EXHIBIT 10.6
This note replaces but does not extinguish the obligations under that certain
Swingline Note (the "Original Swingline Note") executed in connection with the
Credit Agreement dated as of January 27, 2003 by and among the Borrower, the
lenders party thereto and Wachovia Bank, National Association, as Administrative
Agent.
AMENDED AND RESTATED SWINGLINE NOTE
$__________ __________, 2003
FOR VALUE RECEIVED, the undersigned, O'CHARLEY'S INC., a corporation
organized under the laws of Tennessee (the "Borrower"), promises to pay to the
order of _________________________________________ (the "Lender"), at the place
and times provided in the Credit Agreement referred to below, the principal sum
of _______________ DOLLARS ($__________) or, if less, the principal amount of
all Swingline Loans made by the Lender from time to time pursuant to that
certain Amended and Restated Credit Agreement, dated as of ______________, 2003
(as further amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), by and among the Borrower, the Lenders who are or may become a
party thereto, as Lenders (the "Lenders"), and Wachovia Bank, National
Association, as Administrative Agent (the "Administrative Agent"). Capitalized
terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The unpaid principal amount of this Amended and Restated Swingline Note
(the "Swingline Note") from time to time outstanding is subject to mandatory
repayment from time to time as provided in the Credit Agreement and shall bear
interest as provided in Section 5.1 of the Credit Agreement. Swingline Loans
refunded as Revolving Credit Loans in accordance with Section 2.2(d) of the
Credit Agreement shall be payable by the Borrower as Revolving Credit Loans
pursuant to the Revolving Credit Notes, and shall not be payable under this
Swingline Note as Swingline Loans. All payments of principal and interest on
this Swingline Note shall be payable in lawful currency of the United States of
America in immediately available funds to the account designated in the Credit
Agreement.
This Swingline Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which reference is made for
a description of the security for this Swingline Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Obligations evidenced by this
Swingline Note and on which such Obligations may be declared to be immediately
due and payable.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND ALL ISSUES RELATED TO THE LEGALITY, VALIDITY OR
ENFORCEABILITY HEREOF, SHALL BE DETERMINED UNDER THE LAWS OF NEW YORK (INCLUDING
SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
The Debt evidenced by this Swingline Note is senior in right of payment
to all Subordinated Debt (including, without limitation, the Senior Subordinated
Notes) referred to in the Credit Agreement.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by the Credit
Agreement) notice of any kind with respect to this Swingline Note.
This Swingline Note is given in modification, replacement and
restatement of the Original Swingline Note, but not in repayment or
extinguishment of the unpaid indebtedness evidenced by the Original Swingline
Note, and all indebtedness formerly evidenced by said Original Swingline Note
and unpaid on the date hereof shall now be evidenced by this Swingline Note, and
as of the date hereof, said Original Swingline Note shall no longer evidence
said outstanding indebtedness. This Swingline Note shall not be considered to be
a novation of said Original Swingline Note as this Swingline Note evidences the
same indebtedness.
(Signature Page Follows)
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IN WITNESS WHEREOF, the undersigned has executed this Swingline Note
under seal as of the day and year first above written.
O'CHARLEY'S INC.
By: _____________________________________
Name:________________________________
Title:_______________________________
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