EX-99.1 3 d58237_ex99-1.htm ADDITIONAL EXHIBITS The Cheesecake Factory Inc.

CREDIT AGREEMENT

(LINE OF CREDIT)

(LETTER OF CREDIT SUB-FACILITY)

This Agreement (the “Agreement”) is made and entered into as of December 30, 2003 by and between BANK OF THE WEST (the “Bank”) and THE CHEESECAKE FACTORY INCORPORATED (the “Borrower”), on the terms and conditions that follow, and replaces the amended line of credit and letter of credit subfacility agreement between Bank and Borrower dated October 1, 1996 (the “Predecessor Agreement”).

SECTION

1

DEFINITIONS


1.1 Certain Defined Terms: Unless elsewhere defined in this Agreement, the following terms shall have the following meanings (such meanings to be generally applicable to the singular and plural forms of the terms defined):

1.1.1 “Advance”: shall mean an advance to the Borrower under the credit facility (ies) described in Section 2.

1.1.2 “Business Day”: shall mean a day, other than a Saturday or Sunday, on which commercial banks are open for business in California.

1.1.3 “Cash Flow”: shall mean the sum of Borrower’s reported net income before tax and exclusive of extraordinary gains or losses (as defined per GAAP) , plus depreciation and amortization expense, interest expense, and base (minimum) rental expense minus dividends paid and other cash distributions to stockholders.

1.1.4 “Debt”: shall mean all liabilities of the Borrower reported on Borrower’s statement of financial position (excluding commitments and contingencies) less Subordinated Debt, if any.

1.1.5 “Effective Tangible Net Worth”: shall mean the Borrower’s stockholders’ equity reported on Borrower’s statement of financial position plus Subordinated Debt but less all intangible assets in excess of $3 million of the Borrower (i.e., goodwill, trademarks, patents, copyrights, organization expense, and similar intangible items including, but not limited to, investments in and all amounts due from affiliates, officers or employees)

1.1.6 “Environmental Claims”: shall mean all material claims, however asserted, by any governmental authority or other person against Borrower alleging potential liability or responsibility for violation of any Environmental Law or for Discharge or injury to the environment or threat to public health, personal injury (including sickness, disease or death), property damage, natural resources damage, or otherwise alleging liability or responsibility for damages (punitive or otherwise), cleanup, removal, remedial or response costs, restitution, civil or criminal penalties, injunctive relief, or other type of relief, resulting from or based upon (a) the presence, placement, discharge, emission or release (including intentional and unintentional, negligent and non-negligent, sudden or non-sudden, accidental or non-accidental placement, spills, leaks, Discharges, emissions or releases) of any Hazardous Material by Borrower at, in, or from property, whether or not owned by the Borrower, or (b) any other circumstances forming the basis of any violation, or alleged violation, of any Environmental Law by Borrower.

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1.1.7 “Environmental Laws”: shall mean all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any governmental authorities, in each case relating to environmental, health, safety and land use matters; including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency Planning and Community Right-to-Know Act, the California Hazardous Waste Control Law, the California Solid Waste Management, Resource, Recovery and Recycling Act, the California Water Code and the California Health and Safety Code.

1.1.8 “Environmental Permits”: shall have the meaning provided in Section 4.11 hereof.

1.1.9 “ERISA”: shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, including (unless the context otherwise requires) any rules or regulations promulgated thereunder.

1.1.10 “Event of Default”: shall have the meaning set forth in Section 6.

1.1.11 “Expiration Date”: shall mean December 30, 2005, or the date of termination of the Bank’s commitment to lend under this Agreement pursuant to Section 7, whichever shall occur first.

1.1.12 “Funded Debt”: shall mean aggregate dollar amount of Indebtedness of the Borrower that has actually been funded and is owed to any financial institution.

1.1.13 “Hazardous Materials”: shall mean all those substances which are regulated by, or which may form the basis of liability under, any Environmental Law, including all substances identified under any Environmental Law as a pollutant, contaminant, hazardous waste, hazardous constituent, special waste, hazardous substance, hazardous material, or toxic substance, or petroleum or petroleum derived substance or waste.

1.1.14 “Indebtedness”: shall mean, with respect to the Borrower, (i) all indebtedness for borrowed money or for the deferred purchase price of property or services in respect of which the Borrower is liable, contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which the Borrower otherwise assures a creditor against loss and (ii) obligations under leases which have been in accordance with generally accepted accounting principles, reported as capital leases in respect of which the Borrower is liable, or in respect of which the Borrower otherwise assures a creditor against loss.

1.1.15 “Letter of Credit Facility”: shall mean the credit facility described as such in Section 2.

1.1.16 “LIBOR Advance”: shall have the respective meaning as it is defined for each facility under Section 2, hereof.

1.1.17 “LIBOR Interest Period”: shall have the respective meaning as it is defined for each facility under Section 2, hereof.

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1.1.18 “LIBOR Rate”: shall have the respective meaning as it is defined for each facility under Section 2, hereof.

1.1.19 “Line Account”: shall have the meaning provided in Section 2.3 hereof.

1.1.20 “Line of Credit”: shall mean the credit facility described as such in Section 2.

1.1.21 “Obligations”: shall mean all amounts owing by the Borrower to the Bank pursuant to this Agreement including, but not limited to, the unpaid principal amount of any loans or advances.

1.1.22 “Ordinary Course of Business”: shall mean, with respect to any transaction involving the Borrower or any one or more of its subsidiaries or affiliates, or any transaction between or among its subsidiaries or affiliates, conducted in the ordinary course of the Borrower’s business, in accordance with its past practices and practices generally conducted in the chain restaurant and bakery industries and undertaken by the Borrower in good faith and not for the purpose of evading any covenant or restriction in this Agreement or in any other document, instrument or agreement executed in connection herewith.

1.1.23 “Permitted Liens”: shall mean: (i) liens and security interests securing indebtedness owed by the Borrower to the Bank; (ii) liens for taxes, assessments or similar charges not yet due; (iii) liens of materialmen, mechanics, warehousemen, or carriers or other like liens arising in the Ordinary Course of Business and securing obligations which are not yet delinquent; (iv) purchase money liens or purchase money security interests upon or in any property acquired or held by the Borrower in the Ordinary Course of Business to secure Indebtedness outstanding on the date hereof or permitted to be incurred herein, and any refinancing of such indebtedness; (v) liens and security interests which, as of the date hereof, have been disclosed to and approved by the Bank in writing; and (vi) those liens and security interests which in the aggregate constitute a monetary amount not to exceed 5% of Borrower’s reported total assets.

1.1.24 “Prime Rate”: shall mean an index for a variable interest rate which is quoted, published or announced by Bank as its prime rate and as to which loans may be made by Bank at, above or below such rate.

1.1.25 “Subordinated Debt”: shall mean such liabilities of the Borrower, which have been subordinated to those owed to the Bank in a manner acceptable to the Bank.

1.1.26 “Variable Rate Advance”: shall have the respective meaning as it is defined for each facility under Section 2, hereof.

1.1.27 “Variable Rate”: shall have the respective meaning as it is defined for each facility under Section 2, hereof.

1.2 Accounting Terms: All references to financial statements, assets, liabilities, and similar accounting items not specifically defined herein shall mean such financial statements or such items prepared or determined in accordance with generally accepted accounting principles (GAAP) consistently applied and as disclosed in the footnotes and other disclosures accompanying Borrower’s audited financial statements and, except where otherwise specified, all financial data submitted pursuant to this Agreement shall be prepared in accordance with such principles.

1.3 Other Terms: Other terms not otherwise defined shall have the meanings attributed to such terms in the California Uniform Commercial Code as in effect on July 1, 2001 and from time to time thereafter.

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SECTION

2

CREDIT FACILITIES


2.1 THE LINE OF CREDIT

2.1.1 The Line of Credit: On terms and conditions as set forth herein, the Bank agrees to make Advances to the Borrower from time to time from the date hereof to the Expiration Date, provided the aggregate amount of such Advances outstanding at any time does not exceed $35,000,000.00 (the “Line of Credit”). Within the foregoing limits, the Borrower may borrow, partially or wholly prepay, and reborrow under this Section 2.1. Proceeds of the Line of Credit shall be used for general corporate purposes.

2.1.2 Making Line Advances: Each Advance shall be conclusively deemed to have been made at the request of and for the benefit of the Borrower (i) when credited to any deposit account of the Borrower maintained with the Bank or (ii) when paid in accordance with the Borrower’s written instructions. Subject to the requirements of Section 3 and provided such request is made in a timely manner as provided in Section 2.1.5 below, Advances shall be made by the Bank under the Line of Credit .

2.1.3 Repayment: Unless the Borrower shall have elected to convert the Line of Credit to a Term Loan pursuant to Section 2.1.11 hereof, on the Expiration Date, the Borrower hereby promises and agrees to pay to the Bank in full the aggregate unpaid principal amount of all Advances then outstanding, together with all accrued and unpaid interest thereon.

2.1.4 Interest on Advances: Interest shall accrue from the date of each Advance under the Line of Credit at one of the following rates, as quoted by the Bank and as elected by the Borrower below:

  (i) Variable Rate Advances: A variable rate per annum equivalent to the Prime Rate (the “Variable Rate”). Interest shall be adjusted concurrently with any change in the Prime Rate. An Advance based upon the Variable Rate is hereinafter referred to as a “Variable Rate Advance”.

  (ii) LIBOR Advances: A fixed rate quoted by the Bank for one week, 1, 2, 3, or 6 months or for such other period of time that the Bank may quote and offer (provided that any such period of time does not extend beyond the Expiration Date) (the “LIBOR Interest Period”) for Advances in the minimum amount of $100,000.00. Such interest rate shall be a percentage approximately equivalent to .75% in excess of the Bank’s LIBOR Rate which is that rate determined by the Bank’s Treasury Desk as being the arithmetic mean (rounded upwards, if necessary, to the nearest whole multiple of one-sixteenth of one percent (1/16%)) of the U. S. dollar London Interbank Offered Rates for such period appearing on page 3750 (or such other page as may replace page 3750) of the Telerate screen at or about 11:00 a.m. (London time) on the second Business Day prior to the first days of such period (adjusted for any and all assessments, surcharges and reserve requirements) (the “LIBOR Rate”). An Advance based upon the LIBOR Rate is hereinafter referred to as a “LIBOR Advance”.

  Interest on any Advance shall be computed on the basis of 360 days per year, but charged on the actual number of days elapsed.

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  The Borrower hereby promises and agrees to pay interest in arrears on Variable Rate Advances and LIBOR Advances on the last calendar day of each month

  If interest is not paid as and when it is due, it shall be added to the principal, become and be treated as a part thereof, and shall thereafter bear like interest.

2.1.5 Notice of Borrowing: Upon written or telephonic notice which shall be received by the Bank at or before 2:00 p.m. (California time) on a Business Day, the Borrower may borrow under the Line of Credit by requesting:

  (i) A Variable Rate Advance. A Variable Rate Advance may be made on the day notice is received by the Bank; provided, however, that if the Bank shall not have received notice at or before 2:00 p.m. on the day such Advance is requested to be made, such Variable Rate Advance may, at the Bank’s option, be made on the next Business Day.

  (ii) A LIBOR Advance. Notice of any LIBOR Advance shall be received by the Bank no later than two Business Days prior to the day (which shall be a Business Day) on which the Borrower requests such LIBOR Advance to be made.

2.1.6 Notice of Election to Adjust Interest Rate: The Borrower may elect:

  (i) That interest on a Variable Rate Advance shall be adjusted to accrue at the LIBOR Rate; provided, however, that such notice shall be received by the Bank no later than two Business Days prior to the day (which shall be a Business Day) on which the Borrower requests that interest be adjusted to accrue at the LIBOR Rate.

  (ii) That interest on a LIBOR Advance shall continue to accrue at a newly quoted LIBOR Rate or shall be adjusted to commence to accrue at the Variable Rate; provided, however, that such notice shall be received by the Bank no later than two Business Days prior to the last day of the LIBOR Interest Period pertaining to such LIBOR Advance. If the Bank shall not have received notice (as prescribed herein) of the Borrower’s election that interest on any LIBOR Advance shall continue to accrue at the newly quoted LIBOR Rate, the Borrower shall be deemed to have elected that interest thereon shall be adjusted to accrue at the Variable Rate upon the expiration of the LIBOR Interest Period pertaining to such Advance.

2.1.7 Prepayment: The Borrower may prepay any Advance in whole or in part, at any time and without penalty, provided, however, that: (i) any partial prepayment shall first be applied, at the Bank’s option, to accrued and unpaid interest and next to the outstanding principal balance; and (ii) during any period of time in which interest is accruing on any Advance on the basis of the LIBOR Rate, no prepayment shall be made except on a day which is the last day of the LIBOR Interest Period pertaining thereto. If the whole or any part of any LIBOR Advance is prepaid by reason of acceleration or otherwise, the Borrower shall, upon the Bank’s written request, accompanied with supporting documentation and calculations reasonably acceptable to Borrower, promptly pay to and indemnify the Bank for all incremental out-of-pocket costs, and expenses and any loss (including loss of profit resulting from the re-employment of funds) deemed sustained by the Bank as a direct consequence of such prepayment.

  The Bank shall be entitled to fund all or any portion of its Advances in any manner it may determine in its sole discretion, but all calculations and transactions hereunder shall be conducted as though the Bank actually funded all Advances through the purchase of dollar deposits bearing interest at the same rate as U.S. Treasury securities in the amount of the relevant Advance and in maturities corresponding to the date of such purchase to the Expiration Date hereunder.

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2.1.8 Indemnification for LIBOR Rate Costs: During any period of time in which interest on any Advance is accruing on the basis of the LIBOR Rate, the Borrower shall, upon the Bank’s written request, accompanied with supporting documentation and calculations reasonably acceptable to Borrower, promptly pay to and reimburse the Bank for all incremental, out-of-pocket costs incurred and payments made by the Bank by reason of any future assessment, reserve (other than reserves and assessments taken into account at the time each LIBOR Advance was initially determined by Bank), deposit or similar requirement or any surcharge, tax (other than taxes on Bank’s income, personal or real property, or net worth) or fee imposed upon the Bank or as a result of the Bank’s compliance with any directive or requirement of any regulatory authority pertaining or relating to funds used by the Bank in quoting and determining the LIBOR Rate.

2.1.9 Conversion from LIBOR Rate to Variable Rate: In the event that the Bank shall at any time reasonably determine that the accrual of interest on the basis of the LIBOR Rate (i) is infeasible because the Bank is unable to determine the LIBOR Rate due to the unavailability of U.S. dollar deposits, contracts or certificates of deposit in an amount approximately equal to the amount of the relevant Advance and for a period of time approximately equal to relevant LIBOR Interest Period or (ii) is or has become unlawful or infeasible by reason of the Bank’s compliance with any new law, rule, regulation, guideline or order, or any new interpretation of any present law, rule, regulation, guideline or order, then the Bank shall give telephonic notice thereof (confirmed in writing) to the Borrower, in which event any Advance bearing interest at the LIBOR Rate shall be deemed to be a Variable Rate Advance and interest shall thereupon immediately accrue at the Variable Rate, and, should Bank make this determination, Borrower shall not be responsible for any prepayment fee.

2.1.10 Commitment Fee: The Borrower agrees to pay to the Bank a commitment fee on the unused portion of the Line of Credit, from time to time, of .125% per annum, payable quarterly in arrears, commencing on December 31, 2003, and computed on a year of 360 days for actual days elapsed.

2.1.11 Term Loan Conversion: The Borrower may, by giving 30 days prior written notice to the Bank, convert the principal balance outstanding under the Line of Credit as of such date to be payable on a term loan basis. The term loan (the “Term Loan”) shall be in the amount of such outstanding principal balance, be payable in 16 substantially equal quarterly principal installments, bear interest at the Prime Rate or at a LIBOR Rate that shall be one half of one percent (0.50%) higher than that applicable to the Line of Credit and shall be evidenced by a promissory note or credit agreement in form and substance satisfactory to the Bank (the “Term Note”). Accrued and unpaid interest under the Line of Credit shall be paid to the Bank concurrently with the Borrower’s execution of the Term Note. Borrower agrees to pay to Bank a conversion fee equal to .25% times the outstanding principal balance of the Line of Credit at the time of conversion

2.2 LETTER OF CREDIT SUB-FACILITY

2.2.1 Letter of Credit Sub-Facility: The Bank agrees to issue commercial and/or standby letters of credit (each a “Letter of Credit”) on behalf of the Borrower of up to $35,000,000.00 in the aggregate. At no time, however, shall the total principal amount of all Advances outstanding under the Line of Credit, together with the total face amount of all Letters of Credit outstanding, less any partial draws paid by the Bank, exceed the Line of Credit.

  Exhibit B to this Agreement lists certain outstanding letters of credit previously issued by Bank for the account of Borrower under the Predecessor Agreement. Subject to the satisfaction of the conditions contained in Section 3, from and after the date of this Agreement, such letters of credit shall be deemed to be issued pursuant to Section 2.2 of this Agreement.

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  (i) Upon the Bank’s request, the Borrower shall promptly pay to the Bank an issuance fee of 1% per annum, with a minimum of $350, of the face amount of each standby letter of credit issued for the account of the Borrower as well as any applicable courier fees and amendment fees. Upon the Bank’s request, the Borrower shall promptly pay to the Bank the Bank’s standard issuance fees as listed in Bank’s Schedule of Charges (included as Exhibit D), and such other out-of-pocket fees, commissions, costs and expenses charged by third parties or incurred by the Bank with respect to any Commercial Letter of Credit issued for the account of the Borrower.

  (ii) The commitment by the Bank to issue Letters of Credit shall, unless earlier terminated in accordance with the terms of the Agreement, automatically terminate on the Expiration Date of the Line of Credit and no Letter of Credit shall expire on a date which is more than 365 days after the Expiration Date.

  (iii) Each Letter of Credit shall be in form and substance satisfactory to the Bank and in favor of beneficiaries satisfactory to the Bank, designated by Borrower, provided that the Bank may reasonably refuse to issue a Letter of Credit due to the nature of the transaction or its terms or in connection with any transaction where the Bank, due to the beneficiary or the nationality or residence of the beneficiary, reasonably believes that it would be prohibited by any applicable law, regulation or order from issuing such Letter of Credit. Bank agrees to provide Borrower with the specific basis of its refusal to issue any Letter of Credit under this Agreement. Prior to the issuance of each Letter of Credit, but in no event later than 10:00 a.m. (California time) on the day such Letter of Credit is to be issued (which shall be a Business Day), the Borrower shall deliver to the Bank a duly executed form of the Bank’s standard form of application for issuance of a Letter of Credit with proper insertions.

  (iv) The Borrower shall, upon the Bank’s written request, accompanied with supporting documentation and calculations reasonably acceptable to Borrower, promptly pay to and reimburse the Bank for all incremental, out-of-pocket costs incurred and payments made by the Bank by reason of any future assessment, reserve (other than reserves and assessments taken into account at the time each Letter of Credit was initially issued to Borrower by Bank), deposit or similar requirement or any surcharge, tax (other than taxes on Bank’s income, personal or real property, or net worth) or fee imposed upon the Bank or as a result of the Bank’s compliance with any directive or requirement of any regulatory authority pertaining or relating to any Letter of Credit.

  In the event that the Borrower fails to pay any drawing under any Letter of Credit or the balances in the depository account or accounts maintained by the Borrower with Bank are insufficient to pay such drawing, without limiting the rights of Bank hereunder or waiving any Event of Default caused thereby, Bank may, and Borrower hereby authorizes Bank to create an Advance bearing interest at the rate or rates provided in Section 8.2 hereof to pay such drawing.

2.3 Line Account: The Bank shall maintain on its books a record of account in which the Bank shall make entries for each Advance and such other debits and credits as shall be appropriate in connection with the credit facilities granted hereunder (the “Line Account”). The Bank shall provide the Borrower with a statement of the Borrower’s Line Account, which statement shall be considered to be correct and conclusively binding on both the Bank and the Borrower unless the Bank or Borrower notifies the other to the contrary within 45 days after the Borrower’s receipt of any such statement which it deems to be incorrect.

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2.4 Payments: If any payment required to be made by the Borrower hereunder becomes due and payable on a day other than a Business Day, the due date thereof shall be extended to the next succeeding Business Day and interest thereon shall be payable at the then applicable rate during such extension. All payments required to be made hereunder shall be made to the office of the Bank designated for the receipt of notices herein or such other office as Bank shall from time to time designate.

2.5 Late Payment: In addition to any other rights the Bank may have hereunder, if any payment of principal or interest or any portion thereof, under this Agreement is not paid within 10 days, a late payment charge equal to five percent (5%) of such past due payment may be assessed and shall be immediately payable.

SECTION

3

CONDITIONS PRECEDENT


3.1 Conditions Precedent to the Initial Extension of Credit: The obligation of the Bank to make the initial Advance or the first extension of credit to or on account of the Borrower hereunder is subject to the conditions precedent that the Bank shall have received before the date of such initial Advance or such first extension of credit all of the following, in form and substance satisfactory to the Bank:

  (i) Authority to Borrow. Evidence that the execution, delivery and performance by the Borrower of this Agreement and any document, instrument or agreement required hereunder have been duly authorized.

  (ii) Fees. Payment of all of the Bank’s out-of-pocket expenses in connection with the preparation and negotiation of this Agreement, with supporting documentation provided by Bank to Borrower, not to exceed $5,000.

3.2 Conditions Precedent to All Extensions of Credit: The obligation of the Bank to make each Advance or each other extension of credit, as the case may be, to or on account of the Borrower (including the initial Advance or the first extension of credit) shall be subject to the further conditions precedent that, on the date of each Advance or each extension of credit and after the making of such Advance or extension of credit:

  (i) Reporting Requirements. The Bank shall have received the documents set forth in Section 5.1.

  (ii) Representations and Warranties. The representations contained in Section 4 and in any other document, instrument or certificate delivered to the Bank hereunder are true, correct and complete.

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  (iii) Event of Default. No event has occurred and is continuing which constitutes, or with the lapse of time or giving of notice or both, would constitute an Event of Default.

The Borrower’s acceptance of the proceeds of any loan, Advance or extension of credit, or the Borrower’s applying for any Letter of Credit, or the Borrower’s execution of any document or instrument evidencing or creating any Obligation hereunder shall be deemed to constitute the Borrower’s representation and warranty that all of the above statements are true and correct.

SECTION

4

REPRESENTATIONS AND WARRANTIES

The Borrower hereby makes the following representations and warranties to the Bank, which representations and warranties are continuing:


4.1 Status: The Borrower’s correct legal name is as stated in this Agreement and the Borrower is a corporation duly organized and validly existing under the laws of the state of Delaware and with its chief executive office in the state of California and is properly licensed and is qualified to do business and in good standing in, and, where necessary to maintain the Borrower’s rights and privileges, has complied with the fictitious name statute of every jurisdiction in which the Borrower is doing business.

4.2 Authority: The execution, delivery and performance by the Borrower of this Agreement and any instrument, document or agreement required hereunder have been duly authorized and do not and will not: (i) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having application to the Borrower; (ii) result in a breach of or constitute a default under any material indenture or loan or credit agreement or other material agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or affected; or (iii) require any consent or approval of its stockholders or violate any provision of its articles of incorporation or by-laws.

4.3 Legal Effect: This Agreement constitutes, and any instrument, document or agreement required hereunder when delivered hereunder will constitute, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms.

4.4 Fictitious Trade Styles: Except for the registered tradenames shown on Exhibit “C”, there are no fictitious trade styles used by the Borrower in connection with its business operations. The Borrower shall notify the Bank upon effecting any change in the matters described herein, or any other fictitious trade styles used at any future date, indicating the trade style and state(s) of its use.

4.5 Financial Statements: All financial statements, information and other data which may have been or which may hereafter be submitted by the Borrower to the Bank are true, accurate and correct and have been or will be prepared in accordance with generally accepted accounting principles in effect at the time the statements, information and data were prepared, consistently applied as disclosed in the footnotes and other disclosures accompanying Borrower’s audited financial statements and, and fairly and accurately represent the financial condition or, as applicable, the other information disclosed therein in all material respects. Since the most recent submission of such financial information or data to the Bank, the Borrower represents and warrants that no material adverse change in the Borrower’s financial condition or operations taken as a whole has occurred which has not been fully disclosed to the Bank in writing. With respect to Borrower’s unaudited interim financial statements for the nine months ended September 30, 2003, Bank acknowledges such statements do not contain all of the footnotes and other disclosures required by GAAP and are subject to normal fiscal year-end adjustments.

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4.6 Litigation: Except as have been disclosed to the Bank in writing and in Borrower’s reports to the Securities and Exchange Commission, there are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or the Borrower’s properties before any court or administrative agency which, if determined adversely to the Borrower, would be reasonably expected to have a material adverse effect on the Borrower’s financial condition or operations taken as a whole.

4.7 Title to Assets: The Borrower has good and marketable title to all of its assets and the same are not subject to any security interest, encumbrance, lien or claim of any third person except for Permitted Liens.

4.8 ERISA: If the Borrower has a pension, profit sharing or retirement plan subject to ERISA, such plan has been and will continue to be funded in accordance with its terms and otherwise complies with and continues to comply with the requirements of ERISA.

4.9 Taxes: The Borrower has filed all tax returns required to be filed (or obtained proper extensions to do so) and paid all taxes shown thereon to be due, including interest and penalties, other than such taxes which are currently payable without penalty or interest or taxes, penalties and/or interest which are being duly contested in good faith.

4.10 Margin Stock. The proceeds of any loan or advance hereunder will not be used to purchase or carry margin stock as such term is defined under Regulation U of the Board of Governors of the Federal Reserve System.

4.11 Environmental Compliance. The operations of the Borrower comply, and during the term of this Agreement will at all times comply, in all material respects with all Environmental Laws; the Borrower has obtained all licenses, permits, authorizations and registrations required under any Environmental Law (“Environmental Permits”) to be obtained by Borrower and necessary for its ordinary course operations, all such Environmental Permits are in good standing, and the Borrower is in compliance with all material terms and conditions of such Environmental Permits; neither the Borrower nor any of its present property or operations is subject to any outstanding written order from or agreement with any governmental authority nor subject to any judicial or docketed administrative proceeding, respecting any Environmental Law, Environmental Claim or Hazardous Material; there are no Hazardous Materials or other conditions or circumstances existing, or arising from operations prior to the date of this Agreement, with respect to any property of the Borrower that would reasonably be expected to give rise to any material Environmental Claims; provided, however, that with respect to property leased from an unrelated third party, the foregoing representations are made to the best knowledge of the Borrower. In addition, (i) the Borrower does not have any underground storage tanks that are not properly registered or permitted under applicable Environmental Laws, or that are leaking or disposing of Hazardous Materials off-site, and (ii) to the extent required under Environmental Laws, the Borrower has notified all of their employees of the existence, if any, of any health hazard arising from the conditions of their employment and have met all notification requirements under Title III of CERCLA and all other Environmental Laws.

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SECTION

5

COVENANTS

The Borrower covenants and agrees that, during the term of this Agreement, and so long thereafter as the Borrower is indebted to the Bank under this Agreement, the Borrower will, unless the Bank shall otherwise consent in writing:


5.1 Reporting and Certification Requirements: Deliver or cause to be delivered to the Bank in form and detail satisfactory to the Bank:

  (i) Not later than 120 days after the end of each of the Borrower’s fiscal years, a copy of the annual audited financial report of the Borrower for such year, independently audited by a firm of certified public accountants acceptable to Bank and accompanied by an unqualified opinion of such firm. The Bank approves PricewaterhouseCoopers LLP as an acceptable firm.

  (ii) Not later than 120 days after the end of each of the Borrower’s fiscal years, a copy of the Borrower’s Form 10-K filed with the Securities and Exchange Commission as of the end of such year.

  (iii) Not later than 45 days after the end of each fiscal quarter, a copy of the Borrower’s Form 10-Q filed with the Securities and Exchange Commission as of the end of such period.

  (iv) Concurrently with the delivery of the financial reports required hereunder, a compliance certificate stating that the Borrower is in compliance with all covenants contained herein and that no Event of Default or potential Event of Default has occurred or is continuing, and certified to by the chief financial officer, chief accounting officer or treasurer of the Borrower in the form attached hereto as Exhibit “A”.

  (v) Promptly upon the Bank’s request, such other information pertaining to the Borrower, as the Bank may reasonably request.

5.2 Financial Condition: The Borrower promises and agrees, during the term of this Agreement and until payment in full of all of the Borrower’s Obligations, the Borrower will maintain at all times:

  (i) A minimum Effective Tangible Net Worth of at least $200,000,000.00 plus 100% of the proceeds received subsequent to November 1, 2003 by the Borrower from the public sale or private placement of any capital stock of the Borrower, other than the exercise of employee stock options, plus 50% of the Borrower’s prior fiscal year’s net income after tax as reflected in the annual financial report required hereunder, commencing with fiscal year 2004 for the preceding 2003 fiscal year’s net income.

  (ii) A ratio of Funded Debt to Effective Tangible Net Worth of not more than .40 to 1.

  (iii) A ratio of Cash Flow to the sum of current portion of long term Debt plus interest expense, tax expense and base rental expense of not less than 1.30 to 1, measured at the end of each fiscal quarter with Cash Flow based upon the immediately preceding three fiscal quarters and the current quarter just ended.

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  (iv) Maintain profitability by not allowing any consecutive quarterly losses, excluding the impact of any non-cash extraordinary gains and losses, and gains or losses in which the borrower expects reimbursement from its insurance providers.

5.3 Preservation of Existence; Compliance with Applicable Laws: Maintain and preserve its corporate existence and good standing and all rights and privileges associated therewith under applicable laws, rules and regulations ; and conduct its business and operations in accordance with all applicable laws, rules and regulations.

5.4 Merge or Consolidate: Not liquidate or dissolve, merge or consolidate 33% of its assets or operations with or into, any other business organization The Borrower shall obtain written approval from the Bank before making any controlling acquisitions in an amount greater than $25 million and which is outside of the food service or bakery industries. The Bank acknowledges that any wholly-owned subsidiary of Borrower may liquidate or dissolve or merge or consolidate all or part of its assets or operations, or undertake other commercial and financial transactions with another wholly-owned subsidiary of Borrower if the Borrower determines in good faith that such activities are in the best interests of Borrower and do not disadvantage the Bank without Bank’s prior approval.

5.5 Maintenance of Insurance: Maintain insurance with reputable insurance companies in such amounts and with such deductibles and covering such risks as reasonably determined by Borrower for its operations, utilizing risk management and insurance programs and arrangements that are commercially reasonable for businesses of Borrower’s size and scope of operations. Bank acknowledges that Borrower largely self-insures its workers’ compensation, general liability, employment liability and group medical benefit plan risks, and structures such programs and maintains such retentions and stop-loss coverages as reasonably determined by Borrower from time to time, based on the advice of its professional insurance brokers and actuaries. Upon Bank’s request, Borrower will furnish full information as to its risk management programs and arrangements.

5.6 Payment of Obligations and Taxes: Make timely payment of all assessments and taxes and all of its known liabilities and obligations including, but not limited to, trade payables, unless the same are being contested in good faith. For purposes hereof, the Borrower’s issuance of a check, draft or similar instrument without delivery to the intended payee shall not constitute payment.

5.7 Inspection Rights and Accounting Records: The Borrower will maintain adequate books and records in accordance with generally accepted accounting principles in effect at the time such books and record are prepared, consistently applied and as disclosed in the footnotes and other disclosures accompanying Borrower’s audited financial statements in a manner otherwise reasonably acceptable to Bank, and, during normal business hours and from time to time, permit the Bank or any representative thereof, at Bank’s request to examine and make copies of the records and visit the properties of the Borrower, at not cost to the Borrower as long as there is not an event of default, and discuss the business and operations of the Borrower with Borrower’s chief executive officer, chief financial officer, treasurer or general counsel. If the Borrower shall maintain any records (including, but not limited to, computer generated records or computer programs for the generation of such records) in the possession of a third party, the Borrower, upon written request from Bank, hereby agrees to notify such third party to permit the Bank access to such records at all reasonable times and to provide the Bank with copies of any records which it may reasonably request, all at the Banks’expense. All information provided to Bank shall be kept confidential and shall be disseminated by Bank only on a “need to know” basis within Bank, or as otherwise only as required by law.

5.8 Liens and Encumbrances: Not create, assume or permit to exist any security interest, encumbrance, mortgage, deed of trust, or other lien (including, but not limited to, a lien of attachment, judgment or execution) affecting any of the Borrower’s properties, or execute or allow to be filed any financing statement or continuation thereof affecting any of such properties, except for Permitted Liens or as otherwise provided in this Agreement.

-12-




5.9 Transfer Assets: Not, after the date hereof, sell, contract for sale, convey, transfer, assign, lease or sublet, any of its assets except in the Ordinary Course of Business and, then, only for full, fair and reasonable consideration.

5.10 Change in Nature of Business: Not make any material change in its financial structure or the nature of its business as existing or conducted as of the date hereof, unless Borrower determines in good faith that such change is in the best interests of Borrower and does not disadvantage the Bank.

5.11 Maintenance of Jurisdiction: Borrower shall maintain the jurisdiction of its organization and chief executive office as set forth herein and not change such jurisdiction name or form of organization without 30 days prior written notice to Bank.

5.12 Compensation of Employees: Compensate its employees for services rendered at an hourly rate at least equal to the minimum hourly rate prescribed by any applicable federal or state law or regulation.

5.13 Notice: Give the Bank prompt written notice of any and all (i) Events of Default; (ii) litigation, arbitration or administrative proceedings to which the Borrower is a party and in which the claim or liability would have a material adverse change in the financial condition or business operations of the Borrower taken as a whole and all other matters which have resulted in, or might result in a material adverse change in the financial condition or business operations of the Borrower taken as a whole.

5.14 Environmental Compliance: The Borrower shall conduct its operations and keep and maintain all of its property in material compliance with all Environmental Laws and, upon the written request of the Bank, the Borrower shall submit to the Bank, at the Borrower’s sole cost and expense, at reasonable intervals, a report providing the status of any environmental, health or safety compliance, hazard or liability if there is a reasonable basis to determine that an Environmental Claim is pending or threatened against Borrower.

SECTION

6

EVENTS OF DEFAULT


  Any one or more of the following described events shall constitute an event of default (an “Event of Default”) under this Agreement:

6.1 Non-Payment: Any Borrower shall fail to pay the principal amount of any Obligations when due or interest on the Obligations within 10 days of when due.

6.2 Performance Under This Agreement: The Borrowers shall fail in any material respect to perform or observe any term, covenant or agreement contained in this Agreement or in any document, instrument or agreement relating to this Agreement or any other document or agreement executed by the Borrowers with or in favor of Bank and any such failure shall continue unremedied for more than 30 days after the occurrence thereof.

6.3 Representations and Warranties; Financial Statements: Any representation or warranty made by the Borrower under or in connection with this Agreement or any financial statement given by the Borrower or any guarantor shall prove to have been incorrect in any material respect when made or given or when deemed to have been made or given.

-13-




6.4 Other Agreements: If there is a default under any agreement to which Borrower is a party with the Bank or with a third party or parties resulting in a right by the Bank or such third party or parties, whether or not exercised, to accelerate the maturity on any indebtedness for borrowed money that appears on the Borrower’s balance sheet in an amount in excess of $10 million.

6.5 Insolvency: The Borrower shall: (i) become insolvent or be unable to pay its debts as they mature; (ii) make an assignment for the benefit of creditors or to an agent authorized to liquidate substantially all of its properties and assets; (iii) file a voluntary petition in bankruptcy or seeking reorganization or to effect a plan or other arrangement with creditors; (iv) file an answer admitting the material allegations of an involuntary petition relating to bankruptcy or reorganization or join in any such petition; (v) become or be adjudicated bankrupt; (vi) apply for or consent to the appointment of, or consent that an order be made, appointing any receiver, custodian or trustee, for itself or substantially all of its properties, assets or businesses; or (vii) in an involuntary proceeding, any receiver, custodian or trustee shall have been appointed for all or substantially all of the Borrower’s properties, assets or businesses and shall not be discharged within 30 days after the date of such appointment.

6.6 Execution: Any writ of execution or attachment or any judgment lien shall be issued against any property of the Borrower for the payment of money (except to the extent covered by independent third-party insurance as to which the insurer has not denied coverage) in an amount in excess of $20 million and shall not be discharged or bonded against or released within 45 days after the issuance or attachment of such writ or lien.

6.7 Suspension: The Borrower shall voluntarily suspend the transaction of all or substantially all of its business or allow to be suspended, terminated, revoked or expired any permit, license or approval of any governmental body necessary to conduct all or substantially all of the Borrower’s business as now conducted.

6.8 Material Adverse Change: If there occurs a material adverse change in the Borrower’s business or financial condition, taken as a whole, or if there is a material impairment of the prospect of repayment of any portion of the Obligations,.

6.9 Change in Ownership: There shall occur a sale, transfer, disposition or encumbrance (whether voluntary or involuntary to), or and agreement shall be entered into to do so with, any Person or group of Persons (as such terms are defined pursuant to Federal securities laws) with respect to more than 33% of the issued and outstanding capital stock of the Borrower and, as a result thereof, such Person or group of Persons has the ability to direct or cause the direction of the management and policies of the Borrower.

SECTION

7

REMEDIES ON DEFAULT

Upon the occurrence of any Event of Default, the Bank may, at its sole and absolute election, without demand and only upon such notice as may be required by law:


7.1 Acceleration: Declare any or all of the Borrower’s indebtedness owing to the Bank, whether under this Agreement or any other document, instrument or agreement, immediately due and payable, whether or not otherwise due and payable.

7.2 Cease Extending Credit: Cease making Advances or otherwise extending credit to or for the account of the Borrower under this Agreement or under any other agreement now existing or hereafter entered into between the Borrower and the Bank.

-14-




7.3 Termination: Terminate this Agreement as to any future obligation of the Bank without affecting the Borrower’s obligations to the Bank or the Bank’s rights and remedies under this Agreement or under any other document, instrument or agreement.

7.4 Letters of Credit: Require the Borrower to pay immediately to the Bank, for application against drawings under any outstanding Letters of Credit, the outstanding principal amount of any such Letters of Credit which have not expired. Any portion of the amount so paid to the Bank which is not applied to satisfy draws under any such Letters of Credit or any other obligations of the Borrower to the Bank shall be repaid to the Borrower without interest.

7.5 Non-Exclusivity of Remedies: Exercise one or more of the Bank’s rights set forth herein or seek such other rights or pursue such other remedies as may be provided by law, in equity or in any other agreement now existing or hereafter entered into between the Borrower and the Bank, or otherwise.

SECTION

8

MISCELLANEOUS


8.1 Amounts Payable on Demand: If the Borrower shall fail to pay on demand any amount so payable under this Agreement, the Bank may, at its option and without any obligation to do so and without waiving any default occasioned by the Borrower having so failed to pay such amount, create an Advance under this Agreement in an amount equal to the amount so payable, which Advance shall thereafter bear interest as provided hereunder.

8.2 Default Interest Rate: If an Event of Default, or an event which, with notice or passage of time could become an Event of Default, has occurred or is continuing, the Borrower shall pay to the Bank interest on any Indebtedness or amount payable under this Agreement at a rate which is 3% in excess of the rate or rates then in effect under this Agreement.

8.3 Reliance and Further Assurances: Each warranty, representation, covenant, obligation and agreement contained in this Agreement shall be conclusively presumed to have been relied upon by the Bank regardless of any investigation made or information possessed by the Bank and shall be cumulative and in addition to any other warranties, representations, covenants and agreements which the Borrower now or hereafter shall give, or cause to be given, to the Bank. Borrower agrees to execute all documents and instruments and to perform such acts as the Bank may reasonably deem necessary to confirm and secure to the Bank all rights and remedies conferred upon the Bank by this agreement and all other documents related thereto.

8.4 Attorneys’ Fees: Borrower shall pay to the Bank all incremental out-of-pocket costs and expenses, including but not limited to reasonable attorneys fees, incurred by Bank in connection with the administration, enforcement, including any bankruptcy, appeal or the enforcement of any judgment or any refinancing or restructuring of this Agreement or any document, instrument or agreement executed with respect to, evidencing or securing the indebtedness hereunder.

8.5 Notices: All notices, payments, requests, information and demands which either party hereto may desire, or may be required to give or make to the other party hereto, shall be given or made to such party by hand delivery or through deposit in the United States mail, postage prepaid, or by facsimile delivery, or to such other address as may be specified from time to time in writing by either party to the other.

-15-




            To the Borrower: To the Bank:
THE CHEESECAKE FACTORY INCORPORATED BANK OF THE WEST
26950 Agoura Road Los Angeles (CBC)
Calabasas, CA 91301 300 South Grand Avenue, 7th Floor
Attn: Chief Financial Officer Los Angeles, CA 90071
Attn: Jason Horstman
  
FAX: (818) 871-3109 FAX: (213) 972-0650
  
And in the event of a Notice of Default, with copy to:
THE CHEESECAKE FACTORY INCORPORATED
26950 Agoura Road
Calabasas, CA 91301
Attn. General Counsel
Fax (818) 871-3110

8.6 Waiver: Neither the failure nor delay by the Bank in exercising any right hereunder or under any document, instrument or agreement mentioned herein shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder or under any other document, instrument or agreement mentioned herein preclude other or further exercise thereof or the exercise of any other right; nor shall any waiver of any right or default hereunder, or under any other document, instrument or agreement mentioned herein, constitute a waiver of any other right or default or constitute a waiver of any other default of the same or any other term or provision.

8.7 Conflicting Provisions: To the extent the provisions contained in this Agreement are inconsistent with those contained in any other document, instrument or agreement executed pursuant hereto, the terms and provisions contained herein shall control unless such document, instrument or agreement states that it modifies and amends the terms and conditions of this Agreement. Otherwise, such provisions shall be considered cumulative.

8.8 Binding Effect; Assignment: This Agreement shall be binding upon and inure to the benefit of the Borrower and the Bank and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Bank. With prior written approval of Borrower, which shall not be unreasonably withheld, The Bank may sell, assign or grant participation in up to 40% of its rights and benefits hereunder. The Borrower agrees that, in connection with any such sale, grant or assignment, the Bank may deliver to the prospective buyer, participant or assignee financial statements and other relevant public information relating to the Borrower.

8.9 Jurisdiction: This Agreement, any notes issued hereunder and any documents, instruments or agreements mentioned or referred to herein shall be governed by and construed according to the laws of the State of California without regard to conflict of law principles, to the jurisdiction of whose courts the parties hereby submit.

8.10 Waiver of Jury Trial: THE BORROWER AND THE BANK EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER AND THE BANK EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

-16-




8.11 Counterparts: This Agreement may be executed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument.

8.12 Headings: The headings herein set forth are solely for the purpose of identification and have no legal significance.

8.13 Entire Agreement and Amendments: This Agreement and all documents, instruments and agreements mentioned herein constitute the entire and complete understanding of the parties with respect to the transactions contemplated hereunder. All previous conversations, memoranda and writings between the parties pertaining to the transactions contemplated hereunder not incorporated or referenced in this Agreement or in such documents, instruments and agreements are superseded hereby. This Agreement may be amended only by an instrument in writing signed by the Borrower and the Bank. The Bank and the Borrower may enter into supplemental agreements for the purpose of adding or modifying any provision of this Agreement or changing in any manner the respective rights of Borrower and Bank under this Agreement or waiving any Event of Default hereunder.

8.14 Tax Treatment: The Bank and each employee, representative or other agent of the Bank may disclose to any and all persons without limitation of any kind (1) the tax treatment and tax structure (as those terms are defined in Income Tax Regulations Section 1.6011-4) of this transaction and (2) all materials of any kind (including opinions or other tax analyses) that are provided to the Bank relating to such treatment and tax structure.

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


BANK:

BANK OF THE WEST


BY:  
      ————————————————
NAME: Jason Horstman, Vice President
BORROWER:

THE CHEESECAKE FACTORY INCORPORATED


BY:  
      ——————————————————
NAME: Gerald Deitchle, President


BY:  
      ——————————————————
NAME: Michael Dixon, Chief Financial Officer

-17-



LOAN DISBURSEMENT INSTRUCTIONS

Line of Credit

Date: _____________________, ________

The undersigned hereby instructs BANK OF THE WEST to disburse the proceeds of this loan as shown below:


    DISBURSEMENT   AMOUNT  
         
1 Credited to the following account: All Advances to be credited    
to Account Number ______________________________   $ _______________  
         
2 Paid directly to the Borrower as follows:    
______________________________________________      
  ______________________________________________   $ _______________  
         
3 Pay off the following loan with BANK OF THE WEST:    
______________________________________________   $ _______________  
         
4 Pay off the following loan:    
______________________________________________      
  ______________________________________________   $ _______________  
         
5 Paid to the following third party as indicated:    
______________________________________________      
  ______________________________________________   $ _______________  
         
6 Paid as follows:    
______________________________________________      
  ______________________________________________   $ _______________  
         
7 Paid as follows:    
______________________________________________   $ _______________  
         
8 Paid as follows:    
______________________________________________      
  ______________________________________________   $ _______________  
         
TOTAL:   $ _______________  
         

(Authorizing signatures appear on attached page entitled
“AUTHORIZING SIGNATURES FOR LOAN DISBURSEMENT INSTRUCTIONS”)


-1-



AUTHORIZING SIGNATURES FOR LOAN DISBURSEMENT INSTRUCTIONS

The following signature(s) authorize disbursement of loan proceeds as set forth in the preceding instructions consisting of 1 page.





BORROWER:

THE CHEESECAKE FACTORY INCORPORATED


BY:  
      ——————————————————
NAME:


BY:  
      ——————————————————
NAME:


-2-




Exhibit A – Form of Compliance Certificate


To:   Bank of the West
Commercial Banking Group
300 South Grand Ave., 7th Floor
Los Angeles, CA 90071

This Compliance Certificate is given as of the ________ day of ____________, 200__, pursuant to Section 5.1 (iv)) of the Credit Agreement, (the “Agreement”) between THE CHEESECAKE FACTORY INCORPORATED (“Borrower”) and Bank of the West (“Bank”) dated as of December 31, 2003. Capitalized terms used herein shall have the same meanings attributed to such terms in the Agreement.

The Borrower hereby certifies that:


l. No Event of Default exists and no event has occurred and is continuing which constitutes or, with the lapse of time or giving of notice or both, would constitute an Event of Default.

2. Each of the representations and warranties contained in the Agreement are true and correct as of the date of this Certificate.

3. The Borrower is in compliance with each of the covenants contained in the Agreement.

The attached Covenant Exhibit “I” sets forth the calculations used to determine compliance with certain covenants contained in the Agreement.


BORROWER:


THE CHEESECAKE FACTORY INCORPORATED


BY:__________________________

-3-



Exhibit I

Calculations below are based on the financial statement of Borrower dated: ____________________.

MINIMUM EFFICTIVE TANGIBLE NET WORTH


Net Worth       $    
         
 
Less:   Intangible Assets in excess of $3 million   $    
         
 

(A) Effective Tangible Net Worth:   $    
     
 
         
         
Min. Effective Tangible Net Worth   $ 200,000,000  

Plus:   100% proceeds from public sale or
or private sale of capital stock
  $    
         
 
Plus:   50% cumulative year end net income
commencing with fiscal year 2004
  $    
         
 

(B) Min. Effective Tangible Net Worth:   $    
     
 
         

(A) is greater than (B)



RATIO OF FUNDED DEBT TO EFFECTIVE TANGIBLE NET WORTH        
         
(A) Funded Debt   $    
     
 
(B) Effective Tangible Net Worth   $    
     
 

-4-



Ratio (A) divided by (B):        
     
 


Ratio of funded debt to effective tangible net worth not more than 0.40:1.00.


CASH FLOW RATIO (Based on Rolling 4 Quarters)


Net Income before tax     $    
     
 
Plus: Interest Expense   $    
     
 
Plus: Depreciation and Amortization Expense   $    
     
 
Plus: Base (minimum) Rental Expense   $    
     
 
Minus: Dividends and Distributions   $    
     
 
(A) Subtotal Cash Flow   $    
     
 
Divided by:            
 
Current Portion of Long Term Debt   $    
         
 
Plus:   Interest Expenses   $    
         
 
Plus:   Tax Expense   $    
         
 
Plus:   Base (minimum) Rent Expense   $    
         
 
(B) Subtotal:   $    
     
 
Ratio (A) divided by (B):        
     
 

Ratio not less than 1.30:1.00 measured at the end of each fiscal quarter with Cash Flow based on the immediately preceding three fiscal quarters and the current quarter just ended



LOSSES        
 
Net Profit after tax (current quarter)   $    
     
 
Net Profit after tax (preceding quarter)   $    
     
 

Not allow any consecutively quarterly losses. Net Profit excludes the impact of any non-cash extraordinary gains and losses, and gains or losses in which the Borrower expects reimbursement from its insurance providers.

-5-



Exhibit B – Outstanding Letters of Credit as of the Closing Date



Letter of Credit Number Letter of Credit Amount

MB60510418   $3,800,000.00  

MB60510506   $3,700,000.00  

MB60510630   $3,000,000.00  

MB60510286   $1,000,000.00
 

     Total   $11,500,000.00  


-6-



Exhibit C – Registered Trade Names

THE CHEESECAKE FACTORY ASSETS CO., LLC


Trademark Report by Mark   Printed: 11/5/2003   Page 1  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
 
AMERICA’S FINEST CHEESECAKE                      
UNITED STATES   C2902-5018       10/29/1999   75/835,939   11/14/2000   2,404,937   REGISTERED   30  
    11/14/2006   AFFIDAVIT OF USE                  
 
BUFFALO BLASTS                      
UNITED STATES   C2902-5065       12/31/2002   76/479,311           PENDING   29  
    12/5/2003   RESPONSE TO OA                  
 
BUFFALO CHICKEN ROLLS                      
UNITED STATES   C2902-5064       12/30/2002   76/479,399           PENDING   29  
    11/28/2003   RESPONSE TO OA                  
 
CHOCOLATE MINT TRUFFLE                      
UNITED STATES   C2902-5042       7/12/1999   75/748,318   7/31/2001   2,474,606   REGISTERED   30  
    7/31/2006   SECT. 15 DECLARATION                  
 
CHOCOLATE RASPBERRY TRUFFLE                      
UNITED STATES   C2902-5023       10/12/1995   74/004,451   2/11/1997   2,036,710   REGISTERED   30  
    2/11/2007   RENEWAL                  
 
CHOCOLATE TUXEDO CREAM                      
UNITED STATES   C2902-5056       1/16/2002   76/359,018           PENDING   30  
 
EDGE OF THE PLATE                      
UNITED STATES   C2902-5045       8/18/2000   76/112,171           ABANDONED   41  
 
UNITED STATES   C2902-5046       8/18/2000   76/112,170   11/12/2002   2,650,244   REGISTERED   30  
    11/12/2007   SECT. 15 DECLARATION                  
 
UNITED STATES   C2902-5047       9/8/2000   76/124,866           ABANDONED   35  
 
GRAND LUX CAFÉ                      
CANADA   C2902-7125       1/31/2000   1044447           ALLOWED   42  
    1/31/2004   EXTEND DECL. OF USE                  
 
UNITED KINGDOM   C2902-7130       7/22/2002   2305929   7/22/2002   2305929   REGISTERED   30,43  
    1/22/2004   STATUS CHECK                  
 
UNITED STATES   C2902-5028       7/23/1997   75/329,284   10/5/1999   2,283,807   REGISTERED   42  
    10/5/2005   AFFIDAVIT OF USE                  

-7-



Trademark Report by Mark   Printed: 11/5/2003   Page 2  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
 
GRAND LUX CAFE (STYLIZED)                      
UNITED STATES   C2902-5009       8/13/1999   75/776,036   9/5/2000   2,383,025   REGISTERED   42  
    9/5/2005   SECT 15 DECLARATION                  
 
UNITED STATES   C2902-5013       8/13/1999   75/776,037           ALLOWED   21,25,26  
                                30  
    7/2/2002   STATEMENT OF USE                  
 
GRAND LUX CAFE AND DESIGN                      
UNITED STATES   C2902-5008       8/13/1999   75/776,549   10/10/2000   2,393,314   REGISTERED   42  
    10/10/2006   AFFIDAVIT OF USE                    
 
UNITED STATES   C2902-5012       8/13/1999   75/774,759           ALLOWED   21,25,26  
                                30  
    7/2/2002   STATEMENT OF USE                  
 
GREAT WORLD FOODS                      
UNITED STATES   C2902-5036       10/27/1997   75/379,890   8/13/2002   2,607,751   REGISTERED   30  
    8/13/2007   SECT. 15 DECLARATION                  
 
GREAT WORLD FOODS CLASSIC CREATIONS                      
UNITED STATES   C2902-5031       10/27/1997   75/379,853   9/21/1999   2,279,947   REGISTERED   3  
    9/21/2005   AFFIDAVIT OF USE                  
 
GREAT WORLD FOODS CLASSIC CREATIONS AND DESIGN                  
UNITED STATES   C2902-5040       1/14/1999   75/620,969   11/28/2000   2,407,807   REGISTERED   30  
    11/28/2005   SECT. 15 DECLARATION                  
 
GREAT WORLD FOODS CLASSIC CREATIONS DELECTABLES                  
UNITED STATES   C2902-5034       7/13/1998   75/517,832           ABANDONED   30  
 
GREAT WORLD FOODS CLASSIC CREATIONS DELECTABLES AND DESIGN              
UNITED STATES   C2902-5041       1/14/1999   75/620,968           ABANDONED   30  
 
STARCUPS                      
UNITED STATES   C2902-5048       11/10/2000   76/162,773           ABANDONED   30  
 
THE CHEESECAKE FACTORY                      
ARGENTINA   C2902-7001       8/8/1996   2032823   12/15/1998   1.710.332   REGISTERED   30  
    12/15/2003   PROOF OF USE                  
 
ARGENTINA   C2902-7002       8/8/1996   2032824   9/4/1998   1.685.646   REGISTERED   42  
    9/4/2008   RENEWAL                  

-8-



Trademark Report by Mark   Printed: 11/5/2003   Page 3  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
ARUBA   C2902-7004       1/27/1998   IM-980127.13   3/13/1998   18957   REGISTERED   30  
    1/27/2008   RENEWAL                      
 
AUSTRIA   C2902-7006                       PROPOSED      
 
BAHAMAS   C2902-7007       1/3/1997   19,152   11/3/1997   19,152   REGISTERED   42  
    1/3/2011   RENEWAL                      
 
BAHRAIN   C2902-7008       8/30/1993   16710   8/30/1993   16710   REGISTERED   30  
    8/30/2013   RENEWAL                      
 
BAHRAIN   C2902-7009       5/26/1993   SM1174   5/26/1993   SM1174   REGISTERED   42  
    5/26/2013   RENEWAL                      
 
BARBADOS   C2902-7010       1/1/1998   81/7573   7/15/1998   81/7573   REGISTERED   30  
    7/15/2008   RENEWAL                      
 
BENELUX   C2902-7011       6/3/1993   798303   6/3/1993   530733   REGISTERED   30,42  
    6/3/2003   RENEWAL                      
 
BERMUDA   C2902-7012       1/23/1996   27529   1/23/1996   27529   REGISTERED   30  
    1/23/2017   RENEWAL                      
 
BOLIVIA   C2902-7013                       PROPOSED   30  
 
BRAZIL   C2902-7014       7/26/1995   818645539   11/23/1999   818645539   REGISTERED   42  
    11/23/2004   PROOF OF USE                      
 
BRAZIL   C2902-7107       7/26/1995   818645520   6/6/2000   818645520   REGISTERED   30  
    6/6/2005   PROOF OF USE                      
 
CANADA   C2902-7015       8/26/1988   0613935   2/4/1998   TMA489259   REGISTERED   30,42  
    2/4/2013   RENEWAL                      
 
CHILE   C2902-7115       9/1/1995   322,210           ABANDONED   42  
 
CHILE   C2902-7105       12/15/1997   322209           PENDING   30  
 
CHILE   C2902-7106                       PROPOSED      
 
CHINA   C2902-7020           9050806           ABANDONED   30  
 
CHINA   C2902-7108           94050834           ABANDONED   42  
 
COLOMBIA   C2902-7021       9/29/1995   95045474           PENDING   30  
 
COSTA RICA   C2902-7022       9/18/1995   N/A           ABANDONED   30  

-9-



Trademark Report by Mark   Printed: 11/5/2003   Page 4  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
CYPRUS   C2902-7023                       PROPOSED      
 
CZECH REPUBLIC   C2902-7024       5/21/1996   201479   5/21/1996   201479   REGISTERED   30  
    5/21/2006   RENEWAL                      
 
DENMARK   C2902-7025       10/22/1993   VA 04.9341993   10/22/1993   VR 07.537 1993   REGISTERED   30  
    10/22/2013   RENEWAL                      
 
DOMINICAN   C2902-7026       7/15/1998   98,086   7/15/1998   98,086   REGISTERED   30  
    7/15/2013   RENEWAL                      
 
ECUADOR   C2902-7030       10/20/1995   61752   7/30/1997   DNPI178097MICIP   REGISTERED   30  
    7/30/2007   RENEWAL                      
 
EGYPT   C2902-7028       4/26/1993   86643   1/27/1998   86643   REGISTERED   30  
    4/26/2013   RENEWAL                      
 
EGYPT   C2902-7118       4/26/1993   86644   1/27/1998   86644   REGISTERED   42  
    4/26/2013   RENEWAL                      
 
EL SALVADOR   C2902-7029       7/24/1996   E-3162-96   1/26/1998   146/BK67   REGISTERED   30  
    1/26/2008   RENEWAL                      
 
ESTONIA   C2902-7031       7/29/1997   9701697   2/25/1999   28268   REGISTERED   30  
    2/25/2004   PROOF OF USE                      
 
EUROPEAN UNION   C2902-7032       4/1/1996   21592   6/10/1998   000021592   REGISTERED   30,42,25  
    4/1/2006   RENEWAL                      
 
FINLAND   C2902-7033       10/1/1993   4917/93           ABANDONED   30  
 
FRANCE   C2902-7034       2/16/1993   93455405   2/16/1993   93455405   REGISTERED   30,42  
    2/15/2013   PRIORITY DEADLINE                  
 
GERMANY   C2902-7035       3/1/1993   C44801/30Wz           ABANDONED   30  
 
GREECE   C2902-7037       5/8/1995   124220   12/17/1997   124220   REGISTERED   30,42  
    8/17/2004   PROOF OF USE                      
 
GUATEMALA   C2902-7038       2/2/1996   27529   10/2/1998   092351   REGISTERED   30  
    10/2/2008   RENEWAL                      
 
HAITI   C2902-7039                       PROPOSED      
 
HONDURAS   C2902-7040       1/31/1997   11,918/95   1/31/1997   67,378   REGISTERED   30  
    1/31/2007   RENEWAL                      
 
HONG KONG   C2902-7041       1/3/1994   12/94   1/3/1994   B9836/35   REGISTERED   42  
    1/3/2015   RENEWAL                      

-10-



Trademark Report by Mark   Printed: 11/5/2003   Page 5  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
HONG KONG   C2902-7042       1/3/1994   11/94   3/20/2000   B4482/2000   REGISTERED   30  
    1/3/2015   RENEWAL                      
 
HUNGARY   C2902-7043       5/22/1996   M9601576   5/22/1996   149,381   REGISTERED   30,42  
    5/22/2006   RENEWAL                      
 
ICELAND   C2902-7044                       PROPOSED      
 
INDIA   C2902-7045       9/12/1997   768,965           PENDING   30  
    9/12/2004   RENEWAL                      
 
INDONESIA   C2902-7046       1/10/1996   381989   8/15/1997   381989   REGISTERED   42  
    7/10/2005   RENEWAL                      
 
INDONESIA   C2902-7047       3/6/1996   376345   7/7/1997   376345   REGISTERED   30  
    9/6/2005   RENEWAL                      
 
ISRAEL   C2902-7049       3/24/1993   86823   5/10/1995   86823   REGISTERED   30  
    3/24/2014   RENEWAL                      
 
ISRAEL   C2902-7050       3/24/1993   86824   5/10/1995   86824   REGISTERED   42  
    3/24/2014   RENEWAL                      
 
ITALY   C2902-7051       6/9/1993   MI93C 004250   2/9/1996   670094   REGISTERED   30,42  
    6/9/2003   RENEWAL                      
 
JAMAICA   C2902-7052       4/6/1998   30/2345   4/6/1998   B32,586   REGISTERED   30  
    4/6/2005   RENEWAL                      
 
JAMAICA   C2902-7127       1/23/2002   41,909           PENDING   43  
    1/23/2012   RENEWAL                      
 
JAPAN   C2902-7055       5/23/1997   22223/93   5/23/1997   3313487   REGISTERED   42  
    5/23/2007   RENEWAL                      
 
JORDAN   C2902-7056       5/22/1993   32145   5/22/1993   2413   REGISTERED   30  
    5/22/2014   RENEWAL                      
 
KUWAIT   C2902-7058       9/29/1993   27541       25482   REGISTERED   30  
    9/29/2013   RENEWAL                      
 
KUWAIT   C2902-7122       8/31/1997   37619   12/28/2001   33989   REGISTERED   42  
    12/28/2006   PROOF OF USE                      
 
LATVIA   C2902-7059       9/15/1997   M-97-1615   11/20/1998   M42473   REGISTERED   30  
    9/15/2007   RENEWAL                      
 
LEBANON   C2902-7060       5/20/1993   60711           PENDING   30,42  
    5/20/2008   RENEWAL                      

-11-



Trademark Report by Mark   Printed: 11/5/2003   Page 6  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
LITHUANIA   C2902-7061       9/15/1997   97-2763   7/1/1999   33761   REGISTERED   30  
    9/15/2007   RENEWAL                      
 
MACAO   C2902-7076       9/15/1995   15,228   10/9/1995   15,228   REGISTERED   30  
    10/9/2005   RENEWAL                      
 
MALAYSIA   C2902-7112           95/13272           PENDING   30  
 
MEXICO   C2902-7062       12/23/1991   425157   11/11/1992   425157   REGISTERED   42  
 
MEXICO   C2902-7063       12/23/1991   454270   3/15/1994   454270   REGISTERED   30  
 
MOROCCO   C2902-7064       4/6/1995   56350   4/6/1995   56350   REGISTERED   30  
    4/6/2015   RENEWAL                      
 
NETHERLANDS   C2902-7065       2/6/1998   20549   2/24/1998   01397   REGISTERED   30  
    2/6/2008   RENEWAL                      
 
NEW ZEALAND   C2902-7066       5/9/1994   236745   1/17/1997   236745   REGISTERED   30  
    5/9/2015   RENEWAL                      
 
NEW ZEALAND   C2902-7116       5/9/1994   236746   1/17/1997   236746   REGISTERED   42  
    5/9/2015   RENEWAL                      
 
NICARAGUA   C2902-7067       11/29/1996   32,602 C.C.   11/29/1996   32,602 C.C.   REGISTERED   30  
    11/28/2006   RENEWAL                      
 
NORWAY   C2902-7068       3/7/1996   19961552   3/13/1997   180641   REGISTERED   30  
    3/13/2007   RENEWAL                      
 
OMAN   C2902-7123       8/16/1993   8751           PENDING   30  
    8/16/2013   RENEWAL                      
 
OMAN   C2902-7124       8/16/1993   8752           PENDING   42  
    8/16/2013   RENEWAL                      
 
PANAMA   C2902-7070       3/1/1995   76839   10/11/1996   76839   REGISTERED   42  
    10/11/2006   RENEWAL                      
 
PANAMA   C2902-7069       10/11/1996   76842   10/11/1996   76842   REGISTERED   30  
    10/11/2006   RENEWAL                      
 
PARAGUAY   C2902-7071       8/20/1995   95/15160           PENDING   30  
 
PERU   C2902-7072       7/24/1995   260034   7/24/1995   019361   REGISTERED   30  
    7/24/2005   RENEWAL                      
 
PERU   C2902-7073       7/24/1995   260035   7/24/1995   004995   REGISTERED   42  
    7/24/2005   RENEWAL                      

-12-



Trademark Report by Mark   Printed: 11/5/2003   Page 7  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
PHILIPPINES   C2902-7074       6/18/1997   121752   2/27/2002   4-1997-121752   REGISTERED   42  
    2/27/2007   PROOF OF USE                      
 
PHILIPPINES   C2902-7075       12/26/1995   104827   7/12/2000   4-1995-107157   REGISTERED   30  
    7/12/2005   5TH ANN AFFIDAV DUE                  
 
PORTUGAL   C2902-7077       11/24/1993   296,402   2/3/1995   296,402   REGISTERED   30  
    2/3/2005   RENEWAL                      
 
PUERTO RICO   C2902-7079       8/14/1998   43,533   8/14/1998   43,533   REGISTERED   30  
    8/14/2008   RENEWAL                      
 
PUERTO RICO   C2902-7111       8/14/1998   43,534   8/14/1998   43,534   REGISTERED   42  
    8/14/2008   RENEWAL                      
 
QATAR   C2902-7080       6/12/1993   10925   6/13/2000   10925   REGISTERED   42  
    6/13/2005   PROOF OF USE                      
 
QATAR   C2902-7081       6/12/1993   10926   6/13/2000   10926   REGISTERED   30  
    6/13/2005   PROOF OF USE                      
 
SAUDI ARABIA   C2902-7084       1/1/1994   18243           PENDING   30  
    3/1/2013   RENEWAL                      
 
SAUDI ARABIA   C2902-7085       1/1/1994   18244           PENDING   42  
    3/1/2013   RENEWAL                      
 
SINGAPORE   C2902-7086       2/9/1994   B1164/94   2/9/1994   B1164/94   REGISTERED   42  
    2/9/2004   RENEWAL                      
 
SINGAPORE   C2902-7087       7/7/1999   3626/98   7/7/1999   T99/06950I   REGISTERED   30  
    7/7/2009   RENEWAL                      
 
SLOVAK REPUBLIC   C2902-7110       5/28/1996   184019   1/21/1999   184019   REGISTERED   25,30,42  
    1/21/2004   PROOF OF USE                      
 
SOUTH AFRICA   C2902-7088       1/17/1996   96/0571   1/3/2002   1996/00571   REGISTERED   42  
    1/17/2006   RENEWAL                      
 
SOUTH AFRICA   C2902-7089       12/13/1995   95/16510   12/3/2001   1995/16510   REGISTERED   30  
    12/13/2005   RENEWAL                      
 
SOUTH AFRICA   C2902-7126       9/7/1995   1995/11826   9/7/1995   1995/11826   REGISTERED   42  
    9/7/2005   RENEWAL                      
 
SOUTH KOREA   C2902-7057       9/25/1995   94-7284   7/20/1995   317695   REGISTERED   30  
    7/20/2005   RENEWAL                      
 
SOUTH KOREA   C2902-7117       1/1/1995   84-1431           PENDING   42  

-13-



Trademark Report by Mark   Printed: 11/5/2003   Page 8  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
SPAIN   C2902-7090       4/23/1993   1757742   1/5/1995   1757742   REGISTERED   42  
    4/23/2013   RENEWAL                      
 
SPAIN   C2902-7091           1,757,741           ABANDONED   30  
 
SWEDEN   C2902-7092           93-07025           ABANDONED   30  
 
SWITZERLAND   C2902-7093       4/1/1993   410.850   7/26/1994   410.850   REGISTERED   30,42  
    4/1/2013   RENEWAL                      
 
TAIWAN   C2902-7113           83022767           ABANDONED   30  
 
TANGIERS   C2902-7095       4/6/1995   10.314   4/6/1995   10.314   REGISTERED   30  
    4/6/2015   RENEWAL                      
 
THAILAND   C2902-7096       3/3/1994   261217   3/3/1994   SM2531   REGISTERED   42  
    3/3/2004   RENEWAL                      
 
THAILAND   C2902-7114           261216           ABANDONED   30  
 
TRINIDAD & TOBAGO C2902-7097       8/6/1997   27305   6/22/2000   B27305   REGISTERED   30  
    6/22/2005   PROOF OF USE                      
 
TURKEY   C2902-7119                       PROPOSED   30  
 
TURKEY   C2902-7120                       PROPOSED   42  
 
TURKS & CAICOS   C2902-7121           N/A   1/16/1997   11,415   REGISTERED   30  
    1/16/2011   RENEWAL                      
 
UNITED ARAB EMR   C2902-7099       12/11/1993   3859   12/11/1993   4458   REGISTERED   42  
    12/11/2003   RENEWAL                      
 
UNITED ARAB EMR   C2902-7100       12/8/1993   3833   12/8/1993   4455   REGISTERED   30  
    12/8/2003   RENEWAL                      
 
UNITED ARAB EMR   C2902-7027                       PROPOSED      
 
UNITED KINGDOM   C2902-7036       12/23/1992   1522222   12/23/1992   1522222   REGISTERED   42  
    12/23/2009   RENEWAL                      
 
UNITED KINGDOM   C2902-7109       3/1/1995   2008427           ABANDONED   30  
 
UNITED STATES   C2902-5027       4/6/1988   720,776   7/25/1989   1,549,370   REGISTERED   30,42  
    7/25/2009   RENEWAL                      
 
UNITED STATES   C2902-5029       1/10/1994   74/477,285   11/29/1994   1,864,786   REGISTERED   25  
    11/29/2004   RENEWAL                      

-14-



Trademark Report by Mark   Printed: 11/5/2003   Page 9  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
THE CHEESECAKE FACTORY continued...  
 
URUGUAY   C2902-7101       9/1/1995   280809   9/29/1999   280809   REGISTERED   30  
    9/29/2009   RENEWAL                      
 
VENEZUELA   C2902-7102       8/3/1995   11409/95           PENDING   30  
 
YEMEN   C2902-7104       10/29/1994   6419   1/13/1997   6076   REGISTERED   30  
    10/29/2004   RENEWAL                      
 
YEMEN   C2902-7103       7/19/1995   7037   9/30/1997   7650   REGISTERED   42  
    7/19/2005   RENEWAL                      
 
THE CHEESECAKE FACTORY & DESIGN                      
CHILE   C2902-7019       12/10/1998   435033           PENDING   30  
 
THE CHEESECAKE FACTORY (STYLIZED)                      
UNITED STATES   C2902-5016       10/7/1999   75/817,365   12/12/2000   2,412,280   REGISTERED   21,25,26  
                                30,42  
    12/12/2005   SECT. 15 DECLARATION                  
 
UNITED STATES   C2902-5017       10/7/1999   75/817,122   1/16/2001   2,421,042   REGISTERED   21,25,26  
                                30,42  
    1/16/2006   SECT. 15 DECLARATION                  
 
UNITED STATES   C2902-5026       11/3/1980   73/284,328   3/9/1982   1,191,891   REGISTERED   42  
    3/9/2012   RENEWAL                      
 
THE CHEESECAKE FACTORY AND DESIGN                      
POLAND   C2902-7078       6/17/1996   Z-161007   4/21/2000   115102   REGISTERED   30  
    6/17/2006   RENEWAL                      
 
SAUDI ARABIA   C2902-7083       1/1/1994   18242           PENDING   30  
    3/1/2013   RENEWAL                      
 
SOVIET UNION   C2902-7082       11/20/1998   N/A   4/26/2000   187901   REGISTERED   30  
    4/26/2005   PROOF OF USE                      
 
UNITED STATES   C2902-5033       7/7/1998   75/514,625   6/15/1999   2,253,746   REGISTERED   30  
    6/15/2005   AFFIDAVIT OF USE                  
 
UNITED STATES   C2902-5014       8/27/1999   75/786,795           ABANDONED   25  
 
THE CHEESECAKE FACTORY AND KATAKANA                      
JAPAN   C2902-7054       7/4/1997   33131/93   7/4/1997   4023722   REGISTERED   42  
    7/4/2007   RENEWAL                      

-15-



Trademark Report by Mark   Printed: 11/5/2003   Page 10  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
 
THE CHEESECAKE FACTORY AND STARBURST DESIGN                  
UNITED STATES   C2902-5007       12/9/1999   76/013,143   2/27/2001   2,431,696   REGISTERED   30  
    2/27/2006   SECT. 15 DECLARATION                  
 
THE CHEESECAKE FACTORY BAKERY (STYLIZED)                      
UNITED STATES   C2902-5015       9/14/1999   75/799,391   7/18/2000   2,368,776   REGISTERED   30  
    7/18/2006   AFFIDAVIT OF USE                  
 
THE CHEESECAKE FACTORY BAKERY CAFÉ                      
UNITED STATES   C2902-5011       8/13/1999   75/774,760   3/27/2001   2,439,508   REGISTERED   25,26  
    3/27/2006   SECT. 15 DECLARATION                  
 
UNITED STATES   C2902-5025       9/29/1997   75/364,984   9/15/1998   2,189,465   REGISTERED   42  
    9/15/2004   AFFIDAVIT OF USE                  
 
THE CHEESECAKE FACTORY BAKERY CAFE AND DESIGN                  
UNITED STATES   C2902-5006       8/13/1999   75/776,042   10/10/2000   2,393,311   REGISTERED   42  
    10/10/2006   AFFIDAVIT OF USE                  
 
THE CHEESECAKE FACTORY CHEESECAKE TRUFFLES                  
UNITED STATES   C2902-5037       11/28/1997   75/397,049   1/25/2000   2,312,373   REGISTERED   30  
    1/25/2005   SECT. 15 DECLARATION                  
 
THE CHEESECAKE FACTORY CHEESECAKE TRUFFLES ASSORTMENT              
UNITED STATES   C2902-5038       1/12/1998   75/416,194   2/8/2000   2,315,364   REGISTERED   30  
    2/8/2005   SECT 15 DECLARATION                  
 
THE CHEESECAKE FACTORY DELECTABLES                      
UNITED STATES   C2902-5039       1/26/1998   75/423,264   3/13/2001   2,435,549   REGISTERED   30  
    3/13/2006   SECT. 15 DECLARATION                  
 
THE CHEESECAKE FACTORY DEVICE                      
AUSTRALIA   C2902-7005       1/1/1997   663274           ABANDONED   30  
 
THE CHEESECAKE FACTORY EXPRESS                      
UNITED STATES   C2902-5010       8/27/1999   75/786,797   6/5/2001   2,458,443   REGISTERED   25,26  
    6/5/2006   SECT. 15 DECLARATION                  
 
UNITED STATES   C2902-5030       9/30/1997   75/365,591   5/4/1999   2,243,795   REGISTERED   42  
    5/4/2005   AFFIDAVIT OF USE                  

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Trademark Report by Mark   Printed: 11/5/2003   Page 11  
COUNTRY REFERENCE#   FILED APPL# REGDT REG# STATUS CLASSES  
  Next Action Due  
 
THE CHEESECAKE FACTORY EXPRESS AND DESIGN                  
UNITED STATES   C2902-5005       8/13/1999   75/774,761   10/10/2000   2,393,307   REGISTERED   42  
    10/10/2006   AFFIDAVIT OF USE                  
 
THE CHEESECAKE FACTORY GRAND CAFÉ                  
UNITED STATES   C2902-5035       9/30/1997   75/365,592           ABANDONED   35  
 
THE CHEESECAKE FACTORY WITH DEVICE                  
TAIWAN   C2902-7094       6/2/1994   83022762   6/16/1995   76001   REGISTERED   42  
    6/16/2005   RENEWAL                  
 
THE DREAM FACTORY                      
UNITED STATES   C2902-5051       3/14/2001   76/226,075   7/29/2003   2,741,019   REGISTERED   30,35  
    7/29/2008   SECT. 15 DECLARATION                  
 
TRIPLE CHOCOLATE BROWNIE TRUFFLE                  
UNITED STATES   C2902-5024       6/23/1997   75/312,680   3/24/1998   2,146,893   REGISTERED   30  
    3/24/2004   AFFIDAVIT OF USE                  
 
WHITE CHOCOLATE LEMON TRUFFLE                      
UNITED STATES   C2902-5022       10/13/1995   75/005,126   1/7/1997   2,028,492   REGISTERED   30  
    1/7/2007   RENEWAL                  
 
WHITE CHOCOLATE RASPBERRY TRUFFLE                      
UNITED STATES   C2902-5021       11/16/1992   74/331,164   3/14/1995   1,883,744   REGISTERED   30  
    3/14/2005   RENEWAL                  
 
WOMAN AND CHILDREN DESIGN                      
UNITED STATES   C2902-5032       6/25/1998   75/508,640   3/2/1999   2,229,150   REGISTERED   30  
    3/2/2005   AFFIDAVIT OF USE                  
 
  END OF TOTAL ITEMS SELECTED   165  

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Exhibit D – Bank’s Schedule of Charges for Commercial Letters of Credit



Import Letters of Credit      

Issuance   1/8% per quarter, min $120  

Cash secured Express Import L/C issuance   1/8% per quarter or part thereof min. $150.00  

Cable fee for issuance   $60.00  

Excessive details   $100.00  

Amendment (increase/extension)   1/8% per quarter, min $90  

Amendment (other)   $90.00  

Cable fee for amendment   $30.00  

Examination/Payment (per set of documents)   1/8% per set of docs, min $100  

Discrepancy Fee (per set of documents) payable by the beneficiary   $60.00  

Unused (Expired or cancelled)   $75.00  

Acceptance commission (per draft)   1.5% p.a. per draft,. Or as arranged min $100.00  

Indemnifications: Release of Goods  

Ocean Bill of Lading   For each quarter $75.00  

Airway Bill   Flat 75.00  

Export Letters of Credit  

Pre-Advice   $75.00  

Advice of Authenticated Original Export L/C   $75.00  

Confirmation   by arrangement  

Amendment   $65.00  

Document Examination & Payment   1/10% per set of documents. Min.$100  

Discrepancy Fee (for beneficiary)   $60.00  

Usance (Acceptance) L/C draft drawn on BOW   1.0% p.a. min. $100.00  

Deferred Payment - Confirmed   1.0% p.a. min. $100  

Deferred Payment - Unconfirmed   $100.00  

Tracer to issuing/confirming Bank   $30.00  

Unused (Expired or cancelled)   $80.00  

Transferable L/C Fee   1/4% amount, min $150.00  

Excessive details   $100.00  

Authorization to Pay   1/4% of amount, min.$150.00  

Documentary Collections  

Incoming Collections (Import)  

   D/P Sight (paid/unpaid)   $90.00  

   D/A Usance (paid/unpaid)   $110.00  

Partial payment   $50.00  

   Monthly Maintenance Fee For Carrying Unpaid   after first month $40.00 per month  

   Tracers including telex   First free then $30.00  

   Protest   $100 + notary fee  

Outgoing Collections (Export)  

   D/P Sight (paid/unpaid)   $90.00  

   D/A Usance (paid/unpaid)   $110.00  

   Monthly Maintenance Fee For Carrying Unpaid   after first month $40.00 per month  

Tracer including telex   First free then $30.00 ea.  

   Export Direct Collections   Manual $60.00; PC $50.00  

Amendment to instructions   $50.00  

Miscellaneous Fees  

Fax - Domestic and Foreign (1 to 5 pages)   $5.00  

Fax - Domestic and Foreign (6 to 10 pages)   $10.00  

Fax - Domestic and Foreign (beyond 10 pages)   $ 1.00 each page  

Postage (Domestic)   $10.00  

Postage (Foreign)   $20.00  

Courier/Express (Domestic)   $20.00  

Courier/Express (Foreign)   $40.00  

Handling Charge-Using Customer’s Courier   $10.00  

Processing payment by official check   $25.00  

Consultative Fees/Special Handling  Standard fee plus $ 100.00 per hour min. $100.00  


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