MULTI-CURRENCY REVOLVING
CREDIT FACILITY
(secured by a
Guarantee)
The Directors
of
Outback
Steakhouse Japan KK
Fukuda
Building West 2F, 11-3
Akasaka
2-chome
Minato-ku,
Tokyo
Date:
October ____ , 2003
Dear
Sirs,
We are
pleased to advise you that Wachovia Bank, National Association,
London Branch (the " Bank ") (which expression shall include
its successors, transferees and assigns) is agreeable to making
available to Outback Steakhouse Japan KK, a company incorporated in
Japan under registered number 0104-01-050821 and whose registered
office is at Fukuda Building West 2F, 11-3, Akasaka 2-chome,
Minato-ku, Tokyo (the "Borrower") a multi-currency revolving credit
facility in a principal amount not exceeding $10,000,000.00 by way
of short term cash advances on the following terms and subject to
the following conditions:
DEFINITIONS
In this
Agreement:-
" Advance " means the principal amount of each advance made
or to be made to the Borrower under the Revolving Credit
Facility;
" Agreement " means the agreement resulting from the
Borrower countersigning this letter;
" Alternative Currency " means Japanese Yen or any other
immediately available and freely transferable and convertible
currency other than dollars acceptable to the Bank;
“
Applicable Facility Fee Rate ” has the meaning set
forth in Clause 13.2.
“
Applicable Margin ” has the meaning set forth in
Clause 6.1(c).
" Associate Bank " means any bank or corporation which is
wholly owned by the ultimate holding corporation of the
Bank;
" Bank Basis " means a calculation made on the basis of the
actual number of days elapsed or, as appropriate, to elapse and a
365 day year in the case of sterling and a 360 or 365 day year (as
is customary in the London Interbank Market) in the case of any
other currency;
" Borrowed Money " means Indebtedness incurred in respect of
(i) money borrowed or raised, (ii) any bond, note, loan stock,
debenture, bill of exchange, commercial paper or similar instrument
(including share capital carrying a right to a preferential
dividend or redeemable at the option of shareholders or the issuer
thereof at any time), (iii) acceptance or documentary credit
facilities, (iv) rental payments under leases and hire-purchase
agreements (excluding any amounts applicable to finance charges)
(in all cases whether in respect of land, buildings, machinery,
equipment or otherwise) entered into primarily as a method of
raising finance or of financing the acquisition of the asset the
subject thereof, (v) interest rate swaps, currency swaps, financial
options, futures contracts or other similar instruments, (vi)
guarantees, bonds, stand-by letters of credit or other instruments
issued in connection with the performance of contracts, (vii)
obligations under conditional or instalment sale agreements or any
other obligation to pay the deferred purchase or construction price
of assets or services, except trade accounts arising in the normal
course of day-to-day trading, (viii) guarantees or other assurances
against financial loss in respect of Indebtedness of any person
falling within any of (i) to (vii) above and (ix) all other
Indebtedness under any arrangement entered into primarily as a
method of raising finance (and not in the normal course of, and as
part of, day-to-day trading) and which is not referred to in the
foregoing paragraphs of this definition;
" Business Day " means a day (other than a Saturday or a
Sunday) on which banks and foreign exchange markets are open for
domestic and foreign exchange business in London and, in the case
of any transactions requiring payment in the principal domestic
financial centre for the relevant currency, such principal domestic
financial centre;
“ Closing Date ” means October __,
2003.
“
Commitment ” means $10,000,000.00 as such amount may
be reduced from time to time pursuant to this Agreement.
" Dangerous Substances " means any radioactive emissions and
any natural or artificial substances (whether in solid or liquid
form or in the form of a gas or vapour and whether alone or in
combination with any other substances) capable of causing harm to
man or any other living organism supported by the environment, or
damaging the environment or public health or welfare, including any
controlled, special, hazardous, toxic, radioactive or dangerous
waste;
" Debt Repayments " means in respect of the Group and for
the period being measured the aggregate amount of all payments of
principal made under or in connection with any Borrowed Money, all
as shown in the relevant accounts of the Borrower delivered
pursuant to this Agreement;
" Dollar Amount " means in relation to any Advance that is
or is to be denominated in dollars the principal amount thereof and
in relation to any Advance that is or is to be denominated in any
other currency the principal amount of dollars that would be
required to purchase the amount of such Advance in such currency at
the Bank's spot rate for the purchase of such currency with dollars
in the London Interbank Market at 11am on the third business day
prior to the day on which such Advance was or, as the case may be,
is to be made;
" Environmental Law " means all laws, regulations, codes of
practice, circulars, guidance notices and the like binding on any
member of the Group, (whether of the United Kingdom or elsewhere
and including any directive of the European Community which is so
binding) concerning the protection of human health or the
environment or the conditions of the workplace or the generation,
transportation, storage, treatment or disposal of Dangerous
Substances;
" Environmental Licences " means any permit, licence,
authorisation, consent or other approval required by any
Environmental Law;
" Event of Default " means any one of the events specified
in Clause 12 or any event which with the passing of time or the
giving of notice or the making of any determination, formation of
any opinion or fulfilment of any other condition would constitute
such an event;
“
Facility Fee Determination Date ” has the meaning set
forth in Clause 13.2.
“
Facility Fee Payment Date ” means each March 31, June
30, September 30 and December 31.
" Finance Charges " means in respect of the Group and the
period being measured, the aggregate amount of the interest,
commission, fees and other finance charges of whatsoever nature
(including, without limitation, any capitalised interest and rental
payments under finance leases and hire purchase agreements but
excluding any amount thereof attributable to the payment of
capital) incurred by the Group during such period under or in
connection with any Borrowed Money, in each case as shown in the
relevant accounts of the Borrower delivered pursuant to this
Agreement;
" Finance Documents " means this Agreement, the Guarantee,
the Bank's General Conditions, any Hedge Agreements, any
certificates or notices given pursuant to this Agreement and any
other document designated as such by the Bank;
" Group " means the group comprising the Borrower and each
of its subsidiary undertakings from time to time and any other
person(s) the accounts of which are consolidated with those of the
Borrower in accordance with generally accepted accounting
principles and bases from time to time as applied, on a consistent
basis, to the Borrower and "member of the Group" shall be construed
accordingly;
" Guarantee " means the guarantee in form and substance
satisfactory to the Bank dated on or about the date hereof and made
by the Guarantors in favour of the Bank as security for the
Borrower’s obligations to the Bank and shall include any
other guarantee or security given to the Bank by the Guarantors as
security for the performance of the Borrower’s obligations to
the Bank;
" Guarantor " means Outback Steakhouse, Inc., Outback
Steakhouse International, Inc. and Outback Steakhouse
International, L.P.
" Hedge Agreement " means any interest rate hedging
agreement entered into by the Borrower from time to time with the
Bank with respect to one or more interest rate swap transactions,
interest rate cap transactions, interest rate floor transactions,
interest rate collar transactions, swap agreements (as defined in
11 U.S.C. § 101) or other similar transactions or agreements,
together with all amendments and schedules thereto and
confirmations thereof from time to time.
" Indebtedness " includes any obligation whether as
principal or as surety for the payment or repayment of money,
whether present or future, actual or contingent;
" Interbank Rate " means in relation to any Interest Period
or other period the rate (rounded upwards if necessary to 4 decimal
places) at which the Bank is offered deposits in the currency of
the relevant Advance or unpaid sum by leading banks in the London
Interbank Market at or about 11 a.m. (London time) on the Quotation
Day in each case for a period equal to such Interest Period or
other period and in an amount comparable with the amount of such
Advance or unpaid sum;
" Interest Period " means, in relation to an Advance, the
period of such Advance being one, two, three or six months as
selected by the Borrower (or such other period as the Bank and the
Borrower may agree) and in the absence of such selection one month
and provided that:-
if any
Interest Period relating to any Advance would otherwise end on a
day which is not a Business Day, that Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period over into
another calendar month in which event such Interest Period shall
end on the last preceding Business Day;
any Interest
Period which commences on the last day of a calendar month and any
Interest Period which commences on a day for which there is no
numerically corresponding day in the calendar month which is the
relevant number of monthsafter the commencement of such Interest
Period shall end on the last Business Day of the calendar month
which is the relevant number of months after the commencement of
such Interest Period; and
(c)
no Interest Period selected or deemed to have been selected by the
Borrower shall end after the Final Repayment Date;
" Mandatory Costs Rate " means in relation to any Interest
Period or other period, the cost to the Bank of complying with all
reserve, special deposit, capital adequacy, solvency, liquidity
ratios, fees or other requirements of or imposed by the Bank of
England, the Financial Services Authority, the European Central
Bank or any other governmental or regulatory authority for the time
being attributable to each Advance or any unpaid sum (rounded up if
necessary to 4 decimal places) as conclusively determined by the
Bank;
" Notice of Utilisation " means the notice substantially in
the form set out in the Schedule;
“
Outback Credit Agreement ” means that certain Credit
Agreement dated December 21, 1999, by and among Outback Steakhouse,
Inc., the banks party thereto, Wachovia Bank, National Association,
as Agent, Wachovia Securities, Inc., as Sole Arranger, SunTrust
Bank, Tampa Bay, as Syndication Agent and SouthTrust Bank, National
Association, as Documentation Agent, as amended by that certain
First Amendment to Credit Agreement dated December 20, 2000 as in
effect on the date hereof without regard and without giving effect
to any waivers given by the Banks (as defined in the Outback Credit
Agreement) after the date hereof or amendments agreed to by Outback
Steakhouse, Inc. and the Banks (as defined in the Outback Credit
Agreement) after the date hereof. Any definitions, terms,
covenants, representations or other provisions of the Outback
Credit Agreement that are incorporated herein will continue to be
effective for purposes of this Agreement and the other Finance
Documents, notwithstanding that the indebtedness under the Outback
Credit Agreement has been or hereafter may be partially or fully
repaid or the fact that the Outback Credit Agreement otherwise
might be terminated.
" Permitted Encumbrance " means any Security Interest (or in
the case of (b) only, any lien):
(a)
created or outstanding with the prior written consent of the
Bank;
(b)
arising by operation of law (and not as a result of any default or
omission on the part of any member of the Group) in the ordinary
course of business and securing obligations not more than three
months overdue;
(c)
arising under any retention of title arrangements (other than "all
moneys" retention of title arrangements) entered into in the
ordinary course of trading and not entered into primarily for the
purpose of securing any Indebtedness; and
(d)
over goods or documents of title to goods arising in the ordinary
course of trading in connection with documentary credit
transactions where such Security Interest secures only so much of
the acquisition cost or selling price (and amounts incidental
thereto) of such goods and products which is required to be paid
within 180 days after the date upon which the same was first
incurred;
" Quotation Day " means in relation to any Interest Period
or other period the day on which interest rate quotations are
ordinarily given by banks for delivery on the first day of the
Interest Period or other such period provided that if quotations
would ordinarily be given on more than one day, the Quotation Day
for such period shall be the last of those days prior to the
commencement of such Interest Period or other period;
" Repayment Date " means, in relation to an Advance, the
last day of the Interest Period relating thereto for which such
Advance was made and the " Final Repayment Date " shall mean
21 st December 2004;
" Revolving Credit Facility " means the revolving credit
facility of up to $10,000,000.00 (Ten Million US Dollars) to be
made available by the Bank to the Borrower in accordance with the
provisions of this Agreement;
" Security Interest " means any mortgage, charge, pledge,
lien, encumbrance, conditional sale or other title retention
agreement, trust arrangement, preferential right or other agreement
or arrangement the economic or commercial effect of which is
similar to security or any other security interest whatsoever,
howsoever created or arising;
" subsidiary " and " subsidiary undertaking " shall
have the meanings given to them by Sections 736 and 258
(respectively) of the Companies Act 1985 (as amended);
" Treaty " means the treaty establishing the European
Community being the Treaty of Rome of 25th March 1957, as amended
by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on 7th February 1992 and came into force
on 1st November 1993), as further amended from time to time;
and
" Unutilised Amount " means, at any time, the maximum
aggregate amount of the Revolving Credit Facility available under
this Agreement (as the same may from time to time be reduced or
cancelled in accordance with the provisions hereof) less the
aggregate Dollar Amountof Advances made and not prepaid or repaid
at such time.
Definitions in Outback
Credit Agreement . The following terms
when used in this Agreement or any of the other Finance Documents
shall, unless otherwise defined herein or therein, have the same
meanings as set forth in the Outback Credit Agreement:
“Affiliate”, “Consolidated Subsidiary”,
“Fiscal Year”, “Fiscal Quarter”,
“Subsidiary”, “GAAP”, “Consolidated
Total Debt”, “Controlled Group”,
“EBITDA”, “ERISA”, “PBGC”,
“Person”, and “Plan”.
Headings in
this Agreement are inserted for convenience only and shall be
ignored in construing this Agreement. Expressions herein
before defined shall have the same meanings herein. Unless
the context otherwise requires, words denoting the singular number
only shall include the plural and vice versa and words denoting
persons shall include companies, corporations and partnerships and
vice versa.
Any
reference in this Agreement to:-
"
accounts " are references to the balance sheet and profit
and loss account and cashflow statement of the relevant company
together with all relevant notes thereto or reports thereon,
whether required by law or regulation or otherwise (and, if
applicable, both on a consolidated and an unconsolidated
basis);
the "
assets " of any person shall include the undertaking,
property, revenues and assets (present and future) of whatsoever
nature of such person;
a "
Clause " or a " Schedule " are, unless otherwise
provided, references to clauses of and schedules to this
Agreement;
" $ "
or " dollars " is a reference to the lawful currency of
United States of America;
"
euros " is a reference to the single currency of
participating member states;
" fees
" shall, subject to any contrary indication, be construed so as to
include (where applicable) disbursements and any VAT on such fees
and/or disbursements required to be charged;
"
generally accepted accounting principles and bases " means
in relation to a company the generally accepted accounting
principles and bases of the jurisdiction in which such company is
incorporated;
"
month " is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month save that where any such period would
otherwise end on a day which is not a Business Day, it shall end on
the next Business Day provided that, if a period starts on the last
day of a calendar month or there is no numerically corresponding
day in the month in which that period ends, that period shall end
on the last Business Day in that later month (and references to
"months" shall be construed accordingly);
" national
currency unit " means the unit of currency (other than the
euro) of a participating member state;
"
participating member states " is a reference to the member
states of the European Union which adopt or have adopted a single
currency in accordance with the Treaty;
a "
person " shall be construed as a reference to any person,
firm, company, partnership, corporation or unincorporated body of
persons or any State or Government or any agency
thereof;
" tax
" shall be construed so as to include any present or future tax,
levy, impost, duty, fee, deduction or withholding or other charge
of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay
in paying out any of the same) and "taxes" and "taxation" shall be
construed accordingly;
an amount
denominated in “$” (dollars) shall, where appropriate
in Clauses 10, 11 and 12 refer to the equivalent of such amount in
any other currency; and
a time of day
is a reference to London time.
Any
reference in this Agreement to an agreement or document shall be
construed as a reference to that agreement or document as the same
may have been, or may from time to time be, varied, amended,
supplemented, substituted, novated or assigned.
References
in this Agreement to statutes and/or statutory provisions shall be
construed as referring to such statutes or statutory provisions as
respectively replaced, amended, extended, consolidated or
re-enacted from time to time and shall include any order,
regulation, instrument or other subordinate legislation made under
the relevant statute or statutory provisions.
To the
extent that there is any conflict between the terms of this
Agreement and the terms of the Bank's General Conditions, the terms
of this Agreement shall prevail.
Nothing in
this Agreement is intended to confer on any person any right to
enforce any provision of this Agreement which that person would not
have had but for the Contracts (Rights of Third Parties) Act
1999.
PURPOSE
The Borrower
undertakes to the Bank that each Advance made to it shall be
applied solely in and towards the refinance of existing
Japanese Yen borrowings and to finance the expansion of overseas
outlets of the Borrower.
AMOUNT
Subject to
the terms and conditions of this Agreement, the Bank agrees to make
available to the Borrower a revolving credit facility in an
aggregate amount at any one time of up to $10,000,000.00 [Ten
Million US Dollars] by way of short term cash advances to be
denominated in dollars or any Alternative Currency.
CONDITIONS
PRECEDENT
The rights
of the Borrower under this Agreement to utilise the Revolving
Credit Facility are conditional upon the Bank having received, in
form and substance satisfactory to it, all of the following by
October 31, 2003and in the event that this does not occur the
Revolving Credit Facility and the Bank's obligations in relation to
the provision of the Revolving Credit Facility shall be cancelled
and reduced to zero:-
(a)
in relation to the Borrower:-
(i)
a copy, certified by a director of the Borrower to be true,
complete and up to date, of its memorandum and articles of
association, certificate of incorporation and any certificates of
incorporation on change of name;
(ii)
a copy, certified as aforesaid, of minutes of the meeting(s) of the
board of directors of the Borrower at which valid resolutions were
adopted approving the Finance Documents to which it is a party and
all the other documents relating thereto and authorising a person
or persons to sign and deliver (or execute as a deed, if
appropriate) the Finance Documents to which it is a party and to
sign and deliver or despatch all other such documents, notices or
communications to be given by it pursuant to or in connection with
such Finance Documents;
(iii)
a list of names and specimen signatures, certified as aforesaid, of
each of the persons referred to in sub-paragraph (ii) above;
and
(iv)
a certificate signed by a director of the Borrower stating, inter
alia, that the signing and/or execution of the Finance Documents to
which it is a party and the exercise of its rights and the
performance of its obligations thereunder is within its corporate
powers and will not cause any limitation on its borrowing or other
powers or on the right of its directors to exercise any such powers
(whether contained in its constitutional documentation or in any
agreement or instrument or imposed by statute or regulation or
otherwise) to be exceeded;
(b)
in relation to the Guarantors:-
(i)
a copy, certified by the secretary or an assistant secretary of
each of the Guarantors, to be true, complete and up-to date,
of the constitutional documentation of the Guarantors;
(ii)
a copy, certified as aforesaid, of minutes of the meeting(s) of the
Board of Directors of each of the Guarantors at which valid
resolutions were adopted approving the Finance Documents to which
it is a party and all of the documents relating thereto and
authorising a person or persons to sign and deliver (or execute as
a deed, if appropriate) the Finance Documents to which it is a
party and to sign and deliver or despatch all other such documents,
notices or communications to be given by it pursuant to or in
connection with such Finance Documents;
(iii)
a list of names and specimen signatures, certified as aforesaid, of
each of the persons referred to in sub-paragraph (ii) above;
and
(iv)
a certificate signed by the secretary or an assistant secretary of
each of the Guarantors stating, inter alia, that the signing and/or
execution of the Finance Documents to which it is a party and the
performance of its obligations thereunder is within its corporate
powers and will not cause any limitation upon its borrowing or
other powers or on the right of its Directors to exercise any such
powers (whether contained in its constitutional documentation or in
any agreement or instrument or imposed by statute or regulation or
otherwise) to be exceeded;
(c)
the Guarantee duly executed by the parties thereto;
(d)
evidence that there have been granted (either unconditionally or
with such conditions as are acceptable to the Bank) and are in full
force and effect, all approvals, registrations, licences and
consents necessary for the Borrower and each of the Guarantors to
execute and deliver the Finance Documents to which it is a party
and all other documents referred to therein and to perform their
respective obligations thereunder;
(e)
relevant bank mandates and other forms required for the operation
of any accounts of the Borrower with the Bank;
(f)
details of all banking and credit facilities and any similar
arrangements provided to the Borrower by any bank or other
financial institution and the terms of and the basis for
continuation of such facilities and arrangements to the extent that
they are to be maintained following the initial utilisation of the
Revolving Credit Facility;
the initial
fee payable pursuant to Clause 13.1;
a
consolidated balance sheet of the Borrower and its consolidated
subsidiaries as of the fiscal quarter ending March 31, 2003 and the
related consolidated statements of income, shareholder’s
equity and cash flows for such fiscal period, setting forth in each
case in comparative form the figures for the previous fiscal period
all prepared by the Borrower and certified by the chief financial
officer of the Borrower as to fairness, presentation, generally
accepted accounting principles and consistency, with such
certification to be free of exceptions and qualifications not
acceptable to the Bank.
legal opinion
in relation to the Guarantors from Joseph J. Kadow, General
Counsel, Vice President and Secretary of Outback Steakhouse, Inc.;
and
(j)
such other documents and information as the Bank may reasonably
require.
UTILISATION
OF THE REVOLVING CREDIT FACILITY
Subject as
provided below and to:-
(a)
the conditions set out in Clause 4 having been fulfilled by no
later than 10.00 a.m. on the fourth Business Day preceding the date
on which the first Advance is to be made hereunder;
(b)
no Event of Default having occurred; and
(c)
the Bank having received a Notice of Utilisation by no later than
9.30 a.m. on the third Business Day preceding the proposed date on
which the relevant Advance is requested to be made (or such later
time as the Bank may agree), duly completed and signed by the
Borrower and specifying:-
(i)
the date on which the proposed Advance is to be made (which shall
be a Business Day);
(ii)
the duration of the Interest Period which shall commence on the
date on which the proposed Advance is to be made and end on or
before the Final Repayment Date;
(iii)
the currency of the proposed Advance which shall be dollars or an
Alternative Currency;
(iv)
the amount of the proposed Advance, the Dollar Amount of which
shall be:-
(a)
equal to, or less than, the Unutilised Amount on the proposed date
on which the Advance is to be made, (adjusted for this purpose, in
accordance with Clause 5.2); and
(b)
if less than the Unutilised Amount on the date on which the
proposed Advance is to be made, a minimum amount of $100,000.00 (or
its equivalent in any other Alternative Currency) or, if more, in
integral multiples of $100,000.00 (or its equivalent in any other
Alternative Currency) or such other amount as may be agreed by the
Bank,
together with
evidence showing that such Advance will be used for its agreed
purposes in form and substance satisfactory to the Bank,
the Bank
shall, upon and subject to the terms and conditions of this
Agreement, make available such Advance to the Borrower on the day
specified in and in accordance with the Notice of Utilisation, or
if such day is not a Business Day on the next succeeding Business
Day provided that:-
(a)
no Advances shall be made available hereunder after the date
falling one month prior to the Final Repayment Date and accordingly
the obligations of the Bank to make the Revolving Credit Facility
available shall be cancelled on such date; and
(b)
there shall never be more than 8 Advances made during any calendar
month and more than 8 Advances in total outstanding at any
time.
5.2
For the purpose of determining the maximum amount of a proposed
Advance, the Unutilised Amount shall be:
(i)
increased by the aggregate principal Dollar Amount of outstanding
Advances which will become repayable on or before the date on which
the proposed Advance is to be made; and
(ii)
reduced to take account of the DollarAmount of any other Advance to
be made on or before the proposed date on which such Advance is to
be made and any reduction in the Revolving Credit Facility which it
is known will occur during the proposed Interest Period as a result
of a reduction in, or cancellation of part of the Revolving Credit
Facility pursuant to this Agreement.
INTEREST
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(a)
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The rate of
interest applicable to each Advance for the Interest Period
selected or deemed to be selected for such Advance shall be the
rate per annum determined by the Bank to be the aggregate of (i)
the Applicable Margin, plus (ii) the Interbank Rate and plus (iii)
the Mandatory Costs Rate (if any); and
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(b)
Interest on each Advance at the rate aforesaid shall be calculated
for the Interest Period for which such Advance was made on the Bank
Basis, shall accrue from day to day and be paid in the currency of
such Advance on the Repayment Date for such Advance (and, in the
case of an Advance with an Interest Period exceeding six months, on
the last day of each successive period of six months during the
period for which such Advance is outstanding).
(c)
“Applicable Margin” shall be determined quarterly based
upon the ratio of Consolidated Total Debt (calculated as of the
last day of each Fiscal Quarter) to EBITDA (calculated as of the
last day of each Fiscal Quarter for the Fiscal Quarter then ended
and the immediately preceding three Fiscal Quarters), as
follows:
Ratio of
Consolidated
Total Debt to
EBITDA
Applicable Margin
Greater than
1.5
1.075%
Greater than
1.0 but
equal to or
less than
1.5
.825%
Less than or
equal to
1.0
.70%
The
Applicable Margin shall be determined effective as of the date
(herein, the “Rate Determination Date”) which is 60
days after the last day of the Fiscal Quarter as of the end of
which the foregoing ratio is being determined, based on the
quarterly financial statements for such Fiscal Quarter, and the
Applicable Margin so determined shall remain effective from such
Rate Determination Date until the date which is 60 days after the
last day of the Fiscal Quarter in which such Rate Determination
Date falls (which latter date shall be a new Rate Determination
Date); provided that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date next
following the Closing Date, the Applicable Margin shall be 0.70%,
(ii) in the case of any Applicable Margin determined for the fourth
and final Fiscal Quarter of a Fiscal Year, the Rate Determination
Date shall be the date which is 120 days after the last day of such
final Fiscal Quarter and such Applicable Margin shall be determined
based upon the annual audited financial statements for the Fiscal
Year ended on the last day of such final Fiscal Quarter, and
(iii) if on any Rate Determination Date Outback Steakhouse, Inc.
shall have failed to deliver to the Bank the financial statements
required to be delivered pursuant to Section 9(a)(1) or Section
9(a)(2) of the Guarantee with respect to the Fiscal Year or Fiscal
Quarter, as the case may be, most recently ended prior to such Rate
Determination Date, then for the period beginning on such Rate
Determination Date and ending on the earlier of (A) the date on
which Outback Steakhouse, Inc. shall deliver to the Bank the
financial statements to be delivered pursuant to Section 9(a)(2) of
the Guarantee with respect to such Fiscal Quarter or any subsequent
Fiscal Quarter, or (B) the date on which Outback Steakhouse, Inc.
shall deliver to the Bank annual financial statements required to
be delivered pursuant to Section 9(a)(1) of the Guarantee with
respect to the Fiscal Year which includes such Fiscal Quarter or
any subsequent Fiscal Year, the Applicable Margin shall be
determined as if the ratio of Consolidated Total Debt to EBITDA was
more than 1.5 at all times during such period. Any change in
the Applicable Margin on any Rate Determination Date shall result
in a corresponding change, effective on and as of such Rate
Determination Date, in the interest rate applicable to each Advance
outstanding on such Rate Determination Date; provided, that no
Applicable Margin shall be decreased pursuant to this Clause 6.1(c)
if an Event of Default is in existence on the Rate Determination
Date.
If any sum
due and payable by the Borrower hereunder is not paid on the due
date therefor or if any sum due and payable by the Borrower under
any judgment of any court in connection herewith is not paid on the
date of such judgment, such unpaid sum shall bear interest until
the obligation of the Borrower to pay any such sum is discharged in
full at the rate per annum which is determined by the Bank to be
the aggregate of (1) the Applicable Margin, (2) the Interbank Rate
for such periods as the Bank may reasonably select, (3) the
applicable Mandatory Costs Rate (if any) and (4) three per cent
(3%) with such interest being compounded at the end of each period
selected by the Bank.
ALTERNATIVE
INTEREST RATES
Notwithstanding anything to
the contrary herein contained, if prior to the commencement of any
Interest Period or other period selected for or deemed selected for
any Advance the Bank shall have determined that:-
(a)
by reason of circumstances affecting the London Interbank Market
adequate and fair means do not exist for ascertaining the Interbank
Rate applicable to such Interest Period pursuant to Clause 6.1 or
other period pursuant to 6.2; or
(b)
deposits in the currency of such Advance are not or will not be
available to the Bank in the London Interbank Market in sufficient
amounts in the ordinary course of business to fund any Advance for
such Interest Period or other period,
then the Bank
shall as soon as practicable give written notice of such
determination or notice to the Borrower.
In the case
of Clause 7.1 if any Advance has not yet been made it shall not be
so made, subject to the other provisions of this
Clause.
During the
period of thirty days from the date of any such notice given
pursuant to Clause 7.1 the Bank shall establish (in
consultation with the Borrower) an alternative basis (in this
Clause 7.3 referred to as the " Substitute Basis ")
for funding further Advances (including but without limiting the
generality hereof, agreeing suitable alternative lengths of
Interest Periods and agreeing the fixing of an alternative interest
rate to be substituted for the rate which would otherwise have been
fixed pursuant to Clause 6). The Substitute Basis shall
reflect all costs to the Bank of making available and maintaining
any Advance and the Applicable Margin and shall be computed in a
manner and for a period as similar to those provided in Clause 6.1
as is reasonably possible.
If the Bank
shall agree such Substitute Basis with the Borrower it shall again
be open to the Borrower (subject to all the other terms of this
Agreement) to request that Advances be made and the Borrower shall,
until the circumstances specified above no longer exist, pay
interest on new Advances on such Substitute Basis. In default
of agreement upon a mutually acceptable Substitute Basis within 30
days of the notice referred to in Clause 7.1 the Bank shall be
discharged from any obligation to make available further Advances
until in the Bank's opinion the circumstances specified above no
longer exist.
The
certificates, confirmations and determinations of the Bank as to
any of the matters referred to in this Clause 7 shall, save for
manifest error, be conclusive and binding on the
Borrower.
REPAYMENT
Subject to
the other provisions of this Agreement, each Advance shall be
repaid in full in the currency of such Advance by the Borrower to
the Bank on its Repayment Date and the Borrower shall ensure that
all Advances, together with all interest accrued thereon, are
repaid in full on or before the Final Repayment Date.
If on the
date which any Advance is to be made (a " New Advance ") the
repayment of any outstanding Advance(s) is due to the Bank pursuant
to Clause 8.1 (an " Old Advance "), then the Bank shall
(without prejudice to the obligations of the Borrower under Clause
8.1) apply the whole or such part of the New Advance in or towards
satisfaction of the repayment of the Old Advance pursuant to Clause
8.1 including, if appropriate, purchasing the currency of the Old
Advance with the currency of the New Advance. The Bank shall
advise the Borrower of the net amount if any due from one party to
the other after the application of funds as aforesa
