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Exhibit 10.1
SECOND AMENDED AND RESTATED
UNCONDITIONAL GUARANTY AGREEMENT
THIS SECOND AMENDED AND RESTATED UNCONDITIONAL GUARANTY AGREEMENT,
made effective as of the 31
st
day of December, 2004, by
OUTBACK STEAKHOUSE, INC.
, a Delaware corporation (the "Guarantor"), to and for the benefit
of
BANK OF AMERICA, N.A.
, a national banking association (hereinafter referred to as "the
Bank").
W
I
T
N
E
S
S
E
T
H:
WHEREAS, Guarantor is in the business of operating and franchising
Outback Steakhouse restaurants in various locations, including,
without limitation, the State of California; and
WHEREAS, Guarantor desires that the development and opening of
Outback Steakhouse restaurants in the State of California be
accelerated for the direct financial benefit of Guarantor and, in
order to accelerate the development and opening of Outback
Steakhouse restaurants in the State of California, Guarantor has
agreed to act as a guarantor for a loan to provide funds for the
development and opening of such restaurants; and
WHEREAS, Bank has made or has agreed to grant a certain line of
credit (the "Loan") in the maximum aggregate principal amount
(subject to the terms and conditions of the Loan Agreement, as
hereinafter defined) of THIRTY-FIVE MILLION AND NO/100 DOLLARS
($35,000,000.00) to T-BIRD NEVADA, LLC, a Nevada limited liability
company hereinafter referred to as "Borrower," for the development
and opening of Outback Steakhouse restaurants in the State of
California, pursuant to the terms of a certain Second Amended and
Restated Loan Agreement between Borrower and Bank, and joined in by
Guarantor, dated of even date herewith (the "Loan Agreement");
and
WHEREAS, in consideration of the Bank's agreement to extend the
Loan to the Borrower and thereby benefit the Guarantor, the
Guarantor has agreed to absolutely and unconditionally guaranty (i)
the payment and performance obligations of Borrower under that
certain Second Amended and Restated Promissory Note in the original
principal amount of $35,000,000.00 executed by Borrower in favor of
the Bank dated of even date herewith (the "Note"), the Loan
Agreement and all other documents executed by Borrower in
connection therewith (the "Documents"), and (ii) costs and expenses
incurred by the Bank as set forth in Paragraph 9
herein;
NOW, THEREFORE, for and in consideration of the premises, and in
order to induce the Bank to enter into the Loan Agreement and other
documents evidencing and/or securing the Loan, the Guarantor
hereby:
1.
Unconditionally and absolutely guarantees (i) the prompt and
punctual payment of the Loan, and (ii) the due and punctual
performance and observance by Borrower of all of the other terms,
covenants and conditions imposed on Borrower by the Loan Agreement
or any of the other Documents, whether according to the present
terms thereof, at any earlier or accelerated date or dates as
provided therein, or pursuant to any extension of time or to any
other change or changes in the terms, covenants and conditions
thereof now or at any time hereafter made or granted. This Guaranty
shall be deemed continuing and shall apply whether or not the
obligations guaranteed hereby are secured by security agreements,
mortgages, securities or any other type or kind of security and
whether or not such security is acquired in the regular course of
business, by pledge or other collateral agreement or by purchase
and whether or not any security is endorsed with or without
recourse.
2.
Waives diligence, presentment, protest, notice of dishonor,
extension of time of payment, notice of acceptance of this
Guaranty, nonpayment at maturity, and consents to any and all
forbearance and extensions of the time of payment of any of the
obligations or indebtedness hereby guaranteed and any and all
changes in the terms, covenants and conditions thereof and of the
Loan Agreement or other Documents hereinafter made or granted and
to any and all substitutions, exchanges or releases of all or any
part of the collateral therefor; it being the intention hereof
that, except as expressly provided herein, the Guarantor shall
remain liable hereunder until the terms, covenants and conditions
of each of the Loan Agreement and the other Documents shall have
been fully performed and observed by Borrower, notwithstanding any
act, omission or thing which might otherwise operate as a legal or
equitable discharge of the Guarantor. The Guarantor hereby
expressly consents to the extension, from time to time, of the time
of payment in full or in part of any and all of the obligations and
indebtedness guaranteed hereby, and hereby waives notice to, or
obtaining the consent of, the Guarantor. Such extension or
extensions may be longer than the time for repayment in the
original obligations. The Guarantor further agrees that this
Guaranty shall apply with equal force and effect to any renewal or
renewals, re-casting, restructuring or consolidation of any of such
obligations or indebtedness.
3.
Agrees that if at any time all or any part of any payment
theretofore applied by the Bank to any indebtedness or liability of
Borrower is, or must be, rescinded or returned by the Bank for any
reason whatsoever, including, without limitation, the insolvency,
bankruptcy or reorganization of Borrower, such indebtedness or
liability shall for the purposes of this Guaranty, to the extent
that such payment is or must be rescinded or returned, be deemed to
have continued in
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