|
|
|
|
|
(Mark One)
|
|
[X]
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the quarterly period ended March 27, 2016
|
|
or
|
[ ]
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
For the transition period from ______ to ______
|
Delaware
|
|
20-8023465
|
(State or other jurisdiction of incorporation or organization)
|
|
(I.R.S. Employer Identification No.)
|
|
|
|
|
|
|
Page No.
|
|
|
|
|
Item 1.
|
||
|
|
|
|
|
|
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
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|
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Item 2.
|
||
|
|
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Item 3.
|
||
|
|
|
Item 4.
|
||
|
|
|
|
|
|
Item 1.
|
||
|
|
|
Item 1A.
|
||
|
|
|
Item 2.
|
||
|
|
|
Item 6.
|
||
|
|
|
|
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
||||
ASSETS
|
|
|
|
||||
Current Assets
|
|
|
|
||||
Cash and cash equivalents
|
$
|
128,834
|
|
|
$
|
132,337
|
|
Current portion of restricted cash and cash equivalents
|
3,300
|
|
|
6,772
|
|
||
Inventories
|
74,355
|
|
|
80,704
|
|
||
Other current assets, net
|
94,187
|
|
|
198,831
|
|
||
Total current assets
|
300,676
|
|
|
418,644
|
|
||
Restricted cash
|
410
|
|
|
16,265
|
|
||
Property, fixtures and equipment, net
|
1,591,337
|
|
|
1,594,460
|
|
||
Goodwill
|
297,884
|
|
|
300,861
|
|
||
Intangible assets, net
|
541,444
|
|
|
546,837
|
|
||
Deferred income tax assets
|
7,656
|
|
|
7,631
|
|
||
Other assets, net
|
146,047
|
|
|
147,871
|
|
||
Total assets
|
$
|
2,885,454
|
|
|
$
|
3,032,569
|
|
LIABILITIES, MEZZANINE EQUITY AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
||
Current Liabilities
|
|
|
|
|
|
||
Accounts payable
|
$
|
217,044
|
|
|
$
|
193,116
|
|
Accrued and other current liabilities
|
193,083
|
|
|
206,611
|
|
||
Unearned revenue
|
279,596
|
|
|
382,586
|
|
||
Current portion of long-term debt, net
|
113,381
|
|
|
31,853
|
|
||
Total current liabilities
|
803,104
|
|
|
814,166
|
|
||
Deferred rent
|
145,712
|
|
|
139,758
|
|
||
Deferred income tax liabilities
|
51,910
|
|
|
53,546
|
|
||
Long-term debt, net
|
1,212,381
|
|
|
1,285,011
|
|
||
Other long-term liabilities, net
|
284,138
|
|
|
294,662
|
|
||
Total liabilities
|
2,497,245
|
|
|
2,587,143
|
|
||
Commitments and contingencies (Note 12)
|
|
|
|
|
|
||
Mezzanine Equity
|
|
|
|
||||
Redeemable noncontrolling interests
|
21,007
|
|
|
23,526
|
|
||
Stockholders’ Equity
|
|
|
|
||||
Bloomin’ Brands Stockholders’ Equity
|
|
|
|
||||
Preferred stock, $0.01 par value, 25,000,000 shares authorized; no shares issued and outstanding as of March 27, 2016 and December 27, 2015
|
—
|
|
|
—
|
|
||
Common stock, $0.01 par value, 475,000,000 shares authorized; 115,024,911 and 119,214,522 shares issued and outstanding as of March 27, 2016 and December 27, 2015, respectively
|
1,150
|
|
|
1,192
|
|
||
Additional paid-in capital
|
1,069,110
|
|
|
1,072,861
|
|
||
Accumulated deficit
|
(559,017
|
)
|
|
(518,360
|
)
|
||
Accumulated other comprehensive loss
|
(157,097
|
)
|
|
(147,367
|
)
|
||
Total Bloomin’ Brands stockholders’ equity
|
354,146
|
|
|
408,326
|
|
||
Noncontrolling interests
|
13,056
|
|
|
13,574
|
|
||
Total stockholders’ equity
|
367,202
|
|
|
421,900
|
|
||
Total liabilities, mezzanine equity and stockholders’ equity
|
$
|
2,885,454
|
|
|
$
|
3,032,569
|
|
|
|||||||
The accompanying notes are an integral part of these consolidated financial statements.
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Revenues
|
|
|
|
||||
Restaurant sales
|
$
|
1,158,052
|
|
|
$
|
1,194,810
|
|
Other revenues
|
6,136
|
|
|
7,249
|
|
||
Total revenues
|
1,164,188
|
|
|
1,202,059
|
|
||
Costs and expenses
|
|
|
|
|
|||
Cost of sales
|
375,288
|
|
|
387,468
|
|
||
Labor and other related
|
322,805
|
|
|
323,986
|
|
||
Other restaurant operating
|
253,571
|
|
|
264,038
|
|
||
Depreciation and amortization
|
47,651
|
|
|
46,486
|
|
||
General and administrative
|
75,025
|
|
|
73,247
|
|
||
Provision for impaired assets and restaurant closings
|
3,164
|
|
|
9,133
|
|
||
Total costs and expenses
|
1,077,504
|
|
|
1,104,358
|
|
||
Income from operations
|
86,684
|
|
|
97,701
|
|
||
Loss on defeasance, extinguishment and modification of debt
|
(26,580
|
)
|
|
—
|
|
||
Other expense, net
|
(19
|
)
|
|
(1,147
|
)
|
||
Interest expense, net
|
(12,875
|
)
|
|
(13,198
|
)
|
||
Income before provision for income taxes
|
47,210
|
|
|
83,356
|
|
||
Provision for income taxes
|
11,327
|
|
|
21,274
|
|
||
Net income
|
35,883
|
|
|
62,082
|
|
||
Less: net income attributable to noncontrolling interests
|
1,408
|
|
|
1,494
|
|
||
Net income attributable to Bloomin’ Brands
|
$
|
34,475
|
|
|
$
|
60,588
|
|
|
|
|
|
||||
Net income
|
$
|
35,883
|
|
|
$
|
62,082
|
|
Other comprehensive income:
|
|
|
|
||||
Foreign currency translation adjustment
|
(7,285
|
)
|
|
(25,462
|
)
|
||
Unrealized losses on derivatives, net of tax
|
(2,735
|
)
|
|
(4,012
|
)
|
||
Reclassification of adjustment for loss on derivatives included in net income, net of tax
|
988
|
|
|
—
|
|
||
Comprehensive income
|
26,851
|
|
|
32,608
|
|
||
Less: comprehensive income attributable to noncontrolling interests
|
2,106
|
|
|
1,494
|
|
||
Comprehensive income attributable to Bloomin’ Brands
|
$
|
24,745
|
|
|
$
|
31,114
|
|
|
|
|
|
||||
Earnings per share:
|
|
|
|
||||
Basic
|
$
|
0.29
|
|
|
$
|
0.48
|
|
Diluted
|
$
|
0.29
|
|
|
$
|
0.47
|
|
Weighted average common shares outstanding:
|
|
|
|
||||
Basic
|
117,930
|
|
|
125,302
|
|
||
Diluted
|
120,776
|
|
|
128,759
|
|
||
|
|
|
|
||||
Cash dividends declared per common share
|
$
|
0.07
|
|
|
$
|
0.06
|
|
|
BLOOMIN’ BRANDS, INC.
|
|
|
|
|
|||||||||||||||||||||
|
COMMON STOCK
|
|
ADDITIONAL
PAID-IN CAPITAL |
|
ACCUM-ULATED
DEFICIT |
|
ACCUMULATED
OTHER COMPREHENSIVE LOSS |
|
NON-
CONTROLLING INTERESTS |
|
TOTAL
|
|||||||||||||||
|
SHARES
|
|
AMOUNT
|
|
|
|
|
|
||||||||||||||||||
Balance, December 27, 2015
|
119,215
|
|
|
$
|
1,192
|
|
|
$
|
1,072,861
|
|
|
$
|
(518,360
|
)
|
|
$
|
(147,367
|
)
|
|
$
|
13,574
|
|
|
$
|
421,900
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
34,475
|
|
|
—
|
|
|
1,097
|
|
|
35,572
|
|
||||||
Other comprehensive (loss) income, net of tax
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(8,386
|
)
|
|
6
|
|
|
(8,380
|
)
|
||||||
Cash dividends declared, $0.07 per common share
|
—
|
|
|
—
|
|
|
(8,238
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(8,238
|
)
|
||||||
Repurchase and retirement of common stock
|
(4,399
|
)
|
|
(44
|
)
|
|
—
|
|
|
(74,956
|
)
|
|
—
|
|
|
—
|
|
|
(75,000
|
)
|
||||||
Stock-based compensation
|
—
|
|
|
—
|
|
|
5,890
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,890
|
|
||||||
Tax shortfall from stock-based compensation
|
—
|
|
|
—
|
|
|
(838
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(838
|
)
|
||||||
Common stock issued under stock plans, net of forfeitures and shares withheld for employee taxes
|
209
|
|
|
2
|
|
|
(1,103
|
)
|
|
(176
|
)
|
|
—
|
|
|
—
|
|
|
(1,277
|
)
|
||||||
Purchase of noncontrolling interests, net of tax of $522
|
—
|
|
|
—
|
|
|
538
|
|
|
—
|
|
|
—
|
|
|
164
|
|
|
702
|
|
||||||
Distributions to noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,025
|
)
|
|
(2,025
|
)
|
||||||
Contributions from noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
240
|
|
|
240
|
|
||||||
Reallocation of foreign currency translation adjustment from Redeemable noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,344
|
)
|
|
—
|
|
|
(1,344
|
)
|
||||||
Balance, March 27, 2016
|
115,025
|
|
|
$
|
1,150
|
|
|
$
|
1,069,110
|
|
|
$
|
(559,017
|
)
|
|
$
|
(157,097
|
)
|
|
$
|
13,056
|
|
|
$
|
367,202
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
|
|
|
|
|
|
|
|
|
|
|
(CONTINUED...)
|
|
||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BLOOMIN’ BRANDS, INC.
|
|
|
|
|
|||||||||||||||||||||
|
COMMON STOCK
|
|
ADDITIONAL
PAID-IN CAPITAL |
|
ACCUM-ULATED
DEFICIT |
|
ACCUMULATED
OTHER COMPREHENSIVE LOSS |
|
NON-
CONTROLLING INTERESTS |
|
TOTAL
|
|||||||||||||||
|
SHARES
|
|
AMOUNT
|
|
|
|
|
|
||||||||||||||||||
Balance, December 28, 2014
|
125,950
|
|
|
$
|
1,259
|
|
|
$
|
1,085,627
|
|
|
$
|
(474,994
|
)
|
|
$
|
(60,542
|
)
|
|
$
|
5,099
|
|
|
$
|
556,449
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
60,588
|
|
|
—
|
|
|
1,159
|
|
|
61,747
|
|
||||||
Other comprehensive loss, net of tax
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(29,474
|
)
|
|
—
|
|
|
(29,474
|
)
|
||||||
Cash dividends declared, $0.06 per common share
|
—
|
|
|
—
|
|
|
(7,423
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(7,423
|
)
|
||||||
Repurchase and retirement of common stock
|
(2,759
|
)
|
|
(28
|
)
|
|
—
|
|
|
(69,972
|
)
|
|
—
|
|
|
—
|
|
|
(70,000
|
)
|
||||||
Stock-based compensation
|
—
|
|
|
|
|
|
4,785
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4,785
|
|
||||||
Excess tax benefit from stock-based compensation
|
—
|
|
|
—
|
|
|
1,127
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,127
|
|
||||||
Common stock issued under stock plans, net of forfeitures and shares withheld for employee taxes
|
581
|
|
|
7
|
|
|
3,199
|
|
|
(234
|
)
|
|
—
|
|
|
—
|
|
|
2,972
|
|
||||||
Distributions to noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,448
|
)
|
|
(1,448
|
)
|
||||||
Contributions from noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
112
|
|
|
112
|
|
||||||
Balance, March 29, 2015
|
123,772
|
|
|
$
|
1,238
|
|
|
$
|
1,087,315
|
|
|
$
|
(484,612
|
)
|
|
$
|
(90,016
|
)
|
|
$
|
4,922
|
|
|
$
|
518,847
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Cash flows provided by operating activities:
|
|
|
|
||||
Net income
|
$
|
35,883
|
|
|
$
|
62,082
|
|
Adjustments to reconcile net income to cash provided by operating activities:
|
|
|
|
|
|
||
Depreciation and amortization
|
47,651
|
|
|
46,486
|
|
||
Amortization of deferred discounts and issuance costs
|
1,315
|
|
|
1,308
|
|
||
Amortization of capitalized gift card sales commissions
|
9,633
|
|
|
9,356
|
|
||
Provision for impaired assets and restaurant closings
|
3,164
|
|
|
9,133
|
|
||
Stock-based and other non-cash compensation expense
|
4,561
|
|
|
4,617
|
|
||
Deferred income tax expense
|
234
|
|
|
210
|
|
||
Loss on defeasance, extinguishment and modification of debt
|
26,580
|
|
|
—
|
|
||
Excess tax benefit from stock-based compensation
|
(81
|
)
|
|
(1,127
|
)
|
||
Other non-cash items, net
|
(2,210
|
)
|
|
(1,253
|
)
|
||
Change in assets and liabilities:
|
|
|
|
|
|
||
Decrease in inventories
|
5,806
|
|
|
6,235
|
|
||
Decrease in other current assets
|
95,746
|
|
|
54,387
|
|
||
Decrease in other assets
|
2,424
|
|
|
3,562
|
|
||
Increase in accounts payable and accrued and other current liabilities
|
1,818
|
|
|
1,829
|
|
||
Increase in deferred rent
|
6,452
|
|
|
7,999
|
|
||
Decrease in unearned revenue
|
(102,963
|
)
|
|
(104,680
|
)
|
||
Decrease in other long-term liabilities
|
(5,288
|
)
|
|
(4,182
|
)
|
||
Net cash provided by operating activities
|
130,725
|
|
|
95,962
|
|
||
Cash flows used in investing activities:
|
|
|
|
|
|
||
Proceeds from disposal of property, fixtures and equipment
|
2
|
|
|
647
|
|
||
Proceeds from sale-leaseback transactions
|
8,459
|
|
|
—
|
|
||
Proceeds from sale of a business
|
—
|
|
|
7,798
|
|
||
Capital expenditures
|
(43,566
|
)
|
|
(47,672
|
)
|
||
Decrease in restricted cash
|
29,457
|
|
|
8,528
|
|
||
Increase in restricted cash
|
(10,128
|
)
|
|
(8,268
|
)
|
||
Other investments, net
|
(2,777
|
)
|
|
(511
|
)
|
||
Net cash used in investing activities
|
$
|
(18,553
|
)
|
|
$
|
(39,478
|
)
|
|
|
|
|
||||
|
(CONTINUED...)
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Cash flows used in financing activities:
|
|
|
|
||||
Proceeds from issuance of long-term debt, net
|
$
|
294,699
|
|
|
$
|
—
|
|
Defeasance, extinguishment and modification of debt
|
(478,906
|
)
|
|
—
|
|
||
Repayments of long-term debt
|
(9,991
|
)
|
|
(21,104
|
)
|
||
Proceeds from borrowings on revolving credit facilities
|
308,500
|
|
|
131,000
|
|
||
Repayments of borrowings on revolving credit facilities
|
(133,000
|
)
|
|
(115,000
|
)
|
||
(Payment of taxes) proceeds from the exercise of share-based compensation
|
(1,101
|
)
|
|
3,206
|
|
||
Distributions to noncontrolling interests
|
(2,025
|
)
|
|
(1,448
|
)
|
||
Contributions from noncontrolling interests
|
326
|
|
|
112
|
|
||
Purchase of limited partnership and noncontrolling interests
|
(4,828
|
)
|
|
—
|
|
||
Repayments of partner deposits and accrued partner obligations
|
(4,975
|
)
|
|
(6,000
|
)
|
||
Repurchase of common stock
|
(75,176
|
)
|
|
(70,234
|
)
|
||
Excess tax benefit from stock-based compensation
|
81
|
|
|
1,127
|
|
||
Cash dividends paid on common stock
|
(8,238
|
)
|
|
(7,423
|
)
|
||
Net cash used in financing activities
|
(114,634
|
)
|
|
(85,764
|
)
|
||
Effect of exchange rate changes on cash and cash equivalents
|
(1,041
|
)
|
|
(816
|
)
|
||
Net decrease in cash and cash equivalents
|
(3,503
|
)
|
|
(30,096
|
)
|
||
Cash and cash equivalents as of the beginning of the period
|
132,337
|
|
|
165,744
|
|
||
Cash and cash equivalents as of the end of the period
|
$
|
128,834
|
|
|
$
|
135,648
|
|
Supplemental disclosures of cash flow information:
|
|
|
|
|
|
||
Cash paid for interest
|
$
|
13,050
|
|
|
$
|
13,352
|
|
Cash paid for income taxes, net of refunds
|
3,551
|
|
|
5,597
|
|
||
Supplemental disclosures of non-cash investing and financing activities:
|
|
|
|
|
|
||
Change in acquisition of property, fixtures and equipment included in accounts payable or capital lease liabilities
|
7,669
|
|
|
(469
|
)
|
||
Purchase of noncontrolling interest included in accrued and other current liabilities
|
(2,249
|
)
|
|
—
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Impairment losses
|
|
|
|
||||
U.S.
|
$
|
—
|
|
|
$
|
1,295
|
|
Total impairment losses
|
$
|
—
|
|
|
$
|
1,295
|
|
Restaurant closure expenses
|
|
|
|
||||
U.S.
|
$
|
3,628
|
|
|
$
|
1,434
|
|
International
|
(464
|
)
|
|
6,404
|
|
||
Total restaurant closure expenses
|
$
|
3,164
|
|
|
$
|
7,838
|
|
Provision for impaired assets and restaurant closings
|
$
|
3,164
|
|
|
$
|
9,133
|
|
|
ESTIMATED EXPENSE
(dollars in millions)
|
||||||
Lease related liabilities, net of subleases
|
$
|
2.5
|
|
to
|
$
|
4.5
|
|
Employee severance and other obligations
|
$
|
0.4
|
|
to
|
$
|
1.0
|
|
DESCRIPTION
|
|
LOCATION OF CHARGE IN THE CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||||
Facility closure and other expenses
|
|
Provision for impaired assets and restaurant closings
|
|
$
|
3,111
|
|
|
$
|
7,741
|
|
Severance and other expenses
|
|
General and administrative
|
|
598
|
|
|
1,327
|
|
||
Reversal of deferred rent liability
|
|
Other restaurant operating
|
|
(1,925
|
)
|
|
(198
|
)
|
||
|
|
|
|
$
|
1,784
|
|
|
$
|
8,870
|
|
|
THIRTEEN WEEKS ENDED
|
||
(dollars in thousands)
|
MARCH 27,
2016 |
||
Beginning of the period
|
$
|
5,699
|
|
Charges
|
3,164
|
|
|
Cash payments
|
(2,291
|
)
|
|
Adjustments
|
(62
|
)
|
|
End of the period (1)
|
$
|
6,510
|
|
(1)
|
As of
March 27, 2016
, the Company had exit-related accruals of
$2.3 million
recorded in Accrued and other current liabilities and
$4.2 million
recorded in Other long-term liabilities, net.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(in thousands, except per share data)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Net income attributable to Bloomin’ Brands
|
$
|
34,475
|
|
|
$
|
60,588
|
|
|
|
|
|
||||
Basic weighted average common shares outstanding
|
117,930
|
|
|
125,302
|
|
||
|
|
|
|
||||
Effect of diluted securities:
|
|
|
|
||||
Stock options
|
2,653
|
|
|
3,221
|
|
||
Nonvested restricted stock and restricted stock units
|
188
|
|
|
230
|
|
||
Nonvested performance-based share units
|
5
|
|
|
6
|
|
||
Diluted weighted average common shares outstanding
|
120,776
|
|
|
128,759
|
|
||
|
|
|
|
||||
Basic earnings per share
|
$
|
0.29
|
|
|
$
|
0.48
|
|
Diluted earnings per share
|
$
|
0.29
|
|
|
$
|
0.47
|
|
|
THIRTEEN WEEKS ENDED
|
||||
(in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||
Stock options
|
4,224
|
|
|
2,122
|
|
Nonvested restricted stock and restricted stock units
|
393
|
|
|
61
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Stock options
|
$
|
2,718
|
|
|
$
|
2,427
|
|
Restricted stock and restricted stock units
|
2,044
|
|
|
1,409
|
|
||
Performance-based share units
|
885
|
|
|
749
|
|
||
|
$
|
5,647
|
|
|
$
|
4,585
|
|
|
THIRTEEN WEEKS ENDED
|
||
|
MARCH 27,
2016 |
||
Assumptions:
|
|
||
Weighted-average risk-free interest rate (1)
|
1.3
|
%
|
|
Dividend yield (2)
|
1.6
|
%
|
|
Expected term (3)
|
6.1 years
|
|
|
Weighted-average volatility (4)
|
35.2
|
%
|
|
|
|
||
Weighted-average grant date fair value per option
|
$
|
5.21
|
|
(1)
|
Risk-free rate is the U.S. Treasury yield curve in effect as of the grant date for periods within the contractual life of the option.
|
(2)
|
Dividend yield is the level of dividends expected to be paid on the Company’s common stock over the expected term of the option.
|
(3)
|
Expected term represents the period of time that the options are expected to be outstanding. The simplified method of estimating the expected term is used since the Company does not have significant historical exercise experience for its stock options.
|
(4)
|
Volatility is based on the historical volatilities of the Company’s stock and the stock of comparable peer companies.
|
|
UNRECOGNIZED
COMPENSATION EXPENSE (dollars in thousands) |
|
REMAINING WEIGHTED-AVERAGE VESTING PERIOD
(in years) |
||
Stock options
|
$
|
31,131
|
|
|
2.8
|
Restricted stock and restricted stock units
|
$
|
28,877
|
|
|
3.2
|
Performance-based share units
|
$
|
5,540
|
|
|
2.0
|
(dollars in thousands)
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
||||
Prepaid expenses
|
$
|
24,548
|
|
|
$
|
30,373
|
|
Accounts receivable - gift cards, net
|
18,287
|
|
|
115,926
|
|
||
Accounts receivable - vendors, net
|
8,976
|
|
|
10,310
|
|
||
Accounts receivable - franchisees, net
|
2,309
|
|
|
1,149
|
|
||
Accounts receivable - other, net
|
22,647
|
|
|
21,158
|
|
||
Other current assets, net
|
17,420
|
|
|
19,915
|
|
||
|
$
|
94,187
|
|
|
$
|
198,831
|
|
|
MARCH 27, 2016
|
|
DECEMBER 27, 2015
|
||||||||||
(dollars in thousands)
|
OUTSTANDING BALANCE
|
|
INTEREST RATE
|
|
OUTSTANDING BALANCE
|
|
INTEREST RATE
|
||||||
Senior Secured Credit Facility:
|
|
|
|
|
|
|
|
||||||
Term loan A (1)
|
$
|
273,750
|
|
|
2.43
|
%
|
|
$
|
277,500
|
|
|
2.26
|
%
|
Term loan A-1
|
148,125
|
|
|
2.40
|
%
|
|
150,000
|
|
|
2.34
|
%
|
||
Revolving credit facility (1)(2)
|
607,500
|
|
|
2.42
|
%
|
|
432,000
|
|
|
2.29
|
%
|
||
Total Senior Secured Credit Facility
|
$
|
1,029,375
|
|
|
|
|
$
|
859,500
|
|
|
|
||
PRP Mortgage Loan (2)
|
$
|
300,000
|
|
|
2.90
|
%
|
|
$
|
—
|
|
|
—
|
%
|
2012 CMBS loan:
|
|
|
|
|
|
|
|
||||||
First mortgage loan (1)
|
$
|
—
|
|
|
—
|
%
|
|
$
|
289,588
|
|
|
4.13
|
%
|
First mezzanine loan
|
—
|
|
|
—
|
%
|
|
84,028
|
|
|
9.00
|
%
|
||
Second mezzanine loan
|
—
|
|
|
—
|
%
|
|
85,353
|
|
|
11.25
|
%
|
||
Total 2012 CMBS loan
|
$
|
—
|
|
|
|
|
$
|
458,969
|
|
|
|
||
Capital lease obligations
|
$
|
2,521
|
|
|
|
|
$
|
2,632
|
|
|
|
||
Other long-term debt
|
1,890
|
|
|
0.73% to 7.60%
|
|
|
2,292
|
|
|
0.73% to 7.60%
|
|
||
Less: unamortized debt discount and issuance costs
|
(8,024
|
)
|
|
|
|
(6,529
|
)
|
|
|
||||
|
$
|
1,325,762
|
|
|
|
|
$
|
1,316,864
|
|
|
|
||
Less: current portion of long-term debt, net (2)
|
(113,381
|
)
|
|
|
|
(31,853
|
)
|
|
|
||||
Long-term debt, net
|
$
|
1,212,381
|
|
|
|
|
$
|
1,285,011
|
|
|
|
(1)
|
Represents the weighted-average interest rate for the respective period.
|
(2)
|
Subsequent to
March 27, 2016
, the Company made payments of
$87.6 million
and
$44.5 million
on its PRP Mortgage Loan and revolving credit facility, respectively, primarily with proceeds from a sale-leaseback transaction. See Note
14
-
Subsequent Events
for additional details regarding the sale-leaseback transaction.
|
PAYMENT DATE
|
|
INITIAL MATURITY
|
|
EXTENSION
|
||||
February 28, 2017 (1)
|
|
$
|
90,000
|
|
|
$
|
90,000
|
|
August 31, 2017
|
|
50,000
|
|
|
50,000
|
|
||
February 11, 2018
|
|
160,000
|
|
|
50,000
|
|
||
August 31, 2018
|
|
—
|
|
|
50,000
|
|
||
February 11, 2019
|
|
—
|
|
|
60,000
|
|
||
|
|
$
|
300,000
|
|
|
$
|
300,000
|
|
(1)
|
Subsequent to
March 27, 2016
, the Company made a payment of
$87.6 million
on our PRP Mortgage Loan primarily with proceeds from a sale-leaseback transaction.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Balance, beginning of period
|
$
|
23,526
|
|
|
$
|
24,733
|
|
Net income attributable to Redeemable noncontrolling interests
|
311
|
|
|
336
|
|
||
Foreign currency translation attributable to Redeemable noncontrolling interests
|
(652
|
)
|
|
—
|
|
||
Purchase of and contributions by Redeemable noncontrolling interests
|
(3,522
|
)
|
|
—
|
|
||
Reallocation of foreign currency translation adjustment to the controlling interest
|
1,344
|
|
|
—
|
|
||
Balance, end of period
|
$
|
21,007
|
|
|
$
|
25,069
|
|
8
.
|
Stockholders’ Equity
|
|
NUMBER OF SHARES
(in thousands) |
|
AVERAGE REPURCHASE PRICE PER SHARE
|
|
AMOUNT
(dollars in thousands) |
|||||
Thirteen weeks ended March 27, 2016
|
4,399
|
|
|
$
|
17.05
|
|
|
$
|
75,000
|
|
|
DIVIDENDS
PER SHARE |
|
AMOUNT
(dollars in thousands) |
||||
Thirteen weeks ended March 27, 2016
|
$
|
0.07
|
|
|
$
|
8,238
|
|
|
NET INCOME ATTRIBUTABLE TO BLOOMIN’ BRANDS AND TRANSFERS TO NONCONTROLLING INTERESTS
|
||
|
THIRTEEN WEEKS ENDED
|
||
(dollars in thousands)
|
MARCH 27, 2016
|
||
Net income attributable to Bloomin’ Brands
|
$
|
34,475
|
|
Transfers to noncontrolling interests:
|
|
||
Decrease in Bloomin’ Brands additional paid-in capital for purchase of limited partnership interests
|
(820
|
)
|
|
Change from net income attributable to Bloomin’ Brands and transfers to noncontrolling interests
|
$
|
33,655
|
|
(dollars in thousands)
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
||||
Foreign currency translation adjustment
|
$
|
(149,159
|
)
|
|
$
|
(141,176
|
)
|
Unrealized losses on derivatives, net of tax
|
(7,938
|
)
|
|
(6,191
|
)
|
||
Accumulated other comprehensive loss
|
$
|
(157,097
|
)
|
|
$
|
(147,367
|
)
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Bloomin’ Brands, Inc.:
|
|
|
|
||||
Foreign currency translation adjustment
|
$
|
(6,639
|
)
|
|
$
|
(25,462
|
)
|
Reallocation of foreign currency translation adjustment from Redeemable noncontrolling
|
(1,344
|
)
|
|
—
|
|
||
Total foreign currency translation adjustment
|
$
|
(7,983
|
)
|
|
$
|
(25,462
|
)
|
Unrealized losses on derivatives, net of tax (1)
|
$
|
(2,735
|
)
|
|
$
|
(4,012
|
)
|
Reclassification of adjustment for loss on derivatives included in net income, net of tax (2)
|
988
|
|
|
—
|
|
||
Total unrealized losses on derivatives, net of tax
|
$
|
(1,747
|
)
|
|
$
|
(4,012
|
)
|
Other comprehensive loss attributable to Bloomin’ Brands, Inc.
|
$
|
(9,730
|
)
|
|
$
|
(29,474
|
)
|
|
|
|
|
||||
Non-controlling interests:
|
|
|
|
||||
Foreign currency translation adjustment
|
$
|
6
|
|
|
$
|
—
|
|
Other comprehensive income attributable to Non-controlling interests
|
$
|
6
|
|
|
$
|
—
|
|
|
|
|
|
||||
Redeemable non-controlling interests:
|
|
|
|
||||
Foreign currency translation adjustment
|
$
|
(652
|
)
|
|
$
|
—
|
|
Reallocation of foreign currency translation adjustment to controlling interests
|
1,344
|
|
|
—
|
|
||
Total foreign currency translation adjustment
|
$
|
692
|
|
|
$
|
—
|
|
Other comprehensive income attributable to Redeemable non-controlling interests
|
$
|
692
|
|
|
$
|
—
|
|
(1)
|
Amounts attributable to Bloomin’ Brands, Inc. are net of tax benefits of
$1.7 million
and
$2.6 million
for the
thirteen weeks ended March 27, 2016
and
March 29, 2015
, respectively.
|
(2)
|
Amounts attributable to Bloomin’ Brands, Inc. are net of tax benefits of
$0.6 million
for the
thirteen weeks ended March 27, 2016
.
|
(dollars in thousands)
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
|
CONSOLIDATED BALANCE SHEET CLASSIFICATION
|
||||
Interest rate swaps - liability
|
$
|
5,178
|
|
|
$
|
5,142
|
|
|
Accrued and other current liabilities
|
Interest rate swaps - liability
|
7,826
|
|
|
5,007
|
|
|
Other long-term liabilities, net
|
||
Total fair value of derivative instruments (1)
|
$
|
13,004
|
|
|
$
|
10,149
|
|
|
|
|
|
|
|
|
|
||||
Accrued interest
|
$
|
492
|
|
|
$
|
556
|
|
|
Accrued and other current liabilities
|
(1)
|
See Note
10
-
Fair Value Measurements
for fair value discussion of the interest rate swaps.
|
|
THIRTEEN WEEKS ENDED
|
||
(dollars in thousands)
|
MARCH 27,
2016 |
||
Interest rate swap expense recognized in Interest expense, net (1)
|
$
|
(1,614
|
)
|
Income tax benefit recognized in Provision for income taxes
|
626
|
|
|
Total effects of the interest rate swaps on Net income
|
$
|
(988
|
)
|
(1)
|
During the
thirteen weeks ended March 27, 2016
and
March 29, 2015
, the Company did not recognize
any
gain or loss as a result of hedge ineffectiveness.
|
Level 1
|
|
Unadjusted quoted market prices in active markets for identical assets or liabilities
|
Level 2
|
|
Observable inputs available at measurement date other than quoted prices included in Level 1
|
Level 3
|
|
Unobservable inputs that cannot be corroborated by observable market data
|
|
MARCH 27, 2016
|
|
DECEMBER 27, 2015
|
||||||||||||||||||||
(dollars in thousands)
|
TOTAL
|
|
LEVEL 1
|
|
LEVEL 2
|
|
TOTAL
|
|
LEVEL 1
|
|
LEVEL 2
|
||||||||||||
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Fixed income funds
|
$
|
14,941
|
|
|
$
|
14,941
|
|
|
$
|
—
|
|
|
$
|
6,333
|
|
|
$
|
6,333
|
|
|
$
|
—
|
|
Money market funds
|
7,780
|
|
|
7,780
|
|
|
—
|
|
|
7,168
|
|
|
7,168
|
|
|
—
|
|
||||||
Restricted cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Fixed income funds
|
801
|
|
|
801
|
|
|
—
|
|
|
551
|
|
|
551
|
|
|
—
|
|
||||||
Money market funds
|
2,499
|
|
|
2,499
|
|
|
—
|
|
|
2,681
|
|
|
2,681
|
|
|
—
|
|
||||||
Other current assets, net:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Derivative instruments - foreign currency forward contracts
|
—
|
|
|
—
|
|
|
—
|
|
|
59
|
|
|
—
|
|
|
59
|
|
||||||
Total asset recurring fair value measurements
|
$
|
26,021
|
|
|
$
|
26,021
|
|
|
$
|
—
|
|
|
$
|
16,792
|
|
|
$
|
16,733
|
|
|
$
|
59
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Accrued and other current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Derivative instruments - interest rate swaps
|
$
|
5,178
|
|
|
$
|
—
|
|
|
$
|
5,178
|
|
|
$
|
5,142
|
|
|
$
|
—
|
|
|
$
|
5,142
|
|
Derivative instruments - commodities
|
594
|
|
|
—
|
|
|
594
|
|
|
583
|
|
|
—
|
|
|
583
|
|
||||||
Derivative instruments - foreign currency forward contracts
|
25
|
|
|
—
|
|
|
25
|
|
|
703
|
|
|
—
|
|
|
703
|
|
||||||
Other long-term liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Derivative instruments - interest rate swaps
|
7,826
|
|
|
—
|
|
|
7,826
|
|
|
5,007
|
|
|
—
|
|
|
5,007
|
|
||||||
Total liability recurring fair value measurements
|
$
|
13,623
|
|
|
$
|
—
|
|
|
$
|
13,623
|
|
|
$
|
11,435
|
|
|
$
|
—
|
|
|
$
|
11,435
|
|
FINANCIAL INSTRUMENT
|
|
METHODS AND ASSUMPTIONS
|
Fixed income funds and
Money market funds
|
|
Carrying value approximates fair value because maturities are less than three months.
|
Derivative instruments
|
|
The Company’s derivative instruments include interest rate swaps, foreign currency forward contracts and commodities. Fair value measurements are based on the contractual terms of the derivatives and use observable market-based inputs. The interest rate swaps are valued using a discounted cash flow analysis on the expected cash flows of each derivative using observable inputs including interest rate curves and credit spreads. The foreign currency forwards are valued by comparing the contracted forward exchange rate to the current market exchange rate. Key inputs for the valuation of the foreign currency forwards are spot rates, foreign currency forward rates, and the interest rate curve of the domestic currency. The Company incorporates credit valuation adjustments to reflect both its own nonperformance risk and the respective counterparty’s nonperformance risk in the fair value measurements. As of March 27, 2016 and December 27, 2015, the Company has determined that the credit valuation adjustments are not significant to the overall valuation of its derivatives.
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
MARCH 29, 2015
|
||||||
(dollars in thousands)
|
CARRYING VALUE (1)
|
|
TOTAL
IMPAIRMENT |
||||
Assets held for sale
|
$
|
1,564
|
|
|
$
|
171
|
|
Property, fixtures and equipment
|
950
|
|
|
1,124
|
|
||
|
$
|
2,514
|
|
|
$
|
1,295
|
|
(1)
|
Carrying value approximates fair value with all assets measured using Level 2 inputs. A third-party market appraisal (Level 2) and a purchase contract (Level 2) were used to estimate the fair value. There were
no
impaired assets for the
thirteen weeks ended March 27, 2016
.
|
|
MARCH 27, 2016
|
|
DECEMBER 27, 2015
|
||||||||||||||||||||
|
|
|
FAIR VALUE
|
|
|
|
FAIR VALUE
|
||||||||||||||||
(dollars in thousands)
|
CARRYING VALUE
|
|
LEVEL 2
|
|
LEVEL 3
|
|
CARRYING VALUE
|
|
LEVEL 2
|
|
LEVEL 3
|
||||||||||||
Senior Secured Credit Facility:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Term loan A
|
$
|
273,750
|
|
|
$
|
272,723
|
|
|
$
|
—
|
|
|
$
|
277,500
|
|
|
$
|
276,459
|
|
|
$
|
—
|
|
Term loan A-1
|
148,125
|
|
|
147,570
|
|
|
—
|
|
|
150,000
|
|
|
149,438
|
|
|
—
|
|
||||||
Revolving credit facility
|
607,500
|
|
|
603,703
|
|
|
—
|
|
|
432,000
|
|
|
429,300
|
|
|
—
|
|
||||||
PRP Mortgage Loan
|
300,000
|
|
|
—
|
|
|
300,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
2012 CMBS loan:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Mortgage loan
|
—
|
|
|
—
|
|
|
—
|
|
|
289,588
|
|
|
—
|
|
|
293,222
|
|
||||||
First mezzanine loan
|
—
|
|
|
—
|
|
|
—
|
|
|
84,028
|
|
|
—
|
|
|
83,608
|
|
||||||
Second mezzanine loan
|
—
|
|
|
—
|
|
|
—
|
|
|
85,353
|
|
|
—
|
|
|
85,780
|
|
||||||
Other notes payable
|
529
|
|
|
—
|
|
|
520
|
|
|
931
|
|
|
—
|
|
|
918
|
|
DEBT FACILITY
|
|
METHODS AND ASSUMPTIONS
|
Senior Secured Credit Facility
|
|
Quoted market prices in inactive markets.
|
PRP Mortgage Loan
|
|
Assumptions derived from current conditions in the real estate and credit markets, changes in the underlying collateral and expectations of management.
|
CMBS loan
|
|
Assumptions derived from current conditions in the real estate and credit markets, changes in the underlying collateral and expectations of management.
|
Other notes payable
|
|
Discounted cash flow approach. Discounted cash flow inputs primarily include cost of debt rates which are used to derive the present value factors for the determination of fair value.
|
(1)
|
Includes international franchise locations in
18
countries and Guam.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Total revenues
|
|
|
|
||||
U.S.
|
$
|
1,043,779
|
|
|
$
|
1,062,014
|
|
International
|
120,409
|
|
|
140,045
|
|
||
Total revenues
|
$
|
1,164,188
|
|
|
$
|
1,202,059
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Segment income from operations
|
|
|
|
||||
U.S. (1)
|
$
|
117,839
|
|
|
$
|
128,268
|
|
International
|
11,349
|
|
|
8,879
|
|
||
Total segment income from operations
|
129,188
|
|
|
137,147
|
|
||
Unallocated corporate operating expense (1)
|
(42,504
|
)
|
|
(39,446
|
)
|
||
Total income from operations
|
86,684
|
|
|
97,701
|
|
||
Loss on defeasance, extinguishment and modification of debt
|
(26,580
|
)
|
|
—
|
|
||
Other expense, net
|
(19
|
)
|
|
(1,147
|
)
|
||
Interest expense, net
|
(12,875
|
)
|
|
(13,198
|
)
|
||
Income before provision for income taxes
|
$
|
47,210
|
|
|
$
|
83,356
|
|
(1)
|
During the first quarter of 2016, the Company recast its segment reporting to reflect changes made in how it evaluates insurance costs.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Depreciation and amortization
|
|
|
|
||||
U.S.
|
$
|
38,202
|
|
|
$
|
36,716
|
|
International
|
6,547
|
|
|
6,837
|
|
||
Corporate
|
2,902
|
|
|
2,933
|
|
||
Total depreciation and amortization
|
$
|
47,651
|
|
|
$
|
46,486
|
|
(i)
|
Economic conditions and their effects on consumer confidence and discretionary spending, consumer traffic, the cost and availability of credit and interest rates;
|
(ii)
|
Our ability to compete in the highly competitive restaurant industry with many well-established competitors and new market entrants;
|
(iii)
|
Consumer reactions to public health and food safety issues;
|
(iv)
|
Our ability to comply with governmental laws and regulations, the costs of compliance with such laws and regulations and the effects of changes to applicable laws and regulations, including tax laws and unanticipated liabilities;
|
(v)
|
Minimum wage increases and additional mandated employee benefits;
|
(vi)
|
Fluctuations in the price and availability of commodities;
|
(vii)
|
Our ability to implement our expansion, remodeling and relocation plans due to uncertainty in locating and acquiring attractive sites on acceptable terms, obtaining required permits and approvals, recruiting and training
|
(viii)
|
Our ability to protect our information technology systems from interruption or security breach and to protect consumer data and personal employee information;
|
(ix)
|
The effects of international economic, political and social conditions and legal systems on our foreign operations and on foreign currency exchange rates;
|
(x)
|
Our ability to preserve and grow the reputation and value of our brands;
|
(xi)
|
Seasonal and periodic fluctuations in our results and the effects of significant adverse weather conditions and other disasters or unforeseen events;
|
(xii)
|
Our ability to effectively respond to changes in patterns of consumer traffic, consumer tastes and dietary habits;
|
(xiii)
|
Strategic actions, including acquisitions and dispositions, and our success in integrating any acquired or newly created businesses;
|
(xiv)
|
The effects of our substantial leverage and restrictive covenants in our various credit facilities on our ability to raise additional capital to fund our operations, to make capital expenditures to invest in new or renovate restaurants and to react to changes in the economy or our industry, and our exposure to interest rate risk in connection with our variable-rate debt;
|
(xv)
|
The adequacy of our cash flow and earnings and other conditions which may affect our ability to pay dividends and repurchase shares of our common stock; and
|
•
|
A decrease in total revenues of
3.2%
to
$1.2 billion
in the
first quarter of 2016
, as compared to the
first quarter of 2015
, was primarily due to: (i) the effect of foreign currency translation, due to the depreciation of the Brazil Real, (ii) U.S. comparable restaurant sales being
1.5%
lower, primarily due to a decline in customer traffic and (iii) the closing of
43
restaurants since
December 28, 2014
. The
decrease
in restaurant sales was partially offset by the opening of
78
new restaurants not included in our comparable restaurant sales base.
|
•
|
Income from operations of
$86.7 million
in the
first quarter of 2016
, as compared to
$97.7 million
in the
first quarter of 2015
, was primarily due to a decrease in operating margin at the restaurant level and higher General and administrative expense, partially offset by lower impairments and restaurant closing costs.
|
•
|
Average restaurant unit volumes
—average sales per restaurant to measure changes in customer traffic, pricing and development of the brand;
|
•
|
Comparable restaurant sales
—year-over-year comparison of sales volumes for Company-owned restaurants that are open 18 months or more in order to remove the impact of new restaurant openings in comparing the operations of existing restaurants;
|
•
|
System-wide sales
—total restaurant sales volume for all Company-owned and franchise restaurants, regardless of ownership, to interpret the overall health of our brands;
|
•
|
Adjusted restaurant-level operating margin, Adjusted income from operations, Adjusted net income and Adjusted diluted earnings per share
—non-GAAP financial measures utilized to evaluate our operating performance, and for which definitions, usefulness and reconciliations are described in more detail in the “Non-GAAP Financial Measures” section below; and
|
•
|
Customer satisfaction scores
—measurement of our customers’ experiences in a variety of key attributes.
|
Number of restaurants (at end of the period):
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||
U.S.
|
|
|
|
||
Outback Steakhouse
|
|
|
|
||
Company-owned
|
649
|
|
|
649
|
|
Franchised
|
105
|
|
|
105
|
|
Total
|
754
|
|
|
754
|
|
Carrabba’s Italian Grill
|
|
|
|
||
Company-owned
|
244
|
|
|
244
|
|
Franchised
|
3
|
|
|
2
|
|
Total
|
247
|
|
|
246
|
|
Bonefish Grill
|
|
|
|
||
Company-owned
|
205
|
|
|
204
|
|
Franchised
|
6
|
|
|
5
|
|
Total
|
211
|
|
|
209
|
|
Fleming’s Prime Steakhouse & Wine Bar
|
|
|
|
||
Company-owned
|
66
|
|
|
66
|
|
International
|
|
|
|
||
Company-owned
|
|
|
|
||
Outback Steakhouse - Brazil (1)
|
76
|
|
|
64
|
|
Outback Steakhouse - South Korea
|
74
|
|
|
75
|
|
Other
|
17
|
|
|
10
|
|
Franchised
|
57
|
|
|
57
|
|
Total
|
224
|
|
|
206
|
|
System-wide total
|
1,502
|
|
|
1,481
|
|
(1)
|
The restaurant counts for Brazil are reported as of February 29, 2016 and February 28, 2015, respectively, to correspond with the balance sheet dates of this subsidiary.
|
|
THIRTEEN WEEKS ENDED
|
||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||
Revenues
|
|
|
|
||
Restaurant sales
|
99.5
|
%
|
|
99.4
|
%
|
Other revenues
|
0.5
|
|
|
0.6
|
|
Total revenues
|
100.0
|
|
|
100.0
|
|
Costs and expenses
|
|
|
|
|
|
Cost of sales (1)
|
32.4
|
|
|
32.4
|
|
Labor and other related (1)
|
27.9
|
|
|
27.1
|
|
Other restaurant operating (1)
|
21.9
|
|
|
22.1
|
|
Depreciation and amortization
|
4.1
|
|
|
3.9
|
|
General and administrative
|
6.4
|
|
|
6.1
|
|
Provision for impaired assets and restaurant closings
|
0.3
|
|
|
0.8
|
|
Total costs and expenses
|
92.6
|
|
|
91.9
|
|
Income from operations
|
7.4
|
|
|
8.1
|
|
Loss on defeasance, extinguishment and modification of debt
|
(2.3
|
)
|
|
—
|
|
Other expense, net
|
(*)
|
|
|
(0.1
|
)
|
Interest expense, net
|
(1.0
|
)
|
|
(1.1
|
)
|
Income before provision for income taxes
|
4.1
|
|
|
6.9
|
|
Provision for income taxes
|
1.0
|
|
|
1.7
|
|
Net income
|
3.1
|
|
|
5.2
|
|
Less: net income attributable to noncontrolling interests
|
0.1
|
|
|
0.2
|
|
Net income attributable to Bloomin’ Brands
|
3.0
|
%
|
|
5.0
|
%
|
(1)
|
As a percentage of Restaurant sales.
|
*
|
Less than 1/10
th
of one percent of Total revenues.
|
(dollars in millions)
|
THIRTEEN WEEKS ENDED
|
||
For the period ending March 29, 2015
|
$
|
1,194.8
|
|
Change from:
|
|
||
Effect of foreign currency translation
|
(36.3
|
)
|
|
Comparable restaurant sales
|
(12.6
|
)
|
|
Restaurant closings
|
(11.9
|
)
|
|
Divestiture of Roy’s
|
(5.7
|
)
|
|
Restaurant openings
|
29.8
|
|
|
For the period ending March 27, 2016
|
$
|
1,158.1
|
|
|
THIRTEEN WEEKS ENDED
|
||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||
Year over year percentage change:
|
|
|
|
||
Comparable restaurant sales (stores open 18 months or more) (1):
|
|
|
|
|
|
U.S.
|
|
|
|
||
Outback Steakhouse
|
(1.3
|
)%
|
|
5.0
|
%
|
Carrabba’s Italian Grill
|
(2.0
|
)%
|
|
1.9
|
%
|
Bonefish Grill
|
(2.7
|
)%
|
|
0.9
|
%
|
Fleming’s Prime Steakhouse & Wine Bar
|
1.3
|
%
|
|
3.0
|
%
|
Combined U.S.
|
(1.5
|
)%
|
|
3.6
|
%
|
International
|
|
|
|
||
Outback Steakhouse - Brazil (2)
|
8.8
|
%
|
|
6.2
|
%
|
Outback Steakhouse - South Korea
|
(5.6
|
)%
|
|
(3.0
|
)%
|
|
|
|
|
||
Traffic:
|
|
|
|
|
|
U.S.
|
|
|
|
||
Outback Steakhouse
|
(3.0
|
)%
|
|
0.5
|
%
|
Carrabba’s Italian Grill
|
1.5
|
%
|
|
3.3
|
%
|
Bonefish Grill
|
(5.2
|
)%
|
|
(1.8
|
)%
|
Fleming’s Prime Steakhouse & Wine Bar
|
1.2
|
%
|
|
0.7
|
%
|
Combined U.S.
|
(2.2
|
)%
|
|
0.7
|
%
|
International
|
|
|
|
||
Outback Steakhouse - Brazil
|
0.3
|
%
|
|
1.1
|
%
|
Outback Steakhouse - South Korea
|
(3.9
|
)%
|
|
(4.6
|
)%
|
|
|
|
|
||
Average check per person increases (decreases) (3):
|
|
|
|
||
U.S.
|
|
|
|
||
Outback Steakhouse
|
1.7
|
%
|
|
4.5
|
%
|
Carrabba’s Italian Grill
|
(3.5
|
)%
|
|
(1.4
|
)%
|
Bonefish Grill
|
2.5
|
%
|
|
2.7
|
%
|
Fleming’s Prime Steakhouse & Wine Bar
|
0.1
|
%
|
|
2.3
|
%
|
Combined U.S.
|
0.7
|
%
|
|
2.9
|
%
|
International
|
|
|
|
||
Outback Steakhouse - Brazil
|
7.3
|
%
|
|
4.9
|
%
|
Outback Steakhouse - South Korea
|
(1.7
|
)%
|
|
1.6
|
%
|
(1)
|
Comparable restaurant sales exclude the effect of fluctuations in foreign currency rates. Relocated international restaurants closed more than 30 days and relocated U.S. restaurants closed more than 60 days are excluded from comparable restaurant sales until at least 18 months after reopening.
|
(2)
|
Includes the trading day impact from calendar period reporting of 1.3% and 0.2% for the thirteen weeks ended March 27, 2016 and March 29, 2015, respectively.
|
(3)
|
Average check per person increases (decreases) includes the impact of menu pricing changes, product mix and discounts.
|
|
THIRTEEN WEEKS ENDED
|
||||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Average restaurant unit volumes (dollars in thousands):
|
|
|
|
||||
U.S.
|
|
|
|
||||
Outback Steakhouse
|
$
|
70,797
|
|
|
$
|
71,644
|
|
Carrabba’s Italian Grill
|
$
|
61,138
|
|
|
$
|
62,912
|
|
Bonefish Grill
|
$
|
62,761
|
|
|
$
|
64,709
|
|
Fleming’s Prime Steakhouse & Wine Bar
|
$
|
89,910
|
|
|
$
|
88,865
|
|
International
|
|
|
|
||||
Outback Steakhouse - Brazil (1)
|
$
|
68,036
|
|
|
$
|
97,749
|
|
Outback Steakhouse - South Korea (2)
|
$
|
43,471
|
|
|
$
|
49,773
|
|
Operating weeks:
|
|
|
|
|
|||
U.S.
|
|
|
|
||||
Outback Steakhouse
|
8,444
|
|
|
8,433
|
|
||
Carrabba’s Italian Grill
|
3,172
|
|
|
3,162
|
|
||
Bonefish Grill
|
2,709
|
|
|
2,637
|
|
||
Fleming’s Prime Steakhouse & Wine Bar
|
858
|
|
|
858
|
|
||
International
|
|
|
|
||||
Outback Steakhouse - Brazil
|
976
|
|
|
823
|
|
||
Outback Steakhouse - South Korea
|
966
|
|
|
1,007
|
|
(1)
|
Translated at an average exchange rate of
3.96
and
2.69
for the
thirteen weeks ended March 27, 2016
and
March 29, 2015
, respectively.
|
(2)
|
Translated at an average exchange rate of
1,201.36
and
1,099.20
for the
thirteen weeks ended March 27, 2016
and
March 29, 2015
, respectively.
|
|
THIRTEEN WEEKS ENDED
|
|
|
|||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
|||||
Cost of sales
|
$
|
375.3
|
|
|
$
|
387.5
|
|
|
|
|
% of Restaurant sales
|
32.4
|
%
|
|
32.4
|
%
|
|
—
|
%
|
|
THIRTEEN WEEKS ENDED
|
|
|
|||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
|||||
Labor and other related
|
$
|
322.8
|
|
|
$
|
324.0
|
|
|
|
|
% of Restaurant sales
|
27.9
|
%
|
|
27.1
|
%
|
|
0.8
|
%
|
|
THIRTEEN WEEKS ENDED
|
|
|
|||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
|||||
Other restaurant operating
|
$
|
253.6
|
|
|
$
|
264.0
|
|
|
|
|
% of Restaurant sales
|
21.9
|
%
|
|
22.1
|
%
|
|
(0.2
|
)%
|
|
THIRTEEN WEEKS ENDED
|
|
|
|||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
|||||
Depreciation and amortization
|
$
|
47.7
|
|
|
$
|
46.5
|
|
|
|
|
% of Total revenues
|
4.1
|
%
|
|
3.9
|
%
|
|
0.2
|
%
|
|
THIRTEEN WEEKS ENDED
|
||
(dollars in millions)
|
MARCH 27,
2016 |
||
For the period ended March 29, 2015
|
$
|
73.2
|
|
Change from:
|
|
||
Conference expense
|
4.2
|
|
|
Foreign currency exchange
|
(2.4
|
)
|
|
Life insurance and deferred compensation
|
(1.4
|
)
|
|
Legal and professional fees
|
(1.2
|
)
|
|
Other
|
2.6
|
|
|
For the period ended March 27, 2016
|
$
|
75.0
|
|
•
|
Conference expense was higher due to the timing of our annual managing partner conference.
|
•
|
Foreign exchange primarily includes the depreciation of the Brazil Real.
|
|
THIRTEEN WEEKS ENDED
|
|
|
||||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
||||||
Provision for impaired assets and restaurant closings
|
$
|
3.2
|
|
|
$
|
9.1
|
|
|
$
|
(5.9
|
)
|
DESCRIPTION
|
|
THIRTEEN WEEKS ENDED
|
||||||||||||||
|
MARCH 27, 2016
|
|
MARCH 29, 2015
|
|||||||||||||
|
BONEFISH
|
|
INTERNATIONAL
|
|
INTERNATIONAL
|
|
DOMESTIC
|
|||||||||
Facility closure and other expenses
|
|
$
|
3.6
|
|
|
$
|
(0.5
|
)
|
|
$
|
6.4
|
|
|
$
|
1.3
|
|
|
THIRTEEN WEEKS ENDED
|
|
|
||||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
||||||
Income from operations
|
$
|
86.7
|
|
|
$
|
97.7
|
|
|
$
|
(11.0
|
)
|
% of Total revenues
|
7.4
|
%
|
|
8.1
|
%
|
|
(0.7
|
)%
|
|
THIRTEEN WEEKS ENDED
|
|
|
||||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
||||||
Other expense, net
|
$
|
—
|
|
|
$
|
(1.1
|
)
|
|
$
|
1.1
|
|
|
THIRTEEN WEEKS ENDED
|
|
|
||||||||
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
||||||
Interest expense, net
|
$
|
12.9
|
|
|
$
|
13.2
|
|
|
$
|
(0.3
|
)
|
|
THIRTEEN WEEKS ENDED
|
|
|
|||||
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
|
Change
|
|||
Effective income tax rate
|
24.0
|
%
|
|
25.5
|
%
|
|
(1.5
|
)%
|
SEGMENT
|
|
CONCEPT
|
|
GEOGRAPHIC LOCATION
|
U.S.
|
|
Outback Steakhouse
|
|
United States of America, including Puerto Rico
|
|
Carrabba’s Italian Grill
|
|
||
|
Bonefish Grill
|
|
||
|
Fleming’s Prime Steakhouse & Wine Bar
|
|
||
International
|
|
Outback Steakhouse (1)
|
|
Brazil, South Korea, Hong Kong, China
|
|
Carrabba’s Italian Grill (Abbraccio)
|
|
Brazil
|
(1)
|
Includes international franchise locations in
18
countries and Guam.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Segment income from operations
|
|
|
|
||||
U.S.
|
$
|
117,839
|
|
|
$
|
128,268
|
|
International
|
11,349
|
|
|
8,879
|
|
||
Total segment income from operations
|
129,188
|
|
|
137,147
|
|
||
Unallocated corporate operating expense
|
(42,504
|
)
|
|
(39,446
|
)
|
||
Total income from operations
|
86,684
|
|
|
97,701
|
|
||
Loss on defeasance, extinguishment and modification of debt
|
(26,580
|
)
|
|
—
|
|
||
Other expense, net
|
(19
|
)
|
|
(1,147
|
)
|
||
Interest expense, net
|
(12,875
|
)
|
|
(13,198
|
)
|
||
Income before provision for income taxes
|
$
|
47,210
|
|
|
$
|
83,356
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Revenues
|
|
|
|
||||
Restaurant sales
|
$
|
1,038,749
|
|
|
$
|
1,056,104
|
|
Other revenues
|
5,030
|
|
|
5,910
|
|
||
Total revenues
|
$
|
1,043,779
|
|
|
$
|
1,062,014
|
|
Restaurant-level operating margin (1)
|
17.3
|
%
|
|
18.0
|
%
|
||
Income from operations (1)
|
$
|
117,839
|
|
|
$
|
128,268
|
|
Operating income margin (1)
|
11.3
|
%
|
|
12.1
|
%
|
(1)
|
During the first quarter of 2016, we recast our segment reporting to reflect changes made in how we evaluate insurance costs. See Note
13
-
Segment Reporting
for additional details.
|
(dollars in millions)
|
THIRTEEN WEEKS ENDED
|
||
For the period ending March 29, 2015
|
$
|
1,056.1
|
|
Change from:
|
|
||
Comparable restaurant sales
|
(15.6
|
)
|
|
Divestiture of Roy’s
|
(5.7
|
)
|
|
Restaurant closings
|
(4.7
|
)
|
|
Restaurant openings
|
8.7
|
|
|
For the period ending March 27, 2016
|
$
|
1,038.8
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Revenues
|
|
|
|
||||
Restaurant sales
|
$
|
119,303
|
|
|
$
|
138,706
|
|
Other revenues
|
1,106
|
|
|
1,339
|
|
||
Total revenues
|
$
|
120,409
|
|
|
$
|
140,045
|
|
Restaurant-level operating margin
|
19.5
|
%
|
|
21.7
|
%
|
||
Income from operations
|
$
|
11,349
|
|
|
$
|
8,879
|
|
Operating income margin
|
9.4
|
%
|
|
6.3
|
%
|
(dollars in millions)
|
THIRTEEN WEEKS ENDED
|
||
For the period ending March 29, 2015
|
$
|
138.7
|
|
Change from:
|
|
||
Effect of foreign currency translation
|
(36.3
|
)
|
|
Restaurant closings
|
(7.2
|
)
|
|
Restaurant openings
|
21.1
|
|
|
Comparable restaurant sales
|
3.0
|
|
|
For the period ending March 27, 2016
|
$
|
119.3
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
COMPANY-OWNED RESTAURANT SALES
(dollars in millions)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
U.S.
|
|
|
|
||||
Outback Steakhouse
|
$
|
598
|
|
|
$
|
604
|
|
Carrabba’s Italian Grill
|
194
|
|
|
199
|
|
||
Bonefish Grill
|
170
|
|
|
171
|
|
||
Fleming’s Prime Steakhouse & Wine Bar
|
77
|
|
|
76
|
|
||
Other
|
—
|
|
|
6
|
|
||
Total
|
$
|
1,039
|
|
|
$
|
1,056
|
|
International
|
|
|
|
||||
Outback Steakhouse-Brazil
|
$
|
66
|
|
|
$
|
81
|
|
Outback Steakhouse-South Korea
|
42
|
|
|
50
|
|
||
Other
|
11
|
|
|
8
|
|
||
Total
|
$
|
119
|
|
|
$
|
139
|
|
Total Company-owned restaurant sales
|
$
|
1,158
|
|
|
$
|
1,195
|
|
|
THIRTEEN WEEKS ENDED
|
||||||
FRANCHISE SALES
(dollars in millions) (1)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Outback Steakhouse
|
|
|
|
||||
U.S.
|
$
|
92
|
|
|
$
|
88
|
|
International
|
28
|
|
|
29
|
|
||
Total
|
120
|
|
|
117
|
|
||
Carrabba’s Italian Grill
|
3
|
|
|
1
|
|
||
Bonefish Grill
|
3
|
|
|
3
|
|
||
Total franchise sales (1)
|
$
|
126
|
|
|
$
|
121
|
|
Income from franchise sales (2)
|
$
|
5
|
|
|
$
|
5
|
|
(1)
|
Franchise sales are not included in Total revenues in the
Consolidated Statements of Operations and Comprehensive Income
.
|
(2)
|
Represents the franchise royalty and the portion of total income related to restaurant operations included in the
Consolidated Statements of Operations and Comprehensive Income
in Other revenues.
|
|
THIRTEEN WEEKS ENDED
|
||||||||||
|
MARCH 27, 2016
|
|
MARCH 29, 2015
|
||||||||
|
U.S. GAAP
|
|
ADJUSTED (1)
|
|
U.S. GAAP
|
|
ADJUSTED (2)
|
||||
Restaurant sales
|
100.0
|
%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
||||
Cost of sales
|
32.4
|
%
|
|
32.4
|
%
|
|
32.4
|
%
|
|
32.4
|
%
|
Labor and other related
|
27.9
|
%
|
|
27.9
|
%
|
|
27.1
|
%
|
|
27.1
|
%
|
Other restaurant operating
|
21.9
|
%
|
|
22.1
|
%
|
|
22.1
|
%
|
|
22.1
|
%
|
|
|
|
|
|
|
|
|
||||
Restaurant-level operating margin
|
17.8
|
%
|
|
17.7
|
%
|
|
18.4
|
%
|
|
18.3
|
%
|
(1)
|
Includes adjustments primarily for the write-off of $1.9 million of deferred rent liabilities associated with the Bonefish Restructuring recorded in Other restaurant operating.
|
(2)
|
Includes adjustments of $0.2 million of expenses from the International Restaurant Closure Initiative, partially offset by $0.1 million of non-cash intangible amortization recorded as a result of the acquisition of our Brazil operations. All adjustments were recorded in Other restaurant operating.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(in thousands, except per share data)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Income from operations
|
$
|
86,684
|
|
|
$
|
97,701
|
|
Operating income margin
|
7.4
|
%
|
|
8.1
|
%
|
||
Adjustments:
|
|
|
|
||||
Restaurant impairments and closing costs (1)
|
2,131
|
|
|
8,870
|
|
||
Purchased intangibles amortization (2)
|
860
|
|
|
1,283
|
|
||
Restaurant relocations, remodels and related costs (3)
|
640
|
|
|
1,169
|
|
||
Transaction-related expenses (4)
|
572
|
|
|
275
|
|
||
Severance (5)
|
1,135
|
|
|
—
|
|
||
Total income from operations adjustments
|
5,338
|
|
|
11,597
|
|
||
Adjusted income from operations
|
$
|
92,022
|
|
|
$
|
109,298
|
|
Adjusted operating income margin
|
7.9
|
%
|
|
9.1
|
%
|
||
|
|
|
|
||||
Net income attributable to Bloomin’ Brands
|
$
|
34,475
|
|
|
$
|
60,588
|
|
Adjustments:
|
|
|
|
||||
Income from operations adjustments
|
5,338
|
|
|
11,597
|
|
||
Loss on defeasance, extinguishment and modification of debt (6)
|
26,580
|
|
|
—
|
|
||
Loss on disposal of business and disposal of assets (7)
|
—
|
|
|
1,151
|
|
||
Total adjustments, before income taxes
|
31,918
|
|
|
12,748
|
|
||
Adjustment to provision for income taxes (8)
|
(9,702
|
)
|
|
(3,627
|
)
|
||
Net adjustments
|
22,216
|
|
|
9,121
|
|
||
Adjusted net income
|
$
|
56,691
|
|
|
$
|
69,709
|
|
|
|
|
|
||||
Diluted earnings per share
|
$
|
0.29
|
|
|
$
|
0.47
|
|
Adjusted diluted earnings per share
|
$
|
0.47
|
|
|
$
|
0.54
|
|
|
|
|
|
||||
Diluted weighted average common shares outstanding
|
120,776
|
|
|
128,759
|
|
(1)
|
Represents expenses incurred for the Bonefish Restructuring and the International and Domestic Restaurant Closure Initiatives.
|
(2)
|
Represents non-cash intangible amortization recorded as a result of the acquisition of our Brazil operations.
|
(3)
|
Represents asset impairment charges and accelerated depreciation incurred in connection with our relocation and remodel programs.
|
(4)
|
Relates primarily to the following: (i) costs incurred with our sale-leaseback initiative in 2016 and (ii) costs incurred with the secondary offering of our common stock in March 2015.
|
(5)
|
Relates to severance expense incurred as a result of an organizational realignment.
|
(6)
|
Relates to the defeasance of the 2012 CMBS loan in 2016.
|
(7)
|
Primarily represents loss on the sale of our Roy’s business in 2015.
|
(8)
|
Represents income tax effect of the adjustments for the thirteen weeks ended March 27, 2016 and March 29, 2015.
|
|
SENIOR SECURED CREDIT FACILITY
|
|
2012 CMBS LOAN
|
|
PRP MORTGAGE LOAN
|
|
TOTAL CREDIT FACILITIES
|
||||||||||||||||||||||||
|
TERM LOANS
|
|
REVOLVING FACILITY
|
|
FIRST MORTGAGE LOAN
|
|
MEZZANINE LOANS
|
|
|
||||||||||||||||||||||
(dollars in thousands)
|
A
|
|
A-1
|
|
|
|
FIRST
|
|
SECOND
|
|
|
||||||||||||||||||||
Balance as of
December 27, 2015 |
$
|
277,500
|
|
|
$
|
150,000
|
|
|
$
|
432,000
|
|
|
$
|
289,588
|
|
|
$
|
84,028
|
|
|
$
|
85,353
|
|
|
$
|
—
|
|
|
$
|
1,318,469
|
|
2016 new debt
|
—
|
|
|
—
|
|
|
308,500
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
300,000
|
|
|
608,500
|
|
||||||||
2016 payments (1)
|
(3,750
|
)
|
|
(1,875
|
)
|
|
(133,000
|
)
|
|
(289,588
|
)
|
|
(84,028
|
)
|
|
(85,353
|
)
|
|
—
|
|
|
(597,594
|
)
|
||||||||
Balance as of
March 27, 2016 |
$
|
273,750
|
|
|
$
|
148,125
|
|
|
$
|
607,500
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
300,000
|
|
|
$
|
1,329,375
|
|
(1)
|
Subsequent to
March 27, 2016
, we made payments of
$87.6 million
and
$44.5 million
on our PRP Mortgage Loan and revolving credit facility, respectively, with proceeds from a sale-leaseback transaction. See Note
14
-
Subsequent Events
for additional details regarding the sale-leaseback transaction.
|
|
|
|
|
|
|
|
OUTSTANDING
|
|||||||||
(dollars in thousands)
|
INTEREST RATE
MARCH 27, 2016 |
|
ORIGINAL FACILITY
|
|
PRINCIPAL MATURITY DATE
|
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
|||||||
Term loan A, net of discount of $2.9 million (1)
|
2.43
|
%
|
|
$
|
300,000
|
|
|
May 2019
|
|
$
|
273,750
|
|
|
$
|
277,500
|
|
Term loan A-1
|
2.40
|
%
|
|
150,000
|
|
|
May 2019
|
|
148,125
|
|
|
150,000
|
|
|||
Revolving credit facility (1)
|
2.42
|
%
|
|
825,000
|
|
|
May 2019
|
|
607,500
|
|
|
432,000
|
|
|||
Total Senior Secured Credit Facility
|
|
|
$
|
1,275,000
|
|
|
|
|
$
|
1,029,375
|
|
|
$
|
859,500
|
|
|
PRP Mortgage Loan
|
2.90
|
%
|
|
$
|
300,000
|
|
|
February 2018
|
|
$
|
300,000
|
|
|
$
|
—
|
|
First mortgage loan
|
—
|
%
|
|
$
|
324,800
|
|
|
|
|
$
|
—
|
|
|
$
|
289,588
|
|
First mezzanine loan
|
—
|
%
|
|
87,600
|
|
|
|
|
—
|
|
|
84,028
|
|
|||
Second mezzanine loan
|
—
|
%
|
|
87,600
|
|
|
|
|
—
|
|
|
85,353
|
|
|||
Total 2012 CMBS loan
|
|
|
$
|
500,000
|
|
|
|
|
$
|
—
|
|
|
$
|
458,969
|
|
|
Total credit facilities
|
|
|
$
|
2,075,000
|
|
|
|
|
$
|
1,329,375
|
|
|
$
|
1,318,469
|
|
(1)
|
Represents the weighted-average interest rate.
|
PAYMENT DATE
|
|
INITIAL MATURITY
|
|
EXTENSION
|
||||
February 28, 2017 (1)
|
|
$
|
90,000
|
|
|
$
|
90,000
|
|
August 31, 2017
|
|
50,000
|
|
|
50,000
|
|
||
February 11, 2018
|
|
160,000
|
|
|
50,000
|
|
||
August 31, 2018
|
|
—
|
|
|
50,000
|
|
||
February 11, 2019
|
|
—
|
|
|
60,000
|
|
||
|
|
$
|
300,000
|
|
|
$
|
300,000
|
|
(1)
|
Subsequent to
March 27, 2016
, we made a payment of
$87.6 million
on our PRP Mortgage Loan, primarily with proceeds from a sale-leaseback transaction.
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Net cash provided by operating activities
|
$
|
130,725
|
|
|
$
|
95,962
|
|
Net cash used in investing activities
|
(18,553
|
)
|
|
(39,478
|
)
|
||
Net cash used in financing activities
|
(114,634
|
)
|
|
(85,764
|
)
|
||
Effect of exchange rate changes on cash and cash equivalents
|
(1,041
|
)
|
|
(816
|
)
|
||
Net decrease in cash and cash equivalents
|
$
|
(3,503
|
)
|
|
$
|
(30,096
|
)
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Capital expenditures
|
$
|
(43,566
|
)
|
|
$
|
(47,672
|
)
|
Other investments, net
|
(2,777
|
)
|
|
(511
|
)
|
||
Net change in restricted cash
|
19,329
|
|
|
260
|
|
||
Proceeds from sale-leaseback transactions
|
8,459
|
|
|
—
|
|
||
Proceeds from disposal of property, fixtures and equipment
|
2
|
|
|
647
|
|
||
Proceeds from sale of a business
|
—
|
|
|
7,798
|
|
||
Net cash used in investing activities
|
$
|
(18,553
|
)
|
|
$
|
(39,478
|
)
|
|
THIRTEEN WEEKS ENDED
|
||||||
(dollars in thousands)
|
MARCH 27,
2016 |
|
MARCH 29,
2015 |
||||
Repayments of debt
|
$
|
(621,897
|
)
|
|
$
|
(136,104
|
)
|
Repurchase of common stock
|
(75,176
|
)
|
|
(70,234
|
)
|
||
Cash dividends paid on common stock
|
(8,238
|
)
|
|
(7,423
|
)
|
||
Repayments of partner deposits and accrued partner obligations
|
(4,975
|
)
|
|
(6,000
|
)
|
||
Purchase of limited partnership and noncontrolling interests
|
(4,828
|
)
|
|
—
|
|
||
Distributions to noncontrolling interests
|
(2,025
|
)
|
|
(1,448
|
)
|
||
(Payment of taxes) proceeds from the exercise of share-based compensation
|
(1,101
|
)
|
|
3,206
|
|
||
Proceeds from borrowings, net
|
603,199
|
|
|
131,000
|
|
||
Contributions from noncontrolling interests
|
326
|
|
|
112
|
|
||
Excess tax benefit from stock-based compensation
|
81
|
|
|
1,127
|
|
||
Net cash used in financing activities
|
$
|
(114,634
|
)
|
|
$
|
(85,764
|
)
|
(dollars in thousands)
|
MARCH 27,
2016 |
|
DECEMBER 27,
2015 |
||||
Current assets
|
$
|
300,676
|
|
|
$
|
418,644
|
|
Current liabilities
|
803,104
|
|
|
814,166
|
|
||
Working capital (deficit)
|
$
|
(502,428
|
)
|
|
$
|
(395,522
|
)
|
(dollars in thousands)
|
DIVIDENDS PAID
|
|
SHARE REPURCHASES
|
|
TAXES RELATED TO SETTLEMENT OF EQUITY AWARDS
|
|
TOTAL
|
||||||||
Thirteen weeks ended March 29, 2015
|
$
|
7,423
|
|
|
$
|
70,000
|
|
|
$
|
322
|
|
|
$
|
77,745
|
|
Thirteen weeks ended June 28, 2015
|
7,391
|
|
|
30,000
|
|
|
203
|
|
|
37,594
|
|
||||
Thirteen weeks ended September 27, 2015
|
7,333
|
|
|
59,999
|
|
|
200
|
|
|
67,532
|
|
||||
Thirteen weeks ended December 27, 2015
|
7,185
|
|
|
10,000
|
|
|
45
|
|
|
17,230
|
|
||||
Thirteen weeks ended March 27, 2016
|
8,238
|
|
|
75,000
|
|
|
176
|
|
|
83,414
|
|
||||
Total
|
$
|
37,570
|
|
|
$
|
244,999
|
|
|
$
|
946
|
|
|
$
|
283,515
|
|
REPORTING PERIOD
|
|
TOTAL NUMBER OF SHARES PURCHASED
|
|
AVERAGE PRICE PAID PER SHARE
|
|
TOTAL NUMBER OF SHARES PURCHASED AS PART OF PUBLICLY ANNOUNCED PLANS OR PROGRAMS
|
|
APPROXIMATE DOLLAR VALUE OF SHARES THAT MAY YET BE PURCHASED UNDER THE PLANS OR PROGRAMS (1)
|
||||||
December 29, 2015 through January 24, 2016
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
30,000,000
|
|
January 25, 2016 through February 21, 2016
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
250,000,000
|
|
February 22, 2016 through March 27, 2016
|
|
4,408,871
|
|
|
$
|
17.05
|
|
|
4,398,559
|
|
|
$
|
175,000,004
|
|
Total
|
|
4,408,871
|
|
|
|
|
4,398,559
|
|
|
|
|
(1)
|
On February 12, 2016, our Board canceled the remaining $30.0 million of authorization under the previous share repurchase program and approved a new $250.0 million authorization as announced publicly in our press release issued on February 17, 2016 (the “2016 Share Repurchase Program”). The 2016 Share Repurchase Program will expire on August 12, 2017. Common shares repurchased during the
thirteen weeks ended March 27, 2016
represented shares repurchased under the 2016 Share Repurchase Program and 10,312 shares withheld for tax payments due upon vesting of employee restricted stock awards.
|
EXHIBIT
NUMBER |
|
DESCRIPTION OF EXHIBITS
|
|
FILINGS REFERENCED FOR
INCORPORATION BY REFERENCE |
|
|
|
|
|
10.1
|
|
Loan Agreement, dated February 11, 2016, between New Private Restaurant Properties, LLC, as borrower, and Wells Fargo Bank, National Association, as lender
1
|
|
Filed herewith
|
|
|
|
|
|
10.2
|
|
Secured Promissory Note, dated February 11, 2016, between New Private Restaurant Properties, LLC, as borrower, and Wells Fargo Bank, National Association, as lender
|
|
Filed herewith
|
|
|
|
|
|
10.3*
|
|
Employment Offer Letter Agreement, dated as of February 12, 2016, between Bloomin’ Brands, Inc. and Michael Kappitt
|
|
Filed herewith
|
|
|
|
|
|
31.1
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
Filed herewith
|
|
|
|
|
|
31.2
|
|
Certification of Chief Financial and Administrative Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
Filed herewith
|
|
|
|
|
|
32.1
|
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
2
|
|
Filed herewith
|
|
|
|
|
|
32.2
|
|
Certification of Chief Financial and Administrative Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
2
|
|
Filed herewith
|
|
|
|
|
|
101.INS
|
|
XBRL Instance Document
|
|
Filed herewith
|
|
|
|
|
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
|
Filed herewith
|
|
|
|
|
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
Filed herewith
|
|
|
|
|
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
Filed herewith
|
|
|
|
|
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
Filed herewith
|
|
|
|
|
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
Filed herewith
|
Date:
|
May 3, 2016
|
|
BLOOMIN’ BRANDS, INC.
|
|
|
|
(Registrant)
|
|
|
|
|
|
|
|
By: /s/ David J. Deno
|
|
|
|
David J. Deno
Executive Vice President and Chief Financial and
Administrative Officer
(Principal Financial and Accounting Officer)
|
ARTICLE 1. DEFINITIONS
|
1
|
||
|
|
|
|
|
1.1
|
DEFINED TERMS
|
1
|
|
|
|
|
ARTICLE 2. LOAN
|
11
|
||
|
|
|
|
|
2.1
|
LOAN
|
11
|
|
2.2
|
LOAN DOCUMENTS
|
11
|
|
2.3
|
EFFECTIVE DATE
|
11
|
|
2.4
|
MATURITY DATE
|
11
|
|
2.5
|
EXTENSION TERM
|
11
|
|
2.6
|
CREDIT FOR PRINCIPAL PAYMENTS; LIMITATIONS ON
PREPAYMENT
|
11
|
|
2.7
|
BORROWER’S LIABILITY
|
12
|
|
2.8
|
SALE OF PROPERTIES AND UNENCUMBERED PROPERTIES
|
12
|
|
2.9
|
CASH MANAGEMENT; MANDATORY PRINCIPAL AND INTEREST
PAYMENTS
|
13
|
|
|
|
|
ARTICLE 3. DISBURSMENT
|
15
|
||
|
|
|
|
|
3.1
|
CONDITIONS PRECEDENT
|
15
|
|
|
|
|
ARTICLE 4. DUE ON SALE/ENCUMBERANCE
|
17
|
||
|
|
|
|
|
4.1
|
PROPERTY TRANSFERS
|
17
|
|
4.2
|
EQUITY TRANSFERS
|
17
|
|
4.3
|
THIS ARTICLE CONTROLS
|
18
|
|
|
|
|
ARTICLE 5.
INSURANCE
|
18
|
||
|
|
|
|
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
|
18
|
||
|
|
|
|
|
6.1
|
AUTHORITY/ENFORCEABILITY
|
19
|
|
6.2
|
BINDING OBLIGATIONS
|
19
|
|
6.3
|
ORGANIZATIONAL DOCUMENTS
|
19
|
|
6.4
|
NO VIOLATION
|
19
|
|
6.5
|
COMPLIANCE WITH LAWS
|
19
|
|
6.6
|
LITIGATION
|
20
|
|
6.7
|
FINANCIAL CONDITION
|
20
|
|
6.8
|
NO MATERIAL ADVERSE CHANGE
|
20
|
|
6.9
|
ACCURACY
|
20
|
|
6.10
|
AMERICANS WITH DISABILITIES ACT COMPLIANCE
|
20
|
|
6.11
|
BUSINESS LOAN
|
20
|
|
6.13
|
TITLE TO ASSETS; NO LIENS
|
21
|
|
6.14
|
COMPLIANCE WITH ANTI-TERRORISM, EMBARGO, SANCTIONS AND ANTI-MONEY LAUNDERING LAWS
|
21
|
|
6.15
|
FEDERAL INCOME TAX CLASSIFICATION
|
22
|
|
6.16
|
SINGLE PURPOSE ENTITY
|
22
|
|
6.16
|
UNENCUMBERED PROPERTIES
|
22
|
|
|
|
|
ARTICLE 7. HAZARDOUS MATERIALS
|
22
|
||
|
|
|
|
|
7.1
|
SPECIAL REPRESENTATIONS AND WARRANTIES
|
22
|
|
7.2
|
HAZARDOUS MATERIALS COVENANTS
|
22
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
i
|
|
|
7.3
|
INSPECTION BY LENDER
|
23
|
|
7.4
|
HAZARDOUS MATERIALS INDEMNITY
|
23
|
|
|
|
|
ARTICLE 8. COVENANTS OF BORROWER
|
24
|
||
|
|
|
|
|
8.1
|
FEES AND EXPENSES
|
24
|
|
8.2
|
ERISA COMPLIANCE
|
24
|
|
8.3
|
MANAGEMENT OF PROPERTY; BROKERAGE AGREEMENTS
|
25
|
|
8.4
|
APPROVAL OF LEASES
|
25
|
|
8.5
|
OPINION OF LEGAL COUNSEL; GOOD STANDING CERTIFICATES
|
25
|
|
8.6
|
FURTHER ASSURANCES
|
25
|
|
8.7
|
ASSIGNMENT
|
25
|
|
8.8
|
EXISTENCE
|
26
|
|
8.9
|
QUALIFICATION, NAME
|
26
|
|
8.10
|
COMPLIANCE WITH LAWS, ETC
|
26
|
|
8.11
|
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY
|
26
|
|
8.12
|
USE OF PROCEEDS
|
26
|
|
8.13
|
PAYMENT OF TAXES AND CLAIMS
|
26
|
|
8.14
|
MAINTENANCE OF PROPERTIES
|
27
|
|
8.15
|
MASTER LEASE
|
27
|
|
8.15
|
UNENCUMBERED PROPERTIES
|
27
|
|
8.15
|
INTEREST RATE CAP AGREEMENT
|
27
|
|
|
|
|
ARTICLE 9. REPORTING COVENANTS; BLOCKED CONDITION
|
27
|
||
|
|
|
|
|
9.1
|
FINANCIAL REPORTING
|
27
|
|
9.2
|
LEASE REPORTS
|
28
|
|
9.3
|
BOOKS AND RECORDS
|
28
|
|
9.4
|
LEASE GUARANTOR PERFORMANCE COVENANT
|
29
|
|
9.5
|
BLOCKED CONDITION
|
29
|
|
|
|
|
ARTICLE 10. DEFAULTS AND REMEDIES
|
29
|
||
|
|
|
|
|
10.1
|
DEFAULT
|
30
|
|
10.2
|
ACCELERATION
|
32
|
|
10.3
|
RIGHTS AND REMEDIES
|
33
|
|
10.4
|
DISBURSEMENTS TO THIRD PARTIES
|
33
|
|
10.5
|
REPAYMENT OF FUNDS ADVANCED
|
33
|
|
10.6
|
RIGHTS CUMULATIVE, NO WAIVER
|
33
|
|
|
|
|
ARTICLE 11. MISCELLANEOUS PROVISIONS
|
33
|
||
|
|
|
|
|
11.1
|
INDEMNITY
|
33
|
|
11.2
|
FORM OF DOCUMENTS
|
34
|
|
11.3
|
NO THIRD PARTIES BENEFITED
|
35
|
|
11.4
|
NOTICES
|
35
|
|
11.6
|
ACTIONS
|
36
|
|
11.7
|
RIGHT OF CONTEST
|
36
|
|
11.8
|
RELATIONSHIP OF PARTIES
|
36
|
|
11.9
|
DELAY OUTSIDE LENDER’S CONTROL
|
36
|
|
11.10
|
ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT
|
36
|
|
11.11
|
IMMEDIATELY AVAILABLE FUNDS
|
37
|
|
11.12
|
LENDER’S CONSENT
|
37
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
ii
|
|
|
11.13
|
LOAN SALES AND PARTICIPATION; DISCLOSURE OF INFORMATION
|
37
|
|
11.14
|
TAX SERVICE
|
38
|
|
11.15
|
AUTHORIZATION TO FILE FINANCING STATEMENTS
|
38
|
|
11.16
|
ADVERTISING
|
39
|
|
11.17
|
DISBURSEMENT OF LOAN PROCEEDS; LIMITATION OF
LIABILITY
|
39
|
|
11.18
|
WAIVER OF RIGHT TO TRIAL BY JURY
|
39
|
|
11.19
|
SEVERABILITY
|
39
|
|
11.20
|
TAX FORMS
|
39
|
|
11.21
|
SUCCESSORS AND ASSIGNS
|
40
|
|
11.22
|
AMENDMENTS; ETC
|
40
|
|
11.23
|
TIME
|
40
|
|
11.24
|
HEADINGS
|
40
|
|
11.25
|
GOVERNING LAW; JURISDICTION
|
41
|
|
11.26
|
INTEGRATION; INTERPRETATION
|
41
|
|
11.27
|
COUNTERPARTS
|
41
|
|
11.28
|
NO USURY
|
42
|
|
11.29
|
BRING DOWN OF REPRESENTATIONS; SURVIVAL OF
WARRANTIES; CUMULATIVE
|
42
|
|
11.30
|
EXHIBITS AND SCHEDULES
|
42
|
Exhibit A
|
List of Properties and Allocated Loan Amounts
|
Exhibit B
|
List of Loan Documents
|
Exhibit C
|
Notice of [Sale][Refinance] and Certificate
|
Schedule 1.1
|
Preferential Rights
|
Schedule 6.3
|
Organizational Chart
|
Schedule 6.6
|
Litigation Disclosures
|
Schedule 11.4
|
Addresses for Notice
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
iii
|
|
A.
|
Borrower desires to finance the one hundred forty eight (148) properties described on
Exhibit A
attached hereto (all such properties, together with all Improvements and personal property owned by Borrower thereon, collectively, the “
Properties
”).
|
B.
|
Borrower desires to borrow from Lender, and Lender agrees to loan to Borrower, the amounts described herein.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
2
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
3
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
4
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
5
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
6
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
7
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
8
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
9
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
10
|
|
(a)
|
Any payment made upon the outstanding principal balance of the Loan shall be credited as of the Business Day received, provided such payment is received by Lender no later than 2:00 p.m. (Pacific Standard Time or Pacific Daylight Time, as applicable) and constitutes immediately available funds. Any principal payment received after said time or which
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
11
|
|
(b)
|
During the Initial Term or any Extension Term, Borrower may prepay the Loan, in whole or in part, for any reason, at any time, including (i) to effect a cure of a Blocked Condition hereunder, (ii) in connection with a casualty or condemnation pursuant to
Section 2.9(c)
hereof, (iii) in connection with a Property Sale pursuant to
Section 2.8
hereof, or (iv) in connection with the exercise of the Extension Option pursuant to
Section 2.5
hereof.
|
(c)
|
Principal of the Loan that is prepaid may not be reborrowed.
|
(1)
|
Borrower shall provide Lender with not less than seven (7) days prior written notice of the intended sale or refinance (“
Notice of Sale
”), which notice shall be in the form of
Exhibit C
attached hereto and shall include delivery to Lender of all of the documents and items contemplated to be delivered therein as set forth therein.
|
(2)
|
Borrower shall have deposited with Lender, one hundred percent (100%) of the Release Proceeds, such Release Proceeds to be held and disbursed in accordance with the terms of the Cash Management Agreement and pursuant to the terms as outlined in
Section 2.9(b)
below.
|
(3)
|
Upon Lender’s receipt of the Release Proceeds, Lender shall deliver to Borrower or to Borrower’s designated escrow agent an executed partial release of lien or mortgage satisfaction in such form as may be required in the applicable jurisdiction, releasing the Sale Property from the lien of the Security Documents, and Borrower or Borrower’s designated escrow agent shall be free to record said partial release of lien or satisfaction document.
|
(4)
|
Borrower and Tenant shall have (1) entered into an amendment to the Master Lease to release and remove the Sale Property from the Master Lease and (2) entered into a new lease for such Sale Property with an initial term (excluding extension options) of at least fifteen (15) years; provided, however, that Lender shall permit such new leases for up to twenty (20) of such Sale Properties to have an initial term (excluding extension options) of less than fifteen (15) years.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
12
|
|
(i)
|
Borrower shall provide Lender with not less than seven (7) days prior written notice of such intended sale, which notice shall be in the form of
Exhibit C-1
attached hereto and shall include delivery to Lender of all of the documents and items contained therein as set forth therein.
|
(ii)
|
Borrower shall have deposited with Lender either (i) in the absence of a Cash Sweep Period, fifty percent (50%) of the Unencumbered Property Net Sales Proceeds or (ii) during a Cash Sweep Period, one hundred percent (100%) of the Unencumbered Property Net Sales Proceeds (the “
Unencumbered Property Release Amount
”), such Unencumbered Property Release Amount to be held and disbursed in accordance with the terms of the Cash Management Agreement and applied by Lender to pay down the Outstanding Loan Balance.
|
(iii)
|
Upon Lender’s receipt of the Unencumbered Property Release Amount, Lender shall deliver to Borrower or to Borrower’s designated escrow agent an executed release of the Negative Pledge for such Unencumbered Property in such form as may be required in the applicable jurisdiction, releasing such Negative Pledge, and Borrower or Borrower’s designated escrow agent shall be free to record such release.
|
(a)
|
Rental Income; Loss Proceeds and Impounds
. Borrower shall enter into the Cash Management Agreement, which shall govern the collection, holding, application, and disbursement of all Rental Income, Loss Proceeds, Impounds and Release Price.
|
(b)
|
Net Sales Proceeds; Release Price; Release Proceeds
. Borrower shall deposit with the Depository, pursuant to the terms and provisions of the Cash Management Agreement,
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
13
|
|
(c)
|
Casualty and Condemnation Proceeds
. Subject to any restrictions contained in, and rights of Tenant under, the Master Lease and any requirements of the Mortgages, all casualty and condemnation proceeds payable to Borrower in connection with any Property shall be deposited with the Depository under the Cash Management Agreement to be held and disbursed as set forth therein. Notwithstanding anything to the contrary set forth herein, or in any of the Loan Documents, with respect to such casualty and condemnation proceeds payable to Borrower, the provisions of the Master Lease shall control over any inconsistent provision contained herein or in any of the other Loan Documents; provided, however, that in the event Borrower holds casualty and condemnation proceeds pursuant to the Master Lease in an aggregate amount in excess of $25,000,000.00 at any time, the amount in excess of $25,000,000.00 shall be deposited with the Depository under the Cash Management Agreement to be held and disbursed as set forth therein.
|
(d)
|
Tenant Impound Requirements
. Subject to any restrictions contained in, and rights of Tenant under, the Master Lease, any amounts required to be escrowed with the Depository under the Cash Management Agreement shall be held and disbursed as set forth therein
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
14
|
|
(e)
|
Grant of Security Interest; Application of Funds
. As security for payment of the Loan and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender, a security interest in, all Borrower’s right, title and interest in and to all Impounds and Account Funds. Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Account Funds, or Accounts, or permit any lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements to be filed thereon, except those naming Lender as the secured party, to be filed with respect thereto; provided that in no event shall the foregoing restrict such activities regarding Borrower’s Operating Account. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence and during the continuance of a Default, subject to any restrictions contained in, and rights of Tenant under, the Master Lease, Lender may apply all or any part of the Account Funds against the amounts outstanding under the Loan in any order and in any manner as Lender shall elect (except as otherwise specifically set forth in the Cash Management Agreement) in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the liens and security interests securing the Loan or exercise its other rights under the Loan Documents. The Account Funds shall not constitute trust funds and may be commingled with other monies held by Lender except as otherwise set forth in the Cash Management Agreement.
|
(a)
|
There exists no Default or Potential Default; and
|
(b)
|
Lender shall have received all Loan Documents, including without limitation, the Security Documents, satisfactory opinions of counsel to Borrower as to authority, legality, validity and the binding effect and enforceability of the Loan Documents, and such other documents, instruments, policies, and forms of evidence or other materials, including mortgage loan title policies or proforma mortgage loan title policies, surveys, zoning reports, UCC lien/bankruptcy/litigation searches, flood hazard certifications, evidence of property insurance and any and all reports, data, certificates and documents customarily and reasonably required by Lender, in form and substance as reasonably requested by Lender under the terms of this Agreement or any of the other Loan Documents; and
|
(c)
|
Lender shall have reviewed and approved Borrower’s Organizational Documents and capital structure, including evidence to Lender’s reasonable satisfaction that Borrower satisfies the Single Purpose Entity Requirements as set forth in this Agreement, as well as resolutions of Borrower and Guarantor; and
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
15
|
|
(d)
|
Lender shall have received satisfactory evidence that the original principal amount of the Loan is in an amount which is not greater than fifty percent (50%) of the aggregate value of the Properties as reflected by the appraisals described in
subsection (e)
below; and
|
(e)
|
Lender shall have received satisfactory appraisals and shall have completed satisfactory property inspections, in number and in form and substance satisfactory to Lender; and
|
(f)
|
Lender shall have received all of its internal credit approvals as customary in connection with loans of a nature similar to the Loan; and
|
(g)
|
There shall not have occurred (x) a material adverse change in the business, assets, properties, liabilities (actual or contingent), operations or condition (financial or otherwise) of Borrower, Guarantor, Lease Guarantor or the Properties since the date of that certain Term Sheet dated December 3, 2015 by and between Lender and Borrower or (y) a change in the facts and information regarding such persons or entities or Properties as represented to date, which change would reasonably be expected to have a Material Adverse Effect; and
|
(h)
|
As determined by Lender on a proforma basis after giving effect to the transactions contemplated hereby, the Total Net Leverage Ratio shall not be greater than 2.50:1; and
|
(i)
|
The absence of any action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect; and
|
(j)
|
Lender shall have completed a due diligence investigation of Borrower, Guarantor and Lease Guarantor in each case in scope, and with results, reasonably satisfactory to Lender and shall have been given such access to the management, records, books of account, contracts and properties of Lease Guarantor, Borrower and Guarantor and its subsidiaries, if any, and shall have received such financial, business and other information regarding Borrower, Guarantor and Lease Guarantor as Lender shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, the most recently completed annual financial statements of Lease Guarantor, interim financial statements of Lease Guarantor dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event Lender’s due diligence review reveals material changes since such financial statements, as of the most recently completed month for which such statements are available); and
|
(k)
|
Lender shall have received, in form and substance reasonably satisfactory to it, all Environmental Reports with respect to the Properties and such other reports, audits or certifications available to Borrower as Lender may reasonably request; and
|
(l)
|
Lender shall have received certifications as to the financial condition and solvency of Lease Guarantor (after giving effect to the transactions contemplated hereby and the incurrence of indebtedness related hereto) from the chief financial officer of Lease Guarantor; and
|
(m)
|
Lender shall have reviewed and approved the Master Lease, as amended; and
|
(n)
|
Lender shall have reviewed and approved the Lease Guaranty; and
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
16
|
|
(o)
|
Lender shall have received an estoppel certificate from Tenant, as well as a subordination, non-disturbance and attornment agreement from Tenant, in form and content reasonably satisfactory to Lender; and
|
(p)
|
Lender shall have approved the amount, the type and terms and conditions of all insurance maintained or required by Lender to be maintained by Borrower and Tenant, and Lender shall have received such endorsements naming Lender as an additional insured or loss payee thereunder; and
|
(q)
|
All recordable Security Documents and UCC-1 financing statements shall have been delivered to the Title Company for recordation and any and all accrued fees and expenses of Lender (including those of its counsel) shall have been itemized on a settlement or closing statement approved by Lender to be paid by Borrower on the Closing Date (without prejudice to the right of Lender for reimbursement at a later date for any amounts not so itemized or invoiced at such time); and
|
(r)
|
Lender shall have received verification of the involvement of any broker in connection with the transactions contemplated herein and any such broker (as well as any agreements with Borrower in connection with the transactions contemplated herein) shall be satisfactory to Lender, in its reasonable discretion; and
|
(s)
|
Borrower shall have paid to Lender the Loan Fee.
|
(a)
|
Prohibited Property Transfers
. Subject to
Section 4.1(b)
, Borrower shall not cause or permit any Transfer of all or any part of or any direct legal or beneficial interest in the Property or the Collateral (collectively, a “
Prohibited Property Transfer
”), including, without limitation, (A) the Transfer of all or any part of Borrower’s right, title and interest in and to (1) the Property, (2) the Master Lease, or (3) except as permitted under the Cash Management Agreement, any rents, issues, deposits and profits of the Property, including, without limitation, all amounts payable and all rights and benefits accruing to Lender under the Master Lease, (B) the Transfer by Tenant of its leasehold interest under the Master Lease (except as expressly permitted pursuant to the terms of such Master Lease) or (C) as a result of any right of first offer, right of first refusal, purchase option right, right of reverter, and any similar right to acquire fee or leasehold title to any Property.
|
(b)
|
Permitted Property Transfers
. Notwithstanding the foregoing, none of the following Transfers shall be deemed to be a Prohibited Property Transfer: (A) a Transfer which is expressly permitted under this Agreement, the Note or other Loan Documents; (B) any transfer or assignment by Tenant or by any direct or indirect beneficial owner in Tenant, or any sublease, in each case to the extent permitted by the Master Lease, (C) a lease which is permitted under the Mortgages; and (D) the sale of inventory in the ordinary course of the business at the Property.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
17
|
|
(a)
|
Prohibited Equity Transfers
. Subject to
Section 4.2(b)
below, Borrower shall not cause or permit any Transfer of any direct legal or beneficial interest in Borrower or Member (collectively, a “
Prohibited Equity Transfer
”), including without limitation, (A) if Borrower or Member is a corporation, any merger, consolidation or other Transfer of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (B) if Borrower or Member is a limited partnership, limited liability partnership, general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new limited partnership interests; (C) if Borrower or Member is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member), or the Transfer of a non-managing limited liability company interest or the creation or issuance of new non-managing limited liability company interests; or (D) if Borrower or Member is a trust, any merger, consolidation or other Transfer of any legal or beneficial interest in Borrower or Member or the creation or issuance of new legal or beneficial interests. Notwithstanding the foregoing, in no event shall a Transfer or proposed Transfer of any direct or indirect legal or beneficial interest in Borrower (whether by a Restricted Party or a non-Restricted Party) be done in a manner that would violate the Patriot Act.
|
(b)
|
Permitted Equity Transfers
. Notwithstanding the foregoing, none of the following Transfers shall be deemed to be a Prohibited Equity Transfer: (A) a Transfer by a natural person who is a member, partner or shareholder of a Restricted Party to a revocable inter vivos trust having such natural person as both trustor and trustee of such trust and one or more immediate family members of such natural person as the sole beneficiaries of such trust; (B) a Transfer by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party to one or more family members of such member, partner or shareholder; and (C) a Transfer of 100% of a Restricted Party’s interests to one or more wholly owned subsidiaries where, after giving effect to such Transfer, Guarantor shall retain direct or indirect control over such Restricted Party; provided, that, in all of the foregoing cases shall such Transfer be done in a manner that would not violate the Patriot Act.
|
(c)
|
Entity Status
. Nothing contained in this
Section 4.2
shall be construed to permit any Transfer which would result in a breach of any representation, warranty or covenant of Borrower in the Loan Agreement.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
18
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
19
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
20
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
21
|
|
(a)
|
Hazardous Materials
. Except as set forth in the Environmental Reports, no Property is or has been a site for the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of any Hazardous Materials in violation of applicable Hazardous Materials Laws.
|
(b)
|
Hazardous Materials Laws
. Other than as set forth in the Environmental Reports or in the Disclosure Agreement, the Properties are in compliance in all material respects with applicable Hazardous Materials Laws.
|
(c)
|
Hazardous Materials Claims
. Other than as set forth in the Environmental Reports or in the Disclosure Agreement, there are no Hazardous Materials Claims.
|
(a)
|
No Hazardous Activities
. Except in material compliance with Hazardous Materials Laws, Borrower shall not cause or, by agreement, permit any third party to cause or permit, any Property to be used as a site for the use, generation, manufacture, storage, treatment,
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
22
|
|
(b)
|
Compliance
. Borrower shall comply and cause each Property to comply with all Hazardous Materials Laws; provided that with respect to existing investigation, monitoring and remediation of violations of Hazardous Materials Laws disclosed in the Environmental Reports or in the Disclosure Agreement or subsequent violations disclosed promptly to Lender by Borrower in accordance with the Hazardous Materials Indemnity Agreement, Borrower shall not be deemed to be in breach of this
Section 7.2(b)
by reason of such disclosures for so long as existing or subsequent investigation, monitoring and/or remediation is conducted in accordance with the requirements of Hazardous Materials Laws or any judgment, consent decree, settlement or compromise in respect thereof.
|
(c)
|
Remedial Action
. In response to actual knowledge by Borrower of the presence of any Hazardous Materials on, under or about any Property in violation of Hazardous Materials Laws, Borrower shall immediately take (or cause to be taken) all Remediation required by any Hazardous Materials Laws in respect to any Hazardous Materials Claims in accordance with and as set forth in the Hazardous Materials Indemnity Agreement.
|
(d)
|
Monitoring
. In response to actual knowledge by Borrower of a Release at any Property in violation of Hazardous Materials Laws, Borrower shall comply (or cause Tenant or any other responsible person to comply) with Hazardous Materials Laws regarding required Remediation as set forth in the Hazardous Materials Indemnity Agreement.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
23
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
24
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
25
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
26
|
|
(i)
|
reduce any rent or other sums due from Tenant under the Master Lease;
|
(ii)
|
terminate or modify or amend any of the material terms of the Master Lease or the Lease Guaranty;
|
(iii)
|
grant to Tenant any consent of Borrower required by the Master Lease as to any material obligation of Tenant under the Master Lease;
|
(iv)
|
release or discharge Tenant or Lease Guarantor from any material obligation under the Master Lease or the Lease Guaranty; or
|
(v)
|
subordinate or agree to subordinate the Master Lease to any deed of trust, deed to secure debt or mortgage other than the Mortgages.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
27
|
|
(a)
|
Annual Reporting
. Not later than thirty (30) days after Lender’s request therefor, which shall be no sooner than one hundred twenty (120) days after the end of the applicable calendar year, Borrower shall deliver to Lender unaudited annual financial statements (including, without limitation, income statements and balance sheets) for Borrower, a Borrower-prepared rent roll for the Properties covered by the Master Lease and an unaudited Guarantor-prepared balance sheet for Guarantor, certified by an authorized officer of such party.
|
(b)
|
Quarterly Reporting
. Not later than thirty (30) days after Lender’s request therefor, which shall be no sooner than sixty (60) days after the end of each calendar quarter, Borrower shall deliver to Lender (i) unaudited quarterly financial statements (including, without limitation, income statements and balance sheets) for Borrower and a Borrower-prepared rent roll for the Properties covered by the Master Lease, certified by an authorized officer of Borrower and (ii) a certificate signed by an authorized officer of Borrower stating that, since the date of the quarterly financial statements for the immediately prior period, there have been no material amendments to the Master Lease and no Master Lease Default exists and is continuing (or, to the extent such certification cannot be made, providing detailed information with respect to any such amendment and/or Master Lease Default).
|
(c)
|
Monthly Reporting
. Not later than fifteen (15) days after Lender’s request therefor, which shall be no sooner than twenty (20) days after the end of each month, Borrower agrees to deliver to Lender Borrower-prepared progress reports with respect to the Sale of the Properties, including a schedule of sold Properties, a schedule of executed LOI’s and agreements of sale with respect to the Sale of any of the unsold Properties and a schedule of all Properties currently listed for sale.
|
(d)
|
General Reporting
. From time to time during the term of the Loan, upon Lender’s notice of any material adverse change in Tenant’s financial condition, Borrower shall deliver to Lender such other existing financial and/or other information as reasonably requested by Lender and subject to the terms of the Master Lease, it being agreed that Borrower shall not be required to create, or cause Lease Guarantor to create, any new financial or other reports for such purposes. Except as otherwise agreed to by Lender, all such financial information shall be prepared in accordance with GAAP. Borrower agrees to deliver to Lender any reports, financial or otherwise, received from Tenant or Lease Guarantor.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
28
|
|
(a)
|
a Default occurs and is continuing under this Agreement and the other Loan Documents;
|
(b)
|
the Lease Guarantor Performance Threshold is not met as of a Determination Date (whereupon the Blocked Condition shall continue until such time as the Lease Guarantor Performance Threshold is met on a subsequent Determination Date);
|
(c)
|
a Lease Guarantor Rating Downgrade has occurred as of a Determination Date (whereupon the Blocked Condition shall continue until such time as such ratings are upgraded and such Lease Guarantor Rating Downgrade is no longer continuing on a subsequent Determination Date); or
|
(d)
|
if after the end of the twelfth (12th) full calendar month of the Initial Term beginning with the first (1st) day of the thirteenth (13th) full calendar month thereof the then Outstanding Loan Balance exceeds the following maximum thresholds (“
Maximum Threshold
”); provided, however, if the Extension Option is not exercised, the then Outstanding Loan Balance and all other amounts then due and payable hereunder and under the other Loan Documents shall be payable on the Initial Maturity Date. If the Extension Option is exercised, the then Outstanding Loan Balance and all other amounts then due and payable hereunder and under the other Loan Documents shall be payable on the Extension Maturity Date:
|
Months 13-18:
|
|
$210,000,000.00
|
|
Months 19-24:
|
|
$160,000,000.00
|
|
Months 25-30:
|
|
$110,000,000.00
|
|
Months 31-35:
|
|
$60,000,000.00
|
|
Maturity
|
|
$0.00
|
|
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
29
|
|
(a)
|
Optional Default
. An “
Optional Default
” shall occur, at Lender’s option (exercised in its sole and absolute discretion), upon the occurrence of any of the following events:
|
(i)
|
Monetary
. Borrower shall fail to (aa) pay when due any sums which by the express terms of this Agreement and the other Loan Documents require immediate payment without any grace period or sums which are payable on the Maturity Date, or (bb) pay within ten (10) days after written notice from Lender any other sums payable under the Note, this Agreement or any of the other Loan Documents, excluding, with respect to (aa) or (bb) any monthly principal or interest due under the Note set forth in
Section 10.1(b)(i)
below, including without limitation, any monthly payment due under the Note.
|
(ii)
|
Failure to Perform
. Borrower shall fail to observe, perform or discharge any of Borrower’s obligations, covenants, conditions or agreements, other than Borrower’s payment obligations, under the Note, this Agreement or any of the other Loan Documents, and such failure shall remain uncured for thirty (30) days after written notice thereof shall have been given to Borrower by Lender; provided, however, that if such Default is susceptible of cure but cannot reasonably be cured within such 30-day period, and provided further that Borrower shall have commenced to cure such Default within such 30-day period shall and thereafter diligently and expeditiously proceed to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed sixty (60) days, unless such additional period is extended by a written agreement between Borrower and Lender.
|
(iii)
|
Representations and Warranties
. Any representation, warranty, certificate or other statement (financial or otherwise) made or furnished by or on behalf of Borrower or Guarantor, to Lender or in connection with any of the Loan Documents, or as an inducement to Lender to make the Loan, shall be false, incorrect, incomplete or misleading in any material respect when made or furnished; provided, however that if such representation, warranty, certificate or other statement (financial or otherwise) is deemed to be incorrect, incomplete or misleading to Lender, Borrower shall have a period not to exceed five (5) Business Days to render such representation, warranty, certificate or other statement (financial or otherwise) correct, complete or not misleading. This
subparagraph 10.1(a)(iii)
is not intended to amend or modify any knowledge qualifications set forth in this Agreement or the other Loan Documents.
|
(iv)
|
Seizure; Attachment
. Seizure of any material portion (as reasonably determined by Lender) of the Properties; or the sequestration or attachment of, or levy or execution upon a material portion of the Properties, the Collateral or any other collateral provided by Borrower under any of the Loan Documents, or any material portion of the other assets of Borrower, which sequestration, attachment, levy or execution is not released or dismissed within forty-five (45) days after its occurrence, unless such seizure, sequestration, attachment, levy, or execution is
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
30
|
|
(v)
|
Uninsured Casualty
. The occurrence of an uninsured casualty with respect to any material portion (as reasonably determined by Lender) of the Properties unless: (aa) no other Default has occurred and is continuing at the time of such casualty; (bb) Borrower promptly notifies Lender of the occurrence of such casualty; and (cc) not more than forty-five (45) days after the occurrence of such casualty, Borrower commences the repair or restoration of the Property (including, without limitation, taxes, financing charges, insurance and rent during the repair period). Borrower acknowledges that the specific conditions described above are reasonable.
|
(b)
|
Automatic Default
. An “
Automatic Default
” shall occur automatically upon the occurrence of any of the following events:
|
(i)
|
Monetary
. Borrower shall fail to pay when due any monthly payment of principal and interest due under the Note.
|
(ii)
|
Voluntary Bankruptcy, Insolvency, Dissolution
. (aa) Borrower’s filing a petition for relief under the Bankruptcy Code, or under any other present or future state or federal law regarding bankruptcy, reorganization or other relief to debtors (collectively, “
Debtor Relief Law
”); or (bb) Borrower’s filing any pleading in any involuntary proceeding under the Bankruptcy Code or other Debtor Relief Law which admits the jurisdiction of a court to regulate Borrower or the Property or the petition’s material allegations regarding Borrower’s insolvency; or (cc) Borrower’s making a general assignment for the benefit of creditors; or (dd) Borrower’s applying for the appointment of a receiver, trustee, custodian or liquidator of Borrower or any of its property; or (ee) the filing by Borrower of a petition seeking the liquidation or dissolution of Borrower or the commencement of any other procedure by Borrower to liquidate or dissolve Borrower.
|
(iii)
|
Involuntary Bankruptcy
. Borrower’s failure to effect a full dismissal of any involuntary petition under the Bankruptcy Code or other Debtor Relief Law that is filed against Borrower prior to the earlier of the entry of any order granting relief sought in the involuntary petition or ninety (60) days after the date of filing of the petition.
|
(iv)
|
Member; Guarantors
. The occurrence of an event specified in
subsections (ii)
or
(iii)
as to Member or Guarantor.
|
(v)
|
Master Lease Default
. The occurrence and continuation of a Master Lease Default.
|
(vi)
|
Lease Guarantor Default
. The occurrence and continuation of an event of default, however described, under the Lease Guaranty.
|
(vii)
|
Prohibited Property Transfer
. Borrower consummates a Prohibited Property Transfer without Lender’s prior consent and in violation of the terms and conditions of
Section 4.1(a)
hereof.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
31
|
|
(viii)
|
Prohibited Equity Transfer
. Borrower consummates a Prohibited Equity Transfer without Lender’s prior consent and in violation of the terms and conditions of
Section 4.2 (a)
hereof.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
32
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
33
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
34
|
|
(a)
|
General
. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by electronic mail transmission). All such written notices shall be mailed (registered or certified) or delivered to the applicable address, or (subject to
subsection (c)
below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
|
(i)
|
if to Borrower or Guarantor, to the address, electronic mail address or telephone number specified for such Person on
Schedule 11.4
or to such other address, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
|
(ii)
|
if to Lender, to the address, electronic mail address or telephone number specified for Lender on
Schedule 11.4
or to such other address, electronic mail address or telephone number as shall be designated by Lender in a notice to Borrower.
|
(b)
|
Effectiveness of Email Documents and Signatures
. Loan Documents may be transmitted and/or signed by electronic mail. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually-signed originals and shall be binding on Borrower and Lender. Lender may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any electronically mailed document or signature.
|
(c)
|
Reliance by Lender
. Lender shall be entitled to rely and act upon any notices given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof, so long as, in each case, such notice is issued by an authorized officer or other authorized person of Borrower or by a person reasonably believed in good faith
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
35
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
36
|
|
(a)
|
Borrower hereby acknowledges that Lender, in one or more transactions may, at no cost to Borrower or Guarantor, and subject to Borrower’s and Guarantor’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed (unless a Default has occurred and is continuing in which event no such consent shall be required) (a) sell or otherwise transfer the Loan or any portion thereof one or more times (excluding selling or assigning its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer) and (b) syndicate or otherwise sell participation interests in the Loan one or more times (the transactions referred to in
clauses (a) and (b)
above, each a “
Secondary Market Transaction
” and collectively “
Secondary Market Transactions
”). Lender may disseminate to any actual or potential purchasers, assignees or participants (and to any investment banking firms, rating agencies, accounting firms, law firms and other third party advisory firms and investors involved with the Loan and the Loan Documents or the applicable sale, assignment or participation) all documents and financial and other information then possessed by or known to Lender with respect to: (a) each Property and its operation; and (b) any party connected with the Loan, subject to the provisions of
Section 11.13(b)
; provided that, the dissemination of any financial or other information with respect to Borrower or Guarantor by Lender shall be subject to Borrower’s or Guarantor’s prior written consent at all times (which may be provided or withheld at Borrower’s or Guarantor’s sole discretion). Borrower shall, within thirty (30) days after request by Lender, deliver to Lender an estoppel certificate for the benefit of Lender and any other party designated by Lender verifying the status and terms of the Loan, in form and content satisfactory to Lender. Lender shall pay all Borrower’s and Guarantor’s reasonable costs and expenses incurred in connection with any Secondary Market Transaction.
|
(b)
|
Notwithstanding the foregoing as contained in
Section 11.13(a)
above, or any provision of any other Loan Document, Lender agrees (i) to maintain the confidentiality of the Information (as defined below) and (ii) to use such Information exclusively for the purposes of administering and enforcing its rights under the Loan Documents (the “
Permitted Use
”), except that Information may be disclosed (A) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and its Permitted Use, and instructed to keep such Information confidential and to use it only for Permitted Uses), (B) to the extent requested by any regulatory authority having authority over such Person (including any internal or external self-regulatory authority), (C) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (D) to any other party hereto, provided that information regarding Guarantor may not be disclosed to Tenant or Lease Guarantor, (E) in connection with the exercise of any remedies hereunder or under
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
37
|
|
(c)
|
For purposes of this Section, “
Information
” means all information received from Borrower or Guarantor or any other Person, relating to Borrower, Guarantor, Tenant or any direct or indirect owner or manager of Borrower, Guarantor or Tenant (a “
Guarantor Party
”), other than any such information that is available to Lender on a non-confidential basis prior to disclosure by Borrower or a Guarantor Party or such Person. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
|
(d)
|
In connection with any such sale or assignment referenced in
Section 11.13(a)
, as reasonably requested by Lender, Borrower shall enter into such administrative amendments to the this Agreement and the other Loan Documents as necessary to facilitate any such sale or assignment by Lender and to provide for Lender to act as administrative agent on behalf of the holders of the Loans after giving effect to such sales or assignments.
|
(e)
|
The provisions of this
Section 11.13
shall control over any contrary or inconsistent provision in any other Loan Document.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
38
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
39
|
|
(a)
|
Intentionally Omitted.
|
(b)
|
If Lender is a “United States person” within the meaning of Section 7701(a)(30) of the Code, it shall deliver to Borrower two duly signed completed copies of IRS Form W‑9 or any successor form required to establish an exemption from back-up withholding imposed by the Code prior to the receipt of payments hereunder or upon accepting an assignment of an interest herein, and from time to time thereafter as requested by Borrower. Lender shall promptly notify Borrower of any change in circumstances which would modify or render invalid any IRS Form W-9 previously delivered to Borrower.
|
(a)
|
Lender shall deliver to Borrower at the time or times prescribed by law and at such time or times reasonably requested by Borrower such documentation prescribed by applicable law (including as prescribed by Code Section 1471(b)(3)(C)(i)) and such additional documentation reasonably requested by Borrower as may be necessary for Borrower to comply with its obligations under FATCA and to determine that Lender has complied with Lender’s obligations under FATCA or to determine the amount to deduct and withhold from payments to Lender under any Loan Document.
|
(b)
|
To the extent determined by Borrower to be required by applicable law, Borrower may withhold from any interest, fees or other payment, or deemed payment, to Lender an amount equivalent to any applicable withholding tax (and in no event shall Borrower be liable to Lender for any taxes, withholdings or similar charges applicable with respect to any amount payable to Lender pursuant to the Loan Documents). If, due solely to Lender’s failure to comply with the provisions of
Section 11.20(a)
,
(b)
or
(c)
, as applicable to Lender, any Governmental Authority asserts that Borrower did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of Lender, then Lender shall indemnify Borrower therefor, as the case may be, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to Borrower or its members, as the case may be, under this Section, and costs and expenses (including reasonable attorney’s fees and expenses) of Borrower, as the case may be. Lender shall be responsible to Borrower pursuant to this Section with respect to any payments made by Lender to its participants. The obligation of Lender under this Section shall survive the assignment of rights by, or the replacement of, Lender, and the repayment, satisfaction or discharge of all Obligations under any Loan Document.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
40
|
|
(a)
|
THE PARTIES AGREE THAT THE STATE OF NEW YORK HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE VALIDITY AND THE ENFORCEABILITY OF ALL LOAN DOCUMENTS AND THE LOAN EVIDENCED HEREBY. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO § 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
|
(b)
|
ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK COUNTY, NEW YORK, AND EACH PARTY HERETO WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
41
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
42
|
|
|
LENDER:
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ Stephen Leon
|
|
Name:
|
Stephen Leon
|
|
Title:
|
Managing Director
|
Lender’s Address
:
WELLS FARGO BANK,
NATIONAL ASSOCIATION 1808 Aston Avenue, Suite 250 Carlsbad, California 92008 Attn.: Loan Administration Telephone: (760) 918-2700 |
|
|
With a copy to
:
Moore & Van Allen PLLC
100 North Tryon Street, Suite 4700 Charlotte, North Carolina 28202 Attn: Timothy W. Corrigan Telephone: (704) 331-1019 |
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
SIGNATUE PAGE
|
|
|
BORROWER:
|
|
|
|
|
|
NEW PRIVATE RESTAURANT PROPERTIES, LLC,
a Delaware limited liability company |
|
|
|
|
|
By:
|
/s/ Michael A’Hearn
|
|
Name:
|
Michael A’Hearn
|
|
Title:
|
Vice President and Treasurer
|
Borrower’s Address
:
New Private Restaurant Properties, LLC
2202 N. West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attn: Mike A’Hearn
Telephone: (813) 282-1225
|
|
|
With a copy to
:
Buchanan Ingersoll & Rooney PC
401 E. Jackson Street, Suite 2400 Tampa, Florida 33602-5236 Attn: Jeffrey C. Shannon Telephone: (813) 222-1122 |
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
SIGNATUE PAGE
|
|
|
Unit #
|
Brand
|
Address
|
City
|
ST
|
Allocated Loan
Amount
|
|
|
1264
|
OBS
|
2925 Ross Clark Drive
|
Dothan
|
AL
|
[***]
|
|
|
317
|
OBS
|
2600 E. Lucky Lane
|
Flagstaff
|
AZ
|
[***]
|
|
|
311
|
OBS
|
5605 W. Bell Road
|
Glendale
|
AZ
|
[***]
|
|
|
314
|
OBS
|
1650 South Clearview
|
Mesa
|
AZ
|
[***]
|
|
|
5301
|
CIG
|
1740 South Clearview
|
Mesa
|
AZ
|
[***]
|
|
|
326
|
OBS
|
1860 E. McKellips Road
|
Mesa
|
AZ
|
[***]
|
|
|
325
|
OBS
|
99 South Highway 92
|
Sierra Vista
|
AZ
|
[***]
|
|
|
613
|
OBS
|
807 E. Harmony Road
|
Fort Collins
|
CO
|
[***]
|
|
|
616
|
OBS
|
988 Dillon Road
|
Louisville
|
CO
|
[***]
|
|
|
2014/6052
|
OBS/CIG
|
1203-1205 Townsgate Court
|
Plant City
|
FL
|
[***]
|
|
|
1029
|
OBS
|
5710 Oakley Boulevard
|
Wesley Chapel
|
FL
|
[***]
|
|
|
2001
|
FPS
|
4322 W. Boy Scout Blvd.
|
Tampa
|
FL
|
[***]
|
|
|
1030
|
OBS
|
9773 San Jose Boulevard
|
Jacksonville
|
FL
|
[***]
|
|
|
1036
|
OBS
|
861 W. 23rd Street
|
Panama City
|
FL
|
[***]
|
|
|
6015
|
CIG
|
801 Providence Road
|
Brandon
|
FL
|
[***]
|
|
|
6020
|
CIG
|
3530 Tyrone Boulevard
|
Saint Petersburg
|
FL
|
[***]
|
|
|
1002
|
CIG
|
4320 N. Tamiami Trail
|
Naples
|
FL
|
[***]
|
|
|
2017/6048
|
OBS/CIG
|
11902-11950 Sheldon Road
|
Tampa
|
FL
|
[***]
|
|
|
6006
|
CIG
|
2501 University Drive
|
Coral Springs
|
FL
|
[***]
|
|
|
1022
|
OBS
|
3215 SW College Road
|
Ocala
|
FL
|
[***]
|
|
|
1023
|
OBS
|
11308 N. 56th Street
|
Temple Terrace
|
FL
|
[***]
|
|
|
1061
|
OBS
|
180 Hickman Drive
|
Sanford
|
FL
|
[***]
|
|
|
1024
|
OBS
|
6390 N. Lockwood Ridge Rd
|
Sarasota
|
FL
|
[***]
|
|
|
1026
|
OBS
|
1481 Tamiami Trail
|
Port Charlotte
|
FL
|
[***]
|
|
|
1033
|
OBS
|
1775 Wells Road
|
Orange Park
|
FL
|
[***]
|
|
|
1025
|
OBS
|
170 Cypress Gardens Blvd.
|
Winter Haven
|
FL
|
[***]
|
|
|
6007
|
CIG
|
60 Palmetto Avenue
|
Merritt Island
|
FL
|
[***]
|
|
|
2015
|
OBS
|
2225 Highway 44 West
|
Inverness
|
FL
|
[***]
|
|
|
1028
|
OBS
|
4905 Commercial Way
|
Spring Hill
|
FL
|
[***]
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A - PAGE
1
|
|
|
1063
|
OBS
|
9600 U.S. Highway 441
|
Leesburg
|
FL
|
[***]
|
|
|
1001
|
CIG
|
12990 S. Cleveland Avenue
|
Fort Myers
|
FL
|
[***]
|
|
|
6029
|
CIG
|
1285 US Highway 1
|
Vero Beach
|
FL
|
[***]
|
|
|
1008
|
CIG
|
2700 SE Federal Highway
|
Stuart
|
FL
|
[***]
|
|
|
6035
|
CIG
|
910 3rd Street SW
|
Winter Haven
|
FL
|
[***]
|
|
|
6013
|
CIG
|
4829 S. Florida Avenue
|
Lakeland
|
FL
|
[***]
|
|
|
1027
|
OBS
|
1642 NE Pine Island Road
|
Cape Coral
|
FL
|
[***]
|
|
|
1101
|
CIG
|
3913 River Place Drive
|
Macon
|
GA
|
[***]
|
|
|
1122
|
OBS
|
145 Celebration Drive
|
Suwanee
|
GA
|
[***]
|
|
|
1121
|
OBS
|
1188 Dogwood Drive
|
Conyers
|
GA
|
[***]
|
|
|
1120
|
OBS
|
6331 Douglas Boulevard
|
Douglasville
|
GA
|
[***]
|
|
|
1119
|
OBS
|
810 Ernest Barrett Pkwy.
|
Kennesaw
|
GA
|
[***]
|
|
|
1102
|
CIG
|
1160 Ernest Barrett Pkwy.
|
Kennesaw
|
GA
|
[***]
|
|
|
1133
|
OBS
|
11196 Abercorn Street
|
Savannah
|
GA
|
[***]
|
|
|
1108
|
CIG
|
1887 Mount Zion Road
|
Morrow
|
GA
|
[***]
|
|
|
1134
|
OBS
|
823 N. Westover Boulevard
|
Albany
|
GA
|
[***]
|
|
|
1123
|
OBS
|
655 Dawsonville Highway
|
Gainesville
|
GA
|
[***]
|
|
|
1135
|
OBS
|
1824 Club House Drive
|
Valdosta
|
GA
|
[***]
|
|
|
1125
|
OBS
|
3 Reinhardt College Pkwy.
|
Canton
|
GA
|
[***]
|
|
|
1614
|
OBS
|
4500 Southern Hills Drive
|
Sioux City
|
IA
|
[***]
|
|
|
1611
|
OBS
|
3939 1st Avenue SE
|
Cedar Rapids
|
IA
|
[***]
|
|
|
1416
|
OBS
|
15608 S. Harlem Avenue
|
Orland Park
|
IL
|
[***]
|
|
|
1414
|
OBS
|
2855 W. Ogden Avenue
|
Naperville
|
IL
|
[***]
|
|
|
1418
|
OBS
|
6007 E. State Street
|
Rockford
|
IL
|
[***]
|
|
|
1452
|
OBS
|
2402 N. Prospect Avenue
|
Champaign
|
IL
|
[***]
|
|
|
1518
|
OBS
|
3660 State Road 26
|
Lafayette
|
IN
|
[***]
|
|
|
1520
|
OBS
|
2315 Post Drive
|
Indianapolis
|
IN
|
[***]
|
|
|
1521
|
OBS
|
3730 S. Reed Road
|
Kokomo
|
IN
|
[***]
|
|
|
1516
|
OBS
|
3201 W. 3rd Street
|
Bloomington
|
IN
|
[***]
|
|
|
1715
|
OBS
|
233 S. Ridge Road
|
Wichita
|
KS
|
[***]
|
|
|
1851
|
OBS
|
3260 Scottsville Road
|
Bowling Green
|
KY
|
[***]
|
|
|
1813
|
OBS
|
6520 Signature Drive
|
Louisville
|
KY
|
[***]
|
|
|
1971
|
OBS
|
3217 S. MacArthur Drive
|
Alexandria
|
LA
|
[***]
|
|
|
1951
|
OBS
|
305 W. Constitution
|
West Monroe
|
LA
|
[***]
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A - PAGE
2
|
|
|
1914
|
OBS
|
60 Park Place Drive
|
Covington
|
LA
|
[***]
|
|
|
1912
|
OBS
|
830 E. I-10 Service Road
|
Slidell
|
LA
|
[***]
|
|
|
1961
|
OBS
|
2715 Village Lane
|
Bossier City
|
LA
|
[***]
|
|
|
6903
|
CIG
|
2010 Kaliste Saloom Road
|
Lafayette
|
LA
|
[***]
|
|
|
2139
|
OBS
|
4420 Long Gate Parkway
|
Ellicott City
|
MD
|
[***]
|
|
|
7101
|
CIG
|
4430 Long Gate Parkway
|
Ellicott City
|
MD
|
[***]
|
|
|
2321
|
OBS
|
1501 Boardman Road
|
Jackson
|
MI
|
[***]
|
|
|
2326
|
OBS
|
7873 Conference Center Dr
|
Brighton
|
MI
|
[***]
|
|
|
2320
|
OBS
|
1515 W. 14 Mile Road
|
Madison Heights
|
MI
|
[***]
|
|
|
2325
|
OBS
|
6435 Dixie Highway
|
Clarkston
|
MI
|
[***]
|
|
|
2319
|
OBS
|
2468 Tittabawassee Road
|
Saginaw
|
MI
|
[***]
|
|
|
2315
|
OBS
|
3650 28th Street SE
|
Kentwood
|
MI
|
[***]
|
|
|
2415
|
OBS
|
5723 Bishop Avenue
|
Inver Grove Heights
|
MN
|
[***]
|
|
|
2411
|
OBS
|
8880 Springbrook Drive NW
|
Coon Rapids
|
MN
|
[***]
|
|
|
2619
|
OBS
|
3110 E. 36th Street
|
Joplin
|
MO
|
[***]
|
|
|
4120
|
OBS
|
1319 River Point Road
|
Rock Hill
|
NC
|
[***]
|
|
|
3453
|
OBS
|
210 Gateway Boulevard
|
Rocky Mount
|
NC
|
[***]
|
|
|
3447
|
OBS
|
505 Highland Oaks Drive
|
Winston-Salem
|
NC
|
[***]
|
|
|
3458
|
OBS
|
8280 Valley Boulevard
|
Blowing Rock
|
NC
|
[***]
|
|
|
3446
|
OBS
|
3500 Mount Moriah Road
|
Durham
|
NC
|
[***]
|
|
|
3464
|
OBS
|
223 Wintergreen Drive
|
Lumberton
|
NC
|
[***]
|
|
|
3452
|
OBS
|
100 Southern Road
|
Southern Pines
|
NC
|
[***]
|
|
|
3448
|
OBS
|
501 N. New Hope Road
|
Gastonia
|
NC
|
[***]
|
|
|
3451
|
OBS
|
256 E. Parris Avenue
|
High Point
|
NC
|
[***]
|
|
|
3460
|
OBS
|
250 Mitchelle Drive
|
Hendersonville
|
NC
|
[***]
|
|
|
3402
|
CIG
|
10408 E Independence Blvd
|
Matthews
|
NC
|
[***]
|
|
|
3450
|
OBS
|
606 SW Greenville Blvd.
|
Greenville
|
NC
|
[***]
|
|
|
3420
|
CIG
|
4821 Capital Boulevard
|
Raleigh
|
NC
|
[***]
|
|
|
3114
|
OBS
|
1397 U.S. Route 9 North
|
Old Bridge
|
NJ
|
[***]
|
|
|
3110
|
OBS
|
230 Lake Drive East
|
Cherry Hill
|
NJ
|
[***]
|
|
|
3102
|
CIG
|
500 Route 38 East
|
Maple Shade
|
NJ
|
[***]
|
|
|
3220
|
OBS
|
7380 S. Las Vegas Blvd.
|
Las Vegas
|
NV
|
[***]
|
|
|
3214
|
OBS
|
8671 W. Sahara Avenue
|
Las Vegas
|
NV
|
[***]
|
|
|
3217
|
OBS
|
2625 W. Craig Road
|
North Las Vegas
|
NV
|
[***]
|
|
|
3633
|
OBS
|
6950 Ridge Road
|
Parma
|
OH
|
[***]
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A - PAGE
3
|
|
|
3658
|
OBS
|
6800 Miller Lane
|
Butler Township
|
OH
|
[***]
|
|
|
3662
|
OBS
|
930 Interstate Drive
|
Findlay
|
OH
|
[***]
|
|
|
3635
|
OBS
|
24900 Sperry Drive
|
Westlake
|
OH
|
[***]
|
|
|
3715
|
OBS
|
860 N. Interstate Drive
|
Norman
|
OK
|
[***]
|
|
|
3917/8908
|
OBS/CIG
|
100 North Pointe Blvd.
|
Lancaster
|
PA
|
[***]
|
|
|
3951
|
OBS
|
9395 McKnight Road
|
Pittsburgh
|
PA
|
[***]
|
|
|
3952
|
OBS
|
100 Sheraton Drive
|
Altoona
|
PA
|
[***]
|
|
|
3915
|
OBS
|
3527 N. Union Deposit Rd.
|
Harrisburg
|
PA
|
[***]
|
|
|
4119
|
OBS
|
110 Dunbarton Drive
|
Florence
|
SC
|
[***]
|
|
|
4123
|
OBS
|
1721 U.S. Highway 17 North
|
North Myrtle Beach
|
SC
|
[***]
|
|
|
4117
|
OBS
|
110 Interstate Boulevard
|
Anderson
|
SC
|
[***]
|
|
|
4118
|
OBS
|
7611 Two Notch Road
|
Columbia
|
SC
|
[***]
|
|
|
4124
|
OBS
|
2480 Broad Street
|
Sumter
|
SC
|
[***]
|
|
|
4122
|
OBS
|
454 Bypass 72 NW
|
Greenwood
|
SC
|
[***]
|
|
|
4320
|
OBS
|
1968 Old Fort Parkway
|
Murfreesboro
|
TN
|
[***]
|
|
|
4350
|
OBS
|
536 Paul Huff Parkway
|
Cleveland
|
TN
|
[***]
|
|
|
4319
|
OBS
|
2790 Wilma Rudolph Blvd.
|
Clarksville
|
TN
|
[***]
|
|
|
4318
|
OBS
|
1390 Interstate Drive
|
Cookeville
|
TN
|
[***]
|
|
|
4324
|
OBS
|
1125 Franklin Road
|
Lebanon
|
TN
|
[***]
|
|
|
9301
|
CIG
|
324 N. Peter's Road
|
Knoxville
|
TN
|
[***]
|
|
|
4462
|
OBS
|
2314 W. Loop 250 North
|
Midland
|
TX
|
[***]
|
|
|
4429
|
OBS
|
4205 South IH 35
|
San Marcos
|
TX
|
[***]
|
|
|
4463
|
OBS
|
7101 W. Interstate Hwy 40
|
Amarillo
|
TX
|
[***]
|
|
|
4401
|
CIG
|
11339 Katy Freeway
|
Houston
|
TX
|
[***]
|
|
|
4406
|
CIG
|
25665 Interstate 45 North
|
The Woodlands
|
TX
|
[***]
|
|
|
4404
|
CIG
|
2335 Highway 6
|
Sugar Land
|
TX
|
[***]
|
|
|
4473
|
OBS
|
4505 Sherwood Way
|
San Angelo
|
TX
|
[***]
|
|
|
4405
|
CIG
|
12507 W. Interstate 10
|
San Antonio
|
TX
|
[***]
|
|
|
4466
|
OBS
|
300 South I-35 East
|
Denton
|
TX
|
[***]
|
|
|
4454
|
OBS
|
3903 Towne Crossing Blvd.
|
Mesquite
|
TX
|
[***]
|
|
|
4461
|
OBS
|
2211 S. Stemmons Freeway
|
Lewisville
|
TX
|
[***]
|
|
|
4464
|
OBS
|
4015 South Loop 289
|
Lubbock
|
TX
|
[***]
|
|
|
4422
|
OBS
|
11600 Research Boulevard
|
Austin
|
TX
|
[***]
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A - PAGE
4
|
|
|
4474
|
OBS
|
4142 Ridgemont Drive
|
Abilene
|
TX
|
[***]
|
|
|
4470
|
OBS
|
11875 Gateway West
|
El Paso
|
TX
|
[***]
|
|
|
4478
|
OBS
|
13265 South Freeway
|
Fort Worth
|
TX
|
[***]
|
|
|
4467
|
OBS
|
501 East Loop 281
|
Longview
|
TX
|
[***]
|
|
|
4469
|
OBS
|
2701 E. Central Texas Expwy
|
Killeen
|
TX
|
[***]
|
|
|
4424
|
OBS
|
2060 I-10 South
|
Beaumont
|
TX
|
[***]
|
|
|
4403
|
CIG
|
11590 Research Boulevard
|
Austin
|
TX
|
[***]
|
|
|
4418
|
OBS
|
2102 South Texas Avenue
|
College Station
|
TX
|
[***]
|
|
|
4717
|
OBS
|
1101 Seminole Trail
|
Charlottesville
|
VA
|
[***]
|
|
|
4716
|
OBS
|
7917 W. Broad Street
|
Richmond
|
VA
|
[***]
|
|
|
4758
|
OBS
|
295 Peppers Ferry Road
|
Christiansburg
|
VA
|
[***]
|
|
|
4756
|
OBS
|
3026 Richmond Road
|
Williamsburg
|
VA
|
[***]
|
|
|
4724
|
OBS
|
261 University Boulevard
|
Harrisonburg
|
VA
|
[***]
|
|
|
4762
|
OBS
|
3121 Albert Lankford Dr.
|
Lynchburg
|
VA
|
[***]
|
|
|
4813
|
OBS
|
311 Hampton Court
|
Onalaska
|
WI
|
[***]
|
|
|
4961
|
OBS
|
111 Hylton Lane
|
Beckley
|
WV
|
[***]
|
|
|
|
|
|
|
|
300,000,000.00
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A - PAGE
5
|
|
#
|
Unit #(a)
|
Unit #(b)
|
Address(b)
|
City
|
State
|
Brand
|
1
|
5305
|
75303
|
1060 N 54th St
|
Chandler
|
AZ
|
Carrabba's
|
2
|
602
|
70602
|
2815 Geyser Dr
|
Colorado Springs
|
CO
|
Carrabba's
|
3
|
6021
|
76021
|
2779 Capital Cr NE
|
Tallahassee
|
FL
|
Carrabba's
|
4
|
3403
|
73403
|
16408 Northcross Dr
|
Huntersville
|
NC
|
Carrabba's
|
5
|
3101
|
73101
|
4650 Route 42
|
Turnersville
|
NJ
|
Carrabba's
|
6
|
316
|
10316
|
1080 N 54th St
|
Chandler
|
AZ
|
Outback
|
7
|
614
|
10614
|
15 W Springer Dr
|
Littleton
|
CO
|
Outback
|
8
|
1522
|
11522
|
3401 N Granville Ave
|
Muncie
|
IN
|
Outback
|
9
|
1519
|
11519
|
7201 E Indiana St
|
Evansville
|
IN
|
Outback
|
10
|
1901
|
11901
|
2415 S Acadian Trwy
|
Baton Rouge
|
LA
|
Outback
|
11
|
3455
|
13455
|
2735 Longpine Road
|
Burlington
|
NC
|
Outback
|
12
|
3454
|
13454
|
16400 North Cross Drive
|
Huntersville
|
NC
|
Outback
|
13
|
3444
|
13444
|
302 S College Rd
|
Wilmington
|
NC
|
Outback
|
14
|
3463
|
13463
|
8338 Pineville-Matthews Rd
|
Pineville
|
NC
|
Outback
|
15
|
3116
|
13116
|
4600 Route 42
|
Turnersville
|
NJ
|
Outback
|
16
|
3117
|
13117
|
98 US Route 22 W
|
Green Brook
|
NJ
|
Outback
|
17
|
3120
|
13120
|
740 Route 130
|
Hamilton
|
NJ
|
Outback
|
18
|
3636
|
13636
|
820 N Lexington Springmill Rd
|
Ontario
|
OH
|
Outback
|
19
|
3716
|
13716
|
7206 Cache Rd
|
Lawton
|
OK
|
Outback
|
20
|
4121
|
14121
|
20 Hatton Place
|
Hilton Head
|
SC
|
Outback
|
21
|
4458
|
14458
|
15180 Addison Rd
|
Addison
|
TX
|
Outback
|
22
|
4456
|
14456
|
9049 Vantage Point Dr
|
Dallas
|
TX
|
Outback
|
23
|
4511
|
14511
|
1664 N Heritage Park Blvd
|
Layton
|
UT
|
Outback
|
24
|
5010
|
15010
|
229 Miracle Rd
|
Evansville
|
WY
|
Outback
|
25
|
1201
|
61201
|
18355 West Bluemound Road
|
Brookfield
|
WI
|
Bonefish
|
26
|
9407
|
69407
|
190 Partner Cr
|
Southern Pines
|
NC
|
Bonefish
|
27
|
6048
|
76048
|
11902 Sheldon Rd
|
Tampa
|
FL
|
Carrabba's
|
28
|
9410
|
79410
|
1550 I-10 South
|
Beaumont
|
TX
|
Carrabba's
|
29
|
6116
|
76116
|
2700 Chapel Hill Rd
|
Douglasville
|
GA
|
Carrabba's
|
30
|
4407
|
74407
|
502 W Bay Area Blvd
|
Webster
|
TX
|
Carrabba's
|
31
|
3461
|
13461
|
1020 E Innes St
|
Salisbury
|
NC
|
Outback
|
32
|
3462
|
13462
|
111 Howell Rd
|
New Bern
|
NC
|
Outback
|
33
|
1921
|
11921
|
1600 W Pinhook Dr
|
Lafayette
|
LA
|
Outback
|
34
|
1035
|
11035
|
1820 Raymond Diehl Rd
|
Tallahassee
|
FL
|
Outback
|
35
|
4210
|
14210
|
2411 S Carolyn Ave
|
Sioux Falls
|
SD
|
Outback
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A-1 - PAGE
1
|
|
36
|
1941
|
11941
|
2616 Derek Dr
|
Lake Charles
|
LA
|
Outback
|
37
|
4810
|
14810
|
279 Junction Rd
|
Madison
|
WI
|
Outback
|
38
|
1137
|
11137
|
3088 Watson Blvd
|
Warner Robins
|
GA
|
Outback
|
39
|
2420
|
12420
|
4255 Haines Rd
|
Hermantown
|
MN
|
Outback
|
40
|
4468
|
14468
|
4500 Franklin Ave
|
Waco
|
TX
|
Outback
|
41
|
4910
|
14910
|
790 Foxcroft Ave
|
Martinsburg
|
WV
|
Outback
|
42
|
4127
|
14127
|
945 Factory Shops Blvd
|
Gaffney
|
SC
|
Outback
|
43
|
605
|
70605
|
1212 Oakridge Dr
|
Fort Collins
|
CO
|
Carrabba's
|
44
|
8609
|
78609
|
1320 Boardman Polland Rd
|
Boardman Township
|
OH
|
Carrabba's
|
45
|
9802
|
79802
|
18375 Bluemound Rd
|
Brookfield
|
WI
|
Carrabba's
|
46
|
606
|
70606
|
2088 S Abilene St
|
Aurora
|
CO
|
Carrabba's
|
47
|
9414
|
79414
|
3400 N Central Exwy
|
Plano
|
TX
|
Carrabba's
|
48
|
6502
|
76502
|
4690 Southport Crossing Dr
|
Indianapolis
|
IN
|
Carrabba's
|
49
|
5302
|
75302
|
5646 W Bell Rd
|
Glendale
|
AZ
|
Carrabba's
|
50
|
9704
|
79704
|
5805 Trinty Pkwy
|
Centreville
|
VA
|
Carrabba's
|
51
|
601
|
70601
|
7401 W 92nd Ave Bldg 1
|
Westminster
|
CO
|
Carrabba's
|
52
|
8109
|
78109
|
903 Route 73 South
|
Evesham Township
|
NJ
|
Carrabba's
|
53
|
4455
|
14455
|
1031 SH 114 West
|
Grapevine
|
TX
|
Outback
|
54
|
4423
|
14423
|
12511 WE IH-10
|
San Antonio
|
TX
|
Outback
|
55
|
628
|
10628
|
1315 Dry Creek Rd
|
Longmont
|
CO
|
Outback
|
56
|
4457
|
14457
|
1509 N Central Exwy
|
Plano
|
TX
|
Outback
|
57
|
1410
|
11410
|
2005 River Oaks Dr
|
Calumet City
|
IL
|
Outback
|
58
|
4416
|
14416
|
20455 Katy Fwy
|
Katy
|
TX
|
Outback
|
59
|
619
|
10619
|
2066 S Abilene St
|
Aurora
|
CO
|
Outback
|
60
|
1412
|
11412
|
216 E Golf Rd
|
Schaumburg
|
IL
|
Outback
|
61
|
453
|
10453
|
2310 Sanders St
|
Conway
|
AR
|
Outback
|
62
|
5113
|
15113
|
2574 Camino Entrata
|
Santa Fe
|
NM
|
Outback
|
63
|
617
|
10617
|
2825 Geyser Dr
|
Colorado Springs
|
CO
|
Outback
|
64
|
1453
|
11453
|
3201 Horizon Dr
|
Springfield
|
IL
|
Outback
|
65
|
1424
|
11424
|
3241 Chicagoland Cr
|
Joliet
|
IL
|
Outback
|
66
|
1116
|
11116
|
3585 Atlanta Hwy
|
Athens
|
GA
|
Outback
|
67
|
3713
|
13713
|
3600 S Broadway
|
Edmond
|
OK
|
Outback
|
68
|
3215
|
13215
|
3645 S Virginia St
|
Reno
|
NV
|
Outback
|
69
|
3621
|
13621
|
401 W Dussel Rd
|
Maumee
|
OH
|
Outback
|
70
|
1450
|
11450
|
4390 Illinois St
|
Swansea
|
IL
|
Outback
|
71
|
455
|
10455
|
4509 W Poplar St
|
Rogers
|
AR
|
Outback
|
72
|
1060
|
11060
|
4845 S Kirkman Rd
|
Orlando
|
FL
|
Outback
|
73
|
312
|
10312
|
4871 E Grant Rd
|
Tucson
|
AZ
|
Outback
|
74
|
4426
|
14426
|
5552 Loop 410 NorthWest
|
San Antonio
|
TX
|
Outback
|
75
|
1419
|
11419
|
5652 Northridge Dr
|
Gurnee
|
IL
|
Outback
|
76
|
4728
|
14728
|
6821 Chital Dr
|
Midlothian
|
VA
|
Outback
|
77
|
612
|
10612
|
7065 Commerce Center Dr
|
Colorado Springs
|
CO
|
Outback
|
78
|
4510
|
14510
|
7770 S 1300 East
|
Sandy
|
UT
|
Outback
|
79
|
1550
|
11550
|
8117 Georgia St
|
Merrillville
|
IN
|
Outback
|
80
|
3640
|
13640
|
8595 Market St
|
Mentor
|
OH
|
Outback
|
81
|
3122
|
13122
|
901 Route 73 South
|
Evesham Township
|
NJ
|
Outback
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A-1 - PAGE
2
|
|
82
|
#N/A
|
68302
|
13905 Lakeside Circle
|
Sterling Heights
|
MI
|
Bonefish
|
83
|
#N/A
|
56302
|
13905 Lakeside Circle
|
Sterling Heights
|
MI
|
Cheeseburger
|
84
|
1716
|
11716
|
15430 S Rogers Rd
|
Olathe
|
KS
|
Outback
|
85
|
#N/A
|
88002
|
17508 Dona Michelle Drive
|
Tampa
|
FL
|
Selmon's
|
86
|
6402
|
36402
|
2840 Dallas Parkway
|
Plano
|
TX
|
Roy's
|
87
|
#N/A
|
55505
|
3830 South US Hwy 41
|
Indianapolis
|
IN
|
Cheeseburger
|
88
|
#N/A
|
54801
|
40 Geoffrey Drive
|
Newark
|
DE
|
Cheeseburger
|
89
|
3211
|
13211
|
4141 S Pecos Rd
|
Las Vegas
|
NV
|
Outback
|
90
|
#N/A
|
88001
|
4302 Boy Scout Blvd
|
Tampa
|
FL
|
Selmon's
|
91
|
3002
|
33002
|
4342 Boy Scout Blvd
|
Tampa
|
FL
|
Roy's
|
92
|
#N/A
|
55501
|
4670 Southport Crossings Drive
|
Indianapolis
|
IN
|
Cheeseburger
|
93
|
#N/A
|
55506
|
8301 Eagle Lake Drive
|
Evansville
|
IN
|
Cheeseburger
|
94
|
#N/A
|
55502
|
9770 Crosspoint Blvd
|
Fisher
|
IN
|
Cheeseburger
|
95
|
3213
|
13213
|
521 North Stephanie St (this is the relo address)
|
Henderson
|
NV
|
Outback
|
96
|
1411
|
11411
|
720 W Lake Cook Rd
|
Buffalo Grove
|
IL
|
Outback
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT A-1 - PAGE
3
|
|
1.1
|
This Agreement;
|
1.2
|
Note;
|
1.3
|
Mortgages, one for each property described on
Exhibit A
attached hereto;
|
1.4
|
Assignment of Leases and Rents, one for each property described on
Exhibit A
attached hereto;
|
1.5
|
State of Delaware Uniform Commercial Code - Financing Statement - Form UCC-1 (Borrower);
|
1.6
|
Negative Pledges, one for each Unencumbered Property described on
Exhibit A-1
attached hereto;
|
1.7
|
Disclosure Agreement Regarding Representations, Covenants and Warranties;
|
1.8
|
Cash Management Agreement;
|
1.9
|
Payment Direction Letter;
|
1.10
|
Agreement Regarding Required Insurance;
|
1.11
|
Borrower’s Certification;
|
1.12
|
Certificate of Rent Roll;
|
1.13
|
Certification of Taxpayer Identification Number and Nonforeign Status;
|
1.14
|
Receipt and Use of Proceeds Certification;
|
1.15
|
Tenant’s Estoppel Certificate executed by Tenant; and
|
1.16
|
Subordination Agreement, Acknowledgment of Lease Assignment, Attornment and Non-Disturbance Agreement (one for each Property) executed by Tenant.
|
2.1
|
Local Counsel Enforceability Opinions (for each state where properties described on
Exhibit A
attached hereto are located);
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT B - PAGE
1
|
|
2.2
|
New York Enforceability Opinion;
|
2.3
|
Delaware Authorization and Execution Opinion; and
|
2.4
|
Delaware UCC Opinion.
|
3.1
|
Certificate of Limited Liability Company of Borrower.
|
4.1
|
Title Company Instruction Letter;
|
4.2
|
Closing Statement; and
|
4.3
|
Title Insurance Policies (one for each property described on
Exhibit A
).
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
EXHIBIT B - PAGE
2
|
|
Re:
|
Date: *
Property(ies): * Unit No(s).: * Closing Date: * (anticipated closing date, which date shall not less than seven (7) days after the Date hereof) Sales Price: $* |
(i)
|
The title company and escrow officer handling the Sale and the escrow number related to such Sale are set forth on
Schedule II
attached hereto (“
Title Company
”);
|
(ii)
|
As soon as available (and in any event, not later than one (1) business day prior to the Closing Date), Borrower shall deliver (or cause the delivery to Lender) a draft closing statement (the “
Draft Closing Statement
”) in connection with the Sale, showing an estimate of the Net Sales Proceeds;
|
(iii)
|
On the Closing Date, Borrower shall deliver (or cause the delivery to Lender) the Final Closing Statement (the “
Final Closing Statement
”) signed by Borrower, as seller, and the Title Company, showing the actual Net Sales Proceeds; and
|
(iv)
|
On the Closing Date, and in accordance with the Cash Management Agreement (herein so called) of even date with the Loan Agreement, Borrower shall wire
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
2
|
|
|
|
Sincerely,
|
|
|
|
|
|
|
|
|
|
NEW PRIVATE RESTAURANT PROPERTIES, LLC
,
|
||
|
|
a Delaware limited liability company
|
||
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
3
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
4
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule II - Page
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule III - Page
1
|
|
Re:
|
Date: *
Property(ies): * Unit No(s).: * Closing Date: * (anticipated closing date, which date shall not less than seven (7) days after the Date hereof) Sales Price: $* |
(i)
|
The title company and escrow officer handling the Sale and the escrow number related to such Sale are set forth on
Schedule II
attached hereto (“
Title Company
”);
|
(ii)
|
As soon as available (and in any event, not later than one (1) business day prior to the Closing Date), Borrower shall deliver (or cause the delivery to Lender) a draft closing statement (the “
Draft Closing Statement
”) in connection with the Sale, showing an estimate of the Net Sales Proceeds;
|
(iii)
|
On the Closing Date, Borrower shall deliver (or cause the delivery to Lender) the Final Closing Statement (the “
Final Closing Statement
”) signed by Borrower, as seller, and the Title Company, showing the actual Net Sales Proceeds; and
|
(iv)
|
On the Closing Date, and in accordance with the Cash Management Agreement (herein so called) of even date with the Loan Agreement, Borrower shall wire transfer (or cause the Title Company to wire transfer) to Depository (pursuant to
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
2
|
|
|
|
Sincerely,
|
|
|
|
|
|
|
|
|
|
New Private Restaurant Properties, LLC
,
|
||
|
|
a Delaware limited liability company
|
||
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
3
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule I - Page
4
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule II - Page
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule III - Page
1
|
|
Carrabba's Italian Grill
|
4405
|
San Antonio
|
TX
|
Right of First Refusal (under Special Warranty Deed, dated 7/19/94)
|
Outback Steakhouse
|
2320
|
Madison Heights
|
MI
|
Right of First Refusal (under Covenant Deed, dated 9/11/95)
|
Outback Steakhouse
|
3110
|
Cherry Hill
|
NJ
|
Right of First Refusal (under Repurchase Agmt, dated 11/30/92)
|
Outback Steakhouse
|
1813
|
Louisville
|
KY
|
Right of First Refusal (under Corp. Warranty Deed, dated 11/22/94)
|
Carrabba's Italian Grill
|
6007
|
Merritt Island
|
FL
|
Right of First Refusal (under Indenture, dated 7/22/57)
|
Outback Steakhouse
|
1133
|
Savannah
|
GA
|
Right of First Refusal (under Reciprocal Easement and Operation Agmt, dated 4/15/94)
|
Outback Steakhouse
|
1851
|
Bowling Green
|
KY
|
Right of First Refusal (under Easement and Restriction Agmt, dated 9/4/97)
|
Outback Steakhouse
|
4429
|
San Marcos
|
TX
|
Right of First Refusal (under Agmt of Repurchase and ROFR, dated 3/30/98)
|
Outback Steakhouse
|
1418
|
Rockford
|
IL
|
Right of First Refusal (under Covenants, Conditions and Restrictions Agmt, dated 10/9/96)
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule 1.1 Page
2
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule 6.3 - Page
1
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
Schedule 6.6 - Page
1
|
|
1.
|
IF TO BORROWER OR GUARANTOR
:
|
|
|
Borrower
:
New Private Restaurant Properties, LLC
2202 N. West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attn: Mike A’Hearn
Telephone: (813) 282-1225
|
Guarantor:
OSI Holdco I, Inc.
2202 N. West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attn: Mike A’Hearn
Telephone: (813) 282-1225
|
|
With a copy to
:
Buchanan Ingersoll & Rooney PC
401 E. Jackson Street, Suite 2400 Tampa, Florida 33602-5236 Attn: Jeffrey C. Shannon Telephone: (813) 222-1122 |
With a copy to
:
Buchanan Ingersoll & Rooney PC
401 E. Jackson Street, Suite 2400 Tampa, Florida 33602-5236 Attn: Jeffrey C. Shannon Telephone: (813) 222-1122 |
2.
|
IF TO LENDER
:
|
|
|
Lender
:
Wells Fargo Bank, National Association
1808 Aston Avenue, Suite 250 Carlsbad, California 92008 Attn: Loan Administration Telephone: (760) 918-2700 |
With a copy to
:
Moore & Van Allen PLLC
100 North Tryon Street, Suite 4700 Charlotte, North Carolina 28202 Attn: Timothy W. Corrigan Telephone: (704) 331-1019 |
|
|
|
LOAN AGREEMENT
New Private Restaurant Properties, LLC
Obligor No.: 7829920036
CHAR1\1443108v12
|
SCHEDULE 11.4 - PAGE
1
|
|
Date of Note:
|
February 11, 2016
|
Borrower:
|
New Private Restaurant Properties, LLC, a Delaware limited liability company
|
Obligor No.:
|
7829920036
|
Loan Type:
|
Mortgage Loan
|
Principal Amount:
|
$300,000,000.00
|
Payment Date:
|
As defined in
Section 2
of this Note
|
Interest Rate:
|
As defined in
Section 2
of this Note
|
Default Rate:
|
Interest Rate plus 200 basis points
|
Late Payment Charge:
|
See
Section 5
of this Note
|
Late Payment Charge Grace Period:
|
5 days, including the Payment Date
|
Monthly Payment:
|
As defined in
Section 2
of this Note
|
Maturity Date:
|
As defined in
Section 2
of this Note
|
Secured Obligations:
|
Principal Amount of this Note, together with any and all interest accrued thereunder, any and all interest, fees, charges, premiums any other monies owing to Lender pursuant to this Note, the Loan Agreement and the other Loan Documents and any and all other obligations included within the meaning of the term “Obligations” as set forth in the Loan Agreement.
|
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
1
|
|
Adjusted LIBOR Rate
|
=
|
LIBOR Rate
|
|
|
(1-Reserve Percentage)
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
2
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
3
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
4
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
5
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
6
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
7
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
8
|
|
Secured Promissory Note (Variable Rate)
Wells Fargo/New Private Restaurant Properties, LLC Obligor No.: 7829920036
CHAR1\1443109v7
|
9
|
|
|
BORROWER:
|
|
|
|
|
|
NEW PRIVATE RESTAURANT PROPERTIES, LLC,
a Delaware limited liability company |
|
|
|
|
|
By:
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/s/ Michael A’Hearn
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Name:
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Michael A’Hearn
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Title:
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Vice President and Treasurer
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Borrower’s Address
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New Private Restaurant Properties, LLC
2202 N. West Shore Boulevard, Suite 500
Tampa, Florida 33607
Attn: Mike A’Hearn
Telephone: (813) 282-1225
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With a copy to
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Buchanan Ingersoll & Rooney PC
401 E. Jackson Street, Suite 2400 Tampa, Florida 33602-5236 Attn: Jeffrey C. Shannon Telephone: (813) 222-1122
Facsimile: (813) 222 8189
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EXHIBIT 10.3
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•
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Medical Benefits Plan
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•
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Annual Executive Medical Check-Up
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•
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Salaried Short-Term Disability Insurance
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•
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Salaried Long-Term Disability Insurance
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•
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Company Paid Group Term Life Insurance
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/s/ Michael Kappitt
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2/29/2016
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Michael Kappitt
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Date
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1.
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I have reviewed this Quarterly Report on Form 10-Q of Bloomin’ Brands, Inc.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date:
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May 3, 2016
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/s/ Elizabeth A. Smith
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Elizabeth A. Smith
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Chief Executive Officer
(Principal Executive Officer)
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1.
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I have reviewed this Quarterly Report on Form 10-Q of Bloomin’ Brands, Inc.;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
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4.
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The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
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5.
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The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date:
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May 3, 2016
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/s/ David J. Deno
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David J. Deno
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Executive Vice President and Chief Financial and Administrative Officer
(Principal Financial Officer)
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(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the dates and periods covered by the Report.
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Date:
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May 3, 2016
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/s/ Elizabeth A. Smith
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Elizabeth A. Smith
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Chief Executive Officer
(Principal Executive Officer)
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(1)
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The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
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(2)
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The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company for the dates and periods covered by the Report.
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Date:
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May 3, 2016
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/s/ David J. Deno
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David J. Deno
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Executive Vice President and Chief Financial and Administrative Officer
(Principal Financial Officer)
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