SECOND AMENDMENT TO CREDIT
AGREEMENT
BY THIS SECOND AMENDMENT TO CREDIT DOCUMENTS
(this “ Amendment ”), dated as of June 23,
2009, P.F. CHANG’S CHINA BISTRO, INC., a Delaware corporation
(“Borrower”), and JPMORGAN CHASE BANK, N.A., a national
banking association, as Administrative Agent, BANK OF AMERICA,
N.A., a national banking association, as Syndication Agent, and
WELLS FARGO BANK, N.A., a national banking association, as
Documentation Agent and the Lenders party hereto, agree that the
Credit Agreement dated August 31, 2007 between Borrower,
Administrative Agent, Syndication Agent, Documentation Agent and
the Lenders party thereto (the “Original Credit
Agreement”), as amended by that certain First Amendment to
Credit Agreement dated as of December 31, 2008 (the Original
Credit Agreement as amended by the First Amendment is referred to
herein as the “Credit Agreement”) is supplemented,
amended and modified as set forth herein. All terms capitalized but
not otherwise defined herein shall have the meanings set forth in
the Credit Agreement
1. Definition of “Permitted
Entity Investment” . Borrower, Administrative Agent,
Syndication Agent, Documentation Agent and the Lenders party hereto
hereby agree that a new definition of “Permitted Entity
Investment” shall be added to Section 1.01 of the
Original Credit Agreement as follows
“‘Permitted Entity Investment’
has the meaning set forth in Section 6.04(e)
.”
2. Amendment to Section 5.08 of
the Original Credit Agreement . The first sentence of
Section 5.08 of the Original Credit Agreement is hereby
amended as follows:
“The
proceeds of the Loans will be used to finance the working capital
needs of the Borrower and for the Borrower’s general
corporate purposes, including share repurchases and acquisitions or
other investments permitted by this Agreement.
3. Amendments to Section 6.04 of
the Original Credit Agreement . Borrower, Administrative Agent,
Syndication Agent, Documentation Agent and the Lenders party hereto
hereby agree that Section 6.04 of the Original Credit
Agreement is amended by adding the following Section 6.04(e)
thereto:
“(e) Investments (which for purposes of
this Section 6.04(e) only shall include purchasing,
holding or acquiring any capital stock, evidences of indebtedness
or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, making or permitting to exist
any loans or advances to, or making or permitting to exist any
investment or any other interest in, any other Person, or
purchasing or otherwise acquiring (in one transaction or a series
of transactions) any assets of any other Person constituting a
business unit) meeting the following requirements or otherwise
approved by the Required Lenders (each such investment constituting
a “Permitted Entity Investment”):
(i) as of the date of the consummation of
such Permitted Entity Investment, no Default shall have occurred
and be continuing or would result from such Permitted Entity
Investment, and the representation and warranty contained in
Section 5.08 shall be true both before and after giving effect
to such Permitted Entity Investment;
(ii) such Permitted Entity Investment is
consummated on a non-hostile basis pursuant to a negotiated
agreement approved by the board of directors or other applicable
governing body of the seller or entity to be acquired, and no
material challenge to such Permitted Entity Investment shall be
pending or threatened by any shareholder or director of the seller
or entity to be acquired;
(iii) the business relating to such
Permitted Entity Investment is similar or related to one or more of
the lines of business in which the Borrower and its Subsidiaries
are engaged on the Effective Date;
(iv) as of the date of the consummation of
such Permitted Entity Investment, all material approvals required
in connection therewith shall have been obtained; and
(v) that do not exceed in the aggregate
$10,000,000.00 in cash and/or non-cash consideration during the
term of this Agreement.”
4. Schedule 1 to Compliance
Certificate . Borrower, Administrative Agent, Syndication
Agent, Documentation Agent and the Lenders party hereto hereby
agree that Schedule 1 to the Compliance Certificate is hereby
replaced with Schedule 1 to the Compliance Certificate
attached hereto as Exhibit “A”.
5. Ratification . The Credit
Documents are ratified and affirmed by Borrower and shall remain in
full force and effect as modified herein. Any property or rights to
or interests in property granted as security in the Credit
Documents shall remain as security for the Loan and the obligations
of Borrower in the Credit Documents, except as modified
herein.
6. Representations and Warranties .
Borrower represents and warrants to Administrative Agent,
Syndication Agent, Documentation Agent and the Lenders party hereto
that: (a) there is no event which is, or with notice or lapse
of time or both would be, a default under the Credit Agreement,
(b) the representations and warranties in the Credit Agreement
are true and correct as of the date of this Amendment as if made on
the date of this Amendment, (c) this Amendment does not
conflict with any law, agreement or obligation by which Borrower is
bound, and (d) this Amendment is within Borrower’s
power, has been duly authorized, and does not conflict with
Borrower’s certificate of incorporation or bylaws.
-2-
7. Successors and Assigns;
Counterparts . This Amendment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their heirs,
personal representatives, successors and assigns. This Amendment
may be executed in counterparts.
8. Effect of Agreement . Except as
provided in this Amendment, and any documents, agreements and/or
instruments executed in connection with this Amendment, all of the
terms and conditions of the Credit
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