SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit
4.88
SECOND
AMENDMENT TO CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made as of the 10th
day of March, 2006, by and among OUTBACK STEAKHOUSE, INC., a Delaware
corporation (referred to herein as the “Borrower”), WACHOVIA BANK, NATIONAL
ASSOCIATION (the “Bank”) and OUTBACK STEAKHOUSE OF FLORIDA, INC., CARRABBA’S
ITALIAN GRILL, INC., OUTBACK STEAKHOUSE INTERNATIONAL, INC., OS CAPITAL, INC.,
OS PACIFIC, INC., OS PRIME, INC., OS TROPICAL, INC. and BONEFISH GRILL, INC.
(collectively referred to herein as the “Guarantors”).
R
E C
I T A L S:
The
Borrower and the Bank have entered into that certain Credit Agreement dated
April 27, 2004 as amended by that certain First Amendment to Credit Agreement
dated April 28, 2005 (the “Credit Agreement”). Capitalized terms used in this
Amendment which are not otherwise defined in this Amendment shall have the
respective meanings assigned to them in the Credit Agreement.
The
Guarantors (excluding OS Tropical, Inc.) and Outback Sports, LLC executed that
certain Guaranty Agreement (the “Guaranty Agreement”) dated April 27, 2004 to
and for the benefit of the Bank in respect of the Borrower and Credit
Agreement.
The
Borrower and Guarantors have requested the Bank to amend the Credit Agreement
(i) to increase the Commitment of the Bank to be equal to $40,000,000, (ii)
extend the termination date to June 30, 2011, (iii) amend the definition of
“Existing Credit Agreement” to mean the Borrower’s Amended and Restated Credit
Agreement dated of even date herewith, and (iv) certain other amendments more
fully set forth herein, all upon the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the Recitals and the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Guarantors
and
the Bank, intending to be legally bound hereby, agree as follows:
SECTION
1. Recitals.
The
Recitals are incorporated herein by reference and shall be deemed to be a part
of this Amendment.
SECTION
2. Amendments.
The
Credit Agreement is hereby amended as set forth in this Section
2.
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2.1 Amendment
to Section 1.01.
(a) The
following definitions set forth in Section 1.01 of the Credit Agreement are
amended and restated to read as follows:
(i) “Commitment”
means $40,000,000 as such amount may be reduced from time to time pursuant
to
this Agreement.
(ii) “Existing
Credit Agreement” means that certain Amended and Restated Credit Agreement dated
March 10, 2006 by and among the Borrower, the Banks party thereto, Wachovia
Bank, National Association, as Agent, Wachovia Capital Markets, LLC, as Sole
Arranger, SunTrust Bank, as Syndication Agent, and Bank of America, N.A. and
Xxxxx Fargo Bank, National Association, as Co-Documentation Agents, as in effect
on the date hereof without regard and without giving effect to any waivers
given
by the Banks (as defined in the Existing Credit Agreement) or amendments agreed
to by the Borrower and the Banks (as defined in the Existing Credit Agreement).
Any definitions, terms, covenants, representations or other provisions of the
Existing Credit Agreement that are incorporated herein will continue to be
effective for purposes of this Agreement and the other Loan Documents,
notwithstanding that the indebtedness under the Existing Credit Agreement has
been or hereafter may be partially or fully repaid or the fact that the Existing
Credit Agreement otherwise might be terminated.
(iii) “Termination
Date” means June 30, 2011.
(b) Section
1.01 is hereby amended to add the following definition:
“Second
Amendment Closing Date” means March 10, 2006.
2.2.
Amendment
to Section 2.06(a).
Section
2.06(a) of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
(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 EBITDAR
(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 EBITDAR Base
Rate Loan Euro-Dollar
Loan Letters
of Credit
Greater
than 2.5
0% 0.65% 0.80%
Greater
than 2.0 but
equal
to
or less than 2.5
0% 0.55% 0.675%
Less
than
or equal to 2.0
0% 0.45% 0.55%
The
Applicable Margin shall be determined effective as of the date (herein, the
“Rate
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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
Second Amendment Closing Date to but excluding the Rate Determination Date
next
following the Second Amendment Closing Date, the Applicable Margin shall be
(A)
0% for a Base Rate Loan, (B) 0.45% for a Euro-Dollar Loan, and (C) 0.55% 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 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 EBITDAR was more than 2.5 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.
2.3.
Amendment
to Section 2.07.
Section
2.07 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
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 EBITDAR (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 EBITDAR Facility
Fee Rate
Greater
than 2.5 0.15%
Greater
than 2.0
but
equal
to or less than 2.5 0.125%
Less
than
or equal to 2.0 0.10%
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 Second Amendment Closing
Date to but excluding the Facility Fee Determination Date next following the
Second Amendment Closing Date, the Applicable Facility Fee Rate shall be 0.10%;
(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 EBITDAR was more than 2.5 at all times during such period.
SECTION
3. Modifications.
The
Borrower, the Guarantors and the Bank acknowledge and agree that: (1) prior
to this Amendment the amount of the Commitment of the Bank was equal to
$30,000,000; and (2) effective as of March 10, 2006 the Commitment of the Bank
shall be increased by an amount equal to $10,000,000 and after giving effect
to
such increase, the Commitment of the Bank shall be equal to $40,000,000. The
Borrower and Guarantors acknowledge and agree that the Commitment of the Bank
shall not be further increased without the Bank’s prior written
consent.
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SECTION
4. Conditions
to Effectiveness.
The
effectiveness of this Amendment and the obligations of the Bank hereunder are
subject to the following conditions, unless the Bank waives such
conditions:
(a) receipt
by the Bank from each of the parties hereto of a duly executed counterpart
of
this Amendment signed by such party;
(b) the
Bank
shall have received: (i) the duly executed Replacement Note for the account
of
the Bank; (ii) corporate resolutions and other evidence as the Bank may
reasonably request, respecting the authorization, execution and delivery of
this
Amendment and the Replacement Note; and (iii) opinions (together with any
opinions of local counsel relied on therein) of Xxxxx & Xxxxxxxxx, LLP,
counsel for the Borrower and Guarantors and Xxxxxx X. Xxxxx, Chief Officer-Legal
and Corporate Affairs of the Borrower in form and content satisfactory to the
Bank; and
(c) the
fact
that the representations and warranties of the Borrowers and Guarantors
contained in Section 6 of this Amendment shall be true on and as of the date
hereof.
SECTION
5. No
Other Amendment.
Except
for the amendments set forth above, the text of the Credit Agreement shall
remain unchanged and in full force and effect. This Amendment is not intended
to
effect, nor shall it be construed as, a novation. The Credit Agreement and
this
Amendment shall be construed together as a single agreement. Nothing herein
contained shall waive, annul, vary or affect any provision, condition, covenant
or agreement contained in the Credit Agreement, except as herein amended, nor
affect nor impair any rights, powers or remedies under the Credit Agreement
as
hereby amended. The Bank does hereby reserve all of its rights and remedies
against all parties who may be or may hereafter become secondarily liable for
the repayment of the Note. The Borrower and Guarantors promise and agree to
perform all of the requirements, conditions, agreements and obligations under
the terms of the Credit Agreement, as heretofore and hereby amended, the Credit
Agreement, as amended, being hereby ratified and affirmed. The Borrower and
Guarantors hereby expressly agree that the Credit Agreement, as amended, is
in
full force and effect.
SECTION
6. Representations
and Warranties.
The
Borrower and Guarantors hereby represent and warrant to the Bank as
follows:
(a) No
Default or Event of Default, 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, under the Credit Agreement or any other Loan Document has
occurred and is continuing unwaived by the Bank on the date hereof.
(b) The
Borrower and Guarantors have the power and authority to enter into this
Amendment and the Replacement Note and to do all acts and things as are required
or contemplated hereunder, or thereunder, to be done, observed and performed
by
it.
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(c) This
Amendment and the Replacement Note have been duly authorized, validly executed
and delivered by one or more authorized officers of the Borrower and Guarantors
and constitute legal, valid and binding obligations of the Borrower and each
Guarantor enforceable against it in accordance with their terms, provided that
such enforceability is subject to general principles of equity.
(d) The
execution and delivery of this Amendment, the Replacement Note and the
performance of the Borrower and Guarantors hereunder and thereunder do not
and
will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over the Borrower or any
Guarantor, nor is in contravention of or in conflict with the articles or
certificate of incorporation or bylaws of the Borrower or any Guarantor, or
the
provisions of any statute, or any judgment, order or indenture, instrument,
agreement or undertaking, to which the Borrower or any Guarantor is party or
by
which the assets or properties of the Borrower and Guarantors are or may become
bound.
SECTION
7. Counterparts.
This
Amendment may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which, taken together, shall constitute
one
and the same agreement.
SECTION
8. Governing
Law.
This
Amendment shall be considered in accordance with and governed by the laws of
the
State of North Carolina.
SECTION
9. Joinder
Agreement. OS
Tropical, Inc., a Florida corporation (“New Guarantor”) hereby agrees that by
execution of this Amendment, it shall be a Guarantor under the Guaranty
Agreement and (i) shall comply with, and be subject to, and have the benefit
of,
all of the terms, conditions, covenants, agreements and obligations set forth
in
the Guaranty Agreement and (ii) hereby makes each representation and warranty
set forth in the Guaranty Agreement as of the date hereof. The Borrower and
New
Guarantor hereby agree that each reference to a “Guarantor” and the “Guarantors”
in the Credit Agreement, the Guaranty Agreement, this Amendment and the other
Loan Documents shall include the New Guarantor, and each reference to the
“Guaranty Agreement” or “Guaranty” as used therein shall mean the Guaranty
Agreement as supplemented hereby. The New Guarantor hereby acknowledges it
has
received a copy of the Loan Documents (including, without limitation, the
Guaranty Agreement) and that it has read and understands the terms
thereof.
SECTION
10. Release
of Guarantor.
The
Bank hereby releases Outback Sports, LLC from all of its obligations under
the
Guaranty Agreement. Any reference to a “Guarantor” and the “Guarantors” in the
Credit Agreement, the Guaranty Agreement, this Amendment and the other Loan
Documents shall not include Outback Sports, LLC, as of the date hereof, and
each
reference to the “Guaranty Agreement” or “Guaranty” as used therein shall mean
the Guaranty Agreement as supplemented hereby.
SECTION
11. Consent
by Guarantors.
The
Guarantors consent to the foregoing amendments. The Guarantors promise and
agree
to perform all of the requirements, conditions, agreements and obligations
under
the terms of the Guaranty Agreement, said Guaranty
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Agreement
being hereby ratified and affirmed. In furtherance and not in limitation
of the
foregoing, the Guarantors acknowledge and agree that the “Obligations” (as
defined in the Guaranty Agreement) include, without limitation, the
indebtedness, liabilities and obligations evidenced by the Replacement Note
and
the Advances made under the Commitment as increased by this Amendment. The
Guarantors hereby expressly agree that the Guaranty Agreement, as hereby
amended, is in full force and effect.
SECTION
12. Effective
Date.
This
Amendment shall be effective as of March 10, 2006.
SECTION
13. Commitment.
The
Borrower, the Guarantors and the Bank acknowledge and agree, as of the effective
date of this Amendment the aggregate amount of the Commitment of the Bank is
equal to $40,000,000. The Borrower shall deliver to the Bank a replacement
Note
(in the amount of the Bank’s Commitment) (such Note is referred to herein as the
“Replacement Note”), executed by the Borrower, in exchange for the Note of such
Bank currently outstanding. All references contained in the Credit Agreement
and
the other Loan Documents to the Note shall mean and include the Replacement
Note
as supplemented, modified, amended, renewed or extended.
SECTION
14. Notices.
All
notices, requests and other communications to the Bank or the Borrower under
the
Credit Agreement, as amended hereby, shall be given in accordance with the
terms
of Section 8.01 of the Credit Agreement; provided, such notices, requests and
other communications 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.
[Remainder
of page intentionally left blank]
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7
IN
WITNESS WHEREOF, the parties hereto have executed and delivered, or have caused
their respective duly authorized officers or representatives to execute and
deliver, this Amendment as of the day and year first above written.
BORROWER:
OUTBACK
STEAKHOUSE, INC.
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Senior Vice
President
and Chief Financial Officer
Outback
Steakhouse, Inc.
0000
Xxxxx Xxxxxxxxx Xxxx., 0xx
Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxxxx
Senior
Vice President and Chief Financial Officer
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
Executive
Vice President, Chief Officer-Legal and Corporate Affairs and
Secretary
Telecopy
number: (000)
000-0000
Telephone
number: (000)
000-0000
GUARANTORS:
OUTBACK
STEAKHOUSE OF
FLORIDA, INC., a Florida corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
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8
CARRABBA’S
ITALIAN GRILL, INC.,
a
Florida
corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
OUTBACK
STEAKHOUSE
INTERNATIONAL, INC., a Florida corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
OS
CAPITAL, INC.,
a
Delaware corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
OS
PACIFIC, INC.,
a
Florida
corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
OS
PRIME, INC.,
a
Florida
corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
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9
OS
TROPICAL, INC.,
a
Florida
corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
BONEFISH
GRILL, INC.,
a
Florida
corporation
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief
Financial
Officer
[Remainder
of page intentionally left blank]
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WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxx X.
Culbreath___________________
Xxxx
X.
Xxxxxxxxx, Senior Vice President
Lending
Office
Wachovia
Bank, National Association
00
Xxxxx
Xxxxxxxxx Xxxxxx, XX0000
Xxxxxxx,
XX 00000
with
a
copy to:
Wachovia
Bank, National Association
000
Xxxxx
Xxxxxx Xxxxx, XX0000
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxxx
Senior
Vice President
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
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