exv10w2






Exhibit 10.2




 

 










SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of March 4, 2010



among



FAMOUS DAVE’S OF AMERICA, INC., a Minnesota corporation,

D&D OF MINNESOTA, INC., a Minnesota corporation,

LAKE & HENNEPIN BBQ AND BLUES, INC., a Minnesota corporation,



FAMOUS DAVE’S RIBS, INC., a Minnesota corporation,

FAMOUS DAVE’S RIBS-U, INC., a Minnesota corporation, and

FAMOUS DAVE’S RIBS OF MARYLAND, INC., a Minnesota corporation



collectively, as the Borrowers

and each individually, as a Borrower



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent and L/C Issuer and as a Lender



and



The Other Lenders Party Hereto



Loan Nos.: 04 2508 01

                     93-0909703



 

 












 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	1.01
	 	Defined Terms.	 	 	1	 
	1.02
	 	Other Interpretive Provisions.	 	 	27	 
	1.03
	 	Accounting Terms.	 	 	28	 
	1.04
	 	Rounding.	 	 	28	 
	1.05
	 	References to Agreements and Laws.	 	 	29	 
	1.06
	 	Times of Day.	 	 	29	 
	1.07
	 	Letter of Credit Amounts.	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	29	 
	2.01
	 	Commitment to Make Loans.	 	 	29	 
	2.02
	 	Borrowings, Conversions and Continuations Loans.	 	 	31	 
	2.03
	 	Prepayments.	 	 	32	 
	2.04
	 	Repayment of Loans.	 	 	33	 
	2.05
	 	Interest.	 	 	33	 
	2.06
	 	Fees.	 	 	34	 
	2.07
	 	Evidence of Debt.	 	 	35	 
	2.08
	 	Payments Generally.	 	 	36	 
	2.09
	 	Sharing of Payments.	 	 	37	 
	2.10
	 	Letters of Credit.	 	 	38	 
	2.11
	 	Termination of Revolving Credit Loan Commitments.	 	 	46	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	46	 
	3.01
	 	Taxes.	 	 	46	 
	3.02
	 	Illegality.	 	 	47	 
	3.03
	 	Inability to Determine Rates.	 	 	47	 
	3.04
	 	Increased Cost and Reduced Return; Capital Adequacy.	 	 	48	 
	3.05
	 	Funding Losses.	 	 	48	 
	3.06
	 	Matters Applicable to all Requests for Compensation.	 	 	49	 
	3.07
	 	Survival.	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	49	 
	4.01
	 	Conditions of Initial Credit Extension.	 	 	49	 
	4.02
	 	Conditions to all Credit Extensions.	 	 	51	 
	4.03
	 	Conditions to Revolving Credit Loan Increases.	 	 	51	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	53	 
	5.01
	 	Existence, Qualification and Power.	 	 	53	 






i 









 






	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	5.02
	 	Authorization; No Contravention.	 	 	54	 
	5.03
	 	No Consent or Other Action.	 	 	54	 
	5.04
	 	Binding Effect.	 	 	54	 
	5.05
	 	Financial Statements; No Material Adverse Effect.	 	 	55	 
	5.06
	 	Litigation.	 	 	55	 
	5.07
	 	No Default.	 	 	55	 
	5.08
	 	Ownership of Property; Liens.	 	 	56	 
	5.09
	 	Environmental Compliance.	 	 	56	 
	5.10
	 	Insurance.	 	 	56	 
	5.11
	 	Taxes.	 	 	56	 
	5.12
	 	ERISA Compliance.	 	 	57	 
	5.13
	 	Borrower Information; Subsidiaries, Etc.	 	 	57	 
	5.14
	 	Purpose of Credit Extensions; Margin Regulations; Investment Company Act; Public Utility Holding Company Act.	 	 	57	 
	5.15
	 	Disclosure.	 	 	58	 
	5.16
	 	Compliance with Laws.	 	 	58	 
	5.17
	 	Business and Location.	 	 	58	 
	5.18
	 	Transactions with Affiliates.	 	 	59	 
	5.19
	 	Financing Statements; Perfected Security Interest.	 	 	59	 
	5.20
	 	Title; Sufficiency; No Liens.	 	 	59	 
	5.21
	 	No Further Disposition.	 	 	59	 
	5.22
	 	Principal Agreements.	 	 	60	 
	5.23
	 	Capitalization; Solvency.	 	 	60	 
	5.24
	 	Intellectual Property; Licenses, Etc.	 	 	60	 
	5.25
	 	Brokers and Financial Advisors.	 	 	61	 
	5.26
	 	Compliance with OFAC Rules and Regulations.	 	 	61	 
	5.27
	 	Foreign Assets Control Regulations, Etc.	 	 	61	 
	5.28
	 	FDA Properties; Minwood	 	 	61	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	62	 
	6.01
	 	Financial Statements.	 	 	62	 
	6.02
	 	Certificates; Other Information.	 	 	63	 
	6.03
	 	Notices.	 	 	65	 
	6.04
	 	Payment of Obligations.	 	 	65	 
	6.05
	 	Preservation of Existence, Etc.	 	 	66	 
	6.06
	 	Maintenance of Properties.	 	 	66	 
	6.07
	 	Maintenance of Insurance.	 	 	66	 
	6.08
	 	Compliance with Laws.	 	 	66	 
	6.09
	 	Books and Records.	 	 	66	 
	6.10
	 	Inspection Rights.	 	 	66	 
	6.11
	 	Conduct of Business.	 	 	67	 
	6.12
	 	Capitalization; Solvency.	 	 	67	 
	6.13
	 	Casualty and Condemnation.	 	 	67	 
	6.14
	 	Banks and Payments.	 	 	69	 
	6.15
	 	Equipment.	 	 	69	 
	6.16
	 	Escrows.	 	 	70	 






ii 









 






	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	6.17
	 	Taxes.	 	 	70	 
	6.18
	 	FDA Properties; Minwood	 	 	70	 
	6.19
	 	Further Assurances.	 	 	70	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	70	 
	7.01
	 	Liens.	 	 	71	 
	7.02
	 	Investments.	 	 	71	 
	7.03
	 	Indebtedness.	 	 	72	 
	7.04
	 	Fundamental Changes; Subsidiaries.	 	 	73	 
	7.05
	 	Dispositions.	 	 	73	 
	7.06
	 	Restricted Payments.	 	 	74	 
	7.07
	 	Change in Nature of Business.	 	 	74	 
	7.08
	 	Transactions with Affiliates.	 	 	74	 
	7.09
	 	Burdensome Agreements.	 	 	74	 
	7.10
	 	Use of Proceeds.	 	 	75	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII. SECURITY FOR OBLIGATIONS	 	 	75	 
	8.01
	 	Grant of Security in the Collateral.	 	 	75	 
	8.02
	 	Obligations Secured by Loan Documents.	 	 	75	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX. SPECIAL PROVISIONS CONCERNING RIGHTS AND DUTIES WHILE IN POSSESSION OF COLLATERAL	 	 	76	 
	9.01
	 	Borrowers’ Possession.	 	 	76	 
	9.02
	 	Administrative Agent’s Possession.	 	 	76	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X. EVENTS OF DEFAULT AND REMEDIES	 	 	77	 
	10.01
	 	Events of Default.	 	 	77	 
	10.02
	 	Remedies Upon Event of Default.	 	 	79	 
	10.03
	 	Application of Funds.	 	 	81	 
	10.04
	 	Required Notice of Sale.	 	 	82	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XI. RIGHT TO CURE; POST-DEFAULT POWER OF ATTORNEY	 	 	83	 
	11.01
	 	Right to Cure.	 	 	83	 
	11.02
	 	Power of Attorney.	 	 	83	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XII. ADMINISTRATIVE AGENT	 	 	84	 
	12.01
	 	Appointment and Authorization of Administrative Agent.	 	 	84	 
	12.02
	 	Delegation of Duties.	 	 	84	 
	12.03
	 	Liability of Administrative Agent.	 	 	84	 
	12.04
	 	Reliance by Administrative Agent.	 	 	85	 
	12.05
	 	Notice of Default.	 	 	85	 






iii 









 






	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	12.06
	 	Credit Decision; Disclosure of Information by Administrative Agent.	 	 	86	 
	12.07
	 	Indemnification of Administrative Agent.	 	 	86	 
	12.08
	 	Administrative Agent in its Individual Capacity.	 	 	87	 
	12.09
	 	Successor Administrative Agent.	 	 	87	 
	12.10
	 	Administrative Agent May File Proofs of Claim.	 	 	88	 
	12.11
	 	Collateral Matters.	 	 	88	 
	12.12
	 	Duties in the Case of Enforcement.	 	 	89	 
	12.13
	 	Other Agents; Co-Lead Arrangers and Syndication Agent.	 	 	89	 
	12.14
	 	Advertising, Promotion and Marketing	 	 	89	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIII. CONTRIBUTION AMONG THE BORROWERS	 	 	90	 
	13.01
	 	Contribution.	 	 	90	 
	13.02
	 	Calculation of Contributions.	 	 	90	 
	13.03
	 	Rights to Contribution Subordinated.	 	 	90	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XIV. FINANCIAL COVENANTS	 	 	90	 
	14.01
	 	Adjusted Leverage Ratio.	 	 	91	 
	14.02
	 	Consolidated Cash Flow Ratio.	 	 	91	 
	14.03
	 	Capital Expenditures; Permitted Stock Repurchases.	 	 	91	 
	14.04
	 	Maximum Royalties Receivable Aged Past 30 Days.	 	 	91	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE XV. MISCELLANEOUS	 	 	92	 
	15.01
	 	Amendments, Etc.	 	 	92	 
	15.02
	 	Notices and Other Communications; Facsimile Copies.	 	 	93	 
	15.03
	 	No Waiver; Cumulative Remedies.	 	 	94	 
	15.04
	 	Attorney Costs, Expenses and Taxes.	 	 	94	 
	15.05
	 	Indemnification by the Borrowers.	 	 	95	 
	15.06
	 	Payments Set Aside.	 	 	96	 
	15.07
	 	Successors and Assigns.	 	 	96	 
	15.08
	 	Confidentiality.	 	 	100	 
	15.09
	 	Set-off.	 	 	101	 
	15.10
	 	Interest Rate Limitation.	 	 	101	 
	15.11
	 	Counterparts.	 	 	102	 
	15.12
	 	Integration.	 	 	102	 
	15.13
	 	Survival of Representations and Warranties.	 	 	102	 
	15.14
	 	Severability.	 	 	102	 
	15.15
	 	Tax Forms.	 	 	102	 
	15.16
	 	Estoppel Certificates.	 	 	104	 
	15.17
	 	Recourse.	 	 	104	 
	15.18
	 	Governing Law; Consent to Jurisdiction.	 	 	105	 
	15.19
	 	Waiver of Right to Trial by Jury and Other Rights.	 	 	106	 
	15.20
	 	Time of the Essence.	 	 	106	 
	15.21
	 	Joint and Several Liability of Borrowers.	 	 	106	 






iv 









 






	 	 	 	 	 	 	 	 	 
	Section	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	15.22
	 	Patriot Act Notice.	 	 	106	 
	15.23
	 	Ratification; Reaffirmation.	 	 	106	 
	 
	 	 	 	 	 	 	 	 
	SIGNATURES	 	 	S-1	 






v 









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SCHEDULES
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	1.01-A
	 	North Country Pro Forma EBITDA	 	 	 	 
	1.01-B
	 	North Country Pro Forma Rent	 	 	 	 
	2.01
	 	Commitments and Pro Rata Shares	 	 	 	 
	5.05
	 	Indebtedness as of the Closing Date	 	 	 	 
	5.06
	 	Litigation	 	 	 	 
	5.11
	 	Tax Liens and Waivers	 	 	 	 
	5.13
	 	Mergers, etc., Subsidiaries and Other Equity Investments	 	 	 	 
	5.17
	 	Other Businesses	 	 	 	 
	5.18
	 	Transactions with Affiliates	 	 	 	 
	5.22
	 	Principal Agreements	 	 	 	 
	5.24
	 	IP Rights	 	 	 	 
	5.25
	 	Brokers and Financial Advisors	 	 	 	 
	6.07
	 	Insurance Requirements	 	 	 	 
	6.14
	 	Banks	 	 	 	 
	7.01
	 	Existing Liens	 	 	 	 
	7.03
	 	Permitted Indebtedness	 	 	 	 
	15.02
	 	Administrative Agent’s Office, Certain Addresses for Notices	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EXHIBITS
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	A
	 	Form of Borrowing Notice	 	 	 	 
	B
	 	List of Company-Owned Properties	 	 	 	 
	C
	 	List of Franchised Properties	 	 	 	 
	D
	 	Form of Note	 	 	 	 
	E
	 	Form of Compliance Certificate	 	 	 	 
	F
	 	Form of Assignment and Assumption	 	 	 	 
	G
	 	Intentionally Omitted	 	 	 	 
	H
	 	Opinion Matters	 	 	 	 
	I
	 	Filing Offices	 	 	 	 
	J
	 	Ownership Chart	 	 	 	 
	K
	 	Permitted Encumbrances	 	 	 	 











vi 









 







SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of
March 4, 2010, among FAMOUS DAVE’S OF AMERICA, INC., a Minnesota corporation D&D OF MINNESOTA,
INC., a Minnesota corporation (“D&D”), LAKE & HENNEPIN BBQ AND BLUES, INC., a Minnesota
corporation (“Lake BBQ”), FAMOUS DAVE’S RIBS, INC., a Minnesota corporation
(“Ribs”), FAMOUS DAVE’S RIBS-U, INC. (“Ribs-U”), a Minnesota corporation and FAMOUS
DAVE’S RIBS OF MARYLAND, INC. (“Ribs of Maryland”), a Minnesota corporation (individually
and collectively, as the context requires, with such determination to be made by Administrative
Agent (as hereinafter defined) in its sole discretion, “Borrower”), each lender from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”),
and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.



RECITALS




     A. Borrowers, as borrower, Wells Fargo Bank, National Association, as administrative agent,
and certain lenders are party to a certain Amended and Restated Credit Agreement dated as of July
31, 2006 (as heretofore amended, the “Prior Credit Agreement”).



     B. The parties hereto desire to add to the revolving credit facility under the Prior Credit
Agreement a term loan facility to provide financing for the Acquisition Transaction (defined
herein) and otherwise amend and restate the Prior Credit Agreement in its entirety.



     NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



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



     “Accessions” shall have the meaning accorded to such term in the UCC.



     “Account” or “Accounts” shall have the meaning accorded to such term in the
UCC.



     “Accounting Changes” means: (a) changes in accounting principles required by GAAP
consistently applied and implemented by the Borrowers and (b) changes in accounting principles
recommended by the Borrowers certified public accountants.



     “Acquisition Agreement” means that certain Amended and Restated Asset Purchase
Agreement dated as of February 26, 2010 by and between certain of the NCBBQ Entities, as seller,
and Famous Dave’s, as buyer.



1









 





     “Acquisition Transaction” means the acquisition by Borrower of seven (7) Brand
restaurants for an aggregate consideration of $7,435,000 and otherwise in accordance with the terms
of the Acquisition Agreement.



     “Actual/360 Basis” means on the basis of a 360-day year and charged on the basis of
actual days elapsed for any whole or partial month in which interest is being calculated.



     “Adjusted Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Rental Expense for the Reference Period ending on such date (multiplied by eight (8))
plus (without duplication) Consolidated Funded Indebtedness outstanding on such date to (b)
Consolidated EBITDAR for the Reference Period ending on such date.



     “Adjusted Eurodollar Rate” means the rate of interest per annum, rounded upward to the
nearest whole multiple of one-hundredth of one percent (0.01%), obtained by dividing (a) the
Eurodollar Rate, by (b) a percentage equal to 100% minus the Reserve Percentage.



     “Adjustment Date” means the first day of the month immediately following the month in
which a Compliance Certificate is to be delivered by the Borrowers pursuant to Section
6.01.



     “Administrative Agent” means Wells Fargo in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 15.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrowers and the Lenders.



     “Affiliate” means, with respect to any Person, (i) any Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified, (ii) any Person who is a manager, director or officer of,
partner in, trustee of, or blood or legal relative, guardian or representative of the specified
Person, or any Person who acts or serves in a similar capacity with respect to the specified
Person, (iii) any Person of which or whom the specified Person is a manager, director or officer,
partner, trustee, or blood or legal relative, guardian or representative, or with respect to which
or whom, the specified Person acts or serves in a similar capacity; (iv) any Person, who, directly
or indirectly, is the legal or beneficial owner of or Controls 10% or more of any class of equity
securities of the specified Person, and (v) any Person who is an Affiliate as defined in clauses
(i), (ii), (iii) or (iv) of an Affiliate of the specified Person.



     “Agent-Related Persons” means the Administrative Agent, together with its Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.



     “Aggregate Commitments” means the sum of the Revolving Credit Loan Commitments and
Term Loan Commitments of all the Lenders.



     “Agreement” means this Second Amended and Restated Credit Agreement, as the same may
be amended, restated, modified or otherwise supplemented from time to time in accordance with the
terms hereof.



2









 





     “Anti-Terrorism Order” means the Executive Order 13224 issued on September 24, 2001.



     “Applicable Margin” means, (a) for Term Loans, 2.25% and (b) for Revolving Credit
Loans for each period commencing on an Adjustment Date through the date immediately preceding the
next Adjustment Date (each a “Rate Adjustment Period”), the applicable percentage set forth
below corresponding to the Adjusted Leverage Ratio, as determined for the most recent Reference
Period ending immediately prior to the applicable Rate Adjustment Period:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin	 	 	 	 	 	Applicable
	 	 	 	 	 	 	for Eurodollar Rate	 	 	 	 	 	Margin for
	 	 	 	 	 	 	Loans (and Letter	 	Applicable	 	Revolving
	 	 	 	 	 	 	of Credit Fees) and	 	Margin for	 	Credit
	 	 	 	 	Adjusted Leverage	 	One-Month LIBO	 	Base Rate	 	Commitment
	Level	 	Ratio	 	Rate Loans	 	Loans	 	Fees
	I	 	3 3.00:1.00
	 	 	2.00	%	 	 	0.50	%	 	 	0.375	%
	II	 	< 3.00:1.00 and
3 2.50:1.00
	 	 	1.50	%	 	 	0.00	%	 	 	0.25	%
	III	 	< 2.50:1.00
	 	 	1.00	%	 	 	-0.50	%	 	 	0.25	%





Notwithstanding the foregoing, if the Borrowers fail to deliver any Compliance Certificate pursuant
to Section 6.01 hereof, then for the period commencing on the date after the day on which
such Compliance Certificate was due through the date which is five (5) Business Days after such
Compliance Certificate is delivered, the Applicable Margin for Revolving Credit Loans shall be that
percentage corresponding to Level I in the table above.




     “Approved Providers” means providers of insurance rated not less than A/X by A.M. Best
Company Inc., or otherwise approved by Administrative Agent.



     “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit F.



     “Attorney Costs” means and includes all reasonable fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the allocated cost of internal
legal services and all expenses and disbursements of internal counsel.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrowers and their Subsidiaries for the fiscal year ended December 28, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrowers and their Subsidiaries, including the notes thereto.



     “Auto-Renewal Letter of Credit” has the meaning set forth in Section
2.10(b)(iii).



     “Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Revolving Credit Maturity Date, (b) the date of termination of the Revolving
Credit Commitments pursuant to Section 2.11, and (c) the date of termination of the



3









 




Commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C
Credit Extensions pursuant to Section 10.02.




     “Balance Sheet Date” means December 28, 2008.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate as of the close of business on the immediately preceding Business Day
plus one and one-half percent (11/2%), (b) the rate of interest in effect for such day as
publicly announced from time to time by Wells Fargo as its “opening prime rate” and (c) the
Eurodollar Rate determined for a one-month Interest Period plus one and one-half percent
(11/2%) commencing on such date or, if such date is not a Business Day, on the immediately preceding
Business Day. The “opening prime rate” is a rate set by Wells Fargo based upon various factors
including Wells Fargo’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Wells Fargo shall take effect at the
opening of business on the day specified in the public announcement of such change.



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



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrowing” means a Revolving Credit Loan Borrowing or a Term Loan Borrowing.



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



     “Brand” means Famous Dave’s.



     “Business” means (a) the business of operating a Famous Dave’s restaurant business at
each Company-Owned Property, (b) the business of acting as franchisor under franchise agreements
with certain Persons that are not Affiliates of any Borrower, as franchisees, pursuant to which
such Persons operate Famous Dave’s restaurant businesses at the Franchised Properties, (c) the
business of owning and licensing the trademarks and service marks used in connection with the
operation of the Famous Dave’s restaurant business, and (d) any other business activity incidental
or related to any of the foregoing.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, Delaware, New
York or California, and if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.



     “Capital Assets” means fixed assets, both tangible (such as land, buildings, fixtures,
machinery and equipment) and intangible (such as patents, copyrights, trademarks and good will);
provided that Capital Assets shall not include any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less in accordance with GAAP consistently
applied.



4









 





     “Capital Expenditures” means amounts paid or Indebtedness incurred by the Borrowers or
any of their Subsidiaries (net of any tenant improvement allowances related to a Restaurant) in
connection with (i) the purchase or lease by a Borrower or any of its Subsidiaries of Capital
Assets that would be required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP consistently applied, including without limitation or duplication, maintenance
capital, build-out and new store expenditures, and (ii) the lease of any assets by a Borrower or
any of its Subsidiaries as lessee under any Synthetic Lease to the extent that such assets would
have been Capital Assets had the Synthetic Lease been treated for accounting purposes as a
Capitalized Lease.



     “Capitalized Leases” mean leases under which a Borrower or any of its Subsidiaries is
the lessee or obligor, the discounted future rental payment obligations under which are required to
be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP consistently
applied.



     “Capital Stock” means any common stock, partnership interest, membership interest or
other equity interest.



     “Cash Collateralize” shall have the meaning specified in Section 2.10(g).



     “Cash Equivalents” means (a) securities issued, or directly, unconditionally and fully
guaranteed or insured, by the United States or any agency or instrumentality thereof
(provided, that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than one year from the date of acquisition by such Person;
(b) securities issued, or directly, unconditionally and fully guaranteed or insured, by any state
of the United States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s
Ratings Group or Moody’s Investors Services, Inc.; (c) time deposits and certificates of deposit or
bankers’ acceptance of any Lender or any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United States, any state
thereof or the District of Columbia having, capital and surplus aggregating in excess of
$500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) with maturities of not more than one year from the date of acquisition by such
Person; (c) repurchase obligations with a term of not more than 30 days for underlying securities
of the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, which repurchase obligations are secured by a
valid perfected security interest in the underlying securities; (d) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent thereof by Standard &
Poor’s Rating Service or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc.,
and in each case maturing not more than ninety (90) days after the date of acquisition by such
Person; (e) investments in money market funds substantially all of whose assets are comprised of
securities of the types described in clauses (a) through (d) above; and (f) demand
deposit accounts maintained in the ordinary course of business.



5









 





     “Certificated and Uncertificated Securities” shall have the meaning accorded to such
term in the UCC.



     “Certificate of Title” shall mean any certificate or document evidencing title.



     “Change in Control” means, any act or event (including any assignment, sale,
disposition or issuance) which results in (or with the passage of time will result in) (i) any
Person owning, directly or indirectly, 50% or more of the Capital Stock of Famous Dave’s or (ii)
Famous Dave’s owning, directly or indirectly, less than (i) 100% of the Capital Stock of D&D, Lake
BBQ, Ribs, Ribs-U, Minwood, or FDA Properties or (ii) 97% of Ribs of Maryland.



     “Change in Law” means (i) the adoption of any applicable law, rule or regulation after
the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any appropriate Governmental Authority
after the date of this Agreement, or (iii) compliance by any Lender 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.



     “Chattel Paper” shall have the meaning accorded to such term in the UCC.



     “Closing Date” means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of
Section 4.01(b), waived by the Person entitled to receive the applicable payment).



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



     “Collateral” means all personal property (including any acquired pursuant to the
Acquisition Agreement), including Equipment, Inventory, Fixtures, Accessions, General Intangibles
(including Principal Agreements), Accounts, Certificates of Title, Money, Instruments, Investment
Property, Documents, Chattel Paper, Deposit Accounts, Letters of Credit (as defined in the UCC),
Commodity Accounts, Commodity Contracts, Health-Care Insurance Receivables, Commercial Tort Claims,
Promissory Notes, Certificated and Uncertificated Securities, Financial Assets, Securities
Accounts, Securities Entitlements, Payment Intangibles and Software, credit balances, deposits,
bankers’ acceptances, guaranties, supporting obligations, letter-of-credit-rights, credits, claims,
choses in action, demands, liens, security interests, rights, insurance, awards, compensation,
remedies, title and interest in, to and in respect of other Collateral, and all Collateral Revenues
and all other personal property of any kind, wherever located, whether now owned or hereafter
acquired, including any of the same now or hereafter existing, arising, held, sold, used or
consumed in connection with the Business or any Property and any other property, rights, and
interests which at any time relate to, arise out of or in connection with the foregoing or which
come into the possession, custody or control of Administrative Agent, on behalf of the Holders of
the Obligations, or any of its agents, representatives, associates or correspondents, for any
purpose, and all products and Proceeds of the foregoing.



     “Collateral Revenues” means with respect to any Collateral all interest, income,
dividends, distributions, rents, revenues, profits and earnings thereon or other monies or revenues



6









 




derived therefrom, including any such property received in connection with any disposition of
any Principal Agreement and all moneys which may become payable or received under any policy
insuring the Collateral or otherwise required to be maintained under the Loan Documents (including
return of unearned premium.)




     “Commercial Tort Claims” shall have the meaning accorded to such term in the UCC.



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



     “Commodity Account” shall have the meaning accorded to such term in the UCC.



     “Commodity Contract” shall have the meaning accorded to such term in the UCC.



     “Company-Owned Property” means each real property in which any Borrower or any of its
Subsidiaries owns a fee simple or leasehold interest and upon which any Borrower (or any tenant of
any Borrower) operates all or any portion of the Business, each such Company-Owned Property being
listed on Exhibit B (as said Exhibit B shall be amended from time to time in
accordance with this Agreement).



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



     “Condemnation” means any taking of the property of any Borrower by any Governmental
Authority or other Person.



     “Conflict” or “Conflicting” means, with respect to any Contractual Obligation,
Organizational Document, Requirement of Law, Consent or Other Action or any other item, any
conflict with, breach of, default under, any triggering of rights, benefits, or obligations under
or in connection with such item.



     “Consent(s) and/or Other Action” shall mean any consent, authorization, Judgment,
directive, approval, license, certificate, registration, permit, exception, exemption, filing,
notice, declaration or other action by, with or to any Person.



     “Consolidated” or “consolidated” with reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrowers and their Subsidiaries,
consolidated in accordance with GAAP consistently applied.



     “Consolidated Cash Flow” means, for any Reference Period, (a) Consolidated EBITDAR for
such period, minus (b) cash income taxes paid during such period by the Borrowers and their
Subsidiaries, minus (c) Maintenance Capital Expenditures during such period.



7









 





     “Consolidated Cash Flow Ratio” means, as of the end of any Reference Period, the ratio
of (a) Consolidated Cash Flow for such Reference Period to (b) the sum of Consolidated Financial
Obligations and Consolidated Rental Expense, in each case, for such Reference Period.



     “Consolidated EBITDA” means, with respect to any Reference Period, an amount equal to
the sum of (a) Consolidated Pre-Tax Income of the Borrowers and their Subsidiaries for such period,
plus (b) in each case to the extent deducted in the calculation of such Person’s Consolidated
Pre-Tax Income and without duplication, (i) depreciation and amortization for such period, plus
(ii) non-cash charges pertaining to the Borrowers’ compensation programs and performance shares as
required by FASB Standards Codification for Compensation — Stock Compensation, plus (iii)
Consolidated Total Interest Expense paid or accrued during such period, plus (iv) net losses from
sales of assets, whether or not extraordinary (excluding sales in the ordinary course of business),
plus (v) amounts required to be deducted under GAAP for impairment of long-lived assets and for
long-lived assets to be disposed of (including pursuant to FASB Standards Codification for
Property, Plant, and Equipment), up to a maximum amount of $1,000,000 in the aggregate for any four
consecutive fiscal quarters of the Borrowers, plus (vi) for any Reference Period that includes any
2008 fiscal quarter, other amounts required to be deducted under GAAP for non-cash extraordinary
charges relating to the Properties commonly known as Unit 2024 located in Naperville, Illinois,
Unit 1003 located in Minneapolis, Minnesota, and Unit 2064 located in Powers Ferry, Georgia (“Unit
2064”), which in any such case are approved by Administrative Agent in its Sole Discretion and
which shall, in no event, exceed $2,625,000 in the aggregate, plus, other amounts required to be
deducted under GAAP for non-cash extraordinary charges relating to the Properties commonly known as
Unit 2037 located in Vernon Hills, Illinois and Unit 2006 located in Stillwater, Minnesota during
the fiscal year 2009, which in any such case are approved by Administrative Agent in its Sole
Discretion and which shall, in no event, exceed $520,000 in the aggregate, plus (vii) for any
Reference Period that includes the fourth (4th) fiscal quarter 2008, lease reserve
expenses (required pursuant to FASB Standards Codification for Exit or Disposal Cost Obligations)
with respect to Unit 2064 and which shall, in no event, exceed an aggregate amount equal to (A)
$589,000, minus (B) the amount of all lease termination and lease buyout expenses paid in cash by
Borrowers or their Subsidiaries with respect to Unit 2064, plus (viii) for any Reference Period
that includes any 2010 fiscal quarter, the applicable amount for such fiscal quarter set forth in
Schedule 1.01-A (which represents the agreed amount of the pro forma EBITDA with respect to
the units acquired pursuant to the Acquisition Agreement), minus (c) net gains on sales of assets,
whether or not extraordinary (excluding sales in the ordinary course of business), and other
extraordinary gains, minus (d) if, and only if, any balance sheet royalties receivable of Borrowers
and their Subsidiaries from any of the NCBBQ Entities are aged more than thirty (30) days, an
amount equal to all balance sheet royalties receivable included in EBITDA for the trailing twelve
month period less bad debt reserve associated with those royalties of Borrowers and their
Subsidiaries from all of the NCBBQ Entities (whether or not such balance sheet royalties receivable
are aged more than thirty (30) days); provided, however, that this clause (d) shall be of no
further force or effect after the earliest to occur of: (A) the earliest date that none of the
balance sheet royalties receivable of Borrowers and their Subsidiaries from any of the NCBBQ
Entities are aged more than thirty (30) days, and (B) the latest to occur of the date on which (x)
Borrowers and the NCBBQ Entities have reached an agreement with respect to past due, current and
future royalties payable by the NCBBQ Entities to Borrowers and their Subsidiaries, which agreement
is evidenced by a written document which is acceptable in form and substance to Administrative



8









 




Agent in its Sole Discretion, and (y) a fully executed copy of such agreement has been
delivered to Administrative Agent.




     “Consolidated EBITDAR” means, for any Reference Period, the sum of (a) the
Consolidated EBITDA for such period, plus (b) Consolidated Rental Expense for such period.



     “Consolidated Financial Obligations” means, for any period, the sum of (a) all
scheduled payments of principal or mandatory redemption amounts and fees on Indebtedness of the
Borrowers and their Subsidiaries, including Capitalized Leases and including Synthetic Leases, due
and payable during such period or within six Business Days following the last day of such period,
plus (b) Consolidated Total Interest Expense for such period. Demand obligations shall be deemed
to be due and payable during any period during which such obligations are outstanding.



     “Consolidated Funded Indebtedness” means, with respect to the Borrowers and their
Subsidiaries on a consolidated basis, the sum, without duplication, of (a) the aggregate amount of
Indebtedness of the Borrowers and their Subsidiaries, on a consolidated basis, to the extent
relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes
or bonds or Indebtedness issued in connection with the conversion of any Capital Stock, (ii) the
deferred purchase price of assets (other than trade payables incurred in the ordinary course of
business), and (iii) Synthetic Leases and Capitalized Leases, plus (b) Indebtedness of the type
referred to in clause (a) of another Person guaranteed by the Borrowers and any of their
Subsidiaries; provided that, for the avoidance of doubt, subclause (i) shall not include any
Derivative Contracts.



     “Consolidated Net Income (or Deficit)” means, for any Reference Period, the
consolidated net income (or deficit) of the Borrowers and their Subsidiaries, after deduction of
all expenses, taxes, and other proper charges, determined in accordance with GAAP consistently
applied, after eliminating therefrom all extraordinary non-recurring items of income.



     “Consolidated Pre-Tax Income” means, for any Reference Period, Consolidated Net Income
(or Deficit) for such period plus, to the extent deducted from the calculation of Consolidated Net
Income (or Deficit), income tax paid or payable for such period, determined in accordance with GAAP
consistently applied.



     “Consolidated Rental Expense” means, for any Reference Period, the sum of (a) all
rental expense of the Borrowers and their Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP consistently applied, incurred under any Leases or other
rental agreements or leases of real or personal property, including space leases and ground leases,
other than obligations in respect of any Capitalized Leases or any Synthetic Leases plus (b) for
each Reference Period that includes any 2010 fiscal quarter, the applicable amount for such fiscal
quarter set forth in Schedule 1.01-B (which represents the agreed amount of the pro forma
rent for the units acquired pursuant to the Acquisition Agreement).



     “Consolidated Total Interest Expense” means, for any Reference Period, the aggregate
amount of cash interest accrued by the Borrowers and their Subsidiaries during such period on all
Indebtedness of the Borrowers and their Subsidiaries outstanding during all or any part of



9









 




such period, whether such interest was or is required to be reflected as an item of expense or
capitalized, including (a) payments consisting of interest in respect of any Capitalized Lease or
any Synthetic Lease, (b) commitment fees and letter of credit fees incurred in connection with the
borrowing of money (including amounts due under Sections 2.06 and 2.10(i)) and (c)
facility fees, balance deficiency fees and similar fees or expenses in connection with the
borrowing of money other than the financing provided under this Agreement and the other Loan
Documents.




     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound and shall include, without limitation, any
obligation under or in connection with any Instrument, Document or General Intangible.



     “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
by” and “under common Control with” have meanings correlative thereto.



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



     “Current Filings” shall have the meaning specified in Section 5.20.



     “D&D” shall have the meaning specified in the introductory paragraph hereto.



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



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



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin,
if any, applicable to Base Rate Loans plus (iii) 4% per annum, provided,
however, that (A) with respect to a Eurodollar Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to
such Loan plus 4% per annum, in each case to the fullest extent permitted by applicable Laws, and
(b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin
applicable to Eurodollar Rate Loans plus 4% per annum.



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



10









 




dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.




     “Deposit Account” or “Deposit Accounts” shall have the meaning accorded to
such term in the UCC.



     “Derivative Contracts” means, with respect to any Person, every obligation of such
Person under any forward contract, futures contract, swap, option or other financing agreement or
arrangement (including caps, floors, collars and similar agreements), the value of which is
dependent upon interest rates, currency exchange rates, commodities or other indices.



     “Disposition” or “Dispose” means, with respect to any property, assets,
obligations or other items, the sale, assignment, conveyance, pledge, Grant, encumbrance, transfer,
license, lease, gift, abandonment or other disposition (including any sale and leaseback
transaction) of thereof by any Person, including any sale, assignment, transfer or other disposal,
with or without recourse, of any notes or accounts receivable or any rights and claims associated
therewith.



     “Document” shall have the meaning accorded to such term in the UCC.



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



     “Environmental Laws” means all present and future Laws, Requirements of Law, or
Consents or Other Action, relating to the protection of human health and safety or the environment,
including (a) all Laws, Requirements of Law, or Consents or Other Action, pertaining to reporting,
licensing, permitting, investigation, and remediation of emissions, discharges, releases, or
threatened releases of hazardous materials, chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials or wastes whether solid, liquid, or gaseous in nature,
into the air, surface water, groundwater, or land, or relating to the presence, generation,
discharge, release, removal, manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of chemical substances, pollutants, emissions, contaminants, or
hazardous, radioactive or toxic substances, materials, or wastes, whether solid, liquid, or gaseous
in nature; and (b) all Laws, Requirements of Law, Consents or Other Action, pertaining to the
protection of the health and safety of employees of the public.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any
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.



     “Equipment” shall have the meaning accorded to such term in the UCC.



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



11









 





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



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



     “Eurodollar Rate” means for any Interest Period the rate of interest, rounded upward
to the nearest whole multiple of one-sixteenth of one percent (0.0625%), quoted by Administrative
Agent as the London Inter-Bank Offered Rate for deposits in U.S. Dollars with a term equivalent to
such Interest Period, determined at approximately 9:00 a.m. California time.



     “Eurodollar Rate Loan” means a Loan bearing interest at the Adjusted Eurodollar Rate.



     “Event of Default” has the meaning specified in Section 10.01.



     “Famous Dave’s” means Famous Dave’s of America, Inc., a Minnesota corporation.



     “FDA Properties” means FDA Properties, Inc., a Delaware corporation.



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



     “Fee Letter” means the letter agreement, dated as of April 17, 2008 by and between the
Borrowers and the Administrative Agent, as the same may be amended, restated, modified or otherwise
supplemented from time to time.



12









 





     “Filing Collateral” means all Collateral and all other property with respect to which
a security interest may be perfected by the filing of financing statements under the UCC.



     “Filing Offices” means the filing offices listed on Exhibit I.



     “Financial Assets” shall have the meaning accorded to such term in the UCC.



     “Financing Statements” shall mean financing statements on form UCC-1 naming the
Borrowers, as debtors and Administrative Agent, for the benefit of the Holders of the Obligations,
as secured party and describing the Collateral, as the collateral.



     “Fixtures” shall have the meaning accorded to such term in the UCC.



     “Foreign Lender” has the meaning specified in Section 15.15(a)(i).



     “Franchised Properties” means those real properties listed on Exhibit C upon
which Persons that are not Affiliates of any Borrower (other than Dave Anderson) operate Famous
Dave’s restaurant businesses pursuant to franchise agreements between a Borrower or its Affiliates,
as franchisor, and such other Persons, as franchisees



     “FRB” means the Board of Governors of the Federal Reserve System of the United States,
or any Governmental Authority that succeeds to any of its principal functions.



     “GAAP” or “generally accepted accounting principles” means generally accepted
accounting principles in effect in the United States of America from time to time and subject to
Section 1.03.



     “General Intangible” or “General Intangibles” shall have the meaning accorded
to such term in the UCC.



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank, public office, court, arbitration or mediation panel, or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.



     “Grant” or “Grants” or “Granting” shall include to grant, assign,
pledge, transfer, convey, set over and dispose.



     “Growth Capital Expenditures” means Capital Expenditures related to the construction,
acquisition or opening of new Restaurants during any fiscal year.



     “Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such primary obligor, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the



13









 




purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.




     “Hazardous Material” means any material or substance that, whether by its nature or
use, is now or hereafter defined as a hazardous waste, hazardous substance, pollutant or
contaminant under any Environmental Laws, or which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and which is now and
hereafter regulated under any Environmental Laws, or which is or contains petroleum, gasoline,
diesel fuel or another petroleum hydrocarbon product.



     “Health-Care Insurance Receivables” shall have the meaning accorded to such term in
the UCC.



     “Holders of the Obligations” means the holders of the Obligations from time to time
and shall refer to (i) each Lender in respect of its Loans and L/C Obligations, (ii) the
Administrative Agent and the Lenders in respect of all other present and future obligations and
liabilities of any Borrower of every type and description arising under or in connection with this
Agreement or any other Loan Document, (iii) each Lender Counterparty, in respect of all Related
Rate Management Obligations of any Borrower or any Subsidiary to such Lender Counterparty as
exchange party or counterparty under any Related Rate Management Transaction, (iv) each Lender (or
any Affiliate of any Lender), in respect of all Related Treasury Management Obligations of any
Borrower or any Subsidiary to such Lender (or such Affiliate) in connection with Related Treasury
Management Services, and (v) their respective successors, transferees and assigns.



     “Honor Date” has the meaning set forth in Section 2.10(c)(i).



     “Incurrence Ratio” means, as of any date of determination, the maximum Adjusted
Leverage Ratio permitted under Section 14.01 as of the end of the most recently ended
Reference Period for which the Borrowers have delivered a Compliance Certificate, less 0.20.



     “Indebtedness” means, as to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person and whether or not
contingent, but without duplication:



14









 





     (a) every obligation of such Person for money borrowed,



     (b) every obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition of property, assets
or businesses,



     (c) every reimbursement obligation of such Person with respect to letters of credit, bankers’
acceptances or similar facilities issued for the account of such Person,



     (d) every obligation of such Person issued or assumed as the deferred purchase price of
property or services (including securities repurchase agreements but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business which are not overdue or
which are being contested in good faith and for which the Borrowers maintain sufficient reserves in
accordance with GAAP consistently applied),



     (e) every obligation of such Person under any Capitalized Lease,



     (f) every obligation of such Person under any Synthetic Lease,



     (g) all sales by such Person of (i) accounts or general intangibles for money due or to become
due, (ii) chattel paper, instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively “receivables”), whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the business operations of
such Person relating thereto or a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to pay any discount,
interest, fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith,



     (h) every obligation of such Person (an “equity related purchase obligation”) to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of such Person or any rights
measured by the value of such Capital Stock,



     (i) every obligation of such Person under any Derivative Contract,



     (j) every obligation in respect of Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent that 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 that the terms of such Indebtedness provide that such Person is not liable therefor and such
terms are enforceable under applicable law,



     (k) every Guarantee.



     The “amount” or “principal amount” of any Indebtedness at any time of determination
represented by (i) any Indebtedness, issued at a price that is less than the principal amount at
maturity thereof, shall be the amount of the liability in respect thereof determined in accordance
with GAAP consistently applied, (ii) any Capitalized Lease shall be the principal component of the
aggregate of the rentals obligation under such Capitalized Lease payable over the term thereof that
is not subject to termination by the lessee, (iii) any sale of receivables shall be the



15









 




amount of unrecovered capital or principal investment of the purchaser (other than any of the
Borrowers or any of their wholly-owned Subsidiaries) thereof, excluding amounts representative of
yield or interest earned on such investment, (iv) any Synthetic Lease shall be the stipulated loss
value, termination value or other equivalent amount, (v) any Derivative Contract shall be the
maximum amount of any termination or loss payment required to be paid by such Person if such
Derivative Contract were, at the time of determination, to be terminated by reason of any event of
default or early termination event thereunder, whether or not such event of default or early
termination event has in fact occurred, (vi) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and unpaid dividends to
be comprised in such redemption or purchase price and (vii) any Guarantee shall be an amount equal
to the stated or determinable amount of the primary obligation in respect of which such Guarantee
is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined by such Person in
good faith.




     “Indemnified Liabilities” has the meaning set forth in Section 15.05.



     “Indemnitees” has the meaning set forth in Section 15.05.



     “Instrument” or “Instruments” shall have the meaning accorded to such term in
the UCC.



     “Insurance Proceeds” means, at any time, all insurance proceeds or payments to which
any Borrower may be or become entitled by reason of any casualty with respect to a Company-Owned
Property under the insurance policies required to be maintained pursuant to the Loan Documents plus
(i) the amounts of any deductibles under such insurance policies; (ii) if any Borrower fails to
maintain any of the insurance policies required under the Loan Documents, the amounts which would
have been available with respect to such casualty had such Borrower maintained such insurance
policies; and (iii) all insurance proceeds and payments to which any Borrower may be or become
entitled, including pursuant to title insurance or by reason of any casualty with respect to any
Company-Owned Property under any other insurance policies coverage maintained by any Borrower.



     “Insurance Requirements” means the insurance requirements set forth in Section
6.07 and Schedule 6.07.



     “Interest Payment Date” means, as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the applicable Maturity Date; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan and One-Month LIBO Rate Loan, the
first Business Day of each month and the applicable Maturity Date.



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



16









 






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




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




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



     “Inventory” shall have the meaning accorded to such term in the UCC.



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



     “Investment Property” shall have the meaning accorded to such term in the UCC.



     “IP Rights” has the meaning set forth in Section 5.24.



     “IRS” means the United States Internal Revenue Service.



     “Judgment” means any order, decision, decree, award or injunction of any Governmental
Authority.



     “Lake BBQ” shall have the meaning specified in the introductory paragraph hereto.



     “Late Payment Charge” shall have the meaning accorded to such term in Section
2.05(b).



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



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



17









 





     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed by the Borrower on the date when made or refinanced as
Revolving Credit Loans pursuant to Section 2.10(c).



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



     “L/C Issuer” means Wells Fargo in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as of any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings.



     “L/C Obligations Commitment” means, for each applicable Lender, its obligation to
purchase participations in L/C Obligations pursuant to this Agreement.



     “Lease” or “Leases” means any lease covering all or a portion of any
Company-Owned Property and any other leases to which any Borrower is a party or in which any
Borrower owns an interest other than a Personal Property Lease.



     “Lease Obligations” means obligations under or in connection with any Lease.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer, and, for the avoidance of doubt, shall include any
Person that becomes a party hereto in connection with any Revolving Credit Loan Increase.



     “Lender Counterparty” means each exchange party or counterparty under any Related Rate
Management Transaction who was a Lender (or an Affiliate of a Lender) at the time such Related Rate
Management Transaction was entered into.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
designated by such Lender in writing to Borrowers and Administrative Agent from time to time.



     “Letter of Credit” means any letter of credit issued under Section 2.10(a)(i).



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



     “Letter of Credit Expiration Date” means the day that is ten (10) days prior to the
Revolving Credit Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.10(i).



     “Letter of Credit Sublimit” means an amount equal to $3,000,000.00. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Commitments.



18









 





     “License” or “Licenses” means any license, permit, directive, authorization,
approval or stipulation required to operate the Business at any location.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, and any financing lease having substantially the same economic
effect as any of the foregoing) and including any right of set off or offset, rights of others,
benefits, claims or other liens (including federal or state tax liens).



     “Litigation” means any action, proceeding, litigation, investigation, arbitration,
mediation, claim or Judgment.



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Term Loan or a Revolving Credit Loan.



     “Loan Documents” means the Prior Credit Agreement (as amended and restated by this
Agreement), this Agreement, each Note, each Letter of Credit Application, each Letter of Credit and
any other note, security agreement, pledge agreement, mortgage, deed of trust, deed to secure debt,
any guarantee of Borrowers’ Obligations, collateral assignments, and other contractual Obligations,
filings (including financing statements) and recordings executed, delivered or filed, including any
amendments, supplements, renewals, extensions or replacements thereof, executed between any
Borrowers or their Affiliates and Lenders or by any Borrowers or their Affiliates for the benefit
of Lenders.



     “Loss” means any casualty or Condemnation.



     “Loss Proceeds” means all insurance proceeds or awards with respect to any Loss.



     “Maintenance Capital Expenditures” means Capital Expenditures that are not Growth
Capital Expenditures. For the avoidance of doubt, Maintenance Capital Expenditures shall include
investments in new point of sale systems or accounting systems.



     “Margin Stock” shall have the meaning accorded to such term in Regulation U, T or X of
the Board of Governors of the Federal Reserve System, as amended.



     “Material Adverse Effect” means, a material adverse change in, or a material adverse
effect on, (a) the business, results of operations, condition (financial or otherwise), assets or
liabilities (actual or contingent) of any Borrower, (b) the ability of the Borrowers to perform any
of their respective obligations under the Loan Documents, (c) the rights and remedies of the
Administrative Agent and the Lenders under any of the Loan Documents, or (d) the legality,
validity, binding effect or enforceability of any of the Loan Documents.



     “Maturity Date” means (a) for Revolving Credit Loans, the Revolving Credit Maturity
Date and (b) for the Term Loans, the Term Loan Maturity Date.



     “Maximum Revolving Credit Loan Commitment” means THIRTY MILLION AND NO/100ths Dollars
($30,000,000.00) (as the same may be increased to reflect any Revolving



19









 




Credit Loan Increase) provided, however, upon the effective date of any termination of the
Revolving Credit Commitments in accordance with Section 2.11, the Maximum Revolving Credit
Loan Commitment shall be reduced to ZERO AND NO/100ths Dollars ($0.00).




     “Maximum Term Loan Commitment. means SIX MILLION EIGHT HUNDRED THOUSAND AND NO/100ths
Dollars ($6,800,000.00); provided, however, that to the extent that any Term Loans are made to
Borrower in accordance with this Agreement and are thereafter repaid by Borrower to Lenders, then
the Maximum Term Loan Commitment shall be decreased by an amount equal to the aggregate amount of
any such Term Loans theretofore repaid as of any date of determination.



     “Minwood” means Minwood Partners, Inc., a Delaware corporation.



     “Money” shall have the meaning accorded to such term in the UCC.



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



     “NCBBQ Entities” means, collectively, North Country BBQ Ventures, Inc., North Country
BBQ Ventures, LLC, North Country BBQ Ventures (Mountainside), LLC, North Country BBQ Ventures
(Brick), LLC, North Country BBQ Ventures (Hillsborough), LLC, North Country BBQ Ventures (New
Brunswick), LLC, North Country BBQ Ventures (Hamilton), LLC, North Country BBQ Ventures
(Smithtown), LLC, North Country BBQ Ventures (Saugus), LLC, North Country BBQ Ventures (Braintree),
LLC, North Country BBQ Ventures (Westbury), LLC, North Country BBQ Ventures (Manchester), LLC, LLC,
North Country BBQ Ventures (Stamford), LLC and North Country BBQ Ventures (Woodbridge), LLC.



     “Nonrenewal Notice Date” has the meaning set forth in Section 2.10(b)(iii).



     “Note” means a promissory note made by the Borrowers in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit D.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Borrower arising under any Loan Document or otherwise with respect to any Loan,
Letter of Credit, L/C Borrowing, Related Rate Management Obligations or Related Treasury Management
Obligations, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising, and any future advances
thereon, renewals, extensions, modifications, amendments, substitutions and consolidations thereof,
including Borrowers’ obligations to pay (or reimburse Administrative Agent and Lenders for) all
costs and expenses (including Attorney Costs) incurred by Administrative Agent or Lenders in
obtaining, maintaining, protecting and preserving their interest in the Collateral or its security
interest therein, foreclosing, retaking, holding, preparing for sale or lease, selling or otherwise
disposing or realizing on the Collateral or in exercising their rights hereunder or as secured
party under the UCC, any other applicable Law or Loan Document, and including interest and fees and
that accrue after the commencement by or against any Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming




20











 




such Person as the debtor in such proceeding, regardless of whether such interest and fees are
allowed claims in such proceeding.




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



     “One-Month LIBO Rate” means for any day a fluctuating rate per annum equal to the
Adjusted Eurodollar Rate for a one-month Interest Period commencing on such day or, if such day is
not a Business Day, on the immediately preceding Business Day.



     “One-Month LIBO Rate Loan” means a Loan that bears interest determined by reference to
the One-Month LIBO Rate.



     “Original Credit Agreement” means the Credit Agreement dated January 28, 2005 among
Borrowers, Administrative Agent and Lenders (which was amended and restated by the Prior Credit
Agreement).



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed, if necessary, in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.



     “Outstanding Amount” means (i) with respect to Revolving Credit Loans or Term Loans or
all Loans, as applicable, on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; and
(ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any L/C Credit Extension occurring on such date and any other changes
in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on such date.



     “Participant” has the meaning specified in Section 15.07(e).



     “Payment Intangibles” shall have the meaning accorded to such term in the UCC.



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by any Borrower or any ERISA Affiliate or to which any Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of



21









 




a multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.




     “Permitted Encumbrances” means those matters set forth in Section 7.01 and
listed on Exhibit K and which individually and in the aggregate will not materially and
adversely affect the ability of any Borrower to pay in full the Obligations, the use of any
Company-Owned Property for the use currently being made thereof, or the operation or value of any
Company-Owned Property.



     “Permitted Stock Repurchase” means any repurchase by any Borrower of the common stock
of such Borrower pursuant to a stock repurchase authorization approved by the Board of Directors of
the applicable Borrower, in each case to the extent the same are expressly permitted pursuant to
the terms of this Agreement.



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



     “Personal Property Lease” shall mean any lease of Equipment or other personal property
deemed an operating lease under GAAP consistently applied.



     “Personalty Charges” means, with respect to any period, payments on any Personal
Property Lease.



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



     “Principal Agreement” or “Principal Agreements” shall mean (a) any written
agreement calling for the annual expenditure or receipt by any Borrower or any Subsidiary
individually (or any two or more of the Borrowers or Subsidiaries in the aggregate) of more than
$1,000,000 and (b) any other contract, agreement, permit or license, written or oral, of the
Borrowers or any of their Subsidiaries as to which the breach, nonperformance, cancellation of
failure to renew by any party thereto, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.



     “Prior Credit Agreement” has the meaning set forth in Recital A.



     “Proceeds” shall include Insurance Proceeds, Loss Proceeds, “proceeds”, “products”,
and “comingled goods” within the meaning accorded to such term in the UCC.



     “Promissory Notes” shall have the meaning accorded to such term in the UCC.



     “Property” means each Company-Owned Property.



     “Pro Rata Share” means, with respect to each Lender as to each applicable type of
Commitment (i.e., Term Loan Commitment or Revolving Credit Loan Commitment) at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the
amount of the applicable type of Commitment of such Lender at such time and the



22









 




denominator of which is the amount of the aggregate amount of the applicable type of
Commitment of all Lenders at such time; provided that if the Revolving Credit Commitment of
each applicable Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to Section 10.02, then the Pro Rata
Share of each applicable Lender as to the Revolving Credit Commitments shall be determined based on
the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to
any subsequent assignments made pursuant to the terms hereof. The initial Pro Rata Share of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The parties
acknowledge that a Lender may have a different Pro Rata Share for a Revolving Credit Loan
Commitment and Term Loan Commitment and may, in fact, have a Pro Rata Share of zero percent (0%) as
to one or the other type of Commitment. Whenever the term “Pro Rata Share” is used herein,
it shall mean the applicable Lender’s applicable Pro Rata Share, as the context requires, such
determination to be made by the Administrative Agent in its Sole Discretion.




     “Rate Adjustment Period” has the meaning specified in the definition of Applicable
Margin above in this Section 1.01.



     “Reference Period” means, as of any date of determination, the period of four (4)
consecutive fiscal quarters of the Borrowers and their Subsidiaries ending on such date, or if such
date is not a fiscal quarter end date, the period of four (4) consecutive fiscal quarters most
recently ended (in each case treated as a single accounting period).



     “Register” has the meaning set forth in Section 15.07(c).



     “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any successor regulations.



     “Related Rate Management Obligations” of the Borrowers and any Subsidiary means any
and all obligations of such Person, 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 Related Rate Management Transactions,
and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any
Related Rate Management Transactions.



     “Related Rate Management Transaction” means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by a Borrower or any Subsidiary 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.



23









 





     “Related Treasury Management Services” means each and any of the following bank
services provided to a Borrower or any Subsidiary by any Lender or any of its Affiliates: (a)
commercial credit cards, (b) purchasing cards, (c) stored value cards and (d) treasury management
services (including, without limitation, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository network services).



     “Related Treasury Management Obligations” of the Borrowers and any Subsidiary means
any and all obligations of such Persons, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Related Treasury Management
Services.



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



     “Request for Credit Extension” means (a) with respect to a Borrowing pursuant to
Section 2.01, a Borrowing Notice, and (b) with respect to an L/C Credit Extension, a Letter
of Credit Application.



     “Required Lenders” means, as of any date of determination, (a) if there are less than
three (3) Lenders on such date, all Lenders (other than any Defaulting Lender) and (b) if there are
three (3) or more Lenders on such date, Lenders having in the aggregate at least sixty-six and
two-thirds percent (66 2/3%) of the Aggregate Commitments or, if the Commitment of each Lender to
make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 10.02, Lenders holding in the aggregate at least sixty-six and
two-thirds percent (66 2/3%) of the aggregate amount of the Total Term Loan Outstandings and Total
Revolving Credit Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this
definition); provided that the Commitments of, and the portion of the Total Term Loan Outstandings
and Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



     “Requirement of Law” or “Requirements of Law” means any requirement,
direction, policy or procedure of any Law or License, Judgment, or Consent or Other Action.



     “Reserve Percentage” means at any time the percentage announced within Administrative
Agent as the reserve percentage under Regulation D for loans and obligations making reference to an
Adjusted Eurodollar Rate. The Reserve Percentage shall be based on Regulation D or other
regulations from time to time in effect concerning reserves for Eurocurrency Liabilities as defined
in Regulation D from related institutions as though Administrative Agent were in a net borrowing
position, as promulgated by the Board of Governors of the Federal Reserve System, or its successor.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or vice president of a Borrower. Any document delivered
hereunder that is signed by a Responsible Officer of a Borrower shall be conclusively presumed



24









 




to have been authorized by all necessary corporate, partnership and/or other action on the
part of such Borrower and such Responsible Officer shall be conclusively presumed to have acted on
behalf of such Borrower.




     “Restaurant” means a particular restaurant at a particular location that is owned or
operated by a Borrower or a Subsidiary of a Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Capital Stock or other equity interest of any
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other equity interest or of
any option, warrant or other right to acquire any such capital stock or other equity interest.



     “Revolving Credit Commitment Fee” has the meaning specified in Section 2.6.



     “Revolving Credit Loan” has the meaning specified in Section 2.01(a).



     “Revolving Credit Loan Borrowing” means a borrowing of simultaneous Revolving Credit
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the applicable Lenders, pursuant to Sections 2.01(a) and 2.10(c).



     “Revolving Credit Loan Commitment” means, for each applicable Lender, its obligation
to make Revolving Credit Loans to the Borrowers pursuant to Sections 2.01(a) and
2.10, in an aggregate principal amount at any one time outstanding not to exceed the
product of (a) such Lender’s applicable Pro Rata Share, times (b) the Maximum Revolving Credit Loan
Commitment.



     “Revolving Credit Loan Increase” has the meaning specified in Section
2.01(b)(i).



     “Revolving Credit Loan Increase Date” has the meaning specified in Section
2.01(b)(iii).



     “Revolving Credit Loan Increase Notice” means a notice from Borrowers to the
Administrative Agent requesting a Revolving Credit Loan Increase, which shall include in the
proposed amount of such Revolving Credit Loan Increase.



     “Revolving Credit Maturity Date” means May 1, 2013.



     “Ribs” shall have the meaning specified in the introductory paragraph hereto.



     “Ribs-U” shall have the meaning specified in the introductory paragraph hereto.



     “Ribs of Maryland” shall have the meaning specified in the introductory paragraph
hereto.



25









 





     “Sanctioned Country” shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/ index.html, or as otherwise published
from time to time.



     “Sanctioned Person” shall mean (i) a Person named on the list of “Specially Designated
Nationals and Blocked Persons” maintained by OFAC available at http://www.treas.gov/offices/
eotffc/ofac/sdn/index.html, or as otherwise published from time to time, or (ii) (A) an agency
of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country,
or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program
administered by OFAC.



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



     “Securities Accounts” shall have the meaning accorded to such term in the UCC.



     “Securities Entitlements” shall have the meaning accorded to such term in the UCC.



     “Software” shall have the meaning accorded to such term in the UCC.



     “Sole Discretion” means with respect to any decision or action (including granting of
any consent or approval) the discretion to make or take or fail to take or make any decision or
action with or without any reason, taking into account such factors, if any, as the decision maker
or action taker determines (including self interest), and any decision or action may be subject to
any such conditions or no conditions as the decision maker or action taker determines and shall be
final and conclusive.



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



     “Synthetic Lease” means any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP consistently applied and as a loan or
financing for U.S. income tax purposes.



     “Taxes and Other Charges” means all taxes, assessments and other governmental charges,
ground rents, or other rents, rates and charges, excises, levies, fees and other charges (public or
private) which may be assessed, levied, confirmed or imposed on, or in respect of or be a lien upon
the Collateral, a Company-Owned Property or the Business or any part thereof or any interest
therein.



     “Term Loan” has the meaning specified in Section 2.01(c).



26









 





     “Term Loan Borrowing” means the simultaneous borrowing of Term Loans on the Closing
Date pursuant to Section 2.01(c).



     “Term Loan Commitment” means, for each applicable Lender, its obligation to make a
Term Loan to the Borrower pursuant to Section 2.01(c), in an aggregate principal amount at
any one time outstanding not to exceed the product of (a) such Lender’s applicable Pro Rata Share,
times (b) the Maximum Term Loan Commitment.



     “Term Loan Maturity Date” means March 4, 2017.



     “Term Loan Required Amortization Payment” means $28,333.33.



     “30/360 Basis” means on the basis of a 360-day year consisting of 12 months of 30 days
each.



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



     “Total Term Loan Outstandings” means the aggregate Outstanding Amount of all Term
Loans.



     “Transaction Documents” means, collectively, the Acquisition Agreement and each other
instrument, document or agreement executed in connection with the Acquisition Transaction.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan, a Eurodollar
Rate Loan or a One-Month LIBO Rate Loan.



     “UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as
in effect from time to time as adopted in the State of New York.



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



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



     “Unreimbursed Amount” has the meaning set forth in Section 2.10(c)(i).



     “Wells Fargo” means Wells Fargo Bank, National Association and its successors.



     1.02 Other Interpretive Provisions.



     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



     (a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



27









 





     (b) (i) The words “herein,” “hereto,” “hereof” and
“hereunder” and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.




     (iii) The term “including” is by way of example and not limitation and shall be
deemed to be followed by the phrase “without limitation.”




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



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



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



     1.03 Accounting Terms.



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



     (b) In the event any Accounting Changes shall occur and such changes affect financing
covenants, standards or terms in this Agreement, then the Borrowers and the Lenders agree to enter
into negotiations in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that the criteria for evaluating the financial
condition of the Borrowers shall be the same as if such Accounting Changes had not been made, and
until such time as such an amendment shall have been executed and delivered by the Borrowers and
the Required Lenders, (a) all financial covenants, standards and terms in this Agreement shall be
calculated and/or construed as if such Accounting Changes had not been made, and (b) the Borrowers
shall prepare footnotes to the financial statements required to be delivered hereunder that shows
the differences between the financial statements delivered (which reflect such Accounting Changes)
and the basis for calculating financial covenant compliance (without reflecting such Accounting
Changes).



     1.04 Rounding.



     Any financial ratios required to be maintained by the Borrowers pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component,



28









 




carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).




     1.05 References to Agreements and Laws.



     Unless otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.



     1.06 Times of Day.



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



     1.07 Letter of Credit Amounts.



     Unless otherwise specified, all references herein to the amount of a Letter of Credit at any
time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect
to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application
therefor, whether or not such maximum face amount is in effect at such time.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Commitment to Make Loans.



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



     (b) (i) Borrowers may, from time to time prior to the earlier of (A) the Revolving Credit
Maturity Date or (B) any termination of the Revolving Credit Commitments pursuant to



29









 




Section 2.11, deliver to Administrative Agent a Revolving Credit Loan Increase Notice
to request an increase (each, a “Revolving Credit Loan Increase”) in the Maximum Revolving
Credit Loan Commitment by an aggregate amount not to exceed the amount necessary to increase the
Maximum Revolving Credit Loan Commitment to a total of FIFTY MILLION AND NO/100ths Dollars
($50,000,000.00); provided, however, that (1) no Lender is hereby making any commitment to
participate in any Revolving Credit Loan Increase or shall have any obligation to do so or to
negotiate to do so (whether or not in good faith) and it shall be a condition to any such Revolving
Credit Loan Increase that sufficient commitments to participate therein are obtained from existing
lenders or New Lenders (as defined below), (2) Revolving Credit Loan Increases shall be in an
amount equal to $5,000,000.00 or any $5,000,000.00 increment in excess thereof (for any individual
Revolving Credit Loan Increase) and not greater than $20,000,000.00 (in the aggregate for all
Revolving Credit Loan Increases hereunder during the term hereof), (3) no Revolving Credit Loan
Increase shall be effective earlier than thirty (30) days after Administrative Agent’s receipt of
the applicable Revolving Credit Loan Increase Notice in respect of such Revolving Credit Loan
Increase, (4) no more than two (2) Revolving Credit Loan Increases shall be made pursuant to this
Section 2.01(b), (5) no Default or Event of Default shall have occurred and be continuing
or would result after giving effect to such Revolving Credit Loan Increase, (6) as a condition to
such Revolving Credit Loan Increase, Borrowers shall have provided to Administrative Agent
satisfactory evidence in Administrative Agent’s Sole Discretion that Borrowers will be in pro forma
compliance with the financial covenants set forth in Article XIV hereof as of the most
recently ended Reference Period for which financial statements were delivered hereunder on a pro
forma basis both before and after giving effect to such Revolving Credit Loan Increase, (7) as a
condition to such Revolving Credit Loan Increase, Borrowers shall have provided to Administrative
Agent satisfactory evidence in Administrative Agent’s Sole Discretion that Consolidated EBITDA for
the most recently ended Reference Period for which financial statements were delivered hereunder
was greater than $20,000,000.00, and (8) as a condition to such Revolving Credit Loan Increase,
Borrowers shall have received Administrative Agent’s prior written consent to such Revolving Credit
Loan Increase, which consent shall be granted or withheld in Administrative Agent’s Sole
Discretion.




     (ii) The Administrative Agent shall promptly notify each Lender of any proposed Revolving
Credit Loan Increase to which Administrative Agent consents in its Sole Discretion. Each such
Lender may, in its Sole Discretion, commit to participate in such Revolving Credit Loan Increase by
forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory
to the Administrative Agent. The Administrative Agent shall allocate the Revolving Credit Loan
Increase among the Lenders from which it has received commitments, in its Sole Discretion but in
amounts not to exceed, with respect to any Lender, the commitment received from such Lender. If
the Administrative Agent does not receive enough commitments from existing Lenders, it may allocate
any excess in the proper amount of such Revolving Credit Loan Increase to one or more new Lenders,
selected in consultation with Borrowers and acceptable to Administrative Agent in its Sole
Discretion, who become Lenders in connection with such Revolving Credit Loan Increase (each a
“New Lender” and, collectively, the “New Lenders”).



     (iii) Any applicable Revolving Credit Loan Increase shall become effective after the
satisfaction of the conditions precedent set forth in Section 4.03, on a date agreed by the
Borrowers and the Administrative Agent (such date, a “Revolving Credit Loan Increase
Date”).



30









 




The Administrative Agent shall notify the Lenders and the Borrowers, on or before 1:00 p.m.
(New York time) on the Business Day following the Revolving Credit Loan Increase Date of the
effectiveness of the Revolving Credit Loan Increase and shall record in the Register all applicable
additional information required to be recorded therein because of such Revolving Credit Loan
Increase.




     (c) Subject to the terms and conditions set forth herein, each Lender having a Term Loan
Commitment severally agrees to make a loan (each such loan, a “Term Loan”) to the Borrowers
on the Closing Date, in an aggregate amount equal to such Lender’s Term Loan Commitment. Each
applicable Lender shall make the amount of its Term Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than 10:00 a.m. on the
Closing Date. Upon satisfaction of the applicable conditions set forth in Sections 4.01
and 4.02, the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of Wells Fargo with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by Borrower. Term Loans may be Base Rate Loans, Eurodollar Loans or
One-Month LIBO Rate Loans, as further provided herein. No amounts of any Term Loan that are paid
or prepaid may be reborrowed.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Loan, each conversion of Loans from one Type to another and each continuation of
Eurodollar Rate Loans shall be made upon the Borrowers’ irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 8:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
or conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans or One-Month LIBO Rate Loans and (ii) on the requested date of any
Borrowing of Base Rate Loans or One-Month LIBO Rate Loans, any conversion of Base Rate Loans to
One-Month LIBO Rate Loans or any conversion of One-Month LIBO Rate Loans to Base Rate Loans. Each
telephonic notice by the Borrowers pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Borrowing Notice, appropriately
completed and signed by a Responsible Officer of Famous Dave’s (it being hereby acknowledged by
each Borrower that execution of the same by such Responsible Officer of Famous Dave’s shall be
deemed to constitute execution of the same by a Responsible Officer of each Borrower). Except as
provided in Section 2.10(c), each Borrowing shall be in a principal amount of $50,000 or a
whole multiple of $50,000 in excess thereof. Each Borrowing Notice (whether telephonic or written)
shall specify (i) whether the Borrowers are requesting a conversion of Loans from one Type to
another or a continuation of Eurodollar Rate Loans, (ii) the requested borrowing, conversion or
continuation, as the case may be, date of the Loans (which shall be a Business Day), (iii) the
principal amount of the Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted and (iv) if applicable, the duration of the
Interest Period with respect thereto. If the Borrowers fail to specify a Type of Loan in a
Borrowing Notice or if the Borrowers fail to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any
such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest



31









 




Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrowers
request a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such
Borrowing Notice, but fail to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.




     (b) Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify
each applicable Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrowers, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. Each applicable Lender shall make the amount of its
applicable Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 10:00 a.m. on the Business Day specified in the
applicable Borrowing Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, in the case of the Borrowings on the Closing Date, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrowers in
like funds as received by the Administrative Agent either by (i) crediting the account of any
Borrower on the books of Wells Fargo with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by any Borrower.



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



     (d) The Administrative Agent shall promptly notify Famous Dave’s and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Adjusted Eurodollar Rate by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify Famous Dave’s and the Lenders of any change in
Wells Fargo’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.



     2.03 Prepayments.



     (a) The Borrowers may, upon notice to the Administrative Agent, from time to time, voluntarily
prepay any Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 8:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of
Base Rate Loans or One-Month LIBO Rate Loans; (ii) any prepayment of Eurodollar Rate Loans shall be
in a principal amount of $50,000 or a whole multiple of $50,000 in excess thereof; and (iii) any
prepayment of Base Rate Loans or One-Month LIBO Rate Loans shall be in a principal amount of
$50,000 or a whole multiple of $50,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. Each of the limitations in the foregoing clauses
(ii) and (iii) will apply separately for Revolving Credit Loans and Term Loans (and not
on an aggregate basis for all Loans). Each such notice shall specify the Revolving Credit Loans or
Term Loans to be prepaid, the date of prepayment and amount of



32









 




such prepayment and the Types of Loans to be prepaid. The Administrative Agent will promptly
notify each applicable Lender of its receipt of each such notice, and of the amount of such
Lender’s applicable Pro Rata Share of such prepayment. If such notice is given by the Borrowers,
the Borrowers shall make such prepayment and the payment amount specified in such notice shall be
due and payable on the prepayment date specified therein. Any prepayment of a Loan shall be
accompanied by all accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05. Each such prepayment shall be applied to the Loans of the applicable
Lenders in accordance with their respective applicable Pro Rata Shares. Prepayments of Term Loans
shall be applied to the remaining Term Loan Required Amortization Payments in the inverse order of
maturity.




     (b) If for any reason the Total Revolving Credit Outstandings at any time exceed the aggregate
amount of the Revolving Credit Commitments then in effect, the Borrowers shall immediately prepay
Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess, any such prepayment to be applied to the applicable Commitments which have been
exceeded (in accordance with each applicable Lender’s Pro Rata Share thereof) in such order as
Administrative Agent may determine in its Sole Discretion.



     (c) If for any reason the Adjusted Leverage Ratio for any Reference Period exceeds the
applicable ratio set forth in Section 14.01, the Borrowers shall prepay, on or before the
date which is thirty (30) days after the date such excess is determined, first, Term Loans and,
second, to the extent necessary, Revolving Credit Loans, in an aggregate amount equal to an amount
which would bring the Adjusted Leverage Ratio in compliance with Section 14.01. Any such
prepayment of Term Loans shall be applied to the Term Loans (in accordance with each applicable
Lender’s applicable Pro Rata Share thereof) in such order as Administrative Agent may determine in
its Sole Discretion, and any such prepayment of Revolving Credit Loans shall be applied to the
Revolving Credit Loans (in accordance with each applicable Lender’s applicable Pro Rata Share
thereof) in such order as Administrative Agent may determine in its Sole Discretion.



     2.04 Repayment of Loans.



     (a) On Maturity Date. In addition to any other payments due under this Agreement, (i)
the Borrowers shall repay to the applicable Lenders on the Revolving Credit Maturity Date the
aggregate Outstanding Amount of all Revolving Credit Loans on such date and (ii) the Borrowers
shall repay to the applicable Lenders on the Term Loan Maturity Date the aggregate Outstanding
Amount of all Term Terms on such date.



     (b) Term Loan Required Amortization. In addition to any other payments due under this
Agreement, on the first Business Day of each month commencing April, 2010, Borrower shall pay to
the Administrative Agent for the account of the applicable Lenders, as a principal reduction of the
Term Loans, an amount equal to the applicable Term Loan Required Amortization Payment.
Notwithstanding the principal amortization payments provided for herein, the Outstanding Amount of
the Term Loans shall be fully due and payable on the Term Loan Maturity Date. No principal balance
reduction of the Term Loans may be reborrowed.



     2.05 Interest.



33









 





     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Adjusted Eurodollar Rate for such Interest Period plus the Applicable
Margin; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Margin; and (iii) each One-Month LIBO Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the
One-Month LIBO Rate plus the Applicable Margin, provided, however, that in no event shall
the interest rate as determined under either of the foregoing clauses (i), (ii) or (iii) be less
than zero percent (0%).



     (b) If Administrative Agent has not received on any date on which any payment is due (whether
by acceleration or otherwise) the full amount due on such date, in addition to any other amounts
payable hereunder, Borrowers shall pay to the Administrative Agent, promptly on demand, a late
payment charge (“Late Payment Charge”) in an amount equal to the product of (x) the
difference between (1) the amount due on any such due date and (2) the amount actually received on
such due date, multiplied by (y) .05. In addition, if any amount payable by the Borrowers
under any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws. Furthermore, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest
on past due interest) shall be due and payable upon demand.



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



     (d) Interest shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.08(a), bear interest for one day.



     (e) All computations of interest with respect to Base Rate Loans shall be made on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of
interest shall be made on an Actual/360 Basis (which results in more interest being paid than if
computed on a 30/360 Basis).



     2.06 Fees.



     (a) Revolving Credit Commitment Fee. The Borrowers shall pay to the Administrative
Agent for the account of each Lender that holds a Revolving Credit Loan Commitment in accordance
with its applicable Pro Rata Share, a revolving credit commitment



34









 




fee (“Revolving Credit Commitment Fee”) computed on a daily basis equal to the product
of (A) the Applicable Margin for Revolving Credit Commitment Fees per annum times (B) the
positive difference, if any, of (i) the Maximum Revolving Credit Loan Commitment on each day,
minus (ii) the average daily Outstanding Amount of all Revolving Credit Loans on each day,
in each case, during the period from the then most recent prior Interest Payment Date (or, in the
case of the amount being determined on the first Interest Payment Date, from the Closing Date)
until the day immediately preceding the applicable Interest Payment Date, minus (iii) the
average daily Outstanding Amount of all L/C Obligations on each day during the period from the then
most-recent prior Interest Payment Date (or, in the case of the amount being determined on the
first Interest Payment Date, from the Closing Date) until the day immediately preceding the
applicable Interest Payment Date. The Revolving Credit Commitment Fee shall accrue at all times
during the Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable monthly in arrears on the first
Business Day of each month, commencing with the first such date to occur after the Closing Date,
and on the Revolving Credit Maturity Date.




     (b) Other Fees. (i) The Borrowers shall pay to the Administrative Agent for its own
account fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever



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



     (c) Actual/360. All computations of fees shall be made on an Actual/360 Basis (which
results in more fees being paid than if computed on a 30/360 Basis).



     2.07 Evidence of Debt.



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



     (b) In addition to the accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice accounts or



35









 




records evidencing the purchases and sales by such Lender of participations in Letters of
Credit. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of manifest error.




     2.08 Payments Generally.



     (a) All payments to be made by any Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by any Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, via bank account debit in Dollars and in
immediately available funds not later than 11:00 a.m. on the date specified herein. The
Administrative Agent will promptly distribute to each applicable Lender its applicable Pro Rata
Share (or other applicable share as provided herein) of such payment in like funds as received by
wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent
after 11:00 a.m. shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.



     (b) If any payment to be made by any Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such extension of time shall be
reflected, without duplication, in computing interest or fees, as the case may be.



     (c) Unless the Borrowers or any applicable Lender have notified the Administrative Agent,
prior to the date any payment is required to be made by it to the Administrative Agent hereunder,
that the Borrowers or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrowers or such Lender, as the case may be, have timely
made such payment and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that such payment was
not in fact made to the Administrative Agent in immediately available funds, then:




     (i) if the Borrowers failed to make such payment, each applicable Lender shall
forthwith on demand repay to the Administrative Agent the portion of such assumed payment
that was made available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds at the Federal Funds Rate from time
to time in effect; and




     (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrowers to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
Federal Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s applicable Loan,
included in the applicable Borrowing. If such Lender does not pay such



36









 







amount forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount
to the Administrative Agent, together with interest thereon for the Compensation Period at a
rate per annum equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may
have against any Lender as a result of any default by such Lender hereunder.



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



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



     (e) The obligations of the applicable Lenders hereunder to make Loans and to fund
participations in Letters of Credit are several and not joint. The failure of any applicable
Lender to make any Loan or to fund participations in Letters of Credit on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Revolving
Credit Loan or purchase its participation.



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



     2.09 Sharing of Payments.



     If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of
the Loans made by it, or the participations in L/C Obligations held by it, any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of
its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately
(a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the participations in L/C
Obligations held by them, as the case may be, as shall be necessary to cause such purchasing Lender
to share the excess payment in respect of such applicable Loans or such participations, as the case
may be, pro rata with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from the purchasing Lender under any of the
circumstances described in Section 15.06 (including pursuant to any settlement entered into
by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and
each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the
amount of such paying Lender’s required repayment to (ii) the total amount



37









 




so recovered from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered, without further interest
thereon. Each Borrower agrees that any Lender so purchasing a participation from another Lender
may, to the fullest extent permitted by law, exercise all its rights of payment (including the
right of set-off, but subject to Section 15.09) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrowers in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing Lender were the
original owner of the Obligations purchased.




     2.10 Letters of Credit.



     (a) The Letter of Credit Commitments.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.10,
(1) from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of the
Borrowers, and to amend or renew Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drafts under the Letters of Credit; and (B) the
Lenders holding L/C Obligation Commitments severally agree to participate in Letters of
Credit issued for the account of the Borrowers; provided that the L/C Issuer shall
not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and
no Lender shall be obligated to participate in any Letter of Credit if as of the date of
such L/C Credit Extension and after giving effect thereto, (w) the Total Revolving Credit
Outstandings would exceed the aggregate amount of the Revolving Credit Commitments, (x) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Lender’s applicable Pro Rata Share of the Outstanding Amount of all L/C Obligations would
exceed such Lender’s Revolving Credit Loan Commitment, (y) the aggregate Outstanding Amount
of the Revolving Credit Loans of any Lender, plus such Lender’s applicable Pro Rata
Share of the Outstanding Amount of all L/C Obligations, would exceed such Lender’s Revolving
Credit Commitment, or (z) the Outstanding Amount of the L/C Obligations would exceed the
Letter of Credit Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed.




     (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:




(A) any order, judgment or decree of any Governmental Authority or arbitrator shall
by its terms purport to enjoin or restrain the L/C Issuer from issuing such



38









 







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




(B) subject to Section 2.10(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last renewal;




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




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




(E) such Letter of Credit (1) is in an initial amount less than $500,000, or (2) is
to be used for a purpose other than general corporate purposes related to the
Business, or (3) is to be denominated in a currency other than Dollars.




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




     (iv) Borrowers, Administrative Agent, L/C Issuer and Lenders acknowledge and agree that
the rights and obligations of the Lenders under this Section 2.10 shall be limited to
Lenders that have, and shall apply solely to, the L/C Obligations Commitments.



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrowers delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of Famous Dave’s (it being hereby acknowledged by each Borrower that
execution of the same by such Responsible Officer of Famous Dave’s shall be deemed to
constitute execution of the same by a Responsible Officer of each Borrower). Such Letter of
Credit Application must be received by the L/C Issuer and the Administrative Agent not later
than 8:00 a.m. at least five Business



39









 







Days (or such later date and time as the L/C Issuer may agree in a particular instance
in its Sole Discretion) prior to the proposed issuance date or date of amendment, as the
case may be. In the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of
any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the L/C Issuer
may require. In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from Borrowers and, if not,
the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by
the L/C Issuer of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for
the account of the Borrowers or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Lender’s
applicable Pro Rata Share times the amount of such Letter of Credit.




     (iii) If any Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its Sole Discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an “Auto-Renewal Letter of Credit”);
provided that any such Auto-Renewal Letter of Credit must permit the L/C Issuer to
prevent any such renewal at least once in each twelve-month period (commencing with the date
of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the “Nonrenewal Notice Date”) in each such twelve-month period to
be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrowers shall not be required to make a specific request to the L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the renewal of such Letter of Credit at any time to an expiry date not later than the Letter
of Credit Expiration Date; provided, however, that the L/C Issuer shall not
permit any such renewal if (A) the L/C Issuer has determined that it would have no
obligation at such time to issue such Letter of Credit in its renewed form under the terms
hereof (by reason of the provisions of Section 2.10(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the



40









 







Nonrenewal Notice Date from the Administrative Agent, any Lender or any Borrower that
one or more of the applicable conditions specified in Section 4.02 is not then
satisfied.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrowers and the
Administrative Agent thereof. Not later than 8:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrowers
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrowers fail to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each applicable Lender of the Honor Date, the
amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such applicable Lender’s applicable Pro Rata Share thereof. In such event, the Borrowers
shall be deemed to have requested a Revolving Credit Loan Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.01 for the principal amount of
Revolving Credit Loans, but subject to the amount of the unutilized portion of the aggregate
amount of the Revolving Credit Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Request for Credit Extension). Any notice given by
the L/C Issuer or the Administrative Agent pursuant to this Section 2.10(c)(i) may
be given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




     (ii) Each applicable Lender (including the Lender acting as L/C Issuer) shall upon any
notice pursuant to Section 2.10(c)(i) make funds available to the Administrative
Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount
equal to its applicable Pro Rata Share of the Unreimbursed Amount not later than 10:00 a.m.
on the Business Day specified in such notice by the Administrative Agent, whereupon, subject
to the provisions of Section 2.10(c)(iii), each applicable Lender that so makes
funds available shall be deemed to have made a Revolving Credit Loan to the Borrowers in
such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Loan for any reason, the Borrowers shall be deemed to have incurred from
the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to



41









 







Section 2.10(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such applicable Lender in
satisfaction of its participation obligation under this Section 2.10.




     (iv) Until each applicable Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.10(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender’s applicable Pro Rata Share
of such amount shall be solely for the account of the L/C Issuer.




     (v) Each applicable Lender’s obligation to make Revolving Credit Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by
this Section 2.10(c), shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other
right which such applicable Lender may have against the L/C Issuer, any Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or an
Event of Default, or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing. No such making of an L/C Advance shall relieve or otherwise impair
the obligation of any Borrower to reimburse the L/C Issuer for the amount of any payment
made by the L/C Issuer under any Letter of Credit, together with interest as provided
herein.




     (vi) If any applicable Lender fails to make available to the Administrative Agent for
the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.10(c) by the time specified in Section
2.10(c)(ii), the L/C Issuer shall be entitled to recover from such applicable Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to (x) the Federal Funds
Rate from time to time in effect, for the period from the date such payment is required
until the earlier of the date that such payment is immediately available and the date that
is two Business Days after the date such payment is required, and (y) the Base Rate
thereafter until the date on which such payment is immediately available. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any applicable Lender such applicable Lender’s L/C Advance in respect of
such payment in accordance with Section 2.10(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from a Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such applicable Lender its applicable Pro Rata Share
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such applicable Lender’s




42











 






L/C Advance was outstanding) in the same funds as those received by the
Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.10(c)(i) is required to be returned under any of the
circumstances described in Section 15.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each applicable Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its applicable Pro Rata Share thereof
on demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such applicable Lender, at a rate per annum equal to:
(x) the Federal Funds Rate from time to time in effect, for the period from the date of such
demand until the earlier of the date that such amount is returned by such Lender and the
date that is two Business Days after the date of such demand, and (y) the Base Rate
thereafter until the date on which such amount is returned by such applicable Lender.



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




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;




     (ii) the existence of any claim, counterclaim, set-off, defense or other right that any
Borrower may have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;




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




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



43









 






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




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



     (f) Role of L/C Issuer. Each applicable Lender and each Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the L/C
Issuer, any Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the applicable Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit Application. The
Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this assumption
is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as
they may have against the beneficiary or transferee at law or under any other agreement. None of
the L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the L/C Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.10(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers
which the Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary, and the L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, the
Borrowers shall immediately Cash Collateralize the then Outstanding Amount of all L/C



44









 




Obligations (in an amount equal to such Outstanding Amount determined as of the date of such
L/C Borrowing or the Letter of Credit Expiration Date, as the case may be). For purposes hereof,
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the applicable Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer. Derivatives of such term have
corresponding meanings. The Borrowers hereby grant to the Administrative Agent, for the benefit of
the L/C Issuer and the applicable Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Wells Fargo.




     (h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C Issuer and
the Borrowers when a Letter of Credit is issued, (i) such Letter of Credit shall be a standby
Letter of Credit, (ii) the rules of the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each such standby Letter of Credit.



     (i) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for
the account of each applicable Lender in accordance with its applicable Pro Rata Share a Letter of
Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable
Margin for Eurodollar Rate Loans per annum on the date of issuance or renewal of the applicable
Letter of Credit times the maximum face amount of such Letter of Credit times a
fraction (a) the numerator of which is the actual number of days for which such Letter of Credit is
issued or renewed (i.e. 365 if issued or renewed for a period of one year) (determined upon
issuance or renewal, as applicable, and with out regard to whether or not such Letter of Credit in
fact remains outstanding for the entire such period), and (b) the denominator of which is 360.
Such letter of credit fees shall be computed initially at the time of issuance of each such Letter
of Credit and thereafter on each date of renewal thereof, if any. Such letter of credit fees shall
be due and payable on the Business Day immediately preceding the date on which the each applicable
Letter of Credit is issued or renewed, as applicable. The Letter of Credit Fees are nonrefundable.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. In
addition, the Borrowers shall pay directly to the L/C Issuer for its own account the customary
fronting, issuance, presentation, amendment, transfer, negotiation and other processing fees, and
other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to
time in effect. Such customary fees and standard costs and charges are due and payable on demand
and are nonrefundable.



     (k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



45









 





     2.11 Termination of Revolving Credit Loan Commitments. The Borrowers may, upon notice to the
Administrative Agent, terminate all of the Revolving Credit Loan Commitments; provided that
(i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
(5) Business Days prior to the date of
termination, and (ii) the Borrowers shall not terminate the Revolving Credit Loan Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving
Credit Outstandings would exceed the Maximum Revolving Credit Loan Commitment (as of the effective
date of such termination). The Administrative Agent will promptly notify the applicable Lenders of
any such notice of termination of the Revolving Credit Loan Commitments. In addition to any other
amounts then due and owing under this Agreement and the other Loan Documents, upon the effective
date of any such termination, the Borrowers shall pay to the Administrative Agent for the
respective accounts of the applicable Lenders the full amount of any Revolving Credit Commitment
Fee then accrued until the effective date of the termination pursuant to Section 2.06(a).
No termination of the Revolving Credit Commitments may be reinstated. In addition, upon the
effective date of any such termination, the Maximum Revolving Credit Loan Commitment shall be
reduced to ZERO AND NO/100ths Dollars ($0.00) and the Revolving Credit Loan Commitment of each
applicable Lender shall be reduced to ZERO AND NO/100ths Dollars ($0.00).



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Any and all payments by any Borrower to or for the account of the Administrative Agent or
any Lender under any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto, excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on or measured by its overall
net income, and franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or
any subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the
case may be, is organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities
being hereinafter referred to as “Taxes”). If Borrowers shall be required by any Laws to
deduct any Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (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), each of the Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrowers shall make such
deductions, (iii) the Borrowers shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrowers shall furnish to the Administrative Agent (which shall forward the same to
such Lender) the original or a certified copy of a receipt evidencing payment thereof.



     (b) In addition, the Borrowers agree to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which



46









 







arise
from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).



     (c) If the Borrowers shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, the
Borrowers shall also pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including
taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.



     (d) Each Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be made within 30
days after the date the Lender or the Administrative Agent makes a demand therefor.



     3.02 Illegality.



     If any Lender determines that any Change in Law has made it unlawful for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or
charge interest rates based upon the Adjusted Eurodollar Rate, then, on notice thereof by such
Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or convert Base Rate Loans or One-Month LIBO Rate Loans into
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrowers that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
into Base Rate Loans, either on the last day of the Interest Period therefore, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such date, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Loans. Upon any such prepayment or
conversion, the Borrowers shall also pay accrued interest on the amount so prepaid. Each Lender
agrees to designate a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.



     3.03 Inability to Determine Rates.



     If the Administrative Agent determines that for any reason adequate and reasonable means do
not exist for determining the interest rate based upon the Adjusted Eurodollar Rate for any
Interest Period for any Eurodollar Rate Loans or for determining the interest rate based upon the
One-Month LIBO Rate, or that the Adjusted Eurodollar Rate with respect to any requested



47









 







Interest
Period for any Eurodollar Rate Loans does not adequately and fairly reflect the cost to Lenders of
funding such Eurodollar Rate Loans or that the One-Month LIBO Rate does not adequately and fairly
reflect the cost to Lenders of funding such One-Month LIBO Rate Loans, the Administrative Agent
will promptly so notify the Borrowers and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurodollar Rate Loans or One-Month LIBO Rate
Loans (as applicable) shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrowers may revoke
any pending request for a Revolving Credit Loan Borrowing of, conversion to or continuation of
Eurodollar Rate Loans or One-Month LIBO Rate Loans (as applicable) or, failing that, such request
will be deemed to be a request for a Revolving Credit Loan Borrowing of Base Rate Loans in the
amount so specified.



     3.04 Increased Cost and Reduced Return; Capital Adequacy.



     (a) If any Lender determines that as a result of any Change in Law, or such Lender’s
compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or One-Month LIBO Rate Loans (as applicable)
or (as the case may be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i)
Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements utilized in the determination
of the Adjusted Eurodollar Rate), then from time to time upon demand of such Lender (with a copy of
such demand to the Administrative Agent), the Borrowers shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.



     (b) If any Lender determines that any Change in Law regarding capital adequacy or any change
therein or in the interpretation thereof, or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such Lender’s desired return
on capital), then from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrowers shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.



     3.05 Funding Losses.



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



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



48









 





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


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Adjusted Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable period, whether or not
such Eurodollar Rate Loan was in fact so funded.




     3.06 Matters Applicable to all Requests for Compensation.



     A certificate of the Administrative Agent or any Lender claiming compensation under this
Article III and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and attribution methods.



     3.07 Survival.



     All of the Borrowers obligations under this Article III shall survive termination of
the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     4.01 Conditions of Initial Credit Extension.



     The obligation of the Lenders to make the initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:



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




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




     (ii) a Note executed by the Borrowers in favor of each Lender that requests a Note;



49









 






     (iii) amendments to such other Loan Documents as Administrative Agent may reasonably
require to effect the terms of this Agreement, including, if the Borrower has adopted or has
any trademarks that are registered with the United States Patent and Trademark Office
(“USPTO”) and are not covered by a prior filing of Administrative
Agent’s security interest therein with the USPTO, a supplemental grant with respect to
such trademarks;




     (iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Borrower is a party;




     (v) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Borrower is duly organized or formed, and that each Borrower
is validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification;




     (vi) a favorable opinion or opinions of counsel to the Borrowers, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit H and
such other matters concerning the Borrowers and the Loan Documents as the Required Lenders
may reasonably request;




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




     (viii) a certificate of each Borrower signed by a Responsible Officer certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;




     (ix) evidence that all Insurance Requirements have been met and that all insurance
required to be maintained pursuant thereto is in effect; and




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



     (b) Any fees required to be paid on or before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney
Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute its reasonable estimate



50









 







of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that such estimate shall
not thereafter preclude a final settling of accounts between the Borrowers and the Administrative
Agent).



     (d) Patriot Act Certificate. The Administrative Agent shall have received a
certificate satisfactory thereto, for benefit of itself and the Lenders, provided by the Borrowers
that sets forth information required by the Patriot Act (as defined in Section 15.22)
including the identity of the Borrowers, the name and address of the Borrowers and other
information that will allow the Administrative Agent, the L/C Issuer or any Lender, as applicable,
to identify the Borrowers in accordance with the Patriot Act.



     (e) All conditions to the closing of the Acquisition Transaction shall have been satisfied,
all Consents and Other Action (including the applicable United States Bankruptcy Court order)
necessary to consummate the closings thereof in accordance with the applicable Transaction
Documents and all applicable Laws shall have been obtained and the Administrative Agent shall have
received evidence reasonably acceptable to the Administrative Agent that the same will close
simultaneously with the execution of this Agreement and the funding of the Term Loan Borrowing
hereunder and that all assets to be acquired by Borrowers pursuant to the Acquisition Agreement are
being acquired free and clear of all Liens.



     4.02 Conditions to all Credit Extensions.



     The obligation of each Lender to honor any Request for Credit Extension or to make any Credit
Extension (other than a Borrowing Notice requesting only a conversion of Loans to another Type, or
a continuation of Eurodollar Rate Loans or a Revolving Credit Loan Borrowing pursuant to
Section 2.10(c)) is subject to the following conditions precedent:



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



     (b) No Default or Event of Default shall exist, or would result from such proposed Credit
Extension.



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



     Each Request for Credit Extension (other than a Borrowing Notice requesting only a conversion
of Loans to another Type, or a continuation of Eurodollar Rate Loans or a Revolving Credit Loan
Borrowing pursuant to Section 2.10(c)) submitted by the Borrowers (and each other request,
or deemed request, for any Loans pursuant to the terms of this Agreement) shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



51









 





     4.03 Conditions to Revolving Credit Loan Increases.



     The effectiveness of each Revolving Credit Loan Increase shall be subject to the satisfaction
of all of the following conditions precedent:



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




     (i) written commitments duly executed by existing Lenders and/or New Lenders in an
aggregate amount equal to the amount of the proposed Revolving Credit Loan Increase (as
agreed between Borrowers and Administrative Agent but in any case not to exceed, in the
aggregate, the maximum amount set forth Section 2.01(b)) and, in the case of each
such New Lender, an assumption agreement in form and substance satisfactory to
Administrative Agent and duly executed by Borrowers, Administrative Agent and such New
Lender;




     (ii) an amendment to this Agreement (including to Schedule 2.01), effective as
of the Revolving Credit Loan Increase Date and executed by Borrowers and Administrative
Agent, to the extent necessary to implement terms and conditions of the Revolving Credit
Loan Increase, as agreed by Borrowers and Administrative Agent and to reflect such Revolving
Credit Loan Increase, the addition of the New Lender(s), if any, and the changes in the
respective applicable Commitments and applicable Pro Rata Shares of all applicable Lenders
as a result thereof;




     (iii) for the account of each applicable Lender or New Lender participating in the
Revolving Credit Loan Increase having requested the same a Note executed by the Borrowers in
favor of such Lender or New Lender;




     (iv) for each Borrower executing any Loan Document as part of the Revolving Credit Loan
Increase, such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Borrower as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with each document executed as part
of the Revolving Credit Loan Increase to which such Borrower is a party;




     (v) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Borrower is duly organized or formed, and that each Borrower
executing any of the Loan Documents is validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification;




     (vi) a favorable opinion or opinions of counsel to the Borrowers, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit H and



52









 







such other matters concerning the Borrowers and the Loan Documents as the Required
Lenders may reasonably request; and




     (vii) a certificate of each Borrower signed by a Responsible Officer either (A)
attaching copies of all consents, licenses and approvals required in connection with the
execution, delivery and performance by, and the validity against, such Borrower of any Loan
Document executed by such Borrower as part of the Revolving Credit Loan Increase, which
consents, licenses and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;




     (viii) a certificate signed by a Responsible Officer of each Borrower certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and




     (ix) such other document as Administrative Agent may reasonably request or as any
Lender participating in the Revolving Credit Loan Increase may require as a condition to its
commitment in such Revolving Credit Loan Increase.



     (b) There shall have been paid to Administrative Agent, for the account of Administrative
Agent or any Lender (including any Person becoming a Lender as part of the Revolving Credit Loan
Increase on such Revolving Credit Loan Increase Date), as the case may be, all fees and expenses
due and payable on or before the Revolving Credit Loan Increase Date.



     (c) As of the Revolving Credit Loan Increase Date, (i) the conditions precedent set forth in
Section 4.02(a) and (b) shall have been satisfied both before and after giving
effect to the Revolving Credit Loan Increase, (ii) the Revolving Credit Loan Increase shall be made
on the terms and conditions set forth in Section 2.01(b), and (iii) the Borrowers shall be
in compliance with Article XIV as of the most recently ended fiscal quarter for which
Financial Statements were delivered hereunder on a pro forma basis both before and after giving
effect to such Revolving Credit Loan Increase.



     (d) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney
Costs of the Administrative Agent to the extent invoiced prior to or on the Revolving Credit Loan
Increase Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of accounts between the
Borrowers and the Administrative Agent).



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



     5.01 Existence, Qualification and Power.



53









 





     Each Borrower (a) is a corporation, partnership or limited liability company duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver and perform its obligations under the Loan Documents to
which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its Business requires such
qualification, and (d) has all licenses reasonably necessary for the operation of each individual
Restaurant at each Company-Owned Property and for the conduct of the Business as a whole, except
for licenses which the failure to have would not materially and adversely affect any Company-Owned
Property.



     5.02 Authorization; No Contravention.



     The execution, delivery and performance by each Borrower of each Loan Document to which such
Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not and will not (with the passage of time, giving of notice or otherwise) (a)
contravene or Conflict with the terms of any of such Person’s Organization Documents; (b) Conflict
with or result in any breach or contravention of, or the creation of any Lien (except Liens in
favor of the Administrative Agent created by the Loan Documents) under, (i) any Contractual
Obligation to which such Person is a party or (ii) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject; or
(c) violate any Law.



     5.03 No Consent or Other Action.



     No Consent or Other Action by, from, with or to any other Person is required prior to or
otherwise in connection with (a) any Borrower’s ownership of the Collateral and conduct of its
Business, (b) any Borrower’s execution and delivery of, and performance of its obligations under,
the Loan Documents, (c) any Borrower’s execution and delivery of, and performance of its
obligations under, the Transaction Documents to which such Borrower is a party, (d) the Grant of
any Lien granted hereby or by any other Loan Document, or (e) the validity, perfection and
maintenance of any Lien created hereby or by any other Loan Document, except (in the case of the
foregoing clauses (d) and (e)) for the filing of the Financing Statements with the Filing Offices,
which Financing Statements were so filed in connection with the Prior Credit Agreement.



     5.04 Binding Effect.



     This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by each Borrower that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of each such Borrower, enforceable against each Borrower that is party thereto
in accordance with its terms. Each of the Transaction Documents has been, or upon the execution of
this Agreement and the other Loan Documents and the funding of the Term Loan hereunder, will have
been, duly executed and delivered by each Borrower that is party thereto. Each of the Transaction
Documents when so delivered will constitute, a legal, valid and



54









 




binding obligation of each such Borrower, enforceable against each Borrower that is party
thereto in accordance with its terms.




     5.05 Financial Statements; No Material Adverse Effect.



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



     (b) The unaudited consolidated financial statements of the Borrower and their Subsidiaries
dated September 27, 2009, including the consolidated balance sheet, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the periods then ended
on that date (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Borrowers and their Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Schedule 5.05 sets forth
all Indebtedness of the Borrowers and their consolidated Subsidiaries as of the Closing Date.



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



     5.06 Litigation.



     Except as set forth on Schedule 5.06, there is no Litigation pending or, to the
knowledge of any Borrower after due and diligent investigation, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, by or against any Borrower, any of
their Subsidiaries or against any of their respective properties, assets (including any Collateral
or Principal Agreement), Business or any Property, or revenues, or affecting or pertaining to this
Agreement or any other Loan Document, or any of the transactions contemplated hereby which, if
adversely determined, would, individually, result in liability to any Borrower in excess of $25,000
or, in the aggregate, result in liability to any Borrower in excess of $150,000. None of the
Litigation identified on Schedule 5.06 would, either individually, or in the aggregate, if
determined adversely, have a Material Adverse Effect.



     5.07 No Default.



     No Borrower or any Subsidiary is in default under or with respect to any Contractual
Obligation that could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is continuing or



55









 




would result from the consummation of the transactions contemplated by this Agreement or any
other Loan Document.




     5.08 Ownership of Property; Liens.



     Each Borrower and each Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, the all real property necessary or used in the ordinary conduct of
the Business. The property of the Borrowers and their Subsidiaries is subject to no Liens, other
than Liens permitted by Section 7.01.



     5.09 Environmental Compliance.



     The Borrowers and their Subsidiaries have conducted a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and as a result
thereof the Borrowers have reasonably concluded that such Environmental Laws and claims could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance.



     The Borrowers and their Subsidiaries are in compliance with the Insurance Requirements.



     5.11 Taxes.



     Each Borrower, each Subsidiary and each Person which might have tax liabilities for which
Borrower, any Subsidiary of any Borrower is or may be liable (each, a “Tax Party”) have
filed, or caused to be filed, in a timely manner all Federal, state and other material tax returns
and reports required to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable. All information in any such tax returns, reports and
declarations is complete and accurate in all material respects. Each Tax Party has paid or caused
to be paid all taxes due and payable or claimed due and payable in any assessment received by it,
and has collected, deposited and remitted in accordance with all Requirements of Law, all sales
and/or use taxes applicable to the conduct of its business, except taxes the validity of which are
being contested in good faith by appropriate proceedings diligently pursued and available to the
Tax Party and with respect to which adequate reserves have been set aside on its books. There are
no Liens on any properties or assets of any Borrower or any of its Subsidiaries imposed or arising
as a result of the delinquent payment or the nonpayment of any tax, assessment, fee or other
governmental charge. The income tax returns of each Tax Party have been examined and reported upon
by the relevant tax authorities, or closed by applicable statutes of limitations, for all fiscal
years and no Tax Party has given or consented to any waiver of the statute of limitations with
respect to its tax liabilities for any such year. Except as reflected in the financial statements
provided to Administrative Agent, no Borrower knows of any transaction or matter which might or
could result in additional tax assessments to any Tax Party. There are no applicable Taxes and
Other Charges payable by any Tax Party, Administrative Agent or any Lender in connection with the
execution and delivery of any Loan Documents by the Borrowers which have not been paid by the Tax
Party.



56









 





     5.12 ERISA Compliance.



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



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



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



     5.13 Borrower Information; Subsidiaries, Etc.



     (a) The legal names, federal taxpayer identification numbers, states of formation and mailing
addresses, as applicable, for each of the Borrowers are accurately set forth in the Loan Documents.



     (b) Except as disclosed in part (a) of Schedule 5.13, no Borrower has merged,
consolidated, acquired all or substantially all of the assets of any Person or used any other name
(whether in connection with the Business or the Collateral or for other business, obtaining credit
or financing or otherwise) in the last six years. No Borrower has any Subsidiaries other than
those specifically disclosed in Part (b) of Schedule 5.13 and no Borrower has any equity
investments in any other Person other than those specifically disclosed in part(c) of Schedule
5.13.



     5.14 Purpose of Credit Extensions; Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.



     (a) The Borrowers do not intend to use all or any portion of any Credit Extension to purchase
or carry any securities, including Margin Stock. None of the proceeds of any Credit Extension will
be used, directly or indirectly, for the purposes of reducing or retiring any



57









 




indebtedness which was originally incurred to purchase or carry any Margin Stock or other
security or for any other purpose which might cause any Credit Extension to be considered a
“purpose credit” within the meaning of Regulations U, T or X of the Board of Governors of the
Federal Reserve System, as amended. Each Borrower intends to and agrees to use the proceeds of
each Credit Extension solely for the lawful, proper business or commercial purposes set forth in
its application for the Credit Extensions and any disbursement direction letter furnished by
Borrowers to Administrative Agent in connection with any Credit Extension.




     (b) The Borrowers are not engaged, principally or as one of their important activities, in the
business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing
or carrying Margin Stock.



     (c) No Borrower, no Person Controlling any Borrower, or any Subsidiary (i) is a “holding
company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public
Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.



     5.15 Disclosure.



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



     5.16 Compliance with Laws.



     Each Borrower and each Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its
properties or to the Acquisition Transaction, except in such instances in which such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted



     5.17 Business and Location.



     Each Borrower, under its legal name, is engaged in the Business under the Brand at the
Company-Owned Properties with the addresses set forth on Exhibit B (in the case of the
Business described in clause (a) of the definition thereof) or at such Borrower’s address set forth
in Schedule 15.02 (in the case of the Business described in clauses (b) through (e) of the
definition thereof). Schedule 5.17 contains a complete and accurate list of businesses, if
any,



58









 




conducted by any Borrower other than its Business. All Collateral, including all writings
relating thereto and records thereof, books of record or account, employees, business, offices and
operations are located at, and all operation with respect there to are conducted out of, the
related Company-Owned Properties or Borrowers chief executive office. Each Borrower’s chief
executive office address is 12701 Whitewater Drive, Minnetonka, Minnesota 55343.




     5.18 Transactions with Affiliates.



     Except as set forth on Schedule 5.18, no Borrower is currently a party to any
transaction of any kind with any Affiliate of any Borrower. Each of the transactions listed on
Schedule 5.18 was entered into in the ordinary course of each applicable Borrower’s
business, pursuant to written agreements and on fair and reasonable terms substantially as
favorable to such Borrower as were obtainable by such Borrower at the time in a comparable arm’s
length transaction with a Person other than an Affiliate.



     5.19 Financing Statements; Perfected Security Interest.



     The execution and delivery of this Agreement and the Grant hereunder creates a valid Lien in
the Collateral and the Proceeds thereof which has attached and is enforceable. The Filing Offices
are the only offices where financing statements are required to be filed in order to perfect such
security interest in all Filing Collateral, except to the extent that Filing Collateral includes
Fixtures which require the recording of the deed of trust or mortgage (whether one or more) or
separate financing statement(s) in the county in which such Fixtures are located in order to
perfect a security interest therein. The Lien of the Administrative Agent, on behalf of the
Holders of the Obligations, in all Filing Collateral is a first priority perfected security
interest. Upon delivery into Administrative Agent’s (or any Lender’s) possession of Collateral
other than Filing Collateral, the Lien therein of the Administrative Agent, on behalf of the
Holders of the Obligations, will be a first priority perfected security interest.



     5.20 Title; Sufficiency; No Liens.



     Borrowers have good and marketable title to the Collateral free of all Liens (other than the
Lien granted to Administrative Agent, on behalf of the Holders of the Obligations, hereunder and
Liens permitted under Section 7.01) and such Collateral is sufficient to enable Borrowers
to operate the Business at each Company-Owned Property (in the case of the Business described in
clause (a) of the definition thereof) and at Borrower’s address set forth in Schedule 15.02
(in the case of the Business described in clauses (b) through (e) of the definition thereof), in
each case in accordance with the applicable Principal Agreements. There is no financing statement
(or similar statement, agreement, pledge, deed of trust, mortgage, notice or registration), Lien,
or Judgment filed with, registered, indexed or recorded in any Governmental Authority (or intended
so to be), directly or indirectly, identifying or encumbering or covering or involving the
Collateral (except those with respect to the Collateral acquired in the Acquisition Transaction
that are extinguished or terminated by the United States bankruptcy court order approving the
Acquisition Transaction) or any Principal Agreement or which could have a Material Adverse Effect.



     5.21 No Further Disposition.



59









 





     Other than with respect to the Lien granted herein to Administrative Agent, on behalf of the
Holders of the Obligations and, to the extent of the Permitted Encumbrances and Liens permitted
under Section 7.01, no Borrower has entered into any agreement or understanding or taken,
permitted or suffered to exist any action (including the filing of a financing statement,
agreement, pledge, deed of trust or mortgage, notice or registration) or event (whether by
operation of law or otherwise) for the purpose of, or that may have the effect of, directly or
indirectly, Granting or permitting any Lien on or Disposing of any Collateral (including the
Principal Agreements), any interest therein or rights pertaining thereto.



     5.22 Principal Agreements.



     Every Principal Agreement currently in effect is listed on Schedule 5.22 and Borrowers
have provided Administrative Agent with a true, correct and complete copy of each of the same.
Each Borrower is in good standing under, and in compliance with, the Principal Agreements. No
Borrower has been, and no Borrower is, in Conflict with or under, any of the Principal Agreements.
No Borrower has any knowledge of any claim of (or basis for any claim of) any such Conflict or of
any termination or nonrenewal of any Principal Agreement. Each of the Principal Agreements listed
on Schedule 5.22 was entered into in the ordinary course of each applicable Borrower’s
business, pursuant to written agreements and on fair and reasonable terms and, to the extent the
same is with an Affiliate, on terms substantially as favorable to such Borrower as were obtainable
by such Borrower at the time in a comparable arm’s length transaction with a Person other than an
Affiliate.



     5.23 Capitalization; Solvency.



     All of the issued and outstanding Capital Stock of Borrowers (and the other Persons listed on
Exhibit J), except as noted thereon, is directly and beneficially owned and held by the
entity listed for each such Borrower or other Person listed on Exhibit J, and all of such
Capital Stock has been duly authorized and are fully paid and non-assessable, free and clear of all
Liens other than Permitted Encumbrances and Liens permitted under Section 7.01. Each
Borrower (a) is solvent after giving effect to the Obligations, the security interests of
Administrative Agent, on behalf of the Holders of the Obligations, and the other transactions
contemplated hereunder, and (b) is able to pay its debts as they mature and has (and has reason to
believe it will continue to have) sufficient capital (and not unreasonably small capital) to carry
on its business and all businesses in which it is about to engage. The assets and properties of
each Borrower at a fair valuation and at their present fair salable value are greater than the
Indebtedness of each such Borrower, and including any subordinated and contingent liabilities
computed at the amount which, to the best of each Borrower’s knowledge, represents an amount which
can reasonably be expected to become an actual or matured liability.



     5.24 Intellectual Property; Licenses, Etc.



     The Borrowers and their Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for
the operation of the Business (including those trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights listed



60









 




on Schedule 5.24), without conflict with the rights of any other Person. To the best
knowledge of the Borrowers, no trademark, service mark, slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by any Borrower or any Subsidiary infringes upon any rights held by any other Person. No
claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the
Borrowers, threatened, which, either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.




     5.25 Brokers and Financial Advisors.



     Except as set forth on Schedule 5.25, no brokers or finders were used in connection
with the financing contemplated hereby and each Borrower hereby agrees to indemnify and hold
Administrative Agent and the Lenders harmless from and against any and all liabilities, costs and
expenses (including attorney’s fees and court costs) suffered or incurred by Administrative Agent
or any such Lenders as a result of or arising out of any of the transactions contemplated hereby.
The provisions of this Section shall survive the expiration and termination of this Agreement and
the payment of the Obligations.



     5.26 Compliance with OFAC Rules and Regulations.



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



     5.27 Foreign Assets Control Regulations, Etc.



     Neither any Borrower nor any of its Subsidiaries is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America
(50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Borrower nor any or its Subsidiaries is in
violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or
any enabling legislation or executive order relating thereto or (c) the Patriot Act (as defined in
Section 15.22). None of the Borrowers (i) is a blocked person described in Section 1 of
the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or
transactions, or is otherwise associated, with any such blocked person.



     5.28 FDA Properties; Minwood.



     Neither FDA Properties nor Minwood has engaged in any business other than the owning (and
initial acquisition) of the assets which it owns on the date hereof.




61











 





ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Loans, L/C Obligations or other Obligations are outstanding or any Lender has
any obligation to make any Loan or the L/C Issuer has any obligation to issue, extend or renew any
Letters of Credit, the Borrowers shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02 and 6.03) cause each Subsidiary to:



     6.01 Financial Statements.



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



     (a) as soon as practicable, but in any event not later than ninety (90) days after the end of
each fiscal year of the Borrowers, the consolidated balance sheet of the Borrowers and their
Subsidiaries as of the end of such year, and the related consolidated statement of income and
consolidated statement of cash flow for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such consolidated statements to be in reasonable
detail, prepared in accordance with GAAP consistently applied, and certified, without qualification
and without an expression of uncertainty as to the ability of any of the Borrowers or any of their
Subsidiaries to continue as going concerns, by Grant Thornton LLP or by other independent certified
public accountants reasonably satisfactory to the Required Lenders, together with a written
statement from such accountants to the effect that they have read a copy of this Agreement, and
that, in making the examination necessary to said certification, they have obtained no knowledge of
any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then
existing Default or Event of Default they shall disclose in such statement any such Default or
Event of Default, provided that such accountants shall not be liable to the Lenders for failure to
obtain knowledge of any Default or Event of Default;



     (b) as soon as practicable, but in any event not later than forty-five (45) days after the end
of each fiscal quarter of each fiscal year of the Borrowers, (i) copies of the unaudited
consolidated balance sheet of the Borrowers and their Subsidiaries as of the end of such quarter,
and the related consolidated statement of income and consolidated statement of cash flow for such
fiscal quarter and the portion of the Borrowers fiscal year then elapsed, setting forth in each
case in comparative form the figures for the corresponding period or periods of the previous fiscal
year and the comparisons to projections for such period, all in reasonable detail and prepared in
accordance with GAAP consistently applied (subject to year-end adjustments and footnote information
required by GAAP consistently applied), together with a certification by the principal financial or
accounting officer of the Borrowers that the information contained in such financial statements
fairly presents in all material respects the financial position of the Borrowers and their
Subsidiaries on the date thereof (subject to year-end adjustments and footnote information required
by GAAP consistently applied); and (ii) a list (such list to specify whether any addition is an
addition of a Company-Owned Property or a Franchised Property) of any new Restaurants acquired or
opened (or any Restaurants closed or sold) within such fiscal quarter by Borrowers and any of their
Subsidiaries and any new Restaurants scheduled to be acquired or opened (or any Restaurants
scheduled to be closed or sold) within the next year after such fiscal quarter and, if applicable,
amended Exhibits B and/or Exhibit C reflecting the addition of any



62









 




new Company-Owned Properties or Franchised Properties (or the deletion of any Company-Owned
Properties or Franchised Properties), as applicable, which amended Exhibit B and/or
Exhibit C shall be substituted as a replacement Exhibit B and/or Exhibit C
to this Agreement, as applicable;




     (c) as soon as practicable, but in any event within thirty (30) days after the end of each
fiscal month in each fiscal year of the Borrowers, unaudited consolidated financial statements of
the Borrowers and their Subsidiaries for such fiscal period and the portion of the Borrowers’
fiscal year then ending, setting forth in each case in comparative form the figures for the
corresponding period or periods of the previous fiscal year and the comparisons to projections for
such period, prepared in accordance with GAAP consistently applied (subject to year-end adjustments
and footnote information required by GAAP consistently applied) (except that the projections used
for such comparison purposes must only have been prepared in good faith based upon assumptions
believed by Borrowers to have been reasonable at the time), together with a certification by the
principal financial or accounting officer of the Borrowers that the information contained in such
financial statements fairly presents in all material respects the financial condition of the
Borrowers and their Subsidiaries on the date thereof (subject to year-end adjustments and footnote
information required by GAAP consistently applied);



     (d) simultaneously with the delivery of the financial statements referred to in subsections
(a) and (b) above, a Compliance Certificate certified by the principal financial or accounting
officer of the Borrowers and setting forth in reasonable detail computations evidencing compliance
with the covenants contained in Article XIV (it being further acknowledged and agreed that
each such Compliance Certificate shall, in any event, include computations with respect to whether
Borrower is, or would be, in compliance with the covenant set forth in Section 14.04 if
such covenant did then apply, whether or not Section 14.04 provides that such covenant does
if fact apply for such period) and (if applicable) reconciliations to reflect changes in GAAP since
the Balance Sheet Date;



     (e) contemporaneously with the filing or mailing thereof, copies of all material of a
financial nature furnished to the holders of direct or indirect equity interests in Borrowers or
filed with the Securities and Exchange Commission;



     (f) within forty-five (45) days after the beginning of each fiscal year of the Borrowers and,
if a Default or Event of Default shall have occurred and be continuing, from time to time upon the
request of the Administrative Agent, projections and budgets of the Borrowers and their
Subsidiaries organized for the next fiscal year on a period-by-period and quarter-by-quarter basis
updating those projections delivered to the Lenders prior to the date hereof and or, if applicable,
updating any later such projections delivered in response to a request pursuant to this Section
6.01(f); and



     (g) from time to time such other financial data and information (including accountants,
management letters) as the Administrative Agent or any Lender may reasonably request.



     6.02 Certificates; Other Information.



63









 





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



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default or, if any such Default or Event of Default shall
exist, stating the nature and status of such event;



     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate of Famous Dave’s signed by a
Responsible Officer of Famous Dave’s (it being hereby acknowledged by each Borrower that execution
of the same by Famous Dave’s in such manner shall be deemed to constitute execution of the same by
each Borrower);



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



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



     (e) promptly after any Borrower has notified the Administrative Agent of any intention by any
Borrower to treat the Loans and/or Letters of Credit and related transactions as being a
“reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4), a duly
completed copy of IRS Form 8886 or any successor form; and



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



     In addition, Borrowers shall furnish or cause to be furnished to Administrative Agent and
Lenders such budgets, forecasts, projections and other information respecting the Collateral and
the business of Borrowers, as Administrative Agent or Lenders may, from time to time, reasonably
request. Administrative Agent and each Lender is hereby authorized to deliver, from time to time,
a copy of any financial statement or any other information relating to the business of Borrowers to
any Person. Borrowers hereby irrevocably authorizes and directs all accountants or auditors to
deliver to Administrative Agent and Lenders, at Borrowers’ expense, copies of the financial
statements of Borrowers and any reports or management letters prepared by such accountants or
auditors on behalf of the Borrowers and to disclose to Administrative Agent and



64









 




Lenders such information as they may have regarding the business of Borrowers. Any documents,
schedules, invoices or other papers delivered to Administrative Agent or any Lender may (but shall
not be required to) be destroyed or otherwise disposed of by Administrative Agent or Lenders at any
time after the same are delivered to Administrative Agent or Lenders, except as otherwise
designated by Borrowers to Administrative Agent in writing.




     Except for Compliance Certificates required under Section 6.02, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor compliance by the
Borrowers with any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



     6.03 Notices.



     Promptly notify the Administrative Agent and each Lender:



     (a) of the occurrence of any Default or Event of Default;



     (b) of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of any Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Borrower or any Subsidiary and any Governmental Authority;
(iii) the commencement of, or any material development in, any litigation or proceeding affecting
any Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws; or (iv)
any material loss, damage, or Litigation relating to the Business, the Collateral or any other
property which is security for the Obligations;



     (c) of the occurrence of any ERISA Event; and



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



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



     6.04 Payment of Obligations.



     Pay and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP consistently applied
are being maintained by any Borrower or any Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon any Borrower’s or any Subsidiary’s property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness.



65









 





     6.05 Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except as otherwise permitted by Section 7.04 or
7.05; (b) preserve, renew and maintain in full force and effect its good standing status
under the Laws of the jurisdiction of its organization except as otherwise permitted by Section
7.04 or 7.05; (c) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or deemed desirable in the normal conduct of its
business, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (d) preserve or renew all of its registered IP Rights, the
non-preservation of which could reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties.



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



     6.07 Maintenance of Insurance.



     At Borrowers’ sole cost and expense, (a) maintain with Approved Providers insurance policies
satisfying the Insurance Requirements set forth on Schedule 6.07, (b) timely pay all
premiums, fees and charges required in connection with all of its insurance policies and otherwise
continue to maintain such policies in full force and effect; (c) promptly deliver the insurance
policies, certificates (and renewals) thereof or other evidence of compliance herewith to
Administrative Agent; and (d) promptly notify Administrative Agent of any loss covered by or claim
under or notice made in connection with any such insurance policies.



     6.08 Compliance with Laws.



     Comply in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property or the Acquisition
Transaction, except in such instances in which such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted.



     6.09 Books and Records.



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



     6.10 Inspection Rights.



66









 





     Permit representatives and independent contractors of the Administrative Agent and each Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the expense of
the Borrowers and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrowers; provided,
however, that when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrowers at any time during normal business hours and without advance notice.



     6.11 Conduct of Business.



     Continue to engage only in the Business engaged in by the Borrower on the Closing Date, and in
businesses and activities reasonably related thereto.



     6.12 Capitalization; Solvency.



     (a) Continue to be solvent after giving effect to the Obligations, the security interests of
Administrative Agent, on behalf of the Holders of the Obligations, and the other transactions
contemplated hereunder.



     (b) Continue to pay its debts as they mature and continue to have sufficient capital (and not
unreasonably small capital) to carry on its business and all businesses in which it is about to
engage.



     6.13 Casualty and Condemnation.



     Comply with the following requirements:



     (a) The Loss Proceeds in respect of any Loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property covered thereby, (i) so long
as no Event of Default has occurred and is continuing and to the extent that the amount of such
Loss Proceeds is less than $250,000, be disbursed to the applicable Borrower for reinvestment in
such Borrower’s Business and (ii) in all other circumstances, be held by the Administrative Agent
as cash collateral for the Obligations. The Administrative Agent may, so long as no Event of
Default has occurred and is continuing and the Borrowers are not required to apply such Loss
Proceeds to prepay the Obligations pursuant to Section 6.13(b) below or have not elected to
reinvest such Loss Proceeds pursuant to Section 6.13(b) below, disburse from time to time
all or any part of such proceeds so held as cash collateral, upon such terms and conditions as the
Administrative Agent may reasonably prescribe, for direct application by such Borrower solely to
the repair or replacement of such Borrower’s property so damaged, destroyed or taken or other
reinvestment in the Borrowers’ Business; provided that, so long as no Event of Default has occurred
and is continuing, the Borrowers shall at all times and in any event have the rights set forth in
the last sentence of Section 6.13(d) below. In the event that such proceeds have not been
reinvested in the Borrowers’ business within two hundred seventy (270) days after the earlier to
occur of receipt thereof by the Borrowers or receipt thereof by the Administrative Agent, the
Administrative Agent shall apply all or any part of such proceeds to the Obligations as provided in
Sections 6.13(c) and (d); provided that, if (A) within such 270-day period after
the earlier to



67









 




occur of receipt of such proceeds by the Borrowers or receipt of such proceeds by the
Administrative Agent, the Borrowers enter into an agreement (which may be a purchase order)
pursuant to which such reinvestment shall be made, a copy of which shall be provided to the
Administrative Agent, and (B) within four hundred five (405) days following receipt of such
proceeds by the Borrowers or the Administrative Agent, the Borrowers shall have completed, or shall
have made significant progress toward completion of, such reinvestment with such Loss Proceeds,
then the Borrowers shall not be required to prepay the Loans pursuant to Sections 6.13(b)
and (c) but shall in any event comply with Section 6.13(d).




     (b) Concurrently with the receipt by any of the Borrowers or any of their Subsidiaries of Loss
Proceeds relating to any Loss with respect to any Collateral or Company-Owned Property, less
reasonable expenses relating to such Loss, which have not been reinvested in the Borrowers’
Business within two hundred and seventy (270) days of receipt of such proceeds subject to
Section 6.13(a) above, provided that, if (A) within such 270-day period after the earlier
to occur of receipt of such Loss Proceeds by the Borrowers or receipt of such Loss Proceeds by the
Administrative Agent, the Borrowers enter into an agreement (which may be a purchase order)
pursuant to which such reinvestment shall be made, a copy of which shall be provided to the
Administrative Agent, and (B) within four hundred five (405) days following receipt of such
proceeds by the Borrowers or the Administrative Agent, the Borrowers shall have completed, or shall
have made significant progress toward completion of, such reinvestment of such Loss Proceeds, then
the Borrowers shall not be required to prepay the Revolving Credit Loans in accordance with
Sections 6.13(b) and (c) but shall in any event comply with Section 6.13(d)
(provided, however, if a Default or Event of Default has occurred and is continuing, such proceeds
shall be immediately paid to the Administrative Agent); then the Borrowers shall pay to the
Administrative Agent for the respective accounts of the Lenders an amount equal to one hundred
percent (100%) of such Loss Proceeds, to be applied in the manner set forth in Sections
6.13(b) and (c) or, if applicable, Section 6.13(d).



     (c) All mandatory prepayments pursuant to Section 6.13(b) above shall be applied
first, as a principal reduction of any Term Loans in such order and such manner as Administrative
Agent shall determine in its Sole Discretion, second, as a principal reduction of any Revolving
Credit Loans in such order and such manner as Administrative Agent shall determine in its Sole
Discretion, and, third, to any other Obligations in such order and such manner as Administrative
Agent shall determine in its Sole Discretion. Any prepayment of principal of any Loans shall
include all interest accrued thereon to the date of such prepayment.



     (d) The Borrowers shall deliver to the Administrative Agent, promptly upon receipt thereof,
all Loss Proceeds that may have to be applied to prepay any Loans or other Obligations pursuant to
Section 6.13(c) above if not reinvested as permitted in Section 6.13(a), to be held
as Collateral pending reinvestment in accordance with such Section 6.13(a). Upon the
Borrowers’ request, any cash amounts delivered to the Administrative Agent to be held as Collateral
under this Section 6.13(d) may be applied to repay the Loans or other Obligations in the
order provided above.



68









 





     6.14 Banks and Payments.



     (a) Cause all Collateral Revenues and Proceeds to be deposited in the account(s) with the
bank(s) listed on Schedule 6.14 and Borrowers shall pay, and hereby authorize
Administrative Agent to cause to be paid, all Obligations as and when due from all amounts in any
bank required to be listed on Schedule 6.14. Borrowers shall enter into such control
agreements or other similar agreements between each such bank, Borrowers and Administrative Agent,
as Administrative Agent shall deem necessary in its Sole Discretion, in form and substance
reasonably acceptable to the Administrative Agent, providing for such bank’s agreement to disburse
any such amounts in accordance with the instruction of Administrative Agent without the further
consent of, or notice to, Borrowers. Borrowers hereby appoint Administrative Agent as their
attorney-in-fact for the purpose of executing such agreement(s) on behalf of the Borrowers as set
forth in Section 6.14 hereof.



     (b) Direct (and each Borrower does hereby direct) any and all transferors, distributors or
payors (including insurance companies with whom any Borrower maintains insurance), upon receipt of
notice from Administrative Agent, on behalf of the Holders of the Obligations, to make payment of
all Collateral Revenues and Proceeds directly to Administrative Agent, on behalf of the Holders of
the Obligations, and authorizes Administrative Agent, on behalf of the Holders of the Obligations,
in its Sole Discretion, to hold the same in its possession as Collateral, to apply the same to
repayment of the Obligations, to deposit the same into any of the accounts with the banks listed on
Schedule 6.14, or, to apply the same toward replacement of the Collateral. Administrative
Agent shall deliver such a notice only upon or after the occurrence of an Event of Default (whether
or not the same shall be continuing). All Collateral Revenues and Proceeds whether received by
Administrative Agent, on behalf of the Holders of the Obligations, or by any Borrower, or by any
other Person will be included in the Collateral subject to the security interest granted to
Administrative Agent, on behalf of the Holders of the Obligations, hereunder. Each Borrower shall
(i) identify, earmark, segregate and keep separate all Collateral Revenues and Proceeds received by
it, (ii) upon Administrative Agent’s request, on behalf of the Holders of the Obligations, promptly
account to Administrative Agent, on behalf of the Holders of the Obligations, for all Collateral
Revenues and Proceeds, (iii) hold all Collateral Revenues and Proceeds received by any Borrower in
trust for the benefit of Administrative Agent, on behalf of the Holders of the Obligations, and
shall promptly (and in any event not later than the fifth day after receipt) deliver (or cause to
be delivered) the same to Administrative Agent, on behalf of the Holders of the Obligations, and
into its possession in the form received by such Borrower and at a time and in a manner
satisfactory to Administrative Agent, on behalf of the Holders of the Obligations.



     6.15 Equipment.



     (a) Keep the Equipment in good condition and repair (ordinary wear and tear excepted);



     (b) Use the Equipment with all reasonable care and caution and in accordance with applicable
standards of any insurance and in conformity with all Contractual Obligations, Requirements of Law
and Consents and Other Action;



69









 





     (c) Use the Equipment only in the Business and not for personal, family, household or farming
use; and



     (d) Assume (and Borrowers do hereby assume) all responsibility and liability arising from the
Borrowers’ use of the Equipment.



     6.16 Escrows.



     Upon or after the occurrence of an Event of Default hereunder or under the other Loan
Documents (whether or not the same shall be continuing), Borrowers shall upon written notice from
Administrative Agent, on behalf of the Holders of the Obligations, escrow with Administrative Agent
from time to time, amounts sufficient, in Administrative Agent’s Sole Discretion, to pay as the
same come due, all taxes, insurance, rentals, and any capital expenditures required to be expended
in connection with the Company-Owned Properties by any Borrower during the term of any Loan.



     6.17 Taxes.



     Continue (and cause each Tax Party to continue) to file in a timely manner all Federal, state
and other material tax returns and reports required to be filed, and to continue (and cause each
Tax Party to continue) to pay, all Federal, state and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or their properties, income or assets
otherwise due and payable. All information in such tax returns, reports and declarations will be
complete and accurate in all material respects.



     6.18 FDA Properties; Minwood.



     Not allow either FDA Properties or Minwood to engage in any business other than the owning of
the assets which it owns on the date hereof or to acquire any new property or assets.



     6.19 Further Assurances.



     Deliver or cause to be delivered to Administrative Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form and substance reasonably
satisfactory to Administrative Agent as Administrative Agent shall reasonably deem necessary or
desirable to perfect, maintain or protect the Liens on the Collateral



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Loans, L/C Obligations or other Obligations are outstanding or any Lender has
any obligation to make any Loan or the L/C Issuer has any obligation to issue, extend or renew any
Letters of Credit, no Borrower shall, nor shall any Borrower permit any Subsidiary to, directly or
indirectly:



70









 





     7.01 Liens.



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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01, provided
that the property covered thereby is not increased;



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



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



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



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



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



     (h) purchase money Liens upon or in equipment acquired by any Borrower to secure the purchase
price of such equipment or to secure debt incurred solely for the purpose of financing the
acquisition of any such equipment, or Liens existing on any such equipment at the time of
acquisition (other than any such Liens created in contemplation of such acquisition that do not
secure the purchase price); provided that the Indebtedness secured thereby does not exceed the cost
or fair market value, whichever is lower, of the property being acquired on the date of
acquisition; and



     (i) Liens in connection with Capitalized Leases permitted pursuant to Section 7.03.



     7.02 Investments.



     Make any Investments, except:



71









 





     (a) Investments held by such Borrower or such Subsidiary in the form of cash and Cash
Equivalents;



     (b) Investments of any Borrower in any wholly-owned Subsidiary as of the date hereof;



     (c) Investments of a Borrower consisting of the formation of a wholly-owned Subsidiary (each,
a “Proposed Subsidiary”), provided, however, that no Borrower shall make such an Investment
without the prior written consent of Administrative Agent, such consent not to be unreasonably
withheld in the event that Borrowers satisfy the following conditions: (i) Administrative Agent
receives at least sixty (60) days prior written notice of the proposed formation; (ii) no Event of
Default shall have occurred and be continuing at the time of such notice or at the time of the
proposed formation of such Proposed Subsidiary; (iii) the Proposed Subsidiary, at the time of
formation and at the time such Proposed Subsidiary is added as a Borrower hereunder (as provided
below), satisfies Administrative Agent’s then applicable credit review and underwriting standards,
as determined by Administrative Agent in its Sole Discretion after review of such financial
statements, reports and other documentation, if any, as Administrative Agent may require in order
to make such determination, all of which shall, at Administrative Agent’s request, be delivered by
Borrowers at their sole cost and expense; (iv) the Proposed Subsidiary, at the time of formation
and at the time such Proposed Subsidiary is added as a Borrower hereunder (as provided below),
satisfies Administrative Agent’s underwriting standards regarding its organizational structure, as
determined by Administrative Agent in its Sole Discretion; (v) Borrowers and such Proposed
Subsidiary execute and deliver to Administrative Agent and Lenders such documents and instruments
as Administrative Agent shall reasonably require, in form and content reasonably satisfactory to
Administrative Agent, to cause such Proposed Subsidiary to be added as an additional Borrower under
this Agreement, the Notes and the other Loan Documents, jointly and severally liable with all other
Borrowers for all obligations and liabilities of Borrowers hereunder and thereunder, including,
without limitation, a joinder agreement and legal opinions; (vi) Borrowers pay to Administrative
Agent an amendment fee determined by the Administrative Agent and all reasonable costs and expenses
incurred by Administrative Agent in connection with such transaction, including, without
limitation, Attorney Costs; and (vii) satisfaction of such other terms and conditions as
Administrative Agent shall reasonably require; and



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


provided, however, that the foregoing Investments shall not be permitted if and to
the extent that they are otherwise prohibited pursuant to any other provision of this Agreement or
any other Loan Document.




     7.03 Indebtedness.



     Create, incur, assume, increase, become liable on or suffer to exist any Indebtedness other
than Indebtedness listed on Schedule 7.03; provided, however, that notwithstanding the



72









 




foregoing, nothing contained in this Section 7.03 shall permit any Borrower or any
Subsidiary to create, incur, assume, increase, become liable on or suffer to exist any Indebtedness
(whether or not listed on Schedule 7.03) to the extent that such Borrower’s or such
Subsidiary’s ability to do so is otherwise prohibited by any other provision of this Agreement or
any other Loan Document.




     7.04 Fundamental Changes; Subsidiaries.



     (a) Change its name, federal taxpayer identification number or state of formation, nor assume
a different name, nor conduct its business or affairs under any other name without providing
Administrative Agent with 60 days prior written notice thereof.



     (b) Merge, dissolve, liquidate, consolidate with or into another Person, change its structure
(whether by equity sale, issuance, purchase or otherwise), change its use of any item of Collateral
during the term hereof, or Dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of
any Person, except that (i) any Subsidiary of any Borrower may merge into or consolidate with any
other Subsidiary of any Borrower provided that, in the case of any such merger or consolidation,
the Person formed by such merger or consolidation shall be a wholly-owned Subsidiary of a Borrower,
and (ii) any of a Borrower’s Subsidiaries may merge into a Borrower. Borrowers shall provide prior
written notice to Administrative Agent of any merger or consolidation permitted under this
Section 7.04(b), together with an amended Exhibit J to this Agreement including any
changes necessary to accurately reflect such merger or consolidation, which amended Exhibit
J shall, upon approval by Administrative Agent and consummation of the applicable merger or
consolidation, be substituted as a replacement Exhibit J to this Agreement.



     (c) Have any Subsidiaries other than those specifically disclosed in Part (b) of Schedule
5.13 or have any equity investments in any other Person other than those specifically disclosed
in part(c) of Schedule 5.13, except, in each case, as expressly permitted otherwise under
Section 7.02(b).



     7.05 Dispositions.



     Make any Disposition of any Collateral, any Company-Owned Property, or any other property or
assets of any Borrower or any Subsidiary or enter into any agreement to make any Disposition of any
of the same, except:



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



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



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



73









 





     (d) Disposition of assets from one Borrower to another Borrower;


provided, however, that any Disposition pursuant to clauses (a) through (d) shall
be for fair market value.




     7.06 Restricted Payments.



     Directly or indirectly, declare, or pay or make any Restricted Payment, or set aside or
otherwise deposit or invest any sums for such purpose, or agree to do any of the foregoing;
provided, however, that (a) Restricted Payments from one Borrower to another Borrower (only to the
extent that the same may lawfully be made by such Borrower in accordance with applicable Laws), and
(b) Restricted Payments consisting of Permitted Stock Repurchases, shall be permitted so long as,
in the case of each of the foregoing clauses (a) and (b), (1) no Default or Event of Default shall
have occurred and be continuing or would result after giving effect to such Restricted Payment, (2)
Borrowers will be in pro forma compliance with the financial covenants set forth in Article
XIV hereof as of the most recently ended Reference Period for which financial statements were
delivered hereunder on a pro forma basis both before and after giving effect to such Restricted
Payment, and (3) the aggregate consideration for any such Permitted Stock Repurchase shall be paid
in cash and the aggregate amount paid in connection with all of such Permitted Stock Repurchases
made hereunder shall not exceed (A) $10,000,000 in the aggregate in any twelve (12) month period,
(B) in the aggregate in any fiscal year, an amount which, when added to the aggregate amount of all
Growth Capital Expenditures made or incurred by Borrowers and their Subsidiaries in the aggregate
during such fiscal year exceeds the dollar amount for such fiscal year set forth in the table in
Section 14.03 (i.e. $25,000,000 for FY 2009, etc.), or (C) $20,000,000 in the aggregate during the
term of this Agreement.



     7.07 Change in Nature of Business.



     Engage in any material line of business substantially different from those lines of business
conducted by the Borrowers and their Subsidiaries on the date hereof or any business substantially
related or incidental thereto.



     7.08 Transactions with Affiliates.



     Enter into any transaction of any kind with any Affiliate of any Borrower, except in the
ordinary course of business, pursuant to written agreements and on fair and reasonable terms
substantially as favorable to such Borrower or such Subsidiary as would be obtainable by such
Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate.



     7.09 Burdensome Agreements.



     Enter into any Contractual Obligation (other than this Agreement or any other Loan Document)
that limits the ability (a) of any Subsidiary to make Restricted Payments to any Borrower or to
otherwise transfer property to any Borrower, (b) of any Subsidiary to Guarantee the Indebtedness of
any Borrower or (c) of any Borrower or any Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person.



74









 





     7.10 Use of Proceeds.



     (a) Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry any securities, including Margin
Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to
refund indebtedness originally incurred for such purpose.



     (b) Use the proceeds of any Credit Extension, directly or indirectly, for the purposes of
reducing or retiring any indebtedness which was originally incurred to purchase or carry any Margin
Stock or other security or for any other purpose which might cause any Credit Extension to be
considered a “purpose credit” within the meaning of Regulations U, T or X of the Board of Governors
of the Federal Reserve System, as amended.



     (c) Use the proceeds of any Credit Extension for any purpose other than for the lawful, proper
business or commercial purposes related to the Business.



     (d) Engage, principally or as one of their important activities, in the business of purchasing
or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin
Stock.



ARTICLE VIII.

SECURITY FOR OBLIGATIONS




     8.01 Grant of Security in the Collateral.



     To secure the payment and performance in full of all of the Obligations, each Borrower has
previously Granted (pursuant to the Original Credit Agreement or Prior Credit Agreement) and does
hereby Grant to Administrative Agent for the benefit of the Holders of the Obligations a continuing
security interest and Lien on and with respect to any and all right, title and interest of each
such Borrower in and to the Collateral (including the Principal Agreements but only as provided in
the next sentence below and including the Collateral acquired pursuant to the Acquisition
Agreement), whether now owned and existing or hereafter acquired or arising; all additions and
accessions thereto, substitutions therefor and replacements and improvements of or to any or all of
the foregoing; and all products and Proceeds of the foregoing. In the event and to the extent that
any Borrower now or hereafter may Grant a security interest in or other Lien on its rights under
any Principal Agreement without Conflicting with such Principal Agreement, either because the terms
of such Principal Agreement do not restrict such Grant, or each of the other parties thereto has
consented to such Grant or applicable Law permits such Grant, or for any other reason, then such
Borrower hereby Grants to Administrative Agent for the benefit of the Holders of the Obligations
such Lien in such Principal Agreements, whether now owned or hereafter acquired, and all Proceeds
thereof. Each Borrower hereby authorizes Administrative Agent, on behalf of the Holders of the
Obligations, to file the Financing Statements (or any amendments, supplements or replacements
thereto or thereof as Administrative Agent, on behalf of the Holders of the Obligations, may now or
hereafter deem appropriate in its Sole Discretion) in the Filing Offices or in such other locations
as Administrative Agent, on behalf of the Holders of the Obligations, may now or hereafter deem
appropriate in its Sole Discretion.



     8.02 Obligations Secured by Loan Documents.



75









 





     From and after the date hereof, (a) each Loan Document executed by any Borrower pursuant to
the Original Credit Agreement or Prior Credit Agreement that secures the “Obligations” described
therein shall secure all of the Obligations (as defined herein), and (b) Administrative Agent, as
pledge, assignee, mortgagee, grantee or secured party with respect to the liens and security
interests provided for in such Loan Documents, shall be the pledgee, assignee, mortgagee, grantee
or secured party as agent for all of the Holders of the Obligations.



ARTICLE IX.

SPECIAL PROVISIONS CONCERNING RIGHTS AND DUTIES WHILE IN

POSSESSION OF COLLATERAL




     9.01 Borrowers’ Possession.



     Upon and during the continuation of an Event of Default, to the extent the same shall, from
time to time, be in any Borrower’s possession, such Borrower will hold the Collateral and all
writings evidencing or relating to the Collateral in trust for Administrative Agent, on behalf of
the Holders of the Obligations, and, upon request or as otherwise provided herein, promptly deliver
the same to Administrative Agent, in the form received and at a time and in a manner satisfactory
to Administrative Agent. With respect to the Collateral in any Borrower’s possession Borrowers
shall at Administrative Agent’s request take such action as Administrative Agent in its Sole
Discretion deems necessary or desirable to create, perfect and protect the security interest of
Administrative Agent, on behalf of the Holders of the Obligations, in any of the Collateral and to
preserve or enhance the value thereof.



     9.02 Administrative Agent’s Possession.



     With respect to all of the Collateral (and all other security for the Obligations) delivered
or transferred to, or otherwise in the custody or control of (including any items in transit to or
set apart for) Administrative Agent or any of its agents, associates or correspondents, in
accordance with this Agreement, the Borrowers agree that (a) such Collateral (and other security)
will be and be deemed to be in the sole possession of the Administrative Agent, for the benefit of
the Holders of the Obligations; (b) Borrowers have no right to withdraw or substitute any such
Collateral (or other security); (c) Borrowers shall not take or permit any action, or exercise any
voting and other rights, powers and privileges in respect of the Collateral (or other security)
inconsistent with Administrative Agent’s and Lenders’ interest therein and sole possession thereof;
and (d) Administrative Agent, for the benefit of the Holders of the Obligations, may in it its Sole
Discretion and without notice, without obligation or liability except to account for property
actually received by it, and without affecting or discharging the Obligations, (1) further transfer
and segregate the Collateral (or other security) in its possession; (2) receive Collateral Revenues
or Proceeds and hold the same as a part of the Collateral (or other security) and/or apply the same
as hereinafter provided; and (3) exchange any of the Collateral (or other security) for other
property upon reorganization, recapitalization or other readjustment. Upon the occurrence and
during the continuance of an Event of Default, Administrative Agent, for the benefit of the Holders
of the Obligations, is authorized (i) to exercise or cause its nominee to exercise all or any
rights, powers and privileges (including to vote) on or with respect to the Collateral (or other
security) with the same force and effect as an absolute owner thereof; (ii) whether any of the
Obligations be due, in its (or Lenders’) name(s) or in Borrowers’ names or



76









 




otherwise, to demand, sue for, collect or receive any money or property at any time payable or
receivable on account of or in exchange for, or make any compromise or settlement Administrative
Agent, on behalf of the Holders of the Obligations, deems desirable with respect to, any of the
Collateral (or other security); and (iii) to extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, or release, any of the Collateral (or other
security). Notwithstanding the rights accorded Administrative Agent or the Lenders with respect to
the Collateral (or other security) and except to the extent provided below or required by the UCC
or other applicable Law (which requirement cannot be modified, waived or excused), Administrative
Agent’s (and any Lender’s) sole duty with respect to any Collateral (or other security) in its
possession (with respect to custody, preservation, safekeeping or otherwise and whether under
Section 9-207 of the UCC or otherwise) will be to deal with it in the same manner that such party
deals with similar property owned and possessed by it. Without limiting the foregoing,
Administrative Agent (and Holders of the Obligations), and any of its (and their) officers,
directors, members, partners, trustees, owners, debt holders, employees, representatives, agents
and designees, except as otherwise required by applicable Law (I) will have no duty with respect to
the Collateral (or other security) or the rights granted hereunder; (II) will not be required to
sell, invest, substitute, replace or otherwise dispose of the Collateral (or other security); (III)
will not be required to take any steps necessary to preserve any rights against prior parties to
any of the Collateral (or other security); (IV) will not be liable for (or deemed to have made an
election of or exercised any right or remedy on account of) any delay or failure to demand, collect
or realize upon any of the Collateral (or other security); and (V) will have no obligation or
liability in connection with the Collateral (or other security) or arising under this Agreement.
Borrowers agree that such standard of care is reasonable and appropriate under the circumstances.




ARTICLE X.

EVENTS OF DEFAULT AND REMEDIES




     10.01 Events of Default.



     Any of the following shall constitute an Event of Default:



     (a) Non-Payment. Any Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal or interest of any Loan or any L/C Obligation, or (ii) within three
Business Days after the same becomes due, any fee or other amount due hereunder or under any other
Loan Document; or



     (b) Disclaimer. Any Borrower disclaims liability under, or enforceability of, any
Loan Document; or



     (c) Specific Covenants. Any Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05(a),
6.05(c), 6.10, 6.14, or Article VII, or Section 14.02 or
14.03; or



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



77









 





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



     (f) Insolvency Proceedings, Etc. Any Borrower or any Subsidiary of any Borrower
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes
an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 90 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 90 calendar days, or an order for relief is entered in any such proceeding; or



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



     (h) Judgments. There is entered against any Borrower or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding $750,000.00 (to the
extent not covered by independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of ten (10) consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of any Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $250,000.00, or (ii) any Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $250,000.00; or



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



     (k) Change of Control. There occurs any Change of Control;



78









 





     (l) Dissolution, Etc. of Borrowers. Any Borrower or any partnership or limited
liability company in which any Borrower or any Subsidiary is a partner or member (each hereinafter
called an “other liable party”) shall dissolve, merge or consolidate, suspend the
transaction of business, attempt to terminate, revoke or disclaim any obligation to Administrative
Agent or any Lender (except strictly in accordance with its terms), or incur any material adverse
change in its financial condition or prospects; or if any Borrower or any other liable party shall
be expelled from or suspended by any stock or securities exchange or other exchange; or if any
Borrower or any other liable party shall take any action to effect, or which indicates its
acquiescence in, any of the foregoing, except as expressly permitted in or required by this
Agreement; or



     (m) The Capital Stock of Famous Dave’s shall cease to be traded on a nationally recognized
stock or securities exchange.



     10.02 Remedies Upon Event of Default.



     If any Event of Default occurs and is continuing, the Administrative Agent shall, subject to
Section 12.12, at the request of, or may, with the consent of, the Required Lenders, take
any or all of the following actions:



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



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



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



     (d) exercise on behalf of itself and the Holders of the Obligations all rights and remedies
available to it and the Holders of the Obligations under the Loan Documents or applicable law,
which shall include, without limitation, the rights, powers and remedies (i) granted to secured
parties under the UCC or other applicable Uniform Commercial Code; (ii) granted to Administrative
Agent or Lenders under any other applicable Law; and (iii) granted to Administrative Agent or
Lenders under this Agreement, the Notes or any other Loan Document or any other agreement between
Borrowers and Administrative Agent or any of the Holders of the Obligations;



     (e) without Borrowers’ assent, without advertisements or notices of any kind (except for the
notice specified in Section 10.04 below regarding notice required in connection with a
public or private sale), or demand of performance or other demand, or obligation or liability
(except to account for amounts actually received) to or upon Borrowers or any other person (all
such advertisements, notices and demands, obligation and liabilities, if any, hereby being
expressly waived and discharged to the extent permitted by law), forthwith, directly or through its
agents or representatives, (i) disclose such default and other matters (including the names of



79









 




Borrowers) in connection therewith to any Person in Administrative Agent’s and Lenders’
reasonable discretion; (ii) to the extent permitted by applicable Law enter any Company-Owned
Property, with or without the assistance of other persons or legal process; (iii) require Borrowers
to account for (including accounting for any products and proceeds of any Collateral), segregate,
assemble, make available and deliver to Administrative Agent, its agents or representatives, for
the benefit of the Holders of the Obligations, the Collateral, at any place and time designated by
Administrative Agent or Lenders; (iv) take possession of, operate, render unusable, remove from any
location, collect, transfer and receive, recover, appropriate, foreclose, extend payment of,
adjust, compromise, settle, release any claims included in, and do all other acts or things
necessary or, that Administrative Agent or Lenders in their Sole Discretion deem appropriate, to
protect, maintain, preserve and realize upon, the Collateral and any products and proceeds thereof,
in whole or in part; (v) exercise all rights, powers and interests with respect to any and all
Collateral, and sell, assign, lease, license, pledge, transfer, negotiate (including endorse
checks, drafts, orders, or instruments), deliver or otherwise dispose (by contract, option(s) or
otherwise) of the Collateral or any part thereof; and (vi) without regard to the sufficiency of the
security for repayment of the Obligations and without notice to Borrowers, or any showing of
insolvency, fraud or mismanagement on the part of Borrowers and without the necessity of filing any
judicial or other proceeding other than the proceeding for appointment of a receiver, and without
regard to the then value of the Collateral, Administrative Agent and Lenders shall be entitled to
the ex parte appointment of a receiver or receivers for the protection, control and management of
the Collateral. Any such disposition may be in one or more public or private sales, at or upon an
exchange, board or system or in the State where any Collateral or any Company-Owned Property is
located or elsewhere, at such price, for cash or credit (or for future delivery without credit
risk) and upon such other terms and conditions as it deems appropriate, with the right of Lenders
to the extent permitted by Law upon any such sale or sales, public or private, to purchase the
whole or any part of said Collateral, free of any right, claim or equity of redemption of or in any
Borrower (such rights, claims and equity of redemption, if any, hereby being expressly waived). If
any of the Collateral is sold or leased by Administrative Agent, on behalf of the Holders of the
Obligations, upon credit terms or for future delivery, the Obligations shall not be reduced as a
result thereof until payment therefore is finally collected by Administrative Agent, for the
benefit of the Holders of the Obligations. In the event Administrative Agent institutes an action
to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, each
Borrower waives the posting of any bond which might otherwise be required. Notwithstanding that
Administrative Agent or any Lender, whether in its own behalf and/or on behalf of another or
others, may continue to hold the Collateral and regardless of the value thereof, or any delay or
failure to dispose thereof, unless and then only to the extent that Administrative Agent or any
such Lender proposes to retain the Collateral in satisfaction of the Obligations by written notice
in accordance with the UCC, Borrowers shall be and remain liable for the payment in full of any
balance of the Obligations and expenses at any time unpaid. Without limiting the foregoing, upon
Borrowers’ failure to abide by and comply with its obligations under Article VI hereof, in addition
to its other rights and remedies, Administrative Agent, on behalf of the Holders of t
he
Obligations, may (but is not required to), in its Sole Discretion and to the extent it deems
necessary, advisable or appropriate, take or cause to be taken such actions or things to be done
(including the payment or advancement of funds, or requiring advancement of funds to be held by
Administrative Agent, for the benefit of the Holders of the Obligations, to fund such obligations,
including taxes or insurance) as may be




80









 







required hereby (or necessary or desirable in connection herewith) to correct such failure
(including causing the Collateral to be maintained or insurance protection required hereby to be
procured and maintained) and any and all costs and expenses incurred (including reasonable
attorneys fees and disbursements) in connection therewith shall be included in Borrowers’
Obligations and shall be immediately due and payable and bear interest at the Default Rate;



provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable and the
obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.



All such rights, powers and remedies shall be cumulative and not alternative and enforceable, in
Required Lenders’ Sole Discretion, alternatively, successively, or concurrently on any one or more
occasions, and shall include, without limitation, the right to apply to a court of equity for an
injunction to restrain a breach or threatened breach by any Borrower of this Agreement or any of
the other Loan Documents. Any single or partial exercise of, or forbearance, failure or delay in
exercising any right, power or remedy shall not be, nor shall any such single or partial exercise
of, or forbearance, failure or delay be deemed to be a limitation, modification or waiver of any
right, power or remedy and shall not preclude the further exercise thereof; and every right, power
and remedy of Administrative Agent or Lenders shall continue in full force and effect until such
right, power and remedy is specifically waived by an instrument in writing executed and delivered
with respect to each such waiver by such parties.




     10.03 Application of Funds.



     After the exercise of remedies provided for in Section 10.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 10.02) any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such and including all costs and expenses
(including Attorney Costs, trustee fees and court costs) incurred in connection with any
collection, receipt, recovery, appropriation, foreclosure or realization, or from any use,
operation, sale, assignment, lease, pledge, transfer, delivery or disposition of all or any of the
Collateral, or with respect to the care, safekeeping, custody, maintenance, protection,
administration or otherwise of any and all of said Collateral or in any way relating to the rights
of Administrative Agent and Lenders under this Agreement;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders




81












 




(including Attorney Costs and amounts payable under Article III), ratably among
them in proportion to the amounts described in this clause Second payable to them;




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



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Related Treasury Management Obligations or constituting the
termination value owing to any Lender Counterparty arising under Related Rate Management
Transactions, ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them;



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



     Sixth, to the payment, satisfaction or discharge of any other Indebtedness or
Obligations (including any reimbursement, subrogation, contribution or other obligation to any
Person), or otherwise as may be permitted or as required by any law, rule or regulation (including
Section 9-615(a)(3) of the UCC); and



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


Subject to Section 2.10(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above. Notwithstanding the
foregoing or anything else to the contrary contained in this Agreement or any of the other Loan
Documents, Administrative Agent shall have no obligation to apply any amounts received on account
of the Obligations to (a) the payment of any Related Rate Management Obligations unless
Administrative Agent shall have received written notice of the existence and amount of such Related
Rate Management Obligations from the applicable Lender Counterparty prior to the date such amounts
are otherwise applied by Administrative Agent, or (b) the payment of any Related Treasury
Management Obligations unless Administrative Agent shall have received written notice of the
existence and amount of such Related Treasury Management Obligations from the applicable Lender who
is (or whose Affiliate is) the Holder of the Obligations in respect of such Related Treasury
Management Obligations prior to the date such amounts are otherwise applied by Administrative Agent




     10.04 Required Notice of Sale.



     In exercising its rights, powers and remedies as secured party, Administrative Agent, on
behalf of the Holders of the Obligations, agrees to give Borrowers 10 days’ notice of the time and
place of any public sale of Collateral or of the time after which any private sale of Collateral
may take place, unless the Collateral is perishable or threatens to decline speedily in value or is



82









 




of a type customarily sold on a recognized market. Borrowers agree that such period and
notice is commercially reasonable under the circumstances.




ARTICLE XI.

RIGHT TO CURE; POST-DEFAULT POWER OF ATTORNEY




     11.01 Right to Cure.



     Administrative Agent, on behalf of the Holders of the Obligations, may, at its option but
without any obligation, after an Event of Default that is continuing cure any default by Borrowers
under any Contractual Obligation including the Principal Agreements and Leases or pay or bond on
appeal any judgment entered against Borrowers; discharge taxes or other Liens at any time levied on
or existing with respect to the Collateral; and pay any amount, incur any expense or perform any
act which, in Administrative Agent’s judgment, is necessary or appropriate to preserve, protect,
insure or maintain the Collateral and the rights of Administrative Agent or Lenders with respect
thereto. Administrative Agent may add any amounts so expended to the Obligations, such amounts to
be repayable by Borrowers on demand. Administrative Agent shall be under no obligation to effect
such cure, payment or bonding and shall not, by doing so, be deemed to have assumed any obligation
or liability of Borrowers. Any payment made or other action taken by Administrative Agent under
this Section shall be without prejudice to any right to assert an Event of Default hereunder and to
proceed accordingly.



     11.02 Power of Attorney.



     Each Borrower hereby irrevocably constitutes and appoints, effective on and after the
occurrence of an Event of Default, Administrative Agent acting through any officer or Agent
thereof, with full power of substitution, as such Borrower’s true and lawful attorney-in-fact with
full irrevocable power and authority in such Borrower’s place and stead and in such Borrower’s name
or in its own name, from time to time in Administrative Agent’s Discretion, to receive, open and
dispose of mail addressed to such Borrower, to take any and all action, to do all things, to
execute, endorse, deliver and file any and all writings, documents, instruments, notices,
statements (including financing statements, and writings to correct any error or ambiguity in any
Loan Document), applications and registrations (including registrations and licenses for
securities, copyrights, patents, and trademarks), checks, drafts, acceptances, money orders, or
other evidence of payment or proceeds, which may be or become necessary or desirable in the Sole
Discretion of Administrative Agent to accomplish the terms, purposes and intent of, or to fulfill
Borrowers’ obligations under this Agreement and the other Loan Documents, including the right to
enter into any control agreements on behalf of each such Borrower as described in Section
6.14, to appear in and defend any action or proceeding brought with respect to the Collateral
or any Company-Owned Property, and to bring any action or proceeding, in the name and on behalf of
any Borrower, which Administrative Agent, in its Sole Discretion, deems necessary or desirable to
protect its interest in the Collateral or any Property. This power is coupled with an interest and
is irrevocable. THIS POWER DOES NOT AND SHALL NOT BE CONSTRUED TO AUTHORIZE ANY CONFESSION OF
JUDGMENT. Each Borrower hereby releases Administrative Agent, Lenders and their respective
officers, directors, members, partners, trustees, debt holders, employees, representatives, agents
and designees from any liabilities arising from any act or acts under this power of attorney and in
furtherance thereof,



83









 




whether of omission or commission, except and only to the extent the same results from the
applicable released party’s own gross negligence or willful misconduct as determined pursuant to a
final non-appealable order of a court of competent jurisdiction.




ARTICLE XII.

ADMINISTRATIVE AGENT




     12.01 Appointment and Authorization of Administrative Agent.



     (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.



     (b) The L/C Issuer shall act on behalf of the applicable Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this Article XII
with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters
of Credit issued by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in this Article XII and in the definition of “Agent-Related Person” included
the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein
with respect to the L/C Issuer.



     12.02 Delegation of Duties.



     The Administrative Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.



     12.03 Liability of Administrative Agent.



84









 





     No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any Borrower or any
officer thereof, contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of any Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Borrower or any Affiliate thereof.



     12.04 Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to any Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.



     (b) For purposes of determining compliance with the conditions specified in Section
4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



     12.05 Notice of Default.



     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the account of the



85









 




Lenders, unless the Administrative Agent shall have received written notice from a Lender or
any Borrower referring to this Agreement, describing such Default or Event of Default and stating
that such notice is a “notice of default.” The Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with respect to such
Default or Event of Default as may be directed by the Required Lenders in accordance with
Article X; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.




     12.06 Credit Decision; Disclosure of Information by Administrative Agent.



     Each Lender acknowledges that no Agent-Related Person has made any representation or warranty
to it, and that no act by the Administrative Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Borrower or any Affiliate thereof,
shall be deemed to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and creditworthiness of
the Borrowers and their respective Subsidiaries, and all applicable bank or other regulatory Laws
relating to the transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers and the other Borrowers hereunder. Each Lender
also represents that it will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrowers and the other Borrowers. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any of the Borrowers or any of their
respective Affiliates which may come into the possession of any Agent-Related Person.



     12.07 Indemnification of Administrative Agent.



     Whether or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of
any Borrower and without limiting the obligation of any Borrower to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by
it; provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a
final, nonappealable judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful misconduct; provided,
however,



86









 




that no action taken in accordance with the directions of the Required Lenders shall be deemed
to constitute gross negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section shall survive termination of the Aggregate Commitments, the payment of
all other Obligations and the resignation of the Administrative Agent.




     12.08 Administrative Agent in its Individual Capacity.



     Wells Fargo and its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with each of the Borrowers and their
respective Affiliates as though Wells Fargo were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Wells Fargo or its Affiliates may receive information regarding any Borrower or
its Affiliates (including information that may be subject to confidentiality obligations in favor
of such Borrower or such Affiliate) and acknowledge that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Wells Fargo shall have
the same rights and powers under this Agreement as any other Lender and may exercise such rights
and powers as though it were not the Administrative Agent or the L/C Issuer, and the terms “Lender”
and “Lenders” include Wells Fargo in its individual capacity.



     12.09 Successor Administrative Agent.



     The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the
Lenders and Famous Dave’s. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent for the Lenders,
which successor administrative agent shall be consented to by the Borrowers at all times other than
during the existence of an Event of Default (which consent of the Borrowers shall not be
unreasonably withheld or delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrowers, a successor administrative agent from
among the Lenders. Upon the acceptance of its appointment as successor administrative agent
hereunder, the Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”
shall mean such successor administrative agent and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated. After any retiring Administrative
Agent’s resignation hereunder as Administrative Agent, the provisions of this Article XII
and Sections 15.04 and 15.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this



87









 




Agreement. If no successor administrative agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as provided for above.




     12.10 Administrative Agent May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall
be entitled and empowered, by intervention in such proceeding or otherwise



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.06, 2.10(i), 2.10(j) and 10.04) allowed in such
judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.06
and 15.04.




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



     12.11 Collateral Matters.



     The Lenders irrevocably authorize the Administrative Agent, at its option and in its Sole
Discretion, to release any Collateral or other security for the Obligations from the Liens imposed
by the Loan Documents: (i) upon termination of all Commitments and payment in full of all Loans and
all other Obligations payable under this Agreement and under any other Loan Document (other than
contingent indemnification obligations) and provided no L/C Obligations



88









 




are outstanding, no Lender has any obligation to make any Loan and the L/C Issuer has no
obligation to issue, extend or renew any Letters of Credit, (ii) in connection with the sale of
such Collateral or other security pursuant to any Disposition permitted under the terms of this
Agreement, (iii) in accordance with any provision for the release thereof provided for in this
Agreement or the other Loan Documents, or (iv) subject to Section 15.01, if approved,
authorized or ratified in writing by the Required Lenders.




     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property pursuant to this Section 12.11.



     12.12 Duties in the Case of Enforcement.



     In case one of more Events of Default have occurred and shall be continuing, the
Administrative Agent shall, if (a) so requested (or consented to) by the Required Lenders and (b)
the Lenders have provided to the Administrative Agent such additional indemnities and assurances
against expenses and liabilities as the Administrative Agent may reasonably request, proceed to
enforce the provisions of any Loan Documents authorizing the sale or other disposition of all or
any part of the Collateral (or any other property which is security for the Obligations) and
exercise all or any such other legal and equitable and other rights or remedies as it may have in
respect of such Collateral (or such other property). The Required Lenders may direct the
Administrative Agent in writing as to the method and the extent of any such sale or other
disposition, the Lenders hereby agreeing to indemnify and hold the Administrative Agent, harmless
from all liabilities incurred in respect of all actions taken or omitted in accordance with such
directions, provided that the Administrative Agent need not comply with any such direction to the
extent that the Administrative Agent reasonably believes the Administrative Agent’s compliance with
such direction to be unlawful or commercially unreasonable in any applicable jurisdiction.



     12.13 Other Agents; Co-Lead Arrangers and Syndication Agent.



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



     12.14 Advertising, Promotion and Marketing




     The Administrative Agent and each Lender may, and each Borrower hereby authorizes the
Administrative Agent and each Lender to, include references to such Borrower and its Subsidiaries,
and utilize any logo or other distinctive symbol associated with such Borrower or any of its
Subsidiaries, in connection with any advertising, promotion or marketing undertaken by the
Administrative Agent or such Lender.



89









 





ARTICLE XIII.

CONTRIBUTION AMONG THE BORROWERS




     13.01 Contribution.



     To provide for just and equitable contribution among the Borrowers, if any payment is made by
one Borrower (a “Funding Borrower”) hereunder or under any other Loan Document in respect
of the Obligations, such Funding Borrower shall be entitled to a contribution from the other
Borrower for all payments, damages and expenses incurred by such Funding Borrower under or in
connection with such Obligations, such contributions to be made in the manner and to the extent set
forth below. Any amount payable as a contribution under this Agreement shall be determined as of
the date on which the related payment is made by a Funding Borrower.



     13.02 Calculation of Contributions.



     Each Borrower shall be liable for contribution to each Funding Borrower in respect of all
payments, damages and expenses incurred by such Funding Borrower hereunder or under any other Loan
Document in an aggregate amount, subject to Section 13.03, equal to (i) the ratio of (x)
the Property Worth of all Collateral and other security for the Obligations owned by such Borrower,
to (y) the Property Worth of the entire Collateral and other security for the Obligations owned by
all of the Borrowers collectively, multiplied by (ii) the aggregate amount of such payments,
damages and expenses incurred by such Funding Borrower under or in connection with the Secured
Obligations. As used herein, the term “Property Worth” shall mean, with respect to each Borrower,
the fair market value such Borrower’s right, title and interest in and to the Collateral and other
security for the Obligations as of the Disbursement Date.



     13.03 Rights to Contribution Subordinated.



     Each Borrower agrees that all of its rights to receive contributions under this Article
XIII (whether for payments, damages, expenses or otherwise) and all of its rights, if any, to
be subrogated to any of the rights of Administrative Agent or Lenders shall be subordinated in
right of payment (in liquidation or otherwise) to the prior payment in full in cash of all of the
Obligations (whether for principal, interest, premium or otherwise). If any amount shall at any
time be paid to a Borrower on account of such rights of contribution or subrogation, or in
contravention of the provisions of this Article XIII at any time, such amount shall be held
in trust, segregated from the other assets of such Borrower, for the benefit of the Administrative
Agent and Lenders and shall promptly be paid to the Administrative Agent. The foregoing shall
constitute a continuing offer to, and agreement with, all persons that from time to time may become
holders of, or continue to hold, Obligations under this Agreement, and the provisions of the
foregoing sentence are made for the benefit of such holders and such holders, as third party
beneficiaries hereunder, are entitled to enforce such provisions.



ARTICLE XIV.

FINANCIAL COVENANTS




     The Borrowers covenant and agree that, so long as any Loans, L/C Obligations or other
Obligations are outstanding or any Lender has any obligation to make any Revolving Credit Loan or
the L/C Issuer has any obligation to issue, extend or renew any Letters of Credit:



90









 





     14.01 Adjusted Leverage Ratio.



     As of the end of any fiscal quarter referenced in the table below, the Adjusted Leverage Ratio
for the Reference Period then ended shall not exceed the ratio set forth opposite such fiscal
quarter in such table:



	 	 	 	 	 
	Fiscal Quarter	 	Ratio
	FQ4 2009
	 	 	3.50:1.00	 
	FQ1 2010 through FQ3 2011
	 	 	3.75:1.00	 
	FQ4 2011 through FQ3 2012
	 	 	3.50:1.00	 
	FQ4 2012 and each FQ thereafter
	 	 	3.25:1.00	 






     14.02 Consolidated Cash Flow Ratio.



     As of the end of any fiscal quarter referenced in the table below, the Consolidated Cash Flow
Ratio for the Reference Period then ended shall not be less than the ratio set forth opposite such
fiscal quarter in such table:



	 	 	 	 	 
	Fiscal Quarter	 	Ratio
	FQ4 2009 and each FQ thereafter
	 	 	2.00:1.00	 






     14.03 Capital Expenditures; Permitted Stock Repurchases.



     No Borrower shall, nor shall any Borrower permit any Subsidiary to, directly or indirectly
make or become legally obligated to make any Growth Capital Expenditures costing in excess of an
amount equal to (a) the applicable amount listed in the table below in the aggregate for the
Borrowers and their Subsidiaries during each applicable fiscal year, minus (b) in each case, an
amount equal to the aggregate consideration paid in connection with all Permitted Stock Repurchases
made during the applicable fiscal year:



	 	 	 	 	 
	Fiscal Year	 	Ratio
	FY 2009 and each FY thereafter
	 	$	25,000,000	 






     In addition and without limiting the foregoing, no Borrower shall, nor shall any Borrower
permit any Subsidiary to, at any time, directly or indirectly (a) become legally obligated to make
any Growth Capital Expenditures, or (b) make any Growth Capital Expenditures which any Borrower or
any such Subsidiary was not previously legally obligated to make, if, in either case, after giving
effect thereto, the Adjusted Leverage Ratio is, or would be, greater than the Incurrence Ratio.



91









 





     14.04 Maximum Royalties Receivable Aged Past 30 Days.



     (a) Borrowers shall not permit the percentage of balance sheet royalties receivable of
Borrowers and their Subsidiaries (determined on a consolidated basis in accordance with GAAP
consistently applied) that are aged more than thirty (30) days to exceed (a) twenty-five percent
(25%) of total royalties receivable at any time during the first (1st) or fourth (4th) fiscal
quarters of any fiscal year, or (b) twenty percent (20%) of total royalties receivable at any time
during the second (2nd) or third (3rd) fiscal quarters of any fiscal year; provided, however, that,
the covenant set forth in this Section 14.04 shall apply only for those fiscal quarters at the end
of which the Adjusted Leverage Ratio, as calculated for the Reference Period ending as of the end
of such fiscal quarter, is greater than or equal to 3.00:1.00.



     (b) Notwithstanding any provision of Section 14.04(a) to the contrary, in no event shall
balance sheet royalties receivable of Borrowers and their Subsidiaries from any of the NCBBQ
Entities be included for purposes of calculating the percentage of balance sheet royalties
receivable of Borrowers and their Subsidiaries that are aged more than thirty (30) days pursuant to
Section 14.04(a) above, during the following fiscal quarters: (i) the fourth (4th)
fiscal quarter 2008 and the first (1st) fiscal quarter 2009; and (ii) the second
(2nd) fiscal quarter 2009, the third (3rd) fiscal quarter 2009 and the fourth
(4th) fiscal quarter 2009, but only if (in the case of this clause (ii)) Borrowers and
the NCBBQ Entities have reached an agreement with respect to past due, current and future royalties
payable by the NCBBQ Entities to Borrowers and their Subsidiaries, which agreement is evidenced by
a written document which is acceptable in form and substance to Administrative Agent in its Sole
Discretion, an executed copy of which has been delivered to Administrative Agent.



ARTICLE XV.

MISCELLANEOUS




     15.01 Amendments, Etc.



     Except for any amendment necessary to implement the terms of any Revolving Credit Loan
Increase in accordance with the terms of this Agreement (which shall be in writing and signed by
Administrative Agent and Borrowers), no amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by any Borrower or any other Borrower
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or
the applicable Borrower, as the case may be, and acknowledged by the Administrative Agent and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



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



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 10.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the



92









 




Lenders (or any of them) or any scheduled or mandatory reduction of the Aggregate Commitments
hereunder or under any other Loan Document without the written consent of each Lender directly
affected thereby;




     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) below in this Section 15.01) any fees or other
amounts payable hereunder or under any other Loan Document, without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate;



     (e) change Section 2.09 or Section 10.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender;



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



     (g) release all or substantially all of the Collateral or other collateral securing the Loans
without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it, and (ii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that no
Commitment of such Lender may be increased or extended without the consent of such Lender.




     15.02 Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or electronic mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrowers, the Administrative Agent or the L/C Issuer, to the address,
facsimile number, electronic mail address or telephone number specified for such Person on
Schedule 15.02 or to such other address, facsimile number or telephone number as
shall be designated by such party in a notice to the other parties; and




     (ii) if to any other Lender, to the address, facsimile number or telephone number
specified for such Lender on Schedule 15.02 or to such other address, facsimile



93









 






number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Administrative Agent and the L/C Issuer.


All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone, and (D) if delivered by electronic mail, when
delivered; provided, however, that notices and other communications to the
Administrative Agent and/or the L/C Issuer pursuant to Article II shall not be effective
until actually received by such Person. In no event shall a voicemail message be effective as a
notice, communication or confirmation hereunder.




     (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents and/or
executed signature pages thereto may be transmitted by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Borrowers, the Administrative Agent and the
Lenders. The Administrative Agent may also require that any such documents and signatures be
confirmed by a manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any facsimile document
or signature.



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



     15.03 No Waiver; Cumulative Remedies.



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



     15.04 Attorney Costs, Expenses and Taxes.



     Each Borrower agrees (a) to pay or reimburse the Administrative Agent for all costs and
expenses incurred in connection with the development, preparation, negotiation and execution of
this Agreement and the other Loan Documents and any amendment, waiver, consent or other



94









 




modification of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and expenses incurred
during any “workout” or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs.
The foregoing costs and expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by
the Administrative Agent and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. All amounts due under this Section
15.04 shall be payable within ten Business Days after demand therefor. The agreements in this
Section shall survive the termination of the Aggregate Commitments and repayment of all other
Obligations.




     15.05 Indemnification by the Borrowers.



     Whether or not the transactions contemplated hereby are consummated, each Borrower shall
indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the
“Indemnitees”) from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by
or asserted against any such Indemnitee in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance or administration of any Loan Document
or any other agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), or (c) any actual or alleged presence or release of Hazardous Materials on
or from any property currently or formerly owned or operated by any Borrower or any Subsidiary, or
any Environmental Liability related in any way to any Borrower or any Subsidiary, or (d) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee. No Indemnitee shall
be liable for any damages arising from the use by others of any information or other materials
obtained through IntraLinks, any website or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for any indirect or
consequential damages relating to this Agreement or any



95









 




other Loan Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). All amounts due under this Section 15.05 shall
be payable within ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any Lender, the termination
of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other
Obligations.




     15.06 Payments Set Aside.



     To the extent that any payment by or on behalf of any Borrower is made to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and
such payment or the proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect.



     15.07 Successors and Assigns.



     (a) Conditions to Assignment by Lenders. Except as provided herein, each Lender may
assign to one or more commercial banks, other financial institutions or other Persons, all or a
portion of its rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it; provided that (1) the Administrative Agent shall
have given its prior written consent to such assignment, which consent will not be unreasonably
withheld, conditioned or delayed; except that the consent of the Administrative Agent shall not be
required in connection with any assignment by a Lender to (i) an existing Lender or (ii) an
Affiliate of such Lender, provided that if such Lender or Affiliate is (or would, if it were a
Lender, be) a Foreign Lender, such Person has complied with the requirements set forth in
Section 15.15 (as though it were a Lender) prior to such assignment, (2) each such
assignment shall be of a constant, and not a varying, percentage of all the assigning Lender’s
rights and obligations in respect of its applicable Commitment and Loans at the time owing to it,
(3) each assignment, shall be in a minimum amount of $2,000,000 (or, if less, such Lender’s entire
applicable Commitment and Loans with respect to such Commitment) or such lesser amount consented to
by the Administrative Agent, and (4) the parties to such assignment shall execute and deliver to
the Administrative Agent, for recording in the Register (as hereinafter defined), an Assignment and
Assumption, together with any Notes subject to such assignment. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each Assignment and
Assumption, which effective date shall (unless otherwise consented to by Administrative Agent) be
at least five (5) Business Days after the execution thereof, (aa) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and
obligations of a Lender hereunder, and (bb) the



96









 




assigning Lender shall, to the extent provided in such assignment and upon payment to the
Administrative Agent of the registration fee referred to in Section 15.07(c), be released
from its obligations under this Agreement.




     (b) Certain Representations and Warranties; Limitations; Covenants. By executing and
delivering an Assignment and Assumption, the parties to the assignment thereunder confirm to and
agree with each other and the other parties hereto as follows:



     (1) other than the representation and warranty that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, the assigning Lender makes
no representation or warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement,
the other Loan Documents or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or mortgage,



     (2) the assigning Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrowers and their Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations, or the performance or
observance by the Borrowers and their Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished pursuant hereto or
thereto;



     (3) such assignee confirms that it has received a copy of this Agreement (together with any
amendments thereto), together with copies of the most recent financial statements referred to in
Section 5.05 and Section 6.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and
Assumption;



     (4) such assignee will, independently and without reliance upon the assigning Lender, the
Administrative Agent 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 this Agreement;



     (5) such assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;



     (6) such assignee agrees that it will perform in accordance with this Agreement and the other
Loan Documents all of the obligations that by the terms thereof are required to be performed by it
as a Lender;



     (7) such assignee represents and warrants that it is legally authorized to enter into such
Assignment and Assumption;



97









 





     (8) such assignee acknowledges that it has made arrangements with the assigning Lender
satisfactory to such assignee with respect to its pro rata share of letter of credit fees in
respect of outstanding Letters of Credit; and



     (9) such assignee acknowledges that it has complied with the provisions of Section
15.15 to the extent applicable.



     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice. The Register shall be available for inspection
by the Borrowers and the Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Lender agrees to pay to the Administrative Agent
a registration fee in the sum of $3,500.



     (d) New Notes. Upon its receipt of an Assignment and Assumption executed by the
parties to such assignment, the Administrative Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrowers and the Lenders (other
than the assigning Lender). Within five (5) Business Days after receipt of such notice, each
Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.



     (e) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitments and/or Loans (including, in the case of a
participation in a Lender’s Revolving Credit Loan Commitment, such Lender’s participations in L/C
Obligations, owing to it); provided that (1) each of the Administrative Agent and, unless an Event
of Default shall have occurred and be continuing, the Borrowers shall have given their prior
written consent to such sale of a participation, which consents will not be unreasonably withheld,
conditioned or delayed, except that the consent of the Borrowers or the Administrative Agent shall
not be required in connection with any sale of a participation by a Lender to (i) an existing
Lender or (ii) an Affiliate of such Lender, (2) each such participation shall be in an amount of
not less than $3,000,000, (3) such Lender’s obligations under this Agreement shall remain
unchanged, and (4) the Borrowers, the Administrative Agent 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, waiver or other modification described in
the first proviso to Section 15.01 that directly affects such Participant.



98









 





     (f) Assignee or Participant Affiliated with the Borrowers. If any assignee Lender is
an Affiliate of any Borrower, then any such assignee Lender shall have no right to vote as a Lender
hereunder or under any of the other Loan Documents for purposes of granting consents or waivers or
for purposes of agreeing to amendments or other modifications to any of the Loan Documents or for
purposes of making requests to the Administrative Agent pursuant to Article X, and the
determination of the Required Lenders shall for all purposes of this Agreement and the other Loan
Documents be made without regard to such assignee Lender’s interest in any of the Commitments or
Loans. If any Lender sells a participating interest in any of the Commitments or Loans to a
participant, and such participant is a Borrower or an Affiliate of a Borrower, then such transferor
Lender shall promptly notify the Administrative Agent of the sale of such participation. A
transferor Lender shall have no right to vote as a Lender hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making requests to the Administrative
Agent pursuant to Article X to the extent that such participation is beneficially owned by
a Borrower or any Affiliate of a Borrower, and the determination of the Required Lenders shall for
all purposes of this Agreement and the other Loan Documents be made without regard to the interest
of such transferor Lender in the Loans or Commitments to the extent of such participation.



     (g) Miscellaneous Assignment Provisions. Any assigning Lender shall retain its rights
to be indemnified pursuant to Section 15.05 with respect to any claims or actions arising
prior to the date of such assignment. Anything contained in this Section 15.07 to the
contrary notwithstanding, any Lender may at any time pledge or assign a security interest in all or
any portion of its interest and rights under this Agreement (including all or any portion of its
Notes) to secure obligations of such Lender, including any pledge or assignment to secure
obligations to (a) any of the twelve Federal Reserve Banks organized under §4 of the Federal
Reserve Act, 12 U.S.C. §341 and (b) with respect to any Lender that is a fund that invests in bank
loans, to any lender or any trustee for, or any other representative of, holders of obligations
owed or securities issued by such fund as security for such obligations or securities or any
institutional custodian for such fund or for such lender. Any foreclosure or similar action by any
Person in respect of such pledge or assignment shall be subject to the other provisions of this
Section 15.07. No such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan Documents, provide any voting rights
hereunder to the pledgee thereof, or affect any rights or obligations of the Borrowers or
Administrative Agent hereunder.



     (h) Assignment by Borrowers. The Borrowers shall not assign or transfer any of their
rights or obligations under this Agreement or any of the Loan Documents without (i) the prior
written consent of each of the Lenders and (ii) the payment to the Administrative Agent, on behalf
of the Lenders, of an assignment fee in an amount equal to 1.0% of the amount to be assigned and
all costs and expenses associated with any such assignment. For purposes of this Agreement, a
Change in Control (whether by equity sale, issuance or otherwise) shall constitute an assignment
hereof.



     (i) Syndication. The Borrowers hereby agree, at the request of the Administrative
Agent, to use commercially reasonable efforts to assist and cooperate with the Administrative Agent
in efforts to complete any syndication of the Commitments and the Loans hereunder, including, but
not limited to, promptly preparing and providing materials and information



99









 




reasonably deemed necessary by the Administrative Agent to successfully complete and otherwise
facilitate such syndication, including all projections required to be delivered pursuant to
Section 5.05 and Section 6.01. The Borrowers and each of their directors,
officers, employees and agents shall, at the reasonable request of the Administrative Agent, use
commercially reasonable efforts to meet with any potential lender and provide such additional
information as such Persons may reasonably request.




     (j) Assignment by Wells Fargo. Notwithstanding anything to the contrary contained
herein, if at any time Wells Fargo assigns all of its Commitments and Loans pursuant to subsection
(a) above, Wells Fargo may, upon thirty (30) days’ notice to the Borrowers and the Lenders, resign
as L/C Issuer. In the event of any such resignation as L/C Issuer, the Borrowers shall be entitled
to appoint from among the Lenders a successor L/C Issuer hereunder, subject to the acceptance by
such Lender of such appointment; provided, however, that no failure by the
Borrowers to appoint any such successor or any failure by any such Lender to accept such an
appointment shall affect the resignation of Wells Fargo as L/C Issuer. If Wells Fargo resigns as
L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the applicable Lenders to
make Revolving Credit Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section 2.10(c)).



     15.08 Confidentiality.



     Each of the Administrative Agent 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 (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to any Borrower and its obligations, (g) with the consent of the
Borrowers or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrowers. For purposes of this
Section, “Information” means all information received from any Borrower relating to any
Borrower or any of their respective businesses, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any
Borrower, provided that, in the case of information received from a 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



100









 




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 anything herein to the contrary, “Information”
shall not include, and the Administrative Agent and each Lender may disclose without limitation of
any kind, any information with respect to the “tax treatment” and “tax structure” (in each case,
within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax structure;
provided that with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as well as other
information, this sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby. In addition, the Administrative Agent may disclose to any agency or
organization that assigns standard identification numbers to loan facilities such basic information
describing the facilities provided hereunder as is necessary to assign unique identifiers (and, if
requested, supply a copy of this Agreement), it being understood that the Person to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to make available to the public only such Information as such person normally makes available in
the course of its business of assigning identification numbers




     15.09 Set-off.



     In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, each Lender is authorized at any time and from time
to time, without prior notice to any Borrower or any other Borrower, any such notice being waived
by each Borrower (on its own behalf and on behalf of each Borrower) 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 by, and other indebtedness at any time owing by, such Lender to or for
the credit or the account of the respective Borrowers against any and all Obligations owing to such
Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or unmatured or
denominated in a currency different from that of the applicable deposit or indebtedness. Each
Lender agrees promptly to notify the Borrowers and the Administrative Agent after any such set-off
and application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.



     15.10 Interest Rate Limitation.



     Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents, together with all fees, charges and other amounts that
may be treated as interest under applicable law (collectively, the “Charges”) shall not
exceed the maximum lawful rate of interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive Charges in an amount that
exceeds the Maximum Rate, the excess Charges shall be applied to the principal of the applicable
Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether




101











 




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




     15.11 Counterparts.



     This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.



     15.12 Integration.



     This Agreement, together with the other Loan Documents, comprises the complete and integrated
agreement of the parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in favor of
the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.



     15.13 Survival of Representations and Warranties.



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



     15.14 Severability.



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



     15.15 Tax Forms.



102









 





     (a) (i) Each Lender that is not a “United States person” within the meaning of Section
7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to the Administrative Agent,
prior to receipt of any payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender by the any Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by any Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrowers and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the Borrowers and the
Administrative Agent of any available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by any Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement
of applicable Laws that the Borrowers make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.




     (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender under any of
the Loan Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.




     (iii) The Borrowers shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 15.15(a) or (B) if
such Lender shall have failed to satisfy the foregoing provisions of this Section
15.15(a); provided that if such Lender shall have satisfied the requirement of
this Section 15.15(a)



103









 







on the date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this Section
15.15(a) shall relieve any Borrower of its obligation to pay any amounts pursuant to
Section 3.01 in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the fact that such
Lender or other Person for the account of which such Lender receives any sums payable under
any of the Loan Documents is not subject to withholding or is subject to withholding at a
reduced rate.




     (iv) The Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with respect to which
the Borrowers are not required to pay additional amounts under this Section
15.15(a).



     (b) Upon the request of the Administrative Agent, each Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an amount equivalent to
the applicable back-up withholding tax imposed by the Code, without reduction.



     (c) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from payments made to or
for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs)
of the Administrative Agent. The obligation of the Lenders under this Section shall survive the
termination of the Aggregate Commitments, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.



     15.16 Estoppel Certificates.



     Borrowers, within ten (10) days after request by Administrative Agent and at Borrowers’
expense, will furnish Administrative Agent and Lenders with a statement, duly acknowledged and
certified, setting forth the amount of all Loans, L/C Obligations and other Obligations and the
offsets or defenses thereto, if any, all in form and substance reasonably acceptable to
Administrative Agent.



     15.17 Recourse.



     Notwithstanding anything to the contrary contained in this Agreement or in any other Loan
Document, the liability for payment of the Loans, L/C Obligations and other Obligations and for the
payment and performance of all other agreements, covenants and obligations contained herein or in
any of the other Loan Documents, shall be the full recourse obligations of the Borrowers.



104









 





     15.18 Governing Law; Consent to Jurisdiction.



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



     (b) EACH PARTY HERETO HEREBY CONSENTS, UNCONDITIONALLY AND IRREVOCABLY, TO THE NONEXCLUSIVE
JURISDICTION OF THE FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK AND WAIVES ANY OBJECTION
BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY PROCEEDING RELATING TO ANY MATTER, CLAIM
OR DISPUTE ARISING UNDER THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE OTHER THAN PURSUIT OF A JUDGMENT ON A NOTE WHERE SUIT IS ALSO BROUGHT IN
THE STATE WHERE ANY COMPANY-OWNED PROPERTY IS LOCATED TO TAKE JURISDICTION OF SUCH COMPANY-OWNED
PROPERTY. EACH BORROWER FURTHER CONSENTS, GENERALLY, UNCONDITIONALLY AND IRREVOCABLY, TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF EACH STATE WHERE ANY COMPANY-OWNED
PROPERTY IS LOCATED IN RESPECT OF ANY PROCEEDING RELATING TO ANY MATTER, CLAIM OR DISPUTE ARISING
WITH RESPECT TO SUCH COMPANY-OWNED PROPERTY INCLUDING BUT NOT LIMITED TO FORECLOSURES, AND EACH
BORROWER AGREES THAT ADMINISTRATIVE AGENT AND LENDERS SHALL HAVE THE RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST ANY BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH
ADMINISTRATIVE AGENT OR LENDERS DEEM NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL
OR OTHER SECURITY FOR THE OBLIGATIONS OR TO OTHERWISE ENFORCE ITS RIGHTS AGAINST ANY BORROWER, ANY
OTHER BORROWER OR THEIR RESPECTIVE PROPERTY. EACH BORROWER FURTHER IRREVOCABLY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS TO THE SERVICE OF PROCESS, GENERALLY,
UNCONDITIONALLY AND IRREVOCABLY, AT THE ADDRESSES SET FORTH HEREIN IN CONNECTION WITH ANY OF THE
AFORESAID PROCEEDINGS IN ACCORDANCE WITH THE RULES APPLICABLE TO SUCH PROCEEDINGS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
HAVE OR HAVE IN THE FUTURE TO THE LAYING OF VENUE IN RESPECT OF ANY OF THE AFORESAID PROCEEDINGS
BROUGHT IN THE COURTS REFERRED TO ABOVE AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT AND LENDERS TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR TO COMMENCE PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY
JURISDICTION. TO THE EXTENT THAT ANY



105









 




BORROWER HAS OR MAY HEREAFTER ACQUIRE ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ANY BORROWER OR ANY BORROWER’S PROPERTY,
EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.




     15.19 Waiver of Right to Trial by Jury and Other Rights.



     TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT TO TRIAL BY JURY AND ANY RIGHT OR CLAIM TO ANY CONSEQUENTIAL
DAMAGES, EXEMPLARY DAMAGES, EXPECTANCY DAMAGES, SPECIAL DAMAGES AND GENERAL DAMAGES IN RESPECT OF
ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY
OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY RELATING TO ANY
LOAN OR ANY PROPERTY (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR
DEFENSE ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
THIS WAIVER IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT, LENDERS AND L/C ISSUER TO ENTER INTO
THIS AGREEMENT AND TO MAKE THE CREDIT EXTENSIONS.



     15.20 Time of the Essence.



     For all payments to be made and all obligations to be performed under the Loan Documents, time
is of the essence.



     15.21 Joint and Several Liability of Borrowers.



     The liability of all Borrowers hereunder, under the Notes and under each other Loan Document
shall be joint and several. Each Borrower shall be primarily and directly liable hereunder, under
the Notes and under each other Loan Document.



     15.22 Patriot Act Notice.



     Each Lender. the L/C Issuer and the Administrative Agent (for itself and not on behalf of any
other party) hereby notifies the Borrowers that, pursuant to the requirements of the USA Patriot
Act, Title III of Pub. L. 107-56, signed into law on October 26, 2001 (the “Patriot Act”),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrowers and other information that will allow
such Lender, the L/C Issuer or the Administrative Agent, as applicable, to identify the Borrowers
in accordance with the Patriot Act.



     15.23 Ratification; Reaffirmation.



106









 





     (a) Except as expressly set forth in this Agreement, the Prior Credit Agreement (as amended
and restated by this Agreement) and each of the other Loan Documents (including, without
limitation, the Loan Documents executed in connection with the Prior Credit Agreement or Original
Credit Agreement (as applicable)), are hereby ratified and remain in full force and effect.
Nothing contained herein shall be deemed to be a novation of any Note or otherwise affect the
priority of the lien of any of the Loan Documents.



     (b) Without in any way limiting the foregoing or any other provision of this Agreement and in
addition to the representations and warranties contained in Article V of this Agreement,
Borrowers hereby expressly reaffirm as of the date hereof that the representations and warranties
of the Borrowers contained in the Loan Documents furnished in connection with the Original Credit
Agreement or Prior Credit Agreement or thereafter at any time under or in connection with the Loan
Documents are true and correct on and as of the date hereof (subject to the exceptions set forth in
Section 4.03.



107









 





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



	 	 	 	 	 
	 	FAMOUS DAVE’S OF AMERICA, INC.,

a Minnesota corporation

 	 
	 	By:  	/s/ Diana Purcel
 	 
	 	 	Name:  	Diana Purcel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	D&D OF MINNESOTA, INC.,

a Minnesota corporation

 	 
	 	By:  	/s/ Diana Purcel
 	 
	 	 	Name:  	Diana Purcel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	LAKE & HENNEPIN BBQ AND BLUES, INC.,

a Minnesota corporation

 	 
	 	By:  	/s/ Diana Purcel
 	 
	 	 	Name:  	Diana Purcel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	FAMOUS DAVE’S RIBS, INC.,

a Minnesota corporation

 	 
	 	By:  	/s/ Diana Purcel
 	 
	 	 	Name:  	Diana Purcel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	FAMOUS DAVE’S RIBS-U, INC.,

a Minnesota corporation

 	 
	 	By:  	/s/ Diana Purcel
 	 
	 	 	Name:  	Diana Purcel 	 
	 	 	Title:  	Chief Financial Officer 	 



S-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	FAMOUS DAVE’S RIBS OF MARYLAND,

INC., a Minnesota corporation

 	 
	 	By:  	/s/ Christopher O’Donnell
 	 
	 	 	Name:  	Christopher O’Donnell 	 
	 	 	Title:  	President 	 
	 
	 	WELLS FARGO BANK, NATIONAL

ASSOCIATION, as Administrative Agent, L/C
 Issuer and as a Lender

 	 
	 	By:  	/s/ Stephen Leon
 	 
	 	 	Name:  	Stephen Leon 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Maureen S. Malphus
 	 
	 	 	Name:  	Maureen S. Malphus 	 
	 	 	Title:  	Vice President 	 
	 




S-2