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$55	Preview Full Doc	2003	Credit Agreement [Amended and Restated No. 5] Credit Agreement [Amended and Restated No. 5] (131K) Doc #193022: Click preview link for longer preview. FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 12th day of February, 2003, by and between ARK RESTAURANTS CORP., a New York corporation (the "Company") and BANK LEUMI USA, a New York banking corporation (the "Bank"). A. Pursuant to a Revolving Credit Loan Agreement between the Bank and the Company dated as of March 3, 1989, as amended by Agreement dated August 3, 1989, the Bank made available to the Company a revolving credit facility, a standby letter of credit facility, and other financial accommodations (collectively, the "Initial Facility"). B. On or about December 30, 1992, the Bank and the Company entered into an Amended and Restated Credit Agreement, dated as of said date (the "Restated Agreement"), wherein and whereby the Bank and the Company, among other things, renewed and increased the Initial Facility. The Restated Agreement was amended by an Agreement dated August 10, 1994. C. On or about March 5, 1996, the Bank and the Company entered into a Second Amended and Restated Credit Agreement, dated as of said date (the "Second Restated Agreement") wherein and whereby the Bank and the Company, among other things (i) renewed, increased and made amendments to the Initial Facility, and (ii) the Bank provided the Company with a second loan facility and a second letter of credit facility. The Second Restated Agreement was amended by Agreements dated as of March 31, 1996, and as of December 24, 1996. D. On or about May 28, 1998, the Bank and the Company entered into a Third Amended and Restated Credit Agreement, dated said date (the "Third Restated Agreement") wherein and whereby the Bank and the Company, among other things, renewed and extended and made amendments to the loan facilities. The Third Restated Agreement was amended by Agreements, dated as of April 27, 1999, November 10, 1999 and December 13, 1999. E. On or about December 27, 1999, the Bank and the Company entered into a Fourth Amended and Restated Credit Agreement, dated said date, wherein and whereby the Bank and the Company renewed, extended and made amendments to the loan facilities and, among other things, provided that on the Conversion Date (as therein defined) the revolving loans then outstanding would convert into a Term Loan. The Fourth Amended and Restated Credit Agreement was amended by Agreements, dated as of August 21, 2000, as of November 21, 2000, November 1, 2001, December 20, 2001, April 23, 2002, and as of January 22, 2002 (as so amended, the "Fourth Restated Agreement"). F. The Bank and the Company have agreed (i) that the outstanding principal amount of the extant Term Loan will be converted into a Revolving Loan and that a revolving loan facility will be made available to the Borrower, (ii) that the Letter of Credit facilities made available to the Company will be renewed, and (iii) to certain other modifications of the existing arrangements. The Bank and the Company have agreed to reflect these changes in this Fifth Amended and Restated Credit Agreement. NOW, THEREFORE, IT IS AGREED: 1. DEFINITIONS Unless the context otherwise requires, for all purposes of this Agreement and of the other Loan Documents (as hereinafter defined), all capitalized terms used in this Agreement and in the other Loan Documents without definition shall have the respective meanings provided therefor or referred to below: 1.1 The term "Affiliate" means with reference to any Person, any director, officer or employee of such Person, any Person in which such Person has a direct or indirect controlling interest or by which 1 {PAGE} such person is directly or indirectly controlled or which is under direct or indirect common control with such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") when used with respect to any specified Person shall mean the power to direct or cause the direction of the actions, management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and whether or not such power is actually exercised. 1.2 The term "Agreement" means this Fifth Amended and Restated Credit Agreement, including all of the Schedules and Exhibits hereto, as the same may be amended or otherwise modified from time to time, and the terms "herein", "hereof", "hereunder" and like terms shall be taken as referring to this Agreement in its entirety and shall not be limited to any particular section or provision hereof. 1.3 The term "Bank Debt" means and includes all (i) Consolidated Indebtedness for money borrowed, unless it meets the definition of Purchase Money Indebtedness (ii) the amount of any letters of credit outstanding for the account of the Company or any Subsidiary and (iii) the aggregate amount of all equipment leases entered into by the Company or any Subsidiary where the rental payments would be required to be capitalized under generally accepted accounting principles, unless such lease meets the definition of Purchase Money Indebtedness. 1.4 The term "Capital Expenditures" means assets purchased for use in a Restaurant Related Business (other than assets purchased on a non-recourse Purchase Money Indebtedness basis), including Indebtedness to the Company of any newly organized Subsidiary (or any such Indebtedness guaranteed by the Company) in connection with the development or acquisition of a Restaurant Related Business. 1.5 The term "Capitalized Leases" means all capitalized leases made by the Borrower or any Subsidiary as lessee. 1.6 The term "Commitment" means (i) $17,0000,000 through June 29, 2003, (ii) $11,500,000 during the period June 30, 2003 through September 29, 2003, and (iii) $8,500,000 from September 30, 2003 until the Maturity Date. 1.7 The term "Company's Collateral" means all of the issued and outstanding shares of capital stock of each of the Subsidiaries, other than shares of stock issued by one Subsidiary to another Subsidiary, and the "security", as such term is defined in paragraph 3 of the Company's Security Agreement, and each of the notes pledged to the Bank pursuant to Section 2.4.3. 1.8 The term "Consolidated Debt Service" means interest expense and required amortization cost for the applicable period on all of the Company's Consolidated Indebtedness. 1.9 The term "Consolidated Indebtedness" means the aggregate consolidated Indebtedness of the Company and its consolidated Subsidiaries. It is understood that in the calculation of Consolidated Indebtedness, if one or more Letters of Credit, Guarantees or similar obligations relate to the same underlying liability, only the amount of the underlying liability will be included in Consolidated Indebtedness. 1.10 The term "Consolidated Operating Cash Flow" means consolidated after-tax earnings of the Company computed in accordance with generally accepted accounting principles for the period of calculation, plus depreciation and interest expense for such period on all Consolidated Indebtedness. 1.11 The term "Consolidated Net Worth" shall mean the excess of total assets over total liabilities of the Company and its consolidated Subsidiaries total assets and total liabilities each to be determined as to both classification of items and amounts in accordance with generally accepted accounting principles, and consistent with the standards applied in the financial statements referred to in Section 4.9; provided there shall be excluded from total assets (i) cash set apart and held in a sinking or other analogous fund established for the purposes of redemption or other retirement of capital stock, (ii) any revaluation or other write-up in book value of 193022	Ark Restaurants Ark Restaurants Corp. ( Restaurants ) As referenced in this Credit Agreement [Amended and Restated No. 5]: ARK RESTAURANTS CORP – TEXT} {PAGE} EXHIBIT 10.15 FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 12th day of February, 2003, by and between ARK RESTAURANTS CORP ., a New York corporation (the "Company") and BANK LEUMI USA, a New York banking corporation (the "Bank"). A. Pursuant to a Revolving _____________ Ark Restaurants Corp – Schlesinger & Kuh LLP 555 Fifth Avenue New York, New York 10017 Attn: Allen N. Ross, Esq. If to the Company or a Subsidiary: Ark Restaurants Corp . 85 Fifth Avenue New York, New York 10003 Attn: Michael Weinstein, President with a copy to: Shack Siegel Katz & Flaherty, P.C. _____________ ARK RESTAURANTS CORP – 35] 26 {PAGE} IN WITNESS WHEREOF, the Company and the Bank have duly executed this Agreement as of the date first above written. ARK RESTAURANTS CORP . By: /s/ Robert Towers -------------------------- Robert Towers, Executive Vice President BANK LEUMI USA By: /s/ Iris Schechter -------------------------- Iris Schechter, Vice President By: /s/ _____________ ARK RESTAURANTS CORP – By: /s/ Eric A. Halpern -------------------------- Eric A. Halpern First Vice President 27 {PAGE} EXHIBIT A NOTE $17,000,000 As of February12, 2003 ARK RESTAURANTS CORP ., a New York corporation (the "Company"), hereby promises to pay to the order of BANK LEUMI USA (the "Bank"), at the office _____________ ARK RESTAURANTS CORP – thereon shall be payable for the extended time. Presentment for payment, demand, notice of dishonor, protest and notice of protest are hereby waived. ARK RESTAURANTS CORP . By: ---------------------------- Robert Towers, Executive Vice President and Treasurer ARK RESTAURANTS CORP. Schedule of Loans and Payments {TABLE} {CAPTION} Aggregate Unpaid Amount of _____________ dt 361392 ;	Bank Leumi USA
$99	Preview Full Doc	2004	Revolving Credit Agreement Revolving Credit Agreement (297K) Doc #333429: Click preview link for longer preview. REVOLVING CREDIT AGREEMENT dated effective as of September 4, 2003 by and between AmREIT as Borrower and WELLS FARGO BANK, NATIONAL ASSOCIATION as Lender {PAGE} TABLE OF CONTENTS {TABLE} {S} {C} ARTICLE 1. DEFINITIONS................................................................................ 1 Section 1.1 Definitions................................................................................ 1 Section 1.2 Accounting Terms and Determinations; Covenant Calculations................................. 18 Section 1.3 Subsidiaries............................................................................... 18 Section 1.4 Interpretation Generally; Times............................................................ 18 ARTICLE 2. CREDIT FACILITY............................................................................ 19 Section 2.1 Making of Revolving Loan................................................................... 19 Section 2.2 Requests for Borrowings.................................................................... 19 Section 2.3 Funding.................................................................................... 20 Section 2.4 Continuation............................................................................... 20 Section 2.5 Conversion................................................................................. 20 Section 2.6 Interest Rate.............................................................................. 20 Section 2.7 Special Provisions for LIBOR Loans......................................................... 21 Section 2.8 Capital Adequacy........................................................................... 23 Section 2.9 Repayment of Loans......................................................................... 23 Section 2.10 Voluntary Reductions of the Commitment..................................................... 24 Section 2.11 Credit Sweep Account....................................................................... 25 Section 2.12 Revolving Note............................................................................. 25 Section 2.13 Letters of Credit.......................................................................... 25 ARTICLE 3. GENERAL LOAN PROVISIONS.................................................................... 29 Section 3.1 Fees....................................................................................... 29 Section 3.2 Computation of Interest and Fees........................................................... 29 Section 3.3 Limitation of Interest..................................................................... 29 Section 3.4 Statements of Account...................................................................... 31 Section 3.5 Lender's Reliance.......................................................................... 31 ARTICLE 4. UNENCUMBERED POOL PROPERTIES............................................................... 31 Section 4.1 Acceptance of Unencumbered Pool Properties................................................. 31 Section 4.2 Termination of Designation as Unencumbered Pool Property................................... 32 Section 4.3 Additional Requirements of Unencumbered Pool Properties.................................... 33 ARTICLE 5. CONDITIONS................................................................................. 33 Section 5.1 Conditions Precedent to Effectiveness...................................................... 33 Section 5.2 Conditions Precedent to Loans and Issuance of Letters of Credit............................ 35 ARTICLE 6. REPRESENTATIONS AND WARRANTIES............................................................. 35 Section 6.1 Existence and Power........................................................................ 35 Section 6.2 Ownership Structure........................................................................ 36 Section 6.3 Authorization of Agreement, Revolving Notes, Loan Documents and Borrowings................................................................................. 36 Section 6.4 Compliance of Agreement, Revolving Notes, Loan Documents and Borrowing with Laws, etc...... 36 {/TABLE} {PAGE} {TABLE} {S} {C} Section 6.5 Compliance with Law; Governmental Approvals................................................ 37 Section 6.6 Indebtedness and Guarantees................................................................ 37 Section 6.7 Property Management Agreements and Other Major Agreements.................................. 37 Section 6.8 Absence of Defaults........................................................................ 37 Section 6.9 Financial Information...................................................................... 37 Section 6.10 Litigation................................................................................. 38 Section 6.11 ERISA...................................................................................... 38 Section 6.12 Taxes...................................................................................... 38 Section 6.13 Investment Company Act; Public Utility Holding Company Act................................. 38 Section 6.14 Full Disclosure............................................................................ 38 Section 6.15 Insurance.................................................................................. 39 Section 6.16 Not Plan Assets............................................................................ 39 Section 6.17 Title and Liens............................................................................ 39 Section 6.18 Unencumbered Pool Properties............................................................... 39 Section 6.19 Margin Stock............................................................................... 39 Section 6.20 Solvency................................................................................... 39 Section 6.21 Tax Shelter Regulations.................................................................... 39 ARTICLE 7. COVENANTS.................................................................................. 40 Section 7.1 Information................................................................................ 40 Section 7.2 Payment of Obligations..................................................................... 42 Section 7.3 Maintenance of Property; Insurance......................................................... 42 333429	AmREIT AmREIT ( Real Estate ) As referenced in this Revolving Credit Agreement: AmREIT – {DOCUMENT} {TYPE}EX-10 {SEQUENCE}3 {FILENAME}exh103.txt {DESCRIPTION}EXHIBIT 10.3 {TEXT} REVOLVING CREDIT AGREEMENT dated effective as of September 4, 2003 by and between AmREIT as Borrower and WELLS FARGO BANK, NATIONAL ASSOCIATION as Lender {PAGE} TABLE OF CONTENTS {TABLE} {S} {C} ARTICLE 1. DEFINITIONS................................................................................ 1 Section 1.1 Definitions................................................................................ 1 Section 1.2 _____________ AmREIT, – Section 10.14 ENTIRE AGREEMENT........................................................................... 58 {/TABLE} 3 {PAGE} REVOLVING CREDIT AGREEMENT THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is entered into effective as of September 4, 2003, by and between AmREIT, a Texas Real Estate Investment Trust ("Borrower") and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender"). WHEREAS, in order to finance pre-development costs, development costs, construction related costs, tenant improvement _____________ AmREIT – communications to any party under the Loan Documents shall be in writing (including facsimile transmission or similar writing) and shall be given to such party as follows: If to Borrower: AmREIT Eight Greenway Plaza, Suite 824 Houston, Texas 77046 Attention: Mr. Kerr Taylor Telecopier: (713) 850-0498 Telephone: (713) 850-1400 With a copy of any notice of default to: _____________ AmREIT, – the parties hereto have caused this Amended and Restated Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written. BORROWER: AmREIT, a Texas Real Estate Investment Trust By:__________________________________ Name:________________________________ Title:_______________________________ [Signatures Continued on Next Page] 58 {PAGE} WELLS FARGO BANK, NATIONAL ASSOCIATION By:__________________________________ Name:________________________________ Title: _____________ AmREIT, – each a "Guarantor" and collectively, the "Guarantors") in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender") under that certain Revolving Credit Agreement dated as of _______________, 2003, by and between AmREIT, a Texas Real Estate Investment Trust ("Borrower") (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Credit _____________ dt 1414124 ; IHOP Corp. IHOP Corp. ( Restaurants ) As referenced in this Revolving Credit Agreement: IHOP Corp. – and its Subsidiaries, on a consolidated basis, derive more than 15% of its aggregate Net Operating Income from any single tenant (other than IHOP Corp. and its Subsidiaries ["IHOP"]) nor, prior to December 31, 2003, more than 40% of its aggregate Net Operating Income from IHOP nor, _____________ dt 694949 ; Jack in the Box Jack in the Box Inc. ( Restaurants ) As referenced in this Revolving Credit Agreement: Jack in the Box Inc – 3/14/2008 ---------------------------------------------------------------------------------------------------------------------------- Hollywood Entertainment Corp (HLYW) Lafayette, LA 10/31/97 7,488 9/24/12 ---------------------------------------------------------------------------------------------------------------------------- IHOP Corporation (IHP) Topeka, KS 9/30/99 4,500 12/17/08 ---------------------------------------------------------------------------------------------------------------------------- Jack in the Box Inc (JBX) Dallas, TX 7/21/1991 2,238 7/11/09 ---------------------------------------------------------------------------------------------------------------------------- OfficeMax Inc (OMX) Dover, DE 5/15/98 23,500 4/1/13 ---------------------------------------------------------------------------------------------------------------------------- Payless Shoesource Inc (PSS) Austin, _____________ Jack in the Box, Inc. – Lafayette LA 10/31/97 M L W Insurance (800) 962-5524 11/1/03 10 IHOP Corporation (IHP) Topeka KS 9/30/99 Federal Insurance 5/1/04 11 Jack in the Box, Inc. (JBX) Dallas TX 7/21/91 Marsh USA, Inc. 9/1/04 12 Office Max Dover DE 5/15/98 USI Insurance Svcs of TX 11/10/03 13 _____________ dt 1506087 ;	Jack in the Box Jack in the Box Inc. ( Restaurants ) As referenced in this Revolving Credit Agreement: Jack in the Box, Inc. – Lafayette LA 10/31/97 M L W Insurance (800) 962-5524 11/1/03 10 IHOP Corporation (IHP) Topeka KS 9/30/99 Federal Insurance 5/1/04 11 Jack in the Box, Inc. (JBX) Dallas TX 7/21/91 Marsh USA, Inc. 9/1/04 12 Office Max Dover DE 5/15/98 USI Insurance Svcs of TX 11/10/03 13 _____________ dt 1319903 ; Jack in the Box Jack in the Box Inc. ( Apparel ) As referenced in this Revolving Credit Agreement: Jack in the Box Inc – Lafayette, LA 10/31/97 7,488 9/24/12 ---------------------------------------------------------------------------------------------------------------------------- IHOP Corporation (IHP) Topeka, KS 9/30/99 4,500 12/17/08 ---------------------------------------------------------------------------------------------------------------------------- Jack in the Box Inc (JBX) Dallas, TX 7/21/1991 2,238 7/11/09 ---------------------------------------------------------------------------------------------------------------------------- OfficeMax Inc (OMX) Dover, DE 5/15/98 23,500 4/ _____________ Jack in the Box, Inc – W Insurance (800) 962-5524 11/1/03 10 IHOP Corporation (IHP) Topeka KS 9/30/99 Federal Insurance 5/1/04 11 Jack in the Box, Inc . (JBX) Dallas TX 7/21/91 Marsh USA, Inc. 9/1/04 12 Office Max Dover DE 5/15/98 USI Insurance _____________ dt 695056 ; More...
$64	Preview Full Doc	2002	Credit Agreement Credit Agreement (115K) Doc #384708: Click preview link for longer preview. CREDIT AGREEMENT THIS CREDIT AGREEMENT (the "Agreement") is made and dated as of the 3rd day of September, 2002, by and between BANK OF THE WEST, doing business as UNITED CALIFORNIA BANK (the "Lender"), and DIEDRICH COFFEE, INC., a Delaware corporation (the "Company"). RECITALS A. The Company has requested that the Lender: (1) extend new credit facilities to the Company in the forms of a equipment acquisition facility, a working capital line of credit, a . . . 384708	Diedrich Coffee Diedrich Coffee, Inc. ( Restaurants ) As referenced in this Credit Agreement: DIEDRICH COFFEE, INC – the "Agreement") is made and dated as of the 3rd day of September, 2002, by and between BANK OF THE WEST, doing business as UNITED CALIFORNIA BANK (the "Lender"), and DIEDRICH COFFEE, INC ., a Delaware corporation (the "Company"). RECITALS A. The Company has requested that the Lender: (1) extend new credit facilities to the Company in the forms of a equipment acquisition _____________ DIEDRICH COFFEE, INC – mean August 31, 2003. [Signature Page Following] 30 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. DIEDRICH COFFEE, INC ., a Delaware corporation By: /s/ PHILIP G. HIRSCH Name: Philip G. Hirsch Title: Chief Executive Officer By: /s/ MATTHEW C. MCGUINNESS Name: Matthew C. McGuinness Title: Executive Vice President _____________ dt 1319500 ;	Fleet National Fleet National Bank ( Financial ) As referenced in this Credit Agreement: Fleet National Bank – debt is payable by it; (4) Indebtedness secured by Liens permitted under Paragraph 13(a)(1) through (a)(5) above; (5) Letters of Credit Nos. 1297258 and 50090701 issued by Fleet National Bank for the account of the Company and the Guarantors, which letters of credit will not be renewed or in any way extended longer than the expiration dates set forth thereon _____________ dt 1015171
$35	Preview Full Doc	2003	Credit Agreement Credit Agreement (95K) Doc #384896: Click preview link for longer preview. CREDIT AGREEMENT This Credit Agreement dated as of the 27th day of February, 2003, by and between BEASLEY FOOD SERVICE, INC., a Delaware corporation (hereinafter referred to as "Borrower"), and OLD NATIONAL BANK, a national banking association (hereinafter referred to as "Bank"). W I T N E S S E T H : WHEREAS, the Borrower desires to obtain certain financial accommodations from the Bank; and WHEREAS, the Bank is willing to provide such financial accommodations to the Borrower on the terms and subject to the conditions in this Agreement. NOW, THEREFORE, in consideration of the premises, the mutual covenants hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1. Definitions. When used herein, the capitalized terms defined in the preamble and recitals above shall have the meanings therein stated and the following capitalized terms shall have the meanings ascribed to them below. Other terms used but not otherwise defined herein shall have the meaning ascribed to such terms by the Uniform Commercial Code in effect in Indiana from time to time and GAAP, as the context may require, unless the context expressly provides otherwise. 1.1 "Account Debtor" means the party, who is obligated on or under any Receivable or Contract Right. 1.2 "Agreement" means this Credit Agreement between the Borrower and the Bank including all exhibits hereto and the executed originals thereof, as the same may be amended from time to time. 1.3 "Application for Advance" means that document required by Section 2.1.1 hereof in the form and substance of Exhibit 1.3 hereof. 1.4 "Banking Day" means a day which is not (a) Saturday, Sunday or legal holiday on which banking institutions in the State of Indiana or the city in which the office of the Bank is located is authorized to remain closed, or (b) a day on which the New York Stock Exchange is closed. For the Bank, a "Banking Day" ends at 2:00 P.M. Eastern Standard Time, and all business transacted after such time on any particular day shall be deemed to have been transacted as of the next Banking Day. 1.5 "Bankruptcy Code" means the Federal Bankruptcy Code of 1978, as amended. 1.6 "Basis Point" means One One-Hundredth of One Percent (0.01%). 1.7 "Beasleys" means Charles and Marjorie Beasley 1.8 "Beasley Transportation" means Beasley Transportation, Inc., a Delaware corporation. 1.9 "Board" means the Board of Governors of the Federal Reserve System. {PAGE} 1.10 "Borrowing Base" means an amount equal to Seventy Percent (70%) of Eligible Receivables less the PACA Inventory Deduction, as disclosed on the most recent Borrowing Base Report furnished to the Bank pursuant to the requirements of this Agreement. 1.11 "Borrowing Base Certificate" means the certificate required by Section 7.2.1 hereof, in the form and substance of Exhibit 1.11 hereto. 1.12 "Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on which banking institutions in the State of Indiana or the city in which the office of the Bank is located is authorized to remain closed, or (b) a day on which the New York Stock Exchange is closed. 1.13 "Certificate of No Default" means that certificate required by Section 7.2.4 hereof, in the form and substance of Exhibit 1.13 hereto. 1.14 "Closing Date" means the date upon which the conditions set forth in Section 6 hereof are satisfied and the financial accommodations referenced in this Agreement are consummated. 1.15 "Code" means the Internal Revenue Code of 1986, as amended. 1.16 "Collateral" means all of Borrower's interest in personal property of every kind and nature including all Receivables, Contract Rights, Inventory, Investment Property, Machinery and Equipment, Proprietary Rights, General Intangibles, chattel paper, documents and instruments and shall also include, without limitation, (i) all attachments, accessions and equipment now owned or hereafter affixed to any of the Collateral or used in connection therewith, substitutions and replacements thereof, (ii) all items of Collateral now owned or existing and hereafter acquired, created or arising, and all products and proceeds thereof (including without limitation claims of the Borrower against third parties for loss or damage to or destruction of any Collateral and all insurance proceeds) and any substitution or replacement thereto, (iii) all monies, securities, drafts, notes, items and other property of the Borrower, and the proceeds thereof, now or hereafter held or received by or in transit to the Bank from or for the Borrower, whether for safekeeping, custody, pledge, transmission, collection, or otherwise, (iv) any and all deposits (general or special), balances, sums, proceeds and credits of the Borrower with, any and all claims of the Borrower against, the Bank, at any time existing, and (v) all labels and other devises, names or marks affixed to or to be affixed to any of the Inventory for purposes of selling or of identifying the same or the seller or manufacturer thereof and all right, title and interest of the Borrower therein and thereto. The Collateral shall also include any property described in any separate schedules at any time or from time to time furnished by the Borrower to the Bank (all of which shall be and hereby are deemed part of this Agreement) and shall also include without limitation all other Collateral now or hereafter pledged, assigned, hypothecated or transferred to the Bank. 1.17 "Contract Rights" means any right of the Borrower to payment under a contract for the sale or lease of goods or the rendering of services, which right is at the time not yet earned by performance. 1.18 "Current Ratio" means Borrower's current assets divided by current liabilities. 1.19 "Debt" means Borrower's total indebtedness associated with borrowed money. 1.20 "Debt to Tangible Net Worth Ratio" means Borrower's Debt divided by Tangible Net Worth. 2 {PAGE} 1.21 "Debt Service Coverage Ratio" means the Borrower's net profit plus depreciation and amortization plus interest expense minus taxes divided by all principal and interest payments. 1.22 "Eligible Receivables" means those Receivables which are not greater than sixty (60) days past due, have been validly assigned to Bank and in which Bank has a first priority security interest and strictly comply with all of Borrower's warranties and representations to Bank; but Eligible Receivables will not include the following: (a) Receivables with respect to which the 384896	SFSI Syndicated Food Service International Inc. ( Restaurants ) As referenced in this Credit Agreement: Syndicated Food Service International, Inc – iv) any write-up in the book amount of any asset resulting from a revaluation thereof from the book amount entered upon acquisition of such asset. 1.47 "Syndicated" means Syndicated Food Service International, Inc ., a Florida corporation. 1.48 "UCC" means the Uniform Commercial Code as adopted and in force in the State of Indiana from time to time. 1.49 "Unmatured Event _____________ Syndicated Food Service International, Inc – 47404 Attention: Charles Beasley, President 20 {PAGE} with copies (which shall not constitute notice) to: Barnes & Thornburg 11 South Meridian Street Indianapolis, Indiana 46204 Attention: John W. Boyd, Esq. And Syndicated Food Service International, Inc . Overlook III, Suite 750 2859 Paces Ferry Road Atlanta, Georgia 30339 Attention: Chief Executive Officer If to the Bank: Old National Bank 121 East Kirkwood Avenue Bloomington, Indiana 47408 _____________ dt 1323530 ;	Barnes Barnes & Thornburg ( Legal ) As referenced in this Credit Agreement: Barnes & Thornburg – follows: If to the Borrower: Beasley Food Service, Inc. 4863 West Vernal Pike Bloomington, Indiana 47404 Attention: Charles Beasley, President 20 {PAGE} with copies (which shall not constitute notice) to: Barnes & Thornburg 11 South Meridian Street Indianapolis, Indiana 46204 Attention: John W. Boyd, Esq. And Syndicated Food Service International, Inc. Overlook III, Suite 750 2859 Paces Ferry Road Atlanta, Georgia 30339 _____________ dt 1475514
$99	Preview Full Doc	2003	Credit Agreement Credit Agreement (335K) Doc #399000: Click preview link for longer preview. CREDIT AGREEMENT dated as of November 4, 2003, by and among O'CHARLEY'S INC., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents WACHOVIA CAPITAL MARKETS, LLC, d/b/a WACHOVIA SECURITIES as Sole Lead Arranger and Sole Book Manager ================================================================================ {PAGE} TABLE OF CONTENTS {TABLE} {CAPTION} Page ---- {S} {C} ARTICLE I DEFINITIONS.........................................................................................1 SECTION 1.1 Definitions......................................................................1 SECTION 1.2 General.........................................................................19 SECTION 1.3 Other Definitions and Provisions................................................19 ARTICLE II REVOLVING CREDIT FACILITY..........................................................................19 SECTION 2.1 Revolving Credit Loans..........................................................19 SECTION 2.2 Swingline Loans.................................................................20 SECTION 2.3 Procedure for Advances of Revolving Credit Loans................................22 SECTION 2.4 Repayment of Loans..............................................................22 SECTION 2.5 Notes...........................................................................23 SECTION 2.6 Permanent Reduction of the Revolving Credit Commitment..........................24 SECTION 2.7 Termination of Revolving Credit Facility........................................24 SECTION 2.8 Increase of Revolving Credit Commitment.........................................24 ARTICLE III LETTER OF CREDIT FACILITY..........................................................................26 SECTION 3.1 L/C Commitment..................................................................26 SECTION 3.2 Procedure for Issuance of Letters of Credit.....................................26 SECTION 3.3 Commissions and Other Charges...................................................27 SECTION 3.4 L/C Participations..............................................................27 SECTION 3.5 Reimbursement Obligation of the Borrower........................................28 SECTION 3.6 Obligations Absolute............................................................29 SECTION 3.7 Effect of Application...........................................................29 ARTICLE IV [Intentionally Omitted]............................................................................29 ARTICLE V GENERAL LOAN PROVISIONS............................................................................29 SECTION 5.1 Interest........................................................................29 SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans........................32 SECTION 5.3 Fees............................................................................33 SECTION 5.4 Manner of Payment...............................................................34 SECTION 5.5 Crediting of Payments and Proceeds..............................................34 SECTION 5.6 Adjustments.....................................................................35 SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent........................................................35 SECTION 5.8 Changed Circumstances...........................................................36 SECTION 5.9 Indemnity.......................................................................38 SECTION 5.10 Capital Requirements............................................................38 SECTION 5.11 Taxes...........................................................................38 SECTION 5.12 Security........................................................................40 SECTION 5.13 Replacement of Lenders..........................................................40 ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING.......................................................41 SECTION 6.1 Closing.........................................................................41 SECTION 6.2 Conditions to Closing and Initial Extensions of Credit..........................41 SECTION 6.3 Conditions to All Extensions of Credit..........................................46 ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BORROWER.....................................................46 {/TABLE} i {PAGE} {TABLE} {S} {C} SECTION 7.1 Representations and Warranties..................................................46 SECTION 7.2 Survival of Representations and Warranties, Etc.................................54 ARTICLE VIII FINANCIAL INFORMATION AND NOTICES.................................................................54 SECTION 8.1 Financial Statements and Projections............................................54 SECTION 8.2 Officer's Compliance Certificate................................................55 SECTION 8.3 Accountants' Certificate........................................................55 SECTION 8.4 Other Reports...................................................................56 SECTION 8.5 Notice of Litigation and Other Matters..........................................56 SECTION 8.6 Accuracy of Information.........................................................57 ARTICLE IX AFFIRMATIVE COVENANTS.............................................................................57 SECTION 9.1 Preservation of Corporate Existence and Related Matters.........................58 SECTION 9.2 Maintenance of Property.........................................................58 SECTION 9.3 Insurance.......................................................................58 SECTION 9.4 Accounting Methods and Financial Records........................................58 SECTION 9.5 Payment and Performance of Obligations..........................................58 SECTION 9.6 Compliance with Laws and Approvals..............................................58 SECTION 9.7 Environmental Laws..............................................................59 SECTION 9.8 Compliance with ERISA...........................................................59 SECTION 9.9 Compliance with Agreements......................................................59 SECTION 9.10 Visits and Inspections..........................................................59 SECTION 9.11 Additional Subsidiaries; Equipment; Real Property Acquisitions..................60 SECTION 9.12 Use of Proceeds.................................................................61 399000	CCR-B Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. As referenced in this Credit Agreement: COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK – or may become a party to this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH, as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents. STATEMENT OF PURPOSE Pursuant to the Credit Agreement dated _____________ Cooperatieve Centrale Raiffeisen-Boerenleenbank – acceptable to the Administrative Agent, in its sole discretion. "Co-Documentation Agents" means, collectively, AmSouth Bank and Suntrust Bank. "Co-Syndication Agents" means, collectively, Bank of America, N.A. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. "Rabobank International", New York Branch. "Code" means the Internal Revenue Code of 1986, and the rules and regulations thereunder, each as amended or modified from time to time. _____________ dt 1398085 ; McGraw-Hill Companies McGraw-Hill Companies Inc. ( Printing & Publishing ) As referenced in this Credit Agreement: McGraw-Hill Companies, Inc – 5001, SRLS LLC 5002, SRLS LLC 5003, SRLS LLC 5004, SRLS LLC 5005 and SRLS LLC 5006. "Standard & Poor's" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc . 16 {PAGE} "Subordinated Debt" means the collective reference to (i) the Senior Subordinated Notes and (ii) other subordinated Debt consisting of high-yield notes or convertible notes with a _____________ dt 1516481 ; O'Charley's O'Charley's Inc. ( Restaurants ) As referenced in this Credit Agreement: O'CHARLEY'S INC – SEQUENCE}6 {FILENAME}g85963exv10w4.txt {DESCRIPTION}EX-10.4 AMENDED AND RESTATED CREDIT AGREEMENT {TEXT} {PAGE} EXHIBIT 10.4 ================================================================================ CREDIT AGREEMENT dated as of November 4, 2003, by and among O'CHARLEY'S INC ., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW _____________ O'CHARLEY'S INC – Schedule 11.3 - Existing Loans, Advances and Investments {/TABLE} iv {PAGE} EXECUTION COPY AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the 4th day of November, 2003, by and among O'CHARLEY'S INC ., a Tennessee corporation, as Borrower, the lenders who are or may become a party to this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative _____________ O'Charley's Inc – interest at a rate based upon the Base Rate as provided in Section 5.1(a). "Benefited Lender" shall have the meaning assigned thereto in Section 5.6. "Borrower" means O'Charley's Inc ., a Tennessee corporation, in its capacity as borrower hereunder. "Build-to-Suit Sale-Leaseback Transaction" means, in respect of any real property acquired and improved by the Borrower or _____________ O'Charley's Inc – any party shall be sent to it at the following addresses, or any other address as to which all the other parties are notified in writing. If to the Borrower: O'Charley's Inc . 3038 Sidco Drive Nashville, Tennessee 37204 Attention: Mr. Chad Fitzhugh, Chief Financial Officer Telephone No.: (615) 782-8818 Telecopy No.: (615) 782-5031 With copies to: Bass, Berry & Sims, _____________ O'CHARLEY'S INC – IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first written above. O'CHARLEY'S INC ., as Borrower By: /s/ A. Chad Fitzhugh ----------------------------------- Name: A. Chad Fitzhugh Title: Chief Financial Officer, Secretary and Treasurer {PAGE} WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender By: / _____________ dt 1365024 ;	AmSouth Bank AmSouth Bank ( Financial ) As referenced in this Credit Agreement: AMSOUTH BANK – herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents WACHOVIA CAPITAL MARKETS, LLC, d/b/a WACHOVIA SECURITIES as Sole Lead Arranger and Sole Book Manager ================================================================================ {PAGE} TABLE OF CONTENTS {TABLE} {CAPTION} _____________ AMSOUTH BANK – banking association, as Administrative Agent for the Lenders, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH, as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents. STATEMENT OF PURPOSE Pursuant to the Credit Agreement dated as of January 27, 2003 (as amended, restated, supplemented or otherwise modified prior to _____________ AmSouth Bank – described in Section 6.2 shall be satisfied or waived in all respects in a manner acceptable to the Administrative Agent, in its sole discretion. "Co-Documentation Agents" means, collectively, AmSouth Bank and Suntrust Bank. "Co-Syndication Agents" means, collectively, Bank of America, N.A. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. "Rabobank International", New York Branch. "Code" means the Internal Revenue _____________ AmSouth Bank, – lesser of (a) Five Million Dollars ($5,000,000) and (b) the Revolving Credit Commitment. "Swingline Facility" means the swingline facility established pursuant to Section 2.2. "Swingline Lender" means AmSouth Bank, in its capacity as provider of Swingline Loans, or any successor swingline lender hereunder. "Swingline Loan" means any swingline loan made by the Swingline Lender to the Borrower pursuant _____________ AMSOUTH BANK, – Joyce ----------------------------------- Name: Scott Joyce Title: Associate {PAGE} BANK OF AMERICA, N.A., as Co-Syndication Agent and Lender By: /s/ Brian Sallee ----------------------------------- Name: Brian Sallee Title: Asst. Vice President {PAGE} AMSOUTH BANK, as Co-Documentation Agent, Swingline Lender and Lender By: /s/ Monty R. Trimble ----------------------------------- Name: Monty R. Trimble Title: Senior Vice President {PAGE} SUNTRUST BANK, as Co-Documentation Agent and _____________ dt 1552501 ; BofA Bank of America, NA ( Money Center Banks ) As referenced in this Credit Agreement: BANK OF AMERICA, N.A. – 4 ================================================================================ CREDIT AGREEMENT dated as of November 4, 2003, by and among O'CHARLEY'S INC., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents WACHOVIA CAPITAL MARKETS, _____________ BANK OF AMERICA, N.A. – as Borrower, the lenders who are or may become a party to this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders, BANK OF AMERICA, N.A. AND COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH, as Co-Syndication Agents, and AMSOUTH BANK AND SUNTRUST BANK, as Co-Documentation Agents. STATEMENT OF PURPOSE _____________ Bank of America, N.A. – in all respects in a manner acceptable to the Administrative Agent, in its sole discretion. "Co-Documentation Agents" means, collectively, AmSouth Bank and Suntrust Bank. "Co-Syndication Agents" means, collectively, Bank of America, N.A. and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. "Rabobank International", New York Branch. "Code" means the Internal Revenue Code of 1986, and the rules and regulations thereunder, each as amended _____________ BANK OF AMERICA, N.A. – A. Chad Fitzhugh Title: Chief Financial Officer, Secretary and Treasurer {PAGE} WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender By: /s/ Scott Joyce ----------------------------------- Name: Scott Joyce Title: Associate {PAGE} BANK OF AMERICA, N.A. , as Co-Syndication Agent and Lender By: /s/ Brian Sallee ----------------------------------- Name: Brian Sallee Title: Asst. Vice President {PAGE} AMSOUTH BANK, as Co-Documentation Agent, Swingline Lender and Lender By: / _____________ dt 1554159 ; More...
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CREDIT AGREEMENT dated as of January 27, 2003, by and among O'CHARLEY'S INC., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and SUNTRUST BANK AND AMSOUTH BANK, as Co-Documentation Agents WACHOVIA SECURITIES, INC., as Sole Lead Arranger and Sole Book Manager ================================================================================ {PAGE} TABLE OF CONTENTS {Table} {S} {C} {C} ARTICLE I DEFINITIONS............................................................................................1 SECTION 1.1 Definitions.................................................................................1 SECTION 1.2 General....................................................................................18 SECTION 1.3 Other Definitions and Provisions...........................................................18 ARTICLE II REVOLVING CREDIT FACILITY............................................................................18 SECTION 2.1 Revolving Credit Loans.....................................................................18 SECTION 2.2 Swingline Loans............................................................................19 SECTION 2.3 Procedure for Advances of Revolving Credit Loans...........................................21 SECTION 2.4 Repayment of Loans.........................................................................22 SECTION 2.5 Notes......................................................................................23 SECTION 2.6 Permanent Reduction of the Revolving Credit Commitment.....................................23 SECTION 2.7 Termination of Revolving Credit Facility...................................................23 ARTICLE III LETTER OF CREDIT FACILITY...........................................................................24 SECTION 3.1 L/C Commitment.............................................................................24 SECTION 3.2 Procedure for Issuance of Letters of Credit................................................24 SECTION 3.3 Commissions and Other Charges..............................................................25 SECTION 3.4 L/C Participations.........................................................................25 SECTION 3.5 Reimbursement Obligation of the Borrower...................................................26 SECTION 3.6 Obligations Absolute.......................................................................27 SECTION 3.7 Effect of Application......................................................................27 ARTICLE IV TERM B LOAN FACILITY.................................................................................27 SECTION 4.1 Term B Loan................................................................................27 SECTION 4.2 Procedure for Advance of Term B Loan.......................................................28 SECTION 4.3 Repayment of Term B Loan...................................................................28 SECTION 4.4 Prepayments of Term B Loan.................................................................29 SECTION 4.5 Term B Notes...............................................................................31 ARTICLE V GENERAL LOAN PROVISIONS...............................................................................32 SECTION 5.1 Interest...................................................................................32 SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans...................................34 SECTION 5.3 Fees.......................................................................................35 SECTION 5.4 Manner of Payment..........................................................................36 SECTION 5.5 Crediting of Payments and Proceeds.........................................................36 SECTION 5.6 Adjustments................................................................................37 SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent ......................................................................37 SECTION 5.8 Changed Circumstances......................................................................38 SECTION 5.9 Indemnity..................................................................................40 SECTION 5.10 Capital Requirements.......................................................................40 {/Table} i {PAGE} {Table} {S} {C} {C} SECTION 5.11 Taxes......................................................................................41 SECTION 5.12 Security...................................................................................42 SECTION 5.13 Replacement of Lenders.....................................................................42 ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING.........................................................43 SECTION 6.1 Closing....................................................................................43 SECTION 6.2 Conditions to Closing and Initial Extensions of Credit.....................................43 SECTION 6.3 Conditions to All Extensions of Credit.....................................................48 ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BORROWER......................................................49 SECTION 7.1 Representations and Warranties.............................................................49 SECTION 7.2 Survival of Representations and Warranties, Etc............................................56 ARTICLE VIII FINANCIAL INFORMATION AND NOTICES..................................................................57 SECTION 8.1 Financial Statements and Projections.......................................................57 SECTION 8.2 Officer's Compliance Certificate...........................................................58 SECTION 8.3 Accountants' Certificate...................................................................58 SECTION 8.4 Other Reports..............................................................................58 SECTION 8.5 Notice of Litigation and Other Matters.....................................................59 SECTION 8.6 Accuracy of Information....................................................................59 ARTICLE IX AFFIRMATIVE COVENANTS................................................................................60 SECTION 9.1 Preservation of Corporate Existence and Related Matters....................................60 SECTION 9.2 Maintenance of Property....................................................................60 399030	McGraw-Hill Companies McGraw-Hill Companies Inc. ( Printing & Publishing ) As referenced in this Credit Agreement: McGraw-Hill Companies, Inc – acquisition thereof and issued by, or guaranteed by, a domestic corporation rated A-1 (or the equivalent thereof) or better by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc . or P-1 (or the equivalent thereof) or better by Moody's Investors Service, Inc., (iii) certificates of deposit maturing no more than one year from the date of _____________ dt 1516482 ; O'Charley's O'Charley's Inc. ( Restaurants ) As referenced in this Credit Agreement: O'CHARLEY'S INC – {DOCUMENT} {TYPE}EX-10.1 {SEQUENCE}4 {FILENAME}g80284exv10w1.txt {DESCRIPTION}CREDIT AGREEMENT {TEXT} {PAGE} EXHIBIT 10.1 ================================================================================ CREDIT AGREEMENT dated as of January 27, 2003, by and among O'CHARLEY'S INC ., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and SUNTRUST BANK AND AMSOUTH BANK, as _____________ O'CHARLEY'S INC – 11.3 - Existing Loans, Advances and Investments Schedule 11.5 - Expansion Equipment Transaction Stores v {PAGE} CREDIT AGREEMENT, dated as of the 27 day of January, 2003, by and among O'CHARLEY'S INC ., a Tennessee corporation, as Borrower, the lenders who are or may become a party to this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative _____________ O'Charley's Inc – interest at a rate based upon the Base Rate as provided in Section 5.1(a). "Benefited Lender" shall have the meaning assigned thereto in Section 5.6. "Borrower" means O'Charley's Inc ., a Tennessee corporation, in its capacity as borrower hereunder. "Build-to-Suit Transaction" means any transaction whereby the Borrower or any of its Subsidiaries acquires real property after the _____________ O'Charley's Inc – shall be sent to it at the following addresses, or any other address as to which all the other parties are notified in writing. 79 {PAGE} If to the Borrower: O'Charley's Inc . 3038 Sidco Drive Nashville, Tennessee 37204 Attention: Mr. Chad Fitzhugh, Chief Financial Officer Telephone No.: (615) 782-8818 Telecopy No.: (615) 782-5031 With copies to: Bass, Berry & Sims, _____________ O'CHARLEY'S INC – IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first written above. O'CHARLEY'S INC ., as Borrower By: /s/ A. Chad Fitzhugh ----------------------------------------- Name: A. Chad Fitzhugh ------------------------------------ Title: Chief Financial Officer, Secretary and Treasurer ----------------------------------- {PAGE} WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender By: / _____________ dt 1365026 ; AmSouth Bank AmSouth Bank ( Financial ) As referenced in this Credit Agreement: AMSOUTH BANK, – O'CHARLEY'S INC., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and SUNTRUST BANK AND AMSOUTH BANK, as Co-Documentation Agents WACHOVIA SECURITIES, INC., as Sole Lead Arranger and Sole Book Manager ================================================================================ {PAGE} TABLE OF CONTENTS {Table} {S} {C} {C} ARTICLE I DEFINITIONS............................................................................................1 SECTION 1. _____________ AmSouth Bank, – this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders, Bank of America, N.A., as Syndication Agent, and SunTrust Bank and AmSouth Bank, as Co-Documentation Agents. STATEMENT OF PURPOSE The Borrower has requested, and the Lenders have agreed, to extend certain credit facilities to the Borrower on the terms and conditions _____________ AmSouth Bank – to the Amended and Restated Revolving Credit Agreement dated as of December 8, 1997, by and among the Borrower and certain subsidiaries of the Borrower, the Lenders party thereto and AmSouth Bank (formerly known as First American National Bank), as Agent, as such agreement has heretofore been amended, restated, supplemented or otherwise modified. "Existing Letters of Credit" means, collectively, (i) the _____________ AmSouth Bank – as such agreement has heretofore been amended, restated, supplemented or otherwise modified. "Existing Letters of Credit" means, collectively, (i) the standby letter of credit dated April 29, 2002, issued by AmSouth Bank in the face amount of $2,400,000, for the benefit of Employers Insurance of Wausau, (ii) the standby letter of credit dated September 4, 2002, issued by AmSouth Bank _____________ AmSouth Bank – AmSouth Bank in the face amount of $2,400,000, for the benefit of Employers Insurance of Wausau, (ii) the standby letter of credit dated September 4, 2002, issued by AmSouth Bank in the face amount of $60,000, for the benefit of the County of Henrico, (iii) the standby letter of credit dated September 10, 1999, issued by Fleet Bank in _____________ dt 1552502 ;	BofA Bank of America, NA ( Money Center Banks ) As referenced in this Credit Agreement: BANK OF AMERICA, N.A. – 1 ================================================================================ CREDIT AGREEMENT dated as of January 27, 2003, by and among O'CHARLEY'S INC., as Borrower, the Lenders referred to herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A. , as Syndication Agent, and SUNTRUST BANK AND AMSOUTH BANK, as Co-Documentation Agents WACHOVIA SECURITIES, INC., as Sole Lead Arranger and Sole Book Manager ================================================================================ {PAGE} TABLE OF CONTENTS {Table} { _____________ Bank of America, N.A. – as Borrower, the lenders who are or may become a party to this Agreement, as Lenders, WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders, Bank of America, N.A. , as Syndication Agent, and SunTrust Bank and AmSouth Bank, as Co-Documentation Agents. STATEMENT OF PURPOSE The Borrower has requested, and the Lenders have agreed, to extend certain credit _____________ BANK OF AMERICA, N.A. – Chief Financial Officer, Secretary and Treasurer ----------------------------------- {PAGE} WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender By: /s/ Louis K. Beasley III ----------------------------------------- Name: Louis K. Beasley III ------------------------------------ Title: Director ----------------------------------- {PAGE} BANK OF AMERICA, N.A. , as Syndication Agent and Lender By: /s/ Thomas C. Kilcreare ----------------------------------------- Name: Thomas C. Kilcreare ------------------------------------ Title: Senior Vice President ----------------------------------- {PAGE} AMSOUTH BANK, as Co-Documentation Agent, Swingline Lender and Lender _____________ dt 1554160 ; Fleet National Fleet National Bank ( Financial ) As referenced in this Credit Agreement: FLEET NATIONAL BANK, – s/ Edward J. Peyser ----------------------------------------- Name: Edward J. Peyser ------------------------------------ Title: Managing Director ----------------------------------- {PAGE} UNION PLANTERS BANK, N.A., as Lender By: /s/ John Stringfield ----------------------------------------- Name: John Stringfield ------------------------------------ Title: Vice President ----------------------------------- {PAGE} FLEET NATIONAL BANK, as Lender By: /s/ J. Nicholas Cole ----------------------------------------- Name: J. Nicholas Cole ------------------------------------ Title: Managing Director ----------------------------------- {PAGE} KZH ING-2 LLC, as Lender By: /s/ Susan Lee ----------------------------------------- Name: Susan Lee ------------------------------------ Title: _____________ dt 1436501 ; More...