FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
4.01
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) is made as of the 28th day of
April, 2005, 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., BONEFISH GRILL, INC. and OUTBACK SPORTS, LLC (collectively referred
to herein as the “Guarantors”).
R E C
I T A L S:
The
Borrower and the Bank have entered into a certain Credit Agreement dated April
27, 2004 (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 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 to
increase the Commitment of the Bank to be equal to $30,000,000, 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.
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:
“Commitment”
means $30,000,000 as such amount may be reduced from time to time pursuant to
this Agreement.
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
$20,000,000; and (2) effective as of April 28, 2005 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 $30,000,000. 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.
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) an opinion from counsel to the
Borrowers and Guarantors 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
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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.
(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 of
incorporation, operating agreement, articles of organization 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. 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 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
10. Effective
Date. This
Amendment shall be effective as of April 28, 2005.
SECTION
11. 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 $30,000,000. The Borrower shall deliver to the Bank a
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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.
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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.
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OUTBACK
STEAKHOUSE, INC. |
||||
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By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | ||
|
Xxxxxx
X. Xxxxxxx, Treasurer |
||||
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GUARANTORS: |
||||
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OUTBACK
STEAKHOUSE OF FLORIDA, INC., | ||||
|
a
Florida corporation |
||||
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By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | ||
|
Xxxxxx
X. Xxxxxxx, Treasurer |
||||
|
CARRABBA’S
ITALIAN GRILL, INC., a Florida | ||||
|
corporation |
||||
|
By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | ||
|
Xxxxxx
X. Xxxxxxx, Treasurer |
||||
|
OUTBACK
STEAKHOUSE INTERNATIONAL, | ||||
|
INC.,
a Florida corporation | ||||
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By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | ||
|
Xxxxxx
X. Xxxxxxx, Treasurer |
||||
|
OS
CAPITAL, INC., a Delaware corporation | ||||
|
By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | ||
|
Xxxxxx
X. Xxxxxxx, Treasurer |
||||
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|
OS
PACIFIC, INC., a Florida corporation | |||
|
By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | |
|
Xxxxxx
X. Xxxxxxx, Treasurer |
|||
|
OS
PRIME, INC., a Florida corporation | |||
|
By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | |
|
Xxxxxx
X. Xxxxxxx, Treasurer |
|||
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BONEFISH
GRILL, INC., a Florida corporation | |||
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By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | |
|
Xxxxxx
X. Xxxxxxx, Treasurer |
|||
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OUTBACK
SPORTS, LLC., a Delaware limited | |||
|
liability
company | |||
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By: |
/s/ Xxxxxx X. Xxxxxxx |
(SEAL) | |
|
Xxxxxx
X. Xxxxxxx, Treasurer |
|||
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WACHOVIA
BANK, NATIONAL | |||
|
ASSOCIATION | |||
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By: |
/s/ Xxxx X. Xxxxxxxxx | ||
|
Xxxx
X. Xxxxxxxxx, Senior Vice President | |||
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