Filed by Bowne Pure Compliance



 




Exhibit 10.27



 







CREDIT AGREEMENT



dated as of



August 31, 2007



among



P.F. CHANG’S CHINA BISTRO, INC.



The Lenders Party Hereto



and



JPMORGAN CHASE BANK, N.A.

as Administrative Agent



BANK OF AMERICA, N.A.

as Syndication Agent



and



WELLS FARGO BANK, NATIONAL ASSOCIATION

as Documentation Agent



JP MORGAN SECURITIES INC.

as Sole Bookrunner and Sole Lead Arranger



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I  Definitions	 	 	1	 
	Section 1.01

	 	Defined Terms
	 	 	1	 
	Section 1.02

	 	Classification of Loans and Borrowings
	 	 	15	 
	Section 1.03

	 	Terms Generally
	 	 	15	 
	Section 1.04

	 	Accounting Terms; GAAP
	 	 	16	 
	 
	 	 	 	 	 	 
	ARTICLE II  The Credits	 	 	16	 
	Section 2.01

	 	Revolving Loan Commitments
	 	 	16	 
	Section 2.02

	 	Loans and Borrowings
	 	 	16	 
	Section 2.03

	 	Requests for Revolving Borrowings
	 	 	17	 
	Section 2.04

	 	[Intentionally left blank]
	 	 	17	 
	Section 2.05

	 	Swingline Loans
	 	 	17	 
	Section 2.06

	 	Letters of Credit
	 	 	19	 
	Section 2.07

	 	Funding of Borrowings
	 	 	22	 
	Section 2.08

	 	Interest Elections
	 	 	23	 
	Section 2.09

	 	Termination, Reduction and Increase of Revolving Loan Commitments
	 	 	24	 
	Section 2.10

	 	Repayment of Loans; Evidence of Debt
	 	 	25	 
	Section 2.11

	 	Prepayment of Loans
	 	 	26	 
	Section 2.12

	 	Fees
	 	 	26	 
	Section 2.13

	 	Interest
	 	 	27	 
	Section 2.14

	 	Alternate Rate of Interest
	 	 	28	 
	Section 2.15

	 	Increased Costs
	 	 	29	 
	Section 2.16

	 	Break Funding Payments
	 	 	30	 
	Section 2.17

	 	Taxes
	 	 	30	 
	Section 2.18

	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	33	 
	Section 2.19

	 	Mitigation Obligations; Replacement of Lenders
	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE III  Representations and Warranties	 	 	34	 
	Section 3.01

	 	Organization; Powers
	 	 	34	 
	Section 3.02

	 	Authorization; Enforceability
	 	 	34	 
	Section 3.03

	 	Governmental Approvals; No Conflicts
	 	 	34	 






 


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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	Page

 
	Section 3.04

	 	Financial Condition; No Material Adverse Change
	 	 	35	 
	Section 3.05

	 	Properties
	 	 	35	 
	Section 3.06

	 	Litigation and Environmental Matters
	 	 	35	 
	Section 3.07

	 	Compliance with Laws and Agreements
	 	 	36	 
	Section 3.08

	 	Investment and Holding Company Status
	 	 	36	 
	Section 3.09

	 	Taxes
	 	 	36	 
	Section 3.10

	 	ERISA
	 	 	36	 
	Section 3.11

	 	Disclosure
	 	 	36	 
	Section 3.12

	 	Subsidiaries
	 	 	36	 
	Section 3.13

	 	Operating Facilities
	 	 	37	 
	Section 3.14

	 	Regulation U
	 	 	37	 
	Section 3.15

	 	Anti-Terrorism
	 	 	37	 
	Section 3.16

	 	Labor Disputes
	 	 	37	 
	 
	 	 	 	 	 	 
	ARTICLE IV  Conditions	 	 	37	 
	Section 4.01

	 	Effective Date
	 	 	37	 
	Section 4.02

	 	Each Credit Event
	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE V  Affirmative Covenants	 	 	39	 
	Section 5.01

	 	Financial Statements; Ratings Change and Other Information
	 	 	39	 
	Section 5.02

	 	Notices of Material Events
	 	 	41	 
	Section 5.03

	 	Existence; Conduct of Business
	 	 	41	 
	Section 5.04

	 	Payment of Obligations
	 	 	41	 
	Section 5.05

	 	Maintenance of Properties; Insurance
	 	 	41	 
	Section 5.06

	 	Books and Records; Inspection Rights
	 	 	41	 
	Section 5.07

	 	Compliance with Laws
	 	 	42	 
	Section 5.08

	 	Use of Proceeds and Letters of Credit
	 	 	42	 
	Section 5.09

	 	Security Documents
	 	 	42	 
	Section 5.10

	 	Continuing Guarantees
	 	 	42	 
	Section 5.11

	 	Information Regarding Operating Facilities
	 	 	43	 
	Section 5.12

	 	Leases
	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE VI  Negative Covenants	 	 	43	 






 


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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page

 
	Section 6.01

	 	Indebtedness
	 	 	43	 
	Section 6.02

	 	Liens
	 	 	44	 
	Section 6.03

	 	Fundamental Changes
	 	 	44	 
	Section 6.04

	 	Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	45	 
	Section 6.05

	 	Swap Agreements
	 	 	45	 
	Section 6.06

	 	Restricted Payments
	 	 	45	 
	Section 6.07

	 	Transactions with Affiliates
	 	 	46	 
	Section 6.08

	 	Restrictive Agreements
	 	 	46	 
	Section 6.09

	 	Financial Covenants
	 	 	46	 
	Section 6.10

	 	Negative Pledge
	 	 	46	 
	Section 6.11

	 	Amendments to Operating/Partnership Agreements
	 	 	47	 
	Section 6.12

	 	            
	 	 	47	 
	Section 6.13

	 	            
	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE VII  Events of Default	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE VIII  The Administrative Agent	 	 	50	 
	 
	 	 	 	 	 	 
	ARTICLE IX  Miscellaneous	 	 	51	 
	Section 9.01

	 	Notices
	 	 	52	 
	Section 9.02

	 	Waivers; Amendments
	 	 	53	 
	Section 9.03

	 	Expenses; Indemnity; Damage Waiver
	 	 	53	 
	Section 9.04

	 	Successors and Assigns
	 	 	55	 
	Section 9.05

	 	Survival
	 	 	58	 
	Section 9.06

	 	Counterparts; Integration; Effectiveness
	 	 	58	 
	Section 9.07

	 	Severability
	 	 	59	 
	Section 9.08

	 	Right of Setoff
	 	 	59	 
	Section 9.09

	 	Governing Law; Jurisdiction; Consent to Service of Process
	 	 	59	 
	Section 9.10

	 	WAIVER OF JURY TRIAL
	 	 	60	 
	Section 9.11

	 	Headings
	 	 	60	 
	Section 9.12

	 	Confidentiality
	 	 	60	 
	Section 9.13

	 	USA Patriot Act
	 	 	61	 





 


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TABLE OF CONTENTS

(continued)




	 	 	 
	 	 	Page

 
	SCHEDULES:
	 	 
	 
	 	 
	Schedule 2.01 — Commitments
	 	 
	Schedule 3.06 — Disclosed Matters
	 	 
	Schedule 3.12 — Subsidiaries
	 	 
	Schedule 3.13 — Operating Facilities
	 	 
	Schedule 6.01 — Existing Indebtedness
	 	 
	Schedule 6.02 — Existing Liens
	 	 
	Schedule 6.08 — Existing Restrictions
	 	 
	 
	 	 
	EXHIBITS:
	 	 
	 
	 	 
	Exhibit “A” — Form of Assignment and Assumption
	 	 
	Exhibit “B” — Form of Note
	 	 
	Exhibit “C” — Form of Borrowing Request/Interest Election Request
	 	 
	Exhibit “D” — Form of Compliance Certificate
	 	 
	Exhibit “E” — Form of Security Agreement
	 	 
	Exhibit “F” — Form of Continuing Guarantee
	 	 







 


iv












 










CREDIT AGREEMENT




CREDIT AGREEMENT dated to be effective as of August 31, 2007, among P.F. CHANG’S CHINA BISTRO,
INC., a Delaware corporation, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., a national
banking association, as Administrative Agent, BANK OF AMERICA, N.A., a national banking
association, as Syndication Agent, and WELLS FARGO BANK, N.A., a national banking association, as
Documentation Agent.




The parties hereto agree as follows:



ARTICLE I




DEFINITIONS




Section 1.01 Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



“ABR,” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



“Acquisition” means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any of its
Subsidiaries (i) acquires any ongoing business or all or substantially all of the assets of any
Person, or division thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage of voting power of
the outstanding ownership interests of a partnership or limited liability company).



“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



“Administrative Agent” means JPMorgan Chase Bank, N.A., a national banking
association, in its capacity as administrative agent for the Lenders hereunder.



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



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


 


 









 





“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.



“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.



“Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar
Revolving Loan, or with respect to the facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “ABR spread”, “Eurodollar spread” or
“Facility Fee rate”, as the case may be:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ABR	 	 	Eurodollar	 	 	Facility Fee	 
	Leverage Ratio	 	spread	 	 	spread	 	 	rate	 
	Leverage Ratio I
	 	 	0.0	%	 	 	0.40	%	 	 	0.08	%
	Leverage Ratio II
	 	 	0.0	%	 	 	0.50	%	 	 	0.10	%
	Leverage Ratio III
	 	 	0.0	%	 	 	0.625	%	 	 	0.125	%
	Leverage Ratio IV
	 	 	0.0	%	 	 	0.75	%	 	 	0.15	%
	Leverage Ratio V
	 	 	0.0	%	 	 	0.875	%	 	 	0.175	%






The Leverage Ratio shall govern pricing hereunder and shall be determined based upon the most
recent Financials delivered to the Administrative Agent. Adjustments, if any, to the Applicable
Rate shall be effective five (5) Business Days after the Administrative Agent has received the most
recent Financials. If the Borrower fails to deliver the Financials to the Administrative Agent at
the time required pursuant to Section 5.01, then Leverage Ratio IV shall apply until five (5) days
after such Financials are so delivered, at which time the Applicable Rate shall be adjusted to
reflect the Leverage Ratio reflected in the latest Financials.



Notwithstanding the foregoing, Leverage Ratio III shall be in effect until the Administrative
Agent receives the Financials for the first fiscal quarter of the Borrower to occur after the
Effective Date, and adjustments to the Applicable Rate shall thereafter be effected in accordance
with the preceding paragraph.




For purposes hereof, the following shall have the following meanings:



“Financials” means the annual or quarterly financial statements of the
Borrower and its Subsidiaries delivered pursuant to the Credit Documents.


 


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“Leverage Ratio I” means, as of the last day of the applicable fiscal
quarter referred to in the most recent Financials, the Leverage Ratio is less than
0.5 to 1.0.



“Leverage Ratio II” means, as of the last day of the applicable fiscal
quarter referred to in the most recent Financials, the Leverage Ratio is equal to or
greater than 0.5 to 1.0 but less than or equal to 1.0 to 1.0.



“Leverage Ratio III” means, as of the last day of the applicable fiscal
quarter referred to in the most recent Financials, the Leverage Ratio is greater
than 1.0 to 1.0 but less than or equal to 1.5 to 1.0.



“Leverage Ratio IV” means, as of the last day of the applicable fiscal
quarter referred to in the most recent Financials, the Leverage Ratio is greater
than 1.5 to 1.0 but less than or equal to 2.0 to 1.0.



“Leverage Ratio V” means, as of the last day of the applicable fiscal
quarter referred to in the most recent Financials, the Leverage Ratio is greater
than 2.0 to 1.0.



Each change in the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective date of the next
such change.




“Approved Fund” has the meaning assigned to such term in Section 9.04(b)(ii).



“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit “A” or any other form approved by
the Administrative Agent.



“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



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




“Borrower” means P.F. CHANG’S CHINA BISTRO, INC., a Delaware corporation.



“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.



“Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03 in the form attached hereto as Exhibit “C”.



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in Phoenix, Arizona are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall
also exclude any day on which banks are not open for dealings in dollar deposits in the London
interbank market.


 


-3-









 





“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Equity Interests representing more than 331/3% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower or any Guarantor; (b)
occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Borrower or any Guarantor by Persons who were neither (i) nominated by the board of directors of
the Borrower or such Guarantor nor (ii) appointed by directors so nominated; or (c) the acquisition
of direct or indirect Control of the Borrower or any Guarantor by any Person or group.



“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending
office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.



“Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Swingline Loans or any other type of
Loan that may be available hereunder.




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




“Collateral” has the meaning assigned to such term in Section 5.09(a).



“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced or increased from time to time pursuant
to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth
on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments is
$150,000,000.00.



“Compliance Certificate” has the meaning assigned to such term in Section 5.01(c).


 


-4-









 






“Continuing Guarantee” has the meaning assigned to such term in Section 5.10.



“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.



“Credit Documents” means the Note, the Security Documents, the Continuing Guarantees
and any other documents, agreements or instruments evidencing, securing or otherwise relating to
the Loans, as such document, agreements or instruments may be amended, modified, extended, renewed,
supplemented or restated from time to time.



“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06, all of which have been included in reports submitted by
Borrower to the Securities and Exchange Commission.



“Documentation Agent” means WELLS FARGO BANK, N.A., a national banking association, in
its capacity as documentation agent for the Lenders hereunder. The Documentation Agent shall have
no rights, duties or responsibilities under the Credit Documents beyond those of a Lender.




“Dollars” or “$” refers to lawful money of the United States of America.



“EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Net Income for such period plus (a) the following to
the extent deducted in calculating such Net Income: (i) Interest Expense for such period, (ii) the
provision for Federal, state, local and foreign income taxes payable by the Borrower and its
Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) any non-cash
charges arising from compensation expense as a result of the adoption of Financial Accounting
Standards Board Statement 123 (Revised 2004), “Share-Based Payment”, which requires certain
stock-based compensation to be recorded as expense within the Borrower’s consolidated statement of
operations, and (v) other non-recurring expenses of the Borrower and its Subsidiaries reducing such
Net Income which do not represent a cash item in such period or any future period and minus
(b) the following to the extent included in calculating such consolidated Net Income: (i) Federal,
state, local and foreign income tax credits of the Borrower and its Subsidiaries for such period
and (ii) all non-cash items increasing Net Income for such period.



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).



“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.


 


-5-









 





“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary 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 shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower or any Subsidiary, is treated as a single employer under Section 414(b)
or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.



“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower, any of its Subsidiaries or any of their ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower, any of its
Subsidiaries or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower, any of its Subsidiaries or any of their ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower, any of its Subsidiaries or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA.



“Eurodollar,” when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



“Event of Default” has the meaning assigned to such term in Article VII.


 


-6-









 





“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction 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 of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender’s failure to comply with Section 2.17(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 the
Borrower with respect to such withholding tax pursuant to Section 2.17(a).




“Facility Fee” has the meaning assigned to such term in Section 2.12(a).



“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



“Fixed Charge Coverage Ratio” means the ratio of (i) Borrower’s and its Subsidiaries’
EBITDA on a consolidated basis less their Maintenance Capital Expenditures plus their Rental
Expense, minority interest expense and imputed partner bonus expense, to (ii) the sum of their
Interest Expense, Rental Expense, tax expense, scheduled principal repayments on any Indebtedness
(including without limitation Capital Lease Obligations) and distributions to minority partners.



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




“GAAP” means generally accepted accounting principles in the United States of America.


 


-7-









 





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



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



“Guarantor” means each material domestic Subsidiary which the Administrative Agent
requires in its reasonable discretion to deliver a Continuing Guarantee. Each Guarantor shall be
so identified on Schedule 3.12.



“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.



“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person if required to be classified as a liability in accordance with GAAP, (e) all obligations of
such Person in respect of the deferred purchase price of property or services (excluding (i)
current accounts payable and other accrued liabilities incurred in the ordinary course of business
or incurred in connection with permitted acquisitions, and (ii) contingent payments associated with
permitted acquisitions to the extent such contingent payments are not classified as liabilities in
accordance with GAAP) if required to be classified as a liability in accordance with GAAP, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations and all other Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances, and (k) all Net
Mark-to-Market Exposure under any Swap Agreement and other financial contracts.




 


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The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general partner) to the extent
such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor. Indebtedness shall not include any liability arising under or
related to any employee, officer or director compensation plan, indemnification agreements,
severance or income continuation amounts owing former officers, employees or directors or any
surety bonds, performance guarantees, operating leases or outsourcing and maintenance obligations
or any tax obligations. Indebtedness shall also not include any Guarantees of any leases on behalf
of any Subsidiaries or any construction allowances granted by landlords under any leases.





“Indemnified Taxes” means Taxes other than Excluded Taxes.



“Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in the form attached hereto as Exhibit C in accordance with Section 2.08.



“Interest Expense” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, the sum of all interest, premium payments, debt discount, fees, charges and
related expenses of the Borrower and its Subsidiaries in connection with borrowed money or in
connection with the deferred purchase price of assets, in each case to the extent treated as
interest expense in accordance with GAAP.



“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period, and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.



“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect,
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.


 


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“Issuing Bank” means JPMorgan Chase Bank, N.A., a national banking association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.



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



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



“Lease Obligations” of any Person means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, as reported as such on a balance sheet of such Person.



“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
required otherwise, the term “Lenders” includes the Swingline Lender.




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



“Leverage Ratio” means the ratio of the total consolidated Indebtedness of Borrower
and its Subsidiaries to their EBITDA.



“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is
not available at such time for any reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of
such Interest Period.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the
foregoing) relating to such asset, and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.


 


-10-









 





“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



“Maintenance Capital Expenditures” means capital expenditures incurred by Borrower or
any of its Subsidiaries with respect to the refurbishing of existing restaurants owned or operated
by Borrower and/or a Subsidiary. “Maintenance Capital Expenditures” do not include capital
expenditures incurred by Borrower or any of its Subsidiaries with respect to any recently acquired
or developed restaurant.



“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, financial or otherwise, of the Borrower and the Subsidiaries taken as a whole, (b) the
ability of the Borrower and Guarantors collectively to perform their material obligations under
this Agreement and the other Credit Documents to which each is a party, (c) the rights or remedies
of, or benefits available to, the Administrative Agent and the Lenders under this Agreement or
other Credit Documents, or (d) the validity or enforceability of the Credit Documents.



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $500,000.00. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




“Maturity Date” means the Revolving Loan Maturity Date.




“Moody’s” means Moody’s Investors Service, Inc.



“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



“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 extraordinary
gains and extraordinary losses) for that period.



“Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising from a
Swap Agreement. “Unrealized losses” means the fair market value of the cost to such Person of
replacing such Swap Agreement as of the date of determination (assuming the Swap Agreement were to
be terminated as of that date), and “unrealized profits” means the fair market value of the gain to
such Person of replacing such Swap Agreement as of the date of determination (assuming such Swap
Agreement were to be terminated as of that date).



“Note” has the meaning assigned to such term in Section 2.10(e).


 


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“Other Taxes” means any and 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 from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




“Participant” has the meaning set forth in Section 9.04(c).




“Patriot Act” has the meaning set forth in Section 3.15.



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




“Permitted Acquisitions” has the meaning set forth in Section 6.04(d).




“Permitted Encumbrances” means:



(a) Liens imposed by law for taxes, assessments or governmental charges that
are not yet due or are being contested in compliance with Section 5.04;



(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other
like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being
contested in compliance with Section 5.04;



(c) pledges and deposits made in the ordinary course of business in compliance
with workers’ compensation, unemployment insurance and other insurance and other
social security laws or regulations, or to secure customs’ duties, public or
statutory obligations in lieu of surety or stay or appeal bonds;



(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;



(e) judgment liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Article VII;



(f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from the value of
the affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;



(g) contractual or statutory liens incurred in the ordinary course of business
in favor of landlords under leasehold interests;


 


-12-









 





(h) liens or security interests retained by a lessor on a liquor license (i)
sold by such lessor (or its affiliate) to Borrower or any Subsidiary, or (ii) as
security for Borrower’s or any Subsidiary’s obligations under a lease;



(i) liens or security interests if such liens or security interests are
subordinate to the liens or security interests of Lenders hereunder pursuant to a
subordination agreement approved by the Administrative Agent; and



(j) purchase money liens or security interests in favor of equipment suppliers
incurred in the ordinary course of business;



provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




“Permitted Investments” means:



(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year from
the date of acquisition thereof;



(b) investments in commercial paper maturing within two hundred seventy (270)
days from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody’s;



(c) investments in certificates of deposit, banker’s acceptances and time
deposits maturing within one hundred eighty (180) days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;



(d) fully collateralized repurchase agreements with a term of not more than
thirty (30) days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above; and



(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, (ii) are rated AA by S&P and Aa by Moody’s, and (iii) have portfolio assets of
at least $5,000,000,000.



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


 


-13-









 





“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in Phoenix,
Arizona; each change in the Prime Rate shall be effective from and including the date such change
is publicly announced as being effective.




“Register” has the meaning set forth in Section 9.04(b)(iv).



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



“Rental Expense” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, total rental expense as calculated in accordance with GAAP.



“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50.0% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in 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 Equity Interests in the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the Borrower or any
Subsidiary.



“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and its
Swingline Exposure at such time.




“Revolving Loan” means a Loan made pursuant to Section 2.03.




“Revolving Loan Maturity Date” means August 30, 2013.




“S&P” means Standard & Poor’s.




“Security Agreement” has the meaning assigned to such term in Section 5.09(a).




“Security Documents” has the meaning assigned to such term in Section 5.09(b).


 


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“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of
the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.



“Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.



“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.



“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.



“Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.




“Swingline Loan” means a Loan made pursuant to Section 2.05.



“Syndication Agent” means Bank of America, N.A., a national banking association, in
its capacity as syndication agent for the Lenders hereunder. The Syndication Agent shall have no
rights, duties or responsibilities under the Credit Documents beyond those of a Lender.



“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.


 


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“Transactions” means the execution, delivery and performance by the Borrower and
Guarantors of this Agreement and the other Credit Documents, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.



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



“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



Section 1.02 Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may
be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).



Section 1.03 Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein,”
“hereof” and “hereunder,” and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.


 


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ARTICLE II




THE CREDITS




Section 2.01 Revolving Loan Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from time to time during
the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the sum of the total Revolving
Credit Exposures exceeding the total Revolving Loan Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.




Section 2.02 Loans and Borrowings.



(a) Each Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans
made by the Lenders ratably in accordance with their respective Revolving Loan Commitments. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Revolving Loan Commitments of the Lenders
are several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required.



(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.



(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $500,000.00 and not less
than $1,000,000.00. Each Swingline Loan shall be in an amount that is in an integral multiple of
$100,000.00 and not less than $100,000.00. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more than a
total of twelve (12) Eurodollar Revolving Borrowings outstanding.



(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Revolving Loan Maturity Date.



Section 2.03 Requests for Revolving Borrowings. To request a Revolving Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., Phoenix, Arizona time, three (3) Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., Phoenix, Arizona time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.06(e) may be given not
later than 10:00 a.m., Phoenix, Arizona time, on the date of the proposed Borrowing.




 


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Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request in the form
attached hereto as Exhibit “C”, and signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.02:



(i) the aggregate amount of the requested Borrowing;



(ii) the date of such Borrowing, which shall be a Business Day;



(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;



(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and



(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.07.



If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.



Section 2.04 [Intentionally left blank].



Section 2.05 Swingline Loans.



(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $10,000,000.00 or (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Swingline Loans exceeding the
total Commitments; provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline
Loans.



(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, Phoenix, Arizona time, on
the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general deposit account of the Borrower
with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
Phoenix, Arizona time, on the requested date of such Swingline Loan.


 


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(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Phoenix, Arizona time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans
made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of
the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.




Section 2.06 Letters of Credit.



(a) General. Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower
with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. The Borrower also shall submit a letter of
credit application on the Issuing Bank’s standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $50,000,000.00, (ii) the sum of the total Revolving Credit
Exposures shall not exceed the total Revolving Loan Commitments and (iii) the expiration date
thereof shall comply with Section 2.06(c) below.



(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension), provided that any Letter of Credit with a term of one year may provide for the renewal
thereof for additional one-year periods, which shall in no event extend beyond the date referred in
clause (ii) hereinafter, and (ii) the date that is five (5) Business Days prior to the Revolving
Loan Maturity Date, unless such Letter of Credit is cash collateralized in a manner satisfactory to
Administrative Agent in its reasonable discretion.



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


 


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(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Issuing Bank shall notify the Borrower and the Administrative Agent thereof,
and the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 12:00 noon, Phoenix, Arizona time, on the date
that is the later of (A) three Business Days after such LC Disbursement is made, and (B) (i) the
Business Day that the Borrower receives such notice, if such notice is received prior to 10:00
a.m., Phoenix, Arizona time, on the day of receipt, or the Business Day immediately following the
day that the Borrower receives such notice, if such notice is not received prior to such time on
the day of receipt; provided that the Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 or Section 2.05 that such payment be
financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s
Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.



(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make




 


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any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.



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



(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.



(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.12(b).




 


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From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein
to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.



(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance of the obligations
of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be a Permitted Investment and
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of
Default have been cured or waived.




Section 2.07 Funding of Borrowings.



(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds by 12:00 noon, Phoenix, Arizona time, to the
account of the Administrative Agent most recently designated by it for such purpose by notice to
the Lenders; provided, that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in Phoenix, Arizona and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank.


 


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(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable 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 with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.




Section 2.08 Interest Elections.



(a) Each Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.



(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in the form attached hereto as Exhibit
“C” and signed by the Borrower.



(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:



(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


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(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;



(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and



(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period
to be applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”.



If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.



(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.




Section 2.09 Termination, Reduction and Increase of Revolving Loan Commitments.



(a) Unless previously terminated, the Revolving Loan Commitments shall terminate on the
Maturity Date.



(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Revolving Loan Commitments shall be in an amount
that is an integral multiple of $5,000,000.00 and not less than $5,000,000.00 and (ii) the Borrower
shall not terminate or reduce the Revolving Loan Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the sum of the Revolving Credit
Exposures would exceed the total Revolving Loan Commitments.



(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Loan Commitments under paragraph (b) of this Section at least three (3) Business Days
prior to the effective date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the Revolving Loan
Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or reduction of the
Revolving Loan Commitments shall be permanent. Each reduction of the Revolving Loan Commitments
shall be made ratably among the Lenders in accordance with their respective Revolving Loan
Commitments.




 


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(d) Borrower may, provided no Default then exists, solicit incremental and new Commitments
from Administrative Agent, the Lenders and/or third party financial institutions reasonably
acceptable to the Administrative Agent in amounts that do not exceed in the aggregate
$50,000,000.00. The Borrower shall notify Administrative Agent, in writing, of any election to
increase the Commitments specifying such election and effective date thereof and covenanting that
no Default then exists. No Lender’s Commitment shall be increased without such Lender’s prior
written consent.




Section 2.10 Repayment of Loans; Evidence of Debt.



(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Loan on the Revolving
Loan Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least [two (2)] Business Days after
such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the
Borrower shall repay all Swingline Loans then outstanding.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.


 


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(e) Any Lender may request that Loans made by it be evidenced by a promissory note
substantially in the form of Exhibit “B” (collectively, the “Note”). In such event, the Borrower
shall prepare, execute and deliver to such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form reasonably approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).




Section 2.11 Prepayment of Loans.



(a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to prior notice in accordance with paragraph (b) of this
Section.



(b) The Borrower shall notify the Administrative Agent (and in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00
a.m., Phoenix, Arizona time, three (3) Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., Phoenix, Arizona time,
one Business Day before the date of prepayment, or (iii) in the case of prepayment of a Swingline
Loan, not later than 12:00 noon, Phoenix, Arizona time, on the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Revolving Loan Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in accordance with Section
2.09. Promptly following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of
a Revolving Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Revolving
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.




Section 2.12 Fees.



(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
facility fee (the “Facility Fee”), which shall accrue at the Applicable Rate on the daily
amount of the unused Revolving Loan Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which such Commitment terminates; provided
that, if such Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such Facility Fee shall continue to accrue on the daily amount of such Lender’s
Revolving Credit Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Revolving Credit Exposure. Accrued
Facility Fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the Revolving Loan
Commitments terminate, commencing on the first such date to occur after the date hereof;
provided that any Facility Fees accruing after the date on which the Revolving Loan
Commitments terminate shall be payable on demand. All Facility Fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).




 


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(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Revolving Loan Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, (ii) to the Issuing
Bank a fronting fee equal to an annual rate of 12.5 basis points on the face amount of each Letter
of Credit, and (iii) to the Issuing Bank its standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings thereunder. Fees accrued
through and including the last day of March, June, September and December of each year shall be
payable in arrears on the third Business Day following such last day, commencing on the first such
date to occur after the Effective Date; provided that all such fees shall be payable on the
date on which the Revolving Loan Commitments terminate and any such fees accruing after the date on
which the Revolving Loan Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within ten (10) days after demand.
All fees shall be computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).



(c) The Borrower agrees to pay to the Administrative Agent, for its own account, any fees
payable in the amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.



(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of Facility Fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.




Section 2.13 Interest.



(a) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear
interest at the Alternate Base Rate plus the Applicable Rate.



(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.



(c) [Intentionally left blank].


 


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(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



(e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.



(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



Section 2.14 Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:



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



(b) the Administrative Agent is advised by the Required Lenders that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such Interest
Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing.


 


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Section 2.15 Increased Costs.




(a) If any Change in Law shall:



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



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



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



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



(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than two hundred seventy (270) days prior to the date that such
Lender or the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s
intention to claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect thereof.


 


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Section 2.16 Break Funding Payments. In the event of (a) the payment of any principal
of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.11(b) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section
2.19, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense
to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.




Section 2.17 Taxes.



(a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes or 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 Issuing Bank (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 pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.



(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.


 


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(c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within ten (10) days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) 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 Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.



(d) 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 the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.



(e) 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 located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.



(f) If the Administrative Agent or a Lender 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 2.17, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes which it deems confidential) to the Borrower or any
other Person.




 


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Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



(a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, Phoenix, Arizona time, on the date when due,
in immediately available funds, without setoff or counterclaim. Any amounts received after such
time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 201 North Central Avenue, 21st Floor, Phoenix, Arizona 85004, Attn:
Commercial Banking Group, AZ1-1178, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on
a day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder shall be made in dollars.



(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards 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, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.



(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary 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 Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph 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 set-off 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.


 


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



(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.




Section 2.19 Mitigation Obligations; Replacement of Lenders.



(a) If any Lender requests compensation under Section 2.15, 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 2.17, 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
2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



(b) If any Lender requests compensation under Section 2.15, 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 2.17, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), which consent shall not unreasonably be withheld or delayed, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or payments required to be
made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


 


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ARTICLE III




REPRESENTATIONS AND WARRANTIES





The Borrower represents and warrants to the Lenders that:



Section 3.01 Organization; Powers. Each of the Borrower and its Subsidiaries is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.



Section 3.02 Authorization; Enforceability. The Transactions, when consummated, will
be within the Borrower’s and its Guarantors’ organizational powers and will have been duly
authorized by all necessary organizational and, if required, stockholder or member action. This
Agreement and the other Credit Documents to which they are a party have been duly executed and
delivered by the Borrower and the Guarantors and constitute the legal, valid and binding obligation
of the Borrower and the Guarantors, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



Section 3.03 Governmental Approvals; No Conflicts. The Transactions, when
consummated, (a) will not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries which would result in a Material Adverse Effect, and (d) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, except
as contemplated by this Agreement.




Section 3.04 Financial Condition; No Material Adverse Change.



(a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended
December 31, 2006, reported on by KPMG International, independent public
accountants, and (ii) as of and for the six-month period ended June 30, 2007, certified by its
chief financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.


 


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(b) Since June 30, 2007, there has been no material adverse change in the business, assets or
operations, financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.




Section 3.05 Properties.



(a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property material to its business, except for minor defects in title
that do not materially interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes, free and clear of all Liens, except for
Permitted Encumbrances.



(b) Each of the Borrower and its Subsidiaries owns or has possession of, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual property material to
its business, except for any failure to own, possess, or have a license to use that could not
reasonably be expected to result in a Material Adverse Effect; and the use thereof by the Borrower
and its Subsidiaries does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.




Section 3.06 Litigation and Environmental Matters.



(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve this Agreement, the Credit Documents or the Transactions.



(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability, or (iv) knows of any
basis for any Environmental Liability.



(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.


 


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Section 3.07 Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



Section 3.08 Investment and Holding Company Status. Neither the Borrower nor any of
its Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 2005.



Section 3.09 Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed (except for sales and
use tax returns involving, in the aggregate, immaterial amounts) and has paid or caused to be paid
all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.



Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.



Section 3.11 Disclosure. The Borrower has disclosed to 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 reports, financial statements, certificates or
other information furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with 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.



Section 3.12 Subsidiaries. The Borrower has no Subsidiaries other than those Persons
listed as Subsidiaries in Schedule 3.12; Schedule 3.12 states as of the date hereof the
organizational form of each entity and the number and/or percentage of outstanding shares or other
equity interest (including options, warrants and other rights to acquire any interest) of each such
class of capital stock or other equity interest owned by Borrower or by any such Subsidiary; the
outstanding shares or other equity interests of each such Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable; and Borrower and each such Subsidiary owns
beneficially and of record all the shares and other interests it is listed as owning in Schedule
3.12 free and clear of any Lien.


 


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Section 3.13 Operating Facilities. Schedule 3.13 contains a true and complete list of
all owned or leased restaurant, office and other operating facilities of the Borrower and each
Subsidiary and, as to each such facility, describes (a) the address of the facility, (b) the
type of facility, (c) whether it is owned or leased by the Borrower or such Subsidiary, and (d) the
identity of such owner or lessee.



Section 3.14 Regulation U. Neither Borrower nor any Subsidiary owns any “margin
security” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve
System except amounts thereof that do not and will not in the aggregate constitute a substantial
part of Borrower’s or such Subsidiary’s assets.



Section 3.15 Anti-Terrorism. Neither Borrower or any Subsidiary or their
representative constituents or affiliates is a “specially designated national” or “blocked person”
(as those terms are defined by the US Office of Foreign Assets Control), or is in violation of any
laws relating to terrorism or money laundering, including Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001 and relating to Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (Public Law 107-56, the “Patriot Act”).



Section 3.16 Labor Disputes. Neither Borrower, Guarantor nor any Subsidiary is
currently experiencing any labor disputes or, to the best of Borrower’s knowledge, have had any
labor disputes threatened.



ARTICLE IV




CONDITIONS




Section 4.01 Effective Date. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):



(a) The Administrative Agent (or its counsel) shall have received from each
party hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.



(b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated



the Effective Date) of Gallagher & Kennedy, P.A., counsel for the Borrower and the Guarantors,
covering such matters relating to the Borrower, the Guarantors, this Agreement or the Transactions
as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to
deliver such opinion.



(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower and the
Guarantors, the authorization of the Transactions and any other
legal matters relating to the Borrower and the Guarantors, this Agreement, the
Credit Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


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(d) The Administrative Agent shall have received executed copies of the Credit
Documents.



(e) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial Officer
of the Borrower, confirming compliance with the conditions set forth in paragraphs
(a) and (b) of Section 4.02.



(f) All governmental and third party approvals necessary or, in the
commercially reasonable discretion of the Administrative Agent, advisable in
connection with the financing contemplated hereby and the continuing operations of
the Borrower and its Subsidiaries shall have been obtained and be in full force and
effect.



(g) The Administrative Agent shall have received (i) satisfactory audited
consolidated financial statements of the Borrower for the three most recent fiscal
years ended prior to the Effective Date as to which such financial statements are
available, and (ii) satisfactory unaudited interim consolidated financial statements
of the Borrower for each quarterly period ended subsequent to the date of the latest
financial statements delivered pursuant to clause (i) of this paragraph as to which
such financial statements are available.



(h) The Administrative Agent, the Lenders and J. P. Morgan Securities, Inc.
shall have received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or payment of all
reasonable and documented out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder.



(i) The Administrative Agent and Lenders shall have received such other legal
opinions, documents and other instruments as they shall reasonably request in
connection herewith.



(j) The Administrative Agent shall have received evidence to its reasonable
satisfaction of the repayment in full of, and termination of, all commitments,
obligations and undertakings, under that certain Credit Agreement dated as of August
4, 2006, as amended, between Administrative Agent and Borrower.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding.



Section 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:


 


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(a) The representations and warranties of the Borrower and the Guarantors set
forth in this Agreement or any other Credit Document shall be true and correct on
and as of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.



(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable,
no Default shall have occurred and be continuing.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.



ARTICLE V




AFFIRMATIVE COVENANTS




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



Section 5.01 Financial Statements; Ratings Change and Other Information. The Borrower
will furnish to the Administrative Agent:



(a) within ninety (90) days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year, all
reported on by KPMG LLP or other independent public accountants of recognized
national standing (without a “going concern” or like qualification or exception and
without any qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;



(b) within forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders’ equity and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;


 


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(c) concurrently with any delivery of financial statements under clause (a) or
(b) above, a certificate of a Financial Officer of the Borrower substantially in the
form of Exhibit “D” (the “Compliance Certificate”) (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations demonstrating compliance with
Section 6.09, and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements referred to
in Section 3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;



(d) concurrently with any delivery of financial statements under clause (a)
above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may be
limited to the extent required by accounting rules or guidelines);



(e) promptly after the same become publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;



(f) not later than forty-five (45) days after the end of each fiscal year,
deliver to the Administrative Agent and each Lender consolidated financial
projections for the Borrower and its Subsidiaries for the next fiscal year prepared
in good faith in accordance with prior practice of the Borrower; and



(g) promptly following any request therefor, such other information regarding
the operations, business affairs and financial condition of the Borrower or any
Subsidiary, or compliance with the terms of this Agreement and the Credit Documents,
as the Administrative Agent or any Lender may reasonably request.



Section 5.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent prompt written notice of the following:



(a) the occurrence of any Default;



(b) the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting the Borrower or any
Affiliate thereof that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect;


 


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(c) the occurrence of any ERISA Event that, alone or together with any other
ERISA Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding $500,000.00;
and



(d) any other development that results in, or could reasonably be expected to
result in, a Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



Section 5.03 Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things reasonably necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses, permits, privileges
and franchises material to the conduct of its business; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.



Section 5.04 Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in
a Material Adverse Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.



Section 5.05 Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.



Section 5.06 Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.



Section 5.07 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.


 


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Section 5.08 Use of Proceeds and Letters of Credit. The proceeds of the Loans will be
used to finance the working capital needs of the Borrower and for the Borrower’s general corporate
purposes, including share repurchases and acquisitions permitted by this Agreement. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X.




Section 5.09 Security Documents.



(a) So long as the Lenders have any Commitment outstanding to the Borrower and so long as any
Loan or other obligation hereunder is outstanding, the Borrower shall cause such Loan and the
Borrower’s and the Guarantors’ other obligations under this Agreement and the Credit Documents to
be secured at all times by a valid and effective first priority security interest granted pursuant
to a pledge and security agreement substantially in the form attached hereto as Exhibit “E” (each a
“Security Agreement”), each duly executed and delivered by or on behalf of the Borrower and
each Guarantor, granting the Administrative Agent for the benefit of the Lenders a valid and
enforceable security interest in all of its personal property described therein
(“Collateral”), subject to no Lien other than Permitted Encumbrances. Collateral shall not
include any leasehold interest held by the Borrower. Notwithstanding the foregoing, the Collateral
shall exclude those assets whose relative value to the Lenders does not justify the cost and/or
effort required to perfect a security interest in such assets, as determined by the Administrative
Agent in its reasonable discretion.



(b) All of the documents required by this Section 5.09 shall be in form reasonably
satisfactory to the Administrative Agent and its counsel, and, together with any financing
statements for filing and/or recording, and any other items required by the Administrative Agent to
effectuate the liens and security interests of the Administrative Agent contemplated by the
Security Agreement and this Agreement and to perfect such liens and security interests with respect
to Collateral, may heretofore or hereinafter be referred to as the “Security Documents.”



(c) The Borrower shall obtain and deliver to the Administrative Agent, and maintain in full
force and effect so long as any obligation of the Borrower to the Lenders remains unpaid or
unperformed, valid and effective security agreements in the form of the Security Agreement from any
new Guarantors.



Section 5.10 Continuing Guarantees. So long as any Loan is outstanding, the Borrower
shall cause such Loan and the Borrower’s obligations under this Agreement and the Credit Documents
to be guaranteed at all times by a continuing guarantee substantially in the form attached hereto
as Exhibit “F” (each a “Continuing Guarantee”) delivered to the Administrative Agent for
the benefit of the Lenders from each Guarantor and any Subsidiary who Administrative Agent requests
to be a Guarantor.



Section 5.11 Information Regarding Operating Facilities. Upon request of the
Administrative Agent, the Borrower shall provide an updated list (in the format of Schedule 3.13
hereof) of all operating facilities of the Borrower and each Subsidiary.


 


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Section 5.12 Leases. Each lease that is to be used in leasing any of the real
property owned by Borrower or any Subsidiary shall be subject to Administrative Agent’s prior
written approval, which approval shall not be unreasonably withheld. Each such lease shall have
been entered into by Borrower or such Subsidiary in good faith and at arm’s length. Borrower
shall, or shall cause its Subsidiary to, assign to Administrative Agent all of its right, title and
interest in and to all leases and rents and shall execute and deliver to Administrative Agent
written assignments thereof in form satisfactory to Administrative Agent. Upon request of
Administrative Agent, Borrower shall deliver to Administrative Agent individual estoppel
certificates from all tenants under such leases certifying: (a) that the leased premises have been
completed to the satisfaction of that tenant, (b) that the lease is in full force and effect and
there are no existing defaults to the knowledge of that tenant, (c) the date upon which the term of
the lease commenced and the date to which rentals have been paid, (d) that there are no setoffs or
counterclaims against the rent payments and no credits against the rent payments except as set
forth in the lease, (e) that the lease has not been amended or modified and there are no
representations, warranties, understandings or agreements pertaining to the subject matter thereof
other than as expressly stated in the written lease, and (f) that the tenant has no knowledge of
any prior assignment or pledge of the lease or of rentals thereunder. For purposes of
clarification, this Section 5.12 shall only apply to real property owned by the Borrower and/or any
Subsidiary and does not apply to leases or subleases to any Subsidiary, nor does it apply to any
leases of real property pursuant to which Borrower and/or any Subsidiary is the lessee.



ARTICLE VI




NEGATIVE COVENANTS




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



Section 6.01 Indebtedness. The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:



(a) Indebtedness created hereunder;



(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01,
but not any extensions, renewals or replacements of any such Indebtedness;



(c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary;



(d) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition of any personal property, provided that the aggregate principal amount
of such Indebtedness shall not exceed $3,000,000.00 at any time outstanding;


 


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(e) Unsecured Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition by the Borrower or Subsidiary of partnership interests,
provided that the aggregate amount of such Indebtedness shall not exceed
$20,000,000.00 at any time outstanding;



(f) Indebtedness incurred under a Swap Agreement so long as the notional amount
related thereto does not exceed the Commitment; and



(g) Other unsecured Indebtedness in an aggregate principal amount not exceeding
$3,000,000.00 at any time outstanding.



Section 6.02 Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:



(a) Liens created hereunder or in connection herewith;



(b) Permitted Encumbrances;



(c) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof, including those set forth in Schedule 6.02;
provided that such Lien shall secure only those obligations which it secures
on the date hereof; and



(d) any Lien on any property or asset of the Borrower or any Subsidiary
securing Indebtedness permitted under Section 6.01.




Section 6.03 Fundamental Changes.



(a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary
in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving a Person that is
not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04. The restrictions in this Section 6.03(a) to the sale of assets shall
not apply to the sale of inventory, the disposition of assets no longer best used in or useful to
the business, or worn or damaged assets, the disposition of securities, and transfers necessary to
allow for permitted merger or consolidation transactions.


 


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(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
Notwithstanding the foregoing, none of the restrictions contained in this Section 6.03 shall apply
to Taneko Japanese Tavern, Inc., a Delaware corporation (“Taneko”), so long as any action relating
to Taneko does not otherwise result in a Default hereunder.



Section 6.04 Investments, Loans, Advances, Guarantees and Acquisitions. The Borrower
will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger)
any capital stock, evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:



(a) Permitted Investments;



(b) investments by the Borrower in the Equity Interests of its Subsidiaries
and, subject to limitations in Section 6.06, any repurchase of the Equity Interests
of the Borrower;



(c) loans or advances made by the Borrower to any Subsidiary and made by any
Subsidiary to the Borrower or any other Subsidiary; and



(d) Acquisitions meeting the following requirements or otherwise approved by
the Required Lenders (each such Acquisition constituting a “Permitted Acquisition”):



(i) as of the date of the consummation of such Acquisition, no
Default shall have occurred and be continuing or would result from
such Acquisition, and the representation and warranty contained in
Section 5.08 shall be true both before and after giving effect to
such Acquisition;



(ii) such Acquisition is consummated on a non-hostile basis
pursuant to a negotiated acquisition agreement approved by the board
of directors or other applicable governing body of the seller or
entity to be acquired, and no material challenge to such Acquisition
(excluding the exercise of appraisal rights) shall be pending or
threatened by any shareholder or director of the seller or entity to
be acquired;



(iii) the business to be acquired in such Acquisition is
similar or related to one or more of the lines of
business in which the Borrower and its Subsidiaries are engaged
on the Effective Date;


 


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(iv) as of the date of the consummation of such Acquisition,
all material approvals required in connection therewith shall have
been obtained; and



(v) that do not exceed in the aggregate $50,000,000.00 in cash
and/or non-cash consideration in any twelve (12) month period or
$125,000,000.00 in cash consideration or $200,000,000.00 in cash
and/or non-cash consideration during the term of this Agreement.



Section 6.05 Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.



Section 6.06 Restricted Payments. The Borrower will not, and will not permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except for purchases of Equity Interests in the Borrower that do not exceed in
an aggregate amount $100,000,000.00; provided, however, that nothing herein shall prevent any
dividends or distributions from a Subsidiary to Borrower.



Section 6.07 Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among
the Borrower and its Subsidiaries not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.06 and (d) any other transactions otherwise permitted by this Agreement,
including, without limitation, transactions permitted by Article VI.



Section 6.08 Restrictive Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any
amendment or modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions
apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause
(a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, and (v) clause (a) of the
foregoing shall not apply to customary provisions in leases and other contracts restricting the
assignment thereof or the Liens on such leases or contracts.


 


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Section 6.09 Financial Covenants. The Borrower will not permit at any time:




(a) The Leverage Ratio to exceed 2.50 to 1.00.




(b) The Fixed Charge Coverage Ratio to be less than 1.25 to 1.00.



Section 6.10 Negative Pledge. The Borrower will not, and will not permit any
Subsidiary to, permit to exist any Lien on any real property now owned or hereafter acquired by it,
except:




(a) Liens created hereunder or in connection herewith;




(b) Permitted Encumbrances;



(c) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that such Lien shall secure only those obligations
which it secures on the date hereof; and



(d) any Lien on any property or asset of the Borrower or any Subsidiary securing Indebtedness
permitted under Section 6.01.



Section 6.11 Amendments to Operating/Partnership Agreements. The Borrower will not
amend the operating or partnership agreement, as applicable, of itself or any Subsidiary to
include, or permit to exist an operating or partnership agreement, as applicable, of any Subsidiary
which includes, any provision which would (a) prohibit, restrict or materially decrease
distributions by such Subsidiary to the Borrower under such agreement in respect of the ownership
interest of the Borrower in such Subsidiary or in any restaurant, or (b) decrease below 80% the
percentage ownership interest of the Borrower in such Subsidiary or in any restaurant.



Section 6.12 Change in Fiscal Year. Change the times of commencement or termination
of its fiscal year or other accounting periods; or change its methods of accounting other than to
conform to generally accepted accounting principles applied on a consistent basis.



Section 6.13 Change in Business. The Borrower will not, and will not permit any of
its Subsidiaries to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and
businesses reasonably related thereto; provided, however, that the manufacturing, distribution and
sale of Asian cuisine products offered by Borrower or any of its Subsidiaries in their
restaurants direct to consumers through grocery or other retail points of purchase not owned
by an Affiliate of Borrower or any of its Subsidiaries shall be permitted.


 


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ARTICLE VII




EVENTS OF DEFAULT





If any of the following events (“Events of Default”) shall occur:



(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;



(b) the Borrower shall fail to pay any interest on any Loan or any fee or any
other amount (other than an amount referred to in clause (a) of this Article)
payable under this Agreement or the Credit Documents, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period of
three (3) Business Days after written notice to the Borrower;



(c) any material representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with
this Agreement or any amendment or modification hereof or waiver hereunder, shall
prove to have been false or misleading in any material respect when made or deemed
made;



(d) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to the Borrower’s or any
Subsidiary’s existence) or 5.08 and such failure shall continue unremedied for a
period of thirty (30) calendar days after written notice thereof from the
Administrative Agent to the Borrower;



(e) the Borrower or any Guarantor shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement or other Credit
Documents (other than those specified in clause (a), (b), (d) or (f) of this
Article), and such failure shall continue unremedied for a period of thirty (30)
calendar days after written notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender), or if such
failure cannot reasonably be remedied in thirty (30) days, then sixty (60) days
after said written notice from the Administrative Agent to the Borrower;



(f) the Borrower shall fail to observe or comply with any covenant, conditions
or agreement contained in Article VI of this Agreement;



(g) the Borrower or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any applicable grace periods);


 


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(h) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders of
any Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;



(i) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in respect of
the Borrower or any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed, unstayed, unbonded, or uninsured
for ninety (90) consecutive calendar days or an order or decree approving or
ordering any of the foregoing shall be entered;



(j) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take
any action for the purpose of effecting any of the foregoing;



(k) the Borrower or any Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;



(l) one or more final judgments (after the expiration of all times to appeal
therefrom) for the payment of money in an aggregate amount in excess of
$1,000,000.00 shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged or unpaid for a period of
thirty (30) consecutive days during which execution shall not be effectively bonded
or stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any substantial part of the assets of the Borrower or any Subsidiary to
enforce any such judgment;


 


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(m) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;



(n) if (a) the Borrower or any Subsidiary shall default (which default shall
continue beyond any applicable grace period and shall not be effectively waived) in
the performance, observance or fulfillment of any term, covenant or condition
contained in any material lease or sublease of restaurant or other operating
facilities or any other material agreement or commitment upon expiration,
termination or lapse of one or more of which, individually or collectively, could
reasonably be expected to have a Material Adverse Effect;



(o) the occurrence of a Default under any Credit Document; or



(p) a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.



ARTICLE VIII




THE ADMINISTRATIVE AGENT




Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent 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, together
with such actions and powers as are reasonably incidental thereto.



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


 


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The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof
is given to the Administrative Agent by the Borrower or a Lender, 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, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the 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 reasonably believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it orally or by
telephone and reasonably believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. 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.



The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
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.


 


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Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. 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 Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its subagents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while it was acting
as Administrative Agent.



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



ARTICLE IX




MISCELLANEOUS





Section 9.01 Notices.



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



(i) if to the Borrower, to it at:




7676 East Pinnacle Peak Road

Scottsdale, Arizona 85255

Attention: Mr. Mark Mumford

Telecopy No.: (480) 888-3007


 


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(ii) if to the Administrative Agent, to:




JPMorgan Chase Bank, N.A.

201 North Central Avenue

21st Floor

Phoenix, Arizona 85004

Attn: Commercial Banking Group, AZ1-1178

Telecopy No.: (602) 221-1502



(iii) if to the Swingline Lender to:




JPMorgan Chase Bank, N.A.

201 North Central Avenue

21st Floor

Phoenix, Arizona 85004

Attn: Commercial Banking Group, AZ1-1178

Telecopy No.: (602) 221-1502



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



(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. 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.



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




Section 9.02 Waivers; Amendments.



(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank
and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.


 


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(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, or (v) change any of the provisions
of this Section or the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Issuing Bank or the Swingline Lender hereunder
without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.




Section 9.03 Expenses; Indemnity; Damage Waiver.



(a) The Borrower shall pay (i) all reasonable and documented 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 any syndication of the
credit facilities provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any
Lender, in connection with the enforcement or protection of its rights in connection with this
Agreement or any other Credit Document, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.


 


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(b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank 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 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 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 resulted from the gross negligence or willful misconduct of such
Indemnitee.



(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, 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, the Issuing Bank or the Swingline Lender in its capacity as such.



(d) To the 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 or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



(e) All amounts due under this Section shall be payable promptly after written demand
therefor.




Section 9.04 Successors and Assigns.



(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the
extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.


 


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(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and
the Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:



(A) the Borrower, provided that no consent of the
Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee;



(B) the Administrative Agent, provided that no consent
of the Administrative Agent shall be required for an assignment of
any Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment; and



(C) the Issuing Bank.



(ii) Assignments shall be subject to the following additional conditions:



(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans of any Class,
the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the
Borrower shall be required if an Event of Default has occurred and
is continuing;



(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, provided that this clause
shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender’s rights and obligations in respect
of one Class of Commitments or Loans;



(C) 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; and


 


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(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.



For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:



“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
of this Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 9.04 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.



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


 


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(v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have
failed to make any payment required to be made by it pursuant to Section 2.06(d) or
(e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation
to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with
all accrued interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.



(c) (i) Any Lender may, without the consent of the Borrower, the Administrative
Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Administrative Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to Section
2.18(c) as though it were a Lender.



(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent.
A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.17 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit
of the Borrower, to comply with Section 2.17(e) as though it were a Lender.


 


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(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



Section 9.05 Survival. All covenants, agreements, representations and warranties made
by the Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any such other party or
on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may
have had notice or knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement
is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect for a period of three (3) years after the
later of the consummation of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.



Section 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent 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 which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic
transmission shall be effective as delivery of a manually executed counterpart of this Agreement.



Section 9.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.


 


-60-









 





Section 9.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.




Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process.



(a) This Agreement shall be construed in accordance with and governed by the law of the State
of Arizona.



(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Superior Court of the State of Arizona
sitting in Maricopa County and of the United States District Court of Phoenix, Arizona, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such State or, to the extent permitted by 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 shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement against any other party
or their respective properties in the courts of any jurisdiction.



(c) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.



(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


-61-









 





Section 9.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



Section 9.12 Confidentiality. Each of the Administrative Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the Borrower, or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a
non-confidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Notwithstanding the foregoing, each of the Administrative Agent,
the Issuing Bank and the Lenders agree that in the event disclosure is required under Section
9.12(b) or (c) above, they will (A) provide the Borrower with prompt notice of the existence,
terms, and circumstances surrounding such request or requirement, (B) take reasonable steps to
narrow that request, and (C) if disclosure of Information is required, furnish only such portion of
the Information such party’s counsel advises is legally required to disclosure.



Section 9.13 USA Patriot Act. Each Lender that is subject to the requirements of the
Patriot Act hereby notifies the Borrower and Guarantors that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that identifies the Borrower
and Guarantors, which information includes the name and address of the Borrower and Guarantors and
other information that will allow such Lender to identify the Borrower in accordance with the
Patriot Act.


 


-62-









 





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



	 	 	 	 	 
	 	 	P.F. CHANG’S CHINA BISTRO, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Federico
	 

	 	 	 	 
	 

	 	Name:
	 	Richard L. Federico
	 

	 	 	 	 
	 

	 	Title:
	 	Chairman and Chief Executive Officer
	 

	 	 	 	 






	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	a national banking association,
	 	 	as a Lender and as Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven J. Krakoski
	 

	 	 	 	 
	 

	 	Name:
	 	Steven J. Krakoski
	 

	 	 	 	 
	 

	 	Title:
	 	Senior Vice President
	 

	 	 	 	 





 


-63-









 





	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., a national banking
	 	 	association, as a Lender and as Syndication Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Angelo Maragos
	 

	 	 	 	 
	 

	 	Name:
	 	Angelo Maragos
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





 


-64-









 





	 	 	 	 	 
	 	 	WELLS FARGO BANK, N.A.,
	 	 	a national banking association,
	 	 	as a Lender and as Documentation Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ J. Nicholas Cole
	 

	 	 	 	 
	 

	 	Name:
	 	J. Nicholas Cole
	 

	 	 	 	 
	 

	 	Title:
	 	Managing Director
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stephen A. Leon
	 

	 	 	 	 
	 

	 	Name:
	 	Stephen A. Leon
	 

	 	 	 	 
	 

	 	Title:
	 	Managing Director
	 

	 	 	 	 





 


-65-









 





	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,
	 	 	a national banking association, as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jacob Payne
	 

	 	 	 	 
	 

	 	Name:
	 	Jacob Payne
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





 


-66-









 





	 	 	 	 	 
	 	 	FIFTH THIRD BANK,
	 	 	a national banking association, as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Gary S. Losey
	 

	 	 	 	 
	 

	 	Name:
	 	Gary S. Losey
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





 


-67-









 





SCHEDULE 2.01




COMMITMENTS




	 	 	 	 	 	 	 
	 	 	 	 	Commitments	 
	 	 	 	 	Revolving Credit	 
	 	 	Lenders	 	Exposure	 
	 	 	 	 	August 31, 2007	 
	 	 	 
	 	 	 	 
	1.	 	JPMorgan Chase Bank, N.A., as Administrative

Agent

201 North Central Avenue 

21st Floor

Phoenix, Arizona 85004

Attn: Commercial Banking Group, AZ1-1178
	 	$	40,000,000.00	 
	 	 	 
	 	 	 	 
	2.	 	Bank of America, N.A., as Syndication Agent
	 	$	30,000,000.00	 
	 	 	 
	 	 	 	 
	3.	 	Wells Fargo Bank, N.A., as Documentation Agent
	 	$	30,000,000.00	 
	 	 	 
	 	 	 	 
	4.	 	U.S. Bank National Association
	 	$	25,000,000.00	 
	 	 	 
	 	 	 	 
	5.	 	Fifth Third Bank
	 	$	25,000,000.00	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	 	 	Total Commitments
	 	$	150,000,000.00	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 	 
	 	 	Maximum Aggregate Commitments
	 	$	150,000,000.00	 





 


 









 





SCHEDULE 3.06




DISCLOSED MATTERS




The Borrower is engaged in various legal actions, which arise in the ordinary course of its
business. The Borrower is also currently under examination by various taxing authorities for
calendar years 2002 through 2005.


 


 









 





SCHEDULE 3.12




SUBSIDIARIES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Borrower
	 	 	Name	 	Entity and State	 	Ownership %
	 
	 	 	 	 	 	 	 	 
	of P.F. Chang’s China Bistro, Inc.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	A. Guarantors	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	1.

	 	PEI WEI ASIAN DINER,
INC.
	 	a Delaware corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	2.

	 	PFCCB ADMINISTRATION,
INC.
	 	a Delaware corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	3.

	 	PFCCB Shared Corporate
Services, Inc.
	 	an Arizona corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	4.

	 	PFCCB Gift Card, Inc.
	 	an Arizona corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	5.

	 	PFCCB Pinnacle Peak LLC
	 	an Arizona limited
liability company
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	6.

	 	PFCCB Equipment, LLC
	 	a Delaware limited
liability company
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	7.

	 	PFCCB Licensing, Inc.
	 	a Delaware corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	8.

	 	PFCCB Retail, Inc.
	 	a Delaware corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	B. Non-Guarantors	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD Southwest, Inc.
	 	a Texas corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	TANEKO JAPANESE TAVERN,
INC.
	 	a Delaware corporation
	 	 	94	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB 2005 Partnership
LLP
	 	an Arizona limited
liability partnership
	 	 	90.58	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB 2006 Partnership
LLP
	 	an Arizona limited
liability partnership
	 	 	93.77	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Lucky Cat Assistance
Fund, Inc.
	 	a Delaware nonprofit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PFC Building III
Limited Partnership
	 	an Arizona limited
partnership
	 	 	6.78	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB NUCA LLC
	 	an Arizona limited
liability company
	 	 	99.11	%






 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Borrower
	 	 	Name	 	Entity and State	 	Ownership %
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB NUCA (2003) LLC
	 	an Arizona limited
liability company
	 	 	88.39	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Mid-Atlantic LLC
	 	an Arizona limited
liability company
	 	 	93.82	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Southeastern LLC
	 	an Arizona limited
liability company
	 	 	95.40	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Southeastern
(2003) LLC
	 	an Arizona limited
liability company
	 	 	87.42	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB SO CAL LLC
	 	an Arizona limited
liability company
	 	 	97.06	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB SO CAL II LLC
	 	an Arizona limited
liability company
	 	 	91.39	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB SO CAL (2003) LLC
	 	an Arizona limited
liability company
	 	 	92.14	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB LouTex Joint
Venture LLP
	 	an Arizona limited
liability partnership
	 	 	99.37	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Florida Joint
Venture LLP
	 	an Arizona limited
liability partnership
	 	 	95.64	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB NewTex Joint
Venture LLP
	 	an Arizona limited
liability partnership
	 	 	88.95	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Midwest LLC
	 	an Arizona limited
liability company
	 	 	96.68	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Midwest (2003) LLC
	 	an Arizona limited
liability company
	 	 	92.92	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Northwest LLC
	 	an Arizona limited
liability company
	 	 	95.97	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Northwest (2004)
LLC
	 	an Arizona limited
liability company
	 	 	90.16	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Halpern LLC
	 	an Arizona limited
liability company
	 	 	99.21	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Marlton LLC
	 	a Delaware limited
liability company
	 	 	99	%






 


-2-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Borrower
	 	 	Name	 	Entity and State	 	Ownership %
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Edgewater LLC
	 	a Delaware limited
liability company
	 	 	99	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Wichita LLC
	 	a Kansas limited
liability company
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	P.F.C.C.B.
Club-Frankford, Inc.
	 	a Texas non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	P.F.C.C.B. Texas, Inc.
	 	a Texas corporation
(Wholly-owned by
PFCCB Licensing,
Inc.)
	 	None

	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Arkansas, Inc.
	 	an Arkansas
non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PFCCB Rogers, Inc.
	 	an Arkansas
non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PFC Hawaii LLC
	 	a Hawaii limited
liability company
	 	 	1	%
	 
	 	 	 	 	 	 	 	 
	 

	 	P.F. Chang’s III, L.L.C.
	 	an Arizona limited
liability company
	 	 	97.50	%
	 
	 	 	 	 	 	 	 	 
	of Pei Wei Asian Diner Inc.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner One
LLC
	 	an Arizona limited
liability company
	 	 	90.32	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner Two
(Dallas) LLC
	 	an Arizona limited
liability company
	 	 	94.48	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Three (SO CAL) LLC
	 	an Arizona limited
liability company
	 	 	87.20	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Four (Houston) LLP
	 	an Arizona limited
liability partnership
	 	 	90	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Five (Denver) LLC
	 	an Arizona limited
liability company
	 	 	90	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner Six
(Nevada) LLC
	 	an Arizona limited
liability company
	 	 	97.68	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Seven (Central Texas)
LLP
	 	an Arizona limited
liability partnership
	 	 	90	%






 


-3-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Borrower
	 	 	Name	 	Entity and State	 	Ownership %
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Nine (DC) LLC
	 	an Arizona limited
liability company
	 	 	94.66	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner Ten
(Florida) LLC
	 	an Arizona limited
liability company
	 	 	90	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Eleven (Minnesota) LLC
	 	an Arizona limited
liability company
	 	 	90	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Fourteen (North
Carolina) LLC
	 	an Arizona limited
liability company
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Asian Diner
Fifteen (Michigan), LLC
	 	an Arizona limited
liability company
	 	 	90	%
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei-the-Wei, Inc.
	 	a Texas corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD Texas, Inc.
	 	a Texas corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	The Arbors Club, Inc.
	 	a Texas non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD-Preston Center
Club, Inc.
	 	a Texas non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD Forest Lane Club,
Inc.
	 	a Texas non-profit
corporation
	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Pei Wei Houston, Inc.
	 	a Texas corporation
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD Olathe LLC
	 	a Kansas limited
liability company
	 	 	100	%
	 
	 	 	 	 	 	 	 	 
	 

	 	PWAD Overland Park LLC
	 	a Kansas limited
liability company
	 	 	100	%





 


-4-









 





SCHEDULE 3.13




OPERATING FACILITIES




P.F. CHANG’S CHINA BISTRO

STORE LIST*

(AS OF AUGUST 16, 2007)




	 	 	 
	740 South Mill Avenue

	 	8315 S. Park Meadow Center Drive
	Tempe, AZ 85281

	 	Littleton, CO 80124 
	 
	 	 
	8888 SW 136th Street, Suite T100

	 	17355 Biscayne Boulevard
	Miami, FL 33176

	 	Miami, FL 33160 
	 
	 	 
	3301 Veterans Memorial Boulevard

	 	4165 Paradise Road
	Metairie, LA 70002

	 	Las Vegas, NV 89109 
	 
	 	 
	6809-F Phillips Place Court

	 	1716 M International Drive
	Charlotte, NC 28210

	 	McLean, VA 22102 
	 
	 	 
	2041 Rosecrans Avenue

	 	1415 15th Street
	El Segundo, CA 90245

	 	Denver, CO 80202 
	 
	 	 
	500 Ashwood Parkway

	 	233 Summit Boulevard
	Atlanta, GA 30338

	 	Birmingham, AL 35243 
	 
	 	 
	1819 Lake Cook Road

	 	2801 W. Big Beaver, 1st Level D-112 
	Northbrook, IL 60062

	 	Troy, MI 48084 
	 
	 	 
	8500 Beverly Boulevard, #117 and 119

	 	8 Park Plaza
	Los Angeles, CA 90048

	 	Boston, MA 02116 
	 
	 	 
	436 North Orlando Avenue

	 	1504 Old Country Road
	Winter Park, FL 32789

	 	Westbury, NY 11590 
	 
	 	 
	4325 Glenwood Avenue, Space 225B

	 	390 Hackensack Ave., Suite 50 
	Raleigh, NC 27612

	 	Hackensack, NJ 07601 
	 
	 	 
	7132 East Greenway Parkway

	 	326 Wilshire Boulevard
	Phoenix, AZ 85254

	 	Santa Monica, CA 90401 
	 
	 	 
	1205 Broadway Plaza

	 	174 West 300 South
	Walnut Creek, CA 94596

	 	Salt Lake City, UT 84101 






 


 









 





	 	 	 
	1095 South Rampart Boulevard

	 	4040 Townsfair Way
	Las Vegas, NV 89128

	 	Columbus, OH 43219 
	 
	 	 
	2340 Mansell Road

	 	102 West 47th Street
	Alpharetta, GA 30022

	 	Kansas City, MO 64112 
	 
	 	 
	11301 Rockville Pike, #1-4.1 and 1-4.2

	 	530 North Wabash
	North Bethesda, MD 20895

	 	Chicago, IL 60606 
	 
	 	 
	3333 Buford Drive, Bldg. 4, #VA-03

	 	1805 East River Road, Suite 101 
	Buford, GA 30519

	 	Tucson, AZ 85718 
	 
	 	 
	1181 Ridgeway Road

	 	7077 Friars Road
	Memphis, TN 38119

	 	San Diego, CA 92108 
	 
	 	 
	21821 Oxnard Street

	 	2361 Fountain Square Drive
	Woodland Hills, CA 91367

	 	Lombard, IL 60148 
	 
	 	 
	125 Westchester Avenue, Space D315

	 	61 Fortune Drive
	White Plains, NY 10601

	 	Irvine, CA 92718 
	 
	 	 
	1145 Newport Center Drive

	 	1 West Flat Iron Circle, Unit 500, Bldg. 5 
	Newport Beach, CA 92660

	 	Broomfield, CO 80021 
	 
	 	 
	2525 West End

	 	2633 Edmonson Road
	Nashville, TN 37203

	 	Norwood, OH 45209 
	 
	 	 
	1180 Galleria Boulevard

	 	25101 Chagrin Boulevard
	Roseville, CA 95678

	 	Beachwood, OH 44122 
	 
	 	 
	49 West Maryland Street, Suite 226

	 	3667 Las Vegas Boulevard South
	Indianapolis, IN 46204

	 	Las Vegas, NV 89109 
	 
	 	 
	27000 Crown Valley Parkway

	 	525 Bellevue Square
	Mission Viejo, CA 92691

	 	Bellevue, WA 98004 
	 
	 	 
	8601 Keystone Crossing

	 	10300 Little Patuxent Parkway
	Indianapolis, IN 46240

	 	Columbia, MD 21044 
	 
	 	 
	1400 Glades Road, Bay 220

	 	3255 West Chandler Boulevard
	Boca Raton, FL 33431

	 	Chandler, AZ 85266 
	 
	 	 
	390 West El Camino Real

	 	148 West Bridge Street
	Sunnyvale, CA 94087

	 	West Homestead, PA 15120 






 


-2-









 





	 	 	 
	260 East Colorado Boulevard, Suite 201

	 	2700 Southdale Center
	Pasadena, CA 91109

	 	Edina, MN 55435 
	 
	 	 
	71800 Highway 111, Suite C104

	 	500 Route 73 South, Space G1
	Rancho Mirage, CA 92270

	 	Marlton, NJ 08053 
	 
	 	 
	15301 Ventura Boulevard, Suite P-22

	 	10840 Tamiami Trail
	Sherman Oaks, CA 91403

	 	Naples, FL 34108 
	 
	 	 
	180 El Camino Real

	 	439 Cool Springs Boulevard
	Palo Alto, CA 94304

	 	Franklin, TN 37067 
	 
	 	 
	575 East University Parkway

	 	2500 North Mayfair Road
	Orem, UT 84097

	 	Wauwatosa, WI 53226 
	 
	 	 
	6741 Kingston Pike 

Knoxville, TN 37919

	 	10150 California Street

Omaha, NE 68114
	 
	 	 
	3101 PGA Boulevard, Suite F142

	 	4551 Virginia Beach Boulevard
	Palm Beach Gardens, FL 33410

	 	Virginia Beach, VA 23462 
	 
	 	 
	4200 Conroy Road, Space A144

	 	2425 Lake Lansing Road
	Orlando, FL 32839

	 	Lansing, MI 48912 
	 
	 	 
	1295 Chesterfield Parkway East

	 	16170 North 83rd Avenue
	Chesterfield, MO 63017

	 	Peoria, AZ 85382 
	 
	 	 
	4440 The 25 Way, NE

	 	5180 Kietzke Lane
	Albuquerque, NM 87107

	 	Reno, NV 89509 
	 
	 	 
	219 Westshore Plaza

	 	6135 Parkcenter Circle
	Tampa, FL 33609

	 	Dublin, OH 43017 
	 
	 	 
	1725 Briargate Parkway

	 	17905 Haggerty Road
	Colorado Springs, CO 80920

	 	Northville Township, MI 48167 
	 
	 	 
	9212 Stony Point

	 	4250 Fairfax Corner Avenue
	Richmond, VA 23235

	 	Fairfax, VA 22030 
	 
	 	 
	1139 NW Couch Street

	 	340 South Pine Avenue
	Portland, OR 97209

	 	Long Beach, CA 90801 
	 
	 	 
	820 Eastview Mall

	 	6801 Fayetteville Road
	Victor, NY 14564

	 	Durham, NC 27713 






 


-3-









 





	 	 	 
	1530 J Street, Suite 100

	 	983 Baltimore Pike
	Sacramento, CA 95814

	 	Glen Mills, PA 19342 
	 
	 	 
	98 South Second Street

	 	101 South Green Valley Parkway
	San Jose, CA 95113

	 	Henderson, NV 89012 
	 
	 	 
	12071 Elm Creek Boulevard

	 	9435 Civic Center Boulevard
	Maple Grove, MN 55369

	 	West Chester, OH 45069 
	 
	 	 
	400 Pine Street, Suite 136

	 	1401 Waterfront Parkway
	Seattle, WA 98101

	 	Wichita, KS 67206 
	 
	 	 
	201 East Magnolia Boulevard, Suite 281

	 	5633 Bay Street
	Burbank, CA 91502

	 	Emeryville, CA 94608 
	 
	 	 
	110 South Jordan Creek Parkway

	 	19320 NW Emma Way
	West Des Moines, IA 50266

	 	Hillsboro, OR 97124 
	 
	 	 
	10 Port Imperial Boulevard

	 	3000 184th Street, Suite 912 
	West New York, NJ 07093

	 	Lynnwood, WA 98037 
	 
	 	 
	7210 W. Alameda Avenue

	 	2801 N. Pacific Avenue, Suite 101 
	Lakewood, CO 80226

	 	Atlantic City, NJ 08401 
	 
	 	 
	13700 N. Pennsylvania Avenue

	 	7870 Monticello Avenue
	Oklahoma City, OK 73134

	 	Rancho Cucamonga, CA 91739 
	 
	 	 
	10281 Midtown Parkway, Suite 137

	 	7341 Corporate Boulevard
	Jacksonville, FL 32246

	 	Baton Rouge, LA 70809 
	 
	 	 
	317 S. Shackleford Road

	 	25 The Boulevard Saint Louis
	Little Rock, AR 72211

	 	Richmond Heights, MO 63117 
	 
	 	 
	925 Blossom Hill Road, Suite 1515

	 	6610 E. Superstition Springs Blvd.
	San Jose, CA 95123

	 	Mesa, AZ 85206 
	 
	 	 
	2250 E. Thousand Oaks Blvd.

	 	7463SW Bridgeport Road
	Thousand Oaks, CA 91362

	 	Tigard, OR 97224 
	 
	 	 
	9120 Shelbyville Road

	 	5 Woodfield Mall, Space D313 
	Hurstbourne, KY 40222

	 	Schaumburg, IL 60173 
	 
	 	 
	391 S. 8th Street

	 	7135 E. Camelback Road
	Boise, ID 83702

	 	Scottsdale, AZ 85251 






 


-4-









 





	 	 	 
	5915 Sky Pond Drive

	 	7894 N. Blackstone Avenue
	Loveland, CO 80538

	 	Fresno, CA 93720 
	 
	 	 
	23902 E. Prospect Avenue

	 	2626 Miamisburg-Centerville Road
	Aurora, CO 80016

	 	Dayton, OH 45459 
	 
	 	 
	2237 Deming Way

	 	4540 La Jolla Village Drive
	Middleton, WI 52562

	 	San Diego, CA 92121 
	 
	 	 
	901 S. Miami Avenue, Suite 104

	 	1127 Woodruff Road
	Miami, FL 33131

	 	Greenville, SC 29607 
	 
	 	 
	3338 W. Friendly Avenue

	 	901 N. Glebe Road
	Greensboro, NC 27410

	 	Arlington, VA 22203 
	 
	 	 
	3525 Carson Street

	 	3545 US Route 1
	Torrance, CA 90503

	 	Princeton, NJ 08540 
	 
	 	 
	43316 Christy Street

	 	10700 Stockdale Highway
	Fremont, CA 94538

	 	Bakersfield, CA 93309 
	 
	 	 
	801 W. Main

	 	2203 S. Promenade, Suite 13100 
	Spokane, WA 99201

	 	Rogers, AR 72758 
	 
	 	 
	2418 East Sunrise Blvd.

	 	2015 Birch Road, Suite 1401 
	Ft. Lauderdale, FL 33304

	 	Chula Vista, CA 91915 
	 
	 	 
	2110 Hamilton Place Blvd.

	 	1624 Cumberland Mall, Suite LS108 
	Chattanooga, TN 37421

	 	Atlanta, GA 30339 
	 
	 	 
	14135 S. LaGrange Road

	 	3475 Tyler Street
	Orland Park, IL 60462

	 	Riverside, CA 92503 
	 
	 	 
	3405 Nicholasville Road

	 	1330 Stoneridge Mall Road
	Lexington, KY 40503

	 	Pleasanton, CA 94588 
	 
	 	 
	600 E. Pratt Street, Suite 101

	 	124 Coburg Road
	Baltimore, MD 21202

	 	Eugene, OR 97401 
	 
	 	 
	800 Boylston Street

	 	10081 Gulf Center Drive
	Boston, MA 02199

	 	Ft. Myers, FL 33913 
	 
	 	 
	10325 Perimeter Parkway
	 	 
	 
	 	 
	Charlotte, NC 28216 
	 	 








 




			
	*	 	All facilities are leased restaurant locations.





 


-5-









 





PEI WEI ASIAN DINER

STORE LIST*

(AS OF AUGUST 16, 2007)




	 	 	 
	8787 N. Scottsdale Road, Suites 214/216

	 	20851 N. Scottsdale Road, Suite 3 
	Scottsdale, AZ 85258

	 	Scottsdale, AZ 85255 
	 
	 	 
	1085 West Queen Creek Road, Suite 1

	 	32607 N. Scottsdale Road, Suite 107 
	Chandler, AZ 85248

	 	Scottsdale, AZ 85262 
	 
	 	 
	5781 Alton Parkway

	 	845 E. University Blvd., Suite 135 
	Irvine, CA 92618

	 	Tucson, AZ 85719 
	 
	 	 
	1560A Leucadia Boulevard

	 	14835 East Shea Boulevard, Suite 100 
	Encinitas, CA 92024

	 	Fountain Hills, AZ 85268 
	 
	 	 
	1084 South Gilbert Road, Suite 601

	 	742 East Glendale, Suite 110 
	Gilbert, AZ 85296

	 	Phoenix, AZ 85020 
	 
	 	 
	9352 S. Colorado Boulevard, Suite G-1

	 	20022 North 67th Avenue, Suite 100 
	Highlands Ranch, CO 80126

	 	Glendale, AZ 85308 
	 
	 	 
	1302 Bison Avenue

	 	4340 East Indian School Road, Suite 23 
	Newport Beach, CA 92660

	 	Phoenix, AZ 85018 
	 
	 	 
	7131 West Ray Road

	 	18204 Preston Road, Suite E-1 
	Chandler, AZ 85226

	 	Dallas, TX 75252 
	 
	 	 
	3412 Hebron Parkway, Suite 100

	 	5900 Overton Ridge Blvd., Suite 130 
	Carrollton, TX 75010

	 	Fort Worth, TX 76132 
	 
	 	 
	19075 I.H. 45 South, Suite 480

	 	5110 Buffalo Speedway, Suite 100 
	Shenandoah, TX 77385

	 	Houston, TX 77005 
	 
	 	 
	7600 N. MacArthur Blvd., Suite 105

	 	4133 East Cooper Street, Suite 307 
	Irving, TX 75063

	 	Arlington, TX 76015 
	 
	 	 
	3001 Knox Street, Suite 100

	 	16101 Kensington Drive
	Dallas, TX 75205

	 	Sugar Land, TX 77479 
	 
	 	 
	1311 West Sunset Road

	 	24250 Valencia Boulevard
	Henderson, NV 89014

	 	Santa Clarita, CA 91355 
	 
	 	 
	5203 FM 1960 West, Suite E

	 	200 Quebec Street, Bldg. 100, Suite 115 
	Houston, TX 77069

	 	Denver, CO 80230 






 


-6-









 





	 	 	 
	8305 Westchester Drive

	 	1582 East Southlake Boulevard
	Dallas, TX 75225

	 	Southlake, TX 76092 
	 
	 	 
	713 Hebron Parkway, Suite 200

	 	1008 W. McDermott Drive, Suite A
	Lewisville, TX 75057

	 	Allen, TX 75013 
	 
	 	 
	3455 East Foothill Boulevard

	 	2777 Pacific Coast Highway
	Pasadena, CA 91107

	 	Torrance, CA 90505 
	 
	 	 
	11700 Preston Road, Suite A

	 	2201 Louisiana Boulevard NE, Suite G
	Dallas, TX 75230

	 	Albuquerque, NM 87110 
	 
	 	 
	5285 E. Broadway Boulevard, Suite 151

	 	1028 East 2100 South, Suite 3 
	Tucson, AZ 85711

	 	Salt Lake City, UT 84106 
	 
	 	 
	5954 South Yale Avenue

	 	3426 E. Baseline Road, Suite 121 
	Tulsa, OK 74135

	 	Mesa, AZ 85204 
	 
	 	 
	7148 N. Academy Boulevard

	 	702 Kingwood Drive
	Colorado Springs, CO 80920

	 	Kingwood, TX 77339 
	 
	 	 
	1590 Mason Road, Suite A

	 	12901 N. I-35 Service Rd., Bldg. 15, Suite 1540 
	Katy, TX 77450

	 	Austin, TX 78753 
	 
	 	 
	4801 Beltline Road

	 	1005 Waugh Street, Suite A
	Addison, TX 75254

	 	Houston, TX 77019 
	 
	 	 
	10341 Fairway Drive, Suite 130

	 	1841 Belle Isle Boulevard
	Roseville, CA 95678

	 	Oklahoma City, OK 73118 
	 
	 	 
	1802 N. Loop, 1604 East

	 	19411 – A Gulf Freeway
	San Antonio, TX 78232

	 	Webster, TX 77598
	 
	 	 
	14255 Colfax Drive

	 	1000 East 41st Street
	Lakewood, CO 80401

	 	Austin, TX 78751
	 
	 	 
	12020 FM 1960 West 

Houston, TX 77065

	 	4200 South Lamar Blvd. 

Austin, TX 78704
	 
	 	 
	10373 South State Street

	 	11267 Huebner Road
	Sandy, UT 84070

	 	San Antonio, TX 78230
	 
	 	 
	8220 Haven Avenue, Suite 100

	 	4517 Weston Road
	Rancho Cucamonga, CA 91730

	 	Weston, FL 33331






 


-7-









 





	 	 	 
	101 Creekside Crossing, Suite 1800

	 	1141 East 2nd Street, Suite 100-A
	Brentwood, TN 37027

	 	Edmond, OK 73034
	 
	 	 
	10830 W. Charleston Blvd., Suite 110

	 	8300 Tamarack Village #102
	Las Vegas, NV 89135

	 	Woodbury, MN 55125
	 
	 	 
	3011 E. Colonial Dr., Suite B

	 	1825 Guadalupe, Suite F-112
	Orlando, FL 32803

	 	Tempe, AZ 85283
	 
	 	 
	10575 S. Eastern Ave., Suite 100

	 	633 W. Ina Road
	Henderson, NV 89052

	 	Tucson, AZ 85718
	 
	 	 
	12561 Castlemoor Drive

	 	6302 York Road
	Eden Prairie, MN 55344

	 	Baltimore, MD 21212
	 
	 	 
	13855 Conlan Circle, Suite J

	 	14008 Memorial Drive, Suite A
	Charlotte, NC

	 	Houston, TX 77079
	 
	 	 
	980A University Drive East #4

	 	10251 Little Brier Creek Lane, Suite 112
	College Station, TX 77840

	 	Raleigh, NC 27617
	 
	 	 
	601 West 15th Street, Suite 101

	 	7621 Edinger Road, #102
	Plano, TX 75075

	 	Huntington Beach, CA 92647
	 
	 	 
	6478 Dobbin Center Way, Suite A

	 	1750 N. Congress Ave., #700 
	Columbia, MD 21045

	 	Boynton Beach, FL 33426
	 
	 	 
	2222 Mckinney Ave., Suite 100

	 	267 East Bell Road, Suite 1
	Dallas, TX 75201

	 	Phoenix, AZ 85022
	 
	 	 
	3095 White Bear Ave., N

	 	4170 Lavon Drive
	Maplewood, MN 55109

	 	Garland, TX 75040
	 
	 	 
	23632 El Toro Road

	 	2600 West 7th Street, Suite 101
	Lake Forest, CA 92630

	 	Fort Worth, TX 76107
	 
	 	 
	1680 Union Ave., Suite 109

	 	10610 Forest Hill Blvd., Bay 10
	Memphis, TN 38104

	 	Wellington, FL 33414
	 
	 	 
	10420 Coors Bypass NW, Suite 1B

	 	4609 West Kenosha Street
	Albuquerque, NM 87114

	 	Broken Arrow, OK 74012
	 
	 	 
	4408 Falls of Neuse Road

	 	1255 East First Ave., Suite A
	Raleigh, NC 27619

	 	Broomfield, CO 80020






 


-8-









 





	 	 	 
	15141 West 119th

	 	11398 Bandera Road, Suite 101 
	Olathe, KS 66062

	 	San Antonio, TX 78250 
	 
	 	 
	4210 82nd Street, Suite 230

	 	2603 39th Ave., #D212 
	Lubbock, TX 79423

	 	St. Anthony, MN 55421 
	 
	 	 
	4461 Market Commons Dr.

	 	9222 Metcalf Ave.
	Fairfax, VA 22033

	 	Overland Park, KS 66212 
	 
	 	 
	1413 South Voss Road, Suite A

	 	1107 Walnut Street
	Houston, TX 77057

	 	Cary, NC 27511 
	 
	 	 
	3000 South Central Expressway

	 	11430 Olive Blvd.
	McKinney, TX 75070

	 	Creve Coeur, MO 63141 
	 
	 	 
	1675 29th Street, Suite 1284

	 	205 North University Ave.
	Boulder, CO 80301

	 	Little Rock, AR 72205 
	 
	 	 
	1619 N. Dysart Road, Suite 101

	 	8412 Preston Road, Suite 400 
	Avondale, AZ 85323

	 	Plano, TX 75024 
	 
	 	 
	2100 N. Collins Street, Suite 120

	 	7500 North Mesa Street, Suite 101 
	Arlington, TX 76011

	 	El Paso, TX 79912 
	 
	 	 
	3535 South Peoria

	 	71 North 500 West, Suite A
	Tulsa, OK 74105

	 	West Bountiful, UT 84010 
	 
	 	 
	1911 Medical Center Parkway, Suite A

	 	10562 Craftsman Way, Suite 9A
	Murfreesboro, TN 37129

	 	San Diego, CA 92127 
	 
	 	 
	13429 North Highway 183

	 	8885 Ladue Road, Suite 1 
	Austin, TX 78750

	 	Ladue, MO 63124 
	 
	 	 
	8305 Westchester Drive

	 	7175 West Lake Mead Blvd., Suite 130 
	Dallas, TX 75225

	 	Las Vegas, NV 89128 
	 
	 	 
	4300A West Waco Drive, Suite 1

	 	7571 Sawmill Road
	Waco, TX 76710

	 	Dublin, OH 43017 
	 
	 	 
	3521 North Freeway Blvd., Suite 100

	 	522 North Pine Island Road
	Sacramento, CA 95834

	 	Plantation, FL 33324 
	 
	 	 
	3350 South Soncy, Suite 194

	 	12927 N. Dale Mabry Hwy
	Amarillo, TX 79124

	 	Tampa, FL 33618 






 


-9-









 





	 	 	 
	4 Chapel View Blvd.

	 	1931 South Loop 288, Suite 130 
	Cranston, RI 02920

	 	Denton, TX 76205 
	 
	 	 
	528A East Market Street

	 	2101 S.E. Federal Highway
	Leesburg, VA 20176

	 	Stuart, FL 34994 
	 
	 	 
	701 W. McDowell Road, Suite 101

	 	2338 Woodland Crossing Drive, Suite A
	Phoenix, AZ 85003

	 	Herndon, VA 20171 
	 
	 	 
	2257 N. Germantown Pkwy., Suite 110

	 	7620 W. Denton Highway #632 
	Memphis, TN 38016

	 	Watauga, TX 76148 
	 
	 	 
	2695 Park Avenue

	 	430 West Loop 1604 North, Suite 101 
	Tustin, CA 92782

	 	San Antonio, TX 78251 
	 
	 	 
	31367 Orchard Lake Road

	 	3050 Dowlen Road Suite N
	Farmington Hills, MI 48334

	 	Beaumont, TX 77706 








 




			
	*	 	All facilities are leased restaurant locations.





 


-10-









 





TANEKO JAPANESE TAVERN

STORE LIST*




6616 North Scottsdale Road, Suite 601

Scottsdale, AZ 85253





 




			
	*	 	All facilities are leased restaurant locations.





 


-11-









 





PFCCB PINNACLE

PEAK, LLC**




7676 East Pinnacle Peak Road

Scottsdale, AZ 85255





 




			
	**	 	Facility is the corporate headquarters, owned by PFCCB Pinnacle Peak, LLC.





 


-12-









 





PFCCB PINNACLE

PEAK, LLC**




7676 E. Pinnacle Peak Road

Scottsdale, AZ 85255





 




			
	**	 	Facility is the corporate headquarters, owned by PFCCB Pinnacle Peak, LLC.





 


-13-









 





SCHEDULE 6.01




EXISTING INDEBTEDNESS





	1.	 	Reference is hereby made to Schedule 3.06.

	 
	2.	 	Indebtedness arising from the Borrower’s repurchase of up to $50 Million of the Borrower’s
outstanding common stock.

	 
	3.	 	Promissory notes totaling approximately $11,194,000.00, payable to minority owners under
partnership agreements with the Borrower and Subsidiaries’ regional managers, certain general
managers, and certain executive chefs.

	 
	4.	 	Any Borrower or Subsidiary restaurant leases.

	 
	5.	 	Promissory notes totaling approximately $975,000 related to various liquor licenses.





 


 









 





SCHEDULE 6.02




EXISTING LIENS




UCC FILINGS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	Winthrop Resources
Corporation
	 	UCC-1 filed
10/1/01; File No.
11264931
 

UCC-3 Amendment
filed 5/21/02; File
No. 21469158 (to
add collateral)

 

UCC-3 Amendment
filed 7/10/02; File
No. 21904709 (to
restate collateral)
	 	All accounts,
chattel paper,
instruments, general
intangibles and rights
to payment of every
kind; notice of true
lease
	 	Expires 10/1/06
	PFCCBI

	 	Information Leasing
Corporation (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
11/13/01; File No.
11663454
 

UCC-3 Assignment
filed 5/9/02; File
No. 21345341
	 	Computer equipment
	 	Expires 11/13/06
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
1/22/02; File No.
20370159
	 	Computer equipment
	 	Expires 1/22/07
	PFCCBI

	 	Winthrop Resources
Corporation
	 	UCC-1 filed
2/11/02; File No.
20594071
	 	Computer equipment
	 	Expires 2/11/07
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed 3/7/02;
File No. 20779391
	 	Computer equipment
	 	Expires 3/7/07






 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	Winthrop Resources
Corporation
	 	UCC-1 filed
4/24/02; File No.
21188659
	 	Computer equipment
	 	Expires 4/24/07
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
6/22/02; File No.
21787500
 

UCC-3 Amendment
filed 2/3/03; File
No. 30556889
	 	Computer equipment
	 	Expires 6/22/07
	PFCCBI

	 	GE Capital Franchise
Finance Corporation,
Successor by Merger to
FFCA Acquisition
Corporation
	 	UCC-1 filed 9/5/02;
File No. 22244428
	 	All right title
and interest to
Standard Form of
Agreement between
Owner and Architect
dated 9/18/95, between
Debtor and Jeff Looker
Architects and all
amendments and
modifications and
Standard Form of
Agreement between
Owner and General
Contractor dated
4/23/96 between Debtor
and Breslin Builders
and all amendments and
modifications and all
plans, specifications,
drawings, permits,
licenses, agreements,
approvals and consents
relating to
construction of
restaurant (Las Vegas)
	 	Expires 9/5/07






 


-2-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	Banc of America Leasing
& Capital, LLC (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
10/22/02; File No.
22763468
 

UCC-3 Amendment
filed 4/28/03; File
No. 31243669
 

UCC-3 Assignment
filed 6/23/03; File
No. 31580334
	 	Computer equipment
	 	Expires 10/22/07
	PFCCBI

	 	Information Leasing
Corporation (by
assignment from Comtech
Capital, L.L.C.)
	 	UCC-1 filed
3/11/03; File No.
30582745
 

UCC-3 Assignment
filed 5/30/03; File
No. 31373037
	 	CCTV System
	 	Expires 3/11/08
	PFCCBI

	 	Information Leasing
Corporation (by
assignment from Comtech
Capital, L.L.C.)
	 	UCC-1 filed
3/11/03; File No.
30583032
 

UCC-3 Assignment
filed 5/30/03; File
No. 31373144
	 	CCTV System
	 	Expires 3/11/08
	PFCCBI

	 	Information Leasing
Corporation (by
assignment from Comtech
Capital, L.L.C.)
	 	UCC-1 filed
3/11/03; File No.
30583289
 

UCC-3 Assignment
filed 5/30/03; File
No. 31373326
	 	CCTV System
	 	Expires 3/11/08
	PFCCBI

	 	Information Leasing
Corporation (by
assignment from Comtech
Capital, L.L.C.)
	 	UCC-1 filed
3/11/03; File No.
30583461
 

UCC-3 Assignment
filed 5/30/03; File
No. 31373383
	 	CCTV System
	 	Expires 3/11/08






 


-3-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	Banc of America Leasing
& Capital, LLC (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
2/26/03; File No.
30672520
 

UCC-3 Assignment
filed 9/26/03; File
No. 32500000
	 	Computer equipment
	 	Expires 2/26/08
	PFCCBI

	 	Winthrop Resources
Corporation
	 	UCC-1 filed
3/11/03; File No.
30734833
	 	Computer equipment
	 	Expires 3/11/08
	PFCCBI

	 	Bank of America Leasing
& Capital, LLC (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
6/18/03; File No.
31849499
 

UCC-3 Assignment
filed 1/23/04; File
No. 40420721
	 	Computer equipment
	 	Expires 6/18/08
	PFCCBI

	 	Bank of America Leasing
& Capital, LLC (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
10/09/03; File No.
31849549
 

UCC-3 Assignment
filed 1/23/04; File
No. 32634551
	 	Computer equipment
	 	Expires 6/18/08
	PFCCBI

	 	Bank of America Leasing
& Capital, LLC (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
9/04/03; File No.
32465436
 

UCC-3 Assignment
filed 9/21/04; File
No. 42639047
	 	Computer equipment
	 	Expires 9/4/08
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
9/30/03; File No.
32626714
 

UCC-3 Amendment
filed 5/20/04; File
No. 41562869
	 	Computer equipment
	 	Expires 9/30/08






 


-4-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed 1/9/04;
File No. 40290041
	 	Computer equipment
	 	Expires 1/9/09
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
2/17/04; File No.
40553364
 

UCC-3 Amendment
filed 9/2/04; File
No. 42526236
	 	Computer equipment
	 	Expires 2/17/09
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
3/30/04; File No.
40992299
	 	Computer equipment
	 	Expires 3/30/09
	PFCCBI

	 	Computer Sales
International, Inc. (by
assignment from Bank of
America Leasing &
Capital, LLC)
	 	UCC-1 filed
4/26/04; File No.
41336751
 

UCC-3 Assignment
filed 6/4/04; File
No. 41696428
	 	Filed “In Lieu of
Continuation” for the
following UCCs:
6/21/00 001122715 (AZ
Secy of State)
6/21/00 000470786
(Maricopa County)
	 	Expires 4/26/09
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
5/17/04; File No.
41547902
	 	Computer equipment
	 	Expires 5/17/09
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed 9/2/04;
File No. 42546333
	 	Computer equipment
	 	Expires 9/2/09






 


-5-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	CSI Leasing, Inc. (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
9/29/04; File No.
42734186
 

UCC-3 Assignment
filed 7/8/05; File
No. 52097666
 

UCC-3 Amendment
filed 7/11/05; File
No. 52225176
	 	Computer equipment
	 	Expires 9/29/09
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
1/21/05; File No.
50260944
	 	Computer equipment
	 	Expires 1/21/10
	PFCCBI

	 	CSI Leasing, Inc. (by
assignment from Computer
Sales International,
Inc.)
	 	UCC-1 filed
2/04/05; File No.
50391095
 

UCC-3 Assignment
filed 8/23/05; File
No. 52616481
 

UCC-3 Amendment
filed 8/26/05; File
No. 52727114
	 	Computer equipment
	 	Expires 2/4/10
	PFCCBI

	 	Computer Sales
International, Inc.
	 	UCC-1 filed
2/18/05; File No.
50657719
	 	Computer equipment
	 	Expires 2/18/10
	PFCCBI

	 	Goldberg Realty
Consulting, Inc.
	 	UCC-1 filed
4/25/05; File No.
51264440
	 	All of Debtor’s right,
title and interest in
100% of the membership
interests in PFCCB
Edgewater LLC, a
Delaware LLC, and all
proceeds, dividends
and distributions
thereof or therefrom.
	 	Expires 4/25/10






 


-6-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
6/16/05; File No.
51857367
 

UCC-3 Amendment
filed 1/17/06; File
No. 60162016
	 	Computer equipment
	 	Expires 6/16/10
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
9/20/05; File No.
52974393
	 	Computer equipment
	 	Expires 9/20/10
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
9/20/05; File No.
52974419
	 	Computer equipment
	 	Expires 9/20/10
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
9/20/05; File No.
53127512
 

UCC-3 Amendment
filed 6/12/06; File
No. 61987536
	 	Computer equipment
	 	Expires 9/20/10
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
2/06/06; File No.
60439463
 

UCC-3 Amendment
filed 8/23/06; File
No. 62942779
	 	Computer equipment
	 	Expires 2/6/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
2/06/06; File No.
60441600
	 	Computer equipment
	 	Expires 2/6/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
2/08/06; File No.
60474833
	 	Computer equipment
	 	Expires 2/8/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
3/14/06; File No.
60861096
	 	Computer equipment
	 	Expires 3/14/11






 


-7-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
5/19/06; File No.
61706407
	 	Computer equipment
	 	Expires 5/19/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
6/14/06; File No.
62029999;
 

UCC-3 Amendment
filed 2/07/07; File
No. 70488840
	 	Computer equipment
	 	Expires 6/14/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed 7/6/06;
File No. 62323830
	 	Computer equipment
	 	Expires 7/6/11
	PFCCBSCS

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/7/06;
File No.
200614316333
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/7/11
	PFCCBGC

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/7/06;
File No.
200614316344
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/7/11






 


-8-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBPP

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/7/06;
File No.
200614316355
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/7/11
	PFCCBI

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/9/06;
File No. 62830164
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/9/11
	PWADI

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/9/06;
File No. 62847648
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/9/11
	PFCCBA

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/9/06;
File No. 62852143
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/9/11






 


-9-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PFCCBE

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed 8/9/06;
File No. 62850246
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/9/11
	PFCCBL

	 	JPMorgan Chase Bank, N.A.
	 	UCC-1 filed
8/10/06; File No.
62855880
	 	All accounts, chattel
paper, documents,
equipment, farm
products, fixtures,
general intangibles,
instruments,
inventory, investment
property, pledged
deposits and other
collateral
	 	Expires 8/10/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
9/21/06; File No.
63266947
	 	Computer equipment
	 	Expires 9/21/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
10/18/06; File No.
63620457

 

UCC-3 Amendment
filed 5/11/07; File
No. 71789048
	 	Computer equipment
	 	Expires 10/18/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
11/6/06; File No.
63864618
	 	Computer equipment
	 	Expires 11/6/11
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
1/29/07; File No.
70358837
	 	Computer equipment
	 	Expires 1/29/12






 


-10-









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	TYPE/FILE NUMBER &	 	 	 	EXPIRATION
	DEBTOR	 	SECURED PARTY	 	DATE	 	COLLATERAL	 	DATE
	PWADI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
4/25/07; File No.
71554285
	 	All property now or
hereafter placed in
the Leased Premises at
540 South Mendenhall,
Suite 9, Memphis,
Tennessee 38117
	 	Expires 4/5/12
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
5/23/07; File No.
71951218
	 	Computer equipment
	 	Expires 5/23/12
	PFCCBI

	 	CSI Leasing, Inc.
	 	UCC-1 filed
6/11/07; File No.
72188000
	 	Computer equipment
	 	Expires 6/11/12






PFCCBI = P.F. Chang’s China Bistro, Inc.

PWADI = Pei Wei Asian Diner, Inc.

PFCCBA = PFCCB Administration, Inc.

PFCCBSCS = PFCCB Shared Corporate Services, Inc.

PFCCBGC = PFCCB Gift Card, Inc.

PFCCBPP = PFCCB Pinnacle Peak, LLC

PFCCBE = PFCCB Equipment, LLC

PFCCBL = PFCCB Licensing, Inc.



 


-11-









 





SCHEDULE 6.08




EXISTING RESTRICTIONS




None





 


 









 







EXHIBIT “A”

 

FORM OF ASSIGNMENT AND ASSUMPTION




This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, 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 Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, 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
rights and obligations in its capacity as a Lender 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 under the respective facilities identified below (including any letters of credit and
guarantees and Swingline Loans included in such facilities) 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) 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 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 pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 
	1.      Assignor:
	 	 
	 

	 	 

	 
	 	 
	2.      Assignee:
	 	 
	 
	 	 

	 

	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3.      Borrower:

	 	P.F. Chang’s China Bistro, Inc., a Delaware corporation
	 
	 	 
	4.      Administrative Agent:

	 	JPMorgan Chase Bank, N.A., a national banking association, as the administrative agent
under the Credit Agreement








 




			
	1	 	Select as applicable.





 


 









 





	 	 	 
	5.      Credit Agreement:

	 	The Credit Agreement dated as of
 _____ 
among P.F. Chang’s China Bistro, Inc., a Delaware
corporation, the Lenders parties thereto, JPMorgan Chase Bank, N.A., a national banking
association, as Administrative Agent, and the other agents parties thereto]
	 	 	 
	6.      Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	Percentage Assigned	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	of	 
	Facility Assigned2	 	for all Lenders	 	 	Assigned	 	 	Commitment/Loans3	 
	 
	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	$	 	 	 	$	 	 	 	 	 	%






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




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



	 	 	 	 	 
	 	 	ASSIGNOR
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 








 




			
	2	 	Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment.

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





 


-2-









 





Consented to and Accepted:



JPMORGAN CHASE BANK, N.A., a national

banking association, as Administrative Agent



	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






Consented to:



P.F. CHANG’S CHINA BISTRO, INC.,

a Delaware corporation



	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 





 


-3-









 





ANNEX 1




[                                        ]1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the 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,2 (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 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 satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (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 Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section
 _____ 
thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender,3 attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the 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 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.





 




			
	1	 	Describe Credit Agreement at option of
Administrative Agent.

	 
	2	 	The term “Loan Document” should be conformed
to that used in the Credit Agreement.

	 
	3	 	The concept of “Foreign Lender” should be
conformed to the section in the Credit Agreement governing withholding taxes
and gross-up.





 


 









 





2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the 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 Arizona [confirm that choice of law
provision parallels the Credit Agreement].




 


-2-









 







EXHIBIT “B”




FORM OF NOTE

(Revolving Loans)




August 31, 2007




P.F. CHANG’S CHINA BISTRO, INC., a Delaware corporation (the “Borrower”), promises to pay to
the order of JPMORGAN CHASE BANK, N.A. (the “Lender”) the aggregate unpaid principal amount of all
Revolving Loans made by the Lender to the Borrower pursuant to Article II of the Agreement (as
hereinafter defined), in immediately available funds at the main office of JPMORGAN CHASE BANK,
N.A., as Administrative Agent, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay the principal of and
accrued and unpaid interest on the Revolving Loans in full on the Revolving Loan Maturity Date.



Borrower agrees to an effective rate of interest that is the rate described above plus any
additional rate of interest resulting from any other charges in the nature of interest paid or to
be paid by or on behalf of Borrower, or any benefit received or to be received by Lender, in
connection with this Note.



The Lender shall, and is hereby authorized to, record on the schedule attached hereto, or to
otherwise record in accordance with its usual practice, the date and amount of each Revolving Loan
and the date and amount of each principal payment hereunder.



This Note is one of the Notes issued pursuant to, and is entitled to the benefits of, the
Credit Agreement dated as of August 31, 2007 (which, as it may be amended or modified and in effect
from time to time, is herein called the “Agreement”), among the Borrower, the lenders party
thereto, including the Lender, and JPMorgan Chase Bank, N.A., as Administrative Agent, to which
Agreement reference is hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is secured pursuant to the Security Documents and guaranteed pursuant to
the Continuing Guarantees, all as more specifically described in the Agreement, and reference is
made thereto for a statement of the terms and provisions thereof. Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them in the Agreement.



	 	 	 	 	 
	 	 	P.F. CHANG’S CHINA BISTRO, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





 


 









 





SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL

TO

NOTE OF P.F. CHANG’S CHINA BISTRO, INC.

DATED                     , 2007




	 	 	 	 	 	 	 	 	 
	 	 	Principal	 	Maturity of	 	Principal	 	 
	Date	 	Amount of Loan	 	Interest Period	 	Amount Paid	 	Unpaid Balance
	 
	 	 
	 	 
	 	 
	 	 





 


 









 





EXHIBIT “C”

FORM OF BORROWING REQUEST/INTEREST ELECTION REQUEST




JPMorgan Chase Bank, N.A.

201 North Central Avenue, 21st Floor

Phoenix, Arizona 85004

Attention: Commercial Banking AZ1-1178

Fax No.: (602) 221-1502




Date:                    




Ladies and Gentlemen:



This Request refers to the Credit Agreement dated as of August 31, 2007 (as it may hereafter
be amended, modified, extended or restated from time to time, the “Credit Agreement”), among P.F.
CHANG’S CHINA BISTRO, INC., a Delaware corporation (“Borrower”), the Lenders party thereto, and
JPMORGAN CHASE BANK, N.A., as Administrative Agent (“Bank”). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.



The Borrower hereby gives notice that it requests an [Advance] [Interest Election] pursuant to
Article II of the Credit Agreement and sets forth below the terms of such requested Borrowing:



	 	 	 	 	 	 	 
	 

	 	A.
	 	Loan1
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	B.
	 	Type of Advance2
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	C.
	 	Date of Advance3
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	D.
	 	Principal Amount of Advance4
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	E.
	 	Interest Period and last day thereof5
	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	F.
	 	Location and number of Borrower’s account for disbursement
	 	 
	 

	 	 	 	 	 	 








 




			
	1	 	Revolving Loan Advance.

	 
	2	 	Adjusted LIBO Rate Advance or Alternate Base Rate
Advance.

	 
	3	 	Must be a Business Day.

	 
	4	 	Each Adjusted LIBO Rate Advance shall be a
principal amount which is an integral multiple of $500,000.00 and not less than
$1,000,000.00.

	 
	5	 	Which shall be subject to the definition of
“Interest Period” and end not later than the Revolving Loan Maturity Date.





 


 









 





	 	 	 	 	 	 	 
	 

	 	G.
	 	Interest Election Request
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	                    Date of Original Advance and Amount	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	                    Effective Date of Election3	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	                    Type2	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	                    Interest Period and Last day thereof5	 	 
	 

	 	 	 	 	 	 






Upon acceptance of this request, the Borrower shall be deemed to have represented and
warranted to the Bank that, as of the date of such credit event, the conditions specified in
Section 4.02 of the Credit Agreement are satisfied.



	 	 	 	 	 
	 	 	P.F. CHANG’S CHINA BISTRO, INC.,
	 	 	a Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





 


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EXHIBIT “D”




FORM OF COMPLIANCE CERTIFICATE





			
	To:	 	The Administrative Agent and the Lenders under the
Credit Agreement described below






This Compliance Certificate (this “Certificate”) is executed and delivered pursuant to and in
accordance with the provisions of that certain Credit Agreement (as amended, modified, extended or
restated from time to time, the “Credit Agreement”) dated as of August 31, 2007, among P.F. CHANG’S
CHINA BISTRO, INC., a Delaware corporation (“Borrower”), the Lenders party thereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent (“Bank”). All capitalized terms used in this
Certificate, if not otherwise defined herein, shall have the respective meanings assigned to such
terms under the Credit Agreement.




THE UNDERSIGNED HEREBY CERTIFIES THAT:




1. I am the Chief Financial Officer of the Borrower;



2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be
made under my supervision, a detailed review of the transactions and conditions of the Borrower and
its Subsidiaries during the accounting period ending on
 _____ 
,
 _____ 
(“Compliance Date”);



3. The examinations described in paragraph 2 did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or an Event of Default
under the Credit Agreement during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Compliance Certificate [except as set forth below:



 

 

 
 ].




4. All of the representations and warranties set forth in Article III of the Credit Agreement
are true and correct as of the date hereof except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such representation or warranty shall
have been true and correct on and as of such earlier date; and



5. Schedule I attached hereto sets forth financial data and computations used in determining
whether the Borrower is in compliance with certain covenants of the Credit Agreement, all of which
data and computations are true, complete and correct.


 


 









 





The foregoing certifications, together with the information set forth in the schedules hereto
and the documents delivered in connection with this Compliance Certificate in support hereof are
made and delivered this
 _____ 
day of
 _____ 
,
 _____ 
..



	 	 	 	 	 
	 	 	P.F. CHANG’S CHINA BISTRO, INC., as Borrower
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





 


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SCHEDULE I to Compliance Certificate

of P.F. Chang’s China Bistro, Inc.

as of                                          (Compliance Date)





	I.	 	FINANCIAL COVENANTS (Section 6.09 of the Credit Agreement).







	A.	 	LEVERAGE RATIO (Section 6.09(a) of the Credit Agreement).






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	Total Indebtedness as of the Compliance Date:	 	(000’s)
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(a)
	 	obligations for borrowed money:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(b)
	 	obligations evidenced by bonds,

debentures, notes or similar instruments:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(c)
	 	obligations upon which interest customarily paid:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(d)
	 	conditional sale/title retention agreements if liability per GAAP:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(e)
	 	deferred purchase price (excluding
current accounts payable and other accrued liabilities
and contingent payments) if liability per GAAP
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(f)
	 	secured Indebtedness:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(g)
	 	Guarantees:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(h)
	 	Capital Lease Obligations and other Lease Obligations:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(i)
	 	obligations in respect of bankers’ acceptances:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(j)
	 	obligations as account party in respect
of letters of credit and letters of guaranty:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(k)
	 	Net Mark-to-Market Exposure:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(l)
	 	Other:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(m)
	 	Indebtedness (Sum of (a) — (l)):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(2	)	 	EBITDA for the four fiscal quarters most recently ended:	 	($000’s)
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(a)
	 	Net Income for such period:
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(b)
	 	amounts deducted in the computation
thereof for (i) Interest Expense, (ii) Federal, state
and local
income taxes and (iii) depreciation and
amortization:
	 	+ $                    






 


 









 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(c)
	 	non-cash charges resulting from
adoption of FASB 123 if required to be recorded as
expense:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(d)
	 	other non-recurring expenses reducing

Net Income which do not represent a cash item:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(e)
	 	Federal, state, local and foreign income tax credits
	 	- $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(f)
	 	all non-cash items increasing Net Income
	 	- $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(g)
	 	EBITDA (Sum of Line A(2)(a) through Line A(2)(f)):
	 	= $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(3	)	 	Leverage Ratio (Ratio of Line A(1)(m) to Line A(2)(g):	 	        to 1.00
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(4	)	 	Maximum Total Leverage Ratio for any fiscal quarter:	 	2.50 to 1.00







	B.	 	MINIMUM FIXED CHARGE COVERAGE RATIO (Section 6.09.02 of the Credit Agreement).






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	EBITDAR for the four fiscal quarters most recently ended:	 	($000’s)
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(a)
	 	EBITDA (Line A(2)(g):
	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(b)
	 	Maintenance Capital Expenditures:
	 	- $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(c)
	 	Rental Expense:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(d)
	 	minority interest expense:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(e)
	 	imputed partner bonus expense:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(f)
	 	EBITDAR (Sum of Line B(1)(a) through Line B(1)(e)):
	 	= $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(2	)	 	Fixed Charges for the four fiscal quarters most recently ended:	 	($000’s)
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(a)
	 	Interest Expense:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(b)
	 	Rental Expense (Line B(1)(c)):
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(c)
	 	expense for taxes:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(d)
	 	required repayment of principal of Indebtedness:
	 	$                    






 


-2-









 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(e)
	 	distributions to minority partners:
	 	+ $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	(f)
	 	Fixed Charges (Sum of Line B(2)(a) through Line B(2)(e)):
	 	= $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(3	)	 	Fixed Charge Coverage Ratio (Ratio of Line B(1)(f) to Line B(2)(f)):	 	____ to 1.00
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(4	)	 	Minimum Fixed Charge Coverage Ratio for any fiscal quarter:	 	1.25 to 1.00







	II.	 	OTHER MISCELLANEOUS PROVISIONS.

	 
	A.	 	INDEBTEDNESS (Section 6.01 of the Credit Agreement).






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	Indebtedness to finance the acquisition of personal
property (Maximum: $3,000,000):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(2	)	 	unsecured Indebtedness to finance the acquisition of
partnership interests (Maximum: $20,000,000):	 	$                    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	(3	)	 	other unsecured Indebtedness permitted by Section 6.01
(Maximum: $3,000,000):	 	$                    







	B.	 	INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS. (Section 6.04 of the
Credit Agreement).






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	Permitted Acquisitions (Maximum: $50,000,000 cash
and/or non-cash in 12 month period and $125,000,000 cash and
$200,000,000 cash and/or non-cash during the term of the
Agreement):	 	$                    







	C.	 	RESTRICTED PAYMENTS. (Section 6.06 of the Credit Agreement).






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	(1	)	 	Purchases of Equity Interests in the Borrower
(Maximum: $100,000,000):	 	$                    





 


-3-









 





EXHIBIT “E”

FORM OF PLEDGE AND SECURITY AGREEMENT

(                    )




THIS PLEDGE AND SECURITY AGREEMENT is entered into as of
 _____ 
,
 _____ 
by and between
                    ,                      (the “Debtor”), and JPMORGAN CHASE BANK, N.A., in its
capacity as Administrative Agent (the “Agent”) for the lenders party to the Credit Agreement
referred to below (“Lender”).



PRELIMINARY STATEMENT




P.F. CHANG’S CHINA BISTRO, INC., a Delaware corporation (the “Borrower”), JPMORGAN CHASE BANK,
N.A., as Administrative Agent and the Lenders are entering into a Credit Agreement dated as of
August 31, 2007 (as it may be amended or modified from time to time, the “Credit Agreement”). The
Debtor is entering into this Pledge and Security Agreement (as it may be amended or modified from
time to time, the “Security Agreement”) in order to induce the Lenders to enter into and extend
credit to the Borrower under the Credit Agreement.




ACCORDINGLY, the Debtor and the Agent, on behalf of the Lenders, hereby agree as follows:



ARTICLE I




DEFINITIONS




1.1 Terms Defined in Credit Agreement. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.



1.2 Terms Defined in Arizona Uniform Commercial Code. Terms defined in the Arizona
UCC which are not otherwise defined in this Security Agreement are used herein as defined in the
Arizona UCC.



1.3 Definitions of Certain Terms Used Herein. As used in this Security Agreement, in
addition to the terms defined in the Preliminary Statement, the following terms shall have the
following meanings:




“Accounts” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Arizona UCC” means the Arizona Uniform Commercial Code as in effect from time to time.



“Article” means a numbered article of this Security Agreement, unless another document is
specifically referenced.



“Chattel Paper” shall have the meaning set forth in Article 9 of the Arizona UCC.


 


 









 





“Collateral” means all Accounts, Chattel Paper, Documents, Equipment, Farm Products, Fixtures,
General Intangibles, Instruments, Inventory, Investment Property, Pledged Deposits, and Other
Collateral, wherever located, in which the Debtor now has or hereafter acquires any right or
interest, and the proceeds (including Stock Rights), insurance proceeds and products thereof,
together with all books and records, customer lists, credit files, computer files, programs,
printouts and other computer materials and records related thereto. Collateral shall not include
any leasehold interest held by the Debtor. Notwithstanding the foregoing, the Collateral shall
exclude those assets whose relative value to the Lenders does not justify the cost and/or effort
required to perfect a security interest in such assets, as determined by the Administrative Agent
in its reasonable discretion.



“Control” shall have the meaning set forth in Article 8 or, if applicable, in Section 9-104,
9-105, 9-106 or 9-107 of Article 9 of the Arizona UCC.




“Default” means an event described in Section 5.1.




“Deposit Accounts” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Documents” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Equipment” shall have the meaning set forth in Article 9 of the Arizona UCC.



“Exhibit” refers to a specific exhibit to this Security Agreement, unless another document is
specifically referenced.




“Farm Products” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Fixtures” shall have the meaning set forth in Article 9 of the Arizona UCC.




“General Intangibles” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Instruments” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Inventory” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Investment Property” shall have the meaning set forth in Article 9 of the Arizona UCC.




“Lenders” means the lenders party to the Credit Agreement and their successors and assigns.



“Obligations” means any and all existing and future indebtedness, obligation and liability of
every kind, nature and character, direct or indirect, absolute or contingent (including all
renewals, extensions and modifications thereof and all fees, costs and expenses incurred by the
Agent or the Lenders in connection with the preparation, administration, collection or enforcement
thereof), of the Borrower to the Agent or any Lender or any branch, subsidiary or affiliate
thereof, arising under or pursuant to this Security Agreement, the Credit Agreement and any
promissory note or notes now or hereafter issued under the Credit Agreement.


 


-2-









 





“Other Collateral” means any property of the Debtor, other than real estate, not included
within the defined terms Accounts, Chattel Paper, Commercial Tort Claims, Documents, Equipment,
Farm Products, Fixtures, General Intangibles, Instruments, Inventory, Investment Property, and
Pledged Deposits, including, without limitation, all cash on hand, letter-of-credit rights, letters
of credit, Stock Rights and Deposit Accounts or other deposits (general or special, time or demand,
provisional or final) with any bank or other financial institution, it being intended that the
Collateral include all property of the Debtor other than real estate. Notwithstanding the
foregoing, the Other Collateral shall exclude those assets whose relative value to the Lenders does
not justify the cost and/or effort required to perfect a security interest in such assets, as
determined by the Administrative Agent in its reasonable discretion.



“Pledged Deposits” means all time deposits of money (other than Deposit Accounts and
Instruments), whether or not evidenced by certificates, which the Debtor may from time to time
designate as pledged to the Agent or to any Lender as security for any Obligation, and all rights
to receive interest on said deposits.



“Rate Management Transaction” means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into between the Debtor and any Lender or Affiliate
thereof which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.



“Rate Management Obligations” means any and all obligations of the Debtor, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all
Rate Management Transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Management Transactions.



“Receivables” means the Accounts, Chattel Paper, Documents, Investment Property, Instruments
or Pledged Deposits, and any other rights or claims to receive money which are General Intangibles
or which are otherwise included as Collateral.




“Required Secured Parties” means the Required Lenders.



“Section” means a numbered section of this Security Agreement, unless another document is
specifically referenced.



“Secured Obligations” means the Obligations and Rate Management Obligations entered into with
one or more of the Lenders or their Affiliates.




“Security” has the meaning set forth in Article 8 of the Arizona UCC.


 


-3-









 





“Stock Rights” means any securities, dividends or other distributions and any other right or
property which the Debtor shall receive or shall become entitled to receive for any reason
whatsoever with respect to, in substitution for or in exchange for any securities or other
ownership interests in a corporation, partnership, joint venture or limited liability company
constituting Collateral and any securities, any right to receive securities and any right to
receive earnings, in which the Debtor now has or hereafter acquires any right, issued by an issuer
of such securities.



“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or
both, would constitute a Default.



The foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms.



ARTICLE II




GRANT OF SECURITY INTEREST




The Debtor hereby pledges, assigns and grants to the Agent, on behalf of and for the ratable
benefit of the Lenders and (to the extent specifically provided herein) their Affiliates, a
security interest in all of the Debtor’s right, title and interest in and to the Collateral to
secure the prompt and complete payment and performance of the Secured Obligations.



ARTICLE III




REPRESENTATIONS AND WARRANTIES





The Debtor represents and warrants to the Agent and the Lenders that:



3.1 Title, Authorization, Validity and Enforceability. The Debtor has good and valid
rights in or the power to transfer the Collateral and title to the Collateral with respect to which
it has purported to grant a security interest hereunder, free and clear of all Liens except for
Liens permitted under Section 4.1.6, and has full power and authority to grant to the Agent the
security interest in such Collateral pursuant hereto. The execution and delivery by the Debtor of
this Security Agreement has been duly authorized by proper company proceedings, and this Security
Agreement constitutes a legal, valid and binding obligation of the Debtor and creates a security
interest which is enforceable against the Debtor in all now owned and hereafter acquired
Collateral.



3.2 Conflicting Laws and Contracts. Neither the execution and delivery by the Debtor
of this Security Agreement, the creation and perfection of the security interest in the Collateral
granted hereunder, nor compliance with the terms and provisions hereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on the Debtor or the
Debtor’s articles or certificate of incorporation or bylaws, the provisions of any indenture,
instrument or agreement to which the Debtor is a party or is subject, or by which it, or its
property, is bound, or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien pursuant to the terms of any such indenture, instrument or agreement
(other than any Lien of the Agent on behalf of the Lenders, which violation, conflict or default
would constitute a Material Adverse Effect).


 


-4-









 





3.3 Type and Jurisdiction of Organization. The Debtor is a                     
organized under the laws of the State of
 _____ 
..



3.4 Principal Location. The Debtor’s mailing address and the location of its place of
business (if it has only one) or its chief executive office (if it has more than one place of
business), are disclosed in Exhibit “A”; the Debtor has no other chief executive office except as
set forth in Exhibit “A”.



3.5 Property Locations. The Inventory, Equipment and Fixtures are located solely at
the locations described in Exhibit “A”. All of said locations are owned by the Debtor except for
locations (i) which are leased by the Debtor as lessee and designated in Part B of Exhibit “A” and
(ii) at which Inventory is held in a public warehouse or is otherwise held by a bailee or on
consignment as designated in Part C of Exhibit “A”, with respect to which Inventory the Debtor has
delivered bailment agreements, warehouse receipts, financing statements or other documents
satisfactory to the Lenders to protect the Agent’s and the Lenders’ security interest in such
Inventory.



3.6 No Other Names. The Debtor has not conducted business under any name except the
name in which it has executed this Security Agreement, which is the exact name as it appears in the
Debtor’s organizational documents, as amended, as filed with the Debtor’s jurisdiction of
organization.




3.7 No Default. No Default or Unmatured Default exists.



3.8 Accounts and Chattel Paper. The names of the obligors, amounts owing, due dates
and other information with respect to the Accounts and Chattel Paper are and will be correctly
stated in all records of the Debtor relating thereto and in all invoices and reports with respect
thereto furnished to the Agent by the Debtor from time to time. As of the time when each Account
or each item of Chattel Paper arises, the Debtor shall be deemed to have represented and warranted
that such Account or Chattel Paper, as the case may be, and all records relating thereto, are
genuine and in all material respects what they purport to be.



3.9 Filing Requirements. None of the Collateral is of a type for which security
interests or liens may be perfected by filing under any federal statute except for patents,
trademarks and copyrights held by the Debtor and described in Part C of Exhibit “B”.



3.10 No Financing Statements. No financing statement describing all or any portion of
the Collateral which has not lapsed or been terminated naming the Debtor as debtor has been filed
in any jurisdiction except financing statements naming the Agent on behalf of the Lenders as the
secured party, and except for any financing statements in connection with any Liens permitted under
Section 4.1.6.



3.11 Federal Employer Identification Number. The Debtor’s Federal employer
identification number is
 _____ 
-                    .



3.12 State Organization Number. If the Debtor is a registered organization, the
Debtor’s State organization number is                     .


 


-5-









 





ARTICLE IV




COVENANTS




From the date of this Security Agreement, and thereafter until this Security Agreement is
terminated:




4.1 General.



4.1.1 Inspection. The Debtor will permit the Agent or any Lender, by its
representatives and agents (i) to inspect the Collateral, (ii) to examine and make copies of the
records of the Debtor relating to the Collateral and (iii) to discuss the Collateral and the
related records of the Debtor with, and to be advised as to the same by, the Debtor’s officers and
employees (and, in the case of any Receivable, with any person or entity which is or may be
obligated thereon), all at such reasonable times and intervals as the Agent or such Lender may
reasonably determine, and all at the Debtor’s expense.



4.1.2 Taxes. The Debtor will pay when due all taxes, assessments and governmental
charges and levies upon the Collateral, except those which are being contested in good faith by
appropriate proceedings.



4.1.3 Records and Reports; Notification of Default. The Debtor will maintain complete
and accurate books and records with respect to the Collateral, and furnish to the Agent, with
sufficient copies for each of the Lenders, such reports relating to the Collateral as the Agent
shall from time to time reasonably request. The Debtor will give prompt notice in writing to the
Agent and the Lenders of the occurrence of any Default or Unmatured Default and of any other
development, financial or otherwise, which might materially and adversely affect the Collateral.



4.1.4 Financing Statements and Other Actions; Defense of Title. The Debtor hereby
authorizes the Agent to file, and if requested will execute and deliver to the Agent, all financing
statements and other documents and take such other actions as may from time to time be reasonably
requested by the Agent in order to maintain a first perfected security interest in and, if
applicable, Control of, the Collateral. The Debtor will take any and all actions reasonably
necessary to defend title to the Collateral against all persons and to defend the security interest
of the Agent in the Collateral and the priority thereof against any Lien not expressly permitted
hereunder.



4.1.5 Disposition of Collateral. The Debtor will not sell, lease or otherwise dispose
of the Collateral except (i) prior to the occurrence of a Default or Unmatured Default,
dispositions specifically permitted pursuant to the Credit Agreement, (ii) until such time
following the occurrence of a Default as the Debtor receives a notice from the Agent instructing
the Debtor to cease such transactions, sales or leases of Inventory in the ordinary course of
business, and (iii) until such time as the Debtor receives a notice from the Agent pursuant to
Article VII, proceeds of Inventory and Accounts collected in the ordinary course of business.



4.1.6 Liens. The Debtor will not create, incur, or suffer to exist any Lien on the
Collateral except (i) the security interest created by this Security Agreement, (ii) existing Liens
described in the Credit Agreement, and (iii) other Liens permitted pursuant to the Credit
Agreement.


 


-6-









 





4.1.7 Change in Corporate Existence, Type or Jurisdiction of Organization, Location,
Name. Except as otherwise permitted under the Credit Agreement, the Debtor will:



(a) preserve its existence as a corporation and not, in one transaction or a
series of related transactions, merge into or consolidate with any other entity, or
sell all or substantially all of its assets;



(b) not change its state of organization;



(c) not maintain its place of business (if it has only one) or its chief
executive office (if it has more than one place of business) at a location other
than a location specified on Exhibit “A;” and



(d) not (i) have any Inventory, Equipment or Fixtures or proceeds or products
thereof (other than Inventory and proceeds thereof disposed of as permitted by
Section 4.1.5) at a location other than a location specified in Exhibit “A”, (ii)
change its name or taxpayer identification number or (iii) change its mailing
address, unless the Debtor shall have given the Agent not less than 30 days’ prior
written notice of such event or occurrence and the Agent shall have either (x)
determined that such event or occurrence will not adversely affect the validity,
perfection or priority of the Agent’s security interest in the Collateral, or (y)
taken such steps (with the cooperation of the Debtor to the extent necessary or
advisable) as are necessary or advisable to properly maintain the validity,
perfection and priority of the Agent’s security interest in the Collateral.



4.1.8 Other Financing Statements. The Debtor will not sign or authorize the signing
on its behalf or the filing of any financing statement naming it as debtor covering all or any
portion of the Collateral, except as permitted by Section 4.1.6.




4.2 Receivables.



4.2.1 Certain Agreements on Receivables. The Debtor will not make or agree to make
any discount, credit, rebate or other reduction in the original amount owing on a Receivable or
accept in satisfaction of a Receivable less than the original amount thereof, except that, prior to
the occurrence of a Default, the Debtor may reduce the amount of Accounts arising from the sale of
Inventory in accordance with its present policies and in the ordinary course of business.



4.2.2 Collection of Receivables. Except as otherwise provided in this Security
Agreement, the Debtor will collect and enforce, at the Debtor’s sole expense, all amounts due or
hereafter due to the Debtor under the Receivables.



4.2.3 Delivery of Invoices. The Debtor will deliver to the Agent immediately upon its
request after the occurrence of a Default duplicate invoices with respect to each Account bearing
such language of assignment as the Agent shall specify.


 


-7-









 





4.2.4 Disclosure of Counterclaims on Receivables. If (i) any discount, credit or
agreement to make a rebate or to otherwise reduce the amount owing on a Receivable exists or (ii)
if, to the knowledge of the Debtor, any dispute, setoff, claim, counterclaim or defense exists or
has been asserted or threatened with respect to a Receivable, the Debtor will disclose such fact to
the Agent in writing in connection with the inspection by the Agent of any record of the Debtor
relating to such Receivable and in connection with any invoice or report furnished by the Debtor to
the Agent relating to such Receivable.




4.3 Inventory and Equipment.



4.3.1 Maintenance of Goods. The Debtor will do all things reasonably necessary to
maintain, preserve, protect and keep the Inventory and the Equipment in good repair and working and
saleable condition.



4.3.2 Insurance. The Debtor will (i) maintain fire and extended coverage insurance on
the Inventory and Equipment containing a lender’s loss payable clause in favor of the Agent, on
behalf of the Lenders, and providing that said insurance will not be terminated except after at
least 30 days’ written notice from the insurance company to the Agent, (ii) maintain such other
insurance on the Collateral for the benefit of the Agent as the Agent shall from time to time
reasonably request, (iii) furnish to the Agent upon the reasonable request of the Agent from time
to time the originals of all policies of insurance on the Collateral and certificates with respect
to such insurance and (iv) maintain general liability insurance naming the Agent, on behalf of the
Lenders, as an additional insured.



ARTICLE V




DEFAULT





5.1 The occurrence of any one or more of the following events shall constitute a Default:



5.1.1 Any material representation or warranty made by or on behalf of the
Debtor under or in connection with this Security Agreement shall be materially false
as of the date on which made.



5.1.2 The breach by the Debtor of any of the terms or provisions of Article IV
or Article VII which is not remedied within ten (10) days after the giving of
written notice to the Debtor by the Agent.



5.1.3 The breach by the Debtor (other than a breach which constitutes a Default
under Section 5.1.1 or 5.1.2) of any of the material terms or provisions of this
Security Agreement which is not remedied within thirty (30) days after the giving of
written notice to the Debtor by the Agent.



5.1.4 Any material portion of the Collateral shall be transferred or otherwise
disposed of, either voluntarily or involuntarily, in any manner not permitted by
Section 4.1.5 or 8.7 or shall be lost, stolen, damaged or destroyed that is not
covered by insurance or otherwise replaced.


 


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5.1.5 The occurrence of any “Default” under, and as defined in, the Credit
Agreement.



5.2 Acceleration and Remedies. Upon the acceleration of the obligations under the
Credit Agreement pursuant to Article VII thereof, the Obligations and, to the extent provided for
under the Rate Management Transactions evidencing the same, the Rate Management Obligations, shall
immediately become due and payable without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived, and the Agent may, with the concurrence or at the direction
of the Required Secured Parties, exercise any or all of the following rights and remedies:



5.2.1 Those rights and remedies provided in this Security Agreement, the Credit
Agreement, or any other Credit Document, provided that this Section 5.2.1
shall not be understood to limit any rights or remedies available to the Agent and
the Lenders prior to a Default.



5.2.2 Those rights and remedies available to a secured party under the Arizona
UCC (whether or not the Arizona UCC applies to the affected Collateral) or under any
other applicable law (including, without limitation, any law governing the exercise
of a bank’s right of setoff or bankers’ lien) when a debtor is in default under a
security agreement.



5.2.3 Without notice except as specifically provided in Section 8.1 or
elsewhere herein, sell, lease, assign, grant an option or options to purchase or
otherwise dispose of the Collateral or any part thereof in one or more parcels at
public or private sale, for cash, on credit or for future delivery, and upon such
other terms as the Agent may deem commercially reasonable.



The Agent, on behalf of the secured parties, may comply with any applicable state or federal
law requirements in connection with a disposition of the Collateral and compliance will not be
considered to adversely affect the commercial reasonableness of any sale of the Collateral.



If, after the Credit Agreement has terminated by its terms and all of the Obligations have
been paid in full, there remain Rate Management Obligations outstanding, the Required Secured
Parties may exercise the remedies provided in this Section 5.2 upon the occurrence of any event
which would allow or require the termination or acceleration of any Rate Management Obligations
pursuant to the terms of the agreement governing any Rate Management Transaction.



5.3 Debtor’s Obligations Upon Default. Upon the request of the Agent after the
occurrence of a Default and during the continuance of a Default, the Debtor will:



5.3.1 Assembly of Collateral. Assemble and make available to the Agent
the Collateral and all records relating thereto at any place or places reasonably
specified by the Agent.



5.3.2 Secured Party Access. Permit the Agent, by the Agent’s
representatives and agents, to enter any premises where all or any part of the
Collateral, or the books and records relating thereto, or both, are located, to
take possession of all or any part of the Collateral and to remove all or any part
of the Collateral.


 


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5.4 License. The Agent is hereby granted a license or other right to use, following
the occurrence and during the continuance of a Default, without charge, the Debtor’s labels,
patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service
marks, customer lists and advertising matter, or any property of a similar nature, as it pertains
to the Collateral, in completing production of, advertising for sale, and selling any Collateral,
and, following the occurrence and during the continuance of a Default, the Debtor’s rights under
all licenses and all franchise agreements shall inure to the Agent’s benefit. In addition, the
Debtor hereby irrevocably agrees that the Agent may, following the occurrence and during the
continuance of a Default, sell any of the Debtor’s Inventory directly to any person, including
without limitation persons who have previously purchased the Debtor’s Inventory from the Debtor and
in connection with any such sale or other enforcement of the Agent’s rights under this Agreement,
may sell Inventory which bears any trademark owned by or licensed to the Debtor and any Inventory
that is covered by any copyright owned by or licensed to the Debtor and the Agent may finish any
work in process and affix any trademark owned by or licensed to the Debtor and sell such Inventory
as provided herein.



ARTICLE VI




WAIVERS, AMENDMENTS AND REMEDIES




No delay or omission of the Agent or any Lender to exercise any right or remedy granted under
this Security Agreement shall impair such right or remedy or be construed to be a waiver of any
Default or an acquiescence therein, and any single or partial exercise of any such right or remedy
shall not preclude any other or further exercise thereof or the exercise of any other right or
remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this
Security Agreement whatsoever shall be valid unless in writing signed by the Agent with the
concurrence or at the direction of the Lenders required under Section 9.02 of the Credit Agreement
and then only to the extent in such writing specifically set forth. All rights and remedies
contained in this Security Agreement or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Secured Obligations have been paid in full.



ARTICLE VII




PROCEEDS; COLLECTION OF RECEIVABLES




7.1 Lockboxes. Upon request of the Agent after the occurrence of a Default or
Unmatured Default, the Debtor shall execute and deliver to the Agent irrevocable lockbox agreements
in the form provided by or otherwise acceptable to the Agent, which agreements shall be accompanied
by an acknowledgment by the bank where the lockbox is located of the Lien of the Agent granted
hereunder and of irrevocable instructions to wire all amounts collected therein to a special
collateral account at the Agent.


 


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7.2 Collection of Receivables. The Agent may at any time after the occurrence of a
Default, by giving the Debtor written notice, elect to require that the Receivables be paid
directly to the Agent for the benefit of the Lenders. In such event, the Debtor shall, and shall
permit the Agent to, promptly notify the account debtors or obligors under the Receivables of the
Lenders’ interest therein and direct such account debtors or obligors to make payment of all
amounts then or thereafter due under the Receivables directly to the Agent. Upon receipt of any
such notice from the Agent, the Debtor shall thereafter hold in trust for the Agent, on behalf of
the Lenders, all amounts and proceeds received by it with respect to the Receivables and Other
Collateral and immediately and at all times thereafter deliver to the Agent all such amounts and
proceeds in the same form as so received, whether by cash, check, draft or otherwise, with any
necessary endorsements. The Agent shall hold and apply funds so received as provided by the terms
of Sections 7.3 and 7.4.



7.3 Special Collateral Account. The Agent may, at any time after the occurrence of a
Default, require all cash proceeds of the Collateral to be deposited in a special non-interest
bearing cash collateral account with the Agent and held there as security for the Secured
Obligations. The Debtor shall have no control whatsoever over said cash collateral account. If no
Default is continuing, the Agent shall from time to time deposit the collected balances in said
cash collateral account into the Debtor’s general operating account with the Agent. If any Default
has occurred and is continuing, the Agent may (and shall, at the direction of the Required Lenders,
from time to time, apply the collected balances in said cash collateral account to the payment of
the Secured Obligations whether or not the Secured Obligations shall then be due.



7.4 Application of Proceeds. The proceeds of the Collateral shall be applied by the
Agent to payment of the Secured Obligations in the following order unless a court of competent
jurisdiction shall otherwise direct:



(a) FIRST, to payment of all costs and expenses of the Agent incurred in
connection with the collection and enforcement of the Secured Obligations or of the
security interest granted to the Agent pursuant to this Security Agreement;



(b) SECOND, to payment of that portion of the Secured Obligations constituting
accrued and unpaid interest and fees, pro rata among the Lenders and their
Affiliates in accordance with the amount of such accrued and unpaid interest and
fees owing to each of them;



(c) THIRD, to payment of the principal of the Secured Obligations and the net
early termination payments and any other Rate Management Obligations then due and
unpaid from the Debtor to any of the Lenders or their Affiliates, pro rata among the
Lenders and their Affiliates in accordance with the amount of such principal and
such net early termination payments and other Rate Management Obligations then due
and unpaid owing to each of them;



(d) FOURTH, to payment of any Secured Obligations (other than those listed
above) pro rata among those parties to whom such Secured Obligations are due in
accordance with the amounts owing to each of them; and



(e) FIFTH, the balance, if any, after all of the Secured Obligations have been
satisfied, shall be deposited by the Agent into the Debtor’s general operating
account with the Agent.




 


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ARTICLE VIII




GENERAL PROVISIONS




8.1 Notice of Disposition of Collateral; Condition of Collateral. The Debtor hereby
waives notice of the time and place of any public sale or the time after which any private sale or
other disposition of all or any part of the Collateral may be made. To the extent such notice may
not be waived under applicable law, any notice made shall be deemed reasonable if sent to the
Debtor, addressed as set forth in Article IX, at least ten days prior to (i) the date of any such
public sale or (ii) the time after which any such private sale or other disposition may be made.
Agent shall have no obligation to clean-up or otherwise prepare the Collateral for sale.



8.2 Compromises and Collection of Collateral. The Debtor and the Agent recognize that
setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to
certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole
or in part and that the expense and probability of success in litigating a disputed Receivable may
exceed the amount that reasonably may be expected to be recovered with respect to a Receivable. In
view of the foregoing, the Debtor agrees that the Agent may at any time and from time to time, if a
Default has occurred and is continuing, compromise with the obligor on any Receivable, accept in
full payment of any Receivable such amount as the Agent in its sole discretion shall determine or
abandon any Receivable, and any such action by the Agent shall be commercially reasonable so long
as the Agent acts in good faith based on information known to it at the time it takes any such
action.



8.3 Secured Party Performance of Debtor Obligations. Without having any obligation to
do so, the Agent may perform or pay any obligation which the Debtor has agreed to perform or pay in
this Security Agreement if the Debtor fails to timely pay such obligations and the Debtor shall
reimburse the Agent for any amounts paid by the Agent pursuant to this Section 8.3. The Debtor’s
obligation to reimburse the Agent pursuant to the preceding sentence shall be a Secured Obligation
payable on demand.



8.4 Authorization for Secured Party to Take Certain Action. The Debtor irrevocably
authorizes the Agent at any time and from time to time in the sole discretion of the Agent and
appoints the Agent as its attorney in fact (i) to execute on behalf of the Debtor as debtor and to
file financing statements necessary or desirable in the Agent’s sole discretion to perfect and to
maintain the perfection and priority of the Agent’s security interest in the Collateral, (ii) to
indorse and collect any cash proceeds of the Collateral upon a Default, (iii) to file a carbon,
photographic or other reproduction of this Security Agreement or any financing statement with
respect to the Collateral as a financing statement and to file any other financing statement or
amendment of a financing statement (which does not add new collateral or add a debtor) in such
offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain
the perfection and priority of the Agent’s security interest in the Collateral, (iv) to contact and
enter into one or more agreements with the issuers of uncertificated securities which are
Collateral and which are Securities or with financial intermediaries holding other Investment
Property as may be necessary or advisable to give the Agent Control over such Securities or other
Investment Property, (v) to enforce payment of the Receivables in the name of the Agent or the
Debtor, (vi) to apply the proceeds of any Collateral received by the Agent to the Secured
Obligations as provided in Article VII, and (vii) to discharge past due taxes, assessments,
charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted
hereunder), and the Debtor agrees to reimburse the Agent on demand for any payment made or any
expense incurred by the Agent in connection therewith, provided that this authorization
shall not relieve the Debtor of any of its obligations under this Security Agreement or under the
Credit Agreement.


 


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8.5 Specific Performance of Certain Covenants. The Debtor acknowledges and agrees
that a breach of any of the covenants contained in Sections 4.1.5, 4.1.6, 5.3, or 8.7 or in Article
VII will cause irreparable injury to the Agent and the Lenders, that the Agent and Lenders have no
adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right
of the Agent or the Lenders to seek and obtain specific performance of other obligations of the
Debtor contained in this Security Agreement, that the covenants of the Debtor contained in the
Sections referred to in this Section 8.5 shall be specifically enforceable against the Debtor.



8.6 Use and Possession of Certain Premises. Upon the occurrence of a Default, the
Agent shall be entitled to occupy and use any premises owned or leased by the Debtor where any of
the Collateral or any records relating to the Collateral are located until the Secured Obligations
are paid or the Collateral is removed therefrom, whichever first occurs, without any obligation to
pay the Debtor for such use and occupancy.



8.7 Dispositions Not Authorized. The Debtor is not authorized to sell or otherwise
dispose of the Collateral except as set forth in Section 4.1.5 and notwithstanding any course of
dealing between the Debtor and the Agent or other conduct of the Agent, no authorization to sell or
otherwise dispose of the Collateral (except as set forth in Section 4.1.5) shall be binding upon
the Agent or the Lenders unless such authorization is in writing signed by the Agent with the
consent or at the direction of the Required Lenders.



8.8 Benefit of Agreement. The terms and provisions of this Security Agreement shall
be binding upon and inure to the benefit of the Debtor, the Agent and the Lenders and their
respective successors and assigns (including all persons who become bound as a debtor to this
Security Agreement), except that the Debtor shall not have the right to assign its rights or
delegate its obligations under this Security Agreement or any interest herein, without the prior
written consent of the Agent.



8.9 Survival of Representations. All representations and warranties of the Debtor
contained in this Security Agreement shall survive the execution and delivery of this Security
Agreement.



8.10 Taxes and Expenses. Any taxes (including income taxes) payable or finally ruled
payable by Federal or State authority in respect of this Security Agreement shall be paid by the
Debtor, together with interest and penalties, if any. The Debtor shall reimburse the Agent for
any and all out-of-pocket expenses and internal charges (including reasonable attorneys’,
auditors’ and accountants’ fees and reasonable time charges of attorneys, paralegals, auditors and
accountants who may be employees of the Agent) paid or incurred by the Agent in connection with the
preparation, execution, delivery, administration, collection and enforcement of this Security
Agreement and in the audit, analysis, administration, collection, preservation or sale of the
Collateral (including the expenses and charges associated with any periodic or special audit of the
Collateral). Any and all costs and expenses incurred by the Debtor in the performance of actions
required pursuant to the terms hereof shall be borne solely by the Debtor.


 


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8.11 Headings. The title of and section headings in this Security Agreement are for
convenience of reference only, and shall not govern the interpretation of any of the terms and
provisions of this Security Agreement.



8.12 Termination. This Security Agreement shall continue in effect (notwithstanding
the fact that from time to time there may be no Secured Obligations outstanding) until (i) the
Credit Agreement has terminated pursuant to its express terms and (ii) all of the Secured
Obligations have been indefeasibly paid and performed in full and no commitments of the Agent or
the Lenders which would give rise to any Secured Obligations are outstanding.



8.13 Entire Agreement. This Security Agreement embodies the entire agreement and
understanding between the Debtor and the Agent relating to the Collateral and supersedes all prior
agreements and understandings between the Debtor and the Agent relating to the Collateral.



8.14 CHOICE OF LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ARIZONA, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.




8.15 Non-Borrower Provisions.



(a) All advances of principal under the Note shall be made to Borrower subject
to and in accordance with the terms thereof. It is not necessary for the Agent or
the Lenders to inquire into the powers of Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf. Debtor is and shall
continue to be fully informed as to all aspects of the business affairs of Borrower
that it deems relevant to the risks it is assuming and hereby waives and fully
discharges the Agent and the Lenders from any and all obligations to communicate to
Debtor any facts of any nature whatsoever regarding Borrower and Borrower’s business
affairs.



(b) Debtor authorizes Lender, without notice or demand, without affecting the
obligations of Debtor hereunder or the personal liability of any person for payment
or performance of the Secured Obligations and without affecting the lien or the
priority of the security interest, from time to time, at the request of any person
primarily obligated therefor, to renew, compromise, extend, accelerate or otherwise
change the time for payment or performance of, or otherwise change the terms of, all
or any part of the Secured Obligations,
including increase or decrease any rate of interest thereon. Debtor waives and
agrees not to assert: (i) any right to require the Agent and the Lenders to proceed
against Borrower; (ii) the benefits of any statutory provision limiting the
liability of a surety, including without limitation the benefit of Section 12-1641,
et seq., of the Arizona Revised Statutes; and (iii) any defense
arising by reason of any disability or other defense of Borrower or by reason of the
cessation from any cause whatsoever of the liability of Borrower. Debtor shall have
no right of subrogation and hereby waives any right to enforce any remedy which the
Agent and the Lenders now have, or may hereafter have, against Borrower.


 


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ARTICLE IX




NOTICES




9.1 Sending Notices. Any notice required or permitted to be given under this Security
Agreement shall be sent (and deemed received) in the manner and to the addresses set forth in the
Credit Agreement.



9.2 Change in Address for Notices. Each of the Debtor, the Agent and the Lenders may
change the address for service of notice upon it by a notice in writing to the other parties.



ARTICLE X




THE AGENT




JPMORGAN CHASE BANK, N.A. has been appointed Agent for the Lenders hereunder pursuant to the
Credit Agreement. It is expressly understood and agreed by the parties to this Security Agreement
that any authority conferred upon the Agent hereunder is subject to the terms of the delegation of
authority made by the Lenders to the Agent pursuant to the Credit Agreement, and that the Agent has
agreed to act (and any successor Agent shall act) as such hereunder only on the express conditions
contained in the Credit Agreement. Any successor Agent appointed pursuant to the Credit Agreement
shall be entitled to all the rights, interests and benefits of the Agent hereunder.


 


-15-









 





IN WITNESS WHEREOF, the Debtor and the Agent have executed this Security Agreement as of the
date first above written.



	 	 	 	 	 
	 	 	 ,
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	as Administrative Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





 


-16-









 





EXHIBIT “A”

(See Sections 3.4, 3.5 and 4.1.7 of Security Agreement)




Place of Business (if it has only one) or Chief Executive Office (if more than one place of
business) and Mailing Address:




7676 East Pinnacle Peak Road

Scottsdale, Arizona 85255



Locations of Inventory and Equipment and Fixtures:




	A.	 	Real Properties Owned by the Debtor:

	 
	B.	 	Real Properties Leased by the Debtor (Include Landlord’s Name):

	 
	C.	 	Public Warehouses or other Locations pursuant to Bailment or Consignment Arrangements
(include name of Warehouse Operator or other Bailee or Consignee):





 


 









 





EXHIBIT “B”

(See Section 3.9 of Security Agreement)





	A.	 	[Intentionally left blank.]

	 
	B.	 	[Intentionally left blank.]

	 
	C.	 	Patents, copyrights, trademarks protected under federal law:*








 




			
	*	 	For (i) trademarks, show the trademark itself, the registration date and the registration number;
(ii) trademark applications, show the trademark applied for, the application filing date and the
serial number of the application; (iii) patents, show the patent number, issue date and a brief
description of the subject matter of the patent; and (iv) patent applications, show the serial
number of the application, the application filing date and a brief description of the subject
matter of the patent applied for. Any licensing agreements for patents or trademarks should be
described on a separate schedule.





 


 









 





EXHIBIT “F”




FORM OF CONTINUING GUARANTEE




TO: JPMORGAN CHASE BANK, N.A., as Administrative Agent for the Lenders




1. For valuable consideration, the undersigned (hereinafter called “Guarantor”), whose address
is set forth after Guarantor’s signature below, jointly and severally, and unconditionally,
guarantees and promises to pay to the Lenders party to that Credit Agreement dated as of August 31,
2007 (as it may be amended or modified from time to time, the “Credit Agreement”) by and among the
hereinafter defined Borrower, said Lenders and JPMORGAN CHASE BANK, N.A. as Administrative Agent
(Lenders and Administrative Agent hereinafter collectively called “Lender”), or order, on demand,
in lawful money of the United States, any and all indebtedness of P.F. CHANG’S CHINA BISTRO, INC.,
a Delaware corporation (hereinafter called “Borrower”), to Lender. If more than one Borrower is
named herein, or if this Guarantee is executed by more than one Guarantor, the word “Borrower” and
the word “Guarantor” respectively shall mean all and any one or more of them, severally and
collectively. The word “indebtedness” is used in its most comprehensive sense and includes any and
all advances, debts, obligations and liabilities of Borrower heretofore, now or hereafter made,
incurred or created, with or without notice to Guarantor, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether Borrower is liable individually or jointly with others, or
whether recovery upon such indebtedness may be or hereafter become barred by any statute of
limitations, or whether such indebtedness may be or hereafter become otherwise unenforceable,
arising from or in connection with the Credit Agreement or any Swap Agreement (as defined in the
Credit Agreement) exclusive, however, of any indebtedness of Borrower to Lender presently covered
by existing guaranties executed by Guarantor, but without derogation to such existing guaranties,
if any, which are hereby ratified and reaffirmed.



2. Any payment by Guarantor shall not reduce Guarantor’s obligation hereunder, unless written
notice to that effect is actually received by Lender at or prior to the time of such payment.



3. This is a continuing guarantee that shall remain in full force and effect and includes all
indebtedness arising under the Credit Agreement or any Swap Agreement.



4. Guarantor is providing this Guarantee at the instance and request of Borrower to induce
Lender to extend or continue financial accommodations to Borrower. Guarantor hereby represents and
warrants that Guarantor is and will continue to be fully informed about all aspects of the
financial condition and business affairs of Borrower that Guarantor deems relevant to the
obligations of Guarantor hereunder and hereby waives and fully discharges Lender from any and all
obligations to communicate to Guarantor any information whatsoever regarding Borrower or Borrower’s
financial condition or business affairs.


 


 









 





5. Guarantor authorizes Lender, without notice or demand and without affecting Guarantor’s
liability hereunder, from time to time, to: (a) renew, modify, compromise, extend, accelerate or
otherwise change the time for payment of, or otherwise change the terms of the
indebtedness or any part thereof, including increasing or decreasing the rate of interest
thereon; (b) release, substitute or add any one or more endorsers, Guarantor or other guarantors;
(c) take and hold security for the payment of this Guarantee or the indebtedness, and enforce,
exchange, substitute, subordinate, waive or release any such security; (d) proceed against such
security and direct the order or manner of sale of such security as Lender in its discretion may
determine; and (e) apply any and all payments from Borrower, Guarantor or any other guarantor, or
recoveries from such security, in such order or manner as Lender in its discretion may reasonably
determine.



6. Guarantor waives and agrees not to assert: (a) any right to require Lender to proceed
against Borrower or any other guarantor, to proceed against or exhaust any security for the
indebtedness, to pursue any other remedy available to Lender, or to pursue any remedy in any
particular order or manner; (b) the benefit of any statute of limitations affecting Guarantor’s
liability hereunder or the enforcement thereof; (c) demand, diligence, presentment for payment,
protest and demand, and notice of extension, dishonor, protest, demand, nonpayment and acceptance
of this Guarantee; (d) notice of the existence, creation or incurring of new or additional
indebtedness of Borrower to Lender; (e) the benefits of any statutory provision limiting the
liability of a surety, including without limitation the provisions of A.R.S. Sections 12-1641,
et seq.; (f) any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever (other than payment in full) of
the liability of Borrower for the indebtedness; and (g) the benefits of any statutory provision
limiting the right of Lender to recover a deficiency judgment, or to otherwise proceed against any
person or entity obligated for payment of the indebtedness, after any foreclosure or trustee’s sale
of any security for the indebtedness, including without limitation the benefits, if any, to
Guarantor of A.R.S. Section 33-814. Guarantor shall have no right of subrogation and hereby waives
any right to enforce any remedy which Lender now has, or may hereafter have, against Borrower, and
waives any benefit of, and any right to participate in, any security now or hereafter held by
Lender.



7. Until all indebtedness of Borrower to Lender shall be paid in full, all existing and future
indebtedness of Borrower to Guarantor is hereby subordinated to the indebtedness of Borrower to
Lender and such indebtedness of Borrower to Guarantor, if Lender so requests, shall be collected,
enforced and received by Guarantor as trustee for Lender and shall be paid over to Lender on
account of the indebtedness of Borrower to Lender, but without reducing or affecting in any manner
the liability of Guarantor under the other provisions of this Guarantee.



8. In addition to all liens upon, and rights of setoff against, the monies, securities or
other property of Guarantor given to Lender by law, Lender shall have a lien and a right of setoff
against, and Guarantor hereby grants to Lender a security interest in, all monies, securities and
other property of Guarantor now and hereafter in the possession of or on deposit with Lender,
whether held in a general or special account or deposit, or for safekeeping or otherwise; every
such lien and right of setoff may be exercised without demand upon or notice to Guarantor. No lien
or right of setoff shall be deemed to have been waived by any act or conduct on the part of Lender,
by any neglect to exercise such right of setoff or to enforce such lien, or by any delay in so
doing.


 


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9. It is not necessary for Lender to inquire into the powers of Borrower or the officers,
directors, partners or agents acting or purporting to act on its behalf, and any indebtedness made
or created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.



10. Guarantor agrees to pay all reasonable attorneys’ fees and all other reasonable costs and
expenses which may be incurred by Lender in enforcing this Guarantee.



11. The obligations of Guarantor hereunder are joint and several if Guarantor is more than one
person or entity, are separate and independent of the obligations of Borrower and of any other
guarantor, and a separate action or actions may be brought and prosecuted against Guarantor whether
action is brought against Borrower or any other guarantor or whether Borrower or any other
guarantor is joined in any action or actions. The obligations of Guarantor hereunder shall survive
and continue in full force and effect until payment in full of the indebtedness is actually
received by Lender, notwithstanding any release or termination of Borrower’s liability by express
or implied agreement with Lender or by operation of law and notwithstanding that the indebtedness
or any part thereof is deemed to have been paid or discharged by operation of law or by some act or
agreement of Lender. For purposes of this Guarantee, the indebtedness shall be deemed to be paid
only to the extent that Lender actually receives immediately available funds and to the extent of
any credit bid by Lender at any foreclosure or trustee’s sale of any security for the indebtedness.



12. This Guarantee sets forth the entire agreement of Guarantor and Lender with respect to the
subject matter hereof and supersedes all prior oral and written agreements and representations by
Lender to Guarantor. No modification or waiver of any provision of this Guarantee or any right of
Lender hereunder and no release of Guarantor from any obligation hereunder shall be effective
unless in a writing executed by an authorized officer of Lender.



13. This Guarantee shall inure to the benefit of Lender and its successors and assigns and
shall be binding upon Guarantor and its heirs, personal representatives, successors and assigns.
Lender may assign this Guarantee in whole or in part without notice.



14. This Guarantee shall be governed by and construed according to the laws of the State of
Arizona.


 


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IN WITNESS WHEREOF these presents are executed as of the
 _____ 
day of                     , 20
 _____ 
..



	 	 	 	 	 
	 	 	GUARANTOR:
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Its:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 







 


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