AMENDMENT TO BOND DOCUMENTS AND SUPPLEMENTAL INDENTURE
Exhibit
10.04
The
Huntington National Bank, Fifth Third Bank and
PNC
Bank, National Association
(individually and collectively, "Holders") and Kentucky
Speedway, LLC (“Debtor”),
The
Huntington National Bank, Trustee,
(“Trustee”), County
of Gallatin, Kentucky
(“Issuer”), and OSI
Restaurant Partners, Inc., Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx
X.
Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxx
X. Xxxxxxxxxx,
Trustee
of the Deepwater Trust dated as of February 28, 2002, and Xxxx
X. Xxxxxxx,
Trustee
of The Blue Water Trust dated as of August 1, 2002 (individually and
collectively “Guarantors”) hereby agree as follows effective as of June
30, 2006 ("Effective Date"):
| 1. |
Recitals.
|
| 1.1 |
The
Holders are the owners of the $56,500,000 County of Gallatin, Kentucky
Taxable Adjustable Rate Industrial Building Bonds, Series 1999, (Kentucky
Speedway Park Project), $3,500,000 Gallatin County, Kentucky Public
Properties Corporation First Mortgage Revenue Bonds Series 1999 and
$8,000,000 County of Gallatin, Kentucky Taxable Adjustable Rate Industrial
Building Bonds, Series 1999, (Kentucky Speedway Park Project)
(individually and collectively, “Bonds”) issued by the Issuer and under
which the Debtor is obligated.
|
| 1.2 |
The
Trustee is the trustee for the Bonds, which were issued by the
Issuer.
|
| 1.3 |
The
Guarantors are guarantors under an Amended and Restated Guarantee
of even
date herewith relating to the
Bonds.
|
| 1.4 |
The
parties hereto desire to amend the Bonds and all documents executed
in
connection with the Bonds (“Bond Documents”) as provided herein.
Capitalized terms used herein and not otherwise defined herein will
have
the meanings given such terms in the Bonds and the Bond
Documents.
|
| 2. |
Amendment.
The Bonds and the Bond Documents are amended to provide as
follows:
|
| 2.1 |
The
“Bond Purchase Date” (the dates on which the Holders may require the
Debtor to purchase Bonds) is changed from December 1, 2005 and on
each
Interest Payment Date thereafter to June 1, 2011 and on each Interest
Payment Date thereafter.
|
| 2.2 |
Beginning
on the Effective Date, Interest on the Bonds will be calculated as
follows:
|
For
Bonds, the interest on which is includable in gross income for federal income
tax purposes, the interest rate will be LIBOR plus 75 basis points. For Bonds,
the interest on which is excludable from gross income for federal income tax
purposes, the interest rate will be LIBOR plus 75 basis points multiplied by
75%.
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| 2.3 |
The
Fixed Charge Coverage Ratio covenant is deleted and replaced by the
following :
|
Debtor
will maintain a FCC equal to or greater than 1.00 to 1.00, to be measured
quarterly on a rolling four-quarter basis. For purposes of calculating the
FCC,
the principal payment of $1,700,000 made on the Bonds in December of 2005 will
be ignored.
| 2.4 |
If
the Debtor’s FCC is less than 1.00 to 1.00, the Guarantors will contribute
to Debtor as equity or subordinated debt (“Capital Contribution”) on a
several basis, cash sufficient to cause the FCC to be equal to or
greater
than 1.00 to 1.00. Such Capital Contribution will be contributed
within 10
Business Days of the scheduled due date of Debtor’s quarterly financial
statements under the Bond Documents and Debtor will promptly furnish
the
Holders proof, reasonably satisfactory to the Holders, of such Capital
Contribution. All subordinated debt will be in form and substance
acceptable to the Trustee. The obligations to make Capital contributions
of the Guarantors are the following percentages of any
shortfall:
|
|
|
27.78%
|
|
|
Xxxxxxx
X. Xxxxxxxxxx
|
27.78%
|
|
|
Xxxxxxx
X. Xxxxxx
|
27.78%
|
|
|
Xxxxx
X. Xxxxxxx
|
8.33%
|
|
|
Xxxx
X. Xxxxxxx
Xxxxx
X. Xxxxxxxxxx, Trustee of the Deepwater Trust
dated
as of February 28, 2002, and Xxxx X.
Xxxxxxx,
Trustee
of The Blue Water Trust dated as of August 1,
2002,
jointly and severally as to such 8.33%
|
8.33%
|
The
obligations of the Guarantors to make Capital Contributions are in
addition
to their
obligations under their Guarantee of even date herewith.
| 2.5 |
The
minimum liquidity covenant added in the Amendment to Bond Documents
and
Supplemental Indenture dated as of June 1, 2002 is
deleted.
|
| 2.6 |
For
all purposes under the Bonds and Bond Documents, Fifth Third Bank
will be
deemed an Original Purchaser.
|
| 2.7 |
Section
15.7 of the Lease Agreement is amended to add the following at the
end of
15.7 (a) (quarterly financial
statements):
|
,
such
financial statements to be accompanied by a compliance certificate in form
and
substance satisfactory to the Original Purchasers
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demonstrating
compliance with the financial covenants contained in the documents executed
in
connection with the Bonds.
| 2.8 |
Section
15.7 of the Lease Agreement is amended to add the following at its
end:
|
(e)
By
March 31 of each year, annual financial statements of each of the Guarantors
for
the preceding calendar year along with documentation establishing the liquidity
of each of the Guarantors, all in form and detail reasonably acceptable to
the
Trustee and the Original Purchaser.
| 2.9 |
Mandatory
sinking fund redemptions of the Series 1999 Bonds and the Additional
Bonds
for 2006, 2007 and 2008 totaling $5,950,000 are waived. The mandatory
sinking fund redemptions are changed to the
following:
|
|
Year
of
Redemption
|
Principal
To Be Redeemed
|
|
2003
|
$1,450,000
|
|
2004
|
$1,550,000
|
|
2005
|
$1,700,000
|
|
2006
|
$
-
|
|
2007
|
$
-
|
|
2008
|
$
-
|
|
2009
|
$1,800,000
|
|
2010
|
$2,000,000
|
|
2011
|
$2,700,000
|
|
2012
|
$2,950,000
|
|
2013
|
$3,200,000
|
|
2014
|
$3,450,000
|
|
2015
|
$3,750,000
|
|
2016
|
$4,050,000
|
|
2017
|
$4,400,000
|
|
2018
|
$4,750,000
|
|
2019
|
$5,150,000
|
|
2020
|
$5,575,000
|
|
2021
|
$6,000,000
|
|
balloon
|
$10,025,000
|
|
TOTAL
|
$64,500,000.00
|
| 3. |
Representations
and Warranties.
To induce the parties to enter into this Amendment, Debtor represents
and
warrants as follows:
|
| 3.1 |
The
representations and warranties of Debtor contained in the Bond Documents
are deemed to have been made again on and as of the date of execution
of
this Amendment.
|
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| 3.2 |
No
Event of Default (as such term is defined in the Bond Documents)
or event
or condition which with the lapse of time or giving of notice or
both
would constitute an Event of Default exists on the date
hereof.
|
| 3.3 |
Debtor
represents and warrants that Debtor has no claims, counterclaims,
setoffs,
actions or causes of actions, damages or liabilities of any kind
or nature
whatsoever whether at law or in equity, in contract or in tort, whether
now accrued or hereafter maturing (collectively, "Claims") against
the
Holders, the Trustee or the Issuer, their direct or indirect parent
corporations or any direct or indirect affiliates of such parent
corporations, or any of the foregoing's respective directors, officers,
employees, agents, attorneys and legal representatives, or the heirs,
administrators, successors or assigns of any of them (collectively,
"Bond
Parties") that directly or indirectly arise out of, are based upon
or are
in any manner connected with any Prior Related Event. As an inducement
to
the parties to enter into this Agreement, Debtor on behalf of itself,
and
all of its successors and assigns hereby knowingly and voluntarily
releases and discharges all Bond Parties from any and all Claims,
whether
known or unknown, that directly or indirectly arise out of, are based
upon
or are in any manner connected with any Prior Related Event. As used
herein, the term "Prior Related Event" means any transaction, event,
circumstance, action, failure to act, occurrence of any sort or type,
whether known or unknown, which occurred, existed, was taken, permitted
or
begun at any time prior to the Effective Date or occurred, existed,
was
taken, was permitted or begun in accordance with, pursuant to or
by virtue
of any of the terms of the Bond Documents or any documents executed
in
connection with the Bond Documents or which was related to or connected
in
any manner, directly or indirectly to the extension of credit represented
by the Bond Documents.
|
| 4. |
Waiver.
|
| 4.1 |
Trustee
waives the late delivery of the 2005 annual financial statements
required
by Section 15.7(b) of the Lease. Tenant will furnish those statements
on
or before July 31, 2006.
|
| 4.2 |
Trustee
waives the breach of the FCC covenant that occurred as of March 31,
2006
and failure by the Guarantors to make the required Capital Contribution
of
$1,533,000 due within 10 days of March 31, 2006. The Guarantors will
make
such Capital Contributions on or before the Effective Date and provide
Trustee with evidence of the same.
|
| 4.3 |
The
waivers set forth in Section 4.1-4.2, above, will relate only to
the
specific matters covered by such Sections and in no event will Trustee
be
under any obligation to provide additional waivers with regard to
those
items or any other provisions of the Bond
Documents.
|
| 5. |
General.
|
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| 5.1 |
Except
as expressly modified herein, the Bond Documents, as amended, are
and
remain in full force and effect.
|
| 5.2 |
Nothing
contained herein will be construed as waiving any default or Event
of
Default under the Bond Documents or will affect or impair any right,
power
or remedy of Holders under or with respect to the Bond Documents,
as
amended, or any agreement or instrument guaranteeing, securing or
otherwise relating to any of the
Bonds
|
| 5.3 |
All
representations and warranties made by Debtor herein will survive
the
execution and delivery of this
Amendment.
|
| 5.4 |
This
Amendment may be executed in one or more counterparts and will be
binding
upon and inure to the benefit of the parties and their respective
successors and assigns.
|
| 5.5 |
Debtor
will pay Holders a fee in the amount of $25,000 to be shared pro
rata by
the Holders and Holders' attorneys’ fees in connection with this
Amendment.
|
| 5.6 |
This
Amendment will in all respects be governed and construed in accordance
with the laws of the Commonwealth of
Kentucky.
|
| 5.7 |
A
copy of this Amendment will be attached to the Bonds as an
allonge.
|
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[Signature
Pages to Amendment to Bond Documents and Supplemental
Indenture]
Executed
as of the Effective Date.
PNC
Bank, National Association
| By: /s/ Xxxxxxxx XxXxxxx__________ | |
| Print Name: /s/ Xxxxxxxx XxXxxxx____ | |
| Title: Vice President______________ |
Fifth
Third Bank
| By: /s/ Xxxxxxxxxxx X. Xxxxx_______ | |
| Print Name: /s/ Xxxxxxxxxxx X. Xxxxx_ | |
| Title: Vice President______________ |
The
Huntington National Bank
| By: /s/ Xxxxxx Xxxxx_______________ | |
| Print Name: /s/ Xxxxxx Xxxxx_________ | |
| Title: Vice President______________ |
The
Huntington National Bank, Trustee
| By: /s/ Xxxx Xxxxxx_______________ | |
| Print Name: /s/ Xxxx Xxxxxx_________ | |
| Title: Trust Officer________________ |
County
of Gallatin, Kentucky
| By: /s/ Xxxxxx X. Xxxxxx___________ | |
| Print Name: /s/ Xxxxxx X. Xxxxxx_____ | |
| Title: Judge/Executive______________ |
Kentucky
Speedway, LLC
| By: /s/ Xxxxx X. Xxxxxxx_____________ | |
| Print Name: /s/ Xxxxx X. Xxxxxxx_______ | |
| Title: Manager___________________ |
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[Signature
Pages to Amendment to Bond Documents and Supplemental
Indenture]
By:
/s/ Xxxx Xxxxxxxxxx________________________
Print
Name: /s/ Xxxx Xxxxxxxxxx__________________
Title:
Sr. VP - CFO_____________________________
/s/
Xxxxxxx X. Xxxxxxxxxx________
Xxxxxxx
X
Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx___________
Xxxxxxx
X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx______________
Xxxxx
X.
Xxxxxxx
/s/ Xxxx X. Xxxxxxx______________
Xxxx
X.
Xxxxxxx
/s/ Xxxx X. Xxxxxxx______________
Xxxx
X.
Xxxxxxx, Trustee of The Blue
Water
Trust dated as of August 1, 2002
/s/ Xxxxx X. Xxxxxxxxxx_____________
Xxxxx
X.
Xxxxxxxxxx, Trustee of the
Deepwater
Trust dated as of February 28, 2002
[Attach
Notary ]
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COMMONWEALTH
OF KENTUCKY)
)
SS:
COUNTY
OF
____________ )
The
foregoing instrument was acknowledged before me, a notary public,
this 28 day
of
June,
2006 by
Xxxxx X. Xxxxxxx,
the
duly authorized officer of Kentucky
Speedway, LLC,
on
behalf of such limited liability company.
Notary
Public
My
commission expires:
STATE
OF
_____________ )
)
SS:
COUNTY
OF
____________ )
The
foregoing instrument was acknowledged before me, a notary public,
this 29th
day of
June,
2006 by
Xxxx X. Xxxxxxxxxx,
the
duly authorized officer of OSI
Restaurant Partners, Inc.,
on
behalf of such corporation.
Notary
Public
My
commission expires:
STATE
OF
______________ )
)
SS:
COUNTY
OF
____________)
The
foregoing instrument was acknowledged before me, a notary public, this
29th day
of June,
2006 by
Xxxxxxx
X Xxxxxxxxxx.
Notary
Public
My
commission expires:
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STATE
OF
______________ )
)
SS:
COUNTY
OF
____________)
The
foregoing instrument was acknowledged before me, a notary public, this
28th day
of
June,
2006 by
Xxxxxxx
X. Xxxxxx.
Notary
Public
My
commission expires:
STATE
OF
______________ )
)
SS:
COUNTY
OF
____________)
The
foregoing instrument was acknowledged before me, a notary public, this
28 day
of
June,
2006 by
Xxxxx
X. Xxxxxxx.
Notary
Public
My
commission expires:
STATE
OF
______________ )
)
SS:
COUNTY
OF
____________)
The
foregoing instrument was acknowledged before me, a notary public, this
28th day
of
June,
2006 by
Xxxx
X. Xxxxxxx, individually
and as Trustee of The Blue Water Trust dated as of August 1, 2002.
Notary
Public
My
commission expires:
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STATE
OF
______________ )
)
SS:
COUNTY
OF
____________)
The
foregoing instrument was acknowledged before me, a notary public, this
28th day
of June,
2006 by
Xxxxx
X. Xxxxxxxxxx,
as
Trustee of the Deepwater Trust dated as of February 28, 2002.
.
Notary
Public
My
commission expires:
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