required to be delivered to the Administrative Agent under this Agreement, each
financial statement, report, notice or proxy statement sent by the Borrower to
stockholders generally and each regular or periodic report and any registration
statement, prospectus or written communication (other than transmittal letters
and routine communications) in respect thereof filed by the Borrower with or
received by the Borrower in connection therewith from any securities exchange
or the SEC or any successor agency.


 


(g)                                 Notices
Under Other Loan Agreements. Promptly after the furnishing thereof, copies
of any statement, report or notice furnished to any Person pursuant to the
terms of any indenture, loan or credit or other similar agreement, other than
this Agreement, but including the Senior Subordinated Notes Indenture, and not
otherwise required to be furnished to the Lenders pursuant to any other
provision of this Section 8.01.


 


(h)                                 Financial
Officer’s Certificate Regarding Collateral. Concurrently with any delivery
of financial statements under Section 8.01(a), a certificate of a
Financial Officer setting forth the information required pursuant to the Perfection
Certificate Supplement or confirming that there has been no change in such
information since the date of the Perfection Certificate or latest Perfection
Certificate Supplement.


 


(i)                                     Budgets.
Within 30 days after the beginning of each fiscal year, a budget for the
Borrower for such fiscal year.


 


(j)                                     Organizational
Documents. Promptly provide copies of any Organizational Documents that
have been amended or modified, in a manner materially adverse to the Lenders,
in accordance with the terms hereof and deliver a copy of any notice of default
given or received by any Company under any Organizational Document within 15
days after such Company gives or receives such notice.


 


(k)                                  Other
Matters. From time to time such other information regarding the business,
affairs or financial condition of Holdings or any of its Subsidiaries
(including, without limitation, any Plan or Multiemployer Plan and any reports
or other information required to be filed under ERISA) as any Lender or the
Administrative Agent may reasonably request.


 


Section 8.02                                Litigation
and Other Notices. The Borrower shall promptly give to the Administrative
Agent notice of (i) all legal or arbitral proceedings or litigation, and of all
proceedings before any Governmental Authority affecting the Borrower or any
Guarantor, which, if adversely determined, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect and (ii)
any litigation or proceeding with respect to any material Loan Document. Holdings
and the Borrower will, and will cause each of their Subsidiaries to, promptly
notify the Administrative Agent and each of the Lenders of any Casualty Event
or


 


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judgment
affecting any Property of Holdings, the Borrower or any Subsidiary if the value
of the Casualty Event or judgment affecting such Property shall exceed $5.0
million.


 


Section 8.03                                Maintenance,
Etc.


 


(a)                                  Generally.
Each Loan Party will:  preserve and
maintain its corporate existence and, except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, all of
its rights, privileges and franchises; keep books of record and account in
which full, true and correct entries will be made of all dealings or
transactions in relation to its business and activities; comply with all
Governmental Requirements (including, without limitation, any Governmental
Requirement relating to terrorism or money laundering) if failure to comply
with such requirements would reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect; pay and perform its obligations
under all Transaction Documents; timely file all material Tax returns and
timely pay and discharge all Taxes imposed on it or on its income or profits or
on any of its Property, except for any such Tax the payment of which is being
contested in good faith and by appropriate proceedings and for which adequate
reserves are being maintained in accordance with GAAP, and which individually
and in the aggregate would not reasonably be expected to result in a Material Adverse
Effect; upon reasonable notice, permit representatives of the Administrative
Agent or any Lender, during normal business hours, to examine, copy and make
extracts from its books and records, to inspect its Properties, and to discuss
its business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be); provided
that unless an Event of Default shall have occurred and be continuing, visits
by Lenders (but not the Administrative Agent) will be made jointly and not more
often than twice each fiscal year and only one such time shall be at the
Borrower’s expense.


 


(b)                                 Operation
of Properties. Each Loan Party will operate its Properties or cause such
Properties to be operated substantially as they are currently operated in
accordance with the practices of the fast food or quick service restaurant
industry and in compliance in all material respects with all applicable
contracts and agreements (including the Franchise Agreements) and in compliance
in all material respects with all Governmental Requirements.


 


(c)                                  Insurance.


 


(i)                                     Each
Loan Party will keep, or cause to be kept, insured by financially sound and
reputable insurers all Property of a character usually insured by Persons
engaged in the same or similar business similarly situated against loss or
damage of the kinds and in the amounts customarily insured against by such
Persons and carry such other insurance as is usually carried by such Persons on
terms reasonably acceptable to the Majority Lenders.


 


(ii)                                  Proof
of Insurance. Contemporaneously with the delivery of the financial
statements required by Section 8.01(a) to be delivered for each year,
the Borrower will furnish or cause to be furnished to the Administrative Agent
and the Lenders a certificate of insurance coverage from the insurer in form
and substance satisfactory to the Administrative Agent and, if requested, will
furnish the Administrative Agent and the Lenders copies of the applicable
policies.


 


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(iii)                               Requirements
of Insurance. All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at least 30 days after receipt by the
Collateral Agent of written notice thereof, (ii) name the Collateral Agent
as mortgagee (in the case of property insurance) or additional insured on
behalf of the Secured Parties (in the case of liability insurance) or loss
payee (in the case of property insurance), as applicable, (iii) if
reasonably requested by the Collateral Agent, include a breach of warranty
clause and (iv) be reasonably satisfactory in all other respects to the
Collateral Agent.


 


(iv)                              Flood
Insurance. With respect to each Mortgaged Property, obtain flood insurance
in such total amount as required by the guidelines of the Flood Disaster
Protection Act of 1973, as amended from time to time, if at any time the area
in which any improvements located on any Mortgaged Property is designated a
“flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), and otherwise comply
with the National Flood Insurance Program as set forth in the Flood Disaster Protection
Act of 1973, as amended from time to time.


 


Section 8.04                                Environmental
Matters.


 


(a)                                  Compliance
and Establishment of Procedures. The Companies will and will take
commercially reasonable efforts to cause all lessees and other Persons
occupying any of their Real Property to comply, in all material respects, with
all applicable Environmental Laws, and conduct all remedial and other
corrective actions required by, and in accordance with, Environmental Laws, and
will establish and implement procedures as may reasonably be necessary to
assure that any failure to do so would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.


 


(b)                                 Notice
of Action. The Borrower will promptly notify the Administrative Agent and
the Lenders in writing of any threatened action, investigation or inquiry by
any Governmental Authority or other Person of which the Borrower has knowledge
in connection with any Environmental Laws, excluding routine testing and
corrective action, which would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.


 


(c)                                  Future
Acquisitions. The Borrower will and will cause each of its Subsidiaries to
provide the Administrative Agent with environmental assessments and tests as
reasonably requested by the Administrative Agent with respect to Owned
Mortgaged Properties acquired after the Closing Date on account of any material
environmental condition.


 


(d)                                 If
a Default or Event of Default caused by reason of breach of Section 7.16
or Section 8.04(a) or (c) shall have occurred and be continuing
for more than 20 days without the Borrower taking action reasonably likely to
cure such Default or Event of Default, in accordance with applicable
Environmental Laws, at the written request of the Administrative Agent or the
Lenders through the Administrative Agent, the Borrower shall provide to the
Lenders within 45 days after such request, at the expense of the Borrower, an
environmental assessment report regarding the matters which are the subject of
such Default, including where appropriate, soil and groundwater testing,
prepared by an environmental consulting firm, and in form and substance,
reasonably acceptable to the Administrative Agent and indicating the presence
or absence of


 


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Hazardous Materials and the estimated cost of
any compliance or remedial action to address them.


 


Section 8.05                                Further
Assurances. The Loan Parties will promptly cure any defects in the creation
and issuance of the Notes and the execution and delivery of the other Loan
Documents. Promptly, upon the reasonable request of the Administrative Agent,
the Collateral Agent or any Lender, at the Borrower’s expense, the Loan Parties
will execute, acknowledge and deliver, or cause the execution, acknowledgment
and delivery of, and thereafter, if applicable, register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Instruments or otherwise deemed by the Administrative Agent or the
Collateral Agent reasonably necessary or desirable for the continued validity,
perfection and priority of the Liens on the Collateral covered thereby subject
to no other Liens except as permitted by the applicable Security Instrument, or
obtain any consents or waivers as may be necessary or appropriate in connection
therewith. Upon the exercise by the Administrative Agent, the Collateral Agent
or any Lender of any power, right, privilege or remedy pursuant to any Loan
Document which requires any consent, approval, registration, qualification or
authorization of any Governmental Authority each Loan Party will execute and
deliver all applications, certifications, instruments and other documents and
papers that the Administrative Agent, the Collateral Agent or such Lender may
reasonably require.


 


Section 8.06                                Performance
of Obligations. The Borrower will pay the Loans according to this Agreement
and the Notes; and the Borrower will and will cause each Guarantor to do and
perform every act and discharge all of the obligations to be performed and
discharged by them under the Loan Documents at the time or times and in the
manner specified.


 


Section 8.07                                ERISA
Information and Compliance. The Loan Parties will promptly furnish and will
cause their Subsidiaries and any ERISA Affiliate to promptly furnish to the Administrative
Agent for prompt distribution to the Lenders (i) promptly after the filing
thereof with the United States Secretary of Labor, the Internal Revenue Service
or the PBGC, copies of each annual and other report with respect to each Plan
or any trust created thereunder, (ii) immediately upon knowing of the
occurrence of any ERISA Event or of any “prohibited transaction,” as described
in Section 406 of ERISA or in Section 4975 of the Code, in connection with any
Plan or any trust created thereunder, a written notice signed by a Responsible
Officer specifying the nature thereof, what action the Loan Party, the
Subsidiary or the ERISA Affiliate is taking or proposes to take with respect
thereto, and, when known, any action taken or proposed by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto, and (iii)
immediately upon receipt thereof, copies of any notice of the PBGC’s intention
to terminate or to have a trustee appointed to administer any Plan. With
respect to each Plan (other than a Multiemployer Plan), the Loan Parties will,
and will cause each of their Subsidiaries and ERISA Affiliate to, (i) satisfy
in full and in a timely manner, without incurring any late payment or
underpayment charge or penalty and without giving rise to any lien, all of the
contribution and funding requirements of Section 412 of the Code (determined
without regard to subsections (d), (e), (f) and (k) thereof) and of Section 302
of ERISA (determined without regard to Sections 303, 304 and 306 of ERISA), and
(ii) pay, or cause to be paid, to the PBGC in a timely manner, without


 


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incurring any
late payment or underpayment charge or penalty, all premiums required pursuant to
Sections 4006 and 4007 of ERISA.


 


Section 8.08                                Certain
Agreements. The Borrower and Holdings shall, and shall cause the
Subsidiaries to, timely perform all of their material obligations under the
Franchise Agreements and Restaurant Leases. Furthermore, the Borrower and
Holdings will, and will cause the Subsidiaries to, promptly provide the
Administrative Agent (for prompt distribution to the Lenders) with notice of
default under or termination or expiration of any material Franchise Agreement.


 


Section 8.09                                Additional
Collateral; Additional Guarantors.


 


(a)                                  The
Loan Parties shall, subject to this Section 8.09, with respect to
any property acquired after the Closing Date by any Loan Party that is intended
to be subject to the Lien created by any of the Security Instruments but is not
so subject, promptly (and in any event within 60 days after the acquisition
thereof or such longer period as the Collateral Agent may agree in its sole discretion)
(i) execute and deliver to the Administrative Agent and the Collateral
Agent such amendments or supplements to the relevant Security Instruments or
such other documents as the Administrative Agent or the Collateral Agent shall
deem necessary or advisable to grant to the Collateral Agent, for its benefit
and for the benefit of the other Secured Parties, a Lien on such property
subject to no Liens other than Permitted Collateral Liens, and (ii) take
all actions necessary to cause such Lien to be duly perfected to the extent
required by such Security Instruments in accordance with all applicable
Governmental Requirements, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Administrative Agent. The
Borrower shall otherwise take such actions and execute and/or deliver to the
Collateral Agent such documents as the Administrative Agent or the Collateral
Agent shall reasonably require to confirm the validity, perfection and priority
of the Lien of the Security Instruments on such after-acquired properties.


 


(b)                                 The
Loan Parties shall, with respect to any Person that is or becomes a Subsidiary
of Holdings after the Closing Date, (i) deliver to the Collateral Agent
the certificates, if any, representing all of the Capital Securities (other
than Voting Stock) of such Subsidiary, together with undated stock powers or
other appropriate instruments of transfer executed and delivered in blank by a
duly authorized officer of the holder(s) of such Capital Securities, and all
intercompany notes owing from such Subsidiary to any Loan Party together with
instruments of transfer executed and delivered in blank by a duly authorized
officer of such Loan Party and (ii) cause such new Subsidiary of Holdings
(A) to execute a Joinder Agreement or such comparable documentation to
become a Subsidiary Guarantor and a joinder agreement to the applicable
Security Agreement, substantially in the form annexed thereto or, in the case
of a Foreign Subsidiary, execute a security agreement compatible with the laws
of such Foreign Subsidiary’s jurisdiction in form and substance reasonably
satisfactory to the Administrative Agent, and (B) to take all actions necessary
or advisable in the opinion of the Administrative Agent or the Collateral Agent
to cause the Lien created by the applicable Security Agreement to be duly
perfected to the extent required by such agreement in accordance with all
applicable Governmental Requirements, including the filing of financing
statements in such jurisdictions as may be reasonably requested by the
Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, no
Foreign


 


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Subsidiary shall be required to take the
actions specified in clause (ii) of this Section 8.09(b), if
doing so would constitute an investment of earnings in United States property
under Section 956 (or a successor provision) of the Code, which investment
would or could be expected to trigger an increase in the net income of a United
States shareholder of such Subsidiary pursuant to Section 951 (or a
successor provision) of the Code, as reasonably determined by the Administrative
Agent. The Loan Parties shall, on terms reasonably satisfactory to the
Administrative Agent, structure all Capital Securities of each Subsidiary of
Holdings such that 99% (or, in the case of a Subsidiary that is not organized
in the United States, 95%) of the economic value of such Subsidiary resides in
Capital Securities (which shall not constitute Voting Stock) the holders of
which do not have, by reason of holding such Capital Securities, the right to
elect any member of the Board of Directors of such Subsidiary or otherwise vote
at shareholder meetings (except as otherwise provided to such holders under
applicable law). In addition, the Loan Parties shall, on terms reasonably
satisfactory to the Administrative Agent, ensure that the Organizational
Documents of each Company (other than Holdings) require the consent of holders
of a majority of Capital Securities of such Company not constituting Voting
Stock for such changes to such Organizational Documents where the consent of
the non-voting stockholders is required by applicable law.


 


(c)                                  The
Loan Parties shall (i) promptly grant to the Collateral Agent, within
90 days of the acquisition thereof or such longer period as the Collateral
Agent may agree in its sole discretion, a security interest in and Mortgage on
each Real Property owned in fee by such Loan Party as is acquired by such Loan
Party after the Closing Date and that, together with any improvements thereon,
individually has a Fair Market Value of at least $500,000, and (ii) use
commercially reasonable efforts to promptly grant to the Collateral Agent,
within 90 days of the acquisition thereof or such longer period as the
Administrative Agent may agree in its sole discretion, a security interest in
and Mortgage on each Real Property with a net rentable interior space of at
least 3,000 sq. ft. that is leased to such Loan Party for a term of at least 3
years, in each case, as additional security for the Secured Obligations (unless
the subject property is already mortgaged to a third party to the extent
permitted by Section 9.02). Such Mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Administrative Agent and the Collateral Agent and shall constitute valid and
enforceable perfected Liens subject only to Permitted Collateral Liens or other
Liens acceptable to the Collateral Agent. The Mortgages or instruments related
thereto shall be duly recorded or filed in such manner and in such places as
are required by law to establish, perfect, preserve and protect the Liens in
favor of the Collateral Agent required to be granted pursuant to the Mortgages
and all taxes, fees and other charges payable in connection therewith shall be
paid in full. Such Loan Party shall otherwise take such actions and execute
and/or deliver to the Collateral Agent such documents as the Administrative
Agent or the Collateral Agent shall reasonably require to confirm the validity,
perfection and priority of the Lien of any existing Mortgage or new Mortgage
against such after-acquired Real Property (including a Title Policy (in the
case of a Real Property owned in fee by a Loan Party) and local counsel opinion
in respect of such Mortgage (in form and substance reasonably satisfactory to
the Administrative Agent and the Collateral Agent; provided that a local
counsel opinion with respect to any Mortgage delivered pursuant to clause (ii)
need only be delivered to the extent that such Mortgage is filed in a state in
which at least three Real Properties (including such Real Property) have been
mortgaged pursuant to such clause in the then current calendar year)).


 


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(d)                                 Excluded
Assets. Notwithstanding anything in this Section 8.09 to the
contrary, no provision in any of the Loan Documents shall be deemed to grant a
security interest in, a pledge of, or otherwise encumber, the Excluded Assets,
or make the Excluded Assets subject to any security agreement, pledge agreement,
mortgage, deed of trust, transfer or assignment. To the extent any provision in
any of the Loan Documents is inconsistent with the preceding sentence, the
preceding sentence shall control. Notwithstanding anything in this Section
8.09 to the contrary, for a period of 90 days after the Closing Date no
provision in any of the Loan Documents shall be deemed to grant a security
interest in, a pledge of, or otherwise encumber, the Capital Securities of NPC
Restaurant Holdings, Inc. or Hawk-Eye Pizza, LLC, or to make such Capital
Securities subject to any reorganization requirement (or to make the
Organizational Documents of NPC Restaurant Holdings, Inc. or Hawk-Eye Pizza,
LLC subject to any amendment requirement) pursuant to Section 6.01(s) or
8.09(b) or any security agreement, pledge agreement, mortgage, deed of
trust, transfer or assignment; it being understood that if the legal existence
of NPC Restaurant Holdings, Inc. or Hawk-Eye Pizza, LLC is not terminated in
accordance with Section 9.08(c) within 90 days after the Closing Date
this exclusion shall not apply to any such entity that is not terminated at
such time. Notwithstanding anything in this Section 8.09 to the
contrary, NPC Bar Management Corporation shall not be a Guarantor.
Notwithstanding anything in this Section 8.09 to the contrary, for a
period of 20 days after the Closing Date no provision in any of the Loan Documents
shall be deemed to grant a security interest in, a pledge of, or otherwise
encumber, the Capital Securities of Intermediate Holdco or to make such Capital
Securities subject to any reorganization requirement (or to make the
Organizational Documents of Intermediate Holdco subject to any amendment requirement)
pursuant to Section 6.01(s) or 8.09(b) or any security agreement,
pledge agreement, mortgage, deed of trust, transfer or assignment; it being
understood that if the legal existence of Intermediate Holdco is not terminated
in accordance with Section 9.08(b) within 20 days after the Closing Date
this exclusion shall not apply.


 


Section 8.10                                Taxes.


 


(a)                                  Payment
of Obligations. The Loan Parties shall pay and discharge promptly when due
all Taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
services, materials and supplies or otherwise that, if unpaid, might give rise
to a Lien other than a Permitted Lien upon such properties or any part thereof;
provided that such payment and discharge shall not be required with
respect to any such Tax, assessment, charge, levy or claim so long as
(x)(i) the validity or amount thereof shall be contested in good faith by
appropriate proceedings timely instituted and diligently conducted and the
applicable Company shall have set aside on its books adequate reserves or other
appropriate provisions with respect thereto in accordance with GAAP,
(ii) such contest operates to suspend collection of the contested obligation,
Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien
and (iii) in the case of Collateral, the applicable Company shall maintain
cash reserves in an amount sufficient to pay and discharge such Lien and the
Administrative Agent’s reasonable estimate of all interest and penalties
related thereto and (y) the failure to pay would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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(b)                                 Filing
of Returns. The Loan Parties shall timely and correctly file all material
tax returns required to be filed by them. The Loan Parties shall withhold,
collect and remit all Taxes that they are required to collect, withhold or remit.


 


(c)                                  Tax
Shelter Reporting. The Borrower does not intend to treat the Loans as being
a “reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4. In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.


 


Section 8.11                                Information
Regarding Collateral. The Loan Parties will not effect any change
(i) in any Loan Party’s legal name, (ii) in the location of any Loan
Party’s chief executive office, (iii) in any Loan Party’s identity or organizational
structure, (iv) in any Loan Party’s Federal Taxpayer Identification Number
or organizational identification number, if any, or (v) in any Loan
Party’s jurisdiction of organization (in each case, including by merging with
or into any other entity, reorganizing, dissolving, liquidating, reorganizing
or organizing in any other jurisdiction), until (A) it shall have given
the Collateral Agent and the Administrative Agent not less than 30 days’
prior written notice (in the form of an Officers’ Certificate), or such lesser
notice period agreed to by the Collateral Agent, of its intention so to do,
clearly describing such change and providing such other information in
connection therewith as the Collateral Agent or the Administrative Agent may
reasonably request and (B) it shall have taken all action reasonably
satisfactory to the Collateral Agent to maintain the perfection and priority of
the security interest of the Collateral Agent for the benefit of the Secured
Parties in the Collateral, if applicable. Each Loan Party agrees to promptly
provide the Collateral Agent with certified Organizational Documents reflecting
any of the changes described in the preceding sentence. Each Loan Party also
agrees to promptly notify the Collateral Agent of any change in the location of
any office in which it maintains material books or records relating to
Collateral owned by it or any office or facility at which Collateral is located
(including the establishment of any such new office or facility), other than
changes in location to a Mortgaged Property or a leased property subject to a
Landlord Consent Agreement.


 


Section 8.12                                Interest
Rate Protection. Not later than ninety days after the Closing Date, the
Borrower shall enter into, and for a minimum of two years thereafter maintain,
Hedging Agreements with terms and conditions acceptable to the Administrative
Agent that result in at least 50% of the aggregate principal amount of the
Borrower’s Consolidated Debt other than Revolving Credit Loans being effectively
subject to a fixed or maximum interest rate acceptable to the Administrative
Agent.


 


Section 8.13                                Post-Closing
Collateral Matters.


 


(a)                                  Within
twenty (20) days after the Closing Date, Holdings shall reorganize the capital
structure of each of its Subsidiaries (or arrangements for such reorganization
promptly following closing shall have been made in a manner reasonably
acceptable to the Administrative Agent) so that 99% (or, in the case of a
Subsidiary that is not organized in the United States, 95%) of the economic
value of the Capital Securities of each Subsidiary is in non-Voting Stock of
such Subsidiary, on terms reasonably satisfactory to the Administrative Agent.
In addition, the Organizational Documents of the Borrower and each of its
Subsidiaries shall be amended, if necessary, to require the consent of the
holders of a majority of the non-Voting Stock of the Borrower or


 


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such subsidiary, as applicable, for such
changes for which the consent of the non-voting stockholders is required by
applicable law. The Collateral Agent shall receive stock certificates and
executed stock powers created in connection with the reorganization together
with a favorable written opinion of Shearman & Sterling LLP addressed to
the Administrative Agent, on behalf of itself, the other Agents, the Arrangers,
the Lenders and the Issuing Bank.


 


(b)                                 To
the extent such items have not been delivered as of the Closing Date, within
thirty (30) days after the Closing Date, unless waived or extended by the
Administrative Agent in its sole discretion, the applicable Loan Party shall
deliver to the Administrative Agent, with respect to each Owned Mortgaged
Property, the following:


 


(1)                                  duly executed
and acknowledged Mortgages, financing statements and other instruments meeting
the requirements of Section 6.01(q)(i);


 


(2)                                  consents,
approvals, amendments, supplements, estoppels, tenant subordination agreements
or other instruments meeting the requirements of Section 6.01(q)(ii);


 


(3)                                  a Title Policy
meeting the requirements of Section 6.01(q)(iii);


 


(4)                                  affidavits,
certificates, information and instruments as required by Section 6.01(q)(iv);


 


(5)                                  evidence of
payment of all applicable title insurance premiums, mortgage recording taxes,
fees, charges, costs and expenses required for the recording of each Mortgage
and issuance of the Title Policies as required by Section 6.01(q)(v);


 


(6)                                  copies of all
leases or other agreements as required by Section 6.01(q)(vi);


 


(7)                                  notifications,
registrations and filings meeting the requirements of Section 6.01(q)(vii);


 


(8)                                  Surveys as required
by Section 6.01(q)(viii);


 


(9)                                  a completed
Federal Emergency Management Agency Standard Flood Hazard Determination as
required by Section 6.01(q)(ix); and


 


(10)                            favorable
written opinions of local counsel in the states in which each such Owned
Mortgaged Property is located.


 


(c)                                  Within
ninety (90) days after the Closing Date, the applicable Loan Parties shall make
commercially reasonable efforts to deliver to the Administrative Agent (unless
waived or extended by the Administrative Agent in its sole discretion), the
following:


 


(1)                                  A Mortgage
encumbering each Leased Mortgaged Property in favor of the Collateral Agent,
for the benefit of the Secured Parties, duly executed


 


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and acknowledged by each
Loan Party that is the owner of or holder of any interest in such Leased
Mortgaged Property, and otherwise in form for recording in the recording office
of each applicable political subdivision where each such Leased Mortgaged
Property is situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the recording
or filing thereof to create a lien under applicable Governmental Requirements,
and such financing statements and any other instruments necessary to grant a
mortgage lien under the laws of any applicable jurisdiction, all of which shall
be in form and substance reasonably satisfactory to Collateral Agent;


 


(2)                                  With respect to
each Leased Mortgaged Property, such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as necessary in
order for the owner or holder of the fee or leasehold interest constituting such
Leased Mortgaged Property to grant the Lien contemplated by the Mortgage with
respect to such Leased Mortgaged Property;


 


(3)                                  With respect to
each Leased Mortgaged Property, evidence reasonably acceptable to the
Collateral Agent of payment by the Borrower of all mortgage recording taxes,
fees, charges, costs and expenses required for the recording of the Mortgages referred
to above;


 


(4)                                  With respect to
each Leased Mortgaged Property, each Company shall have made all notifications,
registrations and filings, to the extent required by, and in accordance with,
all Governmental Real Property Disclosure Requirements applicable to such
Leased Mortgaged Property; and


 


(5)                                  favorable
written opinions of local counsel in the States in which each such Leased Mortgaged
Property is located (other than any State where (x) no Owned Mortgaged Property
is located and (y) leasehold mortgages on less than 5 Real Properties secure
the Existing Credit Agreement), each in form reasonably satisfactory to the
Administrative Agent.


 


ARTICLE IX



Negative Covenants


 


Until the Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been reimbursed, the Loan
Parties covenant and agree with the Lenders that:


 


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Section 9.01                                Debt.
Neither the Borrower nor any Subsidiary will incur, create, assume or permit to
exist any Debt, except:


 


(a)                                  The
Loans or other Obligations or any guaranty of or suretyship arrangement for the
Loans or other Obligations.


 


(b)                                 (i) Debt
of the Borrower and the Guarantors existing on the Closing Date and listed on Schedule
9.01, (ii) the Senior Subordinated Notes and Senior Subordinated Notes
Guarantees issued on the Closing Date (including any notes and guarantees
issued in exchange therefor in accordance with the registration rights document
entered into in connection with the issuance of the Senior Subordinated Notes
and Senior Subordinated Notes Guarantees) and (iii) any refinancings,
refundings, renewals or extensions thereof; provided that (A) any
such refinancing Debt is in an aggregate principal amount not greater than the
aggregate principal amount of the Debt being renewed or refinanced, plus
the amount of any premiums required to be paid thereon and reasonable fees and
expenses associated therewith, (B) such refinancing Debt has a later or
equal final maturity and longer or equal weighted average life than the Debt
being renewed or refinanced and (C) the covenants, events of default,
subordination and other provisions thereof (including any guarantees thereof)
shall, in the aggregate, not be materially less favorable to the Lenders than those
contained in the Debt being renewed or refinanced.


 


(c)                                  Accounts
payable (for the deferred purchase price of Property or services) from time to
time incurred in the ordinary course of business which, if greater than 90 days
past the invoice or billing date, are being contested in good faith by
appropriate proceedings and reserves adequate under GAAP shall have been
established therefor.


 


(d)                                 Debt
permitted by Section 9.03(c).


 


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


 


(f)                                    Debt
of the Borrower and its Subsidiaries under Hedging Agreements entered into as a
part of its normal business operations as a risk management strategy and/or
hedge against changes resulting from market conditions related to the
operations of the Borrower and its Subsidiaries, including guarantees of any
such Hedging Agreements.


 


(g)                                 Debt
in respect of bid, performance or surety bonds, workers’ compensation claims,
self-insurance obligations and bankers acceptances issued for the account of
any Company in the ordinary course of business, including guarantees or
obligations of any Company with respect to letters of credit supporting such
bid, performance or surety bonds, workers’ compensation claims, self-insurance
obligations and bankers acceptances (in each case other than for an obligation
for money borrowed).


 


(h)                                 Any
guaranty by the Borrower or a Subsidiary of the Borrower of Debt of a Loan
Party that is permitted under this Agreement.


 


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(i)                                     Debt
consisting of (i) the financing of insurance premiums or (ii) take-or-pay
obligations contained in supply arrangements, in each case incurred in the
ordinary course of business.


 


(j)                                     Debt
arising in connection with endorsement of instruments for deposit in the
ordinary course of business.


 


(k)                                  Debt
in respect of Purchase Money Obligations and Capitalized Lease Obligations, and
refinancings or renewals thereof, in an aggregate amount not to exceed $20.0
million at any time outstanding.


 


(l)                                     Debt
assumed in connection with any Permitted Acquisition or of any Person that
becomes a Subsidiary of the Borrower after the date hereof; provided
that (i) such Debt exists at the time such Permitted Acquisition is
consummated or such Person becomes a Subsidiary and is not created in
contemplation of or in connection with the consummation of such Permitted
Acquisition or such Person becoming a Subsidiary and (ii) the aggregate
principal amount of Debt (other than Capitalized Lease Obligations) permitted
by this clause (l) shall not exceed $10.0 million at any time outstanding and
the aggregate principal amount of Capitalized Lease Obligations permitted by
this clause (l) shall not exceed $50.0 million at any time outstanding.


 


(m)                               Debt
representing deferred compensation to employees of the Companies or similar
arrangements (including, without limitation, Debt issued in connection with
Restricted Payments permitted under Section 9.04(d)).


 


(n)                                 Debt
incurred in a Permitted Acquisition or a transaction permitted under Section
9.16 solely due to terms providing for the adjustment of a purchase price
or similar adjustments.


 


(o)                                 other
unsecured Debt in an aggregate principal amount not exceeding $10.0 million at
any time outstanding.


 


Section 9.02                                Liens.
Neither Holdings nor any Subsidiary will create, incur, assume or permit to
exist directly or indirectly any Lien on any of its Properties (now owned or
hereafter acquired), except:


 


(a)                                  Liens
securing the payment of Secured Obligations pursuant to the Security
Instruments.


 


(b)                                 Excepted
Liens.


 


(c)                                  Liens
disclosed on Schedule 9.02.


 


(d)                                 Liens
existing at the time such Property is acquired on Property acquired by Holdings
or any of its Subsidiaries after the Closing Date or Liens existing on Property
of a Person immediately prior to such Person being consolidated with or merged
into Holdings or any of its Subsidiaries or such Person becoming a Subsidiary; provided
that


 


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(a) no such Lien shall have been created or assumed in contemplation of
such acquisition, consolidation or merger or such Person’s becoming a
Subsidiary, (b) each such Lien shall at all times be confined solely to the
Property so acquired and (c) the incurrence of any Debt secured by such Liens
will not cause a Default of Section 9.01 or 9.12 measured on a
Pro Forma Basis as of the most recent Test Period.


 


(e)                                  Liens
to extend or renew Liens permitted by clauses (c) and (d) above so long as such
Liens do not extend to any Property not subject to the original Lien.


 


(f)                                    Liens
securing Debt incurred pursuant to Section 9.01(k); provided
that any such Liens attach only to the property being financed pursuant to such
Debt and do not encumber any other property of any Company.


 


(g)                                 Liens
incurred in the ordinary course of business of any Company with respect to
obligations that do not in the aggregate exceed $10.0 million at any time
outstanding, so long as such Liens, to the extent covering any Collateral, are
junior to the Liens granted pursuant to the Security Instruments.


 


(h)                                 Cash
deposits securing any Hedging Agreement entered into in connection with the
Loans hereunder.


 


(i)                                     (i) Deposits
securing liability to insurance carriers under insurance plans and
(ii) pledges and deposits securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borrower or any Subsidiary.


 


(j)                                     Liens
solely on any cash earnest money deposits made by the Borrower or any of the
Subsidiaries in connection with any letter of intent or purchase agreement in
connection with a Permitted Acquisition.


 


(k)                                  Liens
on securities that are the subject of repurchase agreements constituting Cash
Equivalents under clause (iv) of the definition thereof.


 


(l)                                     Liens
that are contractual rights of set-off relating to purchase orders and other
agreements entered into with customers in the ordinary course of business.


 


(m)                               Liens
in favor of the Borrower or any Guarantor.


 


provided,
however, that no consensual Liens shall be permitted to exist, directly
or indirectly, on (i) any Securities Collateral or (ii) any Excluded Assets,
other than, in each case, Liens granted pursuant to the Security Instruments.


 


Section 9.03                                Investments,
Loans and Advances. No Company shall, directly or indirectly, lend money or
credit (by way of guarantee or otherwise) or make advances to any Person, or
purchase or acquire any stock, bonds, notes, debentures or other obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a


 


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futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract (all of
the foregoing, collectively, “Investments”), except that the following
shall be permitted:


 


(a)                                  Investments,
loans or advances listed on Schedule 9.03 and any modification,
replacement, renewal or extension thereof; provided, that the amount of
the original Investment is not increased except by the terms of such Investment
as in effect on the date hereof or as otherwise permitted by this Section 9.03.


 


(b)                                 Accounts
receivable arising in the ordinary course of business and Investments received
in satisfaction or partial satisfaction thereof from financially troubled account
debtors.


 


(c)                                  Investments
(i) by any Company in the Borrower or any Subsidiary Guarantor, (ii) by
a Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is
not a Subsidiary Guarantor and (iii) by the Borrower in Intermediate Holdco
pursuant to the Closing Date Intercompany Note; provided that any
Investment in the form of a loan or advance shall be evidenced by the
Intercompany Note or the Closing Date Intercompany Note and, in the case of a
loan or advance by a Loan Party, pledged by such Loan Party as Collateral
pursuant to the Security Instruments.


 


(d)                                 The
Companies may consummate the Transactions in accordance with the provisions of
the Transactions Documents.


 


(e)                                  Hedging
Obligations incurred pursuant to Section 9.01(f).


 


(f)                                    Investments
in securities of trade creditors or customers in the ordinary course of
business received upon foreclosure or pursuant to any plan of reorganization or
liquidation or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers.


 


(g)                                 Loans
or advances to officers, directors and employees of Holdings and its Subsidiaries
for ordinary business purposes in an amount not to exceed $5.0 million at any
time outstanding.


 


(h)                                 Investments
in the ordinary course of business consisting of endorsements for collection or
deposit.


 


(i)                                     Promissory
notes and other non-cash consideration received in connection with Asset Sales
permitted by Section 9.16.


 


(j)                                     Investments
of a Subsidiary acquired after the Closing Date or of a corporation merged into
the Borrower or merged into or consolidated with a Subsidiary in accordance with
Section 9.08 or 9.22 after the Closing Date to the extent
that such Investments were not made in contemplation of or in connection with
such acquisition, merger or consolidation and were in existence on the date of
such acquisition, merger or consolidation.


 


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(k)                                  Investments
arising out of guarantees permitted under Section 9.01.


 


(l)                                     Other
Investments in an aggregate amount not to exceed $5.0 million at any time
outstanding plus the amount of the Available Amount available at the time such
Investment is made.


 


(m)                               Investments
in Cash Equivalents.


 


An Investment
shall be deemed to be outstanding to the extent not returned in the same form
as the original Investment to Holdings or any Guarantor.


 


Section 9.04                                Restricted
Payments. Neither Holdings nor any Subsidiary will, directly or indirectly,
declare, order, pay, make or set apart any sum or Property for any Restricted
Payment, return any capital to its stockholders or make any distribution of its
assets to its stockholders, except:


 


(a)                                  Any
Subsidiary may make Restricted Payments to the Borrower or any Subsidiary of
the Borrower (and, in the case of a Restricted Payment by a non-Wholly-Owned
Subsidiary, to the Borrower and any Subsidiary and to each other owner of Capital
Securities of such Subsidiary based on their relative ownership interests).


 


(b)                                 The
Borrower may make payments to or on behalf of Holdings in an amount sufficient
to pay, to the extent actually used by Holdings to pay, (A) franchise taxes,
costs, expenses and other fees required to maintain the legal existence of
Holdings and (B)  out-of-pocket legal, accounting and filing costs and
other expenses in the nature of overhead in the ordinary course of business of
Holdings, in the case of clauses (A) and (B) in an aggregate amount not to
exceed $1.0 million in any fiscal year.


 


(c)                                  Holdings
or any Subsidiary may purchase the Capital Securities of any Subsidiary.


 


(d)                                 So
long as no Default exists the Borrower may make payments to Holdings to permit
Holdings, and Holdings may make subsequent use of such payments, to repurchase
or redeem Qualified Capital Stock of Holdings held by officers, directors or
employees or former officers, directors or employees (or their transferees,
estates or beneficiaries under their estates) of any Company, upon their death,
disability, retirement, severance or termination of employment or service; provided
that (x) to the extent such redemptions and payments are required under
any Franchise Agreement, there shall not be any limit on such redemption and
payments and (y) except as otherwise provided in clause (x), the aggregate
consideration paid for all such redemptions and payments shall not exceed $1.0
million in any fiscal year.


 


(e)                                  Holdings
and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the Capital Securities (other than Disqualified
Capital Stock) of such Person.


 


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(f)                                    Holdings
and the Borrower may make Restricted Payments to consummate the Transactions
(including, without limitation, Restricted Payments in respect of the Closing
Date Intercompany Note).


 


(g)                                 Holdings
and the Borrower may make Restricted Payments in any fiscal year in an amount
equal to sum of 50% of Excess Cash Flow for each Excess Cash Flow Period for
which the Leverage Ratio at the end of the Test Period ending on the same date
as such Excess Cash Flow Period was less than 3.50:1.00 and for which Excess
Cash Flow has been applied as a mandatory prepayment of the Loans in accordance
with Section 2.08(f) so long as such amount has not been previously
applied to (i) make an Investment in accordance with Section 9.03(l),
(ii) make, in whole or in part, a Capital Expenditure pursuant to Section
9.14 or (iii) pay, in whole or in part, Acquisition Consideration for
a Permitted Acquisition, and, in all cases, so long as after making such
Restricted Payment the Leverage Ratio is less than 3.50:1.00 on a Pro Forma
Basis and no Default has occurred and is continuing.


 


(h)                                 The
Borrower may make Restricted Payments to Holdings that are used by Holdings to
satisfy its obligations pursuant to its Organizational Documents and the Acquisition
Agreement, in each case, as in effect on the Closing Date with respect to
indemnifying its managing member, officers and directors, with respect to
liabilities incurred in performing work for the benefit of the Borrower and its
Subsidiaries, and reimbursing its members for income tax liabilities.


 


Section 9.05                                Sale
and Leaseback Transactions. Neither Holdings nor any Subsidiary will enter
into any arrangement, directly or indirectly, with any Person whereby Holdings
or any Subsidiary shall sell, lease or otherwise transfer any of its Property,
whether now owned or hereafter acquired, and whereby Holdings or any Subsidiary
shall then or thereafter rent or lease as lessee such Property or any part
thereof or other Property which Holdings or any Subsidiary intends to use for
substantially the same purpose or purposes as the Property sold or transferred,
unless (i) both before and after giving effect thereto, no Default exists or
would result therefrom, (ii) such Property consists solely of a Restaurant
Location, and (iii) the Net Cash Proceeds of such transaction are applied in
accordance with Section 2.08(c).


 


Section 9.06                                Nature
of Business; Franchises. Neither Holdings nor any Subsidiary will allow any
material change to be made in the character of its business as conducted as of
the Closing Date or enter into any business other than as a Pizza Hut or a Wing
Street franchisee or a franchisee of Yum! Brands, Inc. and its Affiliates.
Neither Holdings nor any of its Subsidiaries will take any action or fail to
take any action which results in the loss of any Franchise Agreement, license,
or other permit which would preclude Holdings, the Borrower or any Guarantor
from operating such franchise under the name “Pizza Hut,” or such other names
and trademarks as are designated in the Franchise Agreements or any other
franchise agreements if such loss would reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.


 


Section 9.07                                [RESERVED].


 


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Section 9.08                                Mergers
and Consolidations. No Company will wind up, liquidate or dissolve its
affairs or enter into any transaction of merger or consolidation (or agree to
do any of the foregoing at any future time), except that the following shall be
permitted:


 


(a)                                  acquisitions
in compliance with Section 9.22;


 


(b)                                 any
Company may merge or consolidate with or into the Borrower or any Subsidiary
Guarantor (as long as the Borrower is the surviving person in the case of any
merger or consolidation involving the Borrower and a Subsidiary Guarantor is
the surviving person and remains a Wholly-Owned Subsidiary of Holdings in any
other case); provided that the Lien on and security interest in such
property granted or to be granted in favor of the Collateral Agent under the
Security Instruments shall be maintained or created in accordance with the
provisions of Section 8.05 or Section 8.09, as
applicable;


 


(c)                                  any
Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided
that such dissolution, liquidation or winding up, as applicable, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;


 


(d)                                 any
Subsidiary (other than NPC Management) may merge with any other Person in order
to effect an Investment permitted pursuant to Section 9.03; provided
that the continuing or surviving Person shall be a Subsidiary and shall have
complied with the requirements of Section 8.09;


 


(e)                                  any
Company (other than the Borrower or NPC Management) may consummate any
winding-up, liquidation, dissolution, merger or consolidation, the purpose of
which is to effect an Asset Sale permitted pursuant to Section 9.16;


 


(f)                                    the
Companies may consummate the Transactions.


 


To the extent the Majority Lenders or all the
Lenders, as applicable, waive the provisions of this Section 9.08
with respect to the sale of any Collateral, or any Collateral is sold as permitted
by this Section 9.08, such Collateral (unless sold to a Company)
shall be sold free and clear of the Liens created by the Security Instruments,
and, so long as the Borrower shall have provided the Agents such certifications
or documents as any Agent shall reasonably request in order to demonstrate
compliance with this Section 9.08, the Agents shall take all actions
necessary or reasonably requested by the Companies in order to effect the foregoing.


 


Section 9.09                                Proceeds
of Loans; Letters of Credit. The Borrower will not permit the proceeds of
the Loans or Letters of Credit to be used for any purpose other than those
permitted by Section 7.07. Neither the Borrower nor any Person acting on
behalf of the Borrower has taken or will take any action which might cause any
of the Loan Documents to violate Regulation T, U or X or any other regulation
of the Board of Governors of the Federal Reserve System or to violate Section 7
of the Exchange Act or any rule or regulation thereunder, in each case as now
in effect or as the same may hereafter be in effect.


 


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Section 9.10                                ERISA
Compliance. Holdings will not at any time:


 


(a)                                  Engage
in, or permit any Subsidiary or ERISA Affiliate to engage in, any transaction
in connection with which the Borrower, any Subsidiary or any ERISA Affiliate
could be subjected to either a civil penalty assessed pursuant to Section
502(c), (i) or (l) of ERISA or a tax imposed by Chapter 43 of Subtitle D of the
Code;


 


(b)                                 Terminate,
or permit any Subsidiary or ERISA Affiliate to terminate, any Plan in a manner,
or take any other action with respect to any Plan, which could result in any
material liability to Holdings, any Subsidiary or any ERISA Affiliate to the
PBGC;


 


(c)                                  Fail
to make, or permit any Subsidiary or ERISA Affiliate to fail to make, full
payment when due of all amounts which, under the provisions of any Plan,
agreement relating thereto or applicable law, Holdings, a Subsidiary or any
ERISA Affiliate is required to pay as contributions thereto, except as would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;


 


(d)                                 Permit
to exist, or allow any Subsidiary or ERISA Affiliate to permit to exist, any
accumulated funding deficiency within the meaning of Section 302 of ERISA or
Section 412 of the Code, whether or not waived, with respect to any Plan,
except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;


 


(e)                                  Permit,
or allow any Subsidiary or ERISA Affiliate to permit, the actuarial present
value of the benefit liabilities under any Plan maintained by Holdings, any Subsidiary
or any ERISA Affiliate which is regulated under Title IV of ERISA to
exceed the current value of the assets (computed on a plan termination basis in
accordance with Title IV of ERISA) of such Plan allocable to such benefit
liabilities, except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect if such plan were terminated. The
term “actuarial present value of the benefit liabilities” shall have the
meaning specified in Section 4041 of ERISA;


 


(f)                                    Contribute
to or assume an obligation to contribute to, or permit any Subsidiary or ERISA
Affiliate to contribute to or assume an obligation to contribute to, any
Multiemployer Plan;


 


(g)                                 Acquire,
or permit any Subsidiary or ERISA Affiliate to acquire, an interest in any
Person that causes such Person to become an ERISA Affiliate with respect to
Holdings, any Subsidiary or any ERISA Affiliate if such Person sponsors,
maintains or contributes to, or at any time in the three-year period preceding
such acquisition has sponsored, maintained, or contributed to, (1) any
Multiemployer Plan, or (2) any other Plan that is subject to Title IV of
ERISA under which the actuarial present value of the benefit liabilities under
such Plan exceeds the current value of the assets (computed on a plan
termination basis in accordance with Title IV of ERISA) of such Plan
allocable to such benefit liabilities;


 


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(h)                                 Incur,
or permit any Subsidiary or ERISA Affiliate to incur, a liability to or on
account of a Plan under Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA
except as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;


 


(i)                                     Contribute
to or assume an obligation to contribute to, or permit any Subsidiary or ERISA
Affiliate to contribute to or assume an obligation to contribute to, any
employee welfare benefit plan, as defined in Section 3(1) of ERISA, including,
without limitation, any such plan maintained to provide benefits to former
employees of such entities, that may not be terminated by such entities in
their sole discretion at any time without any material liability; or


 


(j)                                     Except
as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, amend or permit any Subsidiary or ERISA Affiliate to
amend, a Plan resulting in an increase in current liability, such that
Holdings, any Subsidiary or any ERISA Affiliate is required to provide security
to such Plan under Section 401(a)(29) of the Code.


 


Section 9.11                                [RESERVED].


 


Section 9.12                                Maximum
Total Leverage Ratio. The Borrower will not permit the Leverage Ratio,
determined as of the last day of each Test Period ending during any period set
forth in the table below, to exceed the ratio set forth opposite such period in
the table below:


 




	
  Test Period Ending:

  	
   

  	
  Leverage Ratio

  	
   

  
	
  September 1,
  2006 - June 26, 2007

  	
   

  	
  6.25 to 1.0

  	
   

  
	
  June 27,
  2007 - December 25, 2007

  	
   

  	
  6.00 to 1.0

  	
   

  
	
  December 26,
  2007 - June 24, 2008

  	
   

  	
  5.75 to 1.0

  	
   

  
	
  June 25,
  2008 - December 30, 2008

  	
   

  	
  5.50 to 1.0

  	
   

  
	
  December 31,
  2008 - December 29, 2009

  	
   

  	
  5.25 to 1.0

  	
   

  
	
  December 30,
  2009 - December 28,2010

  	
   

  	
  4.75 to 1.0

  	
   

  
	
  December 29,
  2010 - December 27, 2011

  	
   

  	
  4.25 to 1.0

  	
   

  
	
  December 28,
  2011 and thereafter

  	
   

  	
  4.00 to 1.0

  	
   

  






 


Section 9.13                                Minimum
Interest Coverage Ratio. The Borrower will not permit the Consolidated
Interest Coverage Ratio, determined as of the last day of each Test Period
ending during any period set forth in the table below, to be less than the
ratio set forth opposite such period in the table below:


 


100

















 




	
  Test Period Ending:

  	
   

  	
  Interest

  Coverage Ratio

  	
   

  
	
  September 1,
  2006 - December 25, 2007

  	
   

  	
  1.50 to 1.0

  	
   

  
	
  December 26,
  2007 - December 30, 2008

  	
   

  	
  1.60 to 1.0

  	
   

  
	
  December 31,
  2008 - December 29, 2009

  	
   

  	
  1.65 to 1.0

  	
   

  
	
  December 30,
  2009 - June 29, 2010

  	
   

  	
  1.70 to 1.0

  	
   

  
	
  June 30,
  2010 and thereafter

  	
   

  	
  1.75 to 1.0

  	
   

  






 


Section 9.14                                Limitation
on Capital Expenditures. The Borrower will not permit the amount of Total
Capital Expenditures made in any period set forth below, to exceed the amount
set forth opposite such period below:


 




	
  Period

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
  (in millions)

  	
   

  
	
  June 27,
  2006 - December 26, 2006

  	
   

  	
  $

  	
  50.0

  	
   

  
	
  December 27,
  2006 - December 25, 2007

  	
   

  	
  $

  	
  50.0

  	
   

  
	
  December 26,
  2007 - December 30, 2008

  	
   

  	
  $

  	
  50.0

  	
   

  
	
  December 31,
  2008 - December 29, 2009

  	
   

  	
  $

  	
  50.0

  	
   

  
	
  December 30,
  2009 - December 28,2010

  	
   

  	
  $

  	
  40.0

  	
   

  
	
  December 29,
  2010 - December 27, 2011

  	
   

  	
  $

  	
  40.0

  	
   

  
	
  December 28,
  2011 - December 25, 2012

  	
   

  	
  $

  	
  40.0

  	
   

  






 


; provided, however, that
(x) if the aggregate amount of Total Capital Expenditures made in any fiscal
year shall be less than the maximum amount of Total Capital Expenditures
permitted under this Section 9.14 for such fiscal year (before
giving effect to any carryover), then an amount of such shortfall (without
giving effect to clause (z) below) not exceeding 100% of such maximum
amount may be added to the amount of Total Capital Expenditures permitted under
this Section 9.14 for the immediately succeeding (but not any
other) fiscal year, (y) in determining whether any amount is available for
carryover, the amount expended in any fiscal year shall first be deemed to be
from the amount allocated to such fiscal year (before giving effect to any carryover)
and (z) the amount set forth in the table above for any period may be increased
by (A) the amount of the Available Amount available at any time and
(B) the Capital Expenditures Expansion Amount for such period.


 


Section 9.15                                [RESERVED].


 


Section 9.16                                Asset
Sales. No Company will effect any Asset Sale, or agree to effect any Asset
Sale, except that the following shall be permitted:


 


101














 


(a)                                  disposition of used,
worn out, obsolete or surplus property by any Company in the ordinary course of
business and the abandonment or other disposition of Intellectual Property that
is, in the reasonable judgment of the Borrower, no longer economically
practicable to maintain or useful in the conduct of the business of the
Companies taken as a whole;


 


(b)                                 Asset Sales that (i) at
least 80% of the consideration therefor, measured at the time thereof, consists
of cash and Cash Equivalents, (ii) the consideration therefor has a Fair
Market Value at the time of such Asset Sale, in the good faith opinion of the
Borrower, at least equal to that of the Property subject to such Asset Sale and
(iii) the aggregate consideration received therefor shall not exceed $20.0
million in any fiscal year or $70.0 million since the Closing Date;


 


(c)                                  leases, subleases,
licenses or sublicenses of real or personal property in the ordinary course of
business and in accordance with the applicable Security Instruments;


 


(d)                                 mergers and
consolidations in compliance with Section 9.08;


 


(e)                                  Investments in compliance
with Section 9.03;


 


(f)                                    Sale and Leaseback
Transactions of Restaurant Locations so long as Sections 2.08(c) and
9.05 are complied with; and


 


(g)                                 transfers of property
subject to Casualty Events upon receipt of the Net Cash Proceeds of such
Casualty Event.


 


To the extent
the Majority Lenders or all the Lenders, as applicable, waive the provisions of
this Section 9.16 with respect to the sale of any Collateral, or
any Collateral is sold as permitted by this Section 9.16, such
Collateral (unless sold to a Company) shall be sold free and clear of the Liens
created by the Security Instruments, and, so long as the Borrower shall have provided
the Agents such certifications or documents as any Agent shall reasonably
request in order to demonstrate compliance with this Section 9.16,
the Agents shall take all actions necessary or reasonably requested by the
Companies in order to effect the foregoing.


 


Section 9.17                                Environmental
Matters. Neither Holdings nor any Subsidiary will cause or permit any of
its Property to be in violation of, or do anything or permit anything to be
done which will subject any such Property to any remedial obligations under,
any Environmental Laws, assuming disclosure to the applicable Governmental
Authority of all relevant facts, conditions and circumstances, if any,
pertaining to such Property where such violations or remedial obligations would
reasonably be expected to, individually or in the aggregate, have a Material Adverse
Effect.


 


Section 9.18                                Transactions
with Affiliates. Neither Holdings nor any Subsidiary will enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, (x) with any Affiliate
unless such transactions are otherwise permitted under this Agreement, are in
the ordinary course of its business and are upon fair and reasonable terms no
less favorable to it than it would obtain in a comparable arm’s


 


102

















 


length transaction with a Person not an Affiliate or (y) between
or among two or more Subsidiaries. Notwithstanding the foregoing, (i) the
consummation of the Transactions pursuant to the Transaction Documents and the
Closing Date Intercompany Note shall be permitted, (ii) so long as no
Default exists, the payment of regular management fees and related indemnities
and reasonable expenses to Sponsor in the amounts and at the times specified in
the Management Services Agreement, as in effect on the Closing Date or as
thereafter amended or replaced in any manner, that, taken as a whole, is not
more adverse to the interests of the Lenders in any material respect than such
agreement as it was in effect on the Closing Date shall be permitted, (iii) any
transaction with an Affiliate where the only consideration paid by any Company
is Qualified Capital Stock of Holdings shall be permitted, (iv) the
payment of reasonable and customary fees paid to, and indemnities provided for
the benefit of, officers, directors, employees or consultants of the Borrower,
any of its direct or indirect parent companies or any of its Subsidiaries,
shall be permitted, (v) any agreement as in effect on the date hereof, or
any amendment thereto (so long as any such amended agreement as determined in
good faith by senior management or the Board of Directors of the Borrower is
not disadvantageous in any material respect to the Lenders when taken as a
whole as compared to the applicable agreement as in effect on the date hereof)
or any transaction contemplated thereby as determined in good faith by senior
management or the Board of Directors of the Borrower shall be permitted, (vi) transactions
among Loan Parties shall be permitted and (vii) Holdings and its
Subsidiaries may enter into employment and severance arrangements with
officers and employees in the ordinary course of business.


 


Section 9.19                                Subsidiaries.
The Borrower shall not, and shall not permit any Subsidiary to, acquire or
create any additional Subsidiaries, unless the requirements of Section 8.09
have been or are contemporaneously satisfied.


 


Section 9.20                                Negative
Pledge Agreements, Etc. No Company will, or will permit any Subsidiary to,
create, incur, assume or permit to exist any contract, agreement or understanding
(other than this Agreement, the Senior Subordinated Notes Indenture and the
Security Instruments and those required by Governmental Requirements) which in
any way


 


(i)                                     prohibits or
restricts the granting, conveying, creation or imposition of any Lien on any of
its Property, except for (1) negative pledges and restrictions on Liens in
favor of any holder of Debt permitted under Section 9.01 but solely to the
extent any negative pledge relates to the Property financed by or the subject
of such Debt, (2) customary restrictions in leases, subleases, licenses or
asset sale agreements otherwise permitted hereby so long as such restrictions
relate to the assets subject thereto, (3) prohibitions and restrictions
contained in any Franchise Agreement and (4) customary provisions restricting
assignment of any agreement entered into in the ordinary course of business; or


 


(ii)                                  restricts any
Subsidiary from (a) paying dividends or making other distributions to
Holdings or the Borrower, (b) paying any Debt owed to Holdings or the Borrower,
(c) making loans or advances to Holdings or the Borrower, (d) transferring
any of its Properties to Holdings or the Borrower or (e) making payments
under any guaranty not otherwise prohibited by this Agreement, except for any
agreement in effect (1) on the date hereof, and, to the extent such
agreement evidences any Debt, any agreement evidencing 


 


103

















 


any renewal, extension or refinancing of such Debt permitted hereunder
that does not create more onerous restrictions on such Subsidiary than the
existing agreement, (2) at the time any Subsidiary becomes a Subsidiary of
the Borrower, so long as such agreement was not entered into in contemplation
of such Person becoming a Subsidiary of the Borrower, (3) representing
Debt of a Subsidiary of the Borrower which is not required to be a Loan Party
which is permitted by Section 9.01, or (4) in connection with any
Asset Sale permitted by Section 9.16 pending consummation of such sale.


 


Section 9.21                                Change
of Fiscal Year. The Borrower will not change its fiscal year, which shall
consist of fiscal quarters ending on the last Tuesday of March, June, September and
December in each year.


 


Section 9.22                                Acquisitions.
No Company shall purchase or otherwise acquire (in one or a series of
related transactions) all or substantially all of the property (whether
tangible or intangible) of any Person or of assets constituting a business unit
or division of such Person (or agree to do any of the foregoing at any future
time), except that the following shall be permitted:


 


(a)                                  Capital Expenditures
by the Borrower and the Subsidiaries shall be permitted to the extent permitted
by Section 9.14;


 


(b)                                 purchases and other
acquisitions of inventory, materials, equipment and intangible property in the
ordinary course of business;


 


(c)                                  Investments in
compliance with Section 9.03;


 


(d)                                 leases of real or
personal property in the ordinary course of business and in accordance with the
applicable Security Instruments;


 


(e)                                  the Transactions as
contemplated by the Transaction Documents;


 


(f)                                    Permitted
Acquisitions; and


 


(g)                                 mergers and
consolidations in compliance with Section 9.08;


 


provided
that the Lien on and security interest in such property granted or to be
granted in favor of the Collateral Agent under the Security Instruments shall
be maintained or created in accordance with the provisions of Section 8.05
or Section 8.09, as applicable.


 


Section 9.23                                Prepayments
of Other Debt; Modifications of Organizational Documents and Other Documents,
Etc. No Company shall directly or indirectly:


 


(a)                                  make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment on
or redemption or acquisition for value of, or any prepayment or redemption as a
result of any asset sale, change of control or similar event of, any Debt
outstanding under the Senior Subordinated Notes, except as otherwise permitted
by Section 9.01(b);


 


104

















 


(b)                                 amend or modify, or
permit the amendment or modification of, any provision of any Transaction
Document or the Closing Date Intercompany Note in any manner that is adverse in
any material respect to the interests of the Lenders;


 


(c)                                  terminate, amend or
modify any of its Organizational Documents (including (x) by the filing or
modification of any certificate of designation and (y) any election to treat
any Pledged Securities (as defined in the Security Agreement) as a “security”
under Section 8-103 of the UCC other than concurrently with the delivery
of certificates representing such Pledged Securities to the Collateral Agent)
or any agreement to which it is a party with respect to its Capital Securities
(including any stockholders’ agreement), or enter into any new agreement with
respect to its Capital Securities, other than any such amendments or
modifications or such new agreements which are not adverse in any material
respect to the interests of the Lenders; provided that Holdings may issue
such Capital Securities, so long as such issuance is not prohibited by Section 9.24
or any other provision of this Agreement, and may amend or modify its
Organizational Documents to authorize any such Capital Securities; or


 


(d)                                 cause or permit any
other obligation (other than the Secured Obligations and the Guaranteed
Obligations) to constitute Designated Senior Debt (as defined in the Senior
Subordinated Notes Documents).


 


Section 9.24                                Limitation
on Issuance of Capital Securities.


 


(a)                                  Holdings
shall not issue any Capital Security that is not Qualified Capital Stock.


 


(b)                                 No
Company (other than Holdings) shall issue any Capital Securities (including by
way of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, any Capital Securities, except (i) for stock
splits, stock dividends and additional issuances of Capital Securities which do
not decrease the percentage ownership of Holdings or any Subsidiaries in any class of
the Capital Securities of such Subsidiary; (ii) any Subsidiary of the
Borrower may issue Capital Securities to the Borrower or any other Subsidiary
of the Borrower; and (iii) the Borrower may issue common stock that
is Qualified Capital Stock to Holdings. All Capital Securities issued in
accordance with this Section 9.24(b) shall, to the extent
required by Sections 8.05 and 8.09 or any Security Agreement
or if such Capital Securities are issued by the Borrower, be delivered to the
Collateral Agent for pledge pursuant to the Security Agreement.


 


Section 9.25                                Business.
Each of Holdings and Intermediate Holdco shall not engage in any business
activities or have any properties or liabilities, other than (i) in the
case of Holdings, its ownership of the Capital Securities of the Borrower or
Intermediate Holdco and in the case of Intermediate Holdco its ownership of the
Capital Securities of the Borrower, (ii) obligations under the Loan
Documents and the Senior Subordinated Notes Documents, (iii) in the case
of Holdings, activities in connection with the Management Services Agreement
and (iv) activities, properties and liabilities incidental to the
foregoing clauses (i), (ii) and (iii). NPC Bar Management Corporation
shall not engage in any business activities or have any properties or
liabilities, other than owning liquor licenses for Restaurants in the State of
Texas and activities, properties and liabilities incidental thereto.


 


105

















 


Section 9.26                                [RESERVED].


 


Section 9.27                                Embargoed
Person. No Loan Party shall cause or permit (a) any of the funds or
properties of the Loan Parties that are used to repay the Loans to constitute
property of, or be beneficially owned directly or indirectly by, any Person
subject to sanctions or trade restrictions under United States law (“Embargoed
Person” or “Embargoed Persons”) that is identified on (1) the “List
of Specially Designated Nationals and Blocked Persons” maintained by OFAC
and/or on any other similar list maintained by OFAC pursuant to any authorizing
statute including, but not limited to, the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701 et seq., The
Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.,
and any Executive Order or Governmental Requirement promulgated thereunder,
with the result that the investment in the Loan Parties (whether directly or
indirectly) is prohibited by a Governmental Requirement, or the Loans made by
the Lenders would be in violation of a Governmental Requirement, or (2) the
Executive Order, any related enabling legislation or any other similar
Executive Orders or (b) any Embargoed Person to have any direct or indirect
interest, of any nature whatsoever in the Loan Parties, with the result that
the investment in the Loan Parties (whether directly or indirectly) is
prohibited by a Governmental Requirement or the Loans are in violation of a
Governmental Requirement.


 


ARTICLE X


 


Events of Default; Remedies


 


Section 10.01                          Events
of Default. One or more of the following events shall constitute an “Event
of Default”:


 


(a)                                  (i) the Borrower
shall default in the payment or prepayment when due of any principal of any
Loan, or any reimbursement obligation with respect to LC Disbursements, or (ii) the
Borrower shall default in the payment when due of any interest on any Loan or
any fees or other amount payable by it hereunder or under any Loan Document and
such default under this clause (ii) shall continue unremedied for a period
of five Business Days; or


 


(b)                                 any Company shall
default in the payment when due after any applicable grace period with respect
thereto of any principal of or interest on any of its other Debt exceeding $5.0
million individually or $10.0 million in the aggregate, or any event specified
in any note, agreement, indenture or other document evidencing or relating to
any such Debt shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder or
holders of such Debt (or a trustee or agent on behalf of such holder or
holders) to cause, such Debt to become due prior to its stated maturity; or


 


(c)                                  any representation,
warranty or certification made, in writing, or deemed made herein or in any
other Loan Document by Holdings or any Subsidiary, or any certificate furnished
to any Lender or the Administrative Agent pursuant to the provisions hereof or
any other Loan Document, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or


 


106

















 


(d)                                 (i) the Borrower
or Holdings shall default in the performance of any of its obligations under Article IX,
Section 8.01(d), the first sentence of Section 8.02 or
under Section 8.03(a) (with respect to maintenance of the
Borrower’s existence); or (ii) the Borrower or any Guarantor shall default
in the performance of any of its obligations under Article VIII
(other than Section 8.01(d), the first sentence of Section 8.02
or under Section 8.03(a) (with respect to maintenance of the
Borrower’s existence)) or any other Loan Document (other than the payment of amounts
due which shall be governed by Section 10.01(a)) and such default
under this clause (ii) shall continue unremedied for a period of thirty
(30) days after the earlier to occur of (x) notice thereof to the Borrower by
the Administrative Agent or any Lender (through the Administrative Agent), or
(y) the Borrower or Holdings otherwise becoming aware of such default; or


 


(e)                                  the Borrower shall
admit in writing its inability to, or be generally unable to, pay its debts as
such debts become due; or


 


(f)                                    the Borrower shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Federal
Bankruptcy Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, liquidation or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or acquiesce
in writing to, any petition filed against it in an involuntary case under the
Federal Bankruptcy Code, or (vi) take any corporate action for the purpose
of effecting any of the foregoing; or


 


(g)                                 a proceeding or case
shall be commenced, without the application or consent of the Borrower, in any
court of competent jurisdiction, seeking (i) its liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of the Borrower of all or any substantial part of
its assets, or (iii) similar relief in respect of the Borrower under any
law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 days; or (iv) an order for relief against the Borrower shall be entered
in an involuntary case under the Federal Bankruptcy Code; or


 


(h)                                 a judgment or
judgments for the payment of money in excess of $5.0 million in the aggregate
(after subtraction of any applicable insurance proceeds paid in respect thereof
prior to the occurrence of any stay or appeal described below) shall be
rendered by a court against the Borrower or any Guarantor and the same shall
not be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured within thirty (30) days from
the date of entry thereof and the Borrower or such Guarantor shall not, within
said period of 30 days, or such longer period


 


107

















 


during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or


 


(i)                                     any Loan Document
after delivery thereof shall for any reason, except to the extent permitted by
the terms thereof or as a result of acts or omissions by the Administrative
Agent, any Lender or their agents or satisfaction in full of all the
Obligations (other than contingent indemnification obligations not then due and
payable), cease to be in full force and effect and valid, binding and
enforceable in accordance with its terms, or, if applicable, cease to create a
valid and perfected Lien of the priority required thereby on a material portion
of the collateral purported to be covered thereby or to confer the rights,
powers or privileges purported to be created or granted thereunder, except to
the extent permitted by the terms of this Agreement or as a result of acts or
omissions by the Administrative Agent, any Lender or their agents or
satisfaction in full of all the Obligations (other than contingent
indemnification obligations not then due and payable), or the Borrower or any
Guarantor shall so deny or repudiate in writing any obligation under or in
respect of any Loan Document (other than as a result of repayment in full of
the Obligations (other than contingent indemnification obligations not then due
and payable)) or commence a proceeding seeking to establish the invalidity or
unenforceability thereof; or


 


(j)                                     a Change of
Control occurs; or


 


(k)                                  any Guarantor takes,
suffers or permits to exist any of the events or conditions referred to in
paragraphs (e), (f) or (g); or


 


(l)                                     one or more ERISA
Events shall have occurred that, in the opinion of the Majority Lenders, when
taken together with all other such ERISA Events, would reasonably be expected
to have a Material Adverse Effect or result in the imposition of a Lien on any
properties of a Company.


 


Section 10.02                          Remedies.


 


(a)                                  In
the case of an Event of Default other than one referred to in clauses (e),
(f) or (g) of Section 10.01 or in clause (k) to the
extent it relates to Holdings, the Borrower or NPC Management, the
Administrative Agent may, and upon request of the Majority Lenders shall, by
notice to the Borrower, cancel the Commitments (in whole or part) and/or
declare the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Borrower hereunder and under the
Notes (including without limitation the payment of cash collateral to secure
the LC Exposure as provided in Section 2.03(j)) to be forthwith due
and payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other formalities of any kind, all of which are hereby expressly
waived by the Borrower.


 


(b)                                 In
the case of the occurrence of an Event of Default referred to in
clauses (e), (f) or (g) of Section 10.01 or in
clause (k) to the extent it relates to Holdings, the Borrower or NPC
Management, the Commitments shall be automatically canceled and the principal
amount then outstanding of, and the accrued interest on, the Loans and all
other amounts payable by the Borrower hereunder and under the Notes (including
without limitation the payment of cash collateral


 


108

















 


to secure the LC Exposure as provided in Section 2.03(j))
shall become automatically immediately due and payable without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower.


 


Section 10.03                          Application
of Proceeds. After the exercise of remedies provided for in Section 10.02(a) (or
after the Loans have automatically become immediately due and payable and the
LC Exposure has automatically been required to be cash collateralized as set
forth in Section 10.02(b)), any amounts received by the Agents on
account of the Obligations shall be applied by the Collateral Agent in the
following order:


 


(a)                                  First,
to the payment of all reasonable costs and expenses, fees, commissions and
taxes of such sale, collection or other realization including compensation to
the Collateral Agent and its agents and counsel, and all expenses, liabilities
and advances made or incurred by the Collateral Agent in connection therewith
and all amounts for which the Collateral Agent is entitled to indemnification
pursuant to the provisions of any Loan Document, together with interest on each
such amount at the highest rate then in effect under this Agreement from and
after the date such amount is due, owing or unpaid until paid in full;


 


(b)                                 Second,
to the payment of all other reasonable costs and expenses of such sale,
collection or other realization including compensation to the other Secured
Parties and their agents and counsel and all costs, liabilities and advances
made or incurred by the other Secured Parties in connection therewith, together
with interest on each such amount at the highest rate then in effect under this
Agreement from and after the date such amount is due, owing or unpaid until
paid in full;


 


(c)                                  Third,
without duplication of amounts applied pursuant to clauses (a) and (b) above,
to the indefeasible payment in full in cash, pro rata,
of interest and other amounts constituting Obligations (other than principal,
reimbursement obligations in respect of LC Disbursements and obligations to
cash collateralize Letters of Credit) and any fees, premiums and scheduled
periodic payments due under Hedging Agreements or Treasury Services Agreements
constituting Secured Obligations and any interest accrued thereon, in each case
equally and ratably in accordance with the respective amounts thereof then due
and owing;


 


(d)                                 Fourth,
to the indefeasible payment in full in cash, pro rata,
of principal amount of the Obligations and any premium thereon (including
reimbursement obligations in respect of LC Disbursements and obligations to cash
collateralize Letters of Credit) and any breakage, termination or other
payments under Hedging Agreements and Treasury Services Agreements constituting
Secured Obligations and any interest accrued thereon; and


 


(e)                                  Fifth,
the balance, if any, to the Person lawfully entitled thereto (including the
applicable Loan Party or its successors or assigns) or as a court of competent
jurisdiction may direct.


 


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Section 10.04                          Holdings’
Right to Cure.


 


(a)                                  Cure
Right Mechanics. Notwithstanding anything to the contrary contained in Section 10.01,
in the event that the Borrower fails to comply with the requirements of Section 9.12,
9.13 or 9.14, until the expiration of the 10th day subsequent to
the date the Compliance Certificate calculating such covenant is required to be
delivered pursuant to Section 8.01(c), Holdings shall have the
right to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to the common equity capital of Holdings, and, in each case, to
contribute any such cash to the common equity capital of Borrower
(collectively, the “Cure Right”), and upon the receipt by Borrower of
such cash (the “Cure Amount”) pursuant to the exercise by Holdings of
such Cure Right such covenant shall be recalculated giving effect to the
following pro  forma adjustments:


 


(i)                                     if such Cure Right
is exercised with respect to (x) Section 9.12 or 9.13,
Consolidated EBITDA for the latest Fiscal Quarter included in the Test Period
for which the Compliance Certificate was required to be delivered shall be increased,
solely for the purpose of measuring such covenants and not for any other
purpose under this Agreement, by an amount equal to the Cure Amount and (y) Section 9.14,
the amount of Total Capital Expenditures allowed for such period shall be
increased, solely for the purpose of measuring such covenants and not for any
other purpose under this Agreement, by an amount equal to the Cure Amount; and


 


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


 


(b)                                 Limitation
on Exercise of Cure Right. Notwithstanding anything herein to the contrary,
(a) in each four-fiscal-quarter period there shall be at least two fiscal
quarters in which the Cure Right is not exercised, (b) in each
eight-fiscal-quarter period, there shall be a period of at least four consecutive
fiscal quarters during which the Cure Right is not exercised and (c) the
Cure Amount shall be no greater than the amount required for purposes of
complying with such covenants.


 


ARTICLE XI


 


The Administrative Agent and the Collateral Agent


 


Each of the
Lenders and the Issuing Bank hereby irrevocably appoints the Agents as its
agent and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.


 


Each bank
serving as an Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it
were not an


 


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Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.


 


An Agent shall
not have any duties or obligations except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) the Agents shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Agents shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Agents are required to exercise in writing as directed by the Majority Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 12.04), and (c) except
as expressly set forth herein, the Agents shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as an Agent or any of its Affiliates in any capacity. The
Agents shall not be liable for any action taken or not taken by it with the
consent or at the request of the Majority Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 12.04) or in the absence of its own gross
negligence or willful misconduct. The Agents shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to an
Agent by the Borrower or a Lender, and the Agents shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement, (ii) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article VI or elsewhere herein, other than
to confirm receipt of items expressly required to be delivered to such Agent.


 


The Agents
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person. Each Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper Person,
and shall not incur any liability for relying thereon. Each Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


Each Agent may perform any
and all its duties and exercise its rights and powers by or through any one or
more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through its respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of an Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as an Agent.


 


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Subject to the
appointment and acceptance of a successor Agent as provided in this paragraph,
an Agent may resign at any time by notifying the Lenders, the Issuing Bank
and the Borrower. Upon any such resignation, the Majority Lenders shall have
the right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon
the acceptance of its appointment as Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After an Agent’s
resignation hereunder, the provisions of this Article XI and Section 12.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as an Agent.


 


Each Lender
acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.


 


Anything
herein to the contrary notwithstanding, none of the bookmanagers, Arrangers,
Syndication Agent or Documentation Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, the Collateral Agent, a Lender or the Issuing Bank
hereunder.


 


THE
LENDERS AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT, COLLATERAL AGENT AND THE ISSUING
BANK RATABLY IN ACCORDANCE WITH THEIR PERCENTAGE OF THE SUM OF OUTSTANDING
LOANS, UNUSED AGGREGATE COMMITMENTS AND LC EXPOSURE FOR THE INDEMNITY MATTERS
AS DESCRIBED IN SECTION 12.03 TO THE EXTENT NOT INDEMNIFIED OR
REIMBURSED BY THE BORROWER UNDER SECTION 12.03, BUT WITHOUT
LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SAID SECTION 12.03
AND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND
NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT 
OR THE ISSUING BANK IN ANY WAY RELATING TO OR ARISING OUT OF:  (I) THE LOAN DOCUMENTS OR ANY OTHER DOCUMENTS
CONTEMPLATED BY OR REFERRED TO HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY,
BUT EXCLUDING, UNLESS A DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL
ADMINISTRATIVE COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY
DUTIES HEREUNDER OR (II) THE ENFORCEMENT OF ANY OF THE TERMS OF THE LOAN DOCUMENTS
OR OF ANY SUCH OTHER DOCUMENTS; WHETHER OR


 


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NOT ANY OF THE FOREGOING ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE
OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR THE ISSUING BANK; PROVIDED
THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT THEY
ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT OR THE ISSUING BANK.


 


ARTICLE XII


 


Miscellaneous


 


Section 12.01                          Waiver.
No failure on the part of the Administrative Agent or any Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under any of the Loan Documents shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under any of the Loan Documents preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.


 


Section 12.02                          Notices.


 


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


 


(i)                                     if to a Loan
Party, to the Borrower at NPC International, Inc., 14400 College Blvd., Suite 201,
Lenexa, Kansas 66215, Attention of Troy Cook (Telecopy No. (913) 327-5849;
E-Mail:  troy.cook@npcinternational.com);
with a copy to NPC International, Inc., 720 West 20th Street,
Pittsburg, Kansas 66762, Attention of Susan Dechant (Telecopy No.:  620-231-3746; E-Mail:  susan.dechant@npcinternational.com);


 


(ii)                                  if to the
Administrative Agent or the Collateral Agent, to JPMorgan Chase Bank, Loan and Agency Services
Group, 10 South Dearborn, 19th Floor, Chicago, IL 60603, Attention of Mi Y Kim
-  Agency Services (Telecopy No. (312)
385-7098), with a copy to JPMorgan Chase Bank, 707 Travis Street, 8th Floor,
Houston, TX, 77002, Attention of Debra Harris (Telecopy No. (713)
216-4651);


 


(iii)                               if to the Issuing Bank,
to it at Loan
and Agency Services Group, 10 South Dearborn, 19th Floor, Chicago, IL 60603,
Attention of Mi Y Kim -  Agency Services
(Telecopy No. (312) 732-4864), with a copy to JPMorgan Chase Bank, 707
Travis Street, 8th Floor, Houston, TX, 77002, Attention of Debra Harris
(Telecopy No. (713) 216-4651);


 


(iv)                              if to the Swingline
Lender, to it Loan and Agency Services Group, 10 South Dearborn, 19th Floor, Chicago, IL
60603, Attention of Mi Y Kim -  Agency Services
(Telecopy No. (312) 732-4864), with a copy to JPMorgan Chase Bank, 707
Travis


 


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Street,
8th Floor, Houston, TX, 77002, Attention of Debra Harris (Telecopy No. (713)
216-4651); and


 


(v)                                 if to any other
Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 


Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). The Administrative Agent or the Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications and
that in all instances notices and communications by electronic mail must be
promptly followed by notice by another approved written medium.


 


Any party
hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.


 


Section 12.03                          Payment
of Expenses, Indemnities, Etc.


 


(a)                                  The
Borrower agrees:


 


(i)                                     whether or not the
transactions hereby contemplated are consummated, to pay all reasonable
out-of-pocket expenses of the Agents and the Arrangers in the administration
(both before and after the execution hereof and including advice of counsel as
to the rights and duties of the Agents and the Lenders with respect thereto)
of, and in connection with the negotiation, syndication, investigation,
preparation, execution and delivery of, recording or filing of, preservation of
rights under, enforcement (including in connection with any workout,
restructuring or similar negotiation) of, and refinancing, renegotiation or
restructuring of, the Loan Documents and any amendment, waiver or consent
relating thereto (including, without limitation, travel, photocopy, mailing,
courier, telephone and other similar expenses of the Agents, the cost of environmental
audits, surveys and appraisals conducted pursuant to this Agreement, the
reasonable fees and disbursements of one special counsel and not more than one
local counsel in each applicable jurisdiction for the Agents and, in the case
of enforcement, the reasonable fees and disbursements of counsel for the Agents
and any of the Lenders and other outside consultants); and promptly reimburse
the Agents for all amounts expended, advanced or incurred by the Agents or the
Lenders to satisfy any obligation of the Borrower under this Agreement or any
Security Instrument, including without limitation all costs and expenses of foreclosure;


 


(ii)                                TO
INDEMNIFY THE AGENTS AND EACH LENDER AND EACH OF THEIR AFFILIATES AND EACH OF
THEIR OFFICERS, DIRECTORS, TRUSTEES, EMPLOYEES, REPRESENTATIVES, AGENTS,
ATTORNEYS, ACCOUNTANTS AND EXPERTS (“INDEMNIFIED


 


114

















 


PARTIES”) FROM, HOLD
EACH OF THEM HARMLESS AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF
THEM FOR, THE INDEMNITY MATTERS WHICH MAY BE INCURRED BY OR ASSERTED
AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A
PARTY THERETO AND WHETHER OR NOT ASSERTED BY ANY THIRD PARTY OR A LOAN PARTY)
AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR LETTERS OF
CREDIT, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS,
(III) THE OPERATIONS OF THE BUSINESS OF HOLDINGS AND ITS SUBSIDIARIES, (IV) THE
FAILURE OF THE BORROWER OR ANY GUARANTOR TO COMPLY WITH THE TERMS OF ANY LOAN
DOCUMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY OF ANY
REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF THE BORROWER OR ANY GUARANTOR
SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) THE ISSUANCE, EXECUTION AND
DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF
CREDIT, OR (VII) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT
NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION
OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), (VIII) ANY ASSERTION
THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO
THE SECURITY INSTRUMENTS OR (IX) ANY OTHER ASPECT OF THE LOAN DOCUMENTS,
INCLUDING, WITHOUT LIMITATION THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR
PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS,
LITIGATION OR INQUIRIES) OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING
BY REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY, EXCEPT TO THE
EXTENT ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF
THE INDEMNIFIED PARTY; AND


 


(iii)                            TO
INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED PARTIES FROM AND
AGAINST ANY AND ALL ACTUAL LOSSES, CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE
ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME
SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, HOLDINGS OR
ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT LIMITATION THE
TREATMENT OR DISPOSAL OR OTHER RELEASE OF HAZARDOUS MATERIALS ON, AT, UNDER OR
FROM ANY OF THEIR PROPERTIES, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE
BY ANY COMPANY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO SUCH COMPANY, (III) DUE
TO PAST OWNERSHIP BY ANY COMPANY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON
ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME,
COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE, STORAGE,
TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON, AT, UNDER OR FROM ANY OF THE
PROPERTIES OWNED OR OPERATED BY HOLDINGS OR ANY SUBSIDIARY, OR (V) ANY
OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION RELATING TO ANY COMPANY; PROVIDED,
HOWEVER, NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 12.03(a)(iii) IN
RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE TO THE EXTENT RESULTING FROM THE
GROSS NEGLIGENCE OR WILLFUL ACTS OF AN


 


115

















 


AGENT OR ANY LENDER WHETHER DURING THE PERIOD
AFTER WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED
POSSESSION OF SUCH PROPERTY (WHETHER BY FORECLOSURE OR DEED IN LIEU OF
FORECLOSURE, AS MORTGAGEE-IN-POSSESSION OR OTHERWISE) OR OTHERWISE.


 


(b)                                 No
Indemnified Party may settle any claim to be indemnified without the
consent of the indemnitor, such consent not to be unreasonably withheld.


 


(c)                                  In
the case of any indemnification hereunder, the applicable Agent or Lender, as
appropriate shall give notice to the Borrower of any such claim or demand being
made against the Indemnified Party and the Borrower shall have the non-exclusive
right to join in the defense against any such claim or demand; provided
that, if the Borrower provides a defense, the Indemnified Party shall bear its
own cost of other defense unless there is a conflict between the Borrower and
such Indemnified Party.


 


(d)                                  THE
FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES NOTWITHSTANDING
THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER,
WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING
WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE
RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY
REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE
INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE
COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THIS CONTRACTUAL
OBLIGATION OF INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE
PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER
THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTY.


 


(e)                                  The
Borrower’s obligations under this Section 12.03 shall survive any
termination of this Agreement and the payment of the Loans and shall continue
thereafter in full force and effect.


 


(f)                                    The
Borrower shall pay any amounts due under this Section 12.03 within
thirty (30) days of the receipt by the Borrower of notice of the amount due.


 


(g)                                 To
the fullest extent permitted by applicable Governmental Requirements, no party
hereto shall assert, and each party hereto hereby waives, any claim against any
other party hereto, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof. No Indemnified Party referred to in paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby.


 


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Section 12.04                          Waivers;
Amendments.


 


(a)                                  Generally.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by this Section 12.04, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time. No notice or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.


 


(b)                                 Required
Consents. Subject to Sections 12.04(c) and (d), neither
this Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended, supplemented or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
the Borrower and the Majority Lenders or by the Borrower and the Administrative
Agent with the consent of the Majority Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Administrative Agent, the Collateral Agent (in the case of any Security
Instrument) and the Loan Party or Loan Parties that are party thereto, in each
case with the written consent of the Majority Lenders; provided that no
such agreement shall be effective if the effect thereof would:


 


(i)                                     increase the
Commitment of any Lender without the written consent of such Lender (it being
understood that no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant or Default shall constitute an
increase in the Commitment of any Lender);


 


(ii)                                  forgive or reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest or
premium thereon (other than interest at the Post-Default Rate), or forgive or reduce
any fees payable hereunder, or change the form or currency of payment of
any Obligation, without the written consent of each Lender directly affected
thereby (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in the
rate of interest for purposes of this clause (ii));


 


(iii)                               (A) postpone the
scheduled final maturity of any Loan, or any scheduled date of payment of or
the installment otherwise due on the principal amount of any Term Loan under Section 3.01(b),
(B) postpone the date for payment of any reimbursement obligation with
respect to a LC Disbursement or any interest or fees payable hereunder, (C) forgive
or reduce the amount of, waive or excuse any such payment (other than waiver of
interest at the Post-Default Rate), or (D) postpone the scheduled date of
expiration of any Commitment or any Letter of Credit beyond the Revolving
Credit Termination Date, in any case, without the written consent of each Lender
directly affected thereby;


 


(iv)                              increase the maximum
duration of Interest Periods hereunder, without the written consent of each
Lender directly affected thereby;


 


117

















 


(v)                                 permit the assignment
or delegation by the Borrower of any of its rights or obligations under any
Loan Document, without the written consent of each Lender;


 


(vi)                              release one or more
Guarantors from their Guarantee (except as expressly provided in Article XIII),
if such release is in respect of a material portion of the value of the
Guarantees to the lenders, without the written consent of each Lender;


 


(vii)                           release all or substantially
all of the Collateral from the Liens under the Security Instruments or alter
the relative priorities of the Secured Obligations entitled to the Liens under
the Security Instruments, in each case without the written consent of each
Lender (it being understood that additional Classes of Loans consented to by
the Majority Lenders may be equally and ratably secured by the Collateral
with the then existing Secured Obligations under the Security Instruments);


 


(viii)                        change Section 4.02
in a manner that would alter the pro rata sharing
of payments or set-offs required thereby or any other provision in a manner
that would alter the pro rata
allocation among the Lenders of Loan disbursements, without the written consent
of each Lender directly affected thereby;


 


(ix)                                change any provision of
this Section 12.04(b) or Section 12.04(c) or (d),
without the written consent of each Lender directly affected thereby (except
for additional restrictions on amendments or waivers for the benefit of Lenders
of additional Classes of Loans consented to by the Majority Lenders);


 


(x)                                   change the
percentage set forth in the definition of “Majority Lenders” or any other
provision of any Loan Document (including this Section) specifying the number
or percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), other than to increase such percentage or
number or to give any additional Lender or group of Lenders such right to
waive, amend or modify or make any such determination or grant any such consent;


 


(xi)                                change the application
of prepayments as among or between Classes under Section 2.08(g),
without the written consent of the Majority Lenders of each Class that is
being allocated a lesser prepayment as a result thereof (it being understood
that the Majority Lenders may waive, in whole or in part, any prepayment
so long as the application, as between Classes, of any portion of such
prepayment that is still required to be made, if any, is not changed and, if
additional Classes of Term Loans under this Agreement consented to by the
Majority Lenders are made, such new Term Loans may be included on a pro rata basis in the various prepayments required pursuant
to Section 2.08(g));


 


(xii)                             change or waive any
provision of Article XI as the same applies to any Agent, or any
other provision hereof as the same applies to the rights or obligations of any
Agent, in each case without the written consent of such Agent;


 


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(xiii)                          change or waive any
obligation of the Lenders relating to the issuance of or purchase of
participations in Letters of Credit, without the written consent of the Administrative
Agent and the Issuing Bank; or


 


(xiv)                         change or waive any provision
hereof relating to Swingline Loans (including the definition of “Swingline
Commitment”), without the written consent of the Swingline Lender;


 


provided,
further, that any waiver, amendment or modification prior to the
completion of the primary syndication of the Commitments and Loans may not
be effected without the written consent of the Administrative Agent.


 


(c)                                  Collateral.
Without the consent of any other Person, the applicable Loan Party or Parties
and the Administrative Agent and/or Collateral Agent may (in its or their
respective sole discretion, or shall, to the extent required by any Loan
Document) enter into any amendment or waiver of any Loan Document, or enter
into any new agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured
Parties, or as required by local law to give effect to, or protect any security
interest for the benefit of the Secured Parties, in any property or so that the
security interests therein comply with applicable Governmental Requirements.


 


(d)                                 Dissenting
Lenders. If, in connection with any proposed change, waiver, discharge or
termination of the provisions of this Agreement as contemplated by Section 12.04(b),
the consent of the Majority Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right to replace all, but not less than all, of such
non-consenting Lender or Lenders (so long as all non-consenting Lenders are so
replaced) with one or more Persons pursuant to Section 5.04(b) so
long as at the time of such replacement each such new Lender consents to the
proposed change, waiver, discharge or termination. Each Lender agrees that, if
the Borrower elects to replace such Lender in accordance with this Section, it
shall promptly execute and deliver to the Administrative Agent an Assignment
Agreement to evidence such sale and purchase and shall deliver to the
Administrative Agent any Note (if Notes have been issued in respect of such
Lender’s Loans) subject to such Assignment Agreement; provided that the failure of any such non-consenting Lender to execute
an Assignment Agreement shall not render such sale and purchase (and the
corresponding assignment) invalid and such assignment shall be recorded in the
Register.


 


Section 12.05                          [RESERVED].


 


Section 12.06                          Successors
and Assigns; Assignments and Participations.


 


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


 


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or obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)                                 (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees (each, an “Assignee”) all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld or delayed)
of:


 


(A)                              the
Borrower, provided that no consent of the Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default has occurred and is continuing, any other Person;


 


(B)                                the
Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of a given Class of Loans to a
Lender holding such Class of Loans, an Affiliate of such a Lender or an
Approved Fund of such a Lender; and


 


(C)                                the
Issuing Bank and the Swingline Lender, provided that no consent of the
Issuing Bank or the Swingline Lender shall be required for an assignment of all
or any portion of a Term Loan or for an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund.


 


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


 


(A)                              except
in the case of an assignment to a Lender, an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment
or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5.0 million or, in the case of
Term Loans, $1.0 million unless each of the Borrower and the Administrative
Agent otherwise consent (such consent not to be unreasonably withheld or
delayed), provided that no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing;


 


(B)                                each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment of
a proportionate part of all the assigning Lender’s rights and obligations
in respect of one Class of Commitments or Loans;


 


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(C)                                the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment Agreement, together with a processing and recordation fee
of $3,500 payable by the Assignee unless such parties otherwise agree; and


 


(D)                               the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or
more credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower and its affiliates and its
Related Parties or their respective securities) will be made available and who may receive
such information in accordance with the Assignee’s compliance procedures and
applicable laws, including Federal and state securities laws.


 


For the
purposes of this Section 12.06, the term “Approved Fund” has the
following meaning:


 


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


 


(iii)                               Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment Agreement the
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment Agreement, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 4.06, 5.02, 5.03
and 12.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 12.06
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.


 


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


 


(v)                                 Upon
its receipt of a duly completed Assignment Agreement executed by an assigning
Lender and an Assignee, the Assignee’s completed Administrative Questionnaire
(unless


 


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the Assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment Agreement and
record the information contained therein in the Register; provided that
if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.01(c)(iii),
2.03(d) or (e), 4.04 or the last paragraph of Article XI,
the Administrative Agent shall have no obligation to accept such Assignment
Agreement and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest
thereon. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.


 


(c)                                  Any
Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the performance
of such obligations and (C) the Borrower, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant clause (i), (ii) or
(iii) of the proviso to Section 12.04(b) and (2) directly
affects such Participant. Subject to paragraph (d) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
4.06, 5.02 and 5.03 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 4.05(a) as though it were
a Lender, provided such Participant shall be subject to Section 4.05(b) as
though it were a Lender.


 


(d)                                 A Participant shall
not be entitled to receive any greater payment under Section 4.06
or 5.02 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant (except where
entitlement to greater payments results from a Change in Law after such Participant
became a Participant), unless the sale of the participation to such Participant
is made with the Borrower’s prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.06
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 4.06(e) as
though it were a Lender.


 


(e)                                  Any Lender may at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank or in the
case of any Lender that is a Fund, any pledge or assignment to any holders of
obligations owed, or securities issued, by


 


122

















 


such Lender including to any trustee for, or any other representative
of, such holders, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or Assignee for such Lender as a party
hereto.


 


(f)                                    The Borrower, at
its sole expense and upon receipt of written notice from the relevant Lender,
agrees to issue Note(s) to any Lender requiring Note(s) to facilitate
transactions of the type described in this Section 12.06.


 


Section 12.07                          Invalidity.
In the event that any one or more of the provisions contained in any of the
Loan Documents shall, for any reason, be held invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision of such Loan Document  or any other Loan Document.


 


Section 12.08                          Counterparts.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart.


 


Section 12.09                          [RESERVED]


 


Section 12.10                          Survival.
The obligations of the parties under Section 4.06, Article V,
the last paragraph of Article XI and Sections 12.03 and 12.15
shall survive the repayment of the Loans and the termination of the Commitments.
To the extent that any payments on the Obligations or proceeds of any
collateral are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in possession,
receiver or other Person under any bankruptcy law, common law or equitable
cause, then to such extent, the Obligations so satisfied shall be revived and
continue as if such payment or proceeds had not been received and the Agents’
and the Lenders’ Liens, security interests, rights, powers and remedies under
this Agreement and each Security Instrument shall continue in full force and
effect. In such event, each Security Instrument shall be automatically
reinstated and the Borrower shall take such action as may be reasonably
requested by the Administrative Agent and the Lenders to effect such
reinstatement.


 


Section 12.11                          Captions.
Captions and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.


 


Section 12.12                          No
Oral Agreements. The Loan Documents embody the entire agreement and
understanding between the parties and supersede all other agreements and
understandings between such parties relating to the subject matter hereof and
thereof. The Loan Documents represent the final agreement between 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.


 


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Section 12.13                          Governing
Law; Submission to Jurisdiction.


 


(a)                                  THIS
AGREEMENT AND THE NOTES (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF AND THEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


(b)                                  ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS SHALL BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH LOAN PARTY, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE
THE ADMINISTRATIVE AGENT OR ANY LENDER FROM OBTAINING JURISDICTION OVER THE BORROWER
OR ANY GUARANTOR IN ANY COURT OTHERWISE HAVING JURISDICTION.


 


(c)                                  EACH
LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT
ITS SAID ADDRESS (IN SECTION 12.02), SUCH SERVICE TO BECOME EFFECTIVE
TEN (10) DAYS AFTER SUCH MAILING.


 


(d)                                  NOTHING
HEREIN SHALL AFFECT THE RIGHT OF  THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION, INCLUDING WITHOUT
LIMITATION THE COMMENCEMENT OF ENFORCEMENT PROCEEDINGS UNDER THE LOAN DOCUMENTS
IN ALL APPLICABLE JURISDICTIONS.


 


(e)                                  THE
BORROWER, EACH GUARANTOR AND EACH LENDER HEREBY (I) IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN
ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (IV)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY


 


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BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.13.


 


Section 12.14                          Interest.
It is the intention of the parties hereto that each Lender shall conform strictly
to usury laws applicable to it. Accordingly, if the transactions contemplated
hereby would be usurious as to any Lender under laws applicable to it (including
the laws of the United States of America and the State of New York or any other
jurisdiction whose laws may be mandatorily applicable to such Lender
notwithstanding the other provisions of this Agreement), then, in that event,
notwithstanding anything to the contrary in any of the Loan Documents or any
agreement entered into in connection with or as security for the Loans, it is
agreed as follows:  (i) the
aggregate of all consideration which constitutes interest under law applicable
to any Lender that is contracted for, taken, reserved, charged or received by
such Lender under any of the Loan Documents or agreements or otherwise in
connection with the Loans shall under no circumstances exceed the maximum
amount allowed by such applicable law, and any excess shall be canceled
automatically and if theretofore paid shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent that the principal
amount of the Obligations shall have been or would thereby be paid in full,
refunded by such Lender to the Borrower); and (ii) in the event that the
maturity of the Loans is accelerated by reason of an election of the holder
thereof resulting from any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such consideration
that constitutes interest under law applicable to any Lender may never include
more than the maximum amount allowed by such applicable law, and excess interest,
if any, provided for in this Agreement or otherwise shall be canceled
automatically by such Lender as of the date of such acceleration or prepayment
and, if theretofore paid, shall be credited by such Lender on the principal
amount of the Obligations (or, to the extent that the principal amount of the
Obligations shall have been or would thereby be paid in full, refunded by such
Lender to the Borrower). All sums paid or agreed to be paid to any Lender for
the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by law applicable to such Lender, be amortized, prorated, allocated
and spread throughout the full term of the Loans until payment in full so that
the rate or amount of interest on account of any Loans hereunder does not
exceed the maximum amount allowed by such applicable law. If at any time and
from time to time (i) the amount of interest payable to any Lender on any
date shall be computed at the Highest Lawful Rate applicable to such Lender
pursuant to this Section 12.14 and (ii) in respect of any
subsequent interest computation period the amount of interest otherwise payable
to such Lender would be less than the amount of interest payable to such Lender
computed at the Highest Lawful Rate applicable to such Lender, then the amount
of interest payable to such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
applicable to such Lender until the total amount of interest payable to such
Lender shall equal the total amount of interest which would have been payable
to such Lender if the total amount of interest had been computed without giving
effect to this Section 12.14. To the extent that Chapter 303 of the
Texas Finance Code is relevant for the purpose of determining the Highest
Lawful Rate, such Lender elects to determine the applicable rate ceiling under
such Chapter  by the indicated weekly
rate ceiling from time to time in effect.


 


Section 12.15                          Confidentiality.
Each of the Agents, the Issuing Bank and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information


 


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may be disclosed (a) to its and its Affiliates’ directors,
officers, trustees, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii)  any actual or prospective counterparty (or its advisors)
to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to either of the
Agents, the Issuing Bank or any Lender on a non-confidential basis from a
source other than the Borrower. For the purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. Solely
with respect to this Section 12.15, the parties hereto acknowledge
and agree that to the extent Information includes any information relating to
any agreement between any Loan Party and Pizza Hut, Inc. and to the extent
required under such agreement, this Section 12.15 inures to the
benefit of Pizza Hut, Inc., a California corporation, as a third party beneficiary.


 


EACH
LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 12.15(a) FURNISHED
TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE BORROWER AND 
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND
STATE SECURITIES LAWS.


 


ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES AND ITS
RELATED PARTIES OR THEIR RESPECTIVE SECURITIES) AND ITS SECURITIES. ACCORDINGLY,
EACH LENDER REPRESENTS TO THE BORROWER


 


126

















 


AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION
THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS
COMPLIANCE PROCEDURES AND APPLICABLE LAW.


 


Section 12.16                          USA
Patriot Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name, address and
tax identification number of the Borrower and other information regarding the
Borrower that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. This notice is
given in accordance with the requirements of the Act and is effective as to the
Lenders and the Administrative Agent.


 


Section 12.17                          Obligations
Absolute. To the fullest extent permitted by applicable Governmental
Requirements, all obligations of the Loan Parties hereunder shall be absolute
and unconditional irrespective of:


 


(a)                                  any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of any Loan Party;


 


(b)                                 any lack of validity
or enforceability of any Loan Document or any other agreement or instrument
relating thereto against any Loan Party;


 


(c)                                  any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any
departure from any Loan Document or any other agreement or instrument relating
thereto;


 


(d)                                 any exchange, release
or non-perfection of any other Collateral, or any release or amendment or
waiver of or consent to any departure from any guarantee, for all or any of the
Obligations;


 


(e)                                  any exercise or
non-exercise, or any waiver of any right, remedy, power or privilege under or
in respect hereof or any Loan Document; or


 


(f)                                    any other
circumstances which might otherwise constitute a defense available to, or a discharge
of, the Loan Parties.


 


ARTICLE XIII


 


Guarantee


 


Section 13.01                          The
Guarantee. The Guarantors hereby jointly and severally guarantee, as a
primary obligor and not as a surety to each Secured Party and their respective
successors and


 


127

















 


assigns, the prompt payment in full when due (whether at stated maturity,
by required prepayment, declaration, demand, by acceleration or otherwise) of
the principal of and interest (including any interest, fees, costs or charges
that would accrue but for the provisions of the Title 11 of the United States
Code after any bankruptcy or insolvency petition under Title 11 of the United
States Code) on the Loans made by the Lenders to, and the Notes held by each
Lender of, the Borrower, and all other Secured Obligations from time to time
owing to the Secured Parties by any Loan Party under any Loan Document or any
Hedging Agreement or Treasury Services Agreement entered into with a
counterparty that is a Secured Party, in each case strictly in accordance with
the terms thereof (such obligations being herein collectively called the “Guaranteed
Obligations”). The Guarantors hereby jointly and severally agree that if
the Borrower or other Guarantor(s) shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same in cash, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.


 


Section 13.02                          Obligations
Unconditional. The obligations of the Guarantors under Section 13.01
shall constitute a guaranty of payment and to the fullest extent permitted by
applicable Governmental Requirements, are absolute, irrevocable and unconditional,
joint and several, irrespective of the value, genuineness, validity, regularity
or enforceability of the Guaranteed Obligations of the Borrower under this
Agreement, the Notes, if any, or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or Guarantor
(except for payment in full). Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of the Guarantors hereunder which shall remain
absolute, irrevocable and unconditional under any and all circumstances as
described above:


 


(i)                                     at any time or
from time to time, without notice to the Guarantors, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be
extended, or such performance or compliance shall be waived;


 


(ii)                                  any of the acts
mentioned in any of the provisions of this Agreement or the Notes, if any, or
any other agreement or instrument referred to herein or therein shall be done
or omitted;


 


(iii)                               the maturity of any of
the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations
shall be amended in any respect, or any right under the Loan Documents or any
other agreement or instrument referred to herein or therein shall be amended or
waived in any respect or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in whole or
in part or otherwise dealt with;


 


128

















 


(iv)                              any Lien or security
interest granted to, or in favor of, Issuing Bank or any Lender or Agent as
security for any of the Guaranteed Obligations shall fail to be perfected; or


 


(v)                                 the release of any
other Guarantor pursuant to Section 13.09.


 


The Guarantors
hereby expressly waive diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Secured Party exhaust any
right, power or remedy or proceed against the Borrower under this Agreement or
the Notes, if any, or any other agreement or instrument referred to herein or
therein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations. The Guarantors waive any and all notice
of the creation, renewal, extension, waiver, termination or accrual of any of
the Guaranteed Obligations and notice of or proof of reliance by any Secured
Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Guarantee, and all
dealings between the Borrower and the Secured Parties shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. This Guarantee shall be construed as a continuing, absolute,
irrevocable and unconditional guarantee of payment without regard to any right
of offset with respect to the Guaranteed Obligations at any time or from time
to time held by Secured Parties, and the obligations and liabilities of the
Guarantors hereunder shall not be conditioned or contingent upon the pursuit by
the Secured Parties or any other Person at any time of any right or remedy
against the Borrower or against any other Person which may be or become
liable in respect of all or any part of the Guaranteed Obligations or
against any collateral security or guarantee therefor or right of offset with
respect thereto. This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Guarantors
and the successors and assigns thereof, and shall inure to the benefit of the
Lenders, and their respective successors and assigns, notwithstanding that from
time to time during the term of this Agreement there may be no Guaranteed
Obligations outstanding.


 


Section 13.03                          Reinstatement.
The obligations of the Guarantors under this Article XIII shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of the Borrower or other Loan Party in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise.


 


Section 13.04                          Subrogation;
Subordination. Each Guarantor hereby agrees that until the indefeasible
payment and satisfaction in full in cash of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement it shall waive any claim and shall not exercise any right or remedy,
direct or indirect, arising by reason of any performance by it of its guarantee
in Section 13.01, whether by subrogation or otherwise, against the
Borrower or any other Guarantor of any of the Guaranteed Obligations or any
security for any of the Guaranteed Obligations. Any Debt of any Loan Party
permitted pursuant to Section 9.01(d) shall be subordinated to
such Loan Party’s Secured Obligations in the manner set forth in the
Intercompany Note evidencing such Debt.


 


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Section 13.05                          Remedies.
The Guarantors jointly and severally agree that, as between the Guarantors and
the Lenders, the obligations of the Borrower under this Agreement and the
Notes, if any, may be declared to be forthwith due and payable as provided
in Section 10.02 (and shall be deemed to have become automatically
due and payable in the circumstances provided in Section 10.02) for
purposes of Section 13.01, notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Borrower and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and
payable by the Borrower) shall forthwith become due and payable by the
Guarantors for purposes of Section 13.01.


 


Section 13.06                          Instrument
for the Payment of Money. Each Guarantor hereby acknowledges that the
guarantee in this Article XIII constitutes an instrument for the
payment of money, and consents and agrees that any Lender or Agent, at its sole
option, in the event of a dispute by such Guarantor in the payment of any
moneys due hereunder, shall have the right to bring a motion-action under New
York CPLR Section 3213.


 


Section 13.07                          Continuing
Guarantee. The guarantee in this Article XIII is a continuing
guarantee of payment, and shall apply to all Guaranteed Obligations whenever
arising.


 


Section 13.08                          General
Limitation on Guarantee Obligations. In any action or proceeding involving
any state corporate limited partnership or limited liability company law, or
any applicable state, federal or foreign bankruptcy, insolvency, reorganization
or other law affecting the rights of creditors generally, if the obligations of
any Guarantor under Section 13.01 would otherwise be held or
determined to be void, voidable, invalid or unenforceable, or subordinated to
the claims of any other creditors, on account of the amount of its liability
under Section 13.01, then, notwithstanding any other provision to
the contrary, the amount of such liability shall, without any further action by
such Guarantor, any Loan Party or any other Person, be automatically limited
and reduced to the highest amount (after giving effect to the right of
contribution established in Section 13.10) that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.


 


Section 13.09                          Release
of Guarantors. If, in compliance with the terms and provisions of the Loan
Documents, all or substantially all of the Capital Securities or property of
any Guarantor are sold or otherwise transferred (a “Transferred Guarantor”)
to a Person or Persons, none of which is the Borrower or a Subsidiary, such
Transferred Guarantor shall, upon the consummation of such sale or transfer, be
automatically released from its obligations under this Agreement (including
under Section 12.03 hereof) and its obligations to pledge and grant
any Collateral owned by it pursuant to any Security Instrument and, in the case
of a sale of all or substantially all of the Capital Securities of the
Transferred Guarantor, the pledge of such Capital Securities to the Collateral
Agent pursuant to the Security Agreements shall be automatically released, and,
so long as the Borrower shall have provided the Agents such certifications or
documents as any Agent shall reasonably request, the Collateral Agent shall
take such actions as are necessary to effect each release described in this Section 13.09
in accordance with the relevant provisions of the Security Instruments, so long
as the Borrower shall have provided the Agents such certifications


 


130

















 


or documents as any Agent shall reasonably request in order to demonstrate
compliance with this Agreement.


 


Section 13.10                          Right
of Contribution. Each Subsidiary Guarantor hereby agrees that
to the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantor’s right of contribution shall be
subject to the terms and conditions of Section 13.04. The
provisions of this Section 13.10 shall in no respect limit the
obligations and liabilities of any Subsidiary Guarantor to the Administrative
Agent, the Issuing Bank, the Swingline Lender and the Lenders, and each Subsidiary
Guarantor shall remain liable to the Administrative Agent, the Issuing Bank,
the Swingline Lender and the Lenders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.


 


[SIGNATURES
BEGIN ON NEXT PAGE]


 


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The parties
hereto have caused this Agreement to be duly executed as of the day and year
first above written.


 


	
  BORROWER:

  	
  NPC INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James K. Schwartz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James K. Schwartz

  
	
   

  	
   

  	
  Title:

  	
  President, Chief Executive
  Officer

  
	
   

  	
   

  	
  and Chief Operating
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  NPC MANAGEMENT, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  James K.
  Schwartz

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James K. Schwartz

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NPC ACQUISITION HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Robert F.
  End

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert F. End

  
	
   

  	
   

  	
  Title:

  	
  Chairman and Chief

  
	
   

  	
   

  	
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NPC ACQUISITION FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Robert F.
  End

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert F. End

  
	
   

  	
   

  	
  Title:

  	
  Chairman and Chief

  
	
   

  	
   

  	
  Executive Officer

  
					



 


S-1

















 


	
  LENDER,
  Administrative Agent,

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
  Collateral
  Agent, Issuing Bank

  	
   

  
	
  and
  Swingline Lender:

  	
   

  
	
   

  	
  By:

  	
  /s/ Tom
  Kozlark

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Tom Kozlark

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Lending
  Office for Base Rate Loans

  
	
   

  	
  and LIBOR
  Loans:

  
					



 


S-2

















 


	
  SYNDICATION AGENT:

  	
  MERRILL LYNCH, PIERCE, FENNER &

  SMITH INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephanie Vallillo

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Stephanie Vallillo

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


S-3

















 


	
  DOCUMENTATION AGENTS:

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bobby Ryan Oliver, Jr.

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bobby Ryan Oliver, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan Hall

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Susan Hall

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


S-4

















 


	
   

  	
  MERRILL
  LYNCH CAPITAL CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephanie Vallillo

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Stephanie
  Vallillo

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 


S-5

















 


	
   

  	
  REGIONS
  BANK,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark
  Burr

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark Burr

  
	
   

  	
   

  	
  Title:

  	
  Sr. Vice
  President

  
					



 


S-6

















 


	
   

  	
  WELLS
  FARGO BANK, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  Kendrick Noble III

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  Kendrick Noble III

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian J.
  Roach

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Brian J.
  Roach

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
					



 


S-7

















 


	
   

  	
  SUNTRUST
  BANK,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Susan
  Hall

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Susan Hall

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
					



 


S-8

















 


	
   

  	
  CIT
  LENDING SERVICES CORPORATION,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Simmon
  Saraf

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Simmon Saraf

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 


S-9

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  L. Mendoza

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert L.
  Mendoza

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 


S-10

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL

  
	
   

  	
  CORPORATION,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David R.
  Campbell

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David R.
  Campbell

  
	
   

  	
   

  	
  Title:

  	
  ITS Duly
  Authorized Signatory

  
					



 


S-11