CREDIT AGREEMENT dated as of October 12, 2006 between OSI RESTAURANT PARTNERS, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION
$50,000,000.00
dated
as
of
October
12, 2006
between
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
WCSR
3448952v3
AGREEMENT
dated as of October 12, 2006 among OSI RESTAURANT PARTNERS, INC. and
WACHOVIA BANK, NATIONAL ASSOCIATION.
The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION
1.01. Definitions.
The
terms as defined in this Section 1.01 shall, for all purposes of this
Agreement and any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the meanings set forth
herein:
“Advance”
shall mean an advance made by the Bank to the Borrower under this Agreement
pursuant to Article II. An Advance is a “Base Rate Advance” if such Advance is a
Base Rate Loan or a “Euro-Dollar Advance” if such Advance is a Euro-Dollar
Loan.
“Agreement”
means this Credit Agreement, together with all amendments and supplements
hereto.
“Applicable
Margin” means 0.55%.
“Authority”
has the meaning set forth in Section 7.02.
“Bank”
means Wachovia Bank, National Association, and its successors and
assigns.
“Base
Rate” means for any Base Rate Loan for any day, the rate per annum equal to the
higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent
above the Federal Funds Rate for such day. For purposes of determining the
Base
Rate for any day, changes in the Prime Rate and the Federal Funds Rate shall
be
effective on the date of each such change.
“Base
Rate Loan” means the Loan on any day when the Loan bears or is to bear interest
at a rate based upon the Base Rate.
“Borrower”
means OSI Restaurant Partners, Inc. (formerly known as Outback Steakhouse,
Inc.), a Delaware corporation, and its successors and permitted assigns.
“Change
of Law” shall have the meaning set forth in Section 7.02.
“Closing
Date” means October 12, 2006.
WCSR
3448952v3
“Commitment”
means $50,000,000.00 as such amount may be reduced from time to time pursuant
to
this Agreement.
“Compliance
Certificate” has the meaning set forth in Section 5.01(c).
“Consolidated
Subsidiary” means at any date any Subsidiary or other entity the accounts of
which, in accordance with GAAP, would be consolidated with those of the Borrower
in its consolidated financial statements as of such date.
“Default”
means any condition or event which constitutes an Event of Default or which
with
the giving of notice or lapse of time or both would, unless cured or waived
in
writing, become an Event of Default.
“Default
Rate” means, with respect to the Loan, on any day, the sum of 2% plus the Base
Rate applicable for such day.
“Dollars”
or “$” means dollars in lawful currency of the United States of
America.
“Domestic
Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in North Carolina are authorized or required by law to close.
“Euro-Dollar
Loan” means the Loan on any day when the Loan bears or is to bear interest at a
rate based upon the LIBOR Market Index Rate.
“Event
of
Default” has the meaning set forth in Section 6.01.
“Existing
Credit Agreement” means that certain Amended and Restated Credit Agreement dated
March 10, 2006 by and among the Borrower, the Banks party thereto, Wachovia
Bank, National Association, as Agent, Wachovia Capital Markets, LLC, as Sole
Arranger, SunTrust Bank, as Syndication Agent, and Bank of America, N.A. and
▇▇▇▇▇ Fargo Bank, National Association, as Co-Documentation Agents, as in effect
on the date hereof without regard and without giving effect to any waivers
given
by the Banks (as defined in the Existing Credit Agreement) or amendments agreed
to by the Borrower and the Banks (as defined in the Existing Credit Agreement).
Any definitions, terms, covenants, representations or other provisions of the
Existing Credit Agreement that are incorporated herein will continue to be
effective for purposes of this Agreement and the other Loan Documents,
notwithstanding that the indebtedness under the Existing Credit Agreement has
been or hereafter may be partially or fully repaid or the fact that the Existing
Credit Agreement otherwise might be terminated.
“Federal
Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to the next higher 1/100th of 1%) equal to the weighted average
of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the day for which such rate is to
be
determined is not a Domestic Business Day, the Federal Funds Rate for such
day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on
the
next succeeding Domestic Business Day, and (ii) if such rate is not so published
WCSR
3448952v3
2
for
any
day, the Federal Funds Rate for such day shall be the average rate charged
to
the Bank on such day on such transactions as determined by the
Bank.
“Fiscal
Quarter” means any fiscal quarter of the Borrower.
“Fiscal
Year” means any fiscal year of the Borrower.
“FMA
Agreement” means any financial management account agreement now or hereafter
entered into between the Bank and Borrower and all amendments and modifications
thereto.
“GAAP”
means generally accepted accounting principles applied on a basis consistent
with those which, in accordance with Section 1.02, are to be used in making
the
calculations for purposes of determining compliance with the terms of this
Agreement.
“Guarantors”
shall mean collectively: (a) the Initial Guarantors; and (b) all Material
Domestic Subsidiaries acquired, formed or otherwise in existence after the
Closing Date.
“Guaranty”
means the Guaranty Agreement executed by each of the Guarantors substantially
in
the form of Exhibit B hereto, either as originally executed or as it may be
from
time to time supplemented, modified, amended, renewed, extended or restated
from
time to time.
“Initial
Guarantors” shall mean Outback Steakhouse of Florida, Inc.; Carrabba’s Italian
Grill, Inc.; Outback Steakhouse International, Inc.; OS Capital, Inc.; OS
Pacific, Inc.; OS Prime, Inc.; OS Tropical, Inc.; and Bonefish Grill,
Inc.
“Interest
Payment Date” means December 29, 2006 and March 30, 2007.
“Lending
Office” means, as to the Bank, its office located at its address set forth on
the signature page hereof (or identified on the signature page hereof as its
Lending Office) or such other office as the Bank may hereafter designate as
its
Lending Office by notice to the Borrower.
“LIBOR
Market Index Rate” means for any Euro-Dollar Loan, for any day, the rate for 1
month U.S. dollar deposits as reported on Telerate page 3750 as of
11:00 a.m., London time, on such day, or if such day is not a London
Business Day, then the immediately preceding London Business Day (or if not
so
reported, then as determined by the Bank from another recognized source or
interbank quotation). For purposes of determining the LIBOR Market Index Rate
for any day, changes in the LIBOR Market Index Rate shall be effective on the
date of each such change.
“Loan”
means the aggregate outstanding Advances made by the Bank to the Borrower under
this Agreement. The Loan shall at all times be a Euro-Dollar Loan, unless such
Loan is to be a Base Rate Loan pursuant to Article VII herein.
WCSR
3448952v3
3
“Loan
Documents” means this Agreement, the Note, the Guaranty, any other document
evidencing, relating to or securing the Loan and any other document or
instrument delivered from time to time in connection with this Agreement, the
Note, the Guaranty or the Loan, as such documents and instruments may be amended
or supplemented from time to time.
“Loan
Parties” means collectively the Borrower and each Subsidiary of the Borrower
that is now or hereafter a party to any of the Loan Documents.
“London
Business Day” means any Domestic Business Day on which dealings in Dollar
deposits are carried out in the London interbank market.
“Material
Adverse Effect” means, with respect to any event, act, condition or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), whether singly or
in
conjunction with any other event or events, act or acts, condition or
conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and
its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of
the
Bank under the Loan Documents, or the ability of the Borrower to perform its
obligations under the Loan Documents to which it is a party, as applicable,
or
(c) the legality, validity or enforceability of any Loan Document.
“Material
Domestic Subsidiaries” means each Domestic Subsidiary with total assets of
$40,000,000 or more; provided that in the event that, at any time, the total
assets of all Domestic Subsidiaries which are not then Guarantors (the
“Non-Guarantor Domestic Subsidiaries”), in the aggregate, is equal to or greater
than $120,000,000, the Borrower shall so notify the Bank and promptly thereafter
(but in any event within 30 days after the date thereof) shall cause any such
Non-Guarantor Domestic Subsidiary which has total assets equal to or greater
than $24,000,000 to take the actions and deliver the documents required by
Section 5.02 and thereafter such Subsidiaries shall be
“Guarantors.”
“Note”
means a promissory note of the Borrower, substantially in the form of Exhibit
A
hereto, evidencing the obligation of the Borrower to repay the Loan, together
with all amendments, consolidations, modifications, renewals and supplements
thereto.
“Obligations”
means the collective reference to all indebtedness, obligations and liabilities
to the Bank, existing on the date of this Agreement or arising thereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, of the Loan Parties under this
Agreement or any other Loan Document.
“Officer’s
Certificate” has the meaning set forth in Section 3.01(c).
“Prime
Rate” refers to that interest rate so denominated and set by the Lender from
time to time as an interest rate basis for borrowings. The Prime Rate is but
one
of several
WCSR
3448952v3
4
interest
rate bases used by the Lender. The Lender lends at interest rates above and
below the Prime Rate.
“Subsidiary”
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by the Borrower.
“Termination
Date” means March 30, 2007.
SECTION
1.02. Accounting
Terms and Determinations.
Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and
all financial statements required to be delivered hereunder shall be prepared
in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower’s independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Bank, unless with respect to any such change concurred in by the
Borrower’s independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other
Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii)
the
Bank shall so object in writing within 30 days after the delivery of such
financial statements, in either of which events such calculations shall be
made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
objection is made in respect of the first financial statements delivered under
Section 5.01 hereof, shall mean the financial statements for the Fiscal Year
ending December 31, [2005]).
SECTION
1.03. Use
of
Defined Terms.
All
terms defined in this Agreement shall have the same meanings when used in any
of
the other Loan Documents, unless otherwise defined therein or unless the context
shall otherwise require.
SECTION
1.04. Terminology.
All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and the plural shall include the singular. Titles of Articles
and Sections in this Agreement are for convenience only, and neither limit
nor
amplify the provisions of this Agreement.
SECTION
1.05. References.
Unless
otherwise indicated, references in this Agreement to “Articles”, “Exhibits”,
“Schedules”, and “Sections” are references to articles, exhibits, schedules and
sections hereof.
SECTION
1.06. Definitions
in Existing Credit Agreement.
The
following terms when used in this Agreement or any of the other Loan Documents
shall, unless otherwise defined herein, have the same meanings as set forth
in
the Existing Credit Agreement: “Affiliate”, “Capital Stock”, “CERCLA”,
“CERCLIS”, “Code”, “Company Owned Restaurants”, “Consolidated Interest Expense”,
“Consolidated Net Income”, “Consolidated Net Worth”,
WCSR
3448952v3
5
“Consolidated
Total Assets”, “Consolidated Total Debt”, “Control”, “Controlled Group”, “Debt”,
“Depreciation and Amortization”, “Development Joint Venture”, “Domestic
Subsidiary”, “EBITDAR”, “Environmental Authority”, “Environmental
Authorizations”, “Environmental Judgments and Orders”, “Environmental Laws”,
“Environmental Liabilities”, “Environmental Notices”, “Environmental
Proceedings”, “Environmental Releases”, “Environmental Requirements”, “ERISA”,
“Foreign Subsidiary”, “Guarantee”, “Hazardous Materials”, “Investment”, “Lien”,
“Margin Stock”, “Multiemployer Plan”, “Net Income”, “Participating Subsidiary”,
“PBGC”, “Permitted Acquisition”, “Permitted Consolidations, Mergers and Sales of
Assets”, “Permitted Liens”, “Permitted Loans and Advances”, “Permitted
Securitization”, “Person”, “Plan”, “Priority Debt”, “Properties”, “Purchase
Money Note”, “Receivables Subsidiary”, “Redeemable Preferred Stock”,
“Securitization Assets”, “Securitization Documents”, “Securitization Facility
Attributed Debt”, “Standard Securitization Undertakings”, “Stockholders Equity”,
“Synthetic Lease Indebtedness”, “Synthetic Lease Transaction”, “Taxes” and
“Third Parties”.
|
ARTICLE
II
|
THE
CREDITS
SECTION
2.01. Commitment
to Make Advances.
The
Bank agrees, on the terms and conditions set forth herein, to make Advances
to
the Borrower from time to time before the Termination Date; provided that,
immediately after each such Advance is made, the aggregate outstanding principal
amount of all Advances by the Bank shall not exceed the amount of its
Commitment. Within the foregoing limits, the Borrower may borrow under this
Section, repay or, to the extent permitted by Section 2.08, prepay all or any
portion of the Loan and reborrow under this Section at any time before the
Termination Date.
SECTION
2.02. Method
of Borrowing Advances.
(a) The
Bank
is hereby authorized to make Advances under this Credit Agreement upon
telephonic or written communication of a request from any Person representing
himself or herself to be a duly authorized officer or representative of the
Borrower; provided that, except as otherwise provided in a FMA Agreement, the
Borrower shall make any such request for an Advance not later than 2:00 p.m.
(Charlotte, North Carolina time) on the Domestic Business Day such Advance
is to
be disbursed.
(b) Unless
the Bank determines that any applicable condition specified in Article III
has
not been satisfied, the Bank will make the funds corresponding to such Advance
available to the Borrower at the Bank’s aforesaid address.
(c) Notwithstanding
anything to the contrary contained in this Agreement, no Advance may be
requested if there shall have occurred an Event of Default, which Event of
Default shall not have been cured or waived in writing.
SECTION
2.03. [Intentionally
Omitted]
WCSR
3448952v3
6
SECTION
2.04. Note.
(a) The
Loan
of the Bank shall be evidenced by a single Note payable to the order of the
Bank
for the account of its Lending Office in an amount equal to the original
principal amount of the Bank’s Commitment.
(b) The
Bank
shall record, and prior to any transfer of its Note shall endorse on the
schedule forming a part thereof appropriate notations to evidence, the date,
amount and maturity of, and effective interest rate for, each Advance made
by
it, the date and amount of each payment of principal made by the Borrower with
respect thereto, and such schedule shall constitute rebuttable presumptive
evidence of the principal amount owing and unpaid on such Bank’s Note;
provided
that the
failure of any Bank to make, or any error in making, any such recordation or
endorsement shall not affect the obligation of the Borrower hereunder or under
the Note or the ability of the Bank to assign its Note. The Bank is hereby
irrevocably authorized by the Borrower so to endorse its Note and to attach
to
and make a part of the Note a continuation of any such schedule as and when
required.
SECTION
2.05. Maturity
of Loan.
The
Loan shall mature, and the entire outstanding principal amount thereof shall
be
due and payable, on the Termination Date.
SECTION
2.06. Interest
Rates.
(a) On
each
day on which the Loan is a Euro-Dollar Loan, such Euro-Dollar Loan shall bear
interest on the outstanding principal amount thereof, at a rate per annum equal
to the sum of: (1) the Applicable Margin, plus (2) the Libor Market Index Rate
for such day, as that rate may change from day to day. Any overdue principal
of
and, to the extent permitted by applicable law, overdue interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid
in full at a rate per annum equal to the Default Rate.
(b) On
each
day on which the Loan is a Base Rate Loan, such Base Rate Loan shall bear
interest on the outstanding principal amount thereof, at a rate per annum equal
to the Base Rate for such day plus the Applicable Margin. Any overdue principal
of and, to the extent permitted by applicable law, overdue interest on any
Base
Rate Loan shall bear interest, payable on demand, for each day until paid in
full at a rate per annum equal to the Default Rate.
(c) The
Loan
shall at all times be a Euro-Dollar Loan unless the Loan is to be a Base Rate
Loan pursuant to Article VII herein. Interest shall be payable on each Interest
Payment Date; provided that: (1) all accrued unpaid interest on the Loan shall
be paid in full on the Termination Date; and (2) should the Commitment be
terminated at any time prior to the Termination Date for any reason, any and
all
accrued unpaid interest shall be paid on the date of such
termination.
(d) The
Bank
shall determine each interest rate applicable to the Loan hereunder.
(e) After
the
occurrence and during the continuance of a Default, the principal amount of
the
Loan (and, to the extent permitted by applicable law, all accrued interest
thereon)
WCSR
3448952v3
7
may,
at
the election of the Bank, bear interest at the Default Rate; provided, however,
that automatically whether or not the Bank elects to do so, any overdue
principal of and, to the extent permitted by law, overdue interest on the Loan
shall bear interest payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
SECTION
2.07. Mandatory
Reduction and Termination of Commitment.
The
Commitment shall terminate on the Termination Date and the entire outstanding
principal amount of the Loan then outstanding (together with accrued interest
thereon) shall be due and payable on such date.
SECTION
2.08. Optional
Prepayments.
(a) The
Borrower may prepay all or any portion of the principal of the Loan at any
time,
or from time to time by paying the principal amount to be prepaid together
with
all accrued interest hereunder and any other sums then due from the Borrower
to
the Bank under this Agreement.
(b) Upon
receipt of a notice of prepayment pursuant to this Section, such notice shall
not thereafter be revocable by the Borrower.
SECTION
2.09. Mandatory
Prepayments.
On each
date on which the Commitment is reduced or terminated pursuant to
Section 2.07, the Borrower shall repay or prepay such principal amount of
the outstanding Loan, if any (together with interest accrued thereon), as may
be
necessary so that after such payment the entire unpaid principal amount of
the
Loan does not exceed the aggregate amount of the Commitment as then reduced.
SECTION
2.10. General
Provisions as to Payments.
(a) Unless
otherwise provided in a FMA Agreement, the Borrower shall make each payment
of
principal of, and interest on, the Loan and any fees payable hereunder, not
later than 11:00 A.M. (Charlotte, North Carolina time) on the date when due,
in
Federal or other funds immediately available in Charlotte, North Carolina,
to
the Bank at its address referred to in Section 8.01.
(b) Unless
otherwise provided in a FMA Agreement, whenever any payment of principal of,
or
interest on, the Loan or of any fees payable hereunder shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All
payments of principal, interest and fees and all other amounts to be made by
the
Borrower pursuant to this Agreement with respect to the Loan or fees relating
thereto shall be paid without deduction for, and free from, any tax, imposts,
levies, duties, deductions, or withholdings of any nature now or at anytime
hereafter imposed by any governmental authority or by any taxing authority
thereof or therein excluding in the case of the Bank, taxes imposed on or
measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which the Bank is organized or any political
subdivision thereof
WCSR
3448952v3
8
and,
in
the case of the Bank, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction of the Bank’s applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being “Taxes”). In the event
that the Borrower is required by applicable law to make any such withholding
or
deduction of Taxes with respect to the Loan, or fee or other amount, the
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to the Bank in respect of which such deduction
or withholding is made all receipts and other documents evidencing such payment
and shall pay to the Bank additional amounts as may be necessary in order that
the amount received by the Bank after the required withholding or other payment
shall equal the amount the Bank would have received had no such withholding
or
other payment been made. If no withholding or deduction of Taxes are payable
in
respect of the Loan or fees relating thereto, the Borrower shall furnish the
Bank, at the Bank’s request, a certificate from each applicable taxing authority
or an opinion of counsel acceptable to the Bank, in either case stating that
such payments are exempt from or not subject to withholding or deduction of
Taxes. If the Borrower fails to provide such original or certified copy of
a
receipt evidencing payment of Taxes or certificate(s) or opinion of counsel
of
exemption, the Borrower hereby agrees to compensate the Bank for, and indemnify
them with respect to, the tax consequences of the Borrower’s failure to provide
evidence of tax payments or tax exemption.
In
the
event the Bank receives a refund of any Taxes paid by the Borrower pursuant
to
this Section 2.10, it will pay to the Borrower the amount of such refund
promptly upon receipt thereof; provided,
however,
if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 2.10 shall
be applicable with respect to any participant, assignee or other Transferee,
and
any calculations required by such provisions (i) shall be made based upon the
circumstances of such participant, assignee or other Transferee, and (ii)
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Note.
SECTION
2.11. Computation
of Interest.
Interest on the Loan shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed.
ARTICLE
III
CONDITIONS
TO BORROWINGS
SECTION
3.01. Conditions
to Closing.
The
Borrower shall satisfy the following conditions on the Closing
Date:
(a) receipt
by the Bank from the Borrower of a duly executed counterpart of this Agreement
signed by the Borrower;
(b) receipt
by the Bank of a duly executed Note for the account of the Bank complying with
the provisions of Section 2.04;
WCSR
3448952v3
9
(c) receipt
by the Bank of all documents which the Bank may reasonably request relating
to
the existence of each Loan Party, the corporate authority for and the validity
of each Loan Document to which it is a party, and any other matters relevant
hereto, all in form and substance satisfactory to the Bank, including without
limitation a certificate of incumbency of such Loan Party (the “Officer’s
Certificate”), signed by the Secretary or an Assistant Secretary of such Loan
Party, substantially in the form of Exhibit C hereto, certifying as to the
names, true signatures and incumbency of the officer or officers of such Loan
Party authorized to execute and deliver the Loan Documents to which it is a
party, and certified copies of the following items: (i) such Loan Party’s
Certificate of Incorporation, (ii) such Loan Party’s Bylaws, (iii) a certificate
of the Secretary of State of the State of such Loan Party’s organization as to
the good standing of such Loan Party as a corporation, and (iv) the action
taken
by the Board of Directors of such Loan Party authorizing such Loan Party’s
execution, delivery and performance of this Agreement, the Note and the other
Loan Documents to which such Loan Party is a party;
(d) receipt
by the Bank of the Guaranty, duly executed by each Guarantor; and
(e) such
other documents or items as the Bank or its counsel may reasonably
request.
SECTION
3.02. Conditions
to All Advances.
The
obligation of each Bank to make an Advance on the occasion of each Advance
is
subject to the satisfaction of the following conditions:
(a) receipt
by the Bank of notice from the Borrower requesting such Advance;
(b) the
fact
that, immediately before and after such Advance, no Event of Default shall
have
occurred and be continuing;
(c) the
fact
that the representations and warranties of the Borrower contained in Article
IV
of this Agreement shall be true on and as of the date of such Advance;
and
(d) the
fact
that the representations and warranties of the Loan Parties contained in the
Guaranty shall be true on and as of the date of such Advance; and
(e) the
fact
that, immediately after such Advance the entire outstanding principal amount
of
the Loan will not exceed the amount of the Commitment as of such date.
Each
request by the Borrower for an Advance hereunder shall be deemed to be a
representation and warranty by the Borrower on the date such Advance is
disbursed by the Bank to the Borrower as to the truth and accuracy of the facts
specified in clauses (b), (c) and (d) of this Section.
WCSR
3448952v3
10
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants that (a) the representations and warranties
contained in the Existing Credit Agreement are true and correct in all material
respects; and (b) no Default (as defined in the Existing Credit Agreement)
or
Event of Default (as defined in the Existing Credit Agreement), nor any act,
event, condition or circumstance, which with the passage of time or the giving
of notice, or both, would constitute an Event of Default (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement or any other
Loan
Document (as defined in the Existing Credit Agreement) has occurred and is
continuing unwaived on the date hereof.
ARTICLE V
COVENANTS
The
Borrower agrees that, so long as the Bank has any Commitment hereunder, or
any
amount payable under the Note remains unpaid:
SECTION
5.01. Information.
The
Borrower will deliver to the Bank:
(a) as
soon
as available and in any event within 90 days after the end of each Fiscal Year,
a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such Fiscal Year and the related consolidated statements of
income, shareholders’ equity and cash flows for such Fiscal Year, setting forth
in each case in comparative form the figures for the previous Fiscal Year,
all
certified by PricewaterhouseCoopers, LLP or other independent public accountants
of nationally recognized standing, with such certification to be free of
exceptions and qualifications not acceptable to the Bank;
(b) as
soon
as available and in any event within 45 days after the end of each of the first
3 Fiscal Quarters of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Quarter
and the related statement of income and statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer
or
the chief accounting officer of the Borrower;
(c) simultaneously
with the delivery of each set of financial statements referred to in clauses
(a)
and (b) above, a certificate, substantially in the form of Exhibit D (a
“Compliance Certificate”), of the chief financial officer or the chief
accounting officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance on
the
date of such financial statements, with the requirements of Sections 5.03
through 5.08, inclusive, 5.11
and
5.26 of
the
Existing Credit Agreement, (ii) identifying the complete name and jurisdiction
of incorporation of each Subsidiary of the
WCSR
3448952v3
11
Borrower
created, formed or acquired during the time period covered by such financial
statements; (iii) identifying the Domestic Subsidiaries; and (iv) stating
whether any Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(d) simultaneously
with the delivery of each set of annual financial statements referred to in
clause (a) above, a statement of the firm of independent public accountants
which reported on such statements to the effect that nothing has come to their
attention to cause them to believe that any Default existed on the date of
such
financial statements;
(e) within
5
Domestic Business Days after the Borrower becomes aware of the occurrence of
any
Default, a certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(f) promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so
mailed;
(g) promptly
upon the filing thereof, copies of all registration statements (other than
the
exhibits thereto and any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Borrower shall have filed
with the Securities and Exchange Commission;
(h) if
and
when the Borrower or any member of the Controlled Group (i) gives or is required
to give notice to the PBGC of any “reportable event” (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give notice
of any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate or appoint a trustee to administer any Plan, a copy
of
such notice;
(i) promptly
after the Borrower knows of the commencement thereof, notice of any litigation,
dispute or proceeding involving a claim against the Borrower and/or any
Subsidiary for $1,000,000 or more in excess of amounts covered in full by
applicable insurance; and
(j) from
time
to time such additional information regarding the financial position or business
of the Borrower and its Subsidiaries as the Bank may reasonably request.
SECTION
5.02. Subsidiaries.
(a) The
Borrower shall cause any Person which becomes a Material Domestic Subsidiary
after the Closing Date to become a party to, and agree to be bound by the terms
of, the Guaranty pursuant to an instrument in form and substance satisfactory
to
the Bank executed and delivered to the Bank within ten (10) Domestic Business
Days after the day on which such
WCSR
3448952v3
12
Person
became a Material Domestic Subsidiary. The Borrower shall also cause the items
specified in Section 3.01(c) to be delivered to the Bank concurrently with
the
instrument referred to above, modified appropriately to refer to such instrument
and such Material Domestic Subsidiary.
(b) Once
any
Subsidiary becomes a Material Domestic Subsidiary and therefore becomes a party
to the Guaranty in accordance with Section 3.01(d) or Section 5.02(a), such
Material Domestic Subsidiary (including, without limitation, all initial
Material Domestic Subsidiaries) thereafter shall remain a party to the Guaranty,
even if such Subsidiary thereafter ceases to be a Material Domestic Subsidiary;
provided that if a Material Domestic Subsidiary ceases to be a Subsidiary of
the
Borrower as a result of the Borrower’s transfer or sale of one hundred percent
(100%) of the capital stock of such Subsidiary in accordance with and to the
extent permitted by the terms of Section 5.11 of the Existing Credit Agreement,
the Bank agrees to release such Subsidiary from the Guaranty.
SECTION
5.03. Existing
Credit Agreement.
The
Borrower covenants and agrees that from the date hereof and until payment in
full of the Loan, and the payment in full of all other amounts owing under
this
Agreement and the other Loan Documents, the Borrower shall observe, perform
and
fulfill, for the benefit of the Bank, all of those covenants and agreements,
as
the same are in effect on the date hereof, contained in the Existing Credit
Agreement, as in effect on the date hereof, the provisions of which (including,
where pertinent, the defined terms used in other Sections of the Existing Credit
Agreement referenced, in such Sections) are incorporated herein by reference,
without regard and without giving effect to any waivers given by the Banks
(as
defined in the Existing Credit Agreement) with respect to, or amendments agreed
to by the Borrower and the Banks (as defined in the Existing Credit Agreement)
of any of such covenants and agreements, which covenants and agreements the
Borrower will continue to observe, perform and fulfill for the benefit of the
Bank notwithstanding that the indebtedness under the Existing Credit Agreement
has been or hereafter may be partially or fully repaid or the fact that the
Existing Credit Agreement otherwise might be terminated.
ARTICLE
VI
DEFAULTS
SECTION
6.01. Events
of Default.
If one
or more of the following events (“Events of Default”) shall have occurred and be
continuing:
(a) the
Borrower shall fail to pay when due any principal of the Loan or shall fail
to
pay any interest on the Loan within five Domestic Business Days after such
interest shall become due, or shall fail to pay any fee or other amount payable
hereunder within five Domestic Business Days after such fee or other amount
becomes due; or
(b) the
Borrower or any Subsidiary shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.12, inclusive of the Existing Credit
Agreement, or Section 5.15 or 5.20 to 5.26, inclusive of the Existing Credit
Agreement; or
WCSR
3448952v3
13
(c) any
Loan
Party shall fail to observe or perform any covenant or agreement contained
or
incorporated by reference in any Loan Document (other than those covered by
clause (a) or (b) above) for thirty days after the earlier of (i) the first
day
on which such Loan Party has knowledge of such failure or (ii) written notice
thereof has been given to the Borrower by the Bank; or
(d) any
representation, warranty, certification or statement made or deemed made by
any
Loan Party in any Loan Document or in any certificate, financial statement
or
other document delivered pursuant to any Loan Document shall prove to have
been
incorrect or misleading in any material respect when made (or deemed made);
or
(e) the
Borrower or any Subsidiary shall fail to make any payment in respect of Debt
outstanding (other than the Note) in an aggregate principal amount in excess
of
$10,000,000 when due or within any applicable grace period; or
(f) any
event
or condition shall occur which results in the acceleration of the maturity
of
Debt outstanding of the Borrower or any Subsidiary in an aggregate principal
amount in excess of $10,000,000 or the mandatory prepayment or purchase of
such
Debt by the Borrower (or its designee) or such Subsidiary (or its designee)
prior to the scheduled maturity thereof, or enables (or, with the giving of
notice or lapse of time or both, would enable) the holders of such Debt or
any
Person acting on such holders’ behalf to accelerate the maturity thereof or
require the mandatory prepayment or purchase thereof prior to the scheduled
maturity thereof, without regard to whether such holders or other Person shall
have exercised or waived their right to do so; or
(g) the
Borrower, any Loan Party or any Subsidiary shall commence a voluntary case
or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the
appointment of or taking possession by any such official in an involuntary
case
or other proceeding commenced against it, or shall make a general assignment
for
the benefit of creditors, or shall fail generally, or shall admit in writing
its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an
involuntary case or other proceeding shall be commenced against the Borrower,
any Loan Party or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order
for
relief shall be entered against the Borrower, any other Loan Party or any
Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
or
(i) the
Borrower or any member of the Controlled Group shall fail to pay when due any
material amount which it shall have become liable to pay to the PBGC or to
a
Plan
WCSR
3448952v3
14
under
Title IV of ERISA; or notice of intent to terminate a Plan or Plans shall be
filed under Title IV of ERISA by the Borrower, any member of the Controlled
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans to
enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not
have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that
any such Plan or Plans must be terminated; or
(j) one
or
more judgments or orders for the payment of money in an aggregate amount in
excess of $500,000 shall be rendered against the Borrower or any Subsidiary
and
such judgment or order shall continue unsatisfied and unstayed for a period
of
30 days; or
(k) a
federal
tax lien shall be filed against the Borrower or any Subsidiary under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA and in either case
such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(l) (i) any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the
outstanding shares of the voting stock of the Borrower; or (ii) as of any
date a majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of
which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
(m) if
any
provision of this Agreement, the Note or the Guaranty, shall for any reason
cease to be valid and binding on any Loan Party, or any Loan Party shall deny
or
disaffirm its obligations thereunder; or
(n) the
occurrence of a Default (as defined in the Existing Credit Agreement) or an
Event of Default (as defined in the Existing Credit Agreement) under the
Existing Credit Agreement; or
(o) any
event
of default shall occur and be continuing under the Guaranty and such event
of
default continues beyond any applicable cure or grace period provided
therein.
then,
and
in every such event, the Bank may (i) by notice to the Borrower terminate
the Commitment and it shall thereupon terminate, and (ii) by notice to the
Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Note (together with all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind,
WCSR
3448952v3
15
all
of
which are hereby waived by the Borrower; provided
that if
any Event of Default specified in clause (g) or (h) above occurs with respect
to
the Borrower, without any notice to the Borrower, any Guarantor or any other
act
by the Bank, the Commitment shall thereupon automatically terminate and the
Note
(together with accrued interest thereon) and all other amounts payable hereunder
and under the other Loan Documents shall automatically become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower. Notwithstanding the foregoing,
the Bank shall have available to it all other remedies at law or equity, and
shall exercise any one or all of them at the request of the Bank.
ARTICLE
VII
CHANGE
IN
CIRCUMSTANCES; COMPENSATION
SECTION
7.01. Basis
for Determining Interest Rate Inadequate or Unfair.
If:
(a) the
Bank
determines that deposits in Dollars (in the applicable amounts) are not being
offered in the relevant market for a 1 month period; or
(b) the
Bank
determines that the LIBOR Market Index Rate will not adequately and fairly
reflect the cost to the Bank of funding a Euro-Dollar Loan, the Bank shall
forthwith give notice thereof to the Borrower, whereupon until the Bank notifies
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of the Bank to make a Euro-Dollar Loan shall be suspended.
Unless the Borrower notifies the Bank before a Euro-Dollar Advance is disbursed
that it elects not to borrow such Euro-Dollar Advance, such borrowing shall
instead be made as a Base Rate Advance.
SECTION
7.02. Illegality.
If,
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change in any existing or future law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such authority, bank or agency being referred to
as
an “Authority” and any such event being referred to as a “Change of Law”), or
compliance by the Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority shall make it unlawful
or impossible for the Bank (or its Lending Office) to make, maintain or fund
its
Euro-Dollar Loan, the Bank shall forthwith give notice thereof to the Borrower,
whereupon until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of the Bank to make
the
Euro-Dollar Loan shall be suspended. Before giving any notice pursuant to this
Section, the Bank shall designate a different Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of
the
Bank, be otherwise disadvantageous to the Bank. If the Bank shall determine
that
it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of the Bank, together with accrued interest thereon.
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from the Bank, and the
Bank
shall make such a Base Rate Loan.
WCSR
3448952v3
16
SECTION
7.03. Increased
Cost and Reduced Return.
(a) If
after
the date hereof, a Change of Law or compliance by the Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall
subject the Bank (or its Lending Office) to any tax, duty or other charge with
respect to its Euro-Dollar Loan, its Note or its obligation to make a
Euro-Dollar Loan, or shall change the basis of taxation of payments to the
Bank
(or its Lending Office) of the principal of or interest on its Euro-Dollar
Loan
or any other amounts due under this Agreement in respect of its Euro-Dollar
Loan
or its obligation to make the Euro-Dollar Loan (except for changes in the rate
of tax on the overall net income of the Bank or its Lending Office imposed
by
the jurisdiction in which the Bank’s principal executive office or Lending
Office is located); or
(ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by
the
Board of Governors of the Federal Reserve System) against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its Lending
Office); or
(iii) shall
impose on the Bank (or its Lending Office) or on the London interbank market
any
other condition affecting the Euro-Dollar Loan, its Note or its obligation
to
make Euro-Dollar Loans;
and
the
result of any of the foregoing is to increase the cost to the Bank (or its
Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the
amount of any sum received or receivable by the Bank (or its Lending Office)
under this Agreement or under the Note with respect thereto, by an amount deemed
by the Bank to be material, then, within 15 days after demand by the Bank,
the Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such increased cost or reduction.
(b) If
the
Bank shall have determined that after the date hereof the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
in
any existing or future law, rule or regulation, or any change in the
interpretation or administration thereof, or compliance by the Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have
the
effect of reducing the rate of return on the Bank’s capital as a consequence of
its obligations hereunder to a level below that which the Bank could have
achieved but for such adoption, change or compliance (taking into consideration
the Bank’s policies with respect to capital adequacy) by an amount deemed by the
Bank to be material, then from time to time, within 15 days after demand by
the Bank, the Borrower shall pay to the Bank such additional amount or amounts
as will compensate the Bank for such reduction.
(c) The
Bank
will promptly notify the Borrower of any event of which it has knowledge,
occurring after the date hereof, which will entitle the Bank to compensation
pursuant to this Section and will designate a different Lending Office if such
designation will avoid the
WCSR
3448952v3
17
need
for,
or reduce the amount of, such compensation and will not, in the judgment of
the
Bank, be otherwise disadvantageous to the Bank. A certificate of the Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Bank may use any reasonable
averaging and attribution methods.
(d) The
provisions of this Section 7.03 shall be applicable with respect to any
participant, assignee or other Transferee, and any calculations required by
such
provisions shall be made based upon the circumstances of such participant,
assignee or other Transferee.
SECTION
7.04. Base
Rate Loan Substituted for Euro-Dollar Loan.
If
(i) the obligation of the Bank to make or maintain a Euro-Dollar Loan has
been suspended pursuant to Section 7.02 or (ii) the Bank has demanded
compensation under Section 7.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days’ prior notice to the Bank, have elected that the
provisions of this Section shall apply to the Bank, then, unless and until
the
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer apply the Loan which would otherwise be
a
Euro-Dollar Loan shall be instead a Base Rate Loan. In the event that the
Borrower shall elect that the provisions of this Section shall apply, the
Borrower shall remain liable for, and shall pay to the Bank as provided herein,
all amounts due the Bank under Section 7.03 in respect of the period preceding
the date of conversion of the Bank’s Loan resulting from the Borrower’s
election.
ARTICLE VIII
MISCELLANEOUS
SECTION
8.01. Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including facsimile transmission or similar writing) and shall be
given
to such party at its address or telecopy number set forth on the signature
pages
hereof or such other address or telecopy number as such party may hereafter
specify for the purpose by notice to each other party. Each such notice, request
or other communication shall be effective (i) if given by telecopier, when
such
telecopy is transmitted to the telecopy number specified in this Section and
the
telecopy machine used by the sender provides a written confirmation that such
telecopy has been so transmitted or receipt of such telecopy transmission is
otherwise confirmed, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, and (iii) if given by any other means, when delivered
at
the address specified in this Section; provided that notices to the Bank under
Article II or Article VIII shall not be effective until
received.
SECTION
8.02. No
Waivers.
No
failure or delay by the Bank in exercising any right, power or privilege
hereunder or under the Note or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other
or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive
of
any rights or remedies provided by law.
SECTION
8.03. Expenses;
Documentary Taxes; Indemnification.
WCSR
3448952v3
18
(a) The
Borrower shall pay (i) all out-of-pocket expenses of the Bank, including fees
and disbursements of special counsel for the Bank, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all out-of-pocket expenses incurred by the Bank, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The
Borrower shall indemnify the Bank against any transfer taxes, documentary taxes,
assessments or charges made by any Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
(c) The
Borrower shall indemnify the Bank and each Affiliate thereof and their
respective directors, officers, employees and agents from, and hold each of
them
harmless against, any and all losses, liabilities, claims or damages to which
any of them may become subject, insofar as such losses, liabilities, claims
or
damages arise out of or result from any actual or proposed use by the Borrower
of the proceeds of any extension of credit by the Bank hereunder or breach
by
the Borrower of this Agreement or any other Loan Document or from investigation,
litigation (including, without limitation, any actions taken by the Bank to
enforce this Agreement or any of the other Loan Documents) or other proceeding
(including, without limitation, any threatened investigation or proceeding)
relating to the foregoing, and the Borrower shall reimburse the Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal
fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason
of
the gross negligence or willful misconduct of the Person to be
indemnified.
SECTION
8.04. Setoffs.
The
Borrower hereby grants to the Bank, as security for the full and punctual
payment and performance of the obligations of the Borrower under this Agreement,
a continuing lien on and security interest in all deposits and other sums
credited by or due from the Bank to the Borrower or subject to withdrawal by
the
Borrower; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, the Bank may at any time upon or after
the occurrence of any Event of Default, and without notice to the Borrower,
set
off the whole or any portion or portions of any or all such deposits and other
sums against such obligations, whether or not any other Person or Persons could
also withdraw money therefrom.
SECTION
8.05. Amendments
and Waivers.
Any
provision of this Agreement, the Note or any other Loan Documents may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by the Borrower and the Bank.
SECTION
8.06. Successors
and Assigns.
WCSR
3448952v3
19
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns; provided that
the Borrower may not assign or otherwise transfer any of its rights under this
Agreement.
(b) Subject
to the provisions of Section 8.07, the Borrower authorizes each Bank to
disclose to any participant, assignee or other transferee (each a “Transferee”)
and any prospective Transferee any and all financial and other information
in
such Bank’s possession concerning the Borrower which has been delivered to the
Bank by the Borrower pursuant to this Agreement or which has been delivered
to
such Bank by the Borrower in connection with such Bank’s credit evaluation prior
to entering into this Agreement.
(c) No
Transferee shall be entitled to receive any greater payment under
Section 7.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower’s prior written consent or by reason of the provisions of
Section 7.02 or 7.03 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
SECTION
8.07. Confidentiality.
The
Bank agrees to exercise its best efforts to keep any information delivered
or
made available by the Borrower to it which is clearly indicated to be
confidential information, confidential from anyone other than persons employed
or retained by the Bank who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loan; provided, however, that
nothing herein shall prevent the Bank from disclosing such information (i)
upon
the order of any court or administrative agency, (ii) upon the request or demand
of any regulatory agency or authority having jurisdiction over the Bank, (iii)
which has been publicly disclosed, (iv) to the extent reasonably required in
connection with any litigation to which the Bank or its Affiliates may be a
party, (v) to the extent reasonably required in connection with the exercise
of
any remedy hereunder, (vi) to the Bank’s legal counsel, Affiliates and
independent auditors and (vii) to any actual or proposed participant, assignee
or other Transferee of all or part of its rights hereunder which has agreed
in
writing to be bound by the provisions of this Section 8.07.
SECTION
8.08. Survival
of Certain Obligations.
Sections 7.03(a), 7.03(b) and 8.03, and the obligations of the Borrower
thereunder, shall survive, and shall continue to be enforceable notwithstanding,
the termination of this Agreement and the Commitment and the payment in full
of
the principal of and interest on the Loan.
SECTION
8.09. North
Carolina Law.
This
Agreement and the Note shall be construed in accordance with and governed by
the
law of the State of North Carolina.
SECTION
8.10. Severability.
In case
any one or more of the provisions contained in this Agreement, the Note or
any
of the other Loan Documents should be invalid, illegal or unenforceable in
any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby and shall be enforced to the greatest extent permitted by
law.
WCSR
3448952v3
20
SECTION
8.11. Interest.
In no
event shall the amount of interest due or payable hereunder or under the Note
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently made to the Bank by the Borrower or
inadvertently received by the Bank, then such excess sum shall be credited
as a
payment of principal, unless the Borrower shall notify the Bank in writing
that
it elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Bank not receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under applicable law.
SECTION
8.12. Interpretation.
No
provision of this Agreement or any of the other Loan Documents shall be
construed against or interpreted to the disadvantage of any party hereto by
any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured or dictated such provision.
SECTION
8.13. Consent
to Jurisdiction.
The
Borrower (a) and the Bank irrevocably waive, to the fullest extent permitted
by
law, any and all right to trial by jury in any legal proceeding arising out
of
this Agreement, any of the other Loan Documents, or any of the transactions
contemplated hereby or thereby, (b) submits to personal jurisdiction in the
State of North Carolina, the courts thereof and the United States District
Courts sitting therein, for the enforcement of this Agreement, the Note and
the
other Loan Documents, (c) waives any and all personal rights under the law
of
any jurisdiction to object on any basis (including, without limitation,
inconvenience of forum) to jurisdiction or venue within the State of North
Carolina for the purpose of litigation to enforce this Agreement, the Note
or
the other Loan Documents, and (d) agrees that service of process may be made
upon it in the manner prescribed in Section 8.01 for the giving of notice to
the
Borrower. Nothing herein contained, however, shall: (i) prevent the Bank from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction; or (ii) affect the right to serve legal process
in
any other manner permitted by law.
SECTION
8.14. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
SECTION
8.15. Florida
Taxes.
In
connection with this transaction there may or may not be due certain documentary
stamp taxes and/or intangible taxes imposed by the State of Florida (the
“Florida Taxes”). In addition to (and not in limitation of) the indemnification
with respect to tax liabilities set forth herein, the Borrower agrees to
indemnify the Bank, its directors, officers, agents and employees from and
against any and all liability, damage, loss, cost, expense or reasonable
attorney fees which may accrue to or be sustained by the Bank or its directors,
officers, agents or employees on account of or arising from any claim or action
raised by, filed or brought by or in the name of any Florida governmental or
administrative department with respect to non-payment of the Florida Taxes
against the Bank, or any of its directors, officers, agents or
employees.
WCSR
3448952v3
21
SECTION
8.16. Arbitration;
Preservation and Limitation of Remedies.
(a) Upon
demand of any party hereto, whether made before or after institution of any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Loan Document (“Disputes”)
between or among the Borrower, its Subsidiaries, the Bank, or any of them,
shall
be resolved by binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from documents
executed in the future, disputes as to whether a matter is subject to
arbitration, or claims arising out of or connected with the transactions
contemplated by this Agreement and the other Loan Documents. Arbitration shall
be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the “Arbitration Rules”) of the American Arbitration Association (the
“AAA”), as in effect from time to time, and the Federal Arbitration Act, Title 9
of the U.S. Code, as amended. All arbitration hearings shall be conducted in
the
city in which the principal office of the Bank is located. A hearing shall
begin
within ninety (90) days of demand for arbitration and all hearings shall be
concluded within 120 days of demand for arbitration. These time limitations
may
not be extended unless a party shows cause for extension and then for no more
than a total of sixty (60) days. The expedited procedures set forth in Rule
51
et seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute.
A
judgment upon the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel
of
the AAA. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or federal,
of the state where the hearing will be conducted. The parties do not waive
applicable federal or state substantive law except as provided
herein.
(b) Notwithstanding
the preceding binding arbitration provisions, the parties hereto agree to
preserve, without diminution, certain remedies that any party hereto may employ
or exercise freely, either alone, in conjunction with or during a Dispute.
Any
party hereto shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable:
(i) obtaining provisional or ancillary remedies, including injunctive relief,
sequestration, garnishment, attachment, appointment of a receiver and filing
an
involuntary bankruptcy proceeding; and (ii) when applicable, a judgment by
confession of judgment. Any claim or controversy with regard to any party’s
entitlement to such remedies is a Dispute. Preservation of these remedies does
not limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute. The parties hereto agree that no party shall
have a remedy of punitive or exemplary damages against any other party in any
Dispute, and each party hereby waives any right or claim to punitive or
exemplary damages that it has now or that may arise in the future in connection
with any Dispute, whether such Dispute is resolved by arbitration or judicially.
The parties acknowledge that by agreeing to binding arbitration they have
irrevocably waived any right they may have to a jury trial with regard to a
Dispute. The Borrower agrees to pay the reasonable fees and expenses of counsel
to the Bank in connection with any Dispute subject to arbitration as provided
herein.
WCSR
3448952v3
22
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, under seal, by their respective authorized officers as of the day
and
year first above written.
By: /s/
▇▇▇▇ ▇. Montgomery_______________(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇, Senior
Vice
President
and Chief Financial Officer
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior
Vice President and Chief Financial Officer
Telecopy
number: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone
number: (▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇
▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior
Vice President, Chief Officer-Legal and Corporate Affairs and
Secretary
Telecopy
number: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone
number: (▇▇▇)
▇▇▇-▇▇▇▇
[The
remainder of this page intentionally left blank.]
WCSR
3448952v3
23
WACHOVIA
BANK, NATIONAL ASSOCIATION
BY: /s/
▇▇▇▇ ▇. Culbreath_________________(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇, Senior Vice
President
Lending
Office
Wachovia
Bank, National Association
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
with
a
copy to:
Wachovia
Bank, National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior
Vice President
Telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone
number: (▇▇▇) ▇▇▇-▇▇▇▇
WCSR
3448952v3
24
NOTE
|
$50,000,000.00
|
Charlotte,
North
Carolina
|
|
|
October
12,
2006
|
For
value
received, OSI RESTAURANT PARTNERS, INC., a Delaware corporation (the
“Borrower”), promises to pay to the order of WACHOVIA BANK, NATIONAL ASSOCIATION
(the “Bank”), for the account of its Lending Office, the principal sum of FIFTY
MILLION and No/100 Dollars ($50,000,000.00), or such lesser amount as shall
equal the unpaid principal amount of each Advance made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates
and in
the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Note on the dates and at
the
rate or rates provided for in the Credit Agreement. Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as provided
for
in the Credit Agreement. All such payments of principal and interest shall
be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, National Association, ▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address
as may
be specified from time to time pursuant to the Credit Agreement.
All
Advances made by the Bank, the respective maturities thereof, the interest
rates
from time to time applicable thereto and all repayments of the principal
thereof
shall be recorded by the Bank and, prior to any transfer hereof, endorsed
by the
Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided
that the
failure of the Bank to make, or any error of the Bank in making, any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This
Note
is the Note referred to in the Credit Agreement dated as of October 12,
2006 between the Borrower and Wachovia Bank, National Association (as the
same
may be amended or modified from time to time, the “Credit Agreement”). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
and
the repayment hereof and the acceleration of the maturity hereof.
The
Borrower hereby waives presentment, demand, protest, notice of demand, protest
and nonpayment and any other notice required by law relative hereto, except
to
the extent as otherwise may be expressly provided for in the Credit
Agreement.
The
Borrower agrees, in the event that this Note or any portion hereof is collected
by law or through an attorney at law, to pay all reasonable costs of collection,
including, without limitation, reasonable attorneys’ fees.
WCSR
3452301v1
1
IN
WITNESS WHEREOF, the Borrower has caused this Note to be duly executed under
seal, by its duly authorized officer as of the day and year first above
written.
By:
/s/ ▇▇▇▇ ▇. Montgomery________(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
Documentary
stamp tax in the maximum
amount
required by Florida Statutes, Section
201.08(2)(a)
has been paid.
STATE
OF
FLORIDA )
COUNTY
OF Hillsborough_ )
THE
FOREGOING INSTRUMENT was acknowledged before me this 12th day of
October, 2006, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as Chief Financial Officer of OSI
RESTAURANT PARTNERS, INC., a Delaware corporation, on behalf of the corporation.
He is personally known to me.
_______________________________________
Print
Name:______________________________
Notary
Public - State of Florida
My
Commission Expires:___________________
My
Commission No.:______________________
WCSR
3452301v1
2
GUARANTY
AGREEMENT
THIS
GUARANTY AGREEMENT (this “Guaranty”) is made as of the 12th day
of October, 2006, by the undersigned (hereinafter collectively referred
to as
the “Guarantors” and individually as a “Guarantor”), to and for the benefit of
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (the
“Bank”).
WHEREAS,
the Guarantors have requested the Bank to extend credit to OSI Restaurant
Partners, Inc. (the “Borrower”) under the Credit Agreement dated as of October
12, 2006 (as amended, supplemented or otherwise modified from time
to
time, the “Credit Agreement”) between the Borrower and the Bank, and the Bank
has agreed to extend such credit by reason of such request and in reliance
upon
this Guaranty; and
WHEREAS,
capitalized terms used but not defined herein shall have the respective
meanings
ascribed thereto in the Credit Agreement; and
WHEREAS,
the Bank requires additional assurances and guarantees by the Guarantors
as one
of the conditions for making the Advances to the Borrower and entering
into the
Credit Agreement and the other Loan Documents; and
WHEREAS,
each Guarantor is a Subsidiary of the Borrower; and
WHEREAS,
each Guarantor acknowledges the receipt of substantial direct benefits
by the
making of the Advances to the Borrower;
NOW
THEREFORE, in consideration of the Advances extended and/or to be extended
by
the Bank to the Borrower under the Credit Agreement to be issued by the
Bank
under the Credit Agreement, and for other consideration, the receipt and
sufficiency of which are hereby acknowledged, each Guarantor agrees as
follows:
1. Guaranty.
Each
Guarantor hereby unconditionally, absolutely, jointly and severally, guarantees
to the Bank and its successors, endorsees and assigns that (a) the Borrower
will
duly and punctually pay and perform, at the place specified therefor in
the
Credit Agreement, all indebtedness, obligations and liabilities, direct
or
indirect, matured or unmatured, primary or secondary, certain or contingent,
of
the Borrower to the Bank now or hereafter owing or incurred pursuant to
the
Credit Agreement, the Note and the other Loan Documents (including without
limitation: (i) the principal of and interest on the Note, when and as
due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and any renewals, modifications or extensions thereof, in
whole or
in part; (ii) all other monetary obligations of the Borrower to the Bank
under
the Credit Agreement and the other Loan Documents to which the Borrower
is to be
a party and any renewals, modifications or extensions thereof, in whole
or in
part; and (iii) reasonable attorneys’ fees and other costs and expenses incurred
by the Bank in attempting to collect or enforce any of the foregoing after
an
Event of Default) accrued in each case to the date of payment hereunder
(collectively, the “Obligations” and individually, an “Obligation”); and (b) the
Borrower will perform in all other respects its obligations under the Credit
Agreement, the Note and the other Loan Documents in accordance with the
respective terms of the Credit Agreement, the Note and the other Loan Documents.
2. Guaranty
Absolute.
This
Guaranty is an absolute, unconditional, continuing and unlimited guaranty
of the
full and punctual payment and performance by the Borrower of the Obligations
and
not of their collectibility only and is in no way conditioned upon any
requirement that the Bank first
WCSR
3452315v1
attempt
to collect any of the Obligations from the Borrower, any other Guarantor,
or any
other person, or resort to any security for the Obligations or this Guaranty
or
to other means of obtaining payment of any of the Obligations which the
Bank now
has or may acquire after the date hereof, or upon any other contingency
whatsoever, and the Bank may proceed hereunder against any Guarantor in
the
first instance to collect the Obligations when due, without first proceeding
against the Borrower or any other Person and without first resorting to
any
security or other means of obtaining payment. The obligations of each Guarantor
hereunder are irrevocable, absolute and unconditional, irrespective of
genuineness, validity, regularity or enforceability of the Obligations
or any
security given therefor or in connection therewith or any other circumstance
(except payment to, or express, written waiver, release or consent by,
the Bank)
which might otherwise constitute a legal or equitable discharge of a surety
or
guarantor. This Guaranty shall be in addition to any other guaranty or
other
security for the Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such other guaranty or security.
The
liability of each Guarantor hereunder shall in no way be affected or impaired
by
any acceptance by the Bank of any direct or indirect security for, or other
guaranties of, the Obligations or any other indebtedness, liability or
obligations of the Borrower, any Guarantor or other Person to the Bank
or by any
failure, delay, neglect or omission of the Bank to realize upon or protect
any
Obligations or any such other indebtedness, liability or obligation or
any notes
or other instruments evidencing the same or any direct or indirect security
therefor, or by any approval, consent, waiver or other action taken or
omitted
to be taken by the Bank. Upon any default by the Borrower in the payment
and
performance of the Obligations (and after the expiration of any applicable
grace
period provided in the Credit Agreement), the liabilities and obligations
of the
Guarantors hereunder shall, at the option of the Bank, become forthwith
due and
payable to the Bank without demand or notice of any nature, all of which
are
expressly waived by each Guarantor; provided
that if
any Event of Default specified in clause (g) or (h) of Section 6.01 of
the
Credit Agreement occurs, without any notice to any Guarantor or any other
act by
the Bank, the liabilities and obligations of the Guarantors hereunder shall
automatically become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the
Guarantors. Payments by the Guarantors, or any of them, hereunder may be
required by the Bank on any number of occasions.
3. No
Impairment.
Each
Guarantor agrees that its obligations hereunder shall not be impaired,
modified,
changed, released or limited in any manner whatsoever by any impairment,
modification, change, release or limitation of liability of the Borrower
or its
estate by reason of the commencement of any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution
or
composition of the Borrower or its property under any law relating to
bankruptcy, insolvency, reorganization, relief of debtors or seeking appointment
of a receiver, trustee, custodian or similar official for the Borrower
or for
all or part of its property.
4. Guarantors’
Further Agreement to Pay.
Each
Guarantor further agrees to pay to the Bank forthwith upon demand, in funds
immediately available to the Bank, all costs and expenses (including court
costs
and reasonable attorneys’ fees) incurred or expended by the Bank in connection
with the enforcement of this Guaranty.
5. Termination
of Guaranty.
It is
the intention hereof that the Guarantors shall remain liable under this
Guaranty
until all of the Obligations have been fully paid and performed notwithstanding
any act, omission or thing (except payment to, or express, written waiver,
release or consent by, the Bank) which might otherwise operate as a legal
or
equitable discharge of the Guarantors. Notwithstanding anything contained
herein
to the contrary, each Guarantor agrees that to the extent all or any part
of any
payment of any of the Obligations previously received by the Bank pursuant
to
the Credit Agreement or any Loan Document or otherwise is subsequently
invalidated, voided, declared to be fraudulent or preferential, set aside,
recovered, rescinded or is required to be retained by or repaid to a trustee,
receiver, or any other person under any bankruptcy code, common law, or
equitable cause, or
WCSR
3452315v1
otherwise
required to be returned by the Bank for any reason, whether by court order,
administrative order or settlement, this Guaranty and the obligation or
part
thereof intended to be satisfied shall be revived and reinstated and continued
in full force and effect as to each Guarantor’s obligations hereunder, and each
Guarantor agrees that it shall immediately pay to the Bank the amount of
such
payment, notwithstanding any termination of this Guaranty or any cancellation
of
the Credit Agreement or the Note.
6. Security;
Setoff.
Each
Guarantor hereby grants to the Bank, as security for the full and punctual
payment and performance of such Guarantor’s obligations hereunder, a continuing
lien on and security interest in all deposits and other sums credited by
or due
from the Bank to the Guarantor or subject to withdrawal by the Guarantor.
Regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, the Bank may at any time upon or after the
occurrence of any Event of Default, and without notice to any Guarantor,
set off
the whole or any portion or portions of any or all such deposits and other
sums
credited by or due from the Bank to a Guarantor or subject to withdrawal
by a
Guarantor against amounts payable under this Guaranty, whether or not any
other
person or persons could also withdraw money therefrom. Each Guarantor agrees,
to
the fullest extent it may effectively do so under applicable law, that
any
holder of a participation in a Note, whether or not acquired pursuant to
the
terms of the Credit Agreement, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such
holder
of a participation were a direct creditor of the Guarantor in the amount
of such
participation.
7. Bank’s
Freedom to Deal with Borrower and Other Parties.
The
Bank shall be at liberty, without giving notice to or obtaining the assent
of
the Guarantors, or any of them, and without relieving any Guarantor of
any
liability hereunder, to deal with the Borrower and with each other party
who is
now, or after the date hereof becomes, liable in any manner for any of
the
Obligations (including, without limitation, any co-guarantor), in such
manner as
the Bank in its sole discretion deems fit and to this end each Guarantor
hereby
gives to the Bank full authority in its sole discretion to do any or all
of the
following things: (a) extend credit, make loans and afford other financial
accommodations to the Borrower or to any such other party at such times,
in such
amounts and on such terms as the Bank may approve, (b) vary the terms and
grant
extensions or renewals of any present or future indebtedness or obligation
of
the Borrower or of any such other party to the Bank, (c) grant extensions
of
time, waivers and other indulgences in respect thereof, (d) vary, exchange,
release or discharge, wholly or partially, or delay in or abstain from
perfecting and enforcing any security or guaranty or other means of obtaining
payment of any of the Obligations or any liability under this Guaranty,
which
security or guaranty the Bank now has or acquires after the date hereof,
(e)
accept partial payments from the Borrower or such other party, (f) release
or
discharge, wholly or partially, any endorser or guarantor, and (g) compromise
or
make any settlement or other arrangement with the Borrower or any such
other
party.
8. Representations
and Warranties of Guarantors.
To
induce the Bank to extend credit to the Borrower, each Guarantor represents
and
warrants to the Bank that all representations and warranties relating to
it
contained in the Credit Agreement are true and correct.
9. Covenants.
Each
Guarantor covenants and agrees that, from the date hereof and until payment
in
full of the Obligations, such Guarantor shall, unless the Bank otherwise
consents in writing, comply with all of the covenants contained in the
Credit
Agreement (as it may be amended from time to time) as applicable to such
Guarantors and shall deliver to the Bank:
(i) within
five Business Days after such Guarantor becomes aware of the occurrence
of any
Default or Event of Default, a certificate of a principal financial officer
or a
principal accounting officer of such Guarantor setting forth the details
thereof
and the action which the Guarantor is taking or proposes to take with respect
thereto; and
WCSR
3452315v1
(ii) from
time
to time, such additional information regarding the financial position or
business of such Guarantor as the Bank may reasonably request.
10. Events
of Default.
Each of
the following shall constitute an “Event of Default” hereunder:
(a) Failure
of any Guarantor to pay on demand by the Bank any principal of, premium,
if any,
or interest on the Obligations after the same shall become due, whether
by
acceleration or otherwise;
(b) Failure
of any Guarantor to observe or perform any of its covenants, conditions
or
agreements under this Guaranty (other than set forth in paragraph (a) above)
for
a period of thirty (30) days after notice specifying such failure and requesting
that it be remedied is given by the Bank to such Guarantor;
(c) Any
representation, warranty, certification or statement made by any Guarantor
in
any certificate, financial statement or other document delivered pursuant
to
this Guaranty shall prove to have been incorrect in any material respect
when
made; or
(d) The
Borrower shall at any time fail to own, directly or indirectly, 100% or
more of
the issued and outstanding shares of voting stock of any Guarantor; provided,
that an Event of Default shall not occur if the Borrower ceases to own
100% of
the issued and outstanding shares of voting stock of a Guarantor as a result
of
the Borrower’s sale of one hundred percent (100%) of the capital stock of such
Guarantor in accordance with and to the extent permitted by the terms of
Section
5.03 of the Credit Agreement.
Whenever
any Default or Event of Default shall have occurred, the Bank may declare
the
entire unpaid principal of, premium, if any, and interest on the Obligations
to
be immediately due and payable without presentation, demand, protest and
notice
of any kind, all of which are hereby expressly waived; provided
that if
any Event of Default specified in clause (g) or (h) of Section 6.01 of
the
Credit Agreement occurs, without any notice to any Guarantor or any other
act by
the Bank, the liabilities and obligations of the Guarantors hereunder shall
automatically become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the
Guarantors. As used herein, the term “Default” means any condition or event
which constitutes an Event of Default or which with the giving of notices
or
lapse of time or both would, unless cured or waived, become an Event of
Default.
No
failure or delay by the Bank to exercise any right, power or privilege
hereunder
shall operate as a waiver of any such right, power or privilege nor shall
any
single or partial exercise of any right, power or privilege preclude any
other
or further exercise thereof. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
11. Waivers
by Guarantors.
Each
Guarantor hereby waives: (a) acceptance or notice of acceptance of this
Guaranty
by the Bank; (b) notice of any action taken or omitted by the Bank in reliance
hereon; (c) any duty on the part of the Bank to disclose to the Guarantors,
or
any of them, any facts it may now or hereafter know regarding the Borrower
or
any other Guarantor; (d) notice of presentment and demand for payment or
performance of any of the Obligations; (e) protest and notice of dishonor
or of
default to the Guarantors, or any of them, or to any other party with respect
to
the payment or performance of the Obligations hereby guaranteed; (f) any
and all
other notices whatsoever from the Bank to which the Guarantors, or any
of them,
might otherwise be entitled; and (g) any requirement that the Bank be diligent
or prompt in making demands hereunder, giving notice of any default by
the
WCSR
3452315v1
Borrower
or asserting any other right of the Bank hereunder. Each Guarantor also
irrevocably waives, to the fullest extent permitted by law, and agrees
not to
assert or take advantage of any and all defenses which at any time may
be
available in respect of such Guarantor’s obligations to the Bank hereunder by
virtue of: (i) the statute of limitations in any action hereunder or for
the
collection or the performance of any of the Obligations; (ii) the incapacity,
lack of authority, death or disability of any Guarantor or any other person
or
entity, or the failure of the Bank to file or enforce a claim against the
estate
(either in administration, bankruptcy, or any other proceeding) of the
Borrower,
any Guarantor or any other person or entity; (iii) the failure of the Bank
to
give notice of any action or non-action on the part of any other person
whomsoever, in connection with any of the Obligations; (iv) an election
of
remedies by the Bank which destroys or otherwise impairs any subrogation
rights
of the Guarantors, or any of them, the right of a Guarantor to proceed
against
the Borrower for reimbursement, or the right of a Guarantor to seek contribution
from any co-guarantor, or all or any combination of such rights; (v) the
failure
of the Bank to commence an action against the Borrower, any Guarantor,
or any
other Person; (vi) any homestead exemption, valuation, stay, moratorium
law or
other similar law now or hereafter in effect; (vii) any defense based on
lack of
due diligence by the Bank in collection, protection or realization upon
any
collateral securing the Obligations; (viii) any and all rights the Guarantors,
or any of them, may now or hereafter have arising under North Carolina
General
Statutes §26-7; (ix) the amendment of, supplement to or waiver of any provision
of the Credit Agreement, the Note or any other Loan Documents, (x) the
failure
of any Guarantor to receive any benefit from or as a result of its execution,
delivery and performance of this Guaranty; and (xi) any other legal or
equitable
defenses whatsoever to which the Guarantors, or any of them, might otherwise
be
entitled.
12. No
Contest with Bank.
So long
as any Obligation remains unpaid or undischarged, no Guarantor will, by
paying
any sum recoverable hereunder (whether or not demanded by the Bank) or
by any
means or on any other ground, claim any right of subrogation with respect
to any
of the Obligations guaranteed hereby or to any collateral now or hereafter
granted to secure the Obligations or claim any setoff or counterclaim against
the Borrower in respect of any liability of the Guarantors, or any of them,
to
the Borrower or of the Borrower to the Guarantors, or any of them, or,
in
proceedings under any federal or state bankruptcy code or insolvency proceedings
of any nature, proceed in competition with the Bank in respect of payment
hereunder or be entitled to have the benefit of any counterclaim or proof
of
claim or dividend or payment by or on behalf of the Borrower or the benefit
of
any other security for any Obligation which, now or hereafter, the Bank
may hold
or in which it may have any share.
13. Remedies
Cumulative.
Each
right, privilege, power and remedy of the Bank under this Guaranty, the
Credit
Agreement, the Note or any other Loan Document, or under any other instrument
of
any other party securing or guaranteeing any of the Obligations or under
applicable laws shall be cumulative and concurrent and the exercise of
any one
or more of them shall not preclude the simultaneous or later exercise by
the
Bank of any or all such other rights, privileges, powers and
remedies.
14. Demands
and Notices.
All
notices, requests and other communications to the parties hereunder shall
be in
writing and shall be given (i) to a Guarantor in care of the Borrower at
the
address for the Borrower set forth in the Credit Agreement, and (ii) to
the Bank
at its address set forth in the Credit Agreement. All notices shall be
given in
the manner specified in the Credit Agreement
15. Amendments,
Waiver, Etc.
No
provision of this Guaranty can be changed, waived or discharged or terminated
except by an instrument in writing signed by the Bank and each Guarantor.
No
course of dealing or delay or omission on the part of either party in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial
thereto.
WCSR
3452315v1
16. Counterparts.
This
Guaranty may be executed in any number of counterparts. Each of the counterparts
will be considered an original, and all counterparts constitute but one
and the
same instrument.
17. Pari
Passu Obligations.
Each
Guarantor warrants and represents that payment obligations and liabilities
of
such Guarantor under this Guaranty shall at all times rank pari passu with
all
other unsecured and unsubordinated payment obligations and liabilities
(including contingent obligations and liabilities) of such Guarantor (other
than
those which are mandatorily preferred by laws or regulations of general
application). Each Guarantor shall assure that the representation set forth
herein is true and correct at all times.
18. Indemnity.
Each
Guarantor agrees to indemnify the Bank against, and hold the Bank harmless
from,
any loss, cost, charge, expense (including reasonable attorneys’ fees), claims,
demands, suits, damages, penalties, taxes, fines, levies and assessments
which
may be asserted or imposed against, or suffered or incurred by, the Bank
as a
direct or indirect result of any representation or warranty of the Borrower
in
the Credit Agreement or of the Guarantors herein being untrue or inaccurate
in
any respect or as a direct or indirect result of the failure by the Borrower
or
any Guarantor to observe, perform or comply with any of its respective
covenants, undertakings or obligations set forth in the Credit Agreement,
this
Guaranty or any other Loan Document.
19. Financial
Information.
The
liability of each Guarantor under this Guaranty shall be reflected in the
consolidated financial statements (or the notes thereto) of the Borrower
and its
Subsidiaries in accordance with GAAP.
20. Miscellaneous
Provisions.
This
Guaranty is intended to take effect as a sealed instrument to be governed
by and
construed in accordance with the laws of the State of North Carolina (but
not
including the choice of law rules thereof). This Guaranty shall bind the
successors and assigns of each Guarantor and shall inure to the benefit
of the
Bank, its successors and assigns. All words herein shall be deemed to refer
to
the singular, plural, masculine, feminine or neuter as the identity of
the
person or entity may require. The descriptive headings of the several paragraphs
of this Guaranty are inserted for convenience only and do not constitute
a part
of this Guaranty.
21.
Additional
Guarantors.
Pursuant to Section 5.02 of the Credit Agreement, certain Subsidiaries
acquired
or organized after the Closing Date are required to enter into this Guaranty
as
a Guarantor upon becoming a Subsidiary. Upon execution and delivery, after
the
date hereof, by the Bank and such Subsidiary of an instrument in form and
substance satisfactory to the Bank, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Guaranty shall not require the consent of
any other
Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any
new
Guarantor as a party to this Guaranty.
22.
Waiver
of Jury Trial; Consent to Jurisdiction.
The
Guarantors (a) and the Bank irrevocably waives, to the fullest extent permitted
by law, any and all right to trial by jury in any legal proceeding arising
out
of this Guaranty, any of the other Loan Documents, or any of the transactions
contemplated hereby or thereby, (b) submits to personal jurisdiction in
the
State of North Carolina, the courts thereof and the United States District
Courts sitting therein, for the enforcement of this Guaranty and the other
Loan
Documents, (c) waives any and all personal rights under the law of any
jurisdiction to object on any basis (including, without limitation,
inconvenience of forum) to jurisdiction or venue within the State of North
Carolina for the purpose of litigation to enforce this Guaranty or the
other
Loan Documents, and (d) agrees that service of process may be made upon
it in
the manner prescribed in
WCSR
3452315v1
Section
8.01 of the Credit Agreement for the giving of notice to the Borrower.
Nothing
herein contained, however, shall: (i) prevent the Bank from bringing any
action
or exercising any rights against any security and against any Guarantor
personally, and against any assets of any Guarantor, within any other state
or
jurisdiction; or (ii) affect the right to serve legal process in any other
manner permitted by law.
23.
Arbitration;
Preservation and Limitation of Remedies.
(a)
Upon demand of any party hereto, whether made before or after institution
of any
judicial proceeding, any dispute, claim or controversy arising out of,
connected
with or relating to this Guaranty or any other Loan Document (“Disputes”)
between or among the Borrower, its Subsidiaries, any Guarantor and the
Bank, or
any of them, shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right
of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising
from
documents executed in the future, disputes as to whether a matter is subject
to
arbitration, or claims arising out of or connected with the transactions
contemplated by this Guaranty and the other Loan Documents. Arbitration
shall be
conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the “Arbitration Rules”) of the American Arbitration Association (the
“AAA”), as in effect from time to time, and the Federal Arbitration Act, Title
9
of the U.S. Code, as amended. All arbitration hearings shall be conducted
in the
city in which the principal office of the Bank is located. A hearing shall
begin
within ninety (90) days of demand for arbitration and all hearings shall
be
concluded within 120 days of demand for arbitration. These time limitations
may
not be extended unless a party shows cause for extension and then for no
more
than a total of sixty (60) days. The expedited procedures set forth in
Rule 51
et seq. of the Arbitration Rules shall be applicable to claims of less
than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute.
A
judgment upon the award may be entered in any court having jurisdiction.
The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel
of
the AAA. The single arbitrator selected for expedited procedure shall be
a
retired judge from the highest court of general jurisdiction, state or
federal,
of the state where the hearing will be conducted. The parties do not waive
applicable federal or state substantive law except as provided
herein.
(b) Notwithstanding
the preceding binding arbitration provisions, the parties hereto agree
to
preserve, without diminution, certain remedies that any party hereto may
employ
or exercise freely, either alone, in conjunction with or during a Dispute.
Any
party hereto shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable:
(i) obtaining provisional or ancillary remedies, including injunctive relief,
sequestration, garnishment, attachment, appointment of a receiver and filing
an
involuntary bankruptcy proceeding; and (ii) when applicable, a judgment
by
confession of judgment. Any claim or controversy with regard to any party’s
entitlement to such remedies is a Dispute. Preservation of these remedies
does
not limit the power of an arbitrator to grant similar remedies that may
be
requested by a party in a Dispute. The parties hereto agree that no party
shall
have a remedy of punitive or exemplary damages against any other party
in any
Dispute, and each party hereby waives any right or claim to punitive or
exemplary damages that it has now or that may arise in the future in connection
with any Dispute, whether such Dispute is resolved by arbitration or judicially.
The parties acknowledge that by agreeing to binding arbitration they have
irrevocably waived any right they may have to a jury trial with regard
to a
Dispute. The Guarantors agree to pay the reasonable fees and expenses of
counsel
to the Bank in connection with any Dispute subject to arbitration as provided
herein.
[Remainder
of this page intentionally left blank]
WCSR
3452315v1
IN
WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the day
and
year first above written.
GUARANTORS:
OUTBACK
STEAKHOUSE OF FLORIDA, INC.,
a
Florida
corporation
| By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (SEAL) |
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
CARRABBA’S
ITALIAN GRILL, INC., a Florida corporation
By:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
OUTBACK
STEAKHOUSE INTERNATIONAL, INC., a Florida corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
OS
CAPITAL, INC., a Delaware corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
OS
PACIFIC, INC., a Florida corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
WCSR
3452315v1
OS
PRIME,
INC., a Florida corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
OS
TROPICAL, INC., a Florida corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
BONEFISH
GRILL, INC., a Florida corporation
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
(SEAL)
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Financial Officer
WCSR
3452315v1