Exhibit
10.1




 





$250,000,000


AMENDED
AND RESTATED CREDIT AGREEMENT


Dated as of May 31, 2007


among


TEXAS
ROADHOUSE, INC.,


as the Borrower,


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and L/C Issuer,


and


The Other Lenders Party Hereto


BANC OF
AMERICA SECURITIES LLC,


as Co-Lead Arranger and Sole Book Manager,


and


NATIONAL
CITY BANK,


as Co-Lead
Arranger and as Syndication Agent,


and


JPMORGAN
CHASE BANK, N.A.,


as
Co-Documentation Agent,


and


ROYAL
BANK OF CANADA,


as
Co-Documentation Agent.




 


















TABLE OF CONTENTS


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
   

  	
  1.01

  	
  Defined Terms

  	
   

  	
  1

  
	
   

  	
  1.02

  	
  Other Interpretive Provisions

  	
   

  	
  18

  
	
   

  	
  1.03

  	
  Accounting Terms

  	
   

  	
  19

  
	
   

  	
  1.04

  	
  UCC Terms

  	
   

  	
  19

  
	
   

  	
  1.05

  	
  Rounding

  	
   

  	
  19

  
	
   

  	
  1.06

  	
  Times of Day

  	
   

  	
  19

  
	
   

  	
  1.07

  	
  Letter of Credit Amounts

  	
   

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  	
  20

  
	
   

  	
  2.01

  	
  Committed Loans

  	
   

  	
  20

  
	
   

  	
  2.02

  	
  Borrowings, Conversions and Continuations of
  Committed Loans

  	
   

  	
  21

  
	
   

  	
  2.03

  	
  Letters of Credit

  	
   

  	
  29

  
	
   

  	
  2.04

  	
  Swing Line Loans

  	
   

  	
  32

  
	
   

  	
  2.05

  	
  Prepayments

  	
   

  	
  33

  
	
   

  	
  2.06

  	
  Termination or Reduction of Commitments

  	
   

  	
  33

  
	
   

  	
  2.07

  	
  Repayment of Loans

  	
   

  	
  33

  
	
   

  	
  2.08

  	
  Interest

  	
   

  	
  34

  
	
   

  	
  2.09

  	
  Fees

  	
   

  	
  34

  
	
   

  	
  2.10

  	
  Computation of Interest and Fees

  	
   

  	
  35

  
	
   

  	
  2.11

  	
  Evidence of Debt

  	
   

  	
  35

  
	
   

  	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  37

  
	
   

  	
  2.13

  	
  Sharing of Payments by Lenders

  	
   

  	
  37

  
	
   

  	
  2.14

  	
  Increase in Aggregate Commitments

  	
   

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  39

  
	
   

  	
  3.01

  	
  Taxes

  	
   

  	
  39

  
	
   

  	
  3.02

  	
  Illegality

  	
   

  	
  40

  
	
   

  	
  3.03

  	
  Inability to Determine Rates

  	
   

  	
  41

  
	
   

  	
  3.04

  	
  Increased Costs

  	
   

  	
  41

  
	
   

  	
  3.05

  	
  Compensation for Losses

  	
   

  	
  42

  
	
   

  	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  43

  
	
   

  	
  3.07

  	
  Survival

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  	
  43

  
	
   

  	
  4.01

  	
  Conditions of Initial Credit Extension

  	
   

  	
  43

  
	
   

  	
  4.02

  	
  Conditions to all Credit Extensions

  	
   

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 REPRESENTATIONS AND WARRANTIES

  	
   

  	
  46

  
	
   

  	
  5.01

  	
  Existence, Qualification and Power; Compliance with
  Laws

  	
   

  	
  46

  
	
   

  	
  5.02

  	
  Authorization; No Contraventio

  	
   

  	
  47

  
	
   

  	
  5.03

  	
  Governmental Authorization; Other Consents

  	
   

  	
  47

  
	
   

  	
  5.04

  	
  Binding Effect

  	
   

  	
  47

  
	
   

  	
  5.05

  	
  Financial Statements; No Material Adverse Effect; No
  Internal Control Event

  	
   

  	
  47

  
	
   

  	
  5.06

  	
  Litigation

  	
   

  	
  48

  
	
   

  	
  5.07

  	
  No Default

  	
   

  	
  48

  
	
   

  	
  5.08

  	
  Ownership of Property; Liens

  	
   

  	
  48

  
	
   

  	
  5.09

  	
  Environmental Compliance

  	
   

  	
  48

  
	
   

  	
  5.10

  	
  Insurance

  	
   

  	
  49

  
							



 











 


	
  

  	
  5.11

  	
  Taxes

  	
   

  	
  49

  
	
   

  	
  5.12

  	
  ERISA Compliance

  	
   

  	
  50

  
	
   

  	
  5.13

  	
  Subsidiaries

  	
   

  	
  50

  
	
   

  	
  5.14

  	
  Margin Regulations; Investment Company Act; Public
  Utility Holding Company Act

  	
   

  	
  51

  
	
   

  	
  5.15

  	
  Material Contracts

  	
   

  	
  51

  
	
   

  	
  5.16

  	
  Disclosure

  	
   

  	
  51

  
	
   

  	
  5.17

  	
  Compliance with Laws

  	
   

  	
  51

  
	
   

  	
  5.18

  	
  Intellectual Property; Licenses, Etc

  	
   

  	
  51

  
	
   

  	
  5.19

  	
  Employee Relations

  	
   

  	
  52

  
	
   

  	
  5.20

  	
  Burdensome Provisions

  	
   

  	
  52

  
	
   

  	
  5.21

  	
  Survival of Representations and Warranties, Etc

  	
   

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 AFFIRMATIVE COVENANTS

  	
   

  	
  52

  
	
   

  	
  6.01

  	
  Financial Statements

  	
   

  	
  52

  
	
   

  	
  6.02

  	
  Certificates; Other Information

  	
   

  	
  53

  
	
   

  	
  6.03

  	
  Notices

  	
   

  	
  55

  
	
   

  	
  6.04

  	
  Payment of Obligations

  	
   

  	
  55

  
	
   

  	
  6.05

  	
  Preservation of Existence, Etc

  	
   

  	
  56

  
	
   

  	
  6.06

  	
  Maintenance of Properties

  	
   

  	
  56

  
	
   

  	
  6.07

  	
  Maintenance of Insurance

  	
   

  	
  56

  
	
   

  	
  6.08

  	
  Compliance with Laws

  	
   

  	
  56

  
	
   

  	
  6.09

  	
  Environmental Laws

  	
   

  	
  57

  
	
   

  	
  6.10

  	
  Compliance with ERISA

  	
   

  	
  57

  
	
   

  	
  6.11

  	
  Compliance With Agreements

  	
   

  	
  57

  
	
   

  	
  6.12

  	
  Books and Records

  	
   

  	
  57

  
	
   

  	
  6.13

  	
  Inspection Rights

  	
   

  	
  57

  
	
   

  	
  6.14

  	
  Use of Proceeds

  	
   

  	
  57

  
	
   

  	
  6.15

  	
  Additional Subsidiaries

  	
   

  	
  58

  
	
   

  	
  6.16

  	
  Required Joint Venture Distributions

  	
   

  	
  58

  
	
   

  	
  6.17

  	
  Further Assurances

  	
   

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 NEGATIVE COVENANTS

  	
   

  	
  58

  
	
   

  	
  7.01

  	
  Liens

  	
   

  	
  58

  
	
   

  	
  7.02

  	
  Investments

  	
   

  	
  59

  
	
   

  	
  7.03

  	
  Indebtedness

  	
   

  	
  60

  
	
   

  	
  7.04

  	
  Fundamental Changes

  	
   

  	
  60

  
	
   

  	
  7.05

  	
  Dispositions

  	
   

  	
  61

  
	
   

  	
  7.06

  	
  Restricted Payments

  	
   

  	
  61

  
	
   

  	
  7.07

  	
  Limitations on Exchange and Issuance of Capital
  Stock

  	
   

  	
  62

  
	
   

  	
  7.08

  	
  Change in Nature of Business

  	
   

  	
  62

  
	
   

  	
  7.09

  	
  Accounting Changes; Organizational Documents

  	
   

  	
  62

  
	
   

  	
  7.10

  	
  Transactions with Affiliates

  	
   

  	
  62

  
	
   

  	
  7.11

  	
  Burdensome Agreements

  	
   

  	
  63

  
	
   

  	
  7.12

  	
  Use of Proceeds

  	
   

  	
  63

  
	
   

  	
  7.13

  	
  Restrictions on Conduct of IP Holdco

  	
   

  	
  63

  
	
   

  	
  7.14

  	
  Financial Covenants

  	
   

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  63

  
	
   

  	
  8.01

  	
  Events of Default

  	
   

  	
  63

  
	
   

  	
  8.02

  	
  Remedies Upon Event of Default

  	
   

  	
  65

  
	
   

  	
  8.03

  	
  Application of Funds

  	
   

  	
  66

  



 











 


	
  ARTICLE 9 ADMINISTRATIVE AGENT

  	
   

  	
  67

  
	
   

  	
  9.01

  	
  Appointment and Authority

  	
   

  	
  67

  
	
   

  	
  9.02

  	
  Rights as a Lender

  	
   

  	
  67

  
	
   

  	
  9.03

  	
  Exculpatory Provisions

  	
   

  	
  68

  
	
   

  	
  9.04

  	
  Reliance by Administrative Agent

  	
   

  	
  68

  
	
   

  	
  9.05

  	
  Delegation of Duties

  	
   

  	
  68

  
	
   

  	
  9.06

  	
  Resignation of Administrative Agent

  	
   

  	
  69

  
	
   

  	
  9.07

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
   

  	
  69

  
	
   

  	
  9.08

  	
  No Other Duties, Etc

  	
   

  	
  69

  
	
   

  	
  9.09

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  69

  
	
   

  	
  9.10

  	
  Guaranty Matters

  	
   

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 MISCELLANEOUS

  	
   

  	
  70

  
	
   

  	
  10.01

  	
  Amendments, Etc

  	
   

  	
  70

  
	
   

  	
  10.02

  	
  Notices; Effectiveness; Electronic Communication

  	
   

  	
  71

  
	
   

  	
  10.03

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  73

  
	
   

  	
  10.04

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  73

  
	
   

  	
  10.05

  	
  Payments Set Aside

  	
   

  	
  75

  
	
   

  	
  10.06

  	
  Successors and Assigns

  	
   

  	
  75

  
	
   

  	
  10.07

  	
  Treatment of Certain Information; Confidentiality

  	
   

  	
  78

  
	
   

  	
  10.08

  	
  Right of Setoff

  	
   

  	
  79

  
	
   

  	
  10.09

  	
  Interest Rate Limitation

  	
   

  	
  79

  
	
   

  	
  10.10

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  80

  
	
   

  	
  10.11

  	
  Survival of Representations and Warranties

  	
   

  	
  80

  
	
   

  	
  10.12

  	
  Severability

  	
   

  	
  80

  
	
   

  	
  10.13

  	
  Replacement of Lenders

  	
   

  	
  80

  
	
   

  	
  10.14

  	
  Governing Law; Jurisdiction; Etc

  	
   

  	
  81

  
	
   

  	
  10.15

  	
  Waiver of Jury Trial

  	
   

  	
  82

  
	
   

  	
  10.16

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  82

  
	
   

  	
  10.17

  	
  USA PATRIOT Act Notice

  	
   

  	
  83

  
	
   

  	
  10.18

  	
  Time of the Essence

  	
   

  	
  83

  
	
   

  	
  10.19

  	
  Amendment and Restatement; No Novation

  	
   

  	
  83

  
	
   

  	
  10.20

  	
  Release of Property

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  
							



 















SCHEDULES


	
  

  	
  1.01(a)

  	
  Existing Letters of Credit

  
	
   

  	
  2.01

  	
  Commitments and Commitment Percentages

  
	
   

  	
  5.01

  	
  Jurisdictions of Organization and Qualification

  
	
   

  	
  5.06

  	
  Litigation

  
	
   

  	
  5.09

  	
  Environmental Matters

  
	
   

  	
  5.11

  	
  Taxes

  
	
   

  	
  5.12

  	
  ERISA Plans

  
	
   

  	
  5.13

  	
  Subsidiaries and Other Equity Investments

  
	
   

  	
  5.15

  	
  Material Contracts

  
	
   

  	
  5.18

  	
  Intellectual Property

  
	
   

  	
  7.01

  	
  Existing Liens

  
	
   

  	
  7.02

  	
  Existing Investments

  
	
   

  	
  10.02

  	
  Administrative Agent’s Office, Certain Addresses for
  Notices

  



 


 


EXHIBITS


	
  

  	
  Form of

  	
   

  
	
   

  	
  A

  	
  Committed Loan Notice

  
	
   

  	
  B

  	
  Swing Line Loan Notice

  
	
   

  	
  C-1

  	
  Committed Loan Note

  
	
   

  	
  C-2

  	
  Swing Line Note

  
	
   

  	
  D

  	
  Compliance Certificate

  
	
   

  	
  E

  	
  Assignment and Assumption

  
	
   

  	
  F

  	
  Guaranty

  
				



 
















AMENDED
AND RESTATED CREDIT AGREEMENT


This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”)
is entered into as of May 31, 2007,  among TEXAS
ROADHOUSE, INC., a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, BANC OF AMERICA SECURITIES LLC, as
Co-Lead Arranger and as Book Manager, and NATIONAL CITY BANK, as Co-Lead
Arranger and as Syndication Agent.


PRELIMINARY STATEMENTS


The Borrower, the Administrative
Agent and certain lenders party thereto executed and delivered that certain
Credit Agreement dated as of October 8, 2004 (as amended, restated or otherwise
modified prior to the date hereof, the “Existing Credit Agreement”).


The Borrower has requested, and, subject to the terms
and conditions hereof, the Administrative Agent and the Lenders have agreed, to
amend and restate the Existing Credit Agreement on the terms and conditions of
this Agreement.


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto hereby covenant and agree as follows:


ARTICLE 1

DEFINITIONS AND ACCOUNTING TERMS


1.01   Defined Terms.   As
used in this Agreement, the following terms shall have the meanings set forth
below:


“Administrative
Agent” means Bank of America, N.A. in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.


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


“Affiliate” means, with respect to any Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.  “Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto. 
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 16% or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.


“Aggregate
Commitments” means the Commitments of all the Lenders.  On the Closing Date the Aggregate Commitments
shall be $250,000,000.


“Agreement”
means this Amended and Restated Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.


“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in effect, 



 1
 









giving effect to
any subsequent assignments.  The initial
Applicable Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.


“Applicable
Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):




	
  Applicable Rate

  
	
  Pricing

  Level

  	
   

  	
  Consolidated Total

  Leverage Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar Rate

  Loans

  	
   

  	
  Base Rate

  Loans

  	
   

  
	
  1

  	
   

  	
  Less than 1.50x

  	
   

  	
  0.10%

  	
   

  	
  0.50%

  	
   

  	
  0.0%

  	
   

  
	
  2

  	
   

  	
  Less than 2.00x
  but greater than or equal to 1.50x

  	
   

  	
  0.125%

  	
   

  	
  0.625%

  	
   

  	
  0.0%

  	
   

  
	
  3

  	
   

  	
  Less than 2.50x
  but greater than or equal to 2.00x

  	
   

  	
  0.15%

  	
   

  	
  0.75%

  	
   

  	
  0.0%

  	
   

  
	
  4

  	
   

  	
  Greater than or equal
  to 2.50x

  	
   

  	
  0.175%

  	
   

  	
  0.875%

  	
   

  	
  0.0%

  	
   

  






 


Any increase or
decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section
6.02(b); provided, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 4
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered.


“Approved Fund”
means any Fund 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.


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required
by Section 10.06(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent.


“Attributable
Indebtedness” means, on any date, in respect of any capital lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP.


“Audited
Financial Statements” has the meaning set forth in Section 4.01(g).


“Availability Period” means the period from and
including the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Commitments pursuant to Section 2.06,
and (c) the date of termination of the commitment of each Lender to make Loans
and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant
to Section 8.02.


“Bank of
America” means Bank of America, N.A. and its successors.


“Base Rate”  means for any day a fluctuating
rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%
and (b) the rate of interest in effect for such day as publicly 



 2
 









announced from
time to time by Bank of America as its “prime rate.”  The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
rate announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.


“Base Rate
Committed Loan” means a Committed Loan that is a Base Rate Loan.


“Base Rate Loan”
means a Loan that bears interest based on
the Base Rate.


“Borrower”
has the meaning set forth in the introductory paragraph hereto.


“Borrower
Materials” has the meaning set forth in Section 6.02.


“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in
either (a) the state where the Administrative Agent’s Office is located or (b)
New York, New York and, if such day relates to any Eurodollar Rate Loan, means
any such day on which dealings in Dollar deposits are conducted by and between
banks in the London interbank eurodollar market.


“Capital
Asset” means, with respect to the Borrower and its Subsidiaries, any asset
that should, in accordance with GAAP, be classified and accounted for as a
capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries.


“Cash
Collateralize” has the meaning set forth in Section 2.03(g).


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


“Change
of Control” means an event or series of events by which (i) W. Kent Taylor
(and any Persons which are formed for
estate planning or charitable purposes and which are beneficially owned or
controlled by W. Kent Taylor and/or W. Kent Taylor’s estate and/or any of W.
Kent Taylor’s heirs or immediate family members) shall fail to
collectively own ten percent (10%) or more of the Equity Interests of the
Borrower entitled to vote for the members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to
acquire pursuant to any option right), or (ii) any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan), other than a “person” or
“group” consisting of, or controlled by, the Permitted Equityholders, becomes
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed
to have “beneficial ownership” of all securities that such person or group has
the right to acquire (such right, an “option right”), whether such right
is exercisable immediately or only after the passage of time), directly or indirectly,
of twenty-five percent (25%) or more of the Equity Interests of the Borrower
entitled to vote for members of the board of directors or equivalent governing
body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right).



 3
 









“Closing Date” means the first date all the
conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01.


“Code”
means the Internal Revenue Code of 1986.


“Co-Lead
Arrangers” means, collectively, Banc of America  Securities
LLC, and National City Bank, in each of their capacities as co-lead arrangers.


“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower
pursuant to Section 2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


“Commitment Fee”
has the meaning set forth in Section 2.09(a).


“Committed
Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.


“Committed Loan”
has the meaning set forth in Section 2.01.


“Committed Loan
Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of
Committed Loans from one Type to the other, or (c) a continuation of Eurodollar
Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.


“Compliance
Certificate” means a certificate substantially in the form of Exhibit D.


“Consolidated”
means, with respect to any financial statements of the Borrower and its
Subsidiaries, financial statements structured, organized and providing similar
information and analysis as set forth in the Audited Financial Statements or
Unaudited Quarterly Financial Statements, as applicable.


“Consolidated
Adjusted Funded Indebtedness” means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, plus (b) all purchase money Indebtedness, plus (c)
all direct obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments, plus (d) all obligations in respect of the deferred
purchase price of property or services (other than trade accounts payable in
the ordinary course of business), plus (e) Attributable Indebtedness in respect
of capital leases, plus (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of a
redeemable preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, plus (g)
without duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (f) above of Persons other than the
Borrower or any Subsidiary, plus (h) all Indebtedness of the types
referred to in clauses (a) through (g) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited
liability company) which such partnership or joint venture is not a direct or
indirect Subsidiary of the Borrower, in which the Borrower or a Subsidiary is a
general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Borrower or such Subsidiary, plus (i) an amount
equal to the product of eight (8) times 



 4
 









Consolidated
Rental Expense (excluding up to $5,000,000 of Consolidated Rental Expense
attributable to equipment leases) for four Fiscal Quarters most recently ended.


“Consolidated EBITDA” means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus the following to the extent deducted in
calculating such Consolidated Net Income: 
(a) Consolidated Interest Charges for such period, (b) the provision for
federal, state, local and foreign income taxes payable (but not any tax loss or
refund) by the Borrower and its Subsidiaries for such period, (c) the amount of
depreciation and amortization expense deducted in determining such Consolidated
Net Income, and (d) any non-cash expense attributable to the grant of any stock
options or restricted stock to any employee, director or consultant of the
Borrower or its Subsidiaries.


“Consolidated EBITDAR” means, for any period, the sum of
Consolidated EBITDA plus Consolidated Rental Expense for such period.


“Consolidated EBITR” means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net
Income for such period plus the following to the extent deducted in
calculating such Consolidated Net Income: 
(a) Consolidated Interest Charges for such period, (b) the provision for
federal, state, local and foreign income taxes payable (but not any tax loss or
refund) by the Borrower and its Subsidiaries for such period, (c) Consolidated
Rental Expense for such period and (d) any non-cash expense attributable to the
grant of any stock options or restricted stock to any employee, director or
consultant of the Borrower or its Subsidiaries.


“Consolidated
Fixed Charges” means, for any period, the sum of the following determined
on a consolidated basis, for the Borrower and its Subsidiaries in accordance
with GAAP:  (a) Consolidated Interest
Charges paid or payable in cash for such period and (b) Consolidated Rental
Expense for such period.


“Consolidated Fixed Charge Coverage Ratio” means, as of any date
of determination, the ratio of (a) Consolidated EBITR for the period of the
four Fiscal Quarters most recently ended to (b) Consolidated
Fixed Charges for such period.


“Consolidated
Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrower and
its Subsidiaries in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP, (b) the portion
of Consolidated Rental Expense with respect to such period under capital leases
that is treated as interest in accordance with GAAP, and (c) the amount of net
settlement obligations of the Borrower and its Subsidiaries under any Swap
Contract respecting interest rate management and relating to the spread between
the fixed interest rate under such Swap Contract and the floating interest rate
hedged thereby.


“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Adjusted Funded Indebtedness as of such date to  (b) the sum of (i) Consolidated EBITDAR for the period of
the four fiscal quarters most recently ended for which the Borrower has
delivered financial statements pursuant to Section 6.01(a) or Section
6.01 (b), plus (ii) Consolidated New Unit Pre-Opening Costs deducted
from Consolidated Net Income for such period.


“Consolidated Net Income” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the net income of the
Borrower and its Subsidiaries (excluding (I) 



 5
 









extraordinary or one-time gains and (II) extraordinary or one-time
non-cash losses) and (including extraordinary or one-time cash losses to the
extent not offset by extraordinary or one-time cash gains during the same
fiscal period) for that period; provided that (a) the net income (or
loss) of any Person, in which the Borrower or any of its Subsidiaries has a
joint interest with a third party, shall be excluded from Consolidated Net
Income except to the extent such net income is actually paid to the Borrower or
any of its Subsidiaries by dividend or other distribution during such period; provided
that the net income (or loss) of any Person excluded by operation of this
clause (a) prior to the date such Person becomes a wholly-owned Subsidiary
shall be included on a pro forma, historical basis, as if such Person had been
wholly-owned as of the first date of such period, and (b) the net income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of such
Person or is merged into or consolidated with such Person or any of its
Subsidiaries or that Person’s assets are acquired by such Person or any of its
Subsidiaries shall be included on a pro forma, historical basis (after giving
effect to any adjustments to the net income (or loss) of such newly acquired
Person; provided that (x) such adjustments have been identified in
writing by the Borrower at the time of such acquisition, (y) such adjustments
have been approved by the Administrative Agent prior to the closing of such
acquisition, and (z) with respect to any acquisition, the amount of the
adjustments relating to such acquisition do not exceed an amount equal to
twenty-five percent (25%) of the net income (or loss) of such newly acquired
Person) as if such Person had been a Subsidiary for the entire period.


“Consolidated New Unit Pre-Opening Costs” shall mean “start-up
costs” (such term used herein as defined in SOP 98-5 published by the American
Institute of Certified Public Accountants) related to the acquisition, opening
and organizing of New Units, such costs including, without limitation,
staff-training, recruiting and travel costs for employees engaged in such
start-up activities.


“Consolidated Rental Expense” shall mean, for
any period, for the Borrower and its Subsidiaries on a consolidated basis, the
operating lease expense of the Borrower and its Subsidiaries determined in
accordance with GAAP for leases with an initial term greater than one year, as
disclosed in the notes to the consolidated financial statements of the Borrower
and its Subsidiaries.


“Consolidated Tangible Net Worth” means, as of
any date of determination, for the Borrower and its Subsidiaries on a
consolidated basis, Shareholders’ Equity of the Borrower and its Subsidiaries
on that date minus the Intangible Assets of
the Borrower and its Subsidiaries on that date; provided that
intercompany Debt to Affiliates shall be excluded from the calculation of “Consolidated
Tangible Net Worth.”


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


“Control” has the meaning set forth in the definition of “Affiliate.”


“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.


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



 6
 









“Default” means any event or condition that
constitutes an Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.


“Default Rate” means an interest rate equal to (a) the Base Rate
plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus
(c) two percent (2%) per annum; provided, however, that with
respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Rate) otherwise applicable
to such Loan plus two percent (2%) per annum, in each case to the fullest
extent permitted by applicable Laws.


“Defaulting Lender” means any Lender that (a)
has failed to fund any portion of the Committed Loans, participations in L/C
Obligations or participations in Swing Line Loans required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


“Disposition
Proceeds” has the meaning set forth in Section 2.05(c).


“Dollar” and “$” mean lawful money of
the United States.


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i)
the Administrative Agent, the L/C Issuer and the Swing Line Lender, and (ii)
unless an Event of Default has occurred and is continuing, the Borrower (each
such approval referred to in the foregoing clauses (i) and (ii) not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.


“Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


“Environmental Liability”
means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the Borrower, any other Loan
Party or any of their respective Subsidiaries directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.


“Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests
in) such Person, all of the securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), 



 7
 









and all of the
other ownership or profit interests in such Person (including partnership,
member or trust interests therein), whether voting or nonvoting, and whether or
not such shares, warrants, options, rights or other interests are outstanding
on any date of determination.


“ERISA”
means the Employee Retirement Income Security Act of 1974.


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with any Loan Party within the meaning of Section 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan
Party or any ERISA Affiliate.


“Eurodollar
Base Rate” has the meaning set forth in the definition of Eurodollar Rate.


“Eurodollar
Rate” means for any Interest Period with respect to a Eurodollar Rate Loan,
a rate per annum determined by the Administrative Agent pursuant to the
following formula:




	
  Eurodollar Rate =

  	
   

  	
  Eurodollar Base
  Rate

  	
   

  
	
   

  	
  1.00 —
  Eurodollar Reserve Percentage

  	
   

  






 


Where,


“Eurodollar Base Rate” means, for such Interest
Period:


(a)                           the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period, or


(b)                           if the rate
referenced in the preceding clause (a) does not appear on such page or service
or such page or service shall not be available, the rate per annum equal to the
rate determined by the Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest Period, or


(c)                           if the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per
annum determined by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made, 



 8
 









continued or converted by
Bank of America and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London
time) two (2) Business Days prior to the first day of such Interest Period.


“Eurodollar Reserve Percentage” means, for any
day during any Interest Period, the reserve percentage (expressed as a decimal,
carried out to five decimal places) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).  The Eurodollar Rate for each outstanding
Eurodollar Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurodollar Reserve Percentage.


“Eurodollar
Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurodollar Rate.


“Event of
Default” has the meaning set forth in Section 8.01.


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or
any other recipient of any payment to be made by or on account of any
obligation of any Loan Party hereunder or under any other Loan Document, (a)
taxes imposed on or measured by its overall net income (however denominated),
and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable Lending Office is located, (b)
any branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which any Loan Party is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
any Loan Party under Section 10.13), any 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) or is attributable
to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), 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 any Loan Party with respect to such withholding tax pursuant to Section
3.01(a).


“Existing Credit Agreement” has the meaning set forth in the
Preliminary Statements.


“Existing
Letters of Credit” means those letters of credit listed on Schedule
1.01(a) and issued under the Existing Credit Agreement.


“Existing Loans”
has the meaning set forth in Section 4.01(j).


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



 9















“Fee Letters”
means, collectively, (a) the letter agreement, dated April 20, 2007, among the
Borrower, the Administrative Agent and Banc of America Securities LLC and (b)
the letter agreement, dated April 20, 2007, among the Borrower, the
Administrative Agent and the Co-Lead Arrangers.


“Fiscal Quarter”
means each of the four periods of thirteen (13) consecutive weeks which make up
the Fiscal Year.


“Fiscal Year”
means the Borrower’s Fiscal Year, which is the period of fifty-two (52) or
fifty-three (53) consecutive weeks ending on the last Tuesday of the calendar
year.


“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.


“FRB” means
the Board of Governors of the Federal Reserve System of the United States.


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


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.


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


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


“Guarantee”
means, as to any Person, any (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity or level of income or cash flow of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such
Person.  The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable amount of the 



 10
 









related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


“Guarantors” means, collectively, all existing
and future direct and indirect Subsidiaries of the Borrower.


“Guaranty”
means the collective reference to each guaranty agreement executed, from time
to time, by each of the applicable Guarantors in favor of the Administrative
Agent on behalf of the Lenders, substantially in the form of Exhibit F,
in each case, as amended, restated, supplemented or otherwise modified from
time to time.


“Hazardous Materials” means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


“Holdings” means Texas Roadhouse Holdings LLC, a Kentucky limited
liability company.


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


(a)                           all obligations of
such Person for borrowed money and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments;


(b)                           all direct or
contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


(c)                           net obligations of
such Person under any Swap Contract;


(d)                           all obligations of
such Person to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business);


(e)                           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


(f)                            capital leases; and


(g)                           all Guarantees of
such Person in respect of any of the foregoing.


For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.  The amount
of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date.  The amount of any capital lease as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof
as of such date.


“Increase
Effective Date” has the meaning set forth in Section 2.14(d).


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


“Indemnitees”
has the meaning set forth in Section 10.04(b).


“Intangible Assets” means assets that are considered to be
intangible assets under GAAP, including customer lists, goodwill, computer
software, copyrights, trade names, trademarks, 



 11
 









patents, franchises, licenses, unamortized deferred charges,
unamortized debt discount and capitalized research and development costs.


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Committed Loan Notice; provided
that:


(i)                            any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;


(ii)                           any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and


(iii)                          no Interest Period
shall extend beyond the Maturity Date.


“Internal
Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Borrower’s
internal controls over financial reporting, in each case as described in the
Securities Laws.


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that
constitute a business unit.  For purposes
of covenant compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment.


“IP Holdco”
means Texas Roadhouse Delaware, LLC, a Delaware limited liability company, and
an indirect Subsidiary of the Borrower that owns trademarks, copyrights and
patents.


“IP Rights”
has the meaning set forth in Section 5.18.


“IRS” means
the United States Internal Revenue Service.


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


“Issuer
Documents” means with respect to any Letter of Credit, the Letter Credit
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C Issuer
and relating to any such Letter of Credit.


“Joint
Venture Subsidiary” means any direct or indirect non wholly-owned
Subsidiary of the Borrower.



 12
 









“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the interpretation
or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


“L/C Advance”
means, with respect to each Lender, such Lender’s funding of its participation
in any L/C Borrowing in accordance with its Applicable Percentage.


“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a
Committed Borrowing.


“L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


“L/C Issuer”
means Bank of America, N.A. in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.


“L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.07.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


“Lender”
has the meaning set forth in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer and the Swing Line Lender.


“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices
as a Lender may from time to time notify the Borrower and the Administrative
Agent.


“Letter of
Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit.  A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.


“Letter of
Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


“Letter of
Credit Expiration Date” means the day that is thirty (30) days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


“Letter of
Credit Fee” has the meaning set forth in Section 2.03(i).


“Letter of
Credit Sublimit” means an amount equal to the lesser of (a) $20,000,000  and (b) the Aggregate Commitments.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


“Lien”
means any deed of trust, mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature
of a security interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any easement, right of way
or other encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).



 13
 









“License
Agreement” means the License Agreement, dated as of April 1, 1997 (as
amended, restated, supplemented or otherwise modified) between Holdings and IP
Holdco with respect to the IP Rights.


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.


“Loan Documents”
means this Agreement, each Note, each Issuer Document, the Fee Letters, and the
Guaranty.


“Loan Parties”
means, collectively, the Borrower and the Guarantors.


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, liabilities (actual or
contingent), or financial condition of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of any
Loan Party to perform its obligations under any Loan Document or any Material
Contract, in each case to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan
Party of any Loan Document to which it is a party.


“Material
Contract” means (a) any contract or other agreement, written or oral, of
the Borrower or any of its Subsidiaries involving monetary liability of or to
any such Person in an amount in excess of the Threshold Amount per annum, or
(b) any other contract or agreement, written or oral, of the Borrower or
any of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.


“Maturity Date”
means May 31, 2012.


“Multiemployer
Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.


“New Units”
shall mean, collectively, each particular Restaurant whose ownership and
operation by the Borrower or its Subsidiaries started on a date after the
Closing Date.


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the forms of Exhibit C-1
(Committed Loan Note) and Exhibit C-2 (Swing Line Note).


“Obligations”
means (a) all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding and (b) all existing or future payments and other
obligations owing by the Borrower under (i) any Swap Contract (which such
Swap Contract is permitted hereunder) or any (ii) cash management or
similar treasury or custodial arrangements, in each case with respect to the
foregoing clauses (i) and (ii) such transaction entered into with any Person
that is a Lender or an Affiliate thereof at the time such transaction is
entered into.


“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect 



 14
 









to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


“Other Taxes”
means all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.


“Outstanding
Amount” means (i) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Committed Loans and
Swing Line Loans, as the case may be, occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.


“Participant”
has the meaning set forth in Section 10.06(d).


“PCAOB”
means the Public Company Accounting Oversight Board.


“PBGC”
means the Pension Benefit Guaranty Corporation.


“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of
ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or
to which the Borrower or any ERISA Affiliate contributes or has an obligation
to contribute, or in the case of a multiple employer or other plan described in
Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.


“Permitted
Acquisition” has the meaning set forth in Section 7.02(g).


“Permitted
Liens” means the Liens permitted pursuant to Section 7.01.


“Permitted
Equityholders” means the collective reference to (a) W. Kent Taylor, (b)
Dr. John D. Rhodes, (c) Dr. Mohendra Patel, (d) Dr. Amar Desai, and (e) with
respect to each of the foregoing individuals, any Persons which are formed for estate planning or charitable purposes and
which are beneficially owned or controlled by, such individual and/or such
individual’s estate and/or any of such individual’s heirs or immediate family
members.


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.


“Register”
has the meaning set forth in Section 10.06(c).


“Registered
Public Accounting Firm” has the meaning specified by the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.


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



 15
 









“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other
than events for which the thirty (30) day notice period has been waived.


“Request for
Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice, (b) with respect to
an L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


“Required Joint
Venture Distributions” means, with respect to any Joint Venture Subsidiary,
required monthly distributions of the maximum amount of “net cash flow” (as
defined in the applicable Organizational Documents of such Joint Venture
Subsidiary) to its equity holders in accordance with the terms and conditions
of the applicable Organizational Documents of such Joint Venture Subsidiary.


“Required
Lenders” means, as of any date of determination, Lenders holding more than
fifty percent (50%) of the Aggregate Commitments or, if the commitment of each
Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, Lenders
holding in the aggregate more than fifty percent (50%) of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


“Responsible
Officer” means the chief executive officer, president, chief financial officer,
secretary or general counsel of a Loan Party. 
Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.


“Restaurant”
means a particular “Texas Roadhouse” restaurant at a particular location that
is owned by the Borrower or any Subsidiaries thereof.


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity
Interest of the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or
members (or the equivalent Person thereof).


“Rib Mountain
Letter of Credit” means the Existing Letter of Credit to Town of Rib
Mountain, as beneficiary, in the approximate amount of $6,500.00, with an
expiry date of February 16, 2008, as amended from time to time.


“Sandy City
Letter of Credit” means the Existing Letter of Credit to Sandy City
Corporation, as beneficiary, in the approximate amount of $80,604.36, in
connection with the Texas Roadhouse location in Sandy, Utah, with an expiry
date of September 27, 2009, as amended from time to time.


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley, and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the PCAOB.



 16
 









“SEC” means
the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


“Shareholders’
Equity” means, as of any date of determination, consolidated shareholders’
equity of the Borrower and its Subsidiaries as of that date determined in
accordance with GAAP.


“Solvent”
means, as to the Borrower and its Subsidiaries on a particular date, that any
such Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage
and is able to pay its debts as they mature, (b) owns property having a value,
both at fair valuation and at present fair saleable value, greater than the
amount required to pay its probable liabilities (including contingencies), and
(c) does not believe that it will incur debts or liabilities beyond its ability
to pay such debts or liabilities as they mature.


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement
(any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


“Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after the
date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


“Swing Line”
means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.04.


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.


“Swing Line Lender”
means Bank of America, N.A. in its capacity as provider of Swing Line Loans, or
any successor swing line lender hereunder.



 17















“Swing Line
Loan” has the meaning set forth in Section 2.04(a).


“Swing Line
Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b)
the Aggregate Commitments.  The Swing
Line Sublimit is part of, and not in addition to, the Aggregate Commitments.


“Syndication
Agent” means National City Bank.


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


“Threshold
Amount” means $5,000,000.


“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.


“Type”
means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


“UCC”
means, subject to Section 1.04, the Uniform Commercial Code in effect in
the State of North Carolina, as amended or modified from time to time.


“Unaudited
Quarterly Financial Statements” has the meaning set forth in Section
4.01(g).


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s
assets, determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the applicable plan year.


“United States”
and “U.S.” mean the United States of America.


“Unreimbursed
Amount” has the meaning set forth in Section 2.03(c)(i).


1.02        Other
Interpretive Provisions.  With reference to
this Agreement and each other Loan Document, unless otherwise specified herein
or in such other Loan Document:


(a)          The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,” “hereof”
and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and
not to any particular provision thereof, (iv) all references in a Loan Document
to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Preliminary Statements,
Exhibits and Schedules to, the Loan Document in which such references appear,
(v) any reference to any law shall include all statutory and regulatory
provisions consolidating, amending replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise specified, refer to
such law or regulation as amended, modified or supplemented from time to time,
and (vi) the words “asset” 



 18
 









and
“property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.


(b)          In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


(c)           Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


1.03        Accounting
Terms.  (a)      Generally.  All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.


(b)           Changes in GAAP.  If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


1.04        UCC Terms.  Terms
defined in the UCC in effect on the Closing Date and not otherwise defined
herein shall, unless the context otherwise indicates, have the meanings
provided by those definitions.  Subject
to the foregoing, the term “UCC” refers, as of any date of
determination, to the UCC then in effect.


1.05        Rounding.  Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


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


1.07        Letter
of Credit Amounts.  Unless otherwise
specified herein, the amount of a Letter of Credit at any time shall be deemed
to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any Issuer Document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit
after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.



 19
 









 


ARTICLE 2

THE COMMITMENTS AND CREDIT EXTENSIONS


2.01        Committed
Loans.  Subject to the terms and conditions
set forth herein, each Lender severally agrees to make loans (each such loan, a
“Committed Loan”) to the Borrower from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any
time outstanding the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01. 
Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.


2.02        Borrowings,
Conversions and Continuations of Committed Loans.


(a)            Each Committed Borrowing, each
conversion of Committed Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice
to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three (3) Business Days
prior to the requested date of any Borrowing of, conversion to or continuation
of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base
Rate Committed Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof.  Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the Borrower is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as the
case may be (which shall be a Business Day), (iii) the principal amount of
Committed Loans to be borrowed, converted or continued, (iv) the Type of
Committed Loans to be borrowed or to which existing Committed Loans are to be
converted, and (v) if applicable, the duration of the Interest Period with
respect thereto.  If the Borrower fails
to specify a Type of Committed Loan in a Committed Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or converted to, Base
Rate Loans.  Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one (1) month.  Notwithstanding anything to the contrary
herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage of the applicable Committed 



 20
 









Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection.  In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the applicable
Committed Loan Notice.  Upon satisfaction
of the applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such
L/C Borrowings, and second, shall be made available to the Borrower as
provided above.


(c)            Except as otherwise provided herein,
a Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan. 
During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.


(d)           The Administrative Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to
any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate.  At any time that Base
Rate Loans are outstanding, the Administrative Agent shall notify the Borrower
and the Lenders of any change in Bank of America’s prime rate used in
determining the Base Rate promptly following the public announcement of such
change.


(e)            After giving effect to all Committed
Borrowings, all conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there shall not be more
than ten (10) Interest Periods in effect with respect to Committed Loans.


2.03        Letters
of Credit.


(a)            The Letter of Credit Commitment.


(i)             Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing
Date until the Letter of Credit Expiration Date, to issue Letters of Credit for
the account of the Borrower, and to amend or extend  Letters
of Credit previously issued by it, in accordance with subsection (b) below, and
(2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x)
the Total Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and
(z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter
of Credit Sublimit.  Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower 



 21
 









that the L/C Credit Extension so requested complies
with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.


(ii)            The
L/C Issuer shall not issue any Letter of Credit, if:


(A)         subject
to Section 2.03(b)(iii) and excluding the Sandy City Letter of Credit,
the expiry date of such requested Letter of Credit would occur more than twelve
(12) months after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date; or


(B)          the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date.


(iii)           The
L/C Issuer shall not be under any obligation to issue any Letter of Credit if:


(A)         any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter
of Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which the
L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the L/C Issuer in
good faith deems material to it;


(B)          the
issuance of such Letter of Credit would violate one or more policies of the L/C
Issuer;


(C)          except
as otherwise agreed by the Administrative Agent and the L/C Issuer and
excluding the Sandy City Letter of Credit and Rib Mountain Letter of Credit,
such Letter of Credit is in an initial stated amount less than $50,000, in the
case of a commercial Letter of Credit, or $250,000, in the case of a standby
Letter of Credit;


(D)         such
Letter of Credit is to be denominated in a currency other than Dollars;


(E)          such Letter of Credit contains any provisions
for automatic reinstatement of the stated amount after any drawing thereunder; or


(F)          a
default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender.



 22
 









 


(iv)           The L/C Issuer
shall not amend any Letter of Credit if the L/C Issuer would not be permitted
at such time to issue such Letter of Credit in its amended form under the terms
hereof.


(v)            The
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of
Credit.


(vi)           The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used
in Article X included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C
Issuer.


(b)           Procedures for Issuance and
Amendment of Letters of Credit; Auto-Extension Letters of Credit.


(i)                                         Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time
as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be.  In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. 
Additionally, the Borrower shall furnish to the L/C Issuer and the
Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.


(ii)            Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Unless the L/C
Issuer has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested 



 23
 









date of issuance or amendment of the applicable Letter
of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the
applicable Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Applicable Percentage times
the amount of such Letter of Credit.


(iii)           If
the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer 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”); provided that any such Auto-Extension Letter of Credit
must permit the L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day
(the “Non-Extension Notice Date”) in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such extension.  Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)
or otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the Required
Lenders have 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 4.02 is not then satisfied,
and in each such case directing the L/C Issuer not to permit such extension.


(iv)           Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the L/C Issuer will also deliver to the Borrower and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.


 (c)           Drawings
and Reimbursements; Funding of Participations.


(i)             Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing.  If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of 



 24
 









such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed
to have requested a Committed Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion
of the Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.


(ii)            Each
Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to the Administrative Agent for the account of the L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the
Borrower in such amount.  The Administrative
Agent shall remit the funds so received to the L/C Issuer.


(iii)           With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed
Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of
the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest at
the Default Rate.  In such event, each
Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this Section
2.03.


(iv)           Until each Lender funds its Committed
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the
L/C Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender’s Applicable Percentage of such amount shall be solely for the
account of the L/C Issuer.


(v)            Each
Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Committed Loans pursuant to this Section
2.03(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.



 25















(vi)         If
any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by
the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the foregoing.  If such lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
lender’s Committed Loan included in the relevant Committed Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing
under this Section 2.03(c)(vi) shall be conclusive absent manifest error.


(d)           Repayment of Participations.


(i)           At
any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Percentage thereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s
L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.


(ii)          If
any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under
any of the circumstances described in Section 10.05 (including pursuant
to any settlement entered into by the L/C Issuer in its discretion), each
Lender shall pay to the Administrative Agent for the account of the L/C Issuer
its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.  The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.


(e)            Obligations Absolute.  The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances, including the following:


(i)           any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;


(ii)          the
existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the L/C Issuer or any other Person,
whether in connection 



 26
 









with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;


(iii)         any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;


(iv)         any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver
or other representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or


(v)          any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower or any Subsidiary.


The Borrower shall
promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with
the Borrower’s instructions or other irregularity, the Borrower will
immediately notify the L/C Issuer.  The
Borrower shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.


(f)            Role of L/C Issuer.  Each Lender and the
Borrower agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.  None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document.  The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit.   In 



 27
 









furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.


(g)           Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section
2.03, Section 2.05  and Section
8.02(c), “Cash Collateralize” means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders).  Derivatives of such
term have corresponding meanings.  The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.  If at any time the Administrative Agent
determines that any funds held as Cash Collateral are subject to any right or
claim of any Person other than the Administrative Agent or that the total
amount of such funds is less than the aggregate Outstanding Amount of all L/C
Obligations, the Borrower will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited as
Cash Collateral, an amount equal to the excess of (x) such aggregate
Outstanding Amount over (y) the total amount of funds, if any, then held
as Cash Collateral that the Administrative Agent determines to be free and
clear of any such right and claim.  Upon
the drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under
applicable Laws, to reimburse the L/C Issuer.


(h)           Applicability of ISP and UCP.  Unless otherwise
expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time
of issuance shall apply to each commercial Letter of Credit.


(i)             Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit
equal to one percent (1%) per annum times the daily amount available to
be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn under such
Letter of Credit.  For purposes of
computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section
1.07.  Letter of Credit Fees shall be
(i) computed on a quarterly basis in arrears and (ii) due and payable on the
first Business Day after the end of each March, June, 



 28
 









September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on
demand.  If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn
under each standby Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 (j)            Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall
pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of
Credit, at the rate specified in the applicable Fee Letter, computed on the
amount of such Letter of Credit, and payable upon the issuance thereof, (ii)
with respect to any amendment of a commercial Letter of Credit increasing the
amount of such Letter of Credit, at a rate separately agreed between the
Borrower and the L/C Issuer, computed on the amount of such increase, and
payable upon the effectiveness of such amendment, and (iii) with respect
to each standby Letter of
Credit, at the rate per annum specified in the Fee Letter, computed on the
daily amount available to be drawn under such Letter of Credit on a quarterly
basis in arrears.  Such fronting fee
shall be due and payable on the tenth Business Day after the end of each March, June, September and December in
respect of the most recently-ended quarterly period (or portion thereof, in the
case of the first payment), commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand.  For purposes
of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section
1.06.  In addition, the Borrower shall
pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in effect.  Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.


(k)            Conflict with Issuer Documents.  In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall
control.


2.04        Swing
Line Loans.


(a)            The Swing Line.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans (each such
loan, a “Swing Line Loan”) to the Borrower from time to time on any
Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Applicable Percentage of the Outstanding Amount of Committed Loans and L/C
Obligations of the Lender acting as Swing Line Lender, may exceed the amount of
such Lender’s Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Commitment, and provided, further, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan.  Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow 



 29
 









under this Section
2.04, prepay under Section 2.05, and reborrow under this Section
2.04.  Each Swing Line Loan shall be
a Base Rate Loan.  Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender
a risk participation in such Swing Line Loan in an amount equal to the product
of such Lender’s Applicable Percentage times the amount of such Swing
Line Loan.


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $250,000, and (ii) the requested
borrowing date, which shall be a Business Day. 
Each such telephonic notice must be confirmed promptly by delivery to
the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at
the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject
to the terms and conditions hereof, the Swing Line Lender will, not later than
3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make
the amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.


(c)           Refinancing
of Swing Line Loans.


(i)           The Swing Line Lender at any time in
its sole and absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to
such Lender’s Applicable Percentage of the amount of Swing Line Loans then
outstanding.  Such request shall be made
in writing (which written request shall be deemed to be a Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent’s Office not later
than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon,
subject to Section 2.04(c)(ii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Committed Loan to the 



 30
 









Borrower in such
amount.  The Administrative Agent shall
remit the funds so received to the Swing Line Lender.


(ii)          If for any reason any Swing Line Loan
cannot be refinanced by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed Loans submitted by the
Swing Line Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)
shall be deemed payment in respect of such participation.


(iii)         If any Lender fails to make available
to the Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i), the
Swing Line Lender shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the greater of the Federal Funds Rate and a rate determined by the Swing Line
Lender in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the
Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Committed Loan included in the relevant Committed Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


(iv)         Each Lender’s obligation to make
Committed Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Committed
Loans pursuant to this Section 2.04(c) is subject to the conditions set
forth in Section 4.02.  No such
funding of risk participations shall relieve or otherwise impair the obligation
of the Borrower to repay Swing Line Loans, together with interest as provided
herein.


(d)           Repayment of Participations.


(i)           At any time after any Lender has
purchased and funded a risk participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender’s risk participation was funded) in
the same funds as those received by the Swing Line Lender.


(ii)          If any payment received by the Swing
Line Lender in respect of principal or interest on any Swing Line Loan is
required to be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any 



 31
 









settlement entered
into by the Swing Line Lender in its discretion), each Lender shall pay to the
Swing Line Lender its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate.  The Administrative Agent will make
such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


(e)            Interest for Account of Swing
Line Lender.  The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans.  Until each Lender funds its Base
Rate Committed Loan or risk participation pursuant to this Section 2.04
to refinance such Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the
account of the Swing Line Lender.


(f)            Payments Directly to Swing Line
Lender.  The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.


2.05        Prepayments.


(a)            Voluntary Prepayments of
Committed Loans.  The Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Committed Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three (3) Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are to
be prepaid, the Interest Period(s) of such Committed Loans.  The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.


(b)           Voluntary Prepayments of Swing
Line Loans.  The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later
than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment
shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the
date specified therein.


(c)            Mandatory Prepayments of
Committed Loans.  If for any reason
the Total Outstandings at any time exceed the Aggregate Commitments then in
effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize
the L/C Obligations in an aggregate amount equal to 



 32
 









such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(c) unless after the
prepayment in full of the Loans the Total Outstandings exceed the Aggregate
Commitments then in effect.  Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required
pursuant to Section 3.05.  Each
such prepayment shall be applied to the Committed Loans of the Lenders in
accordance with their respective Applicable Percentages.  Amounts prepaid pursuant to this Section
2.05(c) shall not reduce the Aggregate Commitments and may be reborrowed.


2.06        Termination
or Reduction of Commitments.


The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or
from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$1,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess.  The Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Commitments.  Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. 
All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.


2.07        Repayment
of Loans.


(a)            The Borrower shall repay to the
Lenders on the Maturity Date the aggregate principal amount of Committed Loans
outstanding on such date.


(b)           The Borrower shall repay each Swing
Line Loan on the earlier to occur of (i) the date ten Business Days after
such Swing Line Loan is made and (ii) the Maturity Date.


2.08        Interest.


(a)            Subject to the provisions of
subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate.


(b)           (i)  If any amount of principal
of any Loan is not paid when due (without regard to any applicable grace
periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Laws.


(ii)            If any amount
(other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a
fluctuating 



 33
 









interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.


(iii)           Upon the request of the Required Lenders,
while any Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


(iv)           Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.


(c)            Interest on each Loan shall be due
and payable in arrears on each Interest Payment Date applicable thereto and at
such other times as may be specified herein. 
Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law.


2.09        Fees.  In
addition to certain fees described in subsections (i) and (j) of Section
2.03:


(a)            Commitment Fee.  The Borrower shall
pay to the Administrative Agent for the account of each Lender in accordance
with its Applicable Percentage, a commitment fee (the “Commitment Fee”)
equal to the Applicable Rate times the actual daily amount by which the
Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed
Loans and (ii) the Outstanding Amount of L/C Obligations.  The Commitment Fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date.  The
Commitment Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.


(b)           Other Fees.  (i)  The Borrower
shall pay to the Co-Lead Arrangers and the Administrative Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letters.  Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.


(ii)            The Borrower shall pay to the
Lenders such fees as shall have been separately agreed upon in writing in the
amounts and at the times so specified. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


2.10        Computation
of Interest and Fees.  All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. 
All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year).  Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 



 34















2.11        Evidence
of Debt.


(a)            The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.


(b)           In addition to the accounts and
records referred to in subsection (a), each Lender and the Administrative Agent
shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.


2.12        Payments
Generally; Administrative Agent’s Clawback.


(a)            General.  All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein.  The Administrative Agent will
promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


(b)                               (i)             Funding by Lenders; Presumption
by Administrative Agent.  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the
case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of
such Borrowing) that such Lender will not make available to the Administrative
Agent such Lender’s share of such Committed Borrowing, the Administrative Agent
may assume that such Lender has made such share available on such date in
accordance with Section 2.02 (or, in the case of a Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with
and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a 



 35
 









corresponding amount. 
In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in immediately available
funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B)
in the case of a payment to be made by the Borrower, the interest rate
applicable to Base Rate Loans.  If the
Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such
period.  If such Lender pays its share of
the applicable Committed Borrowing to the Administrative Agent, then the amount
so paid shall constitute such Lender’s Committed Loan included in such
Committed Borrowing.  Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against
a Lender that shall have failed to make such payment to the Administrative
Agent.


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


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


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


(d)           Obligations of Lenders Several.  The obligations of the Lenders hereunder to
make Committed Loans, to fund participations in Letters of Credit and Swing
Line Loans and to make payments pursuant to Section 10.04(c) are several
and not joint.  The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure 



 36
 









of any other Lender to so
make its Committed Loan, to purchase its participation or to make its payment
under Section 10.04(c).


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


(f)            Insufficient Funds.  If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, L/C Borrowings, interest and fees then due hereunder, such funds
shall be applied (i) first, toward payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second,
toward payment of principal and L/C Borrowings then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and L/C Borrowings then due to such parties.


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


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


(ii)            the provisions of
this Section shall not be construed to apply to (x) any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of
or sale of a participation in any of its Committed Loans or subparticipations
in L/C Obligations or Swing Line Loans to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of
this Section shall apply).


The
Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


2.14        Increase
in Aggregate Commitments.


(a)            Request for Increase.  Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time, request an increase in the Aggregate
Commitments by an amount (for all such requests) not exceeding $100,000,000;
provided that (i) any such request for an increase shall be in a minimum amount




 37
 









of $25,000,000, and (ii)
the Borrower may make a maximum of three such requests.  At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice
to the Lenders).


(b)           Lender Elections to Increase.  Each
Lender shall notify the Administrative Agent within such time period whether or
not it agrees to increase its Commitment and, if so, whether by an amount equal
to, greater than, or less than its Applicable Percentage of such requested
increase.  Any Lender not responding
within such time period shall be deemed to have declined to increase its
Commitment.


(c)            Notification
by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase, and subject to the approval of the Administrative Agent,
the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


(d)           Effective Date and Allocations.  If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall
determine the effective date (the “Increase Effective Date”) and the
final allocation of such increase.  The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
final allocation of such increase and the Increase Effective Date.


(e)            Conditions to Effectiveness of
Increase.  As a condition precedent
to such increase, the Borrower shall deliver to the Administrative Agent a
certificate of each Loan Party dated as of the Increase Effective Date signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (A) the representations and warranties
contained in Article V and the other Loan Documents are true and correct
on and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Section 2.15, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, and (B) no Default exists.  Upon the Increase Effective Date, (x) the
Aggregate Commitment will be deemed to have increased by the amount of such
Commitment increase pursuant to this Section 2.14, (y) entries in the
Register will be revised to reflect the revised Commitments and Applicable
Percentages of each of the Lenders (including each new Lender) and (z) the
outstanding Loans will be reallocated on the effective date of such increase
among the Lenders in accordance with their revised Applicable Percentages and
the Lenders (including each new Lender) agree to make all payments and
adjustments necessary to effect such reallocation and the Borrower shall pay
any and all costs required pursuant to Section 3.05 in connection with
such reallocation as if such reallocation were a repayment; provided,
that the Administrative Agent agrees to cooperate with the Borrower with
respect to the timing of such reallocation so as to minimize any incurrence by
the Borrower of costs required pursuant to Section 3.05.


(f)            Conflicting Provisions.  This
Section shall supersede any provisions in Section 2.13 or 10.01
to the contrary.



 38
 









 


ARTICLE 3

TAXES, YIELD PROTECTION AND ILLEGALITY


3.01        Taxes.


(a)            Payments Free of Taxes.  Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other Taxes) from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
L/C Issuer, as the case may be, receives 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 timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


(b)           Payment of Other Taxes by the
Borrower.  Without limiting the
provisions of subsection (a) above, the Borrower shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.


(c)            Indemnification by the Borrower.  The Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within ten (10) days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender or the L/C Issuer (with a
copy to the Administrative Agent), or by the Administrative Agent on its own
behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent
manifest error.


(d)           Evidence of Payments.  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent a 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)            Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, 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
backup withholding or information reporting requirements.


Without limiting
the generality of the foregoing, in the event that the Borrower is resident for
tax purposes in the United States, any Foreign Lender shall deliver to the
Borrower and the 



 39
 









Administrative
Agent (in such number of copies as shall be requested by the recipient) on or
prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower or
the Administrative Agent, but only if such Foreign Lender is legally entitled
to do so), whichever of the following is applicable:


(i)             duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a party,


(ii)            duly
completed copies of Internal Revenue Service Form W-8ECI,


(iii)           in
the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the
Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly
completed copies of  Internal Revenue
Service Form W-8BEN, or


(iv)           any
other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together
with such supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required to be
made.


(f)            Treatment of Certain Refunds.  If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a
refund of any 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, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all out-of-pocket expenses
relating to such refund of the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, 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, such Lender or
the L/C Issuer, 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, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund to such Governmental Authority.  This subsection shall not be construed to
require the Administrative Agent, any Lender or the L/C Issuer to make
available its tax returns (or any other information relating to its taxes that
it deems confidential) to the Borrower or any other Person.


3.02        Illegality.  If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), 



 40
 









prepay or, if applicable, convert all Eurodollar Rate Loans of such
Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to
maintain such Eurodollar Rate Loans. 
Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.


3.03        Inability
to Determine Rates.  If the Required Lenders
determine that for any reason in connection with any request for a Eurodollar
Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b) adequate and reasonable means do not exist for determining the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan , or (c) the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each
Lender.  Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.


3.04        Increased
Costs.


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


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


(ii)            subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender or the L/C Issuer in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the L/C Issuer); or


(iii)           impose
on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate 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 Eurodollar Rate Loan (or of maintaining its obligation to make
any such Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrower will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


(b)           Capital Requirements.  If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such 



 41
 









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


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


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


3.05        Compensation
for Losses.  Upon demand of any Lender (with
a copy to the Administrative Agent) from time to time, the Borrower shall
promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:


(a)            any continuation, conversion,
payment or prepayment of any Loan other than a Base Rate Loan on a day other
than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or


(b)           any failure by the Borrower (for a
reason other than the failure of such Lender to make a Loan) to prepay, borrow,
continue or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Borrower; or


(c)            any assignment of a Eurodollar Rate
Loan on a day other than the last day of the Interest Period therefor as a
result of a request by the Borrower pursuant to Section 10.13; including
any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.  The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


For purposes of
calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be
deemed to have funded each Eurodollar Rate Loan made by it at the


 



 42















Eurodollar Base
Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.


3.06        Mitigation
Obligations; Replacement of Lenders.


(a)           Designation of a
Different Lending Office.  If
any Lender requests compensation under Section 3.04, or 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 3.01, or if
any Lender gives a notice pursuant to Section 3.02, 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 3.01 or 3.04, as the
case may be, in the future, or eliminate the need for the notice pursuant to Section
3.02, as applicable, and (ii) in each case, 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)           Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
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 3.01,
the Borrower may replace such Lender in accordance with Section 10.13.


3.07        Survival.  All
of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.


ARTICLE 4

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


4.01        Conditions
of Initial Credit Extension.  The obligation
of the L/C Issuer and each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:


(a)           Loan Documents, Certificates and
Opinions.  The Administrative Agent’s
receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a recent
date before the Closing Date) and each in form and substance satisfactory to
the Administrative Agent and its legal counsel:


(i)            executed
counterparts of this Agreement, the Guaranty and any other applicable Loan
Documents, sufficient in number for distribution to the Administrative Agent,
each Lender and the Borrower;


(ii)           a
Note executed by the Borrower in favor of each Lender requesting a Note;


(iii)          a
certificate of Responsible Officers of each Loan Party certifying as to the
incumbency and genuineness of the signature of each officer of each Loan Party
executing Loan Documents to which it is a party and certifying that attached
thereto is a true, correct and complete copy of (A) the articles or certificate
of incorporation or formation of each Loan Party and all amendments thereto,
certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of organization, (B) the bylaws or other governing document of
each Loan Party as in effect on the Closing Date, (C) resolutions duly adopted
by the board of 



 43
 









directors
or other governing body of each Loan Party authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of the Loan
Documents to which it is a party, and (D) certificates as of a recent date of
the good standing of each Loan Party under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where each Loan Party is qualified to do business);


(iv)          a
favorable opinion of Frost Brown Todd LLC, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, in form and substance
satisfactory to the Administrative Agent;


(v)           a
certificate signed by a Responsible Officer of the Borrower certifying that
either (A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party and
the validity against such Loan Party of the Loan Documents to which it is a
party, and such consents, licenses and approvals shall be in full force and
effect, or (B) stating that no such consents, licenses or approvals are so
required;


(vi)          a
certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that since December 26, 2006, there has been no event or
circumstance that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect upon, the
operations, business, assets, liabilities (actual or contingent), financial
condition or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole or in the facts and information regarding such entities as
represented to date;


(vii)         evidence
that all insurance required to be maintained pursuant to the Loan Documents has
been obtained and is in effect; and


(viii)        such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required
Lenders reasonably may require.


(b)           Lien Searches.      The Administrative Agent shall have
received the results of Lien searches made against the Borrower and the Loan
Parties under the UCC (or applicable judicial docket) as in effect in the
jurisdiction of organization of such Person, in form and substance satisfactory
to the Administrative Agent.


(c)           Hazard and Liability Insurance.  The Administrative Agent shall have received
certificates of insurance, evidence of payment of all insurance premiums for
the current policy year of each, and, if requested by the Administrative Agent,
copies (certified by a Responsible Officer) of insurance policies in form and
substance reasonably satisfactory to the Administrative Agent.


(d)           Payment of Fees.  Any fees required to be paid on or before the
Closing Date shall have been paid.


(e)           Attorneys Fees.  Unless waived by the Administrative Agent,
the Borrower shall have paid all fees, charges and disbursements of counsel to
the Administrative Agent to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such reasonable fees, charges and
disbursements as shall constitute its reasonable estimate of such incurred or
to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent).


(f)            Financial Condition Certificate.  The Borrower shall have delivered to the
Administrative Agent a certificate, in form and substance satisfactory to the
Administrative Agent, and certified as accurate by a Responsible Officer, that
(A) the Borrower and each of its Subsidiaries are each 



 44
 









Solvent, (B) the
Borrower’s payables are current and not past due, (C) attached thereto are
calculations evidencing compliance on a pro  forma basis with the
covenants contained in Section 7.14, and (D) the financial
projections previously delivered to the Administrative Agent represent the good
faith estimates (utilizing reasonable assumptions) of the financial condition
and operations of the Borrower and its Subsidiaries.


(g)           Financial
Statements.  The Administrative Agent
and the Lenders shall have received (A) the audited consolidated balance
sheet of the Borrower and its Subsidiaries and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the fiscal year December 26, 2006 (the “Audited
Financial Statements”) and (B)  the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended March 27, 2007 (the “Unaudited
Quarterly Financial Statements”), all in form and substance satisfactory to
the Administrative Agent and the Lenders and prepared in accordance with GAAP,
and such other financial information as the Administrative Agent may reasonably
request.


(h)           No
Injunction, Etc.  No action,
proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any Governmental Authority to enjoin,
restrain, or prohibit, or to obtain substantial damages in respect of, or which
is related to or arises out of the Loan Documents or the consummation of the
transactions contemplated thereby, or which, in the Administrative Agent’s
reasonable discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and the other Loan Documents.


(i)            Governmental
and Third Party Approvals.  The
Loan Parties shall have received all material governmental, shareholder and
third party consents and approvals necessary (as determined in the reasonable
discretion of the Administrative Agent) in connection with the transactions
contemplated by this Agreement and the other Loan Documents and the other
transactions contemplated hereby and all applicable waiting periods shall have
expired without any action being taken by any Person that could reasonably be
expected restrain, prevent or impose any material adverse conditions on any of
the Loan Parties or such other transactions or that could seek or threaten any
of the foregoing, and no law or regulation shall be applicable which in the
reasonable judgment of the Administrative Agent could reasonably be expected to
have such effect.


(j)            Continuation of
the Existing Loans.  (A) All
outstanding Loans under the Existing Credit Agreement (the “Existing Loans”)
made by any Lender thereunder who is not a Lender hereunder shall be repaid in
full and the commitments and other obligations and rights (except as expressly
set forth in the Existing Credit Agreement) of such Lender shall be terminated,
(B) all Existing Loans not being repaid under item (A) above, shall be, from
and after the Closing Date, Loans hereunder and the Administrative Agent shall
make such transfers of funds as are necessary in order that the outstanding
balance of such Loans, together with any Loans funded hereunder on the Closing
Date, reflect the Commitments of the Lenders hereunder, (C) all of the Existing
Letters of Credit shall be, from and after the Closing Date, Letters of Credit
hereunder, (D) all accrued but unpaid interest due on the Existing Loans to the
Closing Date shall be paid in cash in full on the Closing Date, (E) all accrued
but unpaid fees under the Existing Credit Agreement owing to the Administrative
Agent and the Lenders under the Existing Credit Agreement to the Closing Date
shall be paid in cash in full on the Closing Date, (F) all reasonable fees,
expenses and disbursements of counsel to Administrative Agent shall be paid in
cash in full on the Closing Date and (G) all outstanding promissory notes
issued by the Borrower to the Lenders under the Existing Credit Agreement shall
be deemed canceled and the originally 



 45
 









executed copies
thereof shall be promptly returned to the Administrative Agent who shall
forward such notes to the Borrower.


(k)           Other Documents.  All opinions, certificates and other
instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Administrative Agent. 
The Administrative Agent shall have received copies of all other
documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.


Without limiting
the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection
thereto.


4.02        Conditions
to all Credit Extensions.  The obligation of
each Lender to honor any Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Committed Loans to the other Type,
or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:


(a)           The representations and warranties of
the Borrower and each other Loan Party contained in Article V or any other
Loan Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct on and
as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that
for purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.


(b)           No Default shall exist, or would
result from such proposed Credit Extension or from the application of the
proceeds thereof.


(c)           The Administrative Agent and, if
applicable, the L/C Issuer or the Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.


(d)           The Administrative Agent shall have received each
additional document, instrument, legal opinion or other item reasonably
requested by it.


Each Request for Credit Extension (other than a
Committed Loan Notice requesting only a conversion of Committed Loans to the
other Type or a continuation of Eurodollar Rate Loans) submitted by the
Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.


ARTICLE 5

REPRESENTATIONS AND WARRANTIES


The Borrower
represents and warrants to the Administrative Agent and the Lenders that:


5.01        Existence,
Qualification and Power; Compliance with Laws.  The
Borrower and each of its Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized or formed, validly existing and in
good standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or
lease its assets and 



 46
 









carry on its business as now being conducted and hereafter proposed to
be conducted and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and is licensed
and in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws.  The jurisdictions in which the Borrower and
its Subsidiaries are organized and qualified to do business as of the Closing
Date are described on Schedule 5.01.


5.02        Authorization;
No Contravention.  The execution, delivery
and performance by each Loan Party of each Loan Document to which such Person
is or is to be a party, have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene the terms
of any of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien (other than a
Permitted Lien) under, or required any payment to be made under (i) any
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law.


5.03        Governmental
Authorization; Other Consents.  No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.  Each of the Borrower and its Subsidiaries (a)
has all Governmental Approvals required by any applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not subject
to review on appeal and is not the subject of any pending or, to the best of
its knowledge, threatened attack by direct or collateral proceeding, (b) is in
compliance with each Governmental Approval applicable to it and in compliance
with all other applicable Laws relating to it or any of its respective
properties and (c) has timely filed all material reports, documents and other
materials required to be filed by it under all applicable Laws with any
Governmental Authority and has retained all material records and documents
required to be retained by it under applicable Law.


5.04        Binding
Effect.  This Agreement has been, and each
other Loan Document, when delivered hereunder, will have been, duly executed
and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.


5.05        Financial
Statements; No Material Adverse Effect; No Internal Control Event.


(a)           The Audited Financial Statements (i)
were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; (ii)
fairly present the financial condition of the Borrower and its Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; and (iii) show
all indebtedness and other liabilities, direct or contingent, of the Borrower
and its Subsidiaries as of the date thereof, including liabilities for taxes,
commitments and Indebtedness.


(b)           The Unaudited Quarterly Financial
Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly 



 47
 









noted therein, and
(ii) fairly present the financial condition of the Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.


(c)           Since the date of the Audited
Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.


(d)           As of the Closing Date and after
giving effect to each Credit Extension made hereunder, the Borrower and each of
its Subsidiaries will be Solvent.


(e)           To the best knowledge of the
Borrower, no Internal Control Event exists or has occurred since the date of
the Audited Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any financial
information delivered or to be delivered to the Administrative Agent or the
Lenders, of (i) covenant compliance calculations provided hereunder or (ii) the
assets, liabilities, financial condition or results of operations of the
Borrower and its Subsidiaries on a consolidated basis.


(f)            The consolidated forecasted balance
sheets, statements of income and cash flows of the Borrower and its
Subsidiaries delivered pursuant to Section 4.01 were prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Borrower’s best estimate
of its future financial condition and performance.


5.06        Litigation.  Except
as specifically disclosed in Schedule 5.06, there are no actions, suits,
investigations or proceedings pending, or overtly threatened in writing, at
law, in equity, in arbitration or before any Governmental Authority, by or
against the Borrower or any of its Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this Agreement
or any other Loan Document, or any of the transactions contemplated hereby, or
(b) either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.


5.07        No
Default.  Neither the Borrower nor any
Subsidiary is in default under or with respect to any Contractual Obligation or
a party to any Contractual Obligation in default, in each case, that could,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.  No Default or
an Event of Default has occurred and is continuing or would result from the
consummation of the transactions contemplated by this Agreement or any other
Loan Document.


5.08        Ownership
of Property; Liens.


Each of the Borrower and each Subsidiary has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, and legal title to
all of its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the Borrower and its Subsidiaries delivered
pursuant to Section 6.01, except those which have been disposed of by the
Borrower or its Subsidiaries subsequent to such date which dispositions have
been in the ordinary course of business or as otherwise expressly permitted
hereunder.  The property of the Borrower
and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 6.01.


5.09        Environmental
Compliance.


(a)           Except as set forth
on Schedule 5.09 (“Disclosed Environmental Matters”), the properties
owned, leased or operated by the Borrower and its Subsidiaries do not contain,
any Hazardous Materials in amounts or concentrations which (i) constitute a
violation of applicable Environmental Laws or (ii) could give rise to liability
under applicable Environmental Laws;



 48
 









(b)           The
Borrower, each Subsidiary and such properties and all operations conducted in
connection therewith are in compliance, and have been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
such properties or such operations which could interfere with the continued
operation of such properties or impair the fair saleable value thereof;


(c)           Except
for Disclosed Environmental Matters, neither the Borrower nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters, Hazardous Materials, or compliance with Environmental Laws, nor does
the Borrower or any Subsidiary thereof have knowledge or reason to believe that
any such notice will be received or is being threatened;


(d)           Hazardous
Materials have not been transported or disposed of to or from the properties
owned, leased or operated by the Borrower and its Subsidiaries in violation of,
or in a manner or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such properties in violation of,
or in a manner that could give rise to liability under, any applicable
Environmental Laws;


(e)           No
judicial proceedings or governmental or administrative action is pending,
or  overtly threatened in writing, under
any Environmental Law to which the Borrower or any Subsidiary thereof is or
will be named as a potentially responsible party with respect to such
properties or operations conducted in connection therewith, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Borrower, any Subsidiary or
such properties or such operations; and


(f)            There has been no release, or to the
best of the Borrower’s knowledge, threat of release, of Hazardous Materials at
or from properties owned, leased or operated by the Borrower or any Subsidiary,
now or in the past, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.


5.10        Insurance.  The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies reasonably acceptable to the
Administrative Agent and the Required Lenders not Affiliates of the Borrower or
any Subsidiary, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.


5.11        Taxes.  The
Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. 
Such returns accurately reflect in all material respects all liability
for taxes of the Borrower and its Subsidiaries for the periods covered
thereby.  Except as set forth on Schedule
5.11, there are no ongoing audits or examinations or, to the knowledge of
the Borrower, other investigations by any Governmental Authority of the tax
liability of the Borrower and its Subsidiaries. 
No Governmental Authority has asserted any Lien or other claim against
the Borrower or any Subsidiary thereof with respect to unpaid taxes which has
not been discharged or resolved.  The
charges, accruals and reserves on the books of the Borrower and any of its
Subsidiaries in respect of federal, state, local and 



 49
 









other taxes for all Fiscal Years and portions thereof since the
organization of the Borrower and any of its Subsidiaries are in the judgment of
the Borrower adequate, and the Borrower does not anticipate any additional
taxes or assessments for any of such years. 
There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect.


5.12        ERISA
Compliance.


(a)           As of the Closing
Date, neither the Borrower nor any ERISA Affiliate maintains or contributes to,
or has any obligation under, any Plans other than those identified on Schedule
5.12.


(b)           Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification.  The
Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.


(c)           There are no pending, or overtly
threatened in writing, claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. 
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


(d)           (i) 
No ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; (v) neither the Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA; and (vi) neither the Borrower nor any ERISA
Affiliate has engaged in a nonexempt prohibited transaction described in
Section 406 of the ERISA or Section 4975 of the Code.


5.13        Subsidiaries.  As
of the Closing Date, the Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13 and the Borrower and
its Subsidiaries have no equity investments in any other corporation or entity
other than those specifically disclosed in Part(b) of Schedule 5.13.  As of the Closing Date, the capitalization of
the Borrower and its Subsidiaries consists of the number of shares, authorized,
issued and outstanding, of such classes and series, with or without par value,
described on Schedule 5.13.  All
outstanding shares have been duly authorized and validly issued and are fully
paid and nonassessable, with no personal liability attaching to the ownership
thereof, and not subject to any preemptive or similar rights.  The shareholders of the Subsidiaries of the
Borrower and the number of shares owned by each as of the Closing Date are
described on Schedule 5.13.  As of
the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type or
nature whatsoever, which are convertible 



 50
 









into, exchangeable for or otherwise provide for or permit the issuance
of capital stock of the Borrower or its Subsidiaries, except as described on Schedule
5.13.


5.14        Margin Regulations; Investment Company
Act; Public Utility Holding Company Act.


(a)           Neither the Borrower nor any of its
Subsidiaries is engaged, principally or as one of its important activities, in
the business of “purchasing” or “carrying” any “margin stock” (as each such
term is defined or used in Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock.  No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock or
for any purpose which violates, or which would be inconsistent with, the
provisions of Regulation T, U or X issued by the FRB.


(b)           Neither the Borrower nor any of its
Subsidiaries (i) is a “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company,” within the meaning of the Public Utility Holding
Company Act of 1935, or (ii) is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


5.15        Material
Contracts.  Schedule
5.15 sets forth a complete and accurate list of all Material Contracts of
the Borrower and its Subsidiaries in effect as of the Closing Date not listed
on any other Schedule hereto.  Other than
as set forth in Schedule 5.15, each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof.  Neither the Borrower nor any
Subsidiary (nor, to the knowledge of the Borrower, any other party thereto) is in
breach of or in default under any Material Contract in any material respect.


5.16        Disclosure.  The
Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.


5.17        Compliance
with Laws.  Each of the Borrower and its
Subsidiaries is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


5.18        Intellectual
Property; Licenses, Etc.  Except as set forth on Schedule
5.18, IP Holdco owns, or possess the non-exclusive right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
licenses and other intellectual property rights 



 51
 









(collectively, “IP
Rights”) that are reasonably necessary for the operation of the respective
businesses of the Borrower and its Subsidiaries, without conflict with the
rights of any other Person.  The Borrower
and IP Holdco have not received any notice of any slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary
that infringes upon any rights held by any other Person.  No event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation or termination of
any such rights, and neither IP Holdco, the Borrower nor any Subsidiary thereof
is liable to any Person for infringement under applicable Law with respect to any
such rights as a result of its business operations.


5.19        Employee
Relations.  Each of the Borrower and its
Subsidiaries has a stable work force in place and is not, as of the Closing
Date, party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees.  The Borrower knows of no pending, threatened
or contemplated strikes, work stoppage or other collective labor disputes
involving its employees or those of its Subsidiaries.


5.20        Burdensome
Provisions.  Neither the Borrower nor any
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction,
Governmental Approval or applicable Law which is so unusual or burdensome as in
the foreseeable future could be reasonably expected to have a Material Adverse
Effect.  The Borrower and its
Subsidiaries do not presently anticipate that future expenditures needed to
meet the provisions of any statutes, orders, rules or regulations of a
Governmental Authority will be so burdensome as to have a Material Adverse
Effect.  No Subsidiary is party to any
agreement or instrument or otherwise subject to any restriction or encumbrance
that restricts or limits its ability to make dividend payments or other
distributions in respect of its capital stock to the Borrower or any Subsidiary
or to transfer any of its assets or properties to the Borrower or any other
Subsidiary in each case other than existing under or by reason of the Loan
Documents or applicable Law.


5.21        Survival
of Representations and Warranties, Etc.  All representations and warranties set forth
in this Article V and all representations and warranties contained in any
certificate, or any of the Loan Documents (including, but not limited to, any
such representation or warranty made in or in connection with any amendment
thereto) shall constitute representations and warranties made under this
Agreement.  All representations and
warranties made under this Agreement shall be made or deemed to be made at and
as of the Closing Date (except those that are expressly made as of a specific
date), shall survive the Closing Date and shall not be waived by the execution
and delivery of this Agreement, any investigation made by or on behalf of the Lenders
or any borrowing hereunder.


ARTICLE 6

AFFIRMATIVE COVENANTS


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation hereunder
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, 6.03 and 6.11)
cause each of its Subsidiaries to:


6.01        Financial
Statements.  Deliver to
the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


(a)           as soon as available, but in any
event within ninety (90) days after the end of each Fiscal Year of the
Borrower, a Consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such Fiscal Year, the related Consolidated statements of income
or operations for such



 52















Fiscal Year and
the related consolidated statements of shareholders’ equity and cash flows for
such Fiscal Year, setting forth in each case in comparative form the figures
for the previous Fiscal Year, all in reasonable detail and prepared in
accordance with GAAP, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect to the
absence of any material misstatement; it being acknowledged by the parties
hereto that delivery of a copy the Borrower’s Annual Report on Form 10-K on or
before the date specified above shall satisfy the requirements of this Section
6.01(a);


(b)           as soon as available, but in any
event within forty-five (45) days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of the Borrower, a Consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such Fiscal
Quarter, the related Consolidated statements of income or operations for such
Fiscal Quarter and for the portion of the Fiscal Year then ended and the
related consolidated statements of shareholders’ equity and cash flows for such
Fiscal Quarter and for the portion of the Fiscal Year then ended, setting forth
in each case in comparative form the figures for the corresponding Fiscal
Quarter of the previous Fiscal Year and the corresponding portion of the
previous Fiscal Year, all in reasonable detail and certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results
of operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries on a Consolidated basis in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes; it being
acknowledged by the parties hereto that delivery of a copy the Borrower’s
Quarterly Report on Form 10-Q on or before the date specified above shall
satisfy the requirements of this Section 6.01(b).


As to any
information contained in materials furnished pursuant to Section 6.02(d),
the Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described
in subsections (a) and (b) above at the times specified therein.


6.02        Certificates;
Other Information. 
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate
of its independent certified public accountants certifying such financial
statements and stating that in the course of its audit (without any obligation
to conduct any other independent investigation) no knowledge was obtained of
any Default with the terms, covenants, provisions or conditions of Section
7.14 in so far as they relate to accounting matters or, if any such Default
shall exist, stating the nature and status of such event;


(b)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b),
a duly completed Compliance Certificate signed by a Responsible Officer of the
Borrower;


(c)           promptly after any request by the
Administrative Agent or any Lender, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors of
the Borrower by independent accountants in connection with the accounts or
books of the Borrower or any Subsidiary, or any audit of any of them;


(d)           promptly after the same are
available, copies of each annual report, proxy or financial statement or other
report or communication sent to the stockholders of the Borrower (excluding 



 53
 









customary and
routine correspondence regarding distributions or financial statements), and
copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC
under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto;


(e)           promptly, and in any
event within five Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of each notice or other correspondence received from
the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such
agency regarding financial or other operational results of any Loan Party or
any Subsidiary thereof; and


(f)            promptly, such additional
information regarding the business, financial, legal or corporate affairs of
the Borrower or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


Documents required
to be delivered pursuant to Section 6.01(a) or (b) or Section
6.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such
documents.  Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(b)
to the Administrative Agent and each of the Lenders.  Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


The Borrower
hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be 



 54
 









sensitive and
proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials
marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Investor;” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public
Investor.”


6.03        Notices.  Promptly notify the Administrative Agent and
each Lender:


(a)           of
(i) the occurrence of any Default or Event of Default, (ii) the occurrence or
existence of any event or circumstance that foreseeably will become a Default
or Event of Default or (iii) the occurrence of any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
default or event of default under any Material Contract to which the Borrower
or any of its Subsidiaries is a party or by which the Borrower or any
Subsidiary thereof or any of their respective properties may be bound;


(b)           of
any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Borrower or any or any Subsidiary and any Governmental Authority; (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws; and (iv) any dispute, litigation, investigation, proceeding
or suspension between the Borrower or any Subsidiary and any Person.


(c)           of
the occurrence of any ERISA Event;


(d)           of
any material change in accounting policies or financial reporting practices by
the Borrower or any Subsidiary;


(e)           of
any of the events described in Section 2.05(c); and


(f)            of
the determination by a Registered Public Accounting Firm of the Borrower or the Borrower’s determination at any
time of the occurrence or existence of any Internal Control Event.


Each notice
pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take
with respect thereto.  Each notice
pursuant to Section 6.03(a) shall describe with particularity any and
all provisions of this Agreement and any other Loan Document that have been
breached.


6.04        Payment
of Obligations.  Pay
and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless (i) the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary or (ii) the failure to so pay such liabilities,
assessments or levies could not reasonably be expected to have a Material
Adverse Effect; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property; and (c) all Indebtedness (in an amount equal to or in
excess of the Threshold Amount), as and when due and payable, but subject to
any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.


6.05        Preservation
of Existence, Etc.  (a)  Preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05; (b) take all reasonable



 55
 









action to maintain
all rights, privileges, permits and licenses necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (c)
preserve or renew all of its registered patents, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.


6.06        Maintenance
of Properties.  (a)
Maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted; and (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


6.07        Maintenance of Insurance.  Maintain with Royal Indemnity Ins. Co.,
Lexington Insurance Company, Royal Surplus Lines Company, or other financially
sound and reputable insurance companies reasonably acceptable to the
Administrative Agent and the Required Lenders not Affiliates of the Borrower,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30
days’ prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance and deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.


6.08        Compliance
with Laws.  Except
where the failure to comply could reasonably be expected to have a Material
Adverse Effect, comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions and decrees applicable to it or to its
business or property, except in such instances in which such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted, and maintain in full force and
effect all Governmental Approvals applicable to it or to its business or
property.


6.09        Environmental
Laws.  In addition to
and without limiting the generality of Section 6.08, (a) comply
with, and ensure such compliance by all tenants and subtenants with all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants, if any, obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, (b) conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws, and promptly comply with all
lawful orders and directives of any Governmental Authority regarding
Environmental Laws, and (c) defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the presence of Hazardous Materials,
or the violation of, noncompliance with or liability under any Environmental
Laws applicable to the operations of the Borrower or any such Subsidiary, or
any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney’s and consultant’s
fees, investigation and laboratory fees, response costs, court costs and litigation
expenses, except to 



 56
 









the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.


6.10        Compliance
with ERISA.  In
addition to and without limiting the generality of Section 6.08, (a)
except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply
with all material applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit
Plans, (ii) not take any action or fail to take action the result of which
could be a liability to the PBGC or to a Multiemployer Plan, (iii) not
participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative
Agent upon the Administrative Agent’s request such additional information about
any Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.


6.11        Compliance
With Agreements. 
Comply in all respects with each term, condition and provision of all
leases, agreements and other instruments entered into in the conduct of its
business including, without limitation, any Material Contract; provided, that
the Borrower or any such Subsidiary may contest any such lease, agreement or
other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.


6.12        Books
and Records.  (a) Maintain proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower or such Subsidiary,
as the case may be; and (b) maintain such books of record and account in
material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over the Borrower or such Subsidiary,
as the case may be.


6.13        Inspection
Rights.  Permit
representatives and independent contractors of the Administrative Agent and
each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the reasonable
expense of the Borrower and at such reasonable times during normal business
hours upon reasonable advance notice to the Borrower; provided, that so
long as no Default or Event of Default has occurred and is continuing, the
Borrower shall not be required to pay for more than one (1) visit per calendar
year; provided, further, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time and as often as the Administrative Agent or any such
Lender may reasonably desire during normal business hours and without advance
notice.


6.14        Use
of Proceeds.  Use the
proceeds of the Committed Loans, Swing Line Loans and Letters of Credit for the
benefit of the Borrower or any Guarantor, (i) for
general corporate purposes of the Borrower and the Guarantors, including, without
limitation, working capital, capital expenditures in the ordinary course of
business, and other lawful corporate purposes, (ii) to repay any
existing Indebtedness under the Existing
Credit Agreement, (iii) to pay fees
and expenses related to the Loans, (iv) to finance the construction
costs of Restaurants owned by the Borrower
or such Guarantor, and (v) for the other purposes described herein, and
not in contravention of any Law or of any Loan Document.



 57
 









6.15        Additional
Subsidiaries.  Notify
the Administrative Agent at the time that (x) any Person becomes a direct or
indirect wholly-owned Subsidiary of the Borrower, and (y) such Person creates,
acquires or engages in any business operations or owns assets with a fair
market value in excess of $250,000, and promptly thereafter (and in any event
within ninety (90) days) cause such Person to (a) become a Guarantor by
executing and delivering to the Administrative Agent a counterpart of the
Guaranty or such other document as the Administrative Agent shall deem
appropriate for such purpose, (b) deliver to the Administrative Agent documents
of the types referred to in clauses (iii), (v) and (vi) of Section 4.01(a)
and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)) and (c) deliver to the Administrative
Agent such other documents and closing certificates as may be reasonably
requested by the Administrative Agent, all in form, content and scope
reasonably satisfactory to the Administrative Agent.


6.16        Required
Joint Venture Distributions. 
Make Required Joint Venture Distributions within forty-five (45) days
after the end of each calendar month (to the extent reasonably possible).


6.17        Further
Assurances.  Make,
execute and deliver all such additional and further acts, things, deeds and
instruments as the Administrative Agent or the Required Lenders (through the
Administrative Agent) may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes, the Letters of Credit and the other Loan Documents.


ARTICLE 7

NEGATIVE COVENANTS


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly:


7.01        Liens.  Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, other than the following:


(a)                           Liens
pursuant to any Loan Document;


(b)                           Liens
existing on the date hereof and listed on Schedule 7.01 and any renewals
or extensions thereof, provided that the property covered thereby is not
increased and any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 7.03(b);


(c)                           Liens
for taxes not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;


(d)                           carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;


(e)                           pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;



 58
 









(f)                            deposits
to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business;


(g)                           easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the applicable Person;


(h)                           Liens
securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or securing appeal or other surety bonds
related to such judgments;


(i)                            Liens
arising solely by virtue of any contractual or statutory or common law
provisions relating to banker’s liens, rights to set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Loan Party or any Subsidiary in excess of those set forth by regulations
promulgated by the Board of Governors of the Federal Reserve System and (ii)
such deposit account is not intended by the Loan Party or such Subsidiary to
provide collateral to the depositary institution;


(j)                            Liens
existing on any assets acquired pursuant to any Permitted Acquisition under Section
7.02(g) which (i) were not created in contemplation of or in connection
with such Permitted Acquisition and (ii) do not extend to or cover any other
property or assets of Borrower or any Subsidiary (other than property or assets
subject to an existing Permitted Lien in favor of the same lien holder which
will hold the new Lien permitted under this Section 7.01(j)), in each case, so
long as any Indebtedness related to any such Liens are permitted under Section
7.03(b); and


(k)                           Liens
securing Indebtedness permitted by Section 7.03(b).


7.02        Investments.  Make any Investments,
except:


(a)                           Investments
held by the Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable securities;


(b)                           advances
to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $500,000 at any time outstanding, for travel,
entertainment, relocation and analogous ordinary business purposes;


(c)                           Investments
of the Borrower in any wholly-owned Subsidiary and Investments of any
Subsidiary in the Borrower;


(d)                           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


(e)                           Guarantees
permitted by Section 7.03;


(f)                            intercompany
loans made by the Borrower to Guarantors, among Guarantors or to the Borrower
from its Subsidiaries;


(g)                           Investments
in the form of acquisitions of (i) all or substantially all of the business or
a line of business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person, or (ii) all or any portion of the
equity ownership interests of a Joint Venture Subsidiary not owned by the
Borrower or any Subsidiary thereof (any 



 59
 









of the acquisition described in the foregoing clauses (i) and (ii), a “Permitted
Acquisition”); provided that (1) no Default or Event of Default
shall have occurred and be continuing both before and after giving effect to
the acquisition, (2) the Borrower shall have complied with Section 6.15
and (3) in the case of any acquisition where the aggregate consideration
exceeds $25,000,000, the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate dated as of the closing date of the acquisition
demonstrating, in form and substance reasonably satisfactory thereto, the pro
forma compliance, immediately before and after the closing date of the
acquisition, with the Consolidated Leverage Ratio covenant contained in Section
7.14(b);


(h)                           Investments
in connection with the financing of equipment permitted under Section 7.03;


(i)                            Investments
constituting capital expenditures;


(j)                            Investments
(i) existing on the date hereof and listed on Schedule 7.02, or (ii)
existing on the date hereof in Subsidiaries existing on the date hereof; and


(k)                           Investments
of the Borrower in Joint Venture Subsidiaries made for the purpose of either
owning, operating or managing “Texas Roadhouse” restaurants.


7.03        Indebtedness.  Create, incur, assume or
suffer to exist any Indebtedness, except:


(a)                           Unsecured
Indebtedness; provided that (i) no Default or Event of Default shall
have occurred and be continuing both before and after giving effect to such
Indebtedness, and (ii) in the case of any Indebtedness that exceeds
$20,000,000, the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating, in form and substance reasonably
satisfactory thereto, the pro  forma compliance, immediately
before and after such Indebtedness, with the Consolidated Leverage Ratio
covenant contained in Section 7.14(b); and


(b)                           Secured
Indebtedness; provided that (i) no Default or Event of Default shall
have occurred and be continuing both before and after giving effect to such
Indebtedness, and (ii) in the case of any Indebtedness that exceeds $20,000,000,
the Borrower shall have delivered to the Administrative Agent a Compliance
Certificate demonstrating, in form and substance reasonably satisfactory
thereto, the pro  forma compliance, immediately before and after
such Indebtedness, with the Consolidated Leverage Ratio covenant contained in Section
7.14(b) and (iii) all such outstanding secured Indebtedness is in the
aggregate at any time not in excess of an amount, at any time the same is to be
determined, equal to twenty percent (20%) of the Consolidated Tangible Net
Worth of the Borrower at the end of the then most recently completed Fiscal
Quarter of the Borrower.


7.04        Fundamental
Changes.  Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:


(a)           any
Subsidiary may merge with (i) the Borrower, provided that the Borrower
shall be the continuing or surviving Person or (ii) any one or more other
Subsidiaries, provided that (x) when any Guarantor is merging with
another Subsidiary, such Guarantor shall be the continuing or surviving Person
and (y) when any wholly-owned Subsidiary is merging with another Subsidiary,
such wholly-owned Subsidiary shall be the continuing or surviving Person;


(b)           any
Subsidiary may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided
that if the transferor in such a transaction is (x) a Guarantor, then the
transferee must either be the Borrower or a


 



 60















Guarantor
which has satisfied all relevant requirements of Section 6.15 and (y) a
wholly-owned Subsidiary, then the transferee must either be the Borrower or a
wholly-owned Subsidiary which has satisfied all relevant requirements of Section
6.15; and


(c)           any
Guarantor may merge with any other Person in connection with any Permitted
Acquisition, provided that the Guarantor shall be the continuing or
surviving Person or the survivor complies with all relevant requirements of Section
6.15 and shall remain a Guarantor.


7.05        Dispositions.  Make any Disposition or
enter into any agreement to make any Disposition, except:


(a)           Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;


(b)           Dispositions
of inventory in the ordinary course of business;


(c)           Dispositions
of equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or (ii)
the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement property;


(d)           Dispositions
of property by the Borrower or any Subsidiary to the Borrower or to a
wholly-owned Subsidiary which has satisfied any relevant requirements of Section
6.15; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;


(e)           Dispositions
permitted by Section 7.04;


(f)            non-exclusive
licenses of IP Rights by IP Holdco in the ordinary course of business and
substantially consistent with past practice for terms not exceeding five years;


(g)           the
lease or license of real or personal property by the Borrower and its
Subsidiaries in the ordinary course of business;


(h)           Dispositions
by the Borrower and its Subsidiaries consisting of leases and subleases of real
property solely to the extent that such real property is not necessary for the
normal conduct of operations of the Borrower and its Subsidiaries;


(i)            other
Dispositions of property by the Borrower and its Subsidiaries in the ordinary
course of business or as otherwise permitted by the Required Lenders; provided,
however, that any Disposition pursuant to clauses (a) through (i) shall
be for fair market value.


7.06        Restricted
Payments.  Declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that as long as no Default or Event
of Default is continuing or would result therefrom:


(a)           the
Borrower or any Subsidiary may make Restricted Payments (including, without
limitation, Required Joint Venture Distributions) to the Borrower and to
wholly-owned Subsidiaries (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 stock or other equity interests of such Subsidiary on a
pro rata basis based on their relative ownership interests);


(b)           the
Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common equity
interests of such Person;


(c)           the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares
of its common stock or other common equity interests or warrants or options to
acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common equity
interests; 



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(d)           the
Borrower and each Subsidiary may declare and make cash dividend payments or
other cash distributions with respect to any capital stock or the Equity
Interests of the Borrower or any Subsidiary provided that (1) no Default
or Event of Default shall have occurred and be continuing both before and after
giving effect to such dividend payment or distribution and (2) the Borrower
shall have delivered to the Administrative Agent a Compliance Certificate dated
as of the date of such dividend payment or distribution demonstrating, in form
and substance reasonably satisfactory thereto, the pro  forma
compliance, immediately before and after the date of such dividend payment or
distribution, with the Consolidated Leverage Ratio covenant contained in Section
7.14(b); and


(e)           the Borrower may repurchase, redeem, or otherwise
acquire or retire for value any shares of its common stock or its Equity
Interest; provided that (1) no Default or Event of Default shall
have occurred and be continuing both before and after giving effect to such
event and (2) other than in connection with the repurchase, redemption or other
acquisition or retirement for value of any shares of common stock of the
Borrower held by any current or former employees, directors or consultants of
the Borrower pursuant to any management equity subscription agreement,
employment agreement or stock option agreement in effect as of October 8, 2004,
the Borrower shall have delivered to the Administrative Agent a Compliance
Certificate dated as of the date of such event demonstrating, in form and
substance reasonably satisfactory thereto, the pro  forma
compliance, immediately before and after the date of such event, with the
Consolidated Leverage Ratio covenant contained in Section 7.14(b).


7.07        Limitations
on Exchange and Issuance of Capital Stock. 
Issue, sell or otherwise dispose of any class or
series of capital stock that, by its terms or by the terms of any security into
which it is convertible or exchangeable, is, or upon the happening of an event
or passage of time would be, (a) convertible or exchangeable into Indebtedness
or (b) required to be redeemed or repurchased, including at the option of the
holder, in whole or in part, or has, or upon the happening of an event or
passage of time would have, a redemption or similar payment due, unless (i) no
Default or Event of Default shall have occurred and be continuing both before
and after giving effect to such issuance, sale or disposition and (ii) the
Borrower shall have delivered to the Administrative Agent a Compliance
Certificate demonstrating, in form and substance reasonably satisfactory
thereto, the pro  forma compliance, immediately before and after
such issuance, sale or disposition, with the Consolidated Leverage Ratio
covenant contained in Section 7.14(b).


7.08        Change in Nature of Business. 
Engage in any material line of business substantially
different from (a) those lines of business conducted by the Borrower and its
Subsidiaries on the date hereof or (b) any business substantially related to
the restaurant business.


7.09        Accounting
Changes; Organizational Documents.  (a)
Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP or (b) amend, modify or change
its Organizational Documents in any manner adverse in any respect to the rights
or interests of the Lenders.


7.10        Transactions
with Affiliates.  Enter
into any transaction of any kind with any Affiliate of the Borrower, whether or
not in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be obtainable
by the Borrower or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate, provided that the foregoing
restriction shall not 



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apply to
transactions between or among the Borrower and any of its wholly-owned
Subsidiaries or between and among any wholly-owned Subsidiaries.


7.11        Burdensome
Agreements.  Enter into
any Contractual Obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to
the Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(b) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; (b) contains
covenants more restrictive than the provisions of Articles VI and VII; or (c)
requires the grant of a Lien to secure an obligation of such Person if a Lien
is granted to secure another obligation of such Person.


7.12        Use
of Proceeds.  Use the
proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.


7.13        Restrictions
on Conduct of IP Holdco. 
IP Holdco shall not (a) be permitted to have any Indebtedness, Liens,
material liabilities or material assets (other than IP Rights), including,
without limitation, a restriction on (i) the conduct of IP Holdco’s business to
holding title of all the intellectual property used in the business and
operations of the Borrower and its Subsidiaries, which such limitations and
restrictions shall be reflected in the organizational documents of IP Holdco if
requested by the Administrative Agent, in its sole discretion, and (ii) dispose
of, assign, or transfer any of its intellectual property to a third-party
during the term of this Agreement (other than non-exclusive licenses to third
parties in the ordinary course of business), (b) amend, modify or change its
Organizational Documents in any manner adverse in any respect to the rights or
interests of the Lenders or (c) terminate the License Agreement without
the consent of all of the Lenders, as acknowledged by the Administrative Agent,
unless all obligations hereunder have been repaid in full and all Commitments
hereunder have been terminated.


7.14        Financial
Covenants.


(a)           Consolidated
Fixed Charge Coverage Ratio.  As of
any Fiscal Quarter end, permit the Consolidated Fixed Charge Coverage Ratio for
the four (4) consecutive Fiscal Quarter period ending on such date to be less
than 2.00 to 1.00.


(b)           Consolidated
Leverage Ratio. As of any Fiscal Quarter end, permit the Consolidated
Leverage Ratio for the four (4) consecutive Fiscal Quarter period ending on
such date to be greater than 3.00 to 1.00.


ARTICLE 8

EVENTS OF DEFAULT AND REMEDIES


8.01        Events
of Default.  Any of the
following shall constitute an Event of Default:


(a)           Non-Payment.  The Borrower or any other Loan Party fails to
pay (i)  when and as required to be paid herein, any amount of principal
of any Loan or any L/C Obligation or deposit any fund or Cash Collateral in
respect of L/C Obligations, or (ii)  within three (3) Business Days after
the same becomes due, any interest on any Loan or on any L/C Obligation, 



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or any Commitment Fee or other fee due hereunder, or (iii)  within
five (5) days after the same becomes due, any other amount payable hereunder or
under any other Loan Document; or


(b)           Specific
Covenants.  Any Loan Party fails to
perform or observe any term, covenant or agreement contained in any of Section
6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12,
6.13, 6.15 or 6.16 or Article VII; or


(c)           Other
Defaults.  Any Loan Party fails to
perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty (30) days; or


(d)           Representations
and Warranties.  Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of any Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; or


(e)           Cross-Default.


(i)            Any Loan Party (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or


(ii)           there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from (A)
any event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or


(iii)          The Borrower or any of its
Subsidiaries shall default in the payment when due, or in the performance or
observance, of any material obligation or condition of any Material Contract
unless, but only as long as, the existence of any such default is being
contested by the Borrower or any such Subsidiary in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of the Borrower or such Subsidiary to the extent required by GAAP; or


(f)            Insolvency
Proceedings, Etc.  Any Loan Party or
any of its Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, 



 64
 









rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for sixty (60) calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for sixty (60) calendar days, or an order for relief is entered in any
such proceeding; or


(g)           Inability
to Pay Debts; Attachment.  (i) The
Borrower or any Subsidiary becomes unable or admits in writing its inability or
fails generally to pay its debts as they become due, or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not
released, vacated or fully bonded within thirty (30) days after its issue or
levy; or


(h)           Judgments.  There is entered against the Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer has not disputed
coverage), or (ii) any one or more non-monetary final judgments that have, or
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period
of thirty (30) consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or


(i)            Environmental.  The Borrower or any of its Subsidiaries shall
be subject to Environmental Liability and such liability would be reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect.


(j)            ERISA.  (i) An ERISA Event occurs with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Borrower under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount; or


(k)           Invalidity
of Loan Documents.  Any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or


(l)            Change
of Control.  There occurs any Change
of Control with respect to the Borrower.


8.02        Remedies
Upon Event of Default. 
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:


(a)           declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;



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(c)           require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable Law; provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States,
the obligation of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


8.03        Application
of Funds.  After the
exercise of remedies provided for in Section 8.02 (or after the Loans
have automatically become immediately due and payable and the L/C Obligations
have automatically been required to be Cash Collateralized as set forth in the
proviso to Section 8.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following
order:


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under Article
III) payable to the Administrative Agent in its capacity as such;


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit) payable
to the Lenders and the L/C Issuer (including fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer and amounts payable under Article
III), ratably among them in proportion to the amounts described in this
clause Second payable to them;


Third,
to payment of that portion of the Obligations constituting accrued and unpaid Letter
of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations,
ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;


Fourth,
to payment of that portion of the Obligations constituting (a) unpaid principal
of the Loans and L/C Borrowings, (b) all payments and other obligations owing
by the Borrower under any Swap Contracts, and (c) cash management or similar
treasury or custodial arrangements, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;


Fifth,
to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by Law.


Subject to Section 2.03(c), amounts used to
Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant
to clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur.  If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.



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ARTICLE 9

ADMINISTRATIVE AGENT


9.01   Appointment and Authority.   Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the L/C Issuer, and the Borrower shall not  have rights as a third party beneficiary
of any of such provisions.


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


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


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


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


(c)           shall not, except as expressly set
forth herein and in the other Loan Documents, 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 Affiliates that is communicated to or obtained by
the Person serving as the Syndication Agent or the Administrative Agent or any
of its Affiliates in any capacity.


The Syndication
Agent and the Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct.  The Syndication Agent and the Administrative
Agent shall be deemed not to have knowledge of any 



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Default unless and
until notice describing such Default is given to the Administrative Agent by
the Borrower, a Lender or the L/C Issuer.


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


9.04   Reliance by Administrative Agent.   The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


9.05   Delegation of Duties.   The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. 
The exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.


9.06   Resignation of Administrative
Agent.   The Administrative Agent may at any time
give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States.  If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrower and the Lenders that
no qualifying Person has 



 68
 









accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as L/C Issuer and Swing Line
Lender.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession
or make other arrangement satisfactory to the retiring L/C Issuer to
effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit.


9.07   Non-Reliance on Administrative
Agent and Other Lenders.   Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the
Syndication Agent and the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
the Syndication Agent and the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.


9.08   No Other Duties, Etc.   Anything
herein to the contrary notwithstanding, none of the Co-Lead Arrangers or “syndication
agent,” “documentation agent” or similar titles 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, a Lender or the L/C Issuer hereunder.


9.09   Administrative Agent May File
Proofs of Claim.   In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Loan
Party, the Administrative Agent 



 69
 









(irrespective of whether the principal of any Loan or L/C Obligation
shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise


(a)                           to file and prove a
claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and


(b)                           to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same;


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C
Issuer to make such payments to the Administrative Agent and, in the event that
the Administrative Agent shall consent to the making of such payments directly
to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 2.09 and 10.04.


Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


9.10   Guaranty Matters.   The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.


Upon request by
the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.


ARTICLE 10

MISCELLANEOUS


10.01   Amendments, Etc.   No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such amendment, waiver or
consent shall:


(a)           waive any condition set forth in Section
4.01(a) without the written consent of each Lender;



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(b)           extend or increase the Commitment of
any Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender (other than as set forth under Section
2.14);


(c)           postpone any date fixed by this
Agreement or any other Loan Document for any payment (excluding mandatory
prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;


(d)           reduce the principal of, or the rate
of interest specified herein on, any Loan or L/C Borrowing, or (subject to
clause (iv) of the second proviso to this Section 10.01) any fees or
other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby; provided, however,
that only the consent of the Required Lenders shall be necessary (i) to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to
pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;


(e)           change Section 2.13 or Section
8.03 in a manner that would alter the pro rata sharing of payments required
thereby without the written consent of each Lender;


(f)            change any provision of this Section
or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; or


(g)           release any Guarantor from the
Guaranty without the written consent of each Lender; and, provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and signed by
the L/C Issuer in addition to the Lenders required above, affect the rights or
duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver
or consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and (iv) the Fee Letters
may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


10.02      Notices;
Effectiveness; Electronic Communication.


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



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(i)                            if to the Borrower,
the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the
address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and


(ii)                           if to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire.


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


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


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


(c)           The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to the Borrower, any Lender, the L/C
Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of the
Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of 



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competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


(d)           Change of Address, Etc.  Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. 
Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.


(e)           Reliance by Administrative Agent,
L/C Issuer and Lenders.  The Administrative Agent, the L/C
Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


10.03   No Waiver; Cumulative Remedies.   No
failure by any Lender, the L/C Issuer or the Administrative Agent to exercise,
and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.


10.04   Expenses; Indemnity; Damage
Waiver.


(a)           Costs and Expenses.  The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by
the Administrative Agent, any Lender or the L/C Issuer (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), in connection with the enforcement or protection of
its rights (A) in 



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connection with
this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.


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


(c)           Reimbursement by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Administrative Agent (or
any sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).



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(d)           Waiver of Consequential Damages,
Etc.  To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any
other 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
Indemnitee referred to in subsection (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.


(e)           Payments.  All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.


(f)            Survival.  The agreements in this Section shall survive
the resignation of the Administrative Agent, the L/C Issuer and the Swing Line
Lender, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.


10.05   Payments Set Aside.   To
the extent that any payment by or on behalf of the Borrower is made to the
Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally
agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time
to time in effect.  The obligations of
the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement.


10.06   Successors and Assigns.


(a)           Successors and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not  assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, 



 75
 









the L/C Issuer and
the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


(b)           Assignments
by Lenders.  Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitment
and the Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that:


(i)            except in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, in any case, treating assignments to
two or more Approved Funds under common management as one assignment for
purposes of the minimum amounts;  unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed);


(ii)           each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans;


(iii)          any assignment of a Commitment must be
approved by the Administrative Agent, the L/C Issuer and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Lender (whether or
not the proposed assignee would otherwise qualify as an Eligible Assignee),
such consent not to be unreasonably withheld or delayed; and


(iv) (1) the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500; provided, however, that such processing and
recordation fee shall be waived by the Administrative Agent in connection with
any assignment to an Approved Fund, and (2) the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 3.01,
3.04, 3.05, and 11.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrower (at its expense)
shall execute and deliver a Note to 



 76
 









the assignee Lender. 
Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection 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 subsection (d) of this Section.


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations 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 and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by each of the Borrower
and the L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice.  In addition, at any time
that a request for a consent for a material or substantive change to the Loan
Documents is pending, any Lender wishing to consult with other Lenders in
connection therewith may request and receive from the Administrative Agent a
copy of the Register.


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Lenders
and the L/C Issuer 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, waiver or other modification described in the first proviso to Section
10.01 that affects such Participant. 
Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b)
of this Section.  To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a
Lender.


(e)           Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04  than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant
and such 



 77
 









Participant agrees, for the benefit of the Borrower,
to comply with Section 3.01(e) as though it were a Lender.


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


(g)           Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


(h)           Resignation as L/C Issuer or Swing
Line Lender after Assignment. 
Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon thirty (30) days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty (30)
days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be.  If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations
of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Committed Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). 
If Bank of America resigns as Swing Line Lender, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c).


10.07   Treatment of Certain Information;
Confidentiality.   Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the 



 78
 









enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement 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 (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, any Lender, the L/C Issuer or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrower.


For
purposes of this Section, “Information” means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided
that, in the case of information received from the Borrower or any Subsidiary
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.


Each
of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that
(a) the Information may include material non-public information concerning the
Borrower or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it will
handle such material non-public information in accordance with applicable Law,
including Federal and state securities Laws.


10.08   Right of Setoff.   If
an Event of Default shall have occurred and be continuing, each Lender, the L/C
Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Lender, the L/C Issuer or any
such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made
any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other rights
and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. 
Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of such
setoff and application.


10.09   Interest
Rate Limitation.   Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the 



 79
 









interest contracted for, charged, or received by the Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.


10.10   Counterparts; Integration;
Effectiveness.   This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.


10.11   Survival of Representations and
Warranties.   All representations and warranties
made hereunder and in any other Loan Document or other document delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. 
Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.


10.12   Severability.   If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


10.13   Replacement of Lenders.   If
any Lender requests compensation under Section 3.04, 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 3.01, or if
any Lender is a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement
and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:


(a)                           the Borrower shall
have paid to the Administrative Agent the assignment fee specified in Section
10.06(b);



 80
 









(b)                           such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 3.05) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);


(c)                           in the case of any
such assignment resulting from a claim for compensation under Section 3.04 or
payments required to be made pursuant to Section 3.01, such assignment
will result in a reduction in such compensation or payments thereafter; and


(d)                           such
assignment does not conflict with
applicable Laws.


A Lender shall not
be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


10.14   Governing Law; Jurisdiction; Etc.


(a)           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;  PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH
LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


(b)           SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA AND OF
THE UNITED STATES FOR THE WESTERN DISTRICT OF SUCH STATE, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NORTH CAROLINA STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.  NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST THE BORROWER OR ANY OTHER LOAN
PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


(c)           WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN
PARAGRAPH (B) OF THIS SECTION.  EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, 



 81
 









TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02.  NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


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


10.16   No Advisory or Fiduciary
Responsibility.   In connection with all aspects
of each transaction contemplated hereby, the Borrower each acknowledge and
agree, and acknowledge their respective Affiliates’ understanding, that: (i)
the credit facility provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower and its Affiliates, on the one
hand, and the Administrative Agent and the Co-Lead Arrangers, on the other
hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the
process leading to such transaction, the Administrative Agent and each of the
Co-Lead Arrangers is and has been acting solely as a principal and is not the
financial advisor, agent or fiduciary, for the Borrower, or any of its
Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor the Co-Lead Arrangers have assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Borrower
with respect to any of the transactions contemplated hereby or the process
leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of whether the
Administrative Agent or the Co-Lead Arrangers have advised or is currently
advising the Borrower or any of its Affiliates on other matters) and neither
the Administrative Agent nor Co-Lead Arrangers have any obligation to the
Borrower, or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; (iv) the Administrative Agent and the Co-Lead
Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Borrower, and




 82
 









its Affiliates, and neither the Administrative Agent nor any of the
Co-Lead Arrangers have any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and the Co-Lead Arrangers have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any of
the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and the Borrower has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate.  The Borrower
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent and the Co-Lead Arrangers
with respect to any breach or alleged breach of agency or fiduciary duty.


10.17   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 and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.


10.18   Time
of the Essence.   Time is of the essence of the
Loan Documents.


10.19   Amendment
and Restatement; No Novation.   This Agreement constitutes an amendment and
restatement of the Existing Credit Agreement effective from and after the
Closing Date.  The execution and delivery
of this Agreement shall not constitute a novation of any indebtedness or other
obligations owing to the Lenders or the Administrative Agent under the Existing
Credit Agreement based on facts or events occurring or existing prior to the execution and
delivery of this Agreement.  On the
Closing Date, the credit facilities described in the Existing Credit Agreement
shall be amended, supplemented, modified and restated in their entirety by the
facilities described herein, and all loans and other obligations of the
Borrower outstanding as of such date under the Existing Credit Agreement shall
be deemed to be loans and obligations outstanding under the corresponding
facilities described herein, without any further action by any Person as
described in Section 4.01(j).


10.20   Release
of Property.   On or after the Closing Date, the
Administrative Agent shall use its best efforts to release any Lien on any
property granted to or held by the Administrative Agent in connection with the
Existing Credit Agreement and any other Loan Document.


[Signature
Pages Follow]



 83














IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the date first
above written.


TEXAS ROADHOUSE, INC.,


as Borrower


By:  /s/ Scott M. Colosi                                                                       


Name:  Scott M. Colosi                                                                       


Title: Chief
Financial Officer                                                               











BANK OF AMERICA, N.A., as


Administrative Agent


By:  /s/ Anne M. Zeschke                                                                  


Name:  Anne M. Zeschke                                                                   


Title:  Assistant Vice President                                                         











BANK OF
AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender


By:  /s/ Angelo Maragos                                                                    


Name:  Angelo Maragos                                                                     


Title:  Vice President                                                                            











NATIONAL
CITY BANK, as a Lender


By:  /s/ Thomas P. Crockett                                                                


Name:  Thomas P. Crockett                                                                


Title:  Senior Vice President                                                               











JPMORGAN
CHASE BANK, N.A., as a Lender


By:  /s/ Laura Dausman                                                                       


Name:  Laura Dausman                                                                       


Title:  Vice President                                                                            











ROYAL
BANK OF CANADA, as a Lender


By:  /s/ Gordon MacArthur                                                                


Name:  Gordon MacArthur                                                                 


Title:  Auhtorized Signatory                                                               











PNC BANK,
N.A., as a Lender


By:  /s/ Shelly B. Stephenson                                                            


Name:  Shelly B. Stephenson                                                             


Title:  Vice President                                                                            











WACHOVIA BANK, NATIONAL
ASSOCIATION., as a Lender


By:  /s/ Mark S. Supple                                                                       


Name:  Mark S. Supple                                                                        


Title:  Vice President                                                                            











WELLS
FARGO BANK, N.A., as a Lender


By:  /s/ Sam Belk                                                                                  


Name:  Sam Belk                                                                                   


Title:  Senior Vice President                                                               











FIFTH
THIRD BANK, as a Lender


By:  /s/ David W. O’Neal                                                                    


Name:  David W. O’Neal                                                                     


Title:  Vice President                                                                            











U.S. BANK
NATIONAL ASSOCIATION, as a Lender


By:  /s/ David Wombwell                                                                    


Name:  David Wombwell                                                                    


Title:  Senior Vice President                                                               











OLD
NATIONAL BANK, as a Lender


By:  /s/ Leizel Miles                                                                             


Name:  Leizel Miles                                                                              


Title:  Vice President                                                                            


 
















 


EXHIBIT
A


FORM OF
COMMITTED LOAN NOTICE


Date:  ___________, _____


To:          Bank
of America, N.A., as Administrative Agent


Ladies and Gentlemen:


Reference is made to that certain Amended and Restated
Credit Agreement, dated as of May [__], 2007 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among  Texas Roadhouse, Inc.,  a Delaware
corporation (the “Borrower”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.


The undersigned hereby requests (select one):


£  A
Borrowing of Committed Loans                              £  A
conversion or continuation of Loans


1.             On
_______________________________ (a Business Day).


2.             In
the amount of $______________________.


3.             Comprised of --------------------------------------.


[Type of Committed Loan
requested]


4.             For
Eurodollar Rate Loans:  with an Interest
Period of ______ months.


The Committed Borrowing, if any, requested herein
complies with the provisos to the first sentence of Section 2.01 of the
Agreement.


	
  

  	
  TEXAS ROADHOUSE, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 



 A-1         















 


EXHIBIT
B


FORM OF
SWING LINE LOAN NOTICE


Date:  ___________, _____


To:                              Bank of America, N.A., as Swing Line
Lender

Bank of America, N.A., as Administrative Agent


Ladies and Gentlemen:


Reference is made to that certain Amended and Restated
Credit Agreement, dated as of May [__], 2007 (as
further amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Agreement;” the terms defined therein
being used herein as therein defined), among Texas Roadhouse, Inc., a Delaware
corporation (the “Borrower”), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.


The undersigned hereby requests a Swing Line Loan:


1.             On
___________________________________ (a Business Day).


2.             In
the amount of $_______________________.


The Swing Line Borrowing requested herein complies
with the requirements of the provisos to the first sentence of Section 2.04
of the Agreement.


	
  

  	
  TEXAS ROADHOUSE, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 



 B-1















 


EXHIBIT
C-1


FORM OF
COMMITTED LOAN NOTE


$[____________]                                                                                                                                                                                             May
[__], 2007


FOR VALUE RECEIVED, the undersigned (the “Borrower”)
hereby promises to pay to _____________________ or registered assigns (the “Lender”),
in accordance with the provisions of the Agreement (as hereinafter defined),
the principal amount of each Committed Loan from time to time made by the
Lender to the Borrower under that certain Amended and Restated Credit
Agreement, dated as of May [__], 2007 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among the Borrower, the
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent, L/C Issuer and Swing Line Lender.


The Borrower promises to pay interest on the unpaid
principal amount of each Committed Loan from the date of such Committed Loan
until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. 
Except as otherwise provided in Section 2.04(f) of the Agreement
with respect to Swing Line Loans, all payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent’s Office.  If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.


This Note is one of the Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of
the Guaranty.  Upon the occurrence and
continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the
Agreement.  Committed Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach schedules
to this Note and endorse thereon the date, amount and maturity of its Committed
Loans and payments with respect thereto.


The Borrower, for itself, its successors and assigns,
hereby waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and non-payment of this Note.


(Signature Page
Follows)



 C-1          
 









THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.


	
  

  	
  TEXAS ROADHOUSE, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Scott M. Colosi

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title

  	
  Chief Financial
  Officer

  	
   

  	
   

  



 



 C-2          
 









LOANS AND
PAYMENTS WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of Loan

  Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of 

  Interest Period

  	
   

  	
  Amount of 

  Principal or

  Interest Paid

  This Date

  	
   

  	
  Outstanding

  Principal Balance

  This Date

  	
   

  	
  Notation

  Made By

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  
	
  ________

  	
   

  	
  ________

  	
   

  	
  _________

  	
   

  	
  _______

  	
   

  	
  _________

  	
   

  	
  __________

  	
   

  	
  ________

  



 



 C-3          















 


EXHIBIT
C-2


SWING LINE LOAN NOTE


$20,000,000.00                                                                                                                                                                                                                    May
[__], 2007


FOR VALUE RECEIVED, the undersigned (the “Borrower”),
hereby promises to pay to BANK OF AMERICA, N.A. or registered assigns (the “Swing
Line Lender”), in accordance with the provisions of the Agreement (as
hereinafter defined), the principal amount of each Swing Line Loan from time to
time made by the Swing Line Lender to the Borrower under that certain Amended
and Restated Credit Agreement, dated as of May [__], 2007 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein
defined), among the Borrower, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line
Lender.


The Borrower promises to pay interest on the unpaid
principal amount of each Swing Line Loan from the date of such Swing Line Loan
until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement.  All
payments of principal and interest shall be made to the Swing Line Lender for
the account of the Swing Line Lender in Dollars in immediately available funds
at the Swing Line Lender’s Office.  If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.


This Note is one of the Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of
the Guaranty agreements.  Upon the
occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note shall become,
or may be declared to be, immediately due and payable all as provided in the
Agreement.  Swing Line Loans made by the
Swing Line Lender shall be evidenced by one or more loan accounts or records
maintained by the Swing Line Lender in the ordinary course of business. The
Swing Line Lender may also attach schedules to this Note and endorse thereon
the date, amount and maturity of its Swing Line Loans and payments with respect
thereto.


The Borrower, for itself, its successors and assigns,
hereby waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and non-payment of this Note.


(Signature Page
Follows)



 C-4
 Form of Note
 









 


THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.


	
  

  	
   

  	
  TEXAS ROADHOUSE, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  




 C-5
 Form of Note
 









SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO


	
  Date

  	
   

  	
  Type of 

  Loan Made

  	
   

  	
  Amount of 

  Loan Made

  	
   

  	
  End of 

  Interest 

  Period

  	
   

  	
  Amount of 

  Principal or

  Interest

  Paid This

   Date

  	
   

  	
  Outstanding

  Principal

  Balance

  This Date

  	
   

  	
  Notation 

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 



 C-6
 Form of Note















 


EXHIBIT
D


FORM OF
COMPLIANCE CERTIFICATE


Financial Statement Date:
___             ,____


To:          Bank
of America, N.A., as Administrative Agent


Ladies and Gentlemen:


Reference is made to that certain Amended and Restated
Credit Agreement, dated as of May [__], 2007 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the “Agreement;” the terms defined therein being used
herein as therein defined), among Texas Roadhouse, Inc., a Delaware corporation
(the “Borrower”), the Lenders from time to time party thereto, and Bank
of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.


The undersigned Responsible Officer hereby certifies
as of the date hereof that he/she is the                                                                                             of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent
on the behalf of the Borrower, and that:


[Use following paragraph 1 for fiscal year-end financial statements]


1.             Attached
hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the
Borrower ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.


[Use following paragraph 1 for fiscal quarter-end financial statements]


1.             Attached
hereto as Schedule 1 are the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of
the above date.  Such financial
statements fairly present the financial condition, results of operations and
cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at
such date and for such period, subject only to normal year-end audit
adjustments and the absence of footnotes.


2.             The
undersigned has reviewed and is familiar with the terms of the Agreement and
has made, or has caused to be made under his/her supervision, a detailed review
of the transactions and condition (financial or otherwise) of the Borrower
during the accounting period covered by the attached financial statements.


3.             A
review of the activities of the Borrower during such fiscal period has been
made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower performed and observed all its
Obligations under the Loan Documents, and


[select
one:]



 D-1
 Form of Compliance Certificate
 









 


[to the best
knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to
it, and no Default has occurred and is continuing.]


—or—


[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and status:]


4.             The
representations and warranties of the Borrower contained in Article V of
the Agreement, and any representations and warranties of any Loan Party that
are contained in any document furnished at any time under or in connection with
the Loan Documents, are true and correct on and as of the date hereof, except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Compliance Certificate, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 of the Agreement shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 of the Agreement, including the statements in connection with which
this Compliance Certificate is delivered.


5.             The
financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this
Certificate.


(Signature Page
Follows)



 D-2
 Form of Compliance Certificate
 









 


IN WITNESS WHEREOF, the undersigned has executed this Certificate as 

of                                            ,
                              .


	
  

  	
   

  	
  TEXAS ROADHOUSE, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 



 D-3
 Form of Compliance Certificate















 


SCHEDULE
1


[FINANCIAL
STATEMENTS TO BE ATTACHED]


 



 D-4
 Form of Compliance Certificate















 


For the Quarter/Year
ended ___________________(“Statement Date”)


SCHEDULE
2

to the Compliance
Certificate

($ in 000’s)


	
  I.

  	
  Section 7.14(a) — Consolidated Fixed Charge
  Coverage Ratio

  	
   

  
	
  A.  

  	
  Consolidated EBITR for four consecutive Fiscal Quarters ending on
  above date (“Subject Period”):

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated Net Income for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Consolidated Interest Charges for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Provision for income taxes for Subject Period: 

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Consolidated Rental Expense for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Non-cash expense attributable to the grant of stock
  options or restricted stock to employees, directors or consultants for
  Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Consolidated EBITR (I.A.1 + I.A.2 + I.A.3 + I.A.4 +
  I.A.5):

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
  B.  

  	
  Consolidated Fixed Charges for Subject Period

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated Interest Charges for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Consolidated Rental Expense for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Consolidated Fixed Charges (I.B.1 + I.B.2):

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
  C.  

  	
  Consolidated Fixed Charge Coverage Ratio (I.A.6 ÷
  I.B.3):

  	
  _______ to 1.00

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum Required:

  	
  2.00 to 1.00

  
	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  Section 7.14 (b) — Consolidated Leverage Ratio.

  	
   

  
	
   

  	
   

  	
   

  
	
  A.  

  	
  Consolidated Adjusted Funded Indebtedness:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Outstanding principle amount of all obligations at
  Statement Date:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  All purchase money Indebtedness:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  All direct obligations under letters of credit,
  bankers acceptances, bank guaranties, and similar instruments:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  All obligations in respect of deferred purchase
  price of property or services:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Attributable Indebtedness in respect of capital
  leases:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  All obligations of any Person to purchase, redeem,
  retire, defease or otherwise make any payment in respect of any Equity
  Interest in such Person or any other Person, valued, in the case of a
  redeemable preferred interest, at the greater of its voluntary or involuntary
  liquidation preference plus accrued and unpaid dividends:

  	
   

  




 D-5
 









 


	
  

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  All Guarantees with respect to outstanding
  Indebtedness of the types referred to in Lines II.A.1 through II.A.6 above:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  All Indebtedness of the types referred to in Lines
  II.A.1 through II.A.7 above of any partnership or joint venture involving the
  Borrower (other than a joint venture that is itself a corporation or limited
  liability company) which such partnership or joint venture is not a direct or
  indirect Subsidiary of the Borrower, in which the Borrower or a Subsidiary is
  a general partner or joint venturer, unless such Indebtedness is expressly
  made non-recourse to the Borrower or such Subsidiary:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  An amount equal to the product of eight (8) times
  Consolidated Rental Expense for Subject Period (excluding up to $5,000,000 of
  Consolidated Rental Expense attributable to equipment leases):

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Consolidated Adjusted Funded Indebtedness (Lines
  II.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 + 9):

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
  B.  

  	
  Consolidated EBITDAR for Subject Period:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated EBITR for Subject Period (Line I.A.6):

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Depreciation expenses for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Amortization expenses for Subject Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Consolidated EBITDAR (Lines II.B.1 + II.B.2 +
  II.B.3):

  	
  $ __________

  
	
   

  	
   

  	
   

  	
   

  
	
  C.  

  	
  Consolidated New Unit Pre-Opening Costs for Subject
  Period:

  	
  $ __________

  
	
   

  	
   

  	
   

  
	
  D.  

  	
  Consolidated Leverage Ratio (Line II.A.10 ÷ (Line
  II.B.4 + Line II.C):

  	
  _______ to 1.00

  
	
   

  	
  Maximum Allowed:

  	
  3.00 to 1.00

  



 



 D-6















 


EXHIBIT
E


ASSIGNMENT
AND ASSUMPTION


This Assignment and Assumption (this “Assignment
and Assumption”) is dated as of the Effective Date set forth below and is
entered into by and between [the][each]1 Assignor identified in item 1 below
([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below
([the][each, an] “Assignee”).  [It
is understood and agreed that the rights and obligations of [the Assignors][the
Assignees]3 hereunder are several and not joint.]4  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below (the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


For an agreed consideration, [the][each] Assignor
hereby irrevocably sells and assigns to [the Assignee][the respective
Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes
from [the Assignor][the respective Assignors], subject to and in accordance
with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i)
all of [the Assignor’s][the respective Assignors’] rights and obligations in
[its capacity as a Lender][their respective capacities as Lenders] under the
Credit Agreement and any other documents or instruments delivered pursuant
thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of [the Assignor][the
respective Assignors] under the respective facilities identified below
(including, without limitation, the Letters of Credit and the Swing Line Loans
included in such facilities5) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii)
above being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any]
Assignor.


1.             Assignor[s]:          ______________________________


______________________________






1 For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. 
If the assignment is from multiple Assignors, choose the second
bracketed language.


2 For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. 
If the assignment is to multiple Assignees, choose the second bracketed
language.


3 Select as appropriate.


4 Include bracketed language if there are either
multiple Assignors or multiple Assignees.


5 Include all applicable subfacilities.


 



 E-1
 









2.             Assignee[s]:         ______________________________


______________________________


[for each Assignee, indicate [Affiliate][Approved
Fund] of [identify Lender]]


3.             Borrower:               Texas Roadhouse, Inc.


4.             Administrative
Agent: Bank of America, N.A.


5.             Credit
Agreement:                Amended and
Restated Credit Agreement, as amended, dated as of May [__], 2007, among Texas
Roadhouse, Inc., as Borrower, the Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line
Lender


6.             Assigned
Interest[s]:


	
  Assignor[s] 6

  	
   

  	
  Assigneee[s] 7

  	
   

  	
  Facility

  Assigned 8

  	
   

  	
  Aggregate

  Amount of

  commitment/

  Loans for all

  Lenders 9

  	
   

  	
  Amount of

  Commitment/

  Loans Assigned

  	
   

  	
  Percentage

  Assigned of 

  Commitment/

  Loans10

  	
   

  	
  CUSIP

  Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $_________

  	
   

  	
  $_________

  	
   

  	
  _______%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $_________

  	
   

  	
  $_________

  	
   

  	
  _______%

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $_________

  	
   

  	
  $_________

  	
   

  	
  _______%

  	
   

  	
   

  



 


 [7.           Trade Date:           __________________]11


Effective Date: __________________, 20__ [TO BE
INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


The terms set forth in this Assignment and Assumption
are hereby agreed to:


ASSIGNOR

[NAME OF ASSIGNOR] 





 






6 List each Assignor, as appropriate.


7 List each Assignee, as appropriate.


8 Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g. “Revolving Credit Commitment”, etc.).


9 Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.


10 Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.


11 To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.


 



 E-2
 









By: _____________________________


Title:


ASSIGNEE


[NAME OF ASSIGNEE] 





By: _____________________________


Title:


Consented to and Accepted:


BANK OF AMERICA, N.A., as
                 Administrative
Agent


By: _________________________________


      Title:


TEXAS ROADHOUSE, INC.


By:
_________________________________


      Title:


 



 E-3















 


ANNEX
1 TO ASSIGNMENT AND ASSUMPTION


AMENDED AND
RESTATED CREDIT AGREEMENT


TEXAS  ROADHOUSE, INC.


STANDARD TERMS AND
CONDITIONS FOR


ASSIGNMENT AND
ASSUMPTION


1.             Representations
and Warranties.


1.1.          Assignor.  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][[the relevant]
Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
collateral thereunder, (iii) the financial condition of the Borrower, any of
its Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


1.2.          Assignee.  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section
10.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of [the][the relevant] Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by [the][such]
Assigned Interest and either it, or the Person exercising discretion in making
its decision to acquire [the][such] Assigned Interest, is experienced in
acquiring assets of such type, (v) it has received a copy of the Credit
Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section __
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi)
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached hereto is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance upon the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in



 E-4
 









accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


2.             Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.


3.             General
Provisions.  This Assignment and
Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by telecopy
shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of North Carolina.


 



 E-5















 


EXHIBIT
F


AMENDED AND RESTATED
GUARANTY


THIS AMENDED AND RESTATED
GUARANTY, dated May [   ],
2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Guaranty”) is
executed by each of the undersigned Guarantors (whether one or more, the
“Guarantor”, and if more than one jointly and severally)  for
value received, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to TEXAS ROADHOUSE, INC., a
Delaware corporation (the “Borrower”) for the benefit of the Borrower
and its Subsidiaries pursuant to that certain Amended and Restated Credit
Agreement dated May [   ], 2007 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), between the Borrower, each lender
party thereto (collectively, the “Lenders”) and BANK OF AMERICA, N.A.,
as administrative agent for the Lenders thereunder (the “Administrative
Agent”), and each Guarantor hereby furnishes its guaranty of the Guaranteed
Obligations (as hereinafter defined) as follows:


1.             Guaranty.  The Guarantor hereby absolutely and
unconditionally guarantees, as a guaranty of payment and performance and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and
at all times thereafter, of all “Obligations” as defined in the Credit
Agreement, and any and all existing and future indebtedness and liabilities of
every kind, nature and character, direct or indirect, absolute or contingent,
liquidated or unliquidated, voluntary or involuntary and whether for principal,
interest, premiums, fees, indemnities, damages, costs, expenses or otherwise,
of the Borrower to the Administrative Agent and the Lenders arising under the
Credit Agreement and all instruments, agreements and other documents of every
kind and nature now or hereafter executed in connection with the Credit
Agreement (including all renewals, extensions and modifications thereof and all
costs, attorneys’ fees and expenses incurred by the Administrative Agent and the Lenders in
connection with the collection or enforcement thereof), and whether recovery
upon such indebtedness and liabilities may be or hereafter become unenforceable
or shall be an allowed or disallowed claim under any proceeding or case
commenced by or against the Guarantor or the Borrower under the Bankruptcy Code
(Title 11, United States Code), any successor statute or any other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States or other applicable jurisdictions from time
to time in effect and affecting the rights of creditors generally
(collectively, “Debtor Relief Laws”), and including interest that
accrues after the commencement by or against the Borrower of any proceeding
under any Debtor Relief Laws (collectively, the “Guaranteed Obligations”).  The Administrative Agent’s and each of the
Lender’s books and records showing the amount of the Guaranteed Obligations
shall be admissible in evidence in any action or proceeding, and shall be
binding upon the Guarantor and conclusive for the purpose of establishing the
amount of the Guaranteed Obligations. 
This Guaranty shall not be affected by the genuineness, validity,
regularity or enforceability of the Guaranteed Obligations or any instrument or
agreement evidencing any Guaranteed Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor, or by any
fact or circumstance relating to the Guaranteed Obligations which might
otherwise constitute a defense to the obligations of the Guarantor under this
Guaranty, and the Guarantor hereby irrevocably 



 F-1
 









waives any defenses it
may now have or hereafter acquire in any way relating to any or all of the
foregoing..  The obligations of the
Guarantor hereunder shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the
Bankruptcy Code (Title 11, United States Code) or any comparable provisions of
any similar federal or state law.  


2.             No Setoff or Deductions;
Taxes.  The Guarantor represents and warrants
that it is incorporated or formed and a resident in the United States of
America.  All payments by the Guarantor
hereunder shall be paid in full, without setoff or counterclaim or any
deduction or withholding whatsoever, including, without limitation, for any and
all present and future taxes.  If the
Guarantor must make a payment under this Guaranty, the Guarantor represents and
warrants that it will make the payment from one of its U.S. resident offices to
the Lender so that no withholding tax is imposed on the payment.  If notwithstanding the foregoing, the
Guarantor makes a payment under this Guaranty to which withholding tax applies,
or any taxes (other than taxes on net income (a) imposed by the country or any
subdivision of the country in which the Administrative Agent’s or any of the
Lender’s principal office or actual lending office is located and (b) measured
by the United States taxable income the Administrative Agent and the Lenders
would have received if all payments under or in respect of this Guaranty were
exempt from taxes levied by the Guarantor’s country) are at any time imposed on
any payments under or in respect of this Guaranty including, but not limited
to, payments made pursuant to this Paragraph 2, the Guarantor shall pay all
such taxes to the relevant authority in accordance with applicable law such
that the Administrative Agent and the Lenders receives the sum they would have
received had no such deduction or withholding been made and shall
also pay to the Administrative
Agent and the Lenders, on demand, all additional amounts which
the Administrative Agent and the
Lenders specify as necessary to preserve the after-tax yield the Administrative Agent and the Lenders
would have received if such taxes had not been imposed.


The Guarantor shall
promptly provide the Administrative Agent with an original receipt or certified
copy issued by the relevant authority evidencing the payment of any such amount
required to be deducted or withheld.


3.             No Termination.  This Guaranty is a continuing and irrevocable
guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly paid and performed in full
and any commitments of the Administrative
Agent and the Lenders or facilities provided by the Administrative Agent and the Lenders
with respect to the Guaranteed Obligations are terminated.  At the Administrative Agent’s option, all
payments under this Guaranty shall be made to an office of  the Administrative Agent located in the
United States and in U.S. Dollars.


4.             Rights of Administrative Agent and  Lenders.  The
Guarantor consents and agrees that the Administrative Agent and the Lenders
may, at any time and from time to time, without notice or demand, and without
affecting the enforceability or continuing effectiveness hereof:  (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of
the Guaranteed Obligations or any part thereof; (b) take, hold, exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
security for the payment of this Guaranty or any Guaranteed Obligations; (c)
apply such security and direct the order or manner of sale thereof as the
Lender in its sole discretion may determine; and (d) release or substitute one
or more of any endorsers or other guarantors of any of the Guaranteed
Obligations.  Without limiting the
generality of the foregoing, the Guarantor consents to the taking of, or 



 F-2
 









failure to take, any
action which might in any manner or to any extent vary the risks of the
Guarantor under this Guaranty or which, but for this provision, might operate
as a discharge of the Guarantor.


5.             Subrogation.  The Guarantor shall exercise no right of
subrogation, contribution or similar rights with respect to any payments it
makes under this Guaranty until all of the Guaranteed Obligations and any
amounts payable under this Guaranty are indefeasibly paid and performed in full
and any commitments of the Administrative Agent and the Lenders or facilities
provided by the Administrative Agent and the Lenders with respect to the
Guaranteed Obligations are terminated. 
If any amounts are paid to the Guarantor in violation of the foregoing
limitation, then such amounts shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent and the Lenders to reduce the amount of the Guaranteed
Obligations, whether matured or unmatured.


6.             Certain Waivers.  The Guarantor waives (a) any defense arising
by reason of any disability or other defense of the Borrower or any other
guarantor, or the cessation from any cause whatsoever (including any act or
omission of the Lender) of the liability of the Borrower; (b) any defense based
on any claim that the Guarantor’s obligations exceed or are more burdensome
than those of the Borrower; (c) the benefit of any statute of limitations
affecting the Guarantor’s liability hereunder; (d) any right to require the
Administrative Agent or the Lenders to proceed against the Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in the Administrative Agent’s or Lender ‘s power whatsoever; (e) any
benefit of and any right to participate in any security now or hereafter held
by the Administrative Agent or the Lenders; and (f) to the fullest extent
permitted by law, any and all other defenses or benefits that may be derived
from or afforded by applicable law limiting the liability of or exonerating
guarantors or sureties.  The Guarantor
expressly waives all setoffs and counterclaims and all presentments, demands
for payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands of any
kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices
of acceptance of this Guaranty or of the existence, creation or incurrence of
new or additional Guaranteed Obligations. 


7.             Exhaustion of Other Remedies Not Required.  The obligations of the Guarantor hereunder
are those of primary obligor, and not merely as surety, and are independent of
the Guaranteed Obligations.  The
Guarantor waives diligence by the Administrative Agent or the Lenders and
action on delinquency in respect of the Guaranteed Obligations or any part
thereof, including, without limitation any provisions of law requiring the
Administrative Agent or the Lenders to exhaust any right or remedy or to take
any action against the Borrower, any other guarantor or any other person,
entity or property before enforcing this Guaranty against the Guarantor,
including but not limited to the benefits of N.C. General Statutes §§ 26-7
through 26-9 inclusive, as amended, or any similar statute.


8.             Reinstatement.  Notwithstanding anything in this Guaranty to
the contrary, this Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of the
Borrower or any other person or entity or otherwise, as if such payment had not
been made and whether or not the Administrative Agent or the Lenders are in
possession of 



 F-3
 









or has released this
Guaranty and regardless of any prior revocation, rescission, termination or
reduction.  


9.             Subordination.  The
Guarantor hereby subordinates the payment of all obligations and indebtedness
of the Borrower owing to the Guarantor, whether now existing or hereafter
arising, including but not limited to any obligation of the Borrower to the
Guarantor as subrogee of the Administrative Agent and the Lenders or resulting
from the Guarantor’s performance under this Guaranty, to the indefeasible
payment in full of all Guaranteed Obligations. If the Administrative Agent so
requests, any such obligation or indebtedness of the Borrower to the Guarantor
shall be enforced and performance received by the Guarantor as trustee for the
Administrative Agent and the Lenders and the proceeds thereof shall be paid
over to the Administrative Agent and the Lenders on account of the Guaranteed
Obligations, but without reducing or affecting in any manner the liability of
the Guarantor under this Guaranty.


10.          Information.  The
Guarantor agrees to furnish promptly to the Administrative Agent any and all
financial or other information regarding the Guarantor or its property as the
Administrative Agent may reasonably request in writing.


11.          Stay of Acceleration.  In the event that
acceleration of the time for payment of any of the Guaranteed Obligations is
stayed in connection with any case commenced by or against the Guarantor or the
Borrower or under any Debtor Relief Laws, or otherwise, all such amounts shall
nonetheless be payable by the Guarantor immediately upon demand by the Administrative
Agent. 


12.          Expenses.  The Guarantor shall pay on demand all
out-of-pocket expenses (including reasonable attorneys’ fees and expenses and
the allocated cost and disbursements of internal legal counsel) in any way
relating to the enforcement or protection of the Administrative Agent’s and
each of the Lender’s rights under this Guaranty, including any incurred in the
preservation, protection or enforcement of any rights of the Lender in any case
commenced by or against the Guarantor under the Bankruptcy Code (Title 11,
United States Code) or any similar or successor statute.  The obligations of the Guarantor under the
preceding sentence shall survive termination of this Guaranty.


13.          Amendments.  No provision of this Guaranty may be waived,
amended, supplemented or modified, except by a written instrument executed by
the Administrative Agent and the Guarantor. 



14.          No Waiver; Enforceability.  No failure by the Administrative Agent or the
Lenders to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy or power  hereunder
preclude any other  or further
exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law or in equity.  The unenforceability or invalidity of any
provision of this Guaranty shall not affect the enforceability or validity of
any other provision herein. 


15.          Assignment; Governing Laws; Jurisdiction.  This Guaranty shall (a) bind the Guarantor
and its successors and assigns, provided that the Guarantor may not
assign its rights or obligations under this Guaranty without the prior written
consent of the Administrative Agent (and any attempted assignment without such
consent shall be void), (b) inure to the benefit of the Administrative Agent or
the Lenders and their successors and assigns and the Administrative Agent or
the Lenders may, without notice to the Guarantor and without affecting the
Guarantor’s obligations hereunder, assign or sell their participations in the
Guaranteed Obligations and this Guaranty, in whole or in part, and (c) be
governed by the 



 F-4
 









internal laws of the
State of North Carolina.  The Guarantor
hereby irrevocably (i) submits to the non-exclusive jurisdiction of any
United States Federal or State court sitting in Charlotte, North Carolina  in any action or proceeding arising out of or
relating to this Guaranty, and (ii) waives to the fullest extent permitted by
law any defense asserting an inconvenient forum in connection therewith.  Service of process by the Administrative
Agent or the Lenders in connection with such action or proceeding shall be
binding on the Guarantor if given in accordance with Section 10.02 of the
Credit Agreement.  The Guarantor agrees
that the Administrative Agent or the Lenders may disclose to any prospective
purchaser and any purchaser of all or part of the Guaranteed Obligations any
and all information in the Administrative Agent’s or the Lender’s possession
concerning the Guarantor, this Guaranty and any security for this Guaranty.


16.          Condition of the Borrower.  The Guarantor acknowledges and agrees that it
has the sole responsibility for, and has adequate means of, obtaining from the
Borrower such information concerning the financial condition, business and
operations of the Borrower as the Guarantor requires, and that the
Administrative Agent and the Lenders have no duty, and the Guarantor is not
relying on the Administrative Agent or the Lenders at any time, to disclose to
the Guarantor any information relating to the business, operations or financial
condition of the Borrower.


17.          Setoff. 
If and to the extent any payment is not made when due hereunder, the
Administrative Agent or the Lenders may setoff and charge from time to time any
amount so due against any or all of the Guarantor’s accounts or deposits with
the Administrative Agent or the Lenders.


18.          Indemnification and Survival.  Without limitation on any
other obligations of the Guarantor or remedies of the Administrative Agent
under this Guaranty, the Guarantor shall, to the fullest extent permitted by
law, indemnify, defend and save and hold harmless the Administrative Agent from
and against, and shall pay on demand, any and all damages, losses, liabilities
and expenses (including attorneys’ fees and expenses and the allocated cost and
disbursements of internal legal counsel) that may be suffered or incurred by
the Administrative Agent in connection with or as a result of any failure of
any Guaranteed Obligations to be the legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
terms.  The obligations of the Guarantor
under this paragraph shall survive termination of this Guaranty.


19.          Representations and Warranties.  The Guarantor represents and warrants that
(a) it is duly organized and in good standing under the laws of the
jurisdiction of its organization and has full capacity and right to make and
perform this Guaranty, and all necessary authority has been obtained; (b) this
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (c) the making and performance of this Guaranty does
not and will not violate the provisions of any applicable law, regulation or
order, and does not and will not result in the breach of, or constitute a
default or require any consent under, any material agreement, instrument, or
document to which it is a party or by which it or any of its property may be bound
or affected; (d) all consents, approvals, licenses and authorizations of, and
filings and registrations with, any governmental authority required under
applicable law and regulations for the making and performance of this Guaranty
have been obtained or made and are in full force and effect; (e) by virtue of
its relationship with the Borrower, the execution, delivery and performance of
this Guaranty is for the direct benefit of the Guarantor and it has received
adequate consideration for this Guaranty; and (f) the financial information,
that has 



 F-5
 









been delivered to the
Administrative Agent and the Lenders by or on behalf of the Guarantor, is
complete and correct in all respects and accurately presents the financial
condition and the operational results of the Guarantor and since the date of
the most recent financial statements delivered to the Administrative Agent and
the Lenders, there has been no material adverse change in the financial
condition or operational results of the Guarantor.


20.          WAIVER OF JURY TRIAL; FINAL AGREEMENT.  TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE
GUARANTOR AND THE ADMINISTRATIVE AGENT EACH WAIVE TRIAL BY JURY WITH RESPECT TO
ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS GUARANTY.  THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.


21.          Limitations.   Notwithstanding anything herein to
the contrary, under no circumstances shall the maximum aggregate liability of
the Guarantor hereunder exceed the amount of the Aggregate Commitments, plus
payment of interest accruing on the guaranteed indebtedness, and fees, charges
and costs of collecting the guaranteed indebtedness, including reasonable
attorneys' fees.  Further this Guaranty
shall terminate on the Maturity Date; provided, however, the
termination of this Guaranty on said date shall not affect the liability of the
Guarantor with respect to obligations created or incurred prior to said date,
or extensions or renewals of, interest accruing on, or fees, costs or expenses
incurred with respect to obligations on or after said date.


 


(Signature Page
Follows)



 F-6
 









In
Witness Whereof, each of the undersigned hereby causes this Guaranty to
be executed and delivered as of the date first above written.


 


	
  

  	
  Texas Roadhouse Development Corporation

  
	
   

  	
  Texas Roadhouse Management Corp.

  
	
   

  	
  Aspen Steaks Exchange Subsidiary, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-7
 









 


	
  

  	
  Armadillo, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-8
 









 


	
  

  	
  Aspen Steaks, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-9
 









 


	
  

  	
  Texas Roadhouse of Gainesville Inc., I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-10
 









 


	
  

  	
  Roadhouse Enterprises, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-11
 









 


	
  

  	
  Texas Roadhouse Holdings LLC

  
	
   

  	
  Texas Roadhouse of Texas, LLC

  
	
   

  	
  By: Texas
  Roadhouse, Inc., their manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



 F-12
 









 


	
  

  	
  Longview Roadhouse II, Ltd.

  
	
   

  	
  Roadhouse Holdings of Texas, Ltd.

  
	
   

  	
  Texas Roadhouse of Abilene, Ltd.

  
	
   

  	
  Texas Roadhouse of Amarillo, Ltd.

  
	
   

  	
  Texas Roadhouse of Austin-Northwest, Ltd.

  
	
   

  	
  Texas Roadhouse of Bedford, Ltd.

  
	
   

  	
  Texas Roadhouse of College Station, Ltd.

  
	
   

  	
  Texas Roadhouse of Conroe, Ltd.

  
	
   

  	
  Texas Roadhouse of Corpus Christi, Ltd.

  
	
   

  	
  Texas Roadhouse of Denton, Ltd.

  
	
   

  	
  Texas Roadhouse of El Paso, Ltd.

  
	
   

  	
  Texas Roadhouse of El Paso-West, Ltd.

  
	
   

  	
  Texas Roadhouse of Fort Worth, Ltd.

  
	
   

  	
  Texas Roadhouse of Friendswood, Ltd.

  
	
   

  	
  Texas Roadhouse of Grand Prairie, Ltd.

  
	
   

  	
  Texas Roadhouse of Houston, Ltd.

  
	
   

  	
  Texas Roadhouse of Killeen, Ltd.

  
	
   

  	
  Texas Roadhouse of Live Oak, Ltd.

  
	
   

  	
  Texas Roadhouse of Lubbock, Ltd.

  
	
   

  	
  Texas Roadhouse of McAllen, Ltd.

  
	
   

  	
  Texas Roadhouse of Mesquite, Ltd.

  
	
   

  	
  Texas Roadhouse of Odessa, Ltd.

  
	
   

  	
  Texas Roadhouse of Pasadena, Ltd.

  
	
   

  	
  Texas Roadhouse of San Angelo, Ltd.

  
	
   

  	
  Texas Roadhouse of San Antonio, Ltd.

  
	
   

  	
  Texas Roadhouse of Sherman, Ltd.

  
	
   

  	
  Texas Roadhouse of Texarkana, Ltd.

  
	
   

  	
  Texas Roadhouse of Tyler, Ltd.

  
	
   

  	
  Texas Roadhouse of Victoria, Ltd.

  
	
   

  	
  Texas Roadhouse of Waco, Ltd.

  
	
   

  	
  Texas Roadhouse of Wichita Falls, Ltd.

  
	
   

  	
  Texas Roadhouse of Austin, Ltd.

  
	
   

  	
  Texas Roadhouse of Austin-North, Ltd.

  
	
   

  	
  Texas Roadhouse of Mansfield, Ltd.

  
	
   

  	
  By: Texas
  Roadhouse Holdings LLC, their general partner

  
	
   

  	
  By: Texas
  Roadhouse, Inc., its manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 



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  Texas Roadhouse Delaware, LLC

  
	
   

  	
  Texas Roadhouse Louisville I LLC

  
	
   

  	
  Texas Roadhouse of Boise, LLC

  
	
   

  	
  Texas Roadhouse of Cedar Falls, LLC

  
	
   

  	
  Texas Roadhouse of Cheyenne, LLC

  
	
   

  	
  Texas Roadhouse of Decatur, LLC

  
	
   

  	
  Texas Roadhouse of Dixie Highway, LLC

  
	
   

  	
  Texas Roadhouse of East Peoria, LLC

  
	
   

  	
  Texas Roadhouse of Elkhart, LLC

  
	
   

  	
  Texas Roadhouse of Elyria, LLC

  
	
   

  	
  Texas Roadhouse of Fort Wayne, LLC

  
	
   

  	
  Texas Roadhouse of Grand Junction, LLC

  
	
   

  	
  Texas Roadhouse of Lancaster, LLC

  
	
   

  	
  Texas Roadhouse of Lansing, LLC

  
	
   

  	
  Texas Roadhouse of Lynchburg, LLC

  
	
   

  	
  Texas Roadhouse of New Philadelphia, LLC

  
	
   

  	
  Texas Roadhouse of Richmond, LLC

  
	
   

  	
  Texas Roadhouse of Roseville, LLC

  
	
   

  	
  Texas Roadhouse of Jacksonville, NC, LLC

  
	
   

  	
  Texas Roadhouse of Lancaster, OH, LLC

  
	
   

  	
  Texas Roadhouse of Parker, LLC

  
	
   

  	
  Texas Roadhouse of Stillwater, OK, LLC

  
	
   

  	
  By: Texas
  Roadhouse Holdings LLC, their manager

  
	
   

  	
  By: Texas
  Roadhouse, Inc., its manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 



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