THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
Exhibit
4.90
THIRD
AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
THIS
THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this “Amendment”) is made as
of the 10th
day of
March, 2006, by and among RY-8, INC., a Hawaii corporation (referred to herein
as the “Borrower”), WACHOVIA BANK, NATIONAL ASSOCIATION (referred to herein as
the “Bank”), ROY’S HOLDINGS, INC., a Hawaii corporation, OUTBACK STEAKHOUSE,
INC., a Delaware corporation, and OS PACIFIC, INC., a Florida corporation
(collectively referred to herein as the “Guarantors”).
R
E C
I T A L S:
The
Borrower, the Guarantors and the Bank have entered into that certain Credit
and
Guaranty Agreement dated October 31, 2000, as amended by that certain First
Amendment to Credit and Guaranty Agreement dated October 19, 2001 and that
certain Second Amendment to Credit and Guaranty Agreement dated December 21,
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
Borrower and Guarantors have requested the Bank to amend the Credit Agreement
to
amend the definition of “Existing Outback Credit Agreement” and make certain
other modifications, 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
definitions of “Existing Outback Credit Agreement,” and “Outback/Wachovia Credit
Agreement,” contained in Section 1.01 of the Credit Agreement are hereby amended
and restated to read as follows:
“Existing
Outback Credit Agreement” means that certain Amended and Restated Credit
Agreement dated March 10, 2006, by and among Outback Steakhouse, Inc., 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 Outback Credit Agreement)
or amendments agreed to by Outback Steakhouse, Inc. and the Banks (as defined
in
the Existing Outback Credit Agreement).
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2152570v4
“Outback/Wachovia
Credit Agreement” shall mean that certain Credit Agreement dated as of April 27,
2004 between Outback and the Bank, as amended by that certain First Amendment
to
Credit Agreement dated April 28, 2005 and that certain Second Amendment to
Credit Agreement dated March 10, 2006.
SECTION
3. 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; and
(b) the
fact
that the representations and warranties of the Borrower and Guarantors contained
in Section 5 of this Amendment shall be true on and as of the date
hereof.
SECTION
4. 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
5. 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 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 has been duly authorized, validly executed and delivered by one or
more authorized officers of the Borrower and Guarantors and constitute legal,
valid and
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2
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 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 be in contravention of
or
in conflict with the certificate or articles 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
6. 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
7. Governing
Law.
This
Amendment shall be considered in accordance with and governed by the laws of
the
State of Georgia.
SECTION
8. 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 Credit Agreement as hereby amended, said Credit Agreement,
as
hereby amended, being hereby ratified and affirmed. The Guarantors hereby
expressly agree that the Credit Agreement, as hereby amended, is in full force
and effect.
SECTION
9. Effective
Date.
This
Amendment shall be effective as of March 10, 2006.
SECTION
10. Notices.
All
notices, requests and other communications to any party to 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.
[The
remainder of this page intentionally left blank.]
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3
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:
RY-8,
INC.
By:
/s/ Xxxxxxxx X. Lee______________(SEAL)
Title:
Xxxxxxxx X. Xxx, Vice President and Secretary
RY-8,
Inc.
0000
Xxxxxxxxxxxx Xxx
Xxxxxxxx,
Xxxxxx 00000
Attention:
Xxx Xxxxxxxxx
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
with
a
copy to:
Xxxxxxxx
X. Xxx, Esq.
0000
Xxxxx Xxxxxx Xxxxxxx, Xxxxx X-000
Xxxxxxxx,
Xxxxxx 00000
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
STATE
OF
HAWAII
CITY
& COUNTY OF HONOLULU
THE
FOREGOING INSTRUMENT was acknowledged before me this 14th day of
March, 2006, by Xxxxxxxx X. Xxx, as Vice President and Secretary of
RY-8, INC. on behalf of the corporation. He/she is personally known to
me.
/s/
Xxxxxxx Hebblethwaite__________________
(Affix
Seal)
Print
Name: Xxxxxxx Hebblethwaite___________
Notary
Public - State of Hawaii
My
Commission Expires: 3/20/09_____________
My
Commission No.:___-------______________
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4
GUARANTORS:
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
STATE
OF
North Carolina___________
COUNTY
OF
Mecklenburg__________
THE
FOREGOING INSTRUMENT was acknowledged before me this _10th_ day of March,
2006, by Xxxx X. Xxxxxxxxxx, as Senior Vice President and Chief Financial
Officer of OUTBACK STEAKHOUSE, INC. on behalf of the corporation. He is
personally known to me.
/s/
Xxxx X. Xxxxxx, III_____________________
(Affix
Seal) Print
Name: Xxxx X. Xxxxxx, III______________
Notary
Public - State of North Carolina_________
My
Commission Expires: My Commission Expires October 27, 2006
My
Commission No.:______________________
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2152570v4
5
ROY’S
HOLDINGS, INC.
By:
/s/ Xxxxxxxx X. Lee______________(SEAL)
Title:
Xxxxxxxx X. Xxx, Vice President and Secretary
Roy’s
Holdings, Inc.
0000
Xxxxxxxxxxxx Xxx
Xxxxxxxx,
Xxxxxx 00000
Attention:
Xxx Xxxxxxxxx
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
with
a
copy to:
Xxxxxxxx
X. Xxx, Esq.
0000
Xxxxx Xxxxxx Xxxxxxx, Xxxxx X-000
Xxxxxxxx,
Xxxxxx 00000
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
STATE
OF
HAWAII
CITY
& COUNTY OF HONOLULU
THE
FOREGOING INSTRUMENT was acknowledged before me this 14th day of
March, 2006, by Xxxxxxxx X. Xxx, as Vice President and Secretary of
ROY’S HOLDINGS, INC. on behalf of the corporation. He/she is personally known to
me.
/s/
Xxxxxxx
Hebblethwaite__________________
(Affix
Seal)
Print
Name: Xxxxxxx Hebblethwaite___________
Notary
Public - State of Hawaii
My
Commission Expires: 3/20/09_____________
My
Commission No.:___-------______________
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6
OS
PACIFIC, INC.
By:
/s/ Xxxx X. Montgomery___________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Chief Financial Officer
OS
Pacific, Inc.
c/o
Outback Steakhouse, Inc.
0000
Xxxxx Xxxxxxxxx Xxxx., 0xx
Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxxxx
Chief
Financial Officer
Telecopy
number: (000)
000-0000
Telephone
number: (000)
000-0000
with
a
copy to:
OS
Pacific, Inc.
c/o
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
STATE
OF
North Carolina___________
COUNTY
OF
Mecklenburg__________
THE
FOREGOING INSTRUMENT was acknowledged before me this _10th_ day of March,
2006, by Xxxx X. Xxxxxxxxxx, as Chief Financial Officer of OS PACIFIC, INC.
on
behalf of the corporation. He is personally known to me.
/s/ Xxxx X. Xxxxxx, III_____________________
(Affix
Seal) Print
Name: Xxxx X. Xxxxxx, III______________
Notary
Public - State of North Carolina_________
My
Commission Expires: My Commission Expires October 27, 2006
My
Commission No.:______________________
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7
WACHOVIA
BANK, NATIONAL
ASSOCIATION
By:
/s/
Xxxx X.
Culbreath__________________
Xxxx
X.
Xxxxxxxxx, Senior Vice President
Wachovia
Bank, National Association
00
Xxxxx
Xxxxxxxxx Xxxxxx, Mail Code VA 7628 (24011)
XX
Xxx
00000
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
STATE
OF
North Carolina___________
COUNTY
OF
Mecklenburg__________
THE
FOREGOING INSTRUMENT was acknowledged before me this _10th_ day of March,
2006, by Xxxx X. Xxxxxxxxx, as Senior Vice President of WACHOVIA BANK, NATIONAL
ASSOCIATION on behalf of the corporation. She is personally known to
me.
/s/
Xxxx X.
Xxxxxx, III_____________________
(Affix
Seal) Print
Name: Xxxx X. Xxxxxx, III______________
Notary
Public - State of North Carolina_________
My
Commission Expires: My Commission Expires October 27, 2006
My
Commission No.:______________________
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