Revolving Promissory Note - Outback Steakhouse Inc. and Barnett Bank of Tampa
AMENDED AND RESTATED
REVOLVING PROMISSORY NOTE
$75,000,000.00 Valdosta, Georgia
(the "Principal Amount") May 30, 1996
FOR VALUE RECEIVED, the undersigned, OUTBACK STEAKHOUSE, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of BARNETT
BANK OF TAMPA, a state chartered bank ("Lender"), at its office at 101 East
Kennedy Boulevard, Tampa, Florida 33602 or at such other place as the holder of
this Note from time to time may designate to Borrower in writing, the principal
sum of SEVENTY-FIVE MILLION AND NO/100 DOL LARS ($75,000,000.00) together with
interest on the principal balance of this obligation from time to time remaining
unpaid, at the rates and at the times provided in this Note. All payments
required by this Note must be by legal tender of the United States of America.
The principal amount of this obligation has been and will be disbursed
by Lender to Borrower in accordance with the terms and conditions of that
certain Loan Agreement dated as of September 14, 1994, between Borrower and
Lender, as amended by (i) First Amendment to Loan Agreement executed by Borrower
and Lender as of August 14, 1995, and (ii) Second Amendment to Loan Agreement of
even date herewith executed by Borrower and Lender (collectively, the "Loan
Agreement"). Pursuant to the terms of the Loan Agreement, Borrower may borrow
portions of the principal amount of this Note, repay all or a portion of such
borrowing and reborrow, provided that, in any event, the maximum principal
amount outstanding under this Note at any time shall not exceed $75,000,000.00.
All capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed to such terms in the Loan Agreement. This Note amends,
restates, increases and replaces, in its entirety, that certain Amended and
Restated Revolving Promissory Note dated August 14, 1995, executed by Borrower
in favor of Lender in the original principal amount of $50,000,000.00.
As used in this Note, the following terms shall have the following
meanings:
1. Advance or Advances. Prime Rate Advances, Floating LIBO Rate
Advances and/or LIBO Rate Advances, individually or collectively as applicable.
2. Business Day. Any day other than a Saturday, Sunday or other
day on which commercial banks in the State of Florida are authorized or required
by law to close.
3. Floating LIBO Rate. A fluctuating rate of interest per annum
equal to the LIBO Margin plus the rate obtained by dividing (a) the rate of
interest per annum at which deposits in United States dollars are offered in the
London Interbank Market on the date for which the Floating LIBO Rate is being
calculated in an amount substantially equal to the Floating LIBO Rate Advance
and with a term equal to ninety (90) days, by (b) an amount equal to 1 minus the
Floating LIBO Reserve Requirement for such date.
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4. Floating LIBO Rate Advance. Any portion of the principal
amount of this Note outstanding which bears interest at the Floating LIBO Rate.
5. Floating LIBO Reserve Requirement. For any Floating LIBO Rate
Advance, the rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be maintained by
Lender on the date for which interest is being calculated, against U.S. dollar
nonpersonal time deposits in the United States with a term equal to ninety (90)
days, expressed as a decimal.
6. Leverage Ratio. As defined in Section 4.15 of the Loan
Agreement.
7. LIBO Interest Period. The period commencing on the date so
specified in Borrower's notice to Lender of any election to have the LIBO Rate
apply to a LIBO Rate Advance and ending on the date specified in such notice,
which ending date (a) shall be thirty (30), sixty (60), ninety (90), or one
hundred eighty (180) days after the commencement date, and (b) shall not be
beyond the Maturity Date. If any LIBO Interest Period would end on a date which
is not a Business Day, such LIBO Interest Period shall be extended to the next
succeeding Business Day.
8. LIBO Margin. The number of basis points which shall, at any
point in time, constitute the LIBO Margin determined in accordance with the
following table:
<CAPTION>
LIBO Margin Leverage Ratio
(measured as of each quarter end)
75 basis points <0.35:1.00
-
85 basis points >0.35:1.00 and <0.50:1.00
-
95 basis points >0.50:1.00 and <0.75:1.00
-
The Leverage Ratio shall be measured as of the end of each calendar quarter
based upon financial information provided by Borrower in accordance with the
provisions of the Loan Agreement. Changes in the LIBO Margin shall be effective
as of the date upon which Lender receives the quarterly or annual financial
information disclosing a change in the Leverage Ratio which results in a change
in the LIBO Margin.
9. LIBO Rate. An interest rate per annum equal to the LIBO Margin
plus the rate per annum obtained by dividing (a) the rate of interest per annum
at which deposits in United States dollars are offered in the London Interbank
Market two (2) Business Days prior to the commencement of a LIBO Interest
Period, by (b) an amount equal to 1 minus the LIBO Reserve Percentage for such
LIBO Interest Period.
2.
<PAGE> 3
10. LIBO Rate Advance. That portion of the principal amount
outstanding under this Note with respect to which Borrower elects to have the
LIBO Rate apply during any LIBO Interest Period.
11. LIBO Reserve Percentage. For any LIBO Rate Advance, the rate
at which reserves (including, without limitation, any marginal, supplemental or
emergency reserves) are required to be maintained by Lender two (2) Business
Days prior to the commencement of a LIBO Interest Period against Eurocurrency
liabilities having a term substantially equal to such LIBO Interest Period,
expressed as a decimal.
12. LIBO Roll-Over Date. The last day of any LIBO Interest
Period.
13. Maturity Date. June 30, 1999.
14. Prime Rate. The lending rate from time to time announced by
Barnett Banks, Inc., Lender's parent company ("BBI"), as its prime rate.
15. Prime Based Rate. A fluctuating rate of interest per annum
equal to the Prime Rate minus one percent (1%).
16. Prime Rate Advance. Any portion of the principal amount of
this Note outstanding which bears interest at the Prime Based Rate.
Interest shall be calculated on the daily outstanding balance of each
type of Advance. Interest shall be computed on the basis of a year of 360 days
for the actual number of days elapsed through the actual payment due date.
Changes in the Prime Rate and/or the Floating LIBO Rate shall be effective as of
the date of change in the applicable rate. Interest on Prime Rate Advances and
Floating LIBO Rate Advances shall be paid quarterly in arrears commencing on
June 30, 1996 and continuing on each September 30, December 30, March 30 and
June 30 thereafter prior to the Maturity Date. Interest on LIBO Rate Advances
shall be paid on the last date of each applicable LIBO Interest Period. The
outstanding principal balance of this Note, plus unpaid accrued interest, shall
be due and payable on the Maturity Date.
Borrower shall have the option from time to time, in the manner
hereinafter set forth, to convert the interest rate on portions of the
outstanding principal balance of this Note from the Prime Based Rate to either
(a) the Floating LIBO Rate (the "Floating LIBO Rate Option") or (b) the LIBO
Rate (the "LIBO Rate Option"). To exercise the Floating LIBO Rate Option,
Borrower shall give Lender written notice of Borrower's Floating LIBO Rate
election prior to 12:00 Noon, local time, on the Business Day that Borrower
elects to have the Floating LIBO Rate apply, which notice shall specify the
portion of the outstanding principal balance of the Note, with respect to which
Borrower is making such election, and the date upon which the Floating LIBO Rate
is to commence. Changes in the Floating LIBO Rate caused by changes in the LIBO
Margin shall be effective as of
3.
<PAGE> 4
the date of change in the LIBO Margin. Borrower may elect to terminate the
applicability of the Floating LIBO Rate to all or a portion of the Floating LIBO
Rate Advance by giving Lender written notice (i) prior to 12:00 Noon, local
time, on the Business Day that Borrower elects to have the Floating LIBO Rate
terminate if the Prime Based Rate is to apply thereafter or (ii) at the time
required for a LIBO Rate Option election if Borrower elects to have the LIBO
Rate apply, which notice shall specify the principal amount with respect to
which the Floating LIBO Rate is to terminate.
To exercise the LIBO Rate Option, Borrower shall give Lender
irrevocable written notice of Borrower's LIBO Rate election at least three (3)
Business Days prior to the commencement of a LIBO Interest Period, which notice
shall specify the portion of the outstanding principal balance of this Note,
with respect to which Borrower is making such election, and the date upon which
such LIBO Interest Period is to commence and its duration. Such LIBO Rate shall
be applicable to such LIBO Rate Advance during the LIBO Interest Period
specified by Borrower in such notice. Changes in the LIBO Rate caused by changes
in the LIBO Margin shall be effective as of the date of change in the LIBO
Margin. It is agreed that (i) the interest rate applicable to any portion of the
outstanding principal balance of the Note, or advance about to be made with
respect to the Loan Agreement, with respect to which Borrower has elected a LIBO
Rate, shall revert from the LIBO Rate applicable thereto to the Prime Based Rate
as of the LIBO Roll-Over Date applicable thereto, unless Borrower timely
exercises the LIBO Rate Option or the Floating LIBO Rate Option with respect
thereto, and (ii) Lender shall not be under any duty or obligation to notify
Borrower that the interest rate on any LIBO Rate Advance is about to revert from
a LIBO Rate to the Prime Based Rate. Unless otherwise agreed to the contrary by
Lender, the LIBO Rate Option may only be exercised by Borrower with respect to
portions of the outstanding principal balance of this Note which (i) bear or
will bear interest at the Prime Based Rate or the Floating LIBO Rate, and (ii)
are equal to or in excess of $500,000.00. Borrower's option to elect the LIBO
Rate shall terminate as of a date which shall be thirty (30) days prior to the
Maturity Date. Borrower's right to elect the LIBO Rate shall be conditioned upon
Borrower not being in default under this Note or the Loan Agreement. Borrower
shall not be entitled to elect the LIBO Rate more frequently than once in any
thirty (30) day period.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any LIBO Interest Period, Lender shall have
determined (which determination shall be conclusive and binding upon Borrower)
that (i) the LIBO Rate is not available for dollar deposits in an amount
approximately equal to the amount with respect to which Borrower exercises the
LIBO Rate Option, or (ii) the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to Lender of making or
maintaining a LIBO Rate with respect to such portion of the outstanding
principal balance of this Note during such LIBO Interest Period, or (iii)
reasonable means do not exist for ascertaining a LIBO Rate, or (iv) a LIBO Rate
with respect thereto would be in excess of the maximum interest rate which
Borrower may by law pay, such portion of the outstanding principal balance of
this Note shall continue to bear interest at the Prime Based Rate.
If any change in any law or regulation or in the interpretation thereof
by any governmental authority charged with the administration or interpretation
thereof shall make it unlawful for Lender
4.
<PAGE> 5
or BBI, to make or maintain LIBO Rate Advances or Floating LIBO Rate Advances or
to give effect to their respective obligations as contemplated hereby, then, the
option to elect the LIBO Rate or the Floating LIBO Rate shall immediately
terminate and upon notice by Lender to Borrower any LIBO Rate Advance shall be
automatically converted to another Eurodollar market rate selected by Lender,
provided such conversion does not increase Lender's cost, or if no other
Eurodollar market rate is acceptable to Lender, to the Prime Based Rate and
Borrower shall pay to Lender an amount equal to the prepayment premium which
would be due with respect to any LIBO Rate Advance pursuant to the provisions of
this Note hereinafter set forth upon a prepayment of the same prior to the LIBO
Roll-Over Date applicable thereto. Any notice given by Lender to Borrower
pursuant to this paragraph shall, if lawful, be effective on the last day of any
existing LIBO Interest Periods.
Borrower recognizes that the cost to Lender of making or maintaining
LIBO Rates with respect to the LIBO Rate Advances may be, from time to time
affected by the matters set froth in Paragraphs 1 and 2, below, and Borrower
agrees that Lender, in quoting or establishing a LIBO Rate at the commencement
of a LIBO Interest Period, may take into consideration such additional amount or
amounts resulting from the following as Lender shall determine will compensate
Lender for such additional costs:
1. The imposition of, or changes in, the reserve requirements
promulgated by the Board of Governors of the Federal Reserve System of the
United States, including, but not limited to, any reserve on Eurocurrency
Liabilities as defined in Regulation D at the ratios provided in such Regulation
from time to time, it being agreed that any LIBO Rate Advances shall be deemed
to constitute Eurocurrency Liabilities, as defined by such Regulation, and it
being further agreed that such Eurocurrency Liabilities shall be deemed to be
subject to such reserve requirements without benefit of or credit for
prorations, exceptions, or offsets that may be available to Lender or BBI from
time to time under such Regulation; or
2. Any change, after the date of this Note, in applicable law or
regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) or by any court changing the basis of
taxation of payments to Lender or BBI of the principal of or interest on any
LIBO Rate Advances or any other fees or amounts payable under this Note or the
Loan Agreement (other than taxes imposed on the overall net income of Lender or
BBI by any state, or by any political subdivision or taxing authority therein),
or imposing, modifying or applying any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, credit
extended by, or any other acquisition of funds for loans by Lender or BBI or
imposing on Lender or BBI or the London Interbank Market any other condition
affecting this Note or the Loan Agreement or any LIBO Rate Advances so as to
increase the cost to Lender or BBI of making or maintaining a LIBO Rate with
respect to any LIBO Rate Advance or to reduce the amount of any sum received or
receivable by Lender under this Note or the Loan Agreement (whether of
principal, interest or otherwise), by an amount deemed by Lender to be material,
but without duplication for payments required under clause (1) above.
5.
<PAGE> 6
Notwithstanding the foregoing, once a LIBO Rate has been established by Lender
for a particular LIBO Rate Advance, the LIBO Rate so established shall apply,
without increase, during the applicable LIBO Interest Period, notwithstanding
the fact that the cost to Lender of making or maintaining LIBO Rates may be
increased as a result of an event set forth in Paragraph 1 or 2, above.
Borrower shall indemnify Lender against any loss or expense that Lender
may sustain or incur as a consequence of any default by Borrower in the payment
of any portion of the principal balance of this Note bearing interest at a LIBO
Rate, as and when due and payable, or the occurrence of any event specified in
the provisions of this Note or the Loan Documents, including, but not limited
to, any loss or reasonable expense sustained or incurred in liquidating or
reemploying deposits from third parties acquired to effect or maintain any LIBO
Rate with respect to any LIBO Rate Advance. Lender shall provide to Borrower a
statement explaining the amount of any such loss or expense, which statement
shall be conclusive absent manifest error.
Borrower shall from time to time, within ten (10) days after receipt
from Lender of a letter indicating (i) the respective portions of the
outstanding principal balance of this Note as of the date of such letter which
bear interest at the Prime Based Rate, the Floating LIBO Rate and the LIBO Rate,
(ii) the LIBO Rates applicable to each LIBO Rate Advance, and (iii) the
respective LIBO Roll-Over Dates applicable to each LIBO Rate Advance, confirm to
Lender, by execution and delivery to Lender within such time period of a copy of
such letter, that the facts stated thereon are accurate, or if inaccurate, the
nature, and extent and particulars of the inaccuracy. In the event Lender does
not receive such confirmation or specification of inaccuracies within the time
period above provided, the matters stated in Lender's letter shall be
conclusively deemed to be accurate.
Borrower shall have the right, provided that it is not in default under
this Note or the Loan Agreement, to prepay the principal balance of this Note,
in whole or in part, at any time, upon payment of all interest and other sums
then due and payable pursuant to the provisions of this Note or the Loan
Agreement. No prepayment premium shall be payable with respect to any portions
of the principal balance of this Note which constitute Prime Rate Advances or
Floating LIBO Rate Advances. If any portion of the principal balance of this
Note being prepaid constitutes one or more LIBO Rate Advances, then, with
respect to each such LIBO Rate Advance being prepaid, Borrower shall pay to
Lender contemporaneously with any such prepayment of this Note, an amount equal
to the amount of the prepayment multiplied by a per annum interest rate equal to
the difference between the LIBO Rate applicable thereto, and the 360 day
equivalent interest yield (hereinafter called the "Reinvestment Rate") on any
United States Treasury obligations selected by Lender in an aggregate amount
approximately equal to such portion of the principal balance of this Note, and
with maturities comparable to the LIBO Roll-Over Date applicable thereto,
calculated over a period of time from the date of prepayment to and including
such LIBO Roll-Over Date. If the LIBO Rate on such LIBO Rate Advance being
prepaid is equal to or less than the Reinvestment Rate, no prepayment premium
shall be due. Any payment of the principal balance of this Note after
acceleration of the applicable maturity date of this Note, or the commencement
of any proceedings to enforce this Note or the Loan Agreement, as a result of
the occurrence of an Event of Default under the Loan Agreement, shall be deemed
a voluntary prepayment for the purposes of this paragraph and a prepayment
premium
6.
<PAGE> 7
calculated pursuant to the provisions of this paragraph shall be payable with
respect thereto based upon the LIBO Rates applicable to any LIBO Rate Advances
immediately prior to such default and acceleration. Any partial prepayment of
the principal balance of this Note shall be applied first to the payment in full
of outstanding Prime Rate Advances and Floating LIBO Rate Advances, and then in
reduction of the various outstanding LIBO Rate Advances, in such order and
manner so as to minimize the prepayment premium due with respect thereto as
calculated pursuant to the provisions of this paragraph. Lender shall certify to
Borrower the amount and basis of determination of such prepayment premium, it
being agreed that (a) the calculation of such prepayment premium may be based on
any United States Treasury obligations selected by Lender in its sole discretion
and (b) Lender shall not be obligated or required to have actually reinvested
the prepaid principal balance of this Note in any such United States Treasury
obligations as a condition precedent to receiving a prepayment premium
calculated as aforesaid. Borrower shall, upon receipt of such certification and
contemporaneously with any such prepayment of the principal balance of this
Note, remit to Lender the prepayment premium, if any, due in connection
therewith as calculated pursuant to the provisions of this paragraph. Lender
shall not be obligated to accept any prepayment of the principal balance of this
Note unless it is accompanied by the prepayment premium, if any, due in
connection therewith as calculated pursuant to the provisions of this paragraph.
If any payment required by this Note is not paid within ten (10) days
after the date such payment is due, then the holder of this Note, at such
holder's option, may elect to declare the entire unpaid principal balance of
this Note, plus accrued interest, immediately due and payable. Borrower shall
pay a late charge equal to the greater of (a) $100.00, or (b) five percent (5%)
of the amount of any payment which is not received by Lender on or before the
tenth (10th) day following the date such payment is due, to compensate for
Lender's loss of use of funds and for the expense of handling the delinquency,
which late charge must be received by Lender with the payment then due.
If, following any default by Borrower under this Note, the holder of
this Note employs attorneys, to enforce collection of this obligation, in whole
or in part, then Borrower will pay, a reasonable fee for such attorneys' and any
legal assistants' services, regardless of whether suit is instituted and, if a
suit or other action or proceeding is instituted to enforce payment of all or
any portion of this obligation, for all trial and appellate proceedings, if any.
Borrower also will pay (i) all other costs of collection incurred, and (ii), all
costs and reasonable attorneys' and legal assistants' fees incurred by the
holder for all administrative, trial, and appellate proceedings involving this
obligation.
The remedies of Lender as provided herein and in the Loan Agreement
shall be cumulative and concurrent, and may be pursued singly, successively or
together, at the sole discretion of Lender, and may be exercised as often as
occasion therefor shall arise. No act of omission or commission of Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be effective as a waiver thereof unless it is set forth in a written
document executed by Lender and then only to the extent specifically recited
therein. A waiver or release with reference to one event shall not be construed
as continuing, as a bar to, or as a waiver or release of, any subsequent right,
remedy or recourse as to any subsequent event.
7.
<PAGE> 8
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, the parties intend that no provision of this Note or the Loan
Documents be interpreted, construed, applied, or enforced so as to permit or
require the payment or collection of interest in excess of the maximum rate as
hereafter may be permitted by the law applicable to this transaction (the
"Maximum Permitted Rate"). If, however, any such provision is so interpreted,
construed, applied, or enforced, then the parties intend: (i) that such
provision automatically shall be reformed nunc pro tunc so as to require payment
only of interest at the Maximum Permitted Rate; and (ii) if the holder of this
Note has received interest payments in excess of such Maximum Permitted Rate,
that the amount of such excess be credited nunc pro tunc in reduction of the
principal amount of this obligation, together with interest at such Maximum
Permitted Rate.
In connection with all calculations to determine the Maximum Permitted
Rate, the parties intend: first, that all charges be excluded to the extent that
they are properly excludable under the usury laws of the State of Florida or the
United States of America, as they from time to time are determined to apply to
this obligation; and, second, that all charges that may be "spread" in the
manner provided by Section 687.03(3), Florida Statutes (1995), or any similar
successor law, be spread in the manner provided by such statute.
This Note will be interpreted, construed, applied, and enforced
according to the laws of the State of Florida, regardless of where executed or
delivered, where payment is made, where any action or other proceeding involving
this Note is instituted, or whether the laws of the State of Florida otherwise
would apply the laws of another jurisdiction. The provisions of this Note bind,
and are for the benefit of, the respective heirs, successors, and assigns of
Lender and all persons and entities executing this Note as Borrower, jointly and
severally.
Presentment, protest, notice of protest, notice of dishonor, and all
suretyship defenses, unless expressly reserved by any subsequent endorser, are
hereby waived by all parties now or hereafter liable for payment of all or any
portion of this obligation, whether as makers, endorsers, guarantors, or
otherwise, and regardless of accommodation status.
[INTENTIONALLY LEFT BLANK]
8.
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IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the date stated above.
OUTBACK STEAKHOUSE, INC., a
Delaware corporation
By: /s/ Robert S. Merritt
------------------------------------
Name: Robert S. Merritt
Title: Senior Vice President
STATE OF GEORGIA )
COUNTY OF LOWNDES )
THE FOREGOING INSTRUMENT was acknowledged before me this 30th day of
May, 1996, by ROBERT S. MERRITT as Senior Vice President of OUTBACK STEAKHOUSE,
INC., a Delaware corporation, on behalf of the corporation. He is either ____
personally known to me or X has produced his FDL as identification.
/s/ Marie Elizabeth McKellar
-------------------------------------
(Affix Seal) Print Name: Marie Elizabeth McKellar
Notary Public - State of Georgia
My Commission Expires:
My Commission No.: Notary Public,
Lowndes County, Georgia My Commission
Expires January 10, 2000
9.