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EXHIBIT 10.26
$15,000,000.00
CREDIT AGREEMENT
dated as of
June 13, 2000
between
OUTBACK STEAKHOUSE, INC.
and
WACHOVIA BANK, N.A.
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CREDIT AGREEMENT
AGREEMENT dated as of June 13, 2000 among OUTBACK STEAKHOUSE, INC. and
WACHOVIA BANK, N.A.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted Monthly Libor Index" has the meaning set forth in Section
2.06(c).
"Advance" shall mean an advance made by the Bank to the Borrower under
this Agreement pursuant to Article II. An Advance is a "Base Rate Advance" if
such Advance is a Base Rate Loan or a "Euro-Dollar Advance" if such Advance is a
Euro-Dollar Loan.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Anniversary Extension Date" means December 21, 2000 and each
anniversary of the initial Anniversary Extension Date thereafter.
"Applicable Facility Fee Rate" has the meaning set forth in Section
2.07(a).
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Authority" has the meaning set forth in Section 7.02.
"Bank" means Wachovia Bank, N.A., and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half
of one percent above the Federal Funds Rate for such day. For purposes of
determining the Base Rate for any day, changes in the Prime Rate and the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means the Loan during Interest Periods when the Loan
bears or is to bear interest at a rate based upon the Base Rate.
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"Borrower" means Outback Steakhouse, Inc., a Delaware corporation, and
its successors and permitted assigns.
"Change of Law" shall have the meaning set forth in Section 7.02.
"Closing Date" means June 13, 2000.
"Commitment" means $15,000,000.00 as such amount may be reduced from
time to time pursuant to this Agreement.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to the Loan or any Letter of Credit
Advance, on any day, the sum of 2% plus the Base Rate applicable for such day.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia are authorized or required by law
to close.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means the Loan during Interest Periods when the Loan
bears or is to bear interest at a rate based upon the London Interbank Offered
Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means that certain Credit Agreement dated
December 21, 1999, by and among the Borrower, the banks party thereto, Wachovia
Bank, N.A., as Agent, Wachovia Securities, Inc., as Sole Arranger, SunTrust
Bank, Tampa Bay, as Syndication Agent and SouthTrust Bank, National Association,
as Documentation Agent, as in effect on the date hereof without regard and
without giving effect to any waivers given by the Banks (as defined in the
Existing Credit Agreement) or amendments agreed to by the Borrower and the Banks
(as defined in the Existing Credit Agreement). Any definitions, terms,
covenants,
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representations or other provisions of the Existing Credit Agreement that are
incorporated herein will continue to be effective for purposes of this Agreement
and the other Loan Documents, notwithstanding that the indebtedness under the
Existing Credit Agreement has been or hereafter may be partially or fully repaid
or the fact that the Existing Credit Agreement otherwise might be terminated.
"Facility Fee Determination Date" has the meaning set forth in Section
2.07(a).
"Facility Fee Payment Date" means each March 31, June 30, September 30
and December 31.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Bank on such day on such
transactions as determined by the Bank.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"FMA Agreement" means any financial management account agreement now or
hereafter entered into between the Bank and Borrower and all amendments and
modifications thereto.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.02, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantors" shall mean collectively: (a) all Material Domestic
Subsidiaries existing on the Closing Date; and (b) all Material Domestic
Subsidiaries acquired, formed or otherwise in existence after the Closing Date.
"Guaranty" means the Guaranty Agreement executed by each of the
Guarantors substantially in the form of Exhibit B hereto, either as originally
executed or as it may be from time to time supplemented, modified, amended,
renewed, extended or restated from time to time.
"Interest Payment Date" means each March 31, June 30, September 30 and
December 31, commencing with June 30, 2000.
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"Interest Period" means a calendar month; provided that: (a) the
initial Interest Period shall mean the period commencing on the Closing Date and
ending on June 30, 2000, provided that the London Interbank Offered Rate shall
be determined as if such Interest Period commenced on June 1, 2000; (b) the last
Interest Period under this Agreement shall end on the Termination Date; and (c)
if any Interest Period would end on a day that is not a Domestic Business Day,
then such Interest Period shall be extended to the next Domestic Business Day.
"Lending Office" means, as to the Bank, its office located at its
address set forth on the signature page hereof (or identified on the signature
page hereof as its Lending Office) or such other office as the Bank may
hereafter designate as its Lending Office by notice to the Borrower.
"Letter of Credit" means the letters of credit issued by the Bank
pursuant to Section 2.03(a) and "Letter of Credit" means any one of such Letters
of Credit, as any of such letters of credit may be extended, renewed, replaced
or amended from time to time.
"Letter of Credit Advance" means an advance made by the Bank pursuant
to Section 2.03(c).
"Letter of Credit Agreement" means any agreement entered into by the
Borrower and the Bank pursuant to which a Letter of Credit is issued, as
amended, modified or restated from time to time.
"Loan" means the aggregate outstanding Advances made by the Bank to the
Borrower under this Agreement. The Loan shall at all times be a Euro-Dollar
Loan, unless such Loan is to be a Base Rate Loan pursuant to Article VII herein.
"Loan Documents" means this Agreement, the Note, the Guaranty, the
Letter of Credit Agreement, any other document evidencing, relating to or
securing the Loan, the Letters of Credit and any other document or instrument
delivered from time to time in connection with this Agreement, the Note, the
Guaranty, the Letters of Credit, the Letter of Credit Agreement or the Loan, as
such documents and instruments may be amended or supplemented from time to time.
"Loan Parties" means collectively the Borrower and each Subsidiary of
the Borrower that is now or hereafter a party to any of the Loan Documents.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Bank under the Loan Documents,
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or the ability of the Borrower to perform its obligations under the Loan
Documents to which it is a party, as applicable, or (c) the legality, validity
or enforceability of any Loan Document.
"Material Domestic Subsidiaries" means each Domestic Subsidiary with
total assets of $20,000,000 or more; provided that in the event that, at any
time, the total assets of all Domestic Subsidiaries which are not then
Guarantors (the "Non-Guarantor Domestic Subsidiaries"), in the aggregate, is
equal to or greater than $60,000,000, the Borrower shall so notify the Bank and
promptly thereafter (but in any event within 30 days after the date thereof)
shall cause any such Non-Guarantor Domestic Subsidiary which has total assets
equal to or greater than $12,000,000 to take the actions and deliver the
documents required by Section 5.02 and thereafter such Subsidiaries shall be
"Guarantors." On the Closing Date, the Material Domestic Subsidiaries are:
Outback Steakhouse of Florida, Inc.; Carrabba's Italian Grill, Inc.; Outback
Steakhouse International, Inc.; OS Capital, Inc.; OS Pacific, Inc.; OS Prime,
Inc.; and Outback Sports, LLC.
"Note" means a promissory note of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loan, together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"Obligations" means the collective reference to all indebtedness,
obligations and liabilities to the Bank, existing on the date of this Agreement
or arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, of the Loan
Parties under this Agreement, the Letter of Credit Agreement or any other Loan
Document.
"Officer's Certificate" has the meaning set forth in Section 3.01(c).
"Prime Rate" refers to that interest rate so denominated and set by the
Lender from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by the Lender. The Lender
lends at interest rates above and below the Prime Rate.
"Rate Determination Date" has the meaning set forth in Section 2.06(a).
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Termination Date" means December 21, 2002, as such Termination Date
may be extended pursuant to Section 2.05(b).
"Undrawn Amount" means, with respect to any Letter of Credit, at any
time, the maximum amount available to be drawn under such Letter of Credit at
such time and "Undrawn Amounts" means, at any time, the sum of all Undrawn
Amounts at such time.
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"Unused Commitment" means at any date, with respect to the Bank, an
amount equal to: (a) the Commitment, less the sum of: (b)(i) the aggregate
outstanding principal amount of the Loan; (ii) the aggregate outstanding
principal amount of the Letter of Credit Advances and (iii) the aggregate
Undrawn Amounts.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Bank, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Bank shall so object in writing within 30 days after the delivery of such
financial statements, in either of which events such calculations shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
objection is made in respect of the first financial statements delivered under
Section 5.01 hereof, shall mean the financial statements for the Fiscal Year
ending December 31, 1999).
SECTION 1.03. Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.04. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05. References. Unless otherwise indicated, references in
this Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are
references to articles, exhibits, schedules and sections hereof.
SECTION 1.06. Definitions in Existing Credit Agreement. The following
terms when used in this Agreement or any of the other Loan Documents shall,
unless otherwise defined herein, have the same meanings as set forth in the
Existing Credit Agreement: "Adjusted Cash Flow", "Adjusted Fixed Charges",
"Affiliate", "Capital Stock", "CERCLA", "CERCLIS", "Code", "Company Owned
Restaurants", "Consolidated Interest Expense", "Consolidated Net Income",
"Consolidated Net Worth", "Consolidated Total Assets", "Consolidated Total
Debt", "Controlled Group", "Debt", "Depreciation and Amortization", "Development
Joint Venture", "Domestic Subsidiary", "EBITDA", "Environmental Authority",
"Environmental Authorizations",
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"Environmental Judgments and Orders", "Environmental Laws", "Environmental
Liabilities", "Environmental Notices", "Environmental Proceedings",
"Environmental Releases", "Environmental Requirements", "ERISA", "Foreign
Subsidiary", "Guarantee", "Hazardous Materials", "Investment", "Lien", "Margin
Stock", "Multiemployer Plan", "Net Income", "Net Proceeds of Capital
Stock/Conversion of Debt", "Participating Subsidiary", "PBGC", "Permitted
Acquisition", "Permitted Securitization", "Person", "Plan", "Priority Debt",
"Properties", "Purchase Money Note", "Receivables Subsidiary", "Redeemable
Preferred Stock", "Reported Net Income", "Securitization Assets",
"Securitization Documents", "Securitization Facility Attributed Debt", "Standard
Securitization Undertakings", "Stockholders Equity", "Synthetic Lease
Indebtedness", "Synthetic Lease Transaction", "Taxes" and "Third Parties".
ARTICLE II
THE CREDITS
SECTION 2.01. Commitment to Make Advances. The Bank agrees, on the
terms and conditions set forth herein, to make Advances to the Borrower from
time to time before the Termination Date; provided that, immediately after each
such Advance is made, the sum of (i) the aggregate outstanding principal amount
of all Advances by the Bank; (ii) the outstanding principal amount of all Letter
of Credit Advances, and (iii) the aggregate Undrawn Amounts shall not exceed the
amount of its Commitment. Within the foregoing limits, the Borrower may borrow
under this Section, repay or, to the extent permitted by Section 2.09, prepay
all or any portion of the Loan and reborrow under this Section at any time
before the Termination Date.
SECTION 2.02. Method of Borrowing Advances. (a) The Bank is hereby
authorized to make Advances under this Credit Agreement upon telephonic or
written communication of a request from any Person representing himself or
herself to be a duly authorized officer or representative of the Borrower;
provided that, except as otherwise provided in a FMA Agreement, the Borrower
shall make any such request for an Advance not later than 2:00 p.m. (Atlanta,
Georgia time) on the Domestic Business Day such Advance is to be disbursed.
(b) Unless the Bank determines that any applicable condition
specified in Article III has not been satisfied, the Bank will make the funds
corresponding to such Advance available to the Borrower at the Bank's aforesaid
address.
(c) Notwithstanding anything to the contrary contained in this
Agreement, no Advance may be requested if there shall have occurred an Event of
Default, which Event of Default shall not have been cured or waived in writing.
SECTION 2.03 Letters of Credit.
(a) The Bank may, from time to time upon request of the Borrower,
in its sole discretion issue Letters of Credit for the account of the Borrower,
subject to satisfaction of the conditions referenced in Section 3.03.
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(b) Each Letter of Credit shall be subject to the provisions of
this Agreement and to the provisions set forth in the Letter of Credit Agreement
executed by the Borrower in connection with the issuance of such Letter of
Credit. The Borrower agrees to promptly perform and comply with the terms and
conditions of each Letter of Credit Agreement.
(c) The payment by the Bank of a draft drawn under any Letter of
Credit shall constitute for all purposes of this Agreement a Letter of Credit
Advance in the amount of such draft.
(d) The Borrower shall pay to the Bank on the earlier of demand
and the Termination Date the outstanding principal amount of such Letter of
Credit Advance.
(e) The Bank will notify the Borrower promptly of the presentment
for payment of any Letter of Credit (on the date of presentment, if possible,
and otherwise on the next Domestic Business Day, it being agreed that such
notice may be made by phone), together with notice of the date such payment
shall be made.
SECTION 2.04. Note. (a) The Loan of the Bank shall be evidenced by a
single Note payable to the order of the Bank for the account of its Lending
Office in an amount equal to the original principal amount of the Bank's
Commitment.
(b) The Bank shall record, and prior to any transfer of its Note
shall endorse on the schedule forming a part thereof appropriate notations to
evidence, the date, amount and maturity of, and effective interest rate for,
each Advance made by it, the date and amount of each payment of principal made
by the Borrower with respect thereto, and such schedule shall constitute
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Bank's Note; provided that the failure of any Bank to make, or any error in
making, any such recordation or endorsement shall not affect the obligation of
the Borrower hereunder or under the Note or the ability of the Bank to assign
its Note. The Bank is hereby irrevocably authorized by the Borrower so to
endorse its Note and to attach to and make a part of the Note a continuation of
any such schedule as and when required.
SECTION 2.05. Maturity of Loan. (a) The Loan shall mature, and the
entire outstanding principal amount thereof shall be due and payable, on the
Termination Date.
(b) Upon written request of the Borrower, which shall be in
writing and delivered to the Bank on a Domestic Business Day not more than 60,
nor fewer than 45, days prior to the first and second Anniversary Extension
Date, the Bank in its sole and absolute discretion may (but shall not be
obligated to) extend the then effective Termination Date for a period of 365
days; provided that in no event shall the Termination Date be extended to a date
later than December 21, 2004. In connection with any such extension request, the
Bank shall undertake a bona fide credit analysis of the Borrower utilizing
current information on the financial condition of the Borrower and trends in the
financial performance of the Borrower and in the industry or industries in which
the Borrower operates. The terms of any extension of the Termination Date shall
be independently negotiated among the Borrower, the Bank and the
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Guarantors at the time of the extension request, provided that the terms of the
extension may be the same as those in effect prior to any extension should the
Borrower, the Bank and the Guarantors so agree; provided, further, that should
the terms of the extension be other than those in effect prior to the extension,
then the Loan Documents shall be amended to the extent necessary to incorporate
any such different terms. In the event that the Bank chooses to extend the
Termination Date for such a 365 day period, notice shall be given by the Bank to
the Borrower not more than 30, nor fewer than 15, days prior to the Anniversary
Extension Date immediately succeeding the date on which Borrower's request was
made.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" shall be
determined quarterly based upon the ratio of Consolidated Total Debt (calculated
as of the last day of each Fiscal Quarter) to EBITDA (calculated as of the last
day of each Fiscal Quarter for the Fiscal Quarter then ended and the immediately
preceding three Fiscal Quarters), as follows:
Ratio of Consolidated
Total Debt to EBITDA Base Rate Loan Euro-Dollar Loan Letters of Credit
--------------------- -------------- ---------------- -----------------
Greater than 1.5 0% .95% 1.20%
Greater than 1.0 but
equal to or less than 1.5 0% .70% .90%
Less than or equal to 1.0 0% .575% .75%
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 60 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 60 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new Rate
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date next following the
Closing Date, the Applicable Margin shall be (A) 0% for a Base Rate Loan, (B)
.575% for a Euro-Dollar Loan, and (C) .75% for a Letter of Credit, (ii) in the
case of any Applicable Margin determined for the fourth and final Fiscal Quarter
of a Fiscal Year, the Rate Determination Date shall be the date which is 120
days after the last day of such final Fiscal Quarter and such Applicable Margin
shall be determined based upon the annual audited financial statements for the
Fiscal Year ended on the last day of such final Fiscal Quarter, and (iii) if on
any Rate Determination Date the Borrower shall have failed to deliver to the
Bank the financial statements required to be delivered pursuant to Section
5.01(a) or Section 5.01(b) with respect to the Fiscal Year or Fiscal Quarter, as
the case may be, most recently ended prior to such Rate Determination Date, then
for the period beginning on such Rate Determination Date and ending on the
earlier of (A) the date on which the Borrower shall deliver to the Bank the
financial statements to be delivered pursuant to Section 5.01(b) with respect to
such Fiscal Quarter or any subsequent Fiscal Quarter, or (B) the date on which
the Borrower shall deliver to
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the Bank annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Margin shall be determined
as if the ratio of Consolidated Total Debt to EBITDA was more than 1.5 at all
times during such period. Any change in the Applicable Margin on any Rate
Determination Date shall result in a corresponding change, effective on and as
of such Rate Determination Date, in the interest rate applicable to each Loan
and in the fees applicable to each Letter of Credit outstanding on such Rate
Determination Date; provided, that no Applicable Margin shall be decreased
pursuant to this Section 2.06 if a Default is in existence on the Rate
Determination Date.
(b) During each Interest Period in which the Loan is a Base Rate
Loan, such Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day during the applicable Interest Period, at a rate
per annum equal to the Base Rate for such day plus the Applicable Margin. Any
overdue principal of and, to the extent permitted by applicable law, overdue
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid in full at a rate per annum equal to the Default Rate.
(c) During each Interest Period on which the Loan is a Euro-Dollar
Loan, such Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of: (1) the Applicable Margin, plus (2) the applicable Adjusted
Monthly Libor Index for such Interest Period. Any overdue principal of and, to
the extent permitted by applicable law, overdue interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid in full at a
rate per annum equal to the Default Rate.
The "Adjusted Monthly Libor Index" applicable to any Interest Period
means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Banker's Association for the purpose of displaying London Interbank
Offered Rates for U.S. dollar deposits) determined as of 1:00 p.m. New York City
time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
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interest rate on such Euro-Dollar Loan is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any Bank to United States residents). The Adjusted Monthly Libor Index
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) The Loan shall at all times be a Euro-Dollar Loan unless the
Loan is to be a Base Rate Loan pursuant to Article VII herein. Interest shall be
payable for each Interest Period on the Interest Payment Date immediately
succeeding the last day of the Interest Period; provided that: (1) all accrued
unpaid interest on the Loan shall be paid in full on the Termination Date; and
(2) should the Commitment be terminated at any time prior to the Termination
Date for any reason, any and all accrued unpaid interest shall be paid on the
date of such termination.
(e) The Bank shall determine each interest rate applicable to the
Loan hereunder.
(f) After the occurrence and during the continuance of a Default,
the principal amount of the Loan (and, to the extent permitted by applicable
law, all accrued interest thereon) may, at the election of the Bank, bear
interest at the Default Rate; provided, however, that automatically whether or
not the Bank elects to do so, any overdue principal of and, to the extent
permitted by law, overdue interest on the Loan shall bear interest payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(g) Each Letter of Credit Advance shall bear interest on the
outstanding principal amount thereof, payable on demand, for each day from the
date such Letter of Credit Advance is made until paid in full at a rate per
annum equal to the Default Rate.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Bank a facility
fee equal to the product of: (i) the aggregate of the daily average amounts of
the Bank's Commitment, times (ii) a per annum percentage equal to the Applicable
Facility Fee Rate. Such facility fee shall accrue from and including the Closing
Date to and including the Termination Date. The facility fee shall be payable
quarterly in arrears on the first Facility Fee Payment Date following each
Facility Fee Determination Date and on the Termination Date; provided that
should the Commitment be terminated at any time prior to the Termination Date
for any reason, the entire accrued and unpaid facility fee shall be paid on the
date of such termination. The "Applicable Facility Fee Rate" shall be determined
quarterly based upon the ratio of Consolidated Total Debt (calculated as of the
last day of each Fiscal Quarter) to EBITDA (calculated as of the last day of
each Fiscal Quarter for the Fiscal Quarter then ended and the immediately
preceding three Fiscal Quarters) as follows:
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Ratio of Consolidated Applicable
Total Debt to EBITDA Facility Fee Rate
--------------------- -----------------
Greater than 1.5 .25%
Greater than 1.0
but equal to or less than 1.5 .20%
Less than or equal to 1.0 .175%
The Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the "Facility Fee Determination Date") which is 60 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Facility Fee Rate so determined shall remain effective from
such Facility Fee Determination Date until the date which is 60 days after the
last day of the Fiscal Quarter in which such Facility Fee Determination Date
falls (which latter date shall be a new Facility Fee Determination Date);
provided that (i) for the period from and including the Closing Date to but
excluding the Facility Fee Determination Date next following the Closing Date,
the Applicable Facility Fee Rate shall be .175%; (ii) in the case of any
Applicable Facility Fee Rate determined for the fourth and final Fiscal Quarter
of a Fiscal Year, the Facility Fee Determination Date shall be the date which is
120 days after the last day of such final Fiscal Quarter and such Applicable
Facility Fee Rate shall be determined based upon the annual audited financial
statements for the Fiscal Year ended on the last day of such final Fiscal
Quarter, and (iii) if on any Facility Fee Determination Date the Borrower shall
have failed to deliver to the Bank the financial statements required to be
delivered pursuant to Section 5.01(a) or Section 5.01(b) with respect to the
Fiscal Year or Fiscal Quarter, as the case may be, most recently ended prior to
such Facility Fee Determination Date, then for the period beginning on such
Facility Fee Determination Date and ending on the earlier of (A) the date on
which the Borrower shall deliver to the Bank the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Bank annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Facility Fee Rate shall be
determined as if the ratio of Consolidated Total Debt to EBITDA was more than
1.5 at all times during such period.
(b) On the date each Letter of Credit is issued and on the
effective date of any renewal or extension of the expiry date or termination
date of any such Letter of Credit, the Borrower shall pay to the Bank, with
respect to such Letter of Credit, a per annum letter of credit fee (the "Letter
of Credit Fee") equal to the product of: (i) the face amount of such Letter of
Credit, times (ii) a per annum percentage equal to the Applicable Margin for
Letters of Credit (determined in accordance with Section 2.03 hereof) on the
date such Letter of Credit Fee is paid. Such Letter of Credit Fees shall be
payable annually in advance for each Letter of Credit. The "Applicable Margin"
for Letters of Credit shall be as determined in Section 2.06(a). The Borrower
shall pay to the Bank, for its own account, transfer fees, drawing fees and such
other fees and charges as may be provided for in any Letter of Credit Agreement.
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SECTION 2.08. Mandatory Reduction and Termination of Commitment. The
Commitment shall terminate on the Termination Date and the entire outstanding
principal amount of the Loan and if demand has not been earlier made, Letter of
Credit Advances then outstanding (together with accrued interest thereon) shall
be due and payable on such date.
SECTION 2.09. Optional Prepayments. (a) The Borrower may prepay all or
any portion of the principal of the Loan at any time, or from time to time by
paying the principal amount to be prepaid together with all accrued interest
hereunder and any other sums then due from the Borrower to the Bank under this
Agreement.
(b) Upon receipt of a notice of prepayment pursuant to this
Section, such notice shall not thereafter be revocable by the Borrower.
SECTION 2.10. Mandatory Prepayments. On each date on which the
Commitment is reduced or terminated pursuant to Section 2.08, the Borrower shall
repay or prepay such principal amount of the outstanding Loan, if any (together
with interest accrued thereon), as may be necessary so that after such payment
the sum of: (i) the entire unpaid principal amount of the Loan, (ii) the
aggregate outstanding principal amount of all Letter of Credit Advances, and
(iii) the aggregate Undrawn Amounts, does not exceed the aggregate amount of the
Commitment as then reduced.
SECTION 2.11. General Provisions as to Payments. (a) Unless otherwise
provided in a FMA Agreement, the Borrower shall make each payment of principal
of, and interest on, the Loan, the Letter of Credit Advances, and of facility
fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time) on the date
when due, in Federal or other funds immediately available in Atlanta, Georgia,
to the Bank at its address referred to in Section 8.01.
(b) Unless otherwise provided in a FMA Agreement, whenever any
payment of principal of, or interest on, the Loan, Letter of Credit Advances or
of fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other
amounts to be made by the Borrower pursuant to this Agreement with respect to
the Loan, Letter of Credit Advances, or fees relating thereto shall be paid
without deduction for, and free from, any tax, imposts, levies, duties,
deductions, or withholdings of any nature now or at anytime hereafter imposed by
any governmental authority or by any taxing authority thereof or therein
excluding in the case of the Bank, taxes imposed on or measured by its net
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which the Bank is organized or any political subdivision thereof and, in the
case of the Bank, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of the Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by
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applicable law to make any such withholding or deduction of Taxes with respect
to the Loan, Letter of Credit Advances or fee or other amount, the Borrower
shall pay such deduction or withholding to the applicable taxing authority,
shall promptly furnish to the Bank in respect of which such deduction or
withholding is made all receipts and other documents evidencing such payment and
shall pay to the Bank additional amounts as may be necessary in order that the
amount received by the Bank after the required withholding or other payment
shall equal the amount the Bank would have received had no such withholding or
other payment been made. If no withholding or deduction of Taxes are payable in
respect of the Loan, Letter of Credit Advances or fee relating thereto, the
Borrower shall furnish the Bank, at the Bank's request, a certificate from each
applicable taxing authority or an opinion of counsel acceptable to the Bank, in
either case stating that such payments are exempt from or not subject to
withholding or deduction of Taxes. If the Borrower fails to provide such
original or certified copy of a receipt evidencing payment of Taxes or
certificate(s) or opinion of counsel of exemption, the Borrower hereby agrees to
compensate the Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption.
In the event the Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.11, it will pay to the Borrower the amount
of such refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.11 shall be applicable with respect to any participant, assignee
or other Transferee, and any calculations required by such provisions (i) shall
be made based upon the circumstances of such participant, assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Note.
SECTION 2.12. Computation of Interest and Fees. Interest on the Loan
and Letter of Credit Advances shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed. Facility fees and any other
fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed.
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to Closing. The Borrower shall satisfy the
following conditions on the Closing Date:
(a) receipt by the Bank from the Borrower of a duly executed
counterpart of this Agreement signed by the Borrower;
(b) receipt by the Bank of a duly executed Note for the account of
the Bank complying with the provisions of Section 2.04;
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(c) receipt by the Bank of all documents which the Bank may
reasonably request relating to the existence of each Loan Party, the corporate
authority for and the validity of each Loan Document to which it is a party, and
any other matters relevant hereto, all in form and substance satisfactory to the
Bank, including without limitation a certificate of incumbency of such Loan
Party (the "Officer's Certificate"), signed by the Secretary or an Assistant
Secretary of such Loan Party, substantially in the form of Exhibit C hereto,
certifying as to the names, true signatures and incumbency of the officer or
officers of such Loan Party authorized to execute and deliver the Loan Documents
to which it is a party, and certified copies of the following items: (i) such
Loan Party's Certificate of Incorporation, (ii) such Loan Party's Bylaws, (iii)
a certificate of the Secretary of State of the State of such Loan Party's
organization as to the good standing of such Loan Party as a corporation, and
(iv) the action taken by the Board of Directors of such Loan Party authorizing
such Loan Party's execution, delivery and performance of this Agreement, the
Note and the other Loan Documents to which such Loan Party is a party;
(d) receipt by the Bank of the Guaranty, duly executed by each
Guarantor; and
(e) such other documents or items as the Bank or its counsel may
reasonably request.
SECTION 3.02. Conditions to All Advances. The obligation of each Bank
to make an Advance on the occasion of each Advance is subject to the
satisfaction of the following conditions:
(a) receipt by the Bank of notice from the Borrower requesting
such Advance;
(b) the fact that, immediately before and after such Advance, no
Event of Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of such Advance; and
(d) the fact that the representations and warranties of the Loan
Parties contained in the Guaranty shall be true on and as of the date of such
Advance; and
(e) the fact that, immediately after such Advance the sum of: (i)
the entire outstanding principal amount of the Loan, (ii) the aggregate
outstanding principal amount of the Letter of Credit Advances, and (iii) the
aggregate Undrawn Amounts, will not exceed the amount of the Commitment as of
such date.
Each request by the Borrower for an Advance hereunder shall be deemed to be a
representation and warranty by the Borrower on the date such Advance is
disbursed by the Bank to the Borrower as to the truth and accuracy of the facts
specified in clauses (b), (c) and (d) of this Section.
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SECTION 3.03 Conditions to Issuance of Letters of Credit. The issuance
by the Bank of each Letter of Credit shall be subject to satisfaction of the
conditions set forth in the related Letter of Credit Agreement and satisfaction
of the following conditions:
(a) the fact that, immediately before and after the issuance of
such Letter of Credit, no Default shall have occurred and be continuing;
(b) the fact that the representations and warranties of (i) the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of issuance of such Letter of Credit; and (ii) the Guarantors contained
in the Guaranty shall be true on and as of the date of issuance of such Letter
of Credit;
(c) the fact that, immediately after the issuance of such Letter
of Credit: (i) the sum of (A) the entire outstanding principal amount of the
Loan, (B) the aggregate outstanding principal amount of the Letter of Credit
Advances and (C) the aggregate Undrawn Amounts, will not exceed the amount of
the Commitment.
(d) no Letter of Credit shall have an expiry date or termination
date on or after the Termination Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that (a) the representations and
warranties contained in the Existing Credit Agreement are true and correct in
all material respects; and (b) no Default (as defined in the Existing Credit
Agreement) or Event of Default (as defined in the Existing Credit Agreement),
nor any act, event, condition or circumstance, which with the passage of time or
the giving of notice, or both, would constitute an Event of Default (as defined
in the Existing Credit Agreement) under the Existing Credit Agreement or any
other Loan Document (as defined in the Existing Credit Agreement) has occurred
and is continuing unwaived on the date hereof.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as the Bank has any Commitment
hereunder, a Letter of Credit is outstanding or any amount payable under any
Letter of Credit Advance or the Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to the Bank:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of
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the end of such Fiscal Year and the related consolidated statements of income,
shareholders' equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year, all certified
by PricewaterhouseCoopers, LLP or other independent public accountants of
nationally recognized standing, with such certification to be free of exceptions
and qualifications not acceptable to the Bank;
(b) as soon as available and in any event within 45 days after the
end of each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter and the related statement of income and statement of cash
flows for such Fiscal Quarter and for the portion of the Fiscal Year ended at
the end of such Fiscal Quarter, setting forth in each case in comparative form
the figures for the corresponding Fiscal Quarter and the corresponding portion
of the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit D (a "Compliance Certificate"), of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance on the date of such financial statements,
with the requirements of Sections 5.03 through 5.08, inclusive, 5.11 and 5.26 of
the Existing Credit Agreement, (ii) identifying the complete name and
jurisdiction of incorporation of each Subsidiary of the Borrower created, formed
or acquired during the time period covered by such financial statements; (iii)
identifying the Domestic Subsidiaries; and (iv) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
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(h) if and when the Borrower or any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
(i) promptly after the Borrower knows of the commencement thereof,
notice of any litigation, dispute or proceeding involving a claim against the
Borrower and/or any Subsidiary for $1,000,000 or more in excess of amounts
covered in full by applicable insurance; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the Bank
may reasonably request.
SECTION 5.02 Subsidiaries. (a) The Borrower shall cause any Person
which becomes a Material Domestic Subsidiary after the Closing Date to become a
party to, and agree to be bound by the terms of, the Guaranty pursuant to an
instrument in form and substance satisfactory to the Bank executed and delivered
to the Bank within ten (10) Domestic Business Days after the day on which such
Person became a Material Domestic Subsidiary. The Borrower shall also cause the
items specified in Section 3.01(d) to be delivered to the Bank concurrently with
the instrument referred to above, modified appropriately to refer to such
instrument and such Material Domestic Subsidiary.
(b) Once any Subsidiary becomes a Material Domestic Subsidiary and
therefore becomes a party to the Guaranty in accordance with Section 3.01(d) or
Section 5.02(a), such Material Domestic Subsidiary (including, without
limitation, all initial Material Domestic Subsidiaries) thereafter shall remain
a party to the Guaranty, even if such Subsidiary thereafter ceases to be a
Material Domestic Subsidiary; provided that if a Material Domestic Subsidiary
ceases to be a Subsidiary of the Borrower as a result of the Borrower's transfer
or sale of one hundred percent (100%) of the capital stock of such Subsidiary in
accordance with and to the extent permitted by the terms of Section 5.11 of the
Existing Credit Agreement, the Bank agrees to release such Subsidiary from the
Guaranty.
SECTION 5.03 Existing Credit Agreement. The Borrower covenants and
agrees that from the date hereof and until payment in full of the Loan, all
Letter of Credit Advances, termination of all Letters of Credit and the payment
in full of all other amounts owing under this Agreement and the other Loan
Documents, the Borrower shall observe, perform and fulfill, for the benefit of
the Bank, all of those covenants and agreements, as the same are in effect on
the date hereof, contained in the Existing Credit Agreement, as in effect on the
date hereof, the provisions of which (including, where pertinent, the defined
terms used in other Sections of the Existing Credit Agreement referenced, in
such Sections) are incorporated herein by reference,
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without regard and without giving effect to any waivers given by the Banks (as
defined in the Existing Credit Agreement) with respect to, or amendments agreed
to by the Borrower and the Banks (as defined in the Existing Credit Agreement)
of any of such covenants and agreements, which covenants and agreements the
Borrower will continue to observe, perform and fulfill for the benefit of the
Bank notwithstanding that the indebtedness under the Existing Credit Agreement
has been or hereafter may be partially or fully repaid or the fact that the
Existing Credit Agreement otherwise might be terminated.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of the
Loan or shall fail to pay any interest on the Loan within five Domestic Business
Days after such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within five Domestic Business Days after such fee or
other amount becomes due; or
(b) the Borrower or any Subsidiary shall fail to observe or
perform any covenant contained in Sections 5.02(ii), 5.03 to 5.12, inclusive of
the Existing Credit Agreement, or Section 5.15 or 5.20 to 5.26, inclusive of the
Existing Credit Agreement; or
(c) any Loan Party shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in any Loan Document (other
than those covered by clause (a) or (b) above) for thirty days after the earlier
of (i) the first day on which such Loan Party has knowledge of such failure or
(ii) written notice thereof has been given to the Borrower by the Bank; or
(d) any representation, warranty, certification or statement made
or deemed made by any Loan Party in any Loan Document or in any certificate,
financial statement or other document delivered pursuant to any Loan Document
shall prove to have been incorrect or misleading in any material respect when
made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of Debt outstanding (other than the Note) in an aggregate principal
amount in excess of $10,000,000 when due or within any applicable grace period;
or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate principal amount in excess of $10,000,000 or the
mandatory prepayment or purchase of such Debt by the Borrower (or its designee)
or such Subsidiary (or its designee) prior to the scheduled maturity thereof, or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holders of such Debt or any Person acting on such holders' behalf to
accelerate the maturity thereof or require the
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mandatory prepayment or purchase thereof prior to the scheduled maturity
thereof, without regard to whether such holders or other Person shall have
exercised or waived their right to do so; or
(g) the Borrower, any Loan Party or any Subsidiary shall commence
a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become due, or
shall take any corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower, any Loan Party or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower,
any other Loan Party or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail
to pay when due any material amount which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $500,000 shall be rendered against the Borrower or
any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in either
case such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(l) (i) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange
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Commission under the Securities Exchange Act of 1934) of 30% or more of the
outstanding shares of the voting stock of the Borrower; or (ii) as of any date a
majority of the Board of Directors of the Borrower consists of individuals who
were not either (A) directors of the Borrower as of the corresponding date of
the previous year, (B) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A), or (C) selected or nominated to become directors by the Board of
Directors of the Borrower of which a majority consisted of individuals described
in clause (A) and individuals described in clause (B); or
(m) if any provision of this Agreement, the Note or the Guaranty,
shall for any reason cease to be valid and binding on any Loan Party, or any
Loan Party shall deny or disaffirm its obligations thereunder; or
(n) the occurrence of a Default (as defined in the Existing Credit
Agreement) or an Event of Default (as defined in the Existing Credit Agreement)
under the Existing Credit Agreement; or
(o) any event of default shall occur and be continuing under the
Guaranty and such event of default continues beyond any applicable cure or grace
period provided therein.
then, and in every such event, the Bank may (i) by notice to the Borrower
terminate the Commitment and it shall thereupon terminate, and (ii) by notice to
the Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Note (together with all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that if
any Event of Default specified in clause (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower, any Guarantor or any other act
by the Bank, the Commitment shall thereupon automatically terminate and the Note
(together with accrued interest thereon) and all other amounts payable hereunder
and under the other Loan Documents shall automatically become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower. Notwithstanding the foregoing,
the Bank shall have available to it all other remedies at law or equity, and
shall exercise any one or all of them at the request of the Bank.
SECTION 6.02 Cash Cover. If any Event of Default shall have occurred
and be continuing, the Borrower shall, if requested by the Bank, pay to the Bank
an amount in immediately available funds (which funds shall be held as
collateral pursuant to arrangements satisfactory to the Bank) equal to the
aggregate Undrawn Amounts, provided that, if any Event of Default specified in
clause (g) or (h) above occurs with respect to the Borrower, the Borrower shall
be obligated to pay such amount to the Bank forthwith without any notice to the
Borrower or any other act by the Bank.
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ARTICLE VII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 7.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Bank determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Bank determines that the London Interbank Offered Rate
will not adequately and fairly reflect the cost to the Bank of funding a
Euro-Dollar Loan for such Interest Period,
the Bank shall forthwith give notice thereof to the Borrower, whereupon until
the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of the Bank to make a Euro-Dollar
Loan shall be suspended. Unless the Borrower notifies the Bank before a
Euro-Dollar Advance is disbursed that it elects not to borrow such Euro-Dollar
Advance, such borrowing shall instead be made as a Base Rate Advance.
SECTION 7.02. Illegality. If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change in any existing or future
law, rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such authority, bank or
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by the Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for the Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loan, the Bank shall forthwith
give notice thereof to the Borrower, whereupon until the Bank notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligation of the Bank to make the Euro-Dollar Loan shall be suspended.
Before giving any notice pursuant to this Section, the Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not, in the judgment of the Bank, be otherwise disadvantageous
to the Bank. If the Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loan to maturity and shall
so specify in such notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each Euro-Dollar Loan of the Bank, together
with accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from the Bank, and the Bank shall make such a Base Rate Loan.
SECTION 7.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by the Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall subject the Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loan, its
Note or its obligation to
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make a Euro-Dollar Loan, or shall change the basis of taxation of
payments to the Bank (or its Lending Office) of the principal of or
interest on its Euro-Dollar Loan or any other amounts due under this
Agreement in respect of its Euro-Dollar Loan or its obligation to make
the Euro-Dollar Loan (except for changes in the rate of tax on the
overall net income of the Bank or its Lending Office imposed by the
jurisdiction in which the Bank's principal executive office or Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to the Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
(iii) shall impose on the Bank (or its Lending Office) or
on the London interbank market any other condition affecting the
Euro-Dollar Loan, its Note or its obligation to make Euro-Dollar Loan;
and the result of any of the foregoing is to increase the cost to the
Bank (or its Lending Office) of making or maintaining any Euro-Dollar
Loan, or to reduce the amount of any sum received or receivable by the
Bank (or its Lending Office) under this Agreement or under the Note
with respect thereto, by an amount deemed by the Bank to be material,
then, within 15 days after demand by the Bank, the Borrower shall pay
to the Bank such additional amount or amounts as will compensate the
Bank for such increased cost or reduction.
(b) If the Bank shall have determined that after the date hereof
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by the
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on the Bank's capital as a
consequence of its obligations hereunder to a level below that which the Bank
could have achieved but for such adoption, change or compliance (taking into
consideration the Bank's policies with respect to capital adequacy) by an amount
deemed by the Bank to be material, then from time to time, within 15 days after
demand by the Bank, the Borrower shall pay to the Bank such additional amount or
amounts as will compensate the Bank for such reduction.
(c) The Bank will promptly notify the Borrower of any event of
which it has knowledge, occurring after the date hereof, which will entitle the
Bank to compensation pursuant to this Section and will designate a different
Lending Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of the Bank, be otherwise
disadvantageous to the Bank. A certificate of the Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be
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conclusive in the absence of manifest error. In determining such amount, the
Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 7.03 shall be applicable with
respect to any participant, assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
participant, assignee or other Transferee.
SECTION 7.04. Base Rate Loan Substituted for Euro-Dollar Loan. If (i)
the obligation of the Bank to make or maintain a Euro-Dollar Loan has been
suspended pursuant to Section 7.02 or (ii) the Bank has demanded compensation
under Section 7.03, and the Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to the Bank, have elected that the provisions of this Section
shall apply to the Bank, then, unless and until the Bank notifies the Borrower
that the circumstances giving rise to such suspension or demand for compensation
no longer apply the Loan which would otherwise be a Euro-Dollar Loan shall be
instead a Base Rate Loan. In the event that the Borrower shall elect that the
provisions of this Section shall apply, the Borrower shall remain liable for,
and shall pay to the Bank as provided herein, all amounts due the Bank under
Section 7.03 in respect of the period preceding the date of conversion of the
Bank's Loan resulting from the Borrower's election.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted or
receipt of such telecopy transmission is otherwise confirmed, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, and (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Bank under Article II or Article VIII shall not be effective
until received.
SECTION 8.02. No Waivers. No failure or delay by the Bank in exercising
any right, power or privilege hereunder or under the Note or other Loan Document
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.03. Expenses; Documentary Taxes; Indemnification. (a) The
Borrower shall pay (i) all out-of-pocket expenses of the Bank, including fees
and disbursements of special counsel for the Bank, in connection with the
preparation of this Agreement and the other
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Loan Documents, any waiver or consent hereunder or thereunder or any amendment
hereof or thereof or any Default or alleged Default hereunder or thereunder and
(ii) if a Default occurs, all out-of-pocket expenses incurred by the Bank,
including fees and disbursements of counsel, in connection with such Default and
collection and other enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents.
(b) The Borrower shall indemnify the Bank against any transfer
taxes, documentary taxes, assessments or charges made by any Authority by reason
of the execution and delivery of this Agreement or the other Loan Documents.
(c) The Borrower shall indemnify the Bank and each Affiliate
thereof and their respective directors, officers, employees and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by the
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Bank to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse the Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
SECTION 8.04. Setoffs. The Borrower hereby grants to the Bank, as
security for the full and punctual payment and performance of the obligations of
the Borrower under this Agreement, a continuing lien on and security interest in
all deposits and other sums credited by or due from the Bank to the Borrower or
subject to withdrawal by the Borrower; and regardless of the adequacy of any
collateral or other means of obtaining repayment of such obligations, the Bank
may at any time upon or after the occurrence of any Event of Default, and
without notice to the Borrower, set off the whole or any portion or portions of
any or all such deposits and other sums against such obligations, whether or not
any other Person or Persons could also withdraw money therefrom.
SECTION 8.05. Amendments and Waivers. Any provision of this Agreement,
the Note or any other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Bank.
SECTION 8.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement.
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(b) Subject to the provisions of Section 8.07, the Borrower
authorizes each Bank to disclose to any participant, assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession concerning the
Borrower which has been delivered to the Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(c) No Transferee shall be entitled to receive any greater payment
under Section 7.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 7.02
or 7.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 8.07. Confidentiality. The Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by the Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loan; provided, however, that nothing herein shall prevent the
Bank from disclosing such information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of any regulatory agency
or authority having jurisdiction over the Bank, (iii) which has been publicly
disclosed, (iv) to the extent reasonably required in connection with any
litigation to which the Bank or its Affiliates may be a party, (v) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(vi) to the Bank's legal counsel, Affiliates and independent auditors and (vii)
to any actual or proposed participant, assignee or other Transferee of all or
part of its rights hereunder which has agreed in writing to be bound by the
provisions of this Section 8.07.
SECTION 8.08. Survival of Certain Obligations. Sections 7.03(a),
7.03(b) and 8.03, and the obligations of the Borrower thereunder, shall survive,
and shall continue to be enforceable notwithstanding, the termination of this
Agreement and the Commitment and the payment in full of the principal of and
interest on the Loan.
SECTION 8.09. Georgia Law. This Agreement and the Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 8.10. Severability. In case any one or more of the provisions
contained in this Agreement, the Note or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 8.11. Interest. In no event shall the amount of interest due or
payable hereunder or under the Note exceed the maximum rate of interest allowed
by applicable law, and in the event any such payment is inadvertently made to
the Bank by the Borrower or inadvertently
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received by the Bank, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the Bank in writing that it elects
to have such excess sum returned forthwith. It is the express intent hereof that
the Borrower not pay and the Bank not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by the
Borrower under applicable law.
SECTION 8.12. Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 8.13. Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Note and the other Loan Documents, (b) waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State of
Georgia for the purpose of litigation to enforce this Agreement, the Note or the
other Loan Documents, and (c) agrees that service of process may be made upon it
in the manner prescribed in Section 8.01 for the giving of notice to the
Borrower. Nothing herein contained, however, shall prevent the Bank from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction.
SECTION 8.14. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 8.15. Florida Taxes. In connection with this transaction there
may or may not be due certain documentary stamp taxes and/or intangible taxes
imposed by the State of Florida (the "Florida Taxes"). In addition to (and not
in limitation of) the indemnification with respect to tax liabilities set forth
herein, the Borrower agrees to indemnify the Bank, its directors, officers,
agents and employees from and against any and all liability, damage, loss, cost,
expense or reasonable attorney fees which may accrue to or be sustained by the
Bank or its directors, officers, agents or employees on account of or arising
from any claim or action raised by, filed or brought by or in the name of any
Florida governmental or administrative department with respect to non-payment of
the Florida Taxes against the Bank, or any of its directors, officers, agents or
employees.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
OUTBACK STEAKHOUSE, INC.
By: (SEAL)
--------------------------------------
Xxxxxx X. Xxxxxxx, Treasurer
Outback Steakhouse, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx., 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President, Chief Financial Officer
and Treasurer
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
with a copy to:
Outback Steakhouse, Inc.
0000 Xxxxx Xxxxxxxxx Xxxx., 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Vice President, General Counsel and Secretary
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
[The remainder of this page intentionally left blank.]
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WACHOVIA BANK, N.A.
By: (SEAL)
---------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President
Lending Office
Wachovia Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Senior Vice President
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
29
