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EXHIBIT 10.21
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
DATED MAY 30, 1996
BETWEEN
OUTBACK STEAKHOUSE, INC.
AND
XXXXXXX BANK OF TAMPA
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FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT dated as of the 30th day of May,
1996, is made and executed by and between XXXXXXX BANK OF TAMPA, a state
chartered bank, and its successors and assigns (collectively, the "Bank"), and
OUTBACK STEAKHOUSE, INC., a Delaware corporation (the "Borrower").
BACKGROUND
A. On or about January 13, 1994, the Bank and the Borrower made
and executed a certain First Amended and Restated Loan Agreement (the "Prior
Loan Agreement") relating to a $5,000,000.00 commercial revolving line of
credit.
B. On or about September 14, 1994, the Bank and the Borrower
executed and entered into the covenants of that certain First Amendment to First
Amended and Restated Loan Agreement (the "First Amendment").
C. The Borrower requested that the Bank increase the existing
$5,000,000.00 revolving line of credit available under the Restated Loan
Agreement so as to provide a $7,500,000.00 revolving line of credit to support
or collateralize the issuance by Bank of letters of credit, finance general
corporate needs and support or collateralize loans to franchisees of the
Borrower (as from time to time extended and/or increased, the "Facility"), and
Bank approved said increase, subject to the terms and provisions of a certain
Second Amended and Restated Loan Agreement dated as of August 14, 1995 (as from
time to time modified and amended, the "Restated Loan Agreement"), which
replaced and superseded the Prior Loan Agreement in its entirety.
D. To evidence the increased Facility, the Borrower as of
August 14, 1995, executed and delivered to the Bank a certain Amended and
Restated Commercial Promissory Note in the principal amount of $7,500,000.00
(the "Prior Note"), which Prior Note amended, restated, increased and replaced
that certain Commercial Promissory Note dated January 13, 1994, executed by the
Borrower in favor of the Bank in the principal amount of $5,000,000.00.
E. Borrower has requested that Bank further extend the maturity
of the Facility and Bank has agreed so to do, and to evidence the Facility as
extended, the Borrower as of even date herewith has executed and delivered to
the Bank a certain Amended and Restated Commercial Promissory Note in the
principal amount of $7,500,000.00 (the "Renewal Note"), which Renewal Note
amends, restates, increases and replaces the Prior Note executed by the Borrower
in favor of the Bank in the principal amount of $7,500,000.00, in its entirety.
F. The Bank and the Borrower now desire to modify, amend, and
renew the Restated Loan Agreement, as hereinafter set forth.
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NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Bank and the Borrower hereby agree that the Restated Loan Agreement is amended
as follows:
OPERATIVE PROVISIONS
1. The recitals of fact set forth above (the "Background") are
true and correct.
2. All capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Restated Loan
Agreement or, if any such term is not defined in the Restated Loan Agreement.
3. Subsections 1.2.10, 1.2.19, 1.2.20, 1.2.27 and 1.2.28
contained in the Restated Loan Agreement are hereby deleted in their entirety
and the following substituted therefor:
1.2.10 "Commitment Period" shall mean the period from and
including the date of the Loan Agreement to but not including June 30,
1998, or such earlier date as the Commitment shall terminate as
provided herein.
1.2.19 "$75-Million Loan Agreement" shall mean the Loan
Agreement dated September 14, 1994, as amended by (i) First Amendment
to Loan Agreement executed by Borrower and Bank dated as of August 14,
1995, and (ii) Second Amendment to Loan Agreement executed by Borrower
and Bank of even date herewith of even date herewith, relating to the
$75-Million Revolving Loan.
1.2.20 "$75-Million Revolving Loan" shall mean that certain
revolving line of credit extended by Bank to Borrower pursuant to that
certain Loan Agreement dated September 14, 1994, as amended by First
Amendment to Loan Agreement executed by Borrower and Bank dated August
14, 1995, and by Second Amendment to Loan Agreement executed by
Borrower and Bank dated as of even date herewith, and the note or notes
evidencing such revolving loan.
1.2.27 "Note" shall mean the Restated Note, as defined in the
preamble of this Amendment.
1.2.28 "Loans" shall mean the Facility and the $75-Million
Revolving Loan, collectively.
2.
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4. Sections 4.14 and 4.16 contained in the Loan Agreement are
hereby deleted in their entirety and the following substituted therefor:
4.14 Consolidated Tangible Net Worth. Maintain the Borrower's
Consolidated Tangible Net Worth in an amount not less than (i)
$250,000,000.00 for the Borrower's fiscal year ending in 1996, (ii)
$300,000,000.00 for the Borrower's fiscal year ending in 1997, and
(iii) $375,000,000.00 for the Borrower's fiscal year ending in 1998;
Compliance with the foregoing Consolidated Tangible Net Worth covenant
shall be measured as of the end of each fiscal year.
4.16 Maximum Capital Expenditures. Not expend for all capital
expenditures, excluding pre-opening costs, in excess of (i)
$165,000,000.00 for the Borrower's fiscal year ending in 1996, (ii)
$190,000,000.00 for the Borrower's fiscal year ending in 1997, and
(iii) $210,000,000.00 for the Borrower's fiscal year ending in 1998.
Compliance with the foregoing covenant shall be measured as of the end
of each fiscal year.
5. Section 4.17 of Article 4 is hereby amended and restated in
its entirety, as follows:
4.17 Maximum Debt to EBITDA Ratio. The Borrower will maintain
its EBITDA Ratio at a maximum of 1.50:1.00 as of the end of each
quarter during the term of this Agreement. For the purpose of this
Agreement "Debt to EBITDA Ratio" shall mean (i) the Borrower's total
liabilities, including interests of minority partners in consolidated
partnerships, less deferred tax liabilities and subordinated debt, as
disclosed on the balance sheet of Borrower at any particular date,
divided by (ii) earnings before interest, taxes, depreciation and
amortization ("EBITDA"), for the preceding twelve-month period ending
on the test date.
6. Exhibit "F" to the Loan Agreement is hereby deleted and
Exhibit "F" attached hereto is substituted therefor.
7. Except as expressly modified hereby, the Loan Agreement and
all other documents executed in connection with the Loan, except the Restated
Note, remain unchanged and in full force and effect and are hereby ratified and
reconfirmed by the Borrower. The Borrower certifies and confirms to the Bank
that all representations and warranties set forth in the Loan Agreement are true
and correct as of the date hereof.
3.
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IN WITNESS WHEREOF, the Borrower and the Bank have cause this Agreement
to be duly executed under seal by their duly authorized officers, all as of the
day and year first above written.
WITNESSES: OUTBACK STEAKHOUSE, INC., a Delaware
corporation
/s/ Xxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx Xxxxxx
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As to Borrower
(Corporate Seal)
"BORROWER"
XXXXXXX BANK OF TAMPA, a state chartered
bank
/s/ Xxxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
/s/ Xxxxxxx Xxxxxx
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As to Bank
"BANK"
4.
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EXHIBIT "F"
OFFICER'S CERTIFICATE REGARDING FINANCIAL STATEMENTS
The undersigned officer hereby certifies that the (annual) (quarterly)
financial statements included in the attached (10K) (10Q) fairly present the
financial conditions of the Borrower in accordance with GAAP and all material
matters which would be required to be recognized and disclosed under GAAP have
been recognized and disclosed. No Event of Default exists on the date hereof,
nor has a default described in the Loan Agreement occurred which, with the
passage of time or the giving of notice, or both, would constitute and Event of
Default. The Borrower is not in default or violation of any of the terms and
conditions of the $75 Million Loan Agreement or the Prior Laon Agreement (as
defined in the Loan Agreement).
Attached hereto are accurate and correct calculations indicating
compliance with Sections 4.14 through 4.17 of the $75 Million Loan Agreement or
Sections 4.14 through 4.17 of the Prior Loan Agreement.
Date:_________________, 199__ ______________________________
Xxxxxx X. Xxxxxxx
Chief Financial Officer
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COMPLIANCE WITH SECTION 4.14 THROUGH 4.17
1. Compliance with Section 4.14: (Annually)
a. Consolidated Stockholder Equity $_________________
less b. Goodwill and Other Intangible Assets $_________________
CONSOLIDATED TANGIBLE NET WORTH $_________________
2. Compliance with Section 4.15: (Quarterly)
Total Liabilities $_________________
_______________________________________________ = _______:_________
Consolidated Tangible LEVERAGE RATIO
Net Worth $_________________
3. Compliance with Section 4.16: (Annually)
Fiscal Year Capital Expenditures
(excluding pre-opening costs) $_________________
CAPITAL EXPENDITURES
4. Compliance with Section 4.17: (Quarterly)
Total Liabilities Less Subord.
Debt & Deferred Tax Liabil. $________________
_______________________________________________ = _______:_________
Earnings Before Interest, Taxes DEBT TO EBITDA RATIO
Deprec. & Amortization $________________
