1
EXHIBIT 10.23
CREDIT AGREEMENT
dated as of August 22, 1997
among
OUTBACK STEAKHOUSE, INC., AS BORROWER
OUTBACK STEAKHOUSE OF FLORIDA, INC. and
CARRABBA'S ITALIAN GRILL, INC., AS GUARANTORS
THE LENDERS IDENTIFIED HEREIN, AS LENDERS
and
▇▇▇▇▇▇▇ BANK, N.A., AS AGENT
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TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
1.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2
The Facility
2.1 The Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Swing Line Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.4 Non-Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.5 Administrative Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3
General Provisions Applicable to the Facility
3.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Place and Manner of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.5 Sharing of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.7 Non-Availability of LIBO Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.8 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.9 Requirement of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.10 Prepayment Premium for LIBO Rate Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.11 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.13 Interest Rate ▇▇▇▇▇▇ or Swaps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4
Guaranty
4.1 Guaranty of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.2 Obligations Unconditional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.3 Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.4 Waiver of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.5 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.6 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.7 Limitation of Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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ARTICLE 5
Representations and Warranties
5.1 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 Joint Ventures and Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.4 Fictitious Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.5 Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.6 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.7 No Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.8 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.10 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.11 Contract or Restriction Affecting Credit Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.12 Patents and Trademarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.13 Governmental Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.14 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.15 Securities Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.16 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.18 No Untrue Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.19 $7.5 Million Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 6
Affirmative Covenants
6.1 Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.2 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.3 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.5 Inspection of Property, Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.6 Licenses and Permits, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.7 Advice Regarding Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.8 Advice Regarding Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.9 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.10 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.11 Observe All Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.12 ERISA Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.13 Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.14 Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.15 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.16 Maximum Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.17 Maximum Debt to EBITDA Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.18 Additional Subsidiaries to Become Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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ARTICLE 7
Negative Covenants
7.1 Additional Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.2 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.3 Guaranty of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.4 Extend Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.5 Merger or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.6 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 8
Conditions Precedent
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.2 Conditions Precedent to the Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.3 Conditions to Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 9
Default
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 10
Agent Provisions
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.2 Powers of the Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.4 Reliance on Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.6 Default by Borrower. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.7 Consent of the Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.8 Non-Reliance on Agent and Other Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.9 Reimbursement for Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.10 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.11 The Agent in Its Individual Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.12 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
10.13 The Agent's Right to Purchase Interests of Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 11
Miscellaneous
11.1 Waiver of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.2 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.4 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
11.5 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
11.6 Survival of Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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11.7 Liens, Set Off by Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.8 Defaulting Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.9 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.10 Florida Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.11 Paragraph Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.12 Gender; Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.14 Reimbursement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.15 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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EXHIBITS
Exhibit 2.1.2 Form of Notice of Borrowing
Exhibit 2.1.4 Form of Notice of Continuation/Conversion
Exhibit 2.1.6 Form of Revolving Promissory Note
Exhibit 6.1 Form of Officer's Certificate For Financial Certification
Exhibit 11.4.2 Form of Assignment Agreement
SCHEDULES
Schedule 1.2.33 Facility Commitment Percentages
Schedule 5.16 Pension and Welfare Benefit Plans
Schedule 11.3 Notice Addresses and Facsimile Numbers of Parties
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CREDIT AGREEMENT
This Credit Agreement is made and entered into this 22nd day of
August, 1997, by and among OUTBACK STEAKHOUSE, INC., a Delaware corporation, as
Borrower; OUTBACK STEAKHOUSE OF FLORIDA, INC., a Florida corporation, and
CARRABBA'S ITALIAN GRILL, INC., a Florida corporation, as Guarantors; THE
LENDERS identified herein (the "Lenders"); and ▇▇▇▇▇▇▇ BANK, N.A., a national
banking association, as Agent.
BACKGROUND
a. The Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility in the principal amount of One Hundred
Twenty-Five Million Dollars ($125,000,000.00) to provide funds for working
capital and general corporate purposes, including acquisitions (the
"Facility").
b. The Lenders which are parties hereto are willing to make the
Facility available to the Borrower on the terms and subject to the conditions
set forth herein and in the other Credit Documents (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein, and other good and valuable consideration in
hand paid by the parties hereto, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
OPERATIVE PROVISIONS
ARTICLE 1
Definitions
1.1 Background. The parties hereto acknowledge and agree that the
recitals set forth above (the "Background") are true and correct, and the
Background and the instruments referred to therein are incorporated and made a
part of this Agreement.
1.2 Definitions. As used in this Agreement, the following term
shall have the meanings set forth below:
1.2.1 "Administrative Fee" shall have the meaning set forth
in Section 2.5.
1.2.2 "Advance" or "Advances" shall mean loans or advances
of portions of the Facility, individually or collectively, which Advances may
be Prime Rate Advances, Floating LIBO Rate Advances and/or LIBO Rate Advances.
1.2.3 "Affiliate" shall mean, with respect to any party to
this Agreement, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
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with such party. The term "control" means the power to direct the management
and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
1.2.4 "Agent" shall mean ▇▇▇▇▇▇▇ Bank, N.A. (or any
successor thereto) or any successor agent appointed pursuant to Section 10.12.
1.2.5 "Agreement" shall mean this Credit Agreement, as the
same may be amended, supplemented or modified, in writing, from time to time.
1.2.6 "Applicable Margin" shall mean the number of basis
points, at any point in time, determined in accordance with the following
table:
Applicable Margin Leverage Ratio
(measured as of each quarter end)
----------------- ---------------------------------
50 basis points <0.35:1.00
62.5 basis points >0.35:1.00 and <0.50:1.00
75 basis points >0.50:1.00 and <0.75:1.00
The Leverage Ratio shall be measured as of the end of each calendar quarter
based upon financial information provided to the Agent by the Borrower in
accordance with the provisions of this Agreement. Changes in the Applicable
Margin shall be effective as of the date upon which the Agent receives the
quarterly or annual financial information disclosing a change in the Leverage
Ratio which results in a change in the Applicable Margin.
1.2.7 "Bankruptcy Code" shall mean the Bankruptcy Code in
Title 11 of the United States Code, as amended, modified, succeeded or replaced
from time to time.
1.2.8 "BBI" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., the holding
company of the Agent.
1.2.9 "Borrower" shall mean Outback Steakhouse, Inc., a
Delaware corporation, its successors and assigns.
1.2.10 "Banking Business Day" shall mean any day other than
a Saturday, Sunday or other day on which commercial banks in Jacksonville,
Florida are closed for business.
1.2.11 "Capital Expenditures" shall mean all expenditures of
the Borrower and its Consolidated Subsidiaries which, in accordance with GAAP,
would be classified as capital expenditures.
2.
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1.2.12 "Change of Control" shall mean if any "person" or
"group" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended [the "Exchange Act"]), other than ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or a group of Persons of which
one or more of the foregoing is/are a part, has become, directly or indirectly,
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of all
shares that any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by way of merger,
consolidation or otherwise, of 30% or more of the voting power of the voting
stock of the Borrower on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of the Borrower (whether or not such securities are then currently
convertible or exercisable).
1.2.13 "Closing" is defined in Section 8.1.
1.2.14 "Code" shall mean the Internal Revenue Code of 1986
and the rules and regulations promulgated thereunder, as amended from time to
time.
1.2.15 "Commitments" shall mean, for each Lender, such
Lender's Facility Commitment Percentage of the Facility Committed Amount.
1.2.16 "Consolidated Subsidiary" shall mean at any date any
Subsidiary of the Borrower or other entity, the accounts of which would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
1.2.17 "Consolidated Tangible Net Worth" shall mean, at any
date, the sum of the following, all computed and consolidated in accordance
with GAAP, consistently applied: consolidated shareholders' equity of the
Borrower and its Consolidated Subsidiaries, less any treasury stock, goodwill
and any trade names, trademarks, patents, unamortized debt discounts,
non-compete agreements and other intangible assets of the Borrower and its
Consolidated Subsidiaries.
1.2.18 "Credit Documents" shall mean, collectively, this
Agreement, the Note and any other agreements, documents or instruments relating
to the Facility, whether executed prior to, at or after the Closing hereof, as
the same may be amended, supplemented or modified, in writing, from time to
time; and "Credit Document" shall mean any one of the foregoing.
1.2.19 "Credit Parties" shall mean the Borrower and the
Guarantors and "Credit Party" shall mean any one of them.
1.2.20 "Debt to EBITDA Ratio" shall mean the ratio of (i)
the Borrower's total liabilities, including interests of minority partners in
consolidated partnerships, less deferred tax liabilities and subordinated debt,
as disclosed on the balance sheet of Borrower at any particular date, to (ii)
EBITDA, for the preceding twelve-month period, ending on the test date.
3.
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1.2.21 "Default" shall mean any event, act or condition
which with notice or lapse of time, or both, would constitute an Event of
Default.
1.2.22 "Defaulting Lender" shall mean, at any time, any
Lender that, (a) has failed to make an Advance or purchase a Participation
Interest required pursuant to the terms of this Agreement (but only for so long
as such Advance is not made or repaid or such Participation Interest is not
purchased or repaid), (b) has failed to pay to the Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Agreement (but only
for so long as such amount has not been repaid) or (c) has been deemed
insolvent or has become subject to a bankruptcy or insolvency proceeding or to
a receiver, trustee or similar official.
1.2.23 "Dollars" and "$" shall mean dollars in lawful
currency of the United States of America.
1.2.24 "EBITDA" shall mean, for any period, with respect to
the Borrower and its Consolidated Subsidiaries, the sum of (a) Net Income for
such period plus (b) an amount which, in the determination of Net Income for
such period has been deducted for (i) Interest Expense for such period, (ii)
total Federal, state, foreign or other income taxes for such period and (iii)
all depreciation and amortization for such period, all as determined in
accordance with GAAP.
1.2.25 "Eligible Assignee" shall mean (a) any Lender or
Affiliate or subsidiary of a Lender and (b) any other commercial bank,
financial institution, institutional lender or "accredited investor" (as
defined in Regulation D of the Securities and Exchange Commission) with capital
of at least $400 million and with an office in the United States.
1.2.26 "Environmental Laws" shall mean any of the Water
Pollution Control Act, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA" or "Superfund Act"), the Superfund Amendments and Reauthorization
Act, the Toxic Substances Control Act, the Clear Air Act, or any similar laws
imposing liability on any person for the generation, storage, impoundment and
disposal, discharge, treatment, release, seepage, emission, transportation or
destruction of any Hazardous Waste or of any garbage, sewage, effluent, smoke,
dust or any other form of pollution (whether or not denominated as a Hazardous
Waste), as the same may be amended from time to time, and any rules,
regulations, or administrative orders thereunder and any state statutes, laws,
rules, regulations or administrative orders addressing the same or similar
subject as the foregoing federal laws.
1.2.27 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
1.2.28 "Eurodollar Rate Advance" shall mean any Floating
LIBO Rate Advance and/or any LIBO Rate Advance.
4.
11
1.2.29 "Event of Default" shall mean any of the events or
circumstances specified in Section 9.1, provided that any requirement for the
giving of notice, the lapse of time, or both, has been satisfied.
1.2.30 "Extension of Credit" shall mean, as to any Lender,
the making of a Loan by such Lender (or a participation therein by a Lender).
1.2.31 "Facilities" shall mean the Facility and the $7.5
Million Facility, collectively.
1.2.32 "Facility" shall mean the Advances, collectively.
1.2.33 "Facility Commitment Percentage" shall mean, for each
Lender, the percentage identified as its Facility Commitment Percentage on
SCHEDULE 1.2.33, as such percentage may be modified in connection with any
assignment made in accordance with the provisions of either Section 10.13 or
subsection 11.4.2.
1.2.34 "Facility Committed Amount" shall mean ONE HUNDRED
TWENTY FIVE MILLION DOLLARS ($125,000,000).
1.2.35 "Federal Funds Rate" shall mean for any day the rate
per annum (rounded upward, if necessary, to the nearest 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 Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day and (b) if no such rate is so published on such
next preceding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Agent on such day on such transactions as
determined by the Agent.
1.2.36 "Floating LIBO Rate" shall mean a fluctuating rate of
interest per annum equal to the Applicable Margin plus the rate obtained by
dividing (a) the rate of interest per annum at which deposits in Dollars are
offered in the London Interbank Market in an amount substantially equal to the
Floating LIBO Rate Advance and with a term equal to three (3) months, as
appears on the LIBO Rate Reference Page as of 11:00 a.m. (London time) on the
date for which the Floating LIBO Rate is being calculated, by (b) an amount
equal to 1 minus the Floating LIBO Reserve Requirement for such date. If at
least two such offered rates appear on the LIBO Rate Reference Page, the rate
will be the arithmetic mean of such offered rates. The Agent may, in its
discretion, use any other publicly available index or reference rate showing
rates offered for United States dollar deposits in the London Interbank market
as of the applicable date. In addition, the Agent may, in its discretion, use
rate quotations for daily or annual periods in lieu of quotations for
substantially equivalent monthly periods.
5.
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1.2.37 "Floating LIBO Rate Advances" shall mean Advances of
portions of the Facility which bear interest at the Floating LIBO Rate.
1.2.38 "Floating LIBO Reserve Requirement" shall mean, for
any Floating LIBO Rate Advance, the rate, expressed as a decimal, at which
reserves (including, without limitation, any marginal, supplemental or
emergency reserves) are required to be maintained by a Lender on the date
for which a Floating LIBO Rate is being calculated, against U.S. dollar
nonpersonal time deposits in the United States with a term equal to ninety (90)
days.
1.2.39 "GAAP" shall mean generally accepted accounting
principles in effect at the time of any determination thereof, consistently
applied.
1.2.40 "Guarantors" shall mean Outback Steakhouse of
Florida, Inc., a Florida corporation, and Carrabba's Italian Grill, Inc., a
Florida corporation, and any other Person which shall, subsequent to the date
of this Agreement, guarantee the obligations of the Borrower under the Credit
Documents as provided in Section 6.18.
1.2.41 "Hazardous Materials" shall mean any hazardous, toxic
or radioactive substance, materials or products as defined under any
Environmental Laws, including, but not limited to, petroleum products, ammonia,
chlorine, derivatives of petroleum products, pesticides, asbestos and
asbestos-containing materials, and polychlorinated biphenyls (PCBs).
1.2.42 "Interest Expense" shall mean, for any period, with
respect to the Borrower and its Consolidated Subsidiaries, all net interest
expense, including the interest component under any capital leases, as
determined in accordance with GAAP.
1.2.43 "Interest Payment Date" shall mean (a) as to Prime
Rate Advances and Floating LIBO Rate Advances, each February 2, May 2, August 2
and November 2 and on the Maturity Date and (b) as to LIBO Rate Advances, on
the last day of each applicable LIBO Interest Period and on the Maturity Date
and in addition where the applicable LIBO Interest Period for a LIBO Rate
Advance is greater than three months, then also on the date three months from
the beginning of the LIBO Interest Period and each three months thereafter.
1.2.44 "Lender" means any of the Persons identified as a
"Lender" on the signature pages hereto, and any Person which may become a
Lender by way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.
1.2.45 "Leverage Ratio" shall mean the ratio of (i) the
Borrower's total liabilities, including interest of minority partners in
consolidated partnerships, shown on the balance sheet of the Borrower at any
particular date to (ii) the Borrower's Consolidated Tangible Net Worth on such
date.
6.
13
1.2.46 "LIBO Interest Period" shall mean the period
commencing on the date so specified in the Borrower's notice to the Agent
specifying that the LIBO Rate is to apply to a LIBO Rate Advance and ending on
the date specified in such notice, which (a) ending date shall be one (1), two
(3), three (3), or six (6) months after the commencement date and (b) shall not
be beyond the Maturity Date. If any LIBO Interest Period would end on a date
which is not a Banking Business Day, such LIBO Interest Period shall be
extended to the next succeeding Banking Business Day, unless the next
succeeding Banking Business Day is in the next calendar month, in which case
such LIBO Interest Period shall end on the next preceding Banking Business Day.
1.2.47 "LIBO Rate" shall mean an interest rate per annum
equal to the Applicable Margin plus the rate per annum obtained by dividing (a)
the rate of interest per annum at which deposits in Dollars are offered in the
London Interbank Market as appears on the LIBO Rate Reference Page as of 11:00
a.m. (London time) on the day that is two London Banking Days (as defined
herein) preceding the first Banking Business Day of the LIBO Interest Period,
by (b) an amount equal to 1 minus the LIBO Reserve Percentage for such LIBO
Interest Period. If at least two such offered rates appear on the LIBO Rate
Reference Page, the rate will be the arithmetic mean of such offered rates.
The Agent may, in its discretion, use any other publicly available index or
reference rate showing rates offered for United States dollar deposits in the
London Interbank market as of the applicable date. In addition, the Agent may,
in its discretion, use rate quotations for daily or annual periods in lieu of
quotations for substantially equivalent monthly periods.
1.2.48 "LIBO Rate Advances" shall mean Advances of portions
of the Facility which bear interest at the LIBO Rate.
1.2.49 "LIBO Rate Reference Page" shall mean any of (a) the
Reuters Screen LIBO Page, (b) the Dow ▇▇▇▇▇ Telerate Page 3750 or (c) such
other nationally recognized source, as may from time to time be used by the
Agent in its sole discretion as a reference for determining any applicable LIBO
Rate or Floating LIBO Rate.
1.2.50 "LIBO Reserve Percentage" shall mean, for any LIBO
Rate Advance, the rate, expressed as a decimal, at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained by a Lender two (2) Business Days prior to the
commencement of a LIBO Interest Period against Eurocurrency liabilities having
a term substantially equal to such LIBO Interest Period.
1.2.51 "LIBO Roll-Over Date" shall mean the last day of any
LIBO Interest Period.
1.2.52 "London Banking Day" shall mean each day other than a
Saturday, a Sunday or any holiday on which commercial banks in London, England
are closed for business.
1.2.53 "Maturity Date" shall mean August 22, 2000.
7.
14
1.2.54 "Net Income" shall mean, for any period, the net
income after taxes for such period of the Borrower and its Consolidated
Subsidiaries, as determined in accordance with GAAP.
1.2.55 "Non-Usage Fee" shall have the meaning set forth in
Section 2.4.
1.2.56 "Note" or "Notes" shall mean the Revolving Promissory
Notes, individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced from time
to time and as evidenced in the form of EXHIBIT 2.1.6.
1.2.57 "Notice of Borrowing" shall mean a request by the
Borrower for an Advance in the form of EXHIBIT 2.1.2.
1.2.58 "Notice of Continuation/Conversion" shall mean a
request by the Borrower to continue (i) an existing Floating LIBO Rate Advance
as a Floating LIBO Rate Advance or (ii) an existing LIBO Rate Advance to a new
LIBO Interest Period or to convert a Eurodollar Rate Advance to a Prime Rate
Advance or a Prime Rate Advance to a Eurodollar Rate Advance, in the form of
EXHIBIT 2.1.4.
1.2.59 "Officers' Certificate" shall mean a certificate, in
form and substance satisfactory to the Agent, signed by the President, a Vice
President, the Chief Financial Officer or the Treasurer of the Borrower,
including, without limitation, an Officer's Certificate in the form attached as
EXHIBIT 6.1.
1.2.60 "Participation Interest" shall mean the Extension of
Credit by a Lender by way of a purchase of a participation in any Advances as
provided in subsection 11.4.3.
1.2.61 "Person" shall mean an individual, partnership,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture or any other entity or a government or any agency or
political subdivision thereof.
1.2.62 "Prime Based Rate" shall mean a fluctuating rate of
interest per annum equal to the Prime Rate minus one percent (1%).
1.2.63 "Prime Rate" shall mean the rate of interest
announced by BBI from time to time as its prime rate. The Prime Rate is a
reference rate and is not the lowest rate at which ▇▇▇▇▇▇▇ Bank, N.A. will lend
money to customers.
1.2.64 "Prime Rate Advances" shall mean Advances of portions
of the Facility which bear interest at the Prime Based Rate.
1.2.65 "Required Lenders" shall mean Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes at least 66 2/3% of the
Credit Exposure of all Lenders at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time then there shall be excluded
from the determination of Required Lenders the aggregate principal amount of
Credit
8.
15
Exposure of such Lender at such time. For purposes of the preceding sentence,
the term "Credit Exposure" as applied to each Lender shall mean (a) at any time
prior to the termination of the Commitments, the sum of the Facility Commitment
Percentage of such Lender multiplied by the Facility Committed Amount and (b)
at any time after the termination of the Commitments, the principal balance of
the outstanding Advances of such Lender.
1.2.66 "$7.5 Million Agreement" shall mean that certain
Second Amended and Restated Loan Agreement executed by and between the Borrower
and the Agent dated August 14, 1995, as amended May 30, 1996 and of even date
herewith, relating to the $7.5 Million Facility.
1.2.67 "$7.5 Million Facility" shall mean that certain
revolving line of credit facility in the maximum principal amount of
$7,500,000.00 made available by the Agent to the Borrower, as evidenced by the
$7.5 Million Note and the $7.5 Million Agreement.
1.2.68 "$7.5 Million Note" shall mean that certain Second
Amended and Restated Commercial Promissory Note dated of even date herewith, in
the original principal amount of $7,500,000.00 executed by the Borrower and
delivered to the Agent.
1.2.69 "Subsidiary" shall mean (i) any corporation of which
more than fifty percent (50%) of the outstanding shares of stock of each class
having ordinary voting power (other than stock having such power only by reason
of the happening of a contingency) is at the time owned by the Borrower or by
one or more of its Subsidiaries, or by the Borrower and one or more of its
Subsidiaries or (ii) any partnership in which the Borrower or one or more of
its Subsidiaries, or the Borrower and one or more of its Subsidiaries own more
than fifty percent (50%) of the capital or profits interest thereof.
1.2.70 "Swing Line Advances" shall mean Advances of portions
of the Swing Line Facility.
1.2.71 "Swing Line Facility" shall mean a $10,000,000.00
portion of the Facility Committed Amount which is accessed directly from the
Borrower's checking account with the Agent to cover the daily cash requirements
of the Borrower.
1.2.72 "Unused Commitment" shall mean, for any period, the
amount by which (a) the then applicable aggregate Facility Committed Amount
exceeds (b) the daily average sum for such period of the outstanding aggregate
principal amount of all Advances (including Swing Line Advances).
1.3 Other Definitional Provisions. All terms defined in or
incorporated into this Agreement shall have the same defined meanings when used
in the other Loan Documents or any certificate or other instrument made or
delivered pursuant hereto unless the context otherwise requires. Any
accounting term used but not defined herein shall have the meaning given to it
under GAAP.
9.
16
ARTICLE 2
The Facility
2.1 The Facility.
2.1.1 Facility Commitment. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Advances to
the Borrower, in Dollars, at any time and from time to time, during the period
from and including the Effective Date to but not including the Maturity Date (or
such earlier date if the Facility Committed Amount has been terminated as
provided herein); provided, however, that (i) the aggregate amount of Advances
outstanding shall not exceed the Facility Committed Amount and (ii) with respect
to each individual Lender, the Lender's pro rata share of outstanding Advances
shall not exceed such Lender's Facility Commitment Percentage of the Facility
Committed Amount minus such Lender's Facility Commitment Percentage of any
outstanding Swing Line Advances which such Lender has not then funded pursuant
to Section 2.2. Subject to the terms of this Agreement (including the
provisions of Section 3.3, below), the Borrower may borrow, repay and reborrow
portions of the Facility.
2.1.2 Method for Obtaining Advances Other than Swing Line
Advances. For Advances of portions of the Facility, other than Advances of the
Swing Line by no later than 10:00 a.m. (i) on the requested date of funding of
Advances that will be Prime Rate Advances or Floating LIBO Rate Advances or
(ii) three Banking Business Days prior to the requested date of funding of
Advances that will be LIBO Rate Advances, the Borrower shall submit a written
Notice of Borrowing in the form of EXHIBIT 2.1.2 to the Agent setting forth (A)
the amount of the requested Advance, (B) whether such Advance shall accrue
interest at the Prime Based Rate, the Floating LIBO Rate or the LIBO Rate, (C)
with respect to Advances that will be LIBO Rate Advances, the LIBO Interest
Period applicable thereto and (D) certification that the Borrower has complied
in all respects with Section 8.3;
2.1.3 Funding of Advances. Upon receipt of a Notice of
Borrowing, the Agent shall promptly inform the Lenders as to the terms thereof
by oral, telephonic or written notification by telecopier (a "Notice to
Lenders"). Oral or telephonic notification from the Agent to each Lender shall
be followed by same-day written notification by telecopier to each Lender. The
date that each such oral, telephonic or written notice is given to the Lenders
by the Agent is hereinafter referred to as an "Advance Request Date." Each
Lender shall make its Facility Commitment Percentage of the requested Advances
available to the Agent by (i) by 2:00 p.m., E.S.T., on the Advance Request
Date, if the Notice to Lenders was provided to such Lender by 12:00 Noon,
E.S.T., on the Advance Request Date, or (ii) by 10:00 a.m., E.S.T., on the next
banking day, if the Notice to Lender was provided to such Lender after 12:00
Noon, E.S.T., on the Advance Request Date., by transferring the same via wire
transfer of immediately available funds to the account set forth below, or to
such other account as the Agent may designate to the Lenders in writing. The
amount of the requested
10.
17
Advances will then be made available to the Borrower by the Agent by crediting
the account of the Borrower maintained with the Agent, to the extent the amount
of such Advances are made available to the Agent. The account into which each
Lender shall transfer such Lender's Facility Commitment Percentage of each
requested Advance is as follows:
▇▇▇▇▇▇▇ Bank, N.A.
Jacksonville, Florida
ABA #▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan Accounting
Reference: Outback Steakhouse, Inc., Loan No. 04000017808
If Questions: Call (▇▇▇) ▇▇▇-▇▇▇▇
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Advances hereunder; provided, however, that
the failure of any Lender to fulfill its obligations hereunder shall not
relieve any other Lender of its obligations hereunder. Unless the Agent shall
have been notified by any Lender prior to the date of any such Advance that
such Lender does not intend to make available to the Agent its portion of the
Advances to be made on such date, the Agent may assume that such Lender has
made such amount available to the Agent on the date of such Advances, and the
Agent in reliance upon such assumption, may (in its sole discretion but without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the Agent, the
Agent shall be able to recover such corresponding amount from such Lender,
together with interest thereon (1) from noon on the date the funds should have
been delivered to the Agent until noon on the second business day thereafter,
at the Federal Funds Rate and (2) from that date until the date that Agent
recovers such amount from such Lender, at the Prime Rate. All such amounts
shall be paid without setoff, deduction, or counterclaim of any kind
whatsoever.
2.1.4 Continuations and Conversions. Subject to the terms
of Section 8.3, the Borrower shall have the option, on any Banking Business
Day, to continue existing Eurodollar Loans for a subsequent Floating LIBO
Interest Period or LIBO Interest Period, as applicable, to convert Prime Rate
Advances into Eurodollar Rate Advances or to convert Eurodollar Rate Advances
into Prime Rate Advances; provided, however, that (i) each such continuation or
conversion must be requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of EXHIBIT 2.1.4, in compliance with the
terms set forth below, (ii) except as provided in Section 3.8, LIBO Rate
Advances may only be continued or converted on the last day of the LIBO
Interest Period applicable thereto, (iii) Eurodollar Rate Advances may not be
continued nor may Prime Rate Advances be converted into Eurodollar Rate
Advances during the existence and continuation of a Default or Event of Default
and (iv) any request to continue a Eurodollar Rate Advance that fails to comply
with the terms hereof or any failure to request a continuation of a Eurodollar
Rate Advance at the end of the applicable Floating LIBO Interest Period or LIBO
Interest Period shall constitute a conversion to a Prime Rate Advance on the
last day of the applicable Interest Period. Each continuation or conversion
must be requested by the Borrower no later than 11:00 a.m. (A) on the date for
a requested conversion of a Eurodollar Rate Advance to a Prime Rate Advance,
the
11.
18
requested conversion of a Prime Rate Advance to a Floating LIBO Rate Advance or
the requested continuation of a Floating LIBO Rate Advance (B) three Banking
Business Days prior to the date for a requested continuation of a LIBO Rate
Advance or a requested conversion of a Prime Rate Advance or a Floating LIBO
Rate Advance to a LIBO Rate Advance, in each case pursuant to a written Notice
of Continuation/Conversion submitted to the Agent which shall set forth (x)
whether the Borrower wishes to continue or convert such Advances and (y) if the
request is to continue a LIBO Rate Advance or convert a Prime Rate Advance or a
Floating LIBO Rate Advance to a LIBO Rate Advance, the LIBO Interest Period
applicable thereto.
2.1.5 Minimum Amounts. Each request for a borrowing,
conversion or continuation shall be subject to the requirements that (i) each
LIBO Rate Advance shall be in a minimum amount of $5,000,000.00 and in integral
multiples of $500,000.00 in excess thereof, (ii) each Prime Rate Advance and/or
Floating LIBO Rate Advance shall be in a minimum amount of the lesser of
$1,000,000.00 (and integral multiples of $50,000.00 in excess thereof) or the
remaining amount available under the Facility Committed Amount and (iii) no
more than ten (10) LIBO Rate Advances shall be outstanding hereunder at any one
time. For the purposes of this Section, all LIBO Rate Advances with the same
LIBO Interest Periods shall be considered as one LIBO Rate Advance, but LIBO
Rate Advances with different LIBO Interest Periods, even if they begin on the
same date, shall be considered as separate LIBO Rate Advances.
2.1.6 Notes. The Advances made by each Lender shall be
evidenced by a duly executed promissory note of the Borrower to each applicable
Lender in the face amount of its Facility Commitment Percentage of the Facility
Committed Amount in substantially the form of EXHIBIT 2.1.6.
2.2 Swing Line Advances. Swing Line Advances shall be made
automatically by the Agent as and when the Swing Line Facility is accessed by
Borrower through its operating checking account. Notwithstanding anything
contained in this Agreement or any of the other Credit Documents to the
contrary, all Swing Line Advances shall bear interest at the Floating LIBO
Rate. Until such time as either (i) the Agent, in its capacity as one of the
Lenders, has fully funded its Facility Commitment Percentage of the Facility
Committed Amount or (ii) a Default or Event of Default has occurred, the
Lenders shall not be obligated to fund their respective Facility Commitment
Percentages of Swing Line Advances. At such time as one of the events set
forth in clause (i) and (ii) of the preceding sentence occurs, each Lender
shall pay to the Agent its Facility Commitment Percentage of the Swing Line
Advances outstanding as of 9:30 a.m., E.S.T. (the "Outstanding Swing Line
Amount") on the date of such occurrence upon oral, telephonic or written
notification by telecopier by the Agent of the Outstanding Swing Line Amount (a
"Notice of Amount"). Oral or telephonic notification from the Agent to each
Lender shall be followed by same-day written notification by telecopier to each
Lender. The date that such oral, telephonic or written notice is given to the
Lenders by the Agent is hereinafter referred to as the "Swing Line Request
Date." Each Lender shall deliver to the Agent its respective Facility
Commitment Percentage of such Outstanding Swing Line Amount (i) by 2:00 p.m.,
E.S.T., on the Swing Line Request Date, if the Notice of Amount was provided to
such Lender by 12:00 Noon, E.S.T., on the Swing Line
12.
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Request Date, or (ii) by 10:00 a.m., E.S.T., on the next banking day, if the
Notice of Amount was provided to such Lender after 12:00 Noon, E.S.T., on the
Swing Line Request Date, by transferring the same via wire transfer of
immediately available funds to the account set in Section 2.1(c), above. Until
a Lender, other than the Agent, has become obligated to fund its Facility
Commitment Percentage of Outstanding Swing Line Amount, as above provided, such
Lender's Facility Commitment Percentage of the Outstanding Swing Line Amount
shall not be deemed to be advanced by such Lender for purposes of calculating
such Lender's Facility Commitment Percentage of the Non-Usage Fee, but shall be
deemed to be advanced for purposes of calculating the amount of such Lender's
Commitment which is available for any purpose other than funding such Lender's
Facility Commitment Percentage of outstanding Swing Line Advances pursuant to
this Section 2.2.
2.3 Term. The term of the Facility shall be for a period
beginning with the date hereof and terminating on the Maturity Date, unless
sooner terminated pursuant to the terms of this Agreement.
2.4 Non-Usage Fee. In consideration for making the Facility
available to it, the Borrower shall pay to the Lenders a non-usage fee (the
"Non-Usage Fee") at a daily rate equal to 1/360th of 15 basis points (1/360 X
0.15%) on the Unused Commitment. The Non-Usage Fee shall accrue daily and be
paid to the Agent quarterly, in arrears, on each Interest Payment Date
applicable to Prime Rate Advances commencing November 2, 1997.
2.5 Administrative Fee. In consideration of the Agent agreeing to
act as agent with respect to the Facility, the Borrower shall pay to the Agent
an annual fee for the administration of the Facility (the "Administrative Fee")
as set forth in a separate letter agreement between the Borrower and the Agent.
ARTICLE 3
General Provisions Applicable to the Facility
3.1 Interest.
3.1.1 Interest Rate. All Prime Rate Advances shall accrue
interest at the Prime Based Rate, all Floating LIBO Rate Advances shall accrue
interest at the Floating LIBO Rate and all LIBO Rate Advances shall accrue
interest at the applicable LIBO Rate.
3.1.2 Computation of Interest. Interest shall be
calculated on the daily outstanding balance of each type of Advance. Interest
shall be computed on the basis of a year of 360 days for the actual number of
days elapsed through the actual payment due date. Changes in the Prime Rate
and/or the Floating LIBO Rate shall be effective as of the date of change in
the applicable rate.
3.1.3 Compliance with Usury Laws. Notwithstanding any
provision of this Agreement to the contrary, the parties intend that no
provision of this Agreement or the Credit
13.
20
Documents be interpreted, construed, applied, or enforced so as to permit or
require the payment or collection of interest in excess of the maximum rate as
hereafter may be permitted by the law applicable to this transaction (the
"Maximum Permitted Rate"). If, however, any such provision is so interpreted,
construed, applied, or enforced, then the parties intend: (i) that such
provision automatically shall be reformed nunc pro tunc so as to require payment
only of interest at the Maximum Permitted Rate; and (ii) if the holder of any
Note has received interest payments in excess of such Maximum Permitted Rate,
that the amount of such excess be credited nunc pro tunc in reduction of the
principal amount of such Note, together with interest at such Maximum Permitted
Rate. In connection with all calculations to determine the Maximum Permitted
Rate, the parties intend: first, that all charges be excluded to the extent that
they are properly excludable under the usury laws of the State of Florida or the
United States of America, as they from time to time are determined to apply to
this obligation; and, second, that all charges that may be "spread" in the
manner provided by Section 687.03(3), Florida Statutes (1995), or any similar
successor law, be spread in the manner provided by such statute.
3.1.4 Late Charge. If any payment required by this
Agreement or any of the Notes is not paid within ten (10) days after the date
such payment is due, the Borrower shall pay a late charge equal to the greater
of (a) $100.00 or (b) five percent (5%) of the amount of any payment which is
not received by the Agent on or before the tenth (10th) day following the date
such payment is due, to compensate for the loss of use of funds and for the
expense of handling the delinquency, which late charge must be received by the
Agent with the payment then due.
3.1.5 Default Rate of Interest. Upon the occurrence, and
during the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the outstanding Advances and any other
amounts owing hereunder or under the other Credit Documents (including without
limitation fees and expenses) shall bear interest, payable on demand, at a per
annum rate equal to 2% plus the rate which would otherwise be applicable (or if
no rate is applicable, then at the Prime Rate, plus two percent (2%) per
annum).
3.2 Place and Manner of Payments. All payments of principal,
interest, fees, expenses and other amounts to be made by the Borrower or a
Guarantor under this Agreement shall be received not later than 12:00 Noon,
local time, on the date when due, in Dollars and in immediately available
funds, by the Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other address as the Agent may from time to time
designate in writing. Payments received after such time shall be deemed to
have been received on the next Banking Business Day. The Borrower shall, at the
time it makes any payment under this Agreement, specify to the Agent, the
Advances, fees or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails to specify, or if such
application would be inconsistent with the terms hereof, the Agent shall,
subject to Section 3.4, distribute such payment to the Lenders in such manner
as the Agent may deem appropriate). The Agent will distribute such payments to
the applicable Lenders if any such payment is received prior to 12:00 Noon,
local time.; otherwise the Agent will distribute such payment to the applicable
Lenders on the next succeeding Banking Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a
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Banking Business Day, the due date thereof shall be extended to the next
succeeding Banking Business Day (subject to accrual of interest and fees for the
period of such extension), except that in the case of LIBO Rate Advances, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Banking
Business Day.
3.3 Prepayments.
3.3.1 Voluntary Prepayments. The Borrower shall have the
right to prepay outstanding Advances in whole or in part from time to time
without premium or penalty; provided, however, that (i) LIBO Rate Advances may
only be prepaid on three Banking Business Days' prior written notice to the
Agent and any prepayment of LIBO Rate Advances will be subject to Section 3.10
and (ii) each such partial prepayment of outstanding Advances shall be in the
minimum principal amount of $5,000,000.00 and integral multiples of $500,000.00
in excess thereof.
3.3.2 Mandatory Prepayments.
(a) Facility Committed Amount. If at any time
the sum of the aggregate amount of Advances outstanding exceeds the Facility
Committed Amount, the Borrower shall immediately make a principal payment to
the Agent in the manner and in an amount necessary to be in compliance with
Section 2.1.
(b) Violation of Financial Covenants. In the
event that, following any review date with respect to the financial covenants
set forth in Sections 6.14 through 6.17, below, the Agent shall notify the
Borrower that the Borrower has failed to comply with one or more of such
financial covenants, but that the Lenders, rather than declare that an Event of
Default exists, elect to (i) require a repayment of a portion of the principal
amount of the then outstanding Advances in a stated amount and (ii) limit the
Facility Committed Amount to a stated, reduced amount until compliance with
such financial covenant(s) has been achieved, the Borrower shall immediately
repay the amount of the required principal reduction to the Agent. If the
Borrower fails to make any repayment required by this subsection within ten
(10) Business Days after having received the notice from the Agent described
above, the same shall constitute an Event of Default
3.3.3 Payment in full at Maturity. On the Maturity Date,
the entire outstanding principal balance of all Advances, together with
accrued but unpaid interest and all other sums owing with respect thereto,
shall be due and payable in full, unless accelerated sooner pursuant to the
terms of this Agreement.
3.4 Pro Rata Treatment. Except to the extent otherwise provided
herein, each Advance, each payment or prepayment of principal of any Advance,
each payment of fees (other than the annual Administrative Fee which is to be
retained by the Agent for its own account), each reduction
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of the Facility Committed Amount, and each conversion or continuation of any
Advance, shall (except as otherwise provided in Section 3.8) be allocated pro
rata among the relevant Lenders in accordance with the respective Facility
Commitment Percentages of such Lenders (or, if the Commitments of such Lenders
have expired or been terminated, in accordance with the respective principal
amounts of the outstanding Advances and Participation Interests of such
Lenders); provided that, if any Lender shall have failed to pay its applicable
pro rata share of any Advance, then any amount to which such Lender would
otherwise be entitled pursuant to this Section shall instead be payable to the
Agent until the share of such Advance not funded by such Lender has been repaid;
provided further, that in the event any amount paid to any Lender pursuant to
this Section is rescinded or must otherwise be returned by the Agent, each
Lender shall, upon the request of the Agent, repay to the Agent the amount so
paid to such Lender, with interest for the period commencing on the date such
payment is returned by the Agent until the date the Agent receives such
repayment at a rate per annum equal to, during the period to but excluding the
date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Prime Rate.
3.5 Sharing of Payments. The Lenders agree among themselves that,
except to the extent otherwise provided herein:
(a) All deposits, monies and property of the
Borrower seized by any of the Lenders through the exercise of rights
of setoff or enforcement of liens, shall be applied to the payment of
outstanding amounts due under Credit Documents, before application to
any other indebtedness then owing from the Borrower to such Lender;
(b) In the event that any Lender shall obtain
payment in respect of any Advance, or any other obligation owing to
such Lender under this Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or by any other means, in
excess of its pro rata share of such payment as provided for in this
Agreement, such Lender shall notify the Agent thereof and promptly pay
in cash or purchase from the other Lenders a participation in such
Advance and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that
all Lenders share such payment in accordance with their respective
ratable shares as provided for in this Agreement; and
(c) If payment to a Lender obtained by such
Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must
otherwise be restored, each Lender which shall have shared the benefit
of such payment shall, by payment in cash or a repurchase of a
participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect
thereto) to each Lender whose payment shall have been rescinded or
otherwise restored.
Except as otherwise expressly provided in this Agreement, if any Lender or the
Agent shall fail to remit to the Agent or any other Lender an amount payable by
such Lender or the Agent to the Agent or such other Lender pursuant to this
Agreement on the date when such amount is due, such
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payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders under this Section
to share in the benefits of any recovery on such secured claim.
3.6 Capital Adequacy. If, after the date hereof, any Lender has
determined that the adoption or the becoming effective of, or any change in, or
any change by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof in the
interpretation or administration of, any applicable law, rule or regulation
regarding capital adequacy, or compliance by such Lender, or its parent
corporation, with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's (or parent corporation's) capital or assets as a consequence
of its commitments or obligations hereunder to a level below that which such
Lender, or its parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's
(or parent corporation's) policies with respect to capital adequacy), then,
following not less than thirty (30) days prior notice from such Lender to the
Borrower, the Borrower thereafter shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis (after taking into account applicable deductions and credits in respect of
the amount indemnified) for such reduction. Each determination by any such
Lender of amounts owing under this Section shall, absent manifest error, be
conclusive and binding on the parties hereto. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.7 Non-Availability of LIBO Rate. In the event, and on each
occasion, that: (a) on the day two Banking Business Days prior to the
commencement of any LIBO Interest Period, the Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower) that
(i) the LIBO Rate is not available for dollar deposits in an amount
approximately equal to the Advance with respect to which the Borrower requests
that LIBO Rate apply, or (ii) the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Lenders of
making or maintaining a LIBO Rate with respect to such Advance during such LIBO
Interest Period, or (iii) reasonable means do not exist for ascertaining a LIBO
Rate, or (iv) a LIBO Rate with respect thereto would be in excess of the
maximum interest rate which the Borrower may by law pay; or (b) on the date
that the Floating LIBO Rate is to become applicable to an Advance, the Agent
shall have determined that (y) reasonable means do not exist for ascertaining
the Floating LIBO Rate, or (z) the Floating LIBO Rate with respect thereto
would be in excess of the maximum interest rate which the Borrower may by law
pay, such Advance shall bear interest at the Prime Based Rate until the
foregoing circumstances no longer apply.
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3.8 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the interpretation
or application thereof occurring after the date hereof shall make it unlawful
for any Lender to make or maintain Eurodollar Rate Advances as contemplated by
this Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrower and the Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurodollar Rate Advances, continue Eurodollar Rate Advances
as such and convert a Prime Rate Advances to Eurodollar Rate Advances shall
forthwith be canceled and, until such time as it shall no longer be unlawful
for such Lender to make or maintain Eurodollar Rate Advances, such Lender shall
then have a commitment only to make a Prime Rate Advance when a Eurodollar Rate
Advance is requested and (c) such Lender's Advances then outstanding as
Eurodollar Rate Advances, if any, shall be converted automatically to Prime
Rate Advances immediately, with respect to Floating LIBO Rate Advances, and on
the respective last days of the then current LIBO Interest Periods, with
respect to LIBO Rate Advances, or within such earlier period as required by
law. If any such conversion of a LIBO Rate Advance occurs on a day which is not
the last day of the LIBO Interest Period applicable thereto, the Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to Section
3.10.
3.9 Requirement of Law. The Borrower recognizes that the cost to
the Lenders of making or maintaining LIBO Rates with respect to the LIBO Rate
Advances may be, from time to time affected by the matters set forth in
subsections 3.9.1 and 3.9.2, below, and the Borrower agrees that the Lenders, in
quoting or establishing a LIBO Rate at the commencement of a LIBO Interest
Period, may take into consideration such additional amount or amounts resulting
from the following as the Lenders shall determine will compensate the Lenders
for such additional costs:
3.9.1 Reserve Requirements. The imposition of, or changes
in, the reserve requirements promulgated by the Board of Governors of the
Federal Reserve System of the United States, including, but not limited to, any
reserve on Eurocurrency Liabilities, as defined in Regulation D, at the ratios
provided in such Regulation from time to time, it being agreed that any LIBO
Rate Advances shall be deemed to constitute Eurocurrency Liabilities, as
defined by such Regulation, and it being further agreed that such Eurocurrency
Liabilities shall be deemed to be subject to such reserve requirements without
benefit of or credit for prorations, exceptions, or offsets that may be
available to the Lender or BBI from time to time under such Regulation; or
3.9.2 Changes of Law. Any change, after the date of this
Agreement, in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) or by any court changing the basis of taxation of payments to a Lenders of
the principal of or interest on any LIBO Rate Advances or any other fees or
amounts payable under this Agreement (other than taxes imposed on the overall
net income of a Lender by any state, or by any political subdivision or taxing
authority therein), or imposing, modifying or applying any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, credit extended by, or any other acquisition of funds for loans by
a Lender or imposing on a Lender or the London Interbank Market
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any other condition affecting this Agreement or any LIBO Rate Advances so as to
increase the cost to a Lender of making or maintaining a LIBO Rate with respect
to any LIBO Rate Advance or to reduce the amount of any sum received or
receivable by a Lender under this Agreement (whether of principal, interest or
otherwise), by an amount deemed by the Lender to be material, but without
duplication for payments required under subsection 3.9.1, above.
Notwithstanding the foregoing, once a LIBO Rate has been established for a
particular LIBO Rate Advance, the LIBO Rate so established shall apply, without
increase, during the applicable LIBO Interest Period, notwithstanding the fact
that the cost to a Lender of making or maintaining LIBO Rates may be increased
as a result of an event set forth in subsection 3.9.1 or 3.9.2, above.
3.10 Prepayment Premium for LIBO Rate Advances. With respect to each
such LIBO Rate Advance being prepaid, the Borrower shall pay to the Agent,
contemporaneously with any such prepayment of this Note, an amount equal to the
amount of the prepayment multiplied by a per annum interest rate equal to the
difference between the LIBO Rate applicable thereto, and the 360 day equivalent
interest yield (hereinafter called the "Reinvestment Rate") on any United States
Treasury obligations selected by the Agent in an aggregate amount approximately
equal to the LIBO Rate Advance being prepaid and with maturities comparable to
the LIBO Roll-Over Date applicable thereto, calculated over a period of time
from the date of prepayment to and including such LIBO Roll-Over Date of such
LIBO Rate Advance. If the LIBO Rate on such LIBO Rate Advance being prepaid is
equal to or less than the Reinvestment Rate, no prepayment premium shall be due.
Any payment of LIBO Rate Advances after acceleration of the applicable maturity
date of Facility, or the commencement of any proceedings to enforce Credit
Documents, as a result of the occurrence of an Event of Default, shall be deemed
a voluntary prepayment for the purposes of this paragraph and a prepayment
premium calculated pursuant to the provisions of this paragraph shall be payable
with respect thereto based upon the LIBO Rates applicable to any LIBO Rate
Advances immediately prior to such default and acceleration. Any partial
prepayment of Advances shall be applied first to the payment in full of
outstanding Prime Rate Advances and Floating LIBO Rate Advances, and then in
reduction of the various outstanding LIBO Rate Advances, in such order and
manner so as to minimize the prepayment premium due with respect thereto as
calculated pursuant to the provisions of this paragraph. The Agent shall
certify to the Borrower the amount and basis of determination of such prepayment
premium, it being agreed that (a) the calculation of such prepayment premium may
be based on any United States Treasury obligations selected by the Agent in its
sole discretion and (b) the Lenders shall not be obligated or required to have
actually reinvested the prepaid principal balance of any such LIBO Rate Advance
in any such United States Treasury obligations as a condition precedent to
receiving a prepayment premium calculated as aforesaid. The Borrower shall, upon
receipt of such certification and contemporaneously with any such prepayment of
any such LIBO Rate Advance, remit to the Agent the prepayment premium, if any,
due in connection therewith as calculated pursuant to the provisions of this
paragraph. The Agent shall not be obligated to accept any prepayment of any
LIBO Rate Advance unless it is accompanied by the prepayment premium, if any,
due in connection therewith as calculated pursuant to the provisions of this
Section.
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3.11 Indemnification. The Borrower shall indemnify the Lenders
against any loss or expense that the Lenders may sustain or incur as a
consequence of any default by the Borrower in the payment of any portion of the
Facility bearing interest at a LIBO Rate, as and when due and payable, or the
occurrence of any event specified in the provisions of this Agreement or the
Credit Documents, including, but not limited to, any loss or reasonable expense
sustained or incurred in liquidating or reemploying deposits from third parties
acquired to effect or maintain any LIBO Rate with respect to any LIBO Rate
Advance. The Agent shall provide to the Borrower a statement explaining the
amount of any such loss or expense, which statement shall be conclusive absent
manifest error.
3.12 Taxes.
3.12.1 Foreign Lender. Each Lender that is not incorporated
under the laws of the United States of America or a state thereof shall: (a)
on or before the date of any payment by the Borrower under this Agreement or
Note(s) to such Lender, deliver to the Borrower and the Agent (x) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
or successor applicable form, as the case may be, certifying that it is
entitled to receive payments under this Agreement and any Notes without
deduction or withholding of any United States federal income taxes and (y) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as the
case may be, certifying that it is entitled to an exemption from United States
backup withholding tax; (b) deliver to the Borrower and the Agent two further
copies of any such form or certification on or before the date that any such
form or certification expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recent form previously delivered by it
to the Borrower; and (c) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Borrower or
the Agent. In the case of any such Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code, such Lender shall
(A) represent to the Borrower (for the benefit of the Borrower and the Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal
Revenue Code, (B) agree to furnish to the Borrower, on or before the date of any
payment by the Borrower, with a copy to the Agent, two accurate and complete
original signed copies of Internal Revenue Service Form W-8, or successor
applicable form certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax under the provisions
of Section 881(c) of the Internal Revenue Code with respect to payments to be
made under this Agreement and any Notes (and to deliver to the Borrower and the
Agent two further copies of such form on or before the date it expires or
becomes obsolete and after the occurrence of any event requiring a change in the
most recently provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrower or the Agent for filing and completing
such forms), and (C) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the benefit
of the Borrower and the Agent) such other forms as may be reasonably required in
order to establish the legal entitlement of such Lender to an exemption from
withholding with respect to payments under this Agreement and any Notes.
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Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender
so advises the Borrower and the Agent then such Lender shall be exempt from
such requirements. Each Person that shall become a Lender or a participant of a
Lender pursuant to this Agreement shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection (b); provided that in the case
of a participant of a Lender, the obligations of such participant of a Lender
pursuant to this subsection (b) shall be determined as if the participant of a
Lender were a Lender except that such participant of a Lender shall furnish all
such required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.12.2 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 above, the Borrower agrees to indemnify the Agent and each Lender,
their 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 Agent, a Lender or their 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 Agent, a Lender, or any of their directors, officers, agents or
employees.
3.13 Interest Rate ▇▇▇▇▇▇ or Swaps. The Borrower agrees that it
will not enter into any interest rate hedge or exchange agreement (a "Swap")
with respect to all or any portion of the Facility without the prior written
consent of the Agent, which consent shall not be unreasonably withheld. At any
time that the Borrower desires to enter a Swap, the Borrower shall give written
notice to the Agent of such fact, which notice shall (i) be given to the Agent
not less than thirty (30) days prior to the date upon which the Borrower
proposes to enter such Swap and (ii) specify the parties to the Swap and the
terms thereof. The Agent shall notify the Borrower in writing, within twenty
(20) days after receipt of any such notice from the Borrower whether the Agent
consents to the entry of such Swap and, if the Agent does not consent, the
reasons for withholding such consent. In the event that the Agent does not
provide such notice to the Borrower within such 20-day period, the Agent shall
be deemed to have consented to the Borrower's entry into such Swap.
ARTICLE 4
Guaranty
4.1 Guaranty of Payment. Subject to Section 4.7 below, each of
the Guarantors hereby, jointly and severally, unconditionally guarantees to
each Lender and the Agent (i) the prompt payment of all obligations of the
Borrower under the Credit Documents in full when due (whether
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at stated maturity, as a mandatory prepayment, by acceleration or otherwise) and
(ii) the timely performance of all other obligations under the Credit Documents
(collectively, the "Guaranteed Obligations"). This Guaranty is a guaranty of
payment and not of collection and is a continuing guaranty and shall apply to
the Guaranteed Obligations whenever arising.
4.2 Obligations Unconditional. The obligations of the Guarantors
hereunder are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Credit
Documents or any other agreement or instrument referred to therein, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor. Each Guarantor agrees that this
Guaranty may be enforced by the Lenders without the necessity at any time of
resorting to or exhausting any other security or collateral and without the
necessity at any time of having recourse to the Notes or any other of the
Credit Documents or any collateral, if any, hereafter securing the Guaranteed
Obligations or otherwise and each Guarantor hereby waives the right to require
the Lenders to proceed against the Borrower or any other Person (including a
co-guarantor) or to require the Lenders to pursue any other remedy or enforce
any other right. Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under the Agreement have been terminated and no Person or governmental
authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Each Guarantor further agrees that nothing contained herein shall prevent the
Lenders from suing on the Notes or any of the other Credit Documents or from
exercising any other rights available to it under any of the Credit Documents,
and the exercise of any of the aforesaid rights shall not constitute a
discharge of any of any Guarantor's obligations hereunder; it being the purpose
and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances.
Neither any Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrower or by reason of the bankruptcy or insolvency
of the Borrower. Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Guaranteed Obligations and notice
of or proof of reliance of by the Agent or any Lender upon this Guarantee or
acceptance of this Guarantee. The Guaranteed Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee. All
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Agent and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee.
4.3 Modifications. Each Guarantor agrees that (a) all or any part
of any security now or hereafter held for the Guaranteed Obligations, if any,
may be exchanged, compromised or surrendered from time to time; (b) the Lenders
shall not have any obligation to protect, perfect, secure or insure any such
security interests, liens or encumbrances now or hereafter held, if any, for
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the Guaranteed Obligations; (c) the time or place of payment of the Guaranteed
Obligations may be changed or extended, in whole or in part, to a time certain
or otherwise, and may be renewed or accelerated, in whole or in part; (d) the
Borrower and any other party liable for payment under the Credit Documents may
be granted indulgences generally; (e) any of the provisions of the Notes or any
of the other Credit Documents may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Borrower or any other party liable for the payment of the Guaranteed
Obligations or liable upon any security therefor may be released, in whole or
in part, at, before or after the stated, extended or accelerated maturity of
the Guaranteed Obligations, all without notice to or further assent by such
Guarantor, which shall remain bound thereon, notwithstanding any such exchange,
compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
4.4 Waiver of Rights. Each Guarantor expressly waives to the
fullest extent permitted by applicable law: (a) notice of acceptance of this
Guaranty by the Lenders and of all extensions of credit to the Borrower by the
Lenders; (b) presentment and demand for payment or performance of any of the
Guaranteed Obligations; (c) protest and notice of dishonor or of default
(except as specifically required in the Agreement) with respect to the
Guaranteed Obligations or with respect to any security therefor; (d) notice of
the Lenders obtaining, amending, substituting for, releasing, waiving or
modifying any security interest, lien or encumbrance, if any, hereafter
securing the Guaranteed Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) demand for payment under this Guaranty.
4.5 Reinstatement. The obligations of the Guarantors under this
Article 4 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.6 Remedies. The Guarantors agree that, as between the
Guarantors, on the one hand, and the Agent and the Lenders, on the other hand,
the Guaranteed Obligations may be declared to be forthwith due and payable as
provided in Article 9 (and shall be deemed to have become automatically due and
payable in the circumstances provided in Article 9) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become
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automatically due and payable), such Guaranteed Obligations (whether or not due
and payable by any other Person) shall forthwith become due and payable by the
Guarantors.
4.7 Limitation of Guaranty. Notwithstanding any provision to the
contrary contained herein or in any of the other Credit Documents, to the
extent the obligations of any Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers) then the obligations of such Guarantor hereunder shall be limited to
the maximum amount that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code).
ARTICLE 5
Representations and Warranties
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Facility available, the Borrower and, to the extent
that the following representations and warranties are applicable to the
Guarantors, the Guarantors, represent and warrant to the Agent and each of the
Lenders (which representations and warranties shall survive the delivery of the
Notes and the making of Advances) that:
5.1 Corporate Status. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has the corporate power and legal authority to own its property and
carry on its business as now being conducted and is duly qualified to do
business in every jurisdiction where qualification is necessary. Each
Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of the state(s) of its formation, has the corporate
power and legal authority to own its property and carry on its business as now
being conducted and is duly qualified to do business in every jurisdiction
where qualification is necessary.
5.2 Subsidiaries. The Guarantors are the only Subsidiaries which
have, individually, total assets in excess of $5,000,000.00. The Borrower
agrees to provide to the Agent annually, simultaneously with providing the
information required pursuant to Section 6.1(a), a then current list of all
Subsidiaries and the Borrower's percentage ownership of each such Subsidiary.
5.3 Joint Ventures and Partnerships. The Borrower owns not less
than a forty-five percent (45%) interest in each of the joint ventures in which
the Borrower is involved and not less than a seventy percent (70%) interest in
the partnerships in which the Borrower is involved (such joint ventures and
partnerships being referred to collectively as the "Joint Ventures"). The
Borrower agrees to provide to the Agent annually, simultaneously with providing
the information required pursuant to Section 6.1(a), a then current list of all
Joint Ventures and the Borrower's percentage ownership of each such Joint
Venture.
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5.4 Fictitious Names. Except for the names "Outback Steakhouse"
and "Carrabba's Italian Grill" no other fictitious or trade name(s) are
currently used by the Borrower, its Subsidiaries or the Joint Ventures as
restaurant names in the conduct of its or their businesses.
5.5 Power and Authority. Each Credit Party is authorized under
all applicable provisions of law to execute, deliver and perform pursuant to
this Agreement and the other Credit Documents, and all actions on the part of
each Credit Party required for the lawful execution, delivery and performance
of this Agreement and the other Credit Documents to which such Credit Party is
a party have been duly taken. Each of this Agreement and each of the other
Credit Documents, upon the due execution and delivery thereof, will be the
valid and enforceable instrument, obligation or agreement of the each Credit
Party executing such document in accordance with its terms, except as limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally. To the best of each Credit Party's knowledge,
neither the execution and delivery of this Agreement or the other Credit
Documents, nor the fulfillment of or compliance with their provisions and
terms, will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a violation of or default under any applicable
law, regulation, order, writ, or decree, or any agreement or instrument to
which such Credit Party is now a party, or create any security interest,
chattel mortgage, lien or other encumbrance upon any of the property or assets
of such Credit Party pursuant to the terms of any agreement or instrument to
which such Credit Party is a party or by which it is bound, except those, if
any, in favor of the Lenders expressly created by the Credit Documents.
5.6 Financial Information.
(a) The consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries as of December 31, 1996 and the
related consolidated statements of income, shareholders' equity and
cash flow for the fiscal year then ended, reported on by Deloitte &
Touche, a copy of each of which has been delivered to the Agent,
fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated
results of operations and changes in financial position for such
fiscal year.
(b) The unaudited consolidated balance sheets of
the Borrower and its Consolidated Subsidiaries as of March 31, 1997 and
the related unaudited consolidated statements of income, shareholders'
equity and cash flow for the three months then ended, set forth
in the Borrower's quarterly report for the fiscal quarter ended March
31, 1997 as filed with the Securities and Exchange Commission on Form
10-Q, a copy of which has been delivered to the Agent, fairly present,
in conformity with generally accepted accounting principles applied on
a basis consistent with the financial statements referred to in
paragraph (a) of this Section, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and changes in financial
position for such three month period (subject to normal year-end
adjustments).
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(c) Since December 31, 1996, there has been no
material adverse change in the business, financial position, results
of operations or prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
5.7 No Liens. There are no judgments, liens, encumbrances, or
other security interests outstanding against any Credit Party or any of such
Credit Party's property other than those disclosed to the Agent and the Lenders
in connection with the Borrower's request for the Facility.
5.8 Liabilities. No Credit Party has incurred any debts,
liabilities, or obligations other than those disclosed to the Agent and the
Lenders in connection with the Borrower's request for the Facility or those
shown on the financial statements and/or the notes thereto submitted to the
Agent by the Borrower or those incurred in the ordinary course of business
subsequent to the date of the financial statements.
5.9 Litigation. There are no investigations, actions, suits or
proceedings by any federal, state or local government body, agency or
authority, or any political subdivisions thereof, or by any Person, pending, or
to the knowledge of the Credit Parties, threatened against any of the Credit
Parties or other proceedings to which any Credit Party is a party (including
administrative or arbitration proceedings), (a) that are likely to result in
any material adverse change in, or to have any other material adverse effect
on, the business or condition, financial or otherwise, of such Credit Party, or
(b) that, whether or not a Credit Party is a party thereto, seek to restrain,
enjoin, prohibit or obtain damages or other relief with respect to the
transactions contemplated by this Agreement.
5.10 Tax Returns. Each Credit Party has filed all tax returns
required to be filed by it and has paid all taxes and assessments payable by it
that have become due, other than those not yet delinquent. Each Credit Party
has established reserves that are believed by such Credit Party to be adequate
for the payment of all federal and state income taxes not heretofore paid or
closed by applicable statute.
5.11 Contract or Restriction Affecting Credit Parties. No Credit
Party is a party to or bound by any contract or agreement or subject to any
charter or other corporate restriction that materially and adversely affects or
will materially and adversely affect the business, properties or condition,
financial or otherwise, of such Credit Party.
5.12 Patents and Trademarks. The Credit Parties own, possess or
have the right to use all patents, licenses, trademarks, trademark rights,
trade names, trade name rights, copyrights, trade secrets and proprietary and
other confidential commercial information necessary to conduct their businesses
as now conducted in all material respects, without known conflict with any
patent, license, trademark, trade name, copyright or proprietary right of any
other person, except for conflicts which do not have a materially adverse
effect on the Credit Parties or their businesses.
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5.13 Governmental Approval. Each Credit Party is in compliance
with all applicable laws and regulations of all governmental authorities,
except where the failure to so be in compliance will not materially and
adversely affect the business, properties or condition, financial or otherwise,
of such Credit Party. Except as otherwise specified herein, no written
approval of any federal, state or local governmental authority, or any
political subdivision thereof, is necessary for the Credit Parties to carry out
the terms of this Agreement or any of the other Credit Documents, and no
consents or approvals are required in the making or performance of this
Agreement or any of the other Credit Documents by the Credit Parties.
5.14 Regulation U. Except for the repurchase by the Borrower of
shares of its issued and outstanding capital stock, no part of the proceeds of
the Facility will be used to purchase or carry or to reduce or retire any loan
incurred to purchase or carry, any margin stocks (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stocks. The Borrower is not engaged and will not engage as one of its
important activities in extending credit for the purpose of purchasing or
carrying such margin stocks. If requested by the Agent, the Borrower will
furnish to the Agent, in connection with the Facility, a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in
Regulation U. In addition, no part of the proceeds of the Facility will be
used for the purchase of commodity future contracts (or margins therefor for
short sales), or for any commodity not required for the normal inventory of
one or more of the Credit Parties.
5.15 Securities Law. Except for the repurchase by the Borrower of
shares of its issued and outstanding capital stock, no proceeds of the Facility
will be used to acquire any security in any transaction that is subject to
Sections 13 and 14 of the Exchange Act, as amended. The Borrower is not an
"investment company" or a company "controlled" by an "investment company"
(within the meaning of the Investment Company Act of 1940, as amended).
5.16 ERISA.
(a) All pension or welfare benefit plans within the
respective meanings of Sections 3(2) and 3(l) of ERISA to which the
Borrower is a party or to which the Borrower makes any employer
contributions with respect to employees are listed on SCHEDULE 5.16
attached hereto. None of the plans listed on SCHEDULE 5.16 is subject
to Section 412 of the Code or Title IV of ERISA. With regard to the
current and previous plan years of each plan referred to on SCHEDULE
5.16, all contributions required to meet the employer contribution
obligations of the Borrower under the terms of the plan itself, or any
applicable collective bargaining agreement, with respect to previous
plan years, have been duly made, and such plan and its related trust
have not incurred any accumulated funding deficiency (within the
meaning of Section 412(a) of the Code and Section 302 of ERISA) since
the effective date of ERISA. In addition, the Borrower has not
incurred any withdrawal liability under Title IV of ERISA with respect
to any multi-employer plan (within the meaning of Section 3(37) of
ERISA).
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(b) To the best of the Borrower's knowledge, neither
the Borrower nor any Affiliate has engaged in any "prohibited
transactions" within the meaning of Section 4975 of the Code or
Section 406 of ERISA that could subject the Borrower or such Affiliate
to the tax or penalty on prohibited transactions imposed by Section
4975 of the Code.
(c) To the best of the Borrower's knowledge, no
Reportable Event (as such term is defined in Title IV of ERISA) has
occurred with respect to, nor has there been terminated, any plan
subject to Title IV of ERISA and maintained for any employees of the
Borrower or any member of any "controlled group of corporations" (as
such term is defined in Section 1563 of the Code) of which the
Borrower is a member.
5.17 Environmental Matters.
(a) To the best of each Credit Party's knowledge,
such Credit Party is in compliance with all provisions of the
Environmental Laws, except where the failure to so be in compliance
will not materially and adversely affect the business, properties or
condition, financial or otherwise, of such Credit Party.
(b) No Credit Party has received any assessment,
notice of liability or notice of financial responsibility, and no
notice of any action, claim or proceeding to determine such liability
or responsibility, or the amount thereof, or to impose civil penalties
with respect to a site listed on any federal or state listing of sites
containing or believed to contain Hazardous Materials, and no Credit
Party has received notification that any hazardous substances (as
defined under CERCLA) that it has disposed of have been found in any
site at which any governmental agency is conducting an investigation
or other proceeding under any Environmental Law.
(c) To the best of each Credit Party's knowledge, no
part of any of the property used by any Credit Party in its business
or any building, structure or facility located thereon or improvement
thereto contains asbestos or polychlorinated biphenyls (PCBs); have
electrical transformers, fluorescent light fixture ballasts or other
equipment containing PCBs installed thereon or therein; is used for
the handling, processing, storage or disposal of Hazardous Materials;
or contain above-ground or underground storage tanks or other storage
facilities for Hazardous Materials or, if any of the foregoing
circumstances exist, the same does not and will not have a materially
adverse impact on the financial condition or business operations of the
Borrower.
(d) No excise taxes have been imposed on any Credit
Party pursuant to Section 4611, 4661 or 4681 of the Code.
5.18 No Untrue Statements. Neither this Agreement, nor any of the
other Credit Documents, nor any other agreement, report, schedule,
certification or instrument simultaneously
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with the execution of this Agreement delivered to the Agent by any Credit Party
or by any officer thereof, contains any misrepresentation or untrue statement of
any material fact or omits to state any material fact necessary to make any of
such agreements, reports, schedules, certificates or instruments not misleading
in any material respect.
5.19 $7.5 Million Facility. The Borrower is in full compliance
with and not in default with respect to all of covenants, representations,
warranties and obligations set forth in the $7.5 Million Agreement, the $7.5
Million Note and all other documents relating to the $7.5 Million Facility.
ARTICLE 6
Affirmative Covenants
The Borrower and, to the extent that any of the following
affirmative covenants are applicable to the Guarantors, the Guarantors covenant
that, so long as any portion of the Advances remains unpaid and unless the
Agent and the Lenders otherwise consent in writing:
6.1 Information. The Borrower will deliver to the Agent:
(a) as soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, consolidated
balance sheets 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 flow for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the
Securities and Exchange Commission by Deloitte & Touche or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45
days after the end of each quarter of each fiscal year of the
Borrower, consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of income, shareholders' equity and
cash flow for such quarter and for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles 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 of the chief financial officer or the chief accounting
officer of Borrower in the form attached hereto as EXHIBIT 6.1. If
any Event of
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Default exists on the date of such certificate, such certificate
shall set forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a statement of
the firm of independent public accountants which reported on such
statements (i) as to whether anything has come to their attention to
cause them to believe that there existed on the date of such
statements any Event of Default and (ii) confirming the calculations
set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Event of
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, unless
the securities covered thereby are held or distributed by the
Borrower, any registration statements on Form S-3 to the extent they
relate to secondary offerings or Form S-8 or their equivalents) and
annual, quarterly or other reports which the Borrower shall have filed
with the Securities and Exchange Commission including, without
limitation, Forms 10-K, 10-Q and 8-K;
(h) from time to time such additional information
regarding the financial position or business of the Borrower as the
Agent may reasonably request.
6.2 Payment of Obligations. Each Credit Party will pay and
discharge at or before maturity, all its material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of any of the same.
6.3 Maintenance of Property; Insurance. Each Credit Party will
keep all property useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted; will maintain either with
financially sound and reputable insurance companies or pursuant to a plan of
self-insurance established in accordance with sound and appropriate practices,
insurance on all their property in at least such amounts and against at least
such risks as are usually insured against in the same general area by companies
of established repute engaged in the same or a similar business; and will
furnish to the Agent, upon request, full information as to the insurance
carried.
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6.4 Conduct of Business and Maintenance of Existence. Each Credit
Party will preserve, renew and keep in full force and effect its corporate
existence and its rights, privileges and franchises necessary or desirable in
the normal conduct of business.
6.5 Inspection of Property, Books and Records. Each Credit Party
will keep proper books of record and account in which full, true and correct
entries in conformity with generally accepted accounting principles shall be
made of all dealings and transactions in relation to its business and
activities; and will permit representatives of the Agent, at the Agent's
expense, to visit and inspect any of its properties, to examine and make
abstracts and copies from its books and records and to discuss its affairs,
finances and accounts with its officers, employees and independent public
accountants, all at such reasonable times and as often as may reasonably be
desired.
6.6 Licenses and Permits, Etc. Each Credit Party will preserve
and keep in force all licenses, permits and franchises necessary for the proper
conduct of such Credit Party's business.
6.7 Advice Regarding Changes. Each Credit Party will inform the
Agent immediately of any material adverse changes in the financial condition of
such Credit Party.
6.8 Advice Regarding Litigation. Each Credit Party will inform
the Agent promptly of any litigation or threatened litigation which might or
could substantially affect such Credit Party's financial condition.
6.9 Maintenance of Property. Each Credit Party will maintain all
of such Credit Party's property and equipment in a state of good repair.
6.10 Further Assurances. Each Credit Party will, at its own cost
and expense, upon request of the Agent, duly execute and deliver or cause to be
duly executed and delivered to the Agent such further instruments and do and
cause to be done such further acts that may be necessary or proper in the
opinion of the Agent, reasonably exercised, to carry out more effectively the
provisions and purposes of this Agreement and the other Credit Documents.
6.11 Observe All Laws. Each Credit Party will conform to and duly
observe in all material respects all laws, regulations and other valid
requirements of any regulatory authority with respect to its properties and the
conduct of its business.
6.12 ERISA Requirement. The Borrower will comply with all
requirements of ERISA applicable to it and furnish to the Agent as soon as
possible and in any event within thirty (30) days after any officer of the
Borrower or any duly appointed administrator of any employee pension benefit
plan (as defined in ERISA) knows or has reason to know that any Reportable
Event (as defined in ERISA) with respect to any such plan has occurred, an
Officers' Certificate describing in reasonable detail such Reportable Event and
any action that the Borrower proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event given to the Pension Benefit
Guaranty Corporation, or any successor thereto, or a statement that said notice
will be filed
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with the annual report of the United States Department of Labor with respect to
such plan if such filing has been authorized.
6.13 Bank Accounts. The Borrower will maintain all operating
accounts with the Agent, except for local accounts of restaurant locations
operating outside the State of Florida.
6.14 Consolidated Tangible Net Worth. The Borrower will maintain
the Borrower's Consolidated Tangible Net Worth in an amount not less than: (i)
$300,000,000.00 for each of the second and third quarters of the Borrower's
fiscal year ending in 1997; (ii) $330,000,000.00 for each of the fourth quarter
of the Borrower's fiscal year ending in 1997 and the first, second and third
quarters of the Borrower's fiscal year ending in 1998; (iii) $375,000,000.00
for each of the fourth quarter of the Borrower's fiscal year ending in 1998 and
the first, second and third quarters of the Borrower's fiscal year ending in
1999; and (iv) $450,000,000.00 for the fourth quarter of the Borrower's fiscal
year ending in 1999, and each quarter thereafter during the remainder of the
term of the Facility. Compliance with the foregoing Consolidated Tangible Net
Worth covenant shall be measured as of the end of each fiscal quarter of the
Borrower.
6.15 Leverage Ratio. The Borrower will maintain its Leverage Ratio
at a maximum of 0.75:1.00 as of the end of each quarter during the term of this
Agreement.
6.16 Maximum Capital Expenditures. The Borrower will not expend for
all Capital Expenditures, excluding pre-opening costs, in excess of: (i)
$165,000,000.00 for the Borrower's fiscal year ending in 1997; (ii)
$170,000,000.00 for the Borrower's fiscal year ending in 1998; and (iii)
$190,000,000.00 for the Borrower's fiscal year ending in 1999. Compliance with
the foregoing covenant shall be measured as of the end of each fiscal year.
6.17 Maximum Debt to EBITDA Ratio. The Borrower will maintain its
Debt to EBITDA Ratio at a maximum of 1.50:1.00 as of the end of each quarter
during the term of this Agreement.
6.18 Additional Subsidiaries to Become Guarantors. At the time
that any Person becomes a Subsidiary of a Credit Party and such Person so
becoming a Subsidiary has total assets of $5,000,000.00 or more, the Borrower
shall so notify the Agent and promptly thereafter (but in any event within 30
days after the date thereof) shall cause such Person to (a) execute an
agreement, in form and substance satisfactory to the Agent, pursuant to which
such Person joins in this Agreement and assumes all obligations of a Guarantor
under Article 4 hereof and (b) deliver such other documentation as the Agent
may reasonably request, including, without limitation, certified resolutions
and other organizational and authorizing documents of such Person and favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the joinder agreement
referred to above. Further, in the event that, at any time, the total assets
of all Subsidiaries which are not then Guarantors (the "Non-Guarantor
Subsidiaries"), in the aggregate, is equal to or greater than $15,000,000.00,
the Borrower shall so notify the Agent and promptly thereafter (but in any
event within 30 days after the date thereof) shall cause such any Non-Guarantor
Subsidiary which has total assets equal to or greater than $3,000,000.00 to
take the actions and deliver the documents required by clauses (a) and (b) of
the preceding sentence.
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ARTICLE 7
Negative Covenants
The Credit Parties agree that, so long as any portion of the Advances
remains unpaid, unless the Agent and the Required Lenders otherwise consent in
writing:
7.1 Additional Indebtedness. Except for additional indebtedness
assumed in connection with acquiring or "rolling-up" franchises and joint
ventures, no Credit Party will incur any additional indebtedness for borrowed
money, any additional contingent liabilities, or collaterally assign, mortgage,
pledge, encumber, grant any security interest in any of such Credit Party's
assets, whether now owned or hereafter acquired, except in the ordinary course
of such Credit Party's business and with the prior written consent of the
Agent, which consent will not be unreasonably withheld.
7.2 Dividends. No Credit Party will pay any dividends on any of
such Credit Party's common stock, except those dividends considered as cash
distributions to operating partners and limited partners.
7.3 Guaranty of Debt. Except for guarantees by the Borrower of
(i) a loan to a franchisee as contemplated by the $7.5 Million Agreement or
(ii) other debt extended by the Agent to Subsidiaries, Affiliates or
franchisees of the Borrower or to some other Person at the request of the
Borrower, no Credit Party will guaranty, endorse, or otherwise become surety
for or upon the obligation of any Person, except in the ordinary course of such
Credit Party's business and with the prior written consent of the Agent, which
consent will not be unreasonably withheld.
7.4 Extend Credit. No Credit Party will lend money or credit to
or make or permit to be outstanding loans or advances to officers or
shareholders of any Credit Party, except those transactions occurring in the
ordinary course of the Credit Party's business and with the prior written
consent of the Agent, which consent will not be unreasonably withheld.
7.5 Merger or Consolidation. The Borrower will not enter into any
merger or consolidation in which the Borrower is not the surviving entity.
7.6 Transfer of Assets; Other Business Changes. No Credit Party
will sell, lease, transfer, or otherwise dispose of all or any substantial part
of its assets, whether now owned or hereafter acquired, except in the limited
situations where the Borrower is exchanging common stock for joint venture
partnership interests or interests of franchisees; or change its name or any
name in which it does business; or move its principal place of business.
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ARTICLE 8
Conditions Precedent
8.1 Closing. The closing of the transactions contemplated hereby
(the "Closing") shall be held at Valdosta, Lowndes County, Georgia, on August
22, 1997, or at such other time and/or place as the parties may agree.
8.2 Conditions Precedent to the Closing. The Agent and the
Lenders shall have no obligation to close the transactions contemplated hereby
or to make any Advances to the Borrower under the Facility until the Agent has
received the items listed below and/or the events described below have
occurred, as the case may be:
(a) Credit Documents. The Credit Documents shall
have been duly executed by the Credit Parties which are party thereto
and delivered to the Agent.
(b) Resolutions. A certificate from each Credit
Party, certified by such Credit Party's duly elected or acting
corporate secretary, stating that resolutions of the Board of
Directors of such Credit Party have been duly adopted which authorize
the execution and delivery of the applicable Credit Documents by such
Credit Party's authorized officers.
(c) Certificates of Incumbency. A certificate of
incumbency for each Credit Party showing the present officers and
directors of such Credit Party and specimen signatures of said
officers and directors.
(d) Certificate of Good Standing; Articles of
Incorporation; By-laws. A certificate of good standing with respect to
each Credit Party from the Secretary of State of the state of
incorporation of such Credit Party; a certificate of such Credit
Party's authorization to transact business in the State of Florida
from the Secretary of State of Florida; and either a certificate of
duly elected or acting corporate secretary stating that the Articles
of Incorporation and By-Laws of such Credit Party which have
previously been delivered to the Agent have not be changed or amended
or, if copies of the Articles of Incorporation and By-Laws of such
Credit Party have not previously been delivered to the Agent,
certified copies of the Articles of Incorporation and By-Laws of such
Credit Party.
(e) No Adverse Change. No conditions occur or arise
regarding the financial condition of any Credit Party which the Agent
deems, in its sole discretion, to have a materially adverse impact on
the financial condition of such Credit Party and the Agent receives an
Officer's Certificate stating that no such material adverse change has
occurred.
(f) Opinion of Counsel. An opinion of legal counsel
to the Credit Parties addressed to the Agent on behalf of the Lenders
dated as of the date of the Closing, which shall cover, among other
things, the due authorization, execution, delivery, legality, binding
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effect and enforceability of the Credit Documents, in form and
substance reasonably satisfactory to the Agent.
8.3 Conditions to Advances. At the time of each Advance of a
portion of the Facility, each of the following statements shall be true in all
material respects:
(a) Notice. The Borrower shall have delivered, in
the case of any Advance other than a Swing Line Advance, a Notice of
Borrowing, duly executed and completed, by the time specified in
Section 2.1.
(b) Availability. Immediately after giving effect
to the making of an Advance, the sum of the Advances outstanding shall
not exceed the Facility Committed Amount.
(c) Representations and Warranties. All of the
representations and warranties of the Credit Parties set forth in this
Agreement or in any other of the Credit Documents shall be correct on
and as of the date of such Advance as though made on and as of such
date.
(d) No Default. Each Credit Party shall have
observed and performed in all material respects all of the terms,
conditions and agreements set forth herein or in any other Credit
Documents on its part to be observed or performed and no Event of
Default and no Default shall have occurred and be continuing.
(e) Financial Statements. All required financial
statements and other material have been delivered to the Agent by the
Borrower pursuant to Section 6.1; no material adverse changes shall
have occurred since the date of such financial statements; and no
material liabilities, contingent or otherwise, not shown on said
financial statements or the notes thereto, shall exist, except those
incurred or arising in the ordinary course of business since the end
date for the last annual accounting period of the Borrower.
(f) Litigation. There shall be no actions, suits,
proceedings or claims pending or threatened against or affecting any
Credit Party, the result of which might materially adversely affect
the respective consolidated financial condition, business or
operations of such Credit Party.
ARTICLE 9
Default
9.1 Events of Default. The occurrence of one or more of the
following events shall constitute an event of default hereunder (an "Event of
Default"):
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(a) Payments. The failure to pay within ten (10)
days after the due date any principal, interest, fees or any
other amount payable hereunder or under any of the other Credit
Documents, either by the terms hereof or thereof or otherwise as herein
or therein provided.
(b) Covenants. The Borrower shall fail to observe
or perform any covenant contained in Sections 6.14 through 6.17 of
this Agreement; or any Credit Party shall fail to observe or perform
any other covenant contained in this Agreement for a period of 30 days
after written notice thereof has been given to the applicable Credit
Party by the Agent.
(c) Representation or Warranty. Any representation
or warranty made by a Credit Party herein or in any writing furnished
in connection with or pursuant to this Agreement or any of the other
Credit Documents shall be false or misleading in any material respect
on the date upon which made or deemed reaffirmed.
(d) Other Documents. The occurrence of any default
as specified in any of the other Credit Documents and such default
shall not have been remedied (i) within the grace period, if any,
provided in such Credit Document or (ii) if no grace period is
provided in such Credit Document and such default does not relate to
the payment of money, within thirty (30) days after written notice
thereof to the applicable Credit Party from the Agent or such longer
time, not to exceed ninety (90) days, as is necessary if the Credit
Party is diligently pursuing a cure and the default is reasonably
capable of being cured within such extended period.
(e) Default under $7.5 Million Facility or Other
Obligations. An event of default shall occur under the $7.5 Million
Agreement or any other documents or instruments evidencing and/or
securing the $7.5 Million Facility or any event or condition shall
occur which (i) results in the acceleration of the maturity of or
demand on any other obligation of the Borrower to the Agent or (ii)
with the giving of notice or lapse of time or both, would enable the
holder of such obligation or any Person acting on such holder's behalf
to accelerate the maturity thereof or to make demand thereon.
(f) Liquidation; Dissolution; Voluntary Bankruptcy.
The liquidation or dissolution of a Credit Party, or the suspension of
the business of a Credit Party, or the filing by a Credit Party of a
voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the Bankruptcy
Code, as amended, or under any other insolvency act or law, state or
federal, now or hereafter existing, or any other action of a Credit
Party indicating its consent to, approval of or acquiescence in, any
such petition or proceeding; the application by a Credit Party for, or
the appointment by consent or acquiescence of a Credit Party of a
receiver, a trustee or a custodian of such Credit Party for all or a
substantial part of its property; the making by a Credit Party of any
assignment for the benefit of creditors; the inability of a Credit
Party or the admission by a Credit Party
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in writing of its inability to pay its debts as they mature; or a
Credit Party taking any corporate action to authorize any of the
foregoing.
(g) Involuntary Bankruptcy. The filing of an
involuntary petition against a Credit Party in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any
other relief under the Bankruptcy Code, as amended, or under any other
insolvency act or law, state or federal, now or hereafter existing; or
the involuntary appointment of a receiver, a trustee or a custodian of
a Credit Party for all or a substantial part of its property; or the
issuance of a warrant of attachment, execution or similar process
against any substantial part of the property of a Credit Party, and
the continuance of any of such events for ninety (90) days undismissed
or undischarged.
(h) Adjudication of Bankruptcy. The adjudication of
a Credit Party as bankrupt or insolvent.
(i) Order of Dissolution. The entering of any order
in any proceedings against a Credit Party decreeing the dissolution,
divestiture or split-up of such Credit Party, and such order remains
in effect for more than sixty (60) days.
(j) Reports and Certificates. Any report,
certificate, financial statement or other instrument delivered to the
Agent by or on behalf of a Credit Party pursuant to the terms of this
Agreement or the Credit Documents is false or misleading in any
material respect when made or delivered.
(k) Judgment. A final judgment (after all avenues
of appeal and all applicable appeal periods have expired), which with
other outstanding final judgments against such Credit Party exceeds an
aggregate of Five Hundred Thousand and No/100 Dollars ($500,000.00)
(net of amounts covered by insurance), shall be rendered against a
Credit Party, and if within sixty (60) days after entry thereof such
judgment shall not have been discharged, paid or bonded or execution
thereon stayed pending appeal, or if within sixty (60) days after the
expiration of any such stay such judgment shall not have been
discharged.
(l) Illegality of Agreement or the Notes. This
Agreement or the Notes shall have been held by any court of competent
jurisdiction, or by any competent regulatory authority, to be illegal,
invalid, prohibited or unenforceable in whole or in material part.
(m) Change of Control. A Change of Control of a
Credit Party shall occur without the prior written consent of the
Agent.
(n) Guaranties. The guaranty given by the Guarantors
hereunder shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on
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behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under such guaranty.
9.2 Remedies. Upon the occurrence of any Event of Default and at
any time thereafter unless and until such Event of Default has been waived in
writing by the Required Lenders (or the Lenders as may be required hereunder at
such time), the Agent shall be entitled to take any of the following actions,
provided the action taken by the Agent is consistent with the provisions of
Section 10.6, without prejudice to the rights of the Agent or any Lender to
enforce its claims against the Credit Parties, except as otherwise specifically
provided for herein:
(a) Termination of Commitments and Obligation to
Make Advances. (i) For any Event of Default specified in the
subsections of Section 9.1, other than subsections (f), (g), (h) and
(i), declare the Commitments to be terminated and thereafter refuse to
make any further Advances under the Facility or (ii) for any Event of
Default specified in subsections (f), (g), (h) or (i) of Section 9.1,
the Commitments shall automatically terminate and the Lenders shall
have no obligation to make Advances under this Agreement. In the
event that the Commitments are terminated, as provided in clause (i)
or clause (ii) of the preceding sentence, the Agent shall give written
notice of such termination to the Borrower, but the failure of the
Agent to give such notice or of the Borrower to receive such notice
shall in no way obligate the Agent or the Lenders to continue making
Advances after the occurrence of an Event of Default.
(b) Acceleration and Set-off. Upon five (5) days
written notice, declare the entire principal and all interest on the
Advances and all obligations under the Credit Documents, and all other
indebtedness of the Borrower to the Agent, including without
limitation the $7.5 Million Facility, whether the Borrower's liability
for payment thereof is primary or secondary, direct or indirect, sole,
joint, several or joint and several, or whether the indebtedness is
matured or unmatured, due or to become due, fixed, absolute or
contingent, to be immediately due and payable (without presentment,
demand, protest or other notice of any kind, all of which are
expressly waived) and the Advances and all such other indebtedness
thereupon shall be and become immediately due and payable, and the
Agent may proceed to collect the same by foreclosure, at law, or as
otherwise provided in the Credit Documents and/or other instruments or
agreements signed by the Borrower or the Guarantors. In addition,
without limiting any other rights of the Agent, whenever the Agent has
the right to declare any indebtedness to be immediately due and
payable (whether or not it has so declared), each of the Agent and
each Lender may set off against the indebtedness without notice any
amounts then owed to the Borrower by the Agent or such Lender, as the
case may be, in any capacity, whether due or not due, including
without limitation deposits, stocks, bonds and other securities and
other assets held in any custodial accounts, and each of the Agent and
each Lender shall be deemed to have exercised its right to set off
immediately at the time its right to such election accrues.
(c) Cumulative Remedies. All rights, remedies or
recourse of the Agent under this Agreement, the Notes, or any other
Credit Documents, at law, in equity or
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otherwise, are cumulative, and exercisable concurrently, and may be
pursued singularly, successively or together and may be exercised as
often as occasion therefore shall arise. No act of commission or
omission by the Agent or the Lenders, including, but not limited to,
any failure to exercise, or any delay, forbearance or indulgence in the
exercise of, any right, remedy or recourse hereunder or under any other
Credit Document shall be deemed a waiver, release or modification of
that or any other right, remedy or recourse, and no single or partial
exercise of any right, remedy or recourse shall preclude the Agent or
the Lenders from any other or future exercise of the right, remedy or
recourse or the exercise of any other right, remedy or recourse. No
waiver or release of any such rights, remedies and recourse shall be
effective against the Agent or any Lender unless in writing and
manually signed by an authorized officer on the Agent's behalf or on
such Lender's behalf (as appropriate), and then only to the extent
recited therein. A waiver, release or modification with reference to
any one event shall not be construed as continuing or constituting a
course of dealing, nor shall it be construed as a bar to, or as a
waiver, release or modification of, any subsequent right, remedy or
recourse as to a subsequent event. Notwithstanding the fact that
enforcement powers reside primarily with the Agent, each Lender has, to
the extent permitted by law, a separate right of payment and shall be
considered a separate "creditor" holding a separate "claim" within the
meaning of Section 101(5) of the Bankruptcy Code or any other
insolvency statute.
(d) No Liability. Whether or not the Agent or any
Lender elects to employ any or all remedies available to it in the
event of an occurrence of an Event of Default, neither the Agent nor
any Lender shall be liable for the payment of any expenses incurred in
connection with the exercise of any remedy available to the Agent or
the Lenders or for the performance or non-performance of any
obligation of the Credit Parties.
9.3 Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Agreement, after the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Agent or any Lender on account of amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any fees owed to the Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents;
FOURTH, to the payment of all accrued fees and interest
payable to the Lenders hereunder;
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FIFTH, to the payment of the outstanding principal amount of
the Advances, pro rata, as set forth below;
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to
whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (b) each of the Lenders shall receive an amount equal
to its pro rata share (based upon each Lender's Facility Commitment Percentage)
of amounts available to be applied pursuant to clauses "THIRD", "FOURTH,"
"FIFTH," and "SIXTH" above.
ARTICLE 10
Agent Provisions
10.1 Appointment. Each Lender hereby designates and appoints the
Agent as agent of such Lender to act as specified herein and the other Credit
Documents, and each such Lender hereby authorizes the Agent, as the agent for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any of the other Credit Documents, or shall otherwise
exist against the Agent. The provisions of this Section are solely for the
benefit of the Agent and the Lenders and none of the Credit Parties shall have
any rights as a third party beneficiary of the provisions hereof. In
performing its functions and duties under this Agreement and the other Credit
Documents, the Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for any Credit Party.
10.2 Powers of the Agent.
10.2.1 General Powers. Subject to the terms and conditions
contained herein, the Agent shall (i) act on behalf of the Lenders in connection
with the overseeing the Facility and with the receipt and collection of the
Advances and the payments to be made hereunder, (ii) act on behalf
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of the Lenders in connection with the continued servicing and day to day
administration of the Facility, and in connection with the performance of all
acts, duties, rights and obligations required of or granted to the Agent or the
Lenders under the Credit Documents and (iii) have such other powers as are
reasonably incidental to the powers specifically delegated to the Agent, as
agent for the Lenders under this Agreement and/or the Credit Documents.
10.2.2 Limitation. Agent may not, without the prior written
consent of each Lender: (i) make or consent to any change in the interest rate
payable on Advances or fees payable under this Agreement or any payment schedule
of interest or principal and interest or fees as established in this Agreement;
(ii) make or consent to any change in the Maturity Date; (iii) make or consent
to any amendments in the terms and conditions of this Agreement, the Notes or
any of the other Credit Documents; (iv) release any Guarantor from its
Guaranteed Obligations; (v) increase any Commitment or the Facility Committed
Amount; or (vi) reduce the amount of any principal, accrued fees or interest.
10.3 Exculpatory Provisions. Neither the Agent, nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection herewith or in connection with any of the
other Credit Documents (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any of the
Credit Parties contained herein or in any of the other Credit Documents or in
any certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by the Agent under or in
connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of any Credit Party to perform its obligations hereunder or
thereunder. The Agent shall not be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement, or any of the other Credit Documents or for any
representations, warranties, recitals or statements made herein or therein or
made by any Credit Party in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Agent to the
Lenders or by or on behalf of the Credit Parties to the Agent or any Lender or
be required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained herein
or therein or as to the use of the proceeds of the Advances or of the existence
or possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties. The Agent is not a trustee
for the Lenders and owe no fiduciary duty to the Lenders.
10.4 Reliance on Communications. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to any of
the Credit Parties, independent accountants and other experts selected
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by the Agent with reasonable care). The Agent may deem and treat the Lenders as
the owner of its interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the Agent
in accordance with Section 11.4.2. The Agent shall be fully justified, at its
option, in failing or refusing to take any action under this Agreement or under
any of the other Credit Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, hereunder or under any of the other Credit Documents
in accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 10.2, above, all the Lenders) and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders (including their successors and assigns).
10.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has actual knowledge of such Default or Event of
Default or has received notice from a Lender or a Credit Party referring to the
Credit Document, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Agent has actual
knowledge of a Default or Event of Default or receives such a notice, the Agent
shall give prompt notice thereof to the Lenders.
10.6 Default by Borrower. If a Default or Event of Default by the
Borrower has occurred and is a non-monetary default, the Lenders agree that
the Agent may grant to the Borrower a period of up to thirty (30) days (in
addition to any cure period contained in the Credit Documents) within which to
cure such default. If the Default or Event of Default is a monetary default or
is a non-monetary default which has not been cured within applicable grace
periods, the Agent shall consult with the Lenders as to the course of action to
pursue with regard to such Default or Event of Default. After such
consultation, the Agent shall promptly propose a course of action (the "Initial
Proposal") to be taken, including but not limited to: (i) declaring an Event
of Default, terminating the Commitments, sending appropriate notices, and/or
accelerating payment under this Agreement, the Notes and/or any other Credit
Document; (ii) commencing collection proceedings against the Credit Parties or
any of them; (iii) working with the Borrower to attempt to resolve the issue;
or (iv) attempting to exercise any other rights or remedies provided under the
Credit Documents. The Initial Proposal shall be in writing and given to the
Lenders in the manner specified for giving notice hereunder. Each Lender shall
notify the Agent and the other Lenders in writing whether such Lender approves
or rejects the Initial Proposal, within ten (10) business days from such
Lender's receipt of the Initial Proposal. By making the Initial Proposal, the
Agent shall be deemed to have approved the same and the failure of a Lender to
give the notice required hereby within the time period provided shall be deemed
to be an approval of the Initial Proposal. If the Initial Proposal shall be
approved or deemed approved by the Required Lenders, the Agent shall commence
steps to carry out the Initial Proposal. If the Initial Proposal fails to
obtain approval by the Required Lenders, the Agent shall again consult with the
Lenders and the Agent and the Lenders, acting in a commercially reasonable
manner, shall attempt to obtain the approval of the Required Lenders to an
alternate course of action. If approval of the Required Lenders to an
alternate course of action is obtained,
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the Agent shall commence steps to carry out the course of action so approved.
If an alternate course of action is not agreed upon by the Required Lenders
within thirty (30) calendar days of the date of the Initial Proposal, the Agent
shall, and it is hereby authorized, empowered, directed and instructed to take
any action which the Agent is authorized to take under the Credit Documents,
including, without limitation, terminating the Commitments, declaring all
amounts outstanding under the Facility to be due and payable, taking action to
collect the amounts due under the Facility, and/or taking action to enforce the
provisions of the Credit Documents and protect and preserve the respective
rights and interest of the Lenders as is authorized by the Credit Documents.
The Lenders agree that any action or inaction taken by the Agent pursuant to
this Section which is authorized by the Credit Documents shall be deemed a
reasonable course of conduct, and each Lender hereby approves, ratifies and
affirms such actions.
10.7 Consent of the Lenders. If the consent or approval of the
Lenders or the Required Lenders is required by the Agent as to any proposed
action or inaction and notice of such request is sent to the Lenders in the
manner specified in Section 11.3 hereof, consent or approval, as applicable,
shall be deemed given if no objection or response thereto is received by the
Agent within ten (10) business days of the applicable Lender's receipt of such
notice.
10.8 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent or any
Affiliate hereinafter taken, including any review of the affairs of any Credit
Party, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Credit Parties and made its own decision to make its Commitment hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Credit Parties which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.9 Reimbursement for Expenses. Each Lender agrees to bear its
pro rata share of all out of pocket expenses incurred by the Agent in
connection with the administration and enforcement of the Credit Documents, to
the extent such expenses are not reimbursed by the Credit Parties. Without
limiting the foregoing, each Lender shall bear its pro rata share of all
reasonable out of
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pocket costs of collection incurred by the Agent with respect to the Facility.
For the purposes hereof, out of pocket expenses shall not include the salary,
compensation or other benefit of any employee of the Agent. To the extent any
amounts paid to the Agent by a Lender as reimbursement are later paid to the
Agent by a Credit Party or recovered by the Agent from a Credit Party, the Agent
agrees to refund to such Lender its share of such amounts paid or recovered.
The Agent agrees that it is to receive no additional compensation, other than
the Administrative Fee, in connection with the routine administration of the
Facility.
10.10 Indemnification. The Lenders agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Facility Commitment Percentage (or if the Commitments have expired or
been terminated, in accordance with the respective principal amounts of
outstanding Advances and Participation Interest of the Lenders), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following payment in full of the Advances) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way relating to or
arising out of this Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. The agreements in this Section shall
survive the repayment of the Advances and all other amounts payable hereunder
and under the other Credit Documents.
10.11 The Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or any other Credit Party as though the
Agent were not the Agent hereunder. With respect to the Advances made and all
obligations owing to it, the Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though it were not
the Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
10.12 Successor Agent. The Agent may, at any time, resign upon 20
days written notice to the Lenders. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 45 days after the notice of resignation, then
the retiring Agent shall select a successor Agent provided such successor is a
Lender hereunder or a commercial bank organized under the laws of the United
States of America or of any State thereof and has a combined capital and
surplus of at least $400,000,000. Upon the acceptance of any appointment as a
successor Agent hereunder, such successor Agent shall thereupon succeed to and
become vested
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with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as the
Agent, as appropriate, under this Agreement and the other Credit Documents and
the provisions of this Section shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
10.13 The Agent's Right to Purchase Interests of Lenders. Each
Lender hereby grants to the Agent the option (the "Purchase Option") to
acquire, by purchase and assignment, in whole but not in part, such Lender's
interest in the Facility, this Agreement and the Note held by such Lender. To
exercise the Purchase Option with respect to the interest of any Lender, the
Agent shall give written notice of the Agent's exercise of the Purchase Option
(an "Exercise Notice") to such Lender (an "Assigning Lender"), which Exercise
Notice shall set forth the date upon which the Agent will purchase the Assigning
Lender's interest (the "Settlement Date"). The Settlement Date shall not be
less than five (5) days nor more than fifteen (15) days after the date of the
Exercise Notice. On the Settlement Date, (a) the Agent shall deliver to the
Assigning Lender, by wire transfer of immediately available funds, an amount in
Dollars equal to the Assigning Lender's then outstanding Advances and
Participation Interests, together with all accrued and unpaid interest thereon,
all accrued and unpaid fees, and any other amounts payable to such Lender by the
Borrower, and (b) the Assigning Lender shall deliver to the Agent (i) the Note
held by the Assigning Lender, endorsed, without recourse, to the order of the
Agent and (ii) an assignment agreement, substantially in the form attached as
EXHIBIT 11.4.2, of all of the Assigning Lender's right, title and interest in,
to and under this Agreement and the other Credit Documents. From and after the
Settlement Date, the Assigning Lender shall have no further rights or
obligations under this Agreement or the other Credit Documents and the Agent
shall be deemed to have assumed all rights and obligations of the Assigning
Lender under this Agreement and the other Credit Documents, including, without
limitation, the obligation to honor the Assigning Lender's Commitment. An
assignment pursuant to the terms of this Section shall not require the consent
of any Credit Party or any other Lender, but such assignment shall otherwise be
governed by the terms of Section 11.4.2, below.
ARTICLE 11
Miscellaneous
11.1 Waiver of Default. Subject to the provisions of Section 10.6,
the Agent may, by written notice to the Borrower at any time and from time to
time, waive any default in the performance or observation of any condition,
covenant or other term thereof or any Event of Default that shall have occurred
hereunder and its consequences. Any such waiver shall be for such period and
subject to such conditions as shall be specified in any such notice. In the
case of any such waiver, the Borrower shall be restored to its former position
hereunder and under the Credit Documents, and any Event of Default so waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Event of Default.
45.
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11.2 Amendments and Waivers. The Agent, the Required Lenders and
the Credit Parties may, subject to the provisions of Section 10.2.2, from time
to time, enter into written agreements for the purpose of adding any provision
to this Agreement or the other Credit Documents or changing in any manner the
rights of the Agent, the Lenders and/or the Credit Parties hereunder or under
the other Credit Documents. No such amendment, modification or supplement
shall be established by custom, conduct or course of dealing, but solely by an
instrument in writing duly executed by the party to be charged therewith.
11.3 Notices. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy (or other
facsimile device) with receipt confirmation to the number set out below, (c)
the Banking Business Day following the day on which the same has been delivered
prepaid to a reputable national overnight air courier service, or (d) the third
Banking Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties at the
address or telecopy numbers set forth on SCHEDULE 11.3, or at such other address
as such party may specify by written notice to the other parties hereto.
11.4 Benefit of Agreement.
11.4.1 Generally. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties may
assign and transfer any of its interests without the prior written consent of
the Lenders; and provided further that the rights of each Lender to transfer,
assign or grant participations in its rights and/or obligations hereunder shall
be limited as set forth below in subsections 11.4.2 and 11.4.3 of this Section.
Notwithstanding the above (including anything set forth in subsections 11.4.2
and 11.4.3 of this Section), nothing herein shall restrict, prevent or prohibit
any Lender from (A) pledging its Advances hereunder to a Federal Reserve Bank
in support of borrowings made by such Lender from such Federal Reserve Bank, or
(B) granting assignments or participations in such Lender's Advances and/or
Commitments hereunder to its parent company and/or to any Affiliate of such
Lender or to any existing Lender or Affiliate thereof.
11.4.2 Assignments. Each Lender may, with the prior written
consent of the Borrower and the Agent (provided that no consent of the Borrower
shall be required during the existence and continuation of an Event of
Default), which consent shall not be unreasonably withheld or delayed, assign
all or a portion of its rights and obligations hereunder pursuant to an
assignment agreement substantially in the form of EXHIBIT 11.4.2 to one or more
Eligible Assignees; provided that (i) any such assignment shall be in a minimum
aggregate amount of $5,000,000 of the Commitments and in integral multiples of
$1,000,000 above such amount (or the remaining amount of Commitments held by
such Lender) and (ii) each such assignment shall be of a constant, not varying,
percentage of all of the assigning Lender's rights and obligations under the
Commitment being assigned. Any assignment hereunder shall be effective upon
satisfaction of the conditions set forth above and delivery to the Agent of a
duly executed assignment agreement together with a
46.
53
transfer fee of $5,000.00 payable to the Agent for its own account. Upon the
effectiveness of any such assignment, the assignee shall become a "Lender" for
all purposes of this Agreement and the other Credit Documents and, to the extent
of such assignment, the assigning Lender shall be relieved of its obligations
hereunder to the extent of the Advances and Commitment components being
assigned. The Borrower agrees that upon notice of any such assignment and
surrender of the appropriate Note or Notes, it will promptly provide to the
assigning Lender and to the assignee separate promissory notes in the amount of
their respective interests substantially in the form of the original Note or
Notes (but with notation thereon that it is given in substitution for and
replacement of the original Note or Notes or any replacement notes thereof).
By executing and delivering an assignment agreement in accordance with
this Section 11.4.2, the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (i) such assigning Lender warrants that it is
the legal and beneficial owner of the interest being assigned thereby free and
clear of any adverse claim and the assignee warrants that it is an Eligible
Assignee; (ii) except as set forth in clause (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any of the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of any Credit Party or the
performance or observance by any Credit Party of any of its obligations under
this Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such assignment
agreement; (iv) such assignee confirms that it has received a copy of this
Agreement, the other Credit Documents and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such assignment agreement; (v) such assignee will independently and
without reliance upon the Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Credit Documents; (vi) such assignee appoints
and authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement or any other Credit Document as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement and the other Credit Documents are required to be performed by it
as a Lender.
11.4.3 Participations. Each Lender may sell, transfer,
grant or assign participations in all or any part of such Lender's interests
and obligations hereunder; provided that (i) such selling Lender shall remain a
"Lender" for all purposes under this Agreement (such selling Lender's
obligations under the Credit Documents remaining unchanged) and the participant
shall not constitute a Lender hereunder, (ii) no such participant shall have,
or be granted, rights to approve any amendment or waiver relating to this
Agreement or the other Credit Documents except to the extent
47.
54
any such amendment or waiver would (A) reduce the principal of or rate of
interest on or fees in respect of any Advances in which the participant is
participating or increase any Commitments with respect thereto, (B) postpone the
date fixed for any payment of principal (including the extension of the final
maturity of any Advances or the date of any mandatory prepayment), interest or
fees in which the participant is participating, or (C) release all or any
substantial part of the guaranties (except as expressly provided in the Credit
Documents) supporting any of the Advances or Commitments in which the
participant is participating, (iii) sub-participations by the participant
(except to an Affiliate, parent company or Affiliate of a parent company of the
participant) shall be prohibited and (iv) any such participations shall be in a
minimum aggregate amount of $5,000,000.00 of the Commitments and in integral
multiples of $1,000,000.00 in excess thereof. In the case of any such
participation, the participant shall not have any rights under this Agreement or
the other Credit Documents (the participant's rights against the selling Lender
in respect of such participation to be those set forth in the participation
agreement with such Lender creating such participation) and all amounts payable
by the Borrower hereunder shall be determined as if such Lender had not sold
such participation; provided, however, that such participant shall be entitled
to receive additional amounts under Sections 3.6, 3.9, 3.11 and 3.12 to the same
extent that the Lender from which such participant acquired its participation
would be entitled to the benefit of such cost protection provisions.
11.5 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or the Lenders, any right, power
or privilege hereunder or under any of the other Credit Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein and in the other Credit Documents provided are
cumulative and not exclusive of any rights or remedies provided by law.
11.6 Survival of Representations, Warranties and Covenants. All
representations, warranties, covenants and other agreements made herein shall
survive the execution and delivery of this Agreement and the other Credit
Documents.
11.7 Liens, Set Off by Bank. The Credit Parties hereby grant to
each Lender a continuing lien for the Facility and all other indebtedness of
the Credit Parties to such Lender upon any and all monies and securities of the
Credit Parties and the proceeds thereof, now or hereafter held or received by
or in transit to, such Lender from or for the Credit Parties, and also upon any
and all deposits (general or special) and credits of the Credit Parties, if
any, against such Lender, at any time existing. Upon the occurrence of any
Event of Default hereunder, each Lender is hereby authorized at any time and
from time to time, without notice to the Credit Parties, to set off,
appropriate and apply any or all items hereinabove referred to against all
indebtedness of the Credit Parties to such Lender, whether under this
Agreement, or otherwise, whether now existing or hereafter arising. The liens,
set-off rights and other rights granted to the Lenders under this Section are
also hereby given by the Credit Parties to each permitted assignee of a Lender.
48.
55
11.8 Defaulting Lender. Each Lender understands and agrees that if
such Lender is a Defaulting Lender then notwithstanding the provisions of
Section 11.2 it shall not be entitled to vote on any matter requiring the
consent of the Required Lenders or to object to any matter requiring the
consent of all the Lenders; provided, however, that all other benefits and
obligations under the Credit Documents shall apply to such Defaulting Lender
and no change shall be made in the amount of a Defaulting Lender's Commitment
or Facility Commitment Percentage without such Defaulting Lender's prior
written approval.
11.9 No Third Party Beneficiaries. This Agreement is a contract
among the Agent, the Lenders and the Credit Parties for their mutual benefit
and no third person shall have any right, claim or interest against any party
hereto by virtue or any provision hereof.
11.10 Florida Law. This Agreement and the rights and obligations of
the parties hereunder shall be construed in accordance with and governed by the
laws of the State of Florida without regard to the principles of the conflict
of laws of Florida. Any legal action or proceeding with respect to this
Agreement or any other Credit Document may be brought in the courts of the
State of Florida (including the Hillsborough County, Florida Circuit Court) or
of the United States for the Middle District of Florida, Tampa Division and, by
execution and delivery of this Agreement, each Credit Party hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each Credit Party hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement or any other Credit Document brought in the
courts referred to in the preceding sentence and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such action
or proceeding brought in any such court has been brought in an inconvenient
forum.
11.11 Paragraph Headings. Paragraph headings are for the purpose of
identification only and are not considered as a substantive part of this
Agreement.
11.12 Gender; Etc. Whenever the context so requires, the neuter
gender includes the feminine and/or masculine, as the case may be, and the
singular number includes the plural, and the plural number include the
singular.
11.13 Severability. Each paragraph, provision, sentence and part
thereof of this Agreement shall be deemed separate from each other paragraph,
provision, sentence or part thereof, and the invalidity or unenforceability for
any reason or to any extent of any such portion of this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
other Credit Document, or the application of such paragraph, provision,
sentence or part thereof to other persons and circumstances.
11.14 Reimbursement of Expenses. The Borrower agrees to reimburse
the Agent for all reasonable costs and out-of-pocket expenses (including
reasonable fees of attorneys) incurred in connection with the preparation,
execution, delivery, modification, waiver and amendment of this
49.
56
Agreement and the other Credit Documents, and also all reasonable expenses
incurred by the Agent and the Lenders (including reasonable fees of attorneys)
in the collection of any indebtedness incurred hereunder in the event of default
by a Credit Party under any of the Credit Documents. The obligations of the
Borrower under this Section shall survive the repayment of the Facility and the
satisfaction by the Borrower of its other obligations under this Agreement and
the other Credit Documents.
11.15 Execution in Counterparts. This Agreement and the other
Credit Documents may be executed in any number of counterparts, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same
instrument.
11.16 Confidentiality. Except for the newspaper announcement to be
published following the closing of this transaction as contemplated by the
parties, the Agent, the Lenders and the Credit Parties agree that none of them
will make any public announcement of the transactions contemplated by this
Agreement unless it first obtains the written consent of the other party with
respect to the issuance, form, content and timing of such public announcement.
The Agent and the Lenders further agree that each of them will keep confidential
all information concerning the Credit Parties, their business or financial
condition, except information which is in the public domain or enters the public
domain other than pursuant to a breach of this Agreement and information which
the Agent or a Lender is obligated to disclose pursuant to law, regulation or
legal process. The parties agree that they will keep confidential the terms of
this Agreement unless required to divulge the same under applicable law or
regulation or unless such information is disclosed in an action between the
parties.
11.17 WAIVER OF JURY TRIAL. THE CREDIT PARTIES AND ANY PERSON OR
PERSONS CLAIMING UNDER ANY CREDIT PARTY, HEREBY VOLUNTARILY AND KNOWINGLY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF
THIS AGREEMENT, THE FACILITY, THE NOTES OR ANY OF THE OTHER CREDIT DOCUMENTS,
ANY RELATED INSTRUMENT OR AGREEMENT, OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN OR AMONG SUCH PERSONS OR ANY OF THEM. NEITHER THE BORROWER NOR ANY
PERSON CLAIMING UNDER THE BORROWER SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION IN
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH TRIAL CANNOT
OR HAS NOT BEEN WAIVED. THE BORROWER ACKNOWLEDGES THAT THE PROVISIONS OF THIS
SECTION 11.17 HAVE BEEN FULLY DISCUSSED WITH THE BORROWER AND THE AGENT, THAT
THE BORROWER IS ABLY REPRESENTED BY A LICENSED ATTORNEY AT LAW IN THE
NEGOTIATION OF THIS SECTION 11.17, THAT IT BARGAINED AT ARM'S LENGTH AND IN
GOOD FAITH AND WITHOUT DURESS OF ANY KIND FOR THE TERMS AND CONDITIONS OF THIS
SECTION 11.17 AND THAT THE PROVISIONS HEREOF SHALL BE SUBJECT TO NO EXCEPTIONS.
NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE
PROVISIONS OF THIS SECTION 11.17 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, the Borrower, the Guarantors, the Agent and the
Lenders have caused this Agreement to be duly executed under seal by their duly
authorized officers, all as of the day and year first above written.
50.
57
WITNESSES: BORROWER:
OUTBACK STEAKHOUSE, INC., a Delaware
corporation
_____________________________
By:___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________ Title: Senior Vice President
(Corporate Seal)
51.
58
GUARANTORS:
OUTBACK STEAKHOUSE OF FLORIDA, INC.,
a Florida corporation
_____________________________
By:___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________ Title: Senior Vice President
(Corporate Seal)
CARRABBA'S ITALIAN GRILL, INC.,
a Florida corporation
_____________________________
By:___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________ Title: Senior Vice President
(Corporate Seal)
52.
59
AGENT:
▇▇▇▇▇▇▇ BANK, N.A., a national banking
association
_____________________________
By:___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_____________________________ Title: Senior Vice President
WIRE TRANSFER INSTRUCTIONS:
▇▇▇▇▇▇▇ Bank, N.A. - Tampa
Jacksonville, Florida
ABA #▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan Accounting
Reference: Outback Steakhouse, Inc.,
Loan No. 04000017808
If Questions: Call (▇▇▇) ▇▇▇-▇▇▇▇
THE SIGNATURE PAGES FOR THE LENDERS FOLLOW ON PAGES 52 - 58
53.
60
LENDERS:
▇▇▇▇▇▇▇ BANK, N.A., a national
banking association
_____________________________
By:___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_____________________________ Title: Senior Vice President
WIRE TRANSFER INSTRUCTIONS:
▇▇▇▇▇▇▇ Bank, N.A. - Tampa
Jacksonville, Florida
ABA #▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan Accounting
Reference: Outback Steakhouse, Inc.,
Loan No. 04000017808
If Questions: Call (▇▇▇) ▇▇▇-▇▇▇▇
[CREDIT AGREEMENT SIGNATURE PAGE FOR ▇▇▇▇▇▇▇ BANK, N.A.]
54.
61
THE FIRST NATIONAL BANK OF CHICAGO,
a national bank
_____________________________
By:___________________________
Name:
_____________________________ Title:
WIRE TRANSFER INSTRUCTIONS:
The First National Bank of Chicago
Chicago, Illinois
ABA# ▇▇▇▇▇▇▇▇▇
Credit: 7521-7653 DCS Clearing Account
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Reference: Outback Steakhouse
[CREDIT AGREEMENT SIGNATURE PAGE FOR
THE FIRST NATIONAL BANK OF CHICAGO]
55.
62
HIBERNIA NATIONAL BANK, a national bank
_____________________________
By:___________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________ Title: National Account Representative
WIRE TRANSFER INSTRUCTIONS:
Hibernia National Bank
New Orleans, Louisiana
ABA#▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Credit: National Accounts, Account
Number 00520 36615
Reference: Outback Steakhouse
[CREDIT AGREEMENT SIGNATURE PAGE FOR HIBERNIA NATIONAL BANK]
56.
63
SUNTRUST BANK, TAMPA BAY,
a state chartered bank
_____________________________
By:___________________________
Name:
_____________________________ Title:
WIRE TRANSFER INSTRUCTIONS:
SunTrust Bank, Tampa Bay
Tampa, Florida
ABA#▇▇▇▇▇▇▇▇▇
Credit: Commercial Loan Operations
#9656004210
Further Credit: Outback Steakhouse, Inc.
[CREDIT AGREEMENT SIGNATURE PAGE FOR SUNTRUST BANK, TAMPA BAY.]
57.
64
THE FUJI BANK AND TRUST COMPANY
_____________________________
By:___________________________
Name:
_____________________________ Title:
WIRE TRANSFER INSTRUCTIONS:
The Fuji Bank and Trust Company
New York, New York
ABA# ▇▇▇▇▇▇▇▇▇
Attention: US Corporate
Reference: Outback Steakhouse
[CREDIT AGREEMENT SIGNATURE PAGE FOR
THE FUJI BANK AND TRUST COMPANY]
58.
65
THE SUMITOMO BANK, LIMITED
_____________________________
By:___________________________
Name:
_____________________________ Title:
By:___________________________
Name:
Title:
WIRE TRANSFER INSTRUCTIONS:
Sumitomo Bank Chg1
ABA# ▇▇▇▇▇▇▇▇▇
Attention: Loan Administration
Reference: Outback Steakhouse
[CREDIT AGREEMENT SIGNATURE PAGE FOR THE SUMITOMO BANK, LIMITED]
59.
66
CRESTAR BANK, a Virginia Institution
_____________________________
By:___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
_____________________________ Title: Vice President
WIRE TRANSFER INSTRUCTIONS:
Crestar Bank
Richmond, Virginia
ABA# ▇▇▇▇▇▇▇▇▇
Attention: CCO-Special Handling-▇▇▇▇ ▇▇▇▇
Reference: Outback Steakhouse
[CREDIT AGREEMENT SIGNATURE PAGE FOR CRESTAR BANK]
60.
67
Exhibit 2.1.2
to
Credit Agreement
NOTICE OF BORROWING
TO: ▇▇▇▇▇▇▇ BANK, N.A., as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Credit Agreement entered into as of August __, 1997 among
Outback Steakhouse, Inc. (the "Borrower"), each of the
Subsidiaries of the Borrower, ▇▇▇▇▇▇▇ Bank, N.A., as the
Agent, and the Lenders party thereto (as the same may be
amended, modified, extended or restated from time to time, the
"Credit Agreement")
DATE: ____________, 199___
_______________________________________________________________________________
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting Advances from the
Lenders in the aggregate amount of $___________ to be funded on
____________, 199__ at the interest rate option set forth in paragraph
3 below. Subsequent to the funding of the requested Advances, the
aggregate amount of all then outstanding Advances will be
$____________, which together with the aggregate amount of outstanding
Swing Line Advances is less than or equal to the Facility Committed
Amount.
3. The interest rate option applicable to the requested Revolving Loans
shall be:
a. ________ the Prime Based Rate
b. ________ the Floating LIBO Rate
c. ________ the LIBO Rate for an Interest Period of:
____ one month
____ two months
____ three months
68
____ six months
4. The representations and warranties made by the Credit Parties in the
Credit Documents are true and correct in all material respects at and
as if made on the date hereof except to the extent they expressly
relate to an earlier date.
5. As of the date hereof, no Default or Event of Default has occurred and
is continuing or would be caused by this Notice of Borrowing.
6. All conditions to the funding of the requested Advances set forth in
Section 8.3 of the Credit Agreement have occurred or been satisfied.
OUTBACK STEAKHOUSE, INC.
By: ___________________________________
Name:__________________________________
Title:_________________________________
69
Exhibit 2.1.4
to
Credit Agreement
FORM OF
NOTICE OF CONTINUATION/CONVERSION
TO: ▇▇▇▇▇▇▇ BANK, N.A., as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Credit Agreement entered into as of August __, 1997 among
Outback Steakhouse, Inc. (the "Borrower"), each of the
Subsidiaries of the Borrower, ▇▇▇▇▇▇▇ Bank, N.A., as the
Agent, and the Lenders party thereto (as the same may be
amended, modified, extended or restated from time to time, the
"Credit Agreement")
DATE: ______________, 199___
_____________________________________________________________________________
6. This Notice of Continuation/Conversion is made pursuant to the terms
of the Credit Agreement. All capitalized terms used herein unless
otherwise defined shall have the meanings set forth in the Credit
Agreement.
7. Please be advised that the Borrower is requesting that a portion of
the current outstanding advances; in the amount of $_______ currently
accruing interest at _________ be continued or converted as of
_____________ at the interest rate option set forth in paragraph 3
below.
8. The interest rate option applicable to the continuation or conversion
of all or part of the existing Advances shall be:
a. ________ the Prime Based Rate
b. ________ the Floating LIBO Rate
c. ________ the LIBO Rate for an Interest Period of:
____ one month
____ two months
____ three months
____ six months
70
9. As of the date hereof, no Default or Event of Default has
occurred and is continuing or would be caused by this Notice
of Continuation/Conversion.
OUTBACK STEAKHOUSE, INC.
By: ___________________________________
Name:__________________________________
Title:_________________________________
71
Schedule 2.1.6
to
Credit Agreement
REVOLVING PROMISSORY NOTE
$_________________________ _____________, 199___
FOR VALUE RECEIVED, OUTBACK STEAKHOUSE, INC., a Delaware corporation,
(the "Borrower"), hereby promises to pay to the order of ______________________
(the "Lender"), at the office of ▇▇▇▇▇▇▇ Bank, N.A. (the "Agent") as set forth
in that certain Credit Agreement entered into as of __________________, 1997
between the Borrower, each of the Subsidiaries of the Borrower, the Lenders
named therein (including the Lender) and the Agent (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), the principal sum of
$________________ (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Advances made by the Lender to the Borrower under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Advance, at such office, in like money and funds, for the period
commencing on the date of such Advance until such Advance shall be paid in full,
at the rates per annum and on the dates provided in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
evidences Advances made by the Lender thereunder. Capitalized terms used in
this Note and not otherwise defined shall have the respective meanings assigned
to them in the Credit Agreement and the terms and conditions of the Credit
Agreement are expressly incorporated herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of
the Advances evidenced by this Note upon the occurrence of certain events (and
for payment of collection costs in connection therewith) and for prepayments of
Advances upon the terms and conditions specified therein. In the event this
Note is not paid when due at any stated or accelerated maturity, the Borrower
agrees to pay, in addition to the principal and interest, all costs of
collection, including reasonable attorney fees.
The date, amount, type, interest rate and duration of the LIBO
Interest Period (if applicable) of each Advance made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books; provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing hereunder or under
this Note in respect of the Advances to be evidenced by this Note, and each
such recordation or endorsement shall be prima facie evidence of such
information.
72
The Borrower hereby waives presentment, demand, protest, notice of
protest and any other notice with respect to this Note.
This Note shall be governed by, and construed in accordance with, the
laws of the State of Florida.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
as of the date first above written.
OUTBACK STEAKHOUSE, INC., a Delaware
corporation
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF __________________________________
COUNTY OF ________________________
THE FOREGOING INSTRUMENT was acknowledged before me this _____ day of
_______________, 199___, by __________________________, as ____________________
of OUTBACK STEAKHOUSE, INC., a Delaware corporation, on behalf of the
corporation. He/she is either [please check as applicable] ___ personally
known to me, or ___ presented _____________________________ as identification.
_____________________________________
Print Name: _________________________
Notary Public, State of______________
My Commission Expires:_______________
My Commission No. ___________________
73
Exhibit 11.4.2
to
Credit Agreement
FORM OF
ASSIGNMENT AGREEMENT
Reference is made to that certain Credit Agreement entered into as of
August 22, 1997 (as the same has been amended, modified, extended or restated
from time to time, the "Credit Agreement") among Outback Steakhouse, Inc. (the
"Borrower"), each of the Subsidiaries of the Borrower, the Lenders identified
therein, and ▇▇▇▇▇▇▇ Bank, N.A., as the Agent. All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Credit Agreement.
12. The Assignor (as defined below) hereby sells
and assigns, without recourse, to the Assignee (as defined below), and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of effective date of the assignment as designated below (the
"Effective Date"), the interests set forth below (the "Assigned Interest") in
the Assignor's rights and obligations under the Credit Agreement and other
Credit Documents, including, without limitation, (a) the interests set forth
below in the Facility Commitment Percentage of the Assignor on the Effective
Date and (b) the Advances owing to the Assignor in connection with the Assigned
Interest which are outstanding on the Effective Date. The purchase of the
Assigned Interest shall be at par and periodic payments made with respect to
the Assigned Interest which (i) accrued prior to the Effective Date shall be
remitted to the Assignor and (ii) accrue from and after the Effective Date
shall be remitted to the Assignee. From and after the Effective Date, the
Assignee, if it is not already a Lender under the Credit Agreement, shall
become a "Lender" for all purposes of the Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations under the Credit Agreement.
13. The Assignor represents and warrants to the
Assignee that it is the holder of the Assigned Interest, and the Advances and
Participation Interests related thereto, and it has not previously transferred
or encumbered such Assigned Interest, Advances or Participation Interests.
14. The Assignee represents and warrants to the
Assignor that it is an Eligible Assignee.
15. This Assignment shall be effective only upon
(a) the consent of the Borrower and the Agent to the extent required under
74
Section 11.4.2 of the Credit Agreement and (b) delivery to the Agent of this
Assignment Agreement together with the transfer fees, if applicable, set forth
in Section 11.4.2 of the Credit Agreement.
16. The Assignor and the Assignee confirm to and
agree with each other and the other parties to the Credit Agreement as to the
terms set forth in the second paragraph of Section 11.4.2 of the Credit
Agreement.
17. This Assignment shall be governed by and
construed in accordance with the laws of the State of Florida.
18. Terms of Assignment
(1) Date of Assignment: ____________
(2) Legal Name of Assignor: _____________________
(3) Legal Name of Assignee: _____________________
(4) Effective Date of Assignment: _______________
(5) Facility Commitment Percentage assigned: _________%
(6) Total Advances and Participation Interests
outstanding to Assignor as of
Effective Date: $__________
(7) Principal Amount of Advances and Participation
Interests assigned on Effective Date (the amount set
forth in (f) multiplied by the percentage set forth
in (e)): $__________
(8) Facility Committed Amount: $__________
(9) Principal Amount of Facility Committed Amount
Assigned on the Effective Date (the amount set
forth in (h) multiplied by the percentage set
forth in (e)): $__________
(10) Commitment of Assignor after Effective Date:
$__________
(11) Commitment of Assignee after Effective Date:
$__________
75
The terms set forth above are hereby
agreed to:
_______________________, as Assignor
By:__________________________
Name:________________________
Title:_______________________
_______________________, as Assignee
By:__________________________
Name:________________________
Title:_______________________
CONSENTED TO (if applicable):
OUTBACK STEAKHOUSE, INC.
By: ______________________________
Name:_____________________________
Title:____________________________
▇▇▇▇▇▇▇ BANK, N.A.,
as the Agent
By: ______________________________
Name:_____________________________
Title:____________________________
76
Schedule 1.2.33
to
Credit Agreement
FACILITY COMMITMENT PERCENTAGES
Lender Percentage
------ ----------
▇▇▇▇▇▇▇ Bank, N.A. 24%
The First National Bank of Chicago 8%
Hibernia National Bank 16%
SunTrust Bank, Tampa Bay 14%
The Fuji Bank and Trust Company 16%
The Sumitomo Bank, Limited 12%
Crestar Bank 10%
77
Schedule 5.16
to
Credit Agreement
PENSION AND WELFARE BENEFIT PLANS
19. Outback Steakhouse of Florida, Inc. Salaried Employees 401(k)
Plan and Trust;
20. Outback Steakhouse of Florida, Inc. Employees' Stock Ownership
Plan;
21. Outback Steakhouse, Inc. Disability Insurance Plan;
22. Outback Steakhouse, Inc. Health Insurance and AD&D Plan; and
23. Outback Steakhouse, Inc. Section 125 Cafeteria Plan.
78
Schedule 11.3
to
Credit Agreement
NOTICE ADDRESSES AND FACSIMILE NUMBERS OF PARTIES
▇▇▇▇▇▇▇ Bank, N.A. The First National Bank of Chicago
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Suite 0324, 10th Floor
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇▇▇ ▇. Price, First Vice President
Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇
Hibernia National Bank The Fuji Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Two World Trade Center
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ATTN: Chigusa Tada
National Account Representative Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇
The Sumitomo Bank, Limited SunTrust Bank, Tampa Bay
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇
Crestar Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile # (▇▇▇) ▇▇▇-▇▇▇▇