SECOND AMENDED AND RESTATED LOAN AGREEMENT dated as of December 31, 2004 between T-BIRD NEVADA, LLC and BANK OF AMERICA, N.A. Table of Contents

F.  As a condition to the agreement of the Bank to provide the Facility, Guarantor has of even date herewith executed and delivered to the Bank a certain Second Amended and Restated

Guaranty Agreement guaranteeing the full payment and performance of all of the Borrower's obligations under the Note and this Agreement.

1.2.18  "Debt" of any Person shall mean, at any date, without duplication, (I) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the o rdinary course of business, (iv) all obligations of such Person as lessee under capital leases, (v) all obligations of such Person to reimburse any bank or other Person in respect of amounts

 

payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event such Person is a corporation), (vii) all obligations (absolute or contingent) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit or similar instrument, (viii) all Debt of others secured by a lien on any asset of such Person, whether or not such Debt is assumed by such Person, (ix) all debt of others Guaranteed by such Person, (x) Synthetic Lease Indebtedness; (xi) all indebtedness, liabilities and obligations of such Person in connection with or arising from asset securitizations, including, without limitation, Securitization Facility Attributed Debt; and (xii) all obligations of such Person with respect to interest rate protection agreements, foreign curr ency exchange agreements or other hedging agreements (valued as the termination value thereof computed in accordance with a method approved by the International Swap Dealers Association and agreed to by such Person in the applicable hedging agreement, if any ).

 

1.2.21  "EBITDAR" means for any period the sum of: (a) Consolidated Net Income, plus (b) the amount deducted in determining Consolidated Net Income for such period for (i) taxes on income, (ii) Consolidated Interest Expense, (iii) Depreciation and Amortization, and (iv) the sum of all payment obligations (excluding Contingent Rents) under all operating leases and rental agreements, all determined with respect to the Guarantor and its Consolidated Subsidiaries on a consolidated basis for such period and i n accordance with GAAP. In determining EBITDAR for any period, (i) any Consolidated Subsidiary acquired during such period by the Guarantor or any other Consolidated Subsidiary shall be included on a pro forma, historical basis as if it had been a Consolidated Subsidiary during such entire period, (ii) any amounts which would be included in a determination of EBITDAR for such period with respect to assets acquired during such period by the Guarantor or any Consolidated Subsidiary shall be included in the determination of EBITDAR for such period and the amount thereof shall be calculated on a pro forma, historical basis as if such assets had been acquired by the Guarantor or such Consolidated Subsidiary prior to the first day of such period, (iii) any Consolidated Subsidiary sold during such period by the Guarantor or any other Consolidated Subsidiary shall be excluded as if it had not been a Consolidated Subsidiary at any time during such period, and (iv) any amounts which would be otherwise included in a de termination of EBITDAR for such period with respect to assets sold or otherwise disposed of during such period by the Guarantor or any Consolidated Subsidiary shall be excluded in the determination of

 

EBITDAR for such period and the amount excluded shall be calculated as if such assets had been sold or otherwise disposed of by the Guarantor or such Consolidated Subsidiary prior to the first day of such period.

1.2.42  “Minority Rents” means for any period, the aggregate payment obligations under operating leases and rental agreements of the Guarantor and its Consolidated

 

Subsidiaries allocable to minority partners, determined in accordance with GAAP.

 

2.8  Borrower's Accounts. 

 

The Borrower shall cause T-Bird LLC to continue to maintain all of its existing accounts with the Bank. In addition the Borrower shall establish a "Depository Account" with the Bank. The Bank shall deposit in the Depository Account all Advances under the Facility. The Borrower

 

shall cause all Restaurant Operators to directly deposit all payments under the Restaurant Notes into the Depository Account and shall deposit therein all other amounts required to make payments on the Facility as provided in the Note.

 

3.3  Corporate Status of Guarantor. 

 

The Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has the corporate power and legal authority to own its property and carry on its business as now being conducted and is duly qualified to do business in

 

every jurisdiction where qualification is necessary.

 

 

3.12  Regulation U. 

 

No part of the proceeds of the Facility will be used to purchase or carry or to reduce or retire any loan incurred to purchase or carry, any margin stocks (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any such margin stocks. Neither the Borrower nor the Guarantor is engaged or will engage, as one of their important activities, in extending credit for the purpose of purchasing or carrying such margin stocks. If requested by the Bank, the Borrower will furnish or cause to be furnished to the Bank, in connection with the Facility, a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U. In addition, no part of the proceeds of the Facility will be used for the purchase of commodity future contracts (or margins therefor for short sales), or for any commodity not required for the normal raw material inventory of the Borrower.

 

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3.14  Environmental Matters. 

 

3.14.1  To the best of their respective knowledge, the Borrower and the Guarantor are in compliance with all provisions of the Environmental Laws, except where the failure to so be in compliance will not materially and adversely affect the business, properties or condition, financial or otherwise, of the Borrower and the Guarantor.

 

3.14.2  Neither the Borrower nor the Guarantor have received any assessment, notice of liability or notice of financial responsibility, and neither one of them has received any notice of any action, claim or proceeding to determine such liability or responsibility, or the amount thereof, or to impose civil penalties with respect to a site listed on any federal or state listing of sites containing or believed to contain Hazardous Wastes. Neither the Borrower nor the Guarantor has received notification that any hazardous substances (as defined under CERCLA) that it has disposed of have been found in any site at which any governmental agency is conducting an investi gation or other proceeding under any Environmental Law.

 

3.14.3  To the best of the Borrower's and Guarantor's knowledge, no part of any of the Property or any property used by the Borrower or the Guarantor in its business or any building, structure or facility located thereon or improvement thereto contains asbestos or polychlorinated biphenyls (PCB's); have electrical transformers, fluorescent light fixture ballasts or other equipment containing PCB's installed thereon or therein; is used for the handling, processing, storage or disposal of Hazardous Wastes; or contain above-ground or underground storage tanks or other storage facilities for Hazardous Wastes.

 

3.14.4  No excise taxes have been imposed on the Borrower pursuant to Section 4611, 4661 or 4681 of the Code.

 

3.15  No Untrue Statements. 

 

Neither this Agreement, nor any of the other Loan Documents, nor any other agreement, report, schedule, certification or instrument simultaneously with the execution of this Agreement delivered to the Bank by the Borrower or any Guarantor, or by any officer thereof, contains any misrepresentation or untrue statement of any material fact or omits to state any material fact necessary to make any of such agreements, reports, schedules, certificates or instruments not misleading in any material respect.

 

ARTICLE 4

 

 

The Borrower covenants that, so long as any portion of the Advances remains unpaid and unless the Bank otherwise consents in writing, it will:

 

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4.1  Information. 

 

Deliver, or cause to be delivered, to the Bank:

 

4.1.1  as soon as available and in any event within 120 days after the end of each fiscal year of the Borrower and each Restaurant Operator, balance sheets of the Borrower and each of the Restaurant Operators as of the end of such fiscal year and the related statements of income, shareholders' equity and cash flow for such fiscal year, as applicable, setting forth in each case in comparative form the figures for the previous fiscal year, certified to be true and correct by a Manager or the chief financial officer of the Borrower;

 

4.1.2  a copy of the Borrower's annual income tax return within thirty (30) days after the same is filed with the Internal Revenue Service;

 

4.1.3  as soon as available and in any event within 120 days after the end of each fiscal year of Guarantor, audited financial statements of Guarantor as of end of each fiscal year and related statements of income, shareholder’s equity and cash flow for such fiscal year, as applicable, setting forth in each case in comparative to form the figures for the previous year, certified to be true and correct by the chief financial officer of the Guarantor.

 

4.1.4  forthwith upon the occurrence of any Event of Default, certificates of the chief financial officer or the chief accounting officer of the Borrower and the Guarantor setting forth the details thereof and the action which the Borrower and/or the Guarantor is taking or proposes to take with respect thereto;

 

4.1.5  from time to time such additional information regarding the financial position or business of the Borrower and the Guarantor as the Bank may reasonably request.

 

4.2  Payment of Obligations. 

 

The Borrower will pay and discharge at or before maturity, all its material obligations and liabilities, including, without limitation, tax liabilities, except where the same may be contested in good faith by appropriate proceedings, and will maintain, in accordance with generally accepted accounting principles, appropriate reserves for the accrual of any of the same.

 

4.3  Maintenance of Property; Insurance. 

 

The Borrower will keep, or cause to be kept, all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted; will maintain either with financially sound and reputable insurance companies or pursuant to a plan of self-insurance established in accordance with sound and appropriate practices, insurance on all Property in at least such amounts and against at least such risks as are usually insured against in the same general area by companies of established repute engaged in the same or a similar business and will furnish to the Bank, full information as to the insurance carried.

 

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4.4  Conduct of Business and Maintenance of Existence. 

 

The Borrower will preserve, renew and keep in full force and effect its existence as a Nevada limited liability company in good standing, and its rights, privileges and franchises necessary or desirable in the normal conduct of business.

 

4.5  Inspection of Property, Books and Records. 

 

The Borrower will keep proper books of record and account in which full, true and correct entries in conformity with generally accepted accounting principles shall be made of all dealings and transactions in relation to its business and activities; and will permit representatives of the Bank at the Bank's expense to visit and inspect any of its properties, to examine and make abstracts and copies from its books and records and to discuss its affairs, finances and accounts with its officers, employees and independent public accountants, all at such reasonable times and as often as may reasonably be desired.

 

4.6  Licenses and Permits, Etc. 

 

The Borrower will preserve and keep in force all licenses, permits and franchises necessary for the proper conduct of the Borrower's business;

 

4.7  Advice Regarding Changes. 

 

The Borrower will inform the Bank immediately of any material adverse changes in the financial condition of the Borrower, the Guarantor or any Restaurant Operator.

 

4.8  Advice Regarding Litigation. 

 

The Borrower will inform the Bank promptly of any litigation or threatened litigation which might or could substantially affect the Borrower's or the Guarantor's financial condition.

 

4.9  Maintenance of Property. 

 

The Borrower will maintain all of the Borrower's property and equipment in a state of good repair and will require each Restaurant Operator to do the same.

 

4.10  Further Assurances. 

 

At its cost and expense, upon request of the Bank, duly execute and deliver or cause to be duly executed and delivered to the Bank such further instruments and do and cause to be done such further acts that may be necessary or proper in the opinion of the Bank, reasonably exercised, to carry out more effectively the provisions and purposes of this Agreement and the other Loan Documents.

 

4.11  Observe All Laws. 

 

Conform to and duly observe in all material respects all laws, regulations and other valid requirements of any regulatory authority with respect to its properties and the conduct of its business.

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4.13  Bank Accounts. 

 

Maintain the Depository Account with the Bank.

 

ARTICLE 5

 

 

The Guarantor covenants and agrees that, so long as any of the Advances remain outstanding, it will comply with all terms, provisions and covenants contained in the Outback Loan Agreement and all other documents or instruments executed by the Guarantor in connection with the Outback Revolving Loan, even if the Outback Loan Agreement terminates and all amounts outstanding thereunder are paid in full.

ARTICLE 6

 

 

The Borrower agrees that, so long as any portion of the Advances remains unpaid, unless the Bank otherwise consents in writing, it will not:

6.1  Additional Indebtedness or Liens. 

 

Incur any additional indebtedness for borrowed money which is secured by an assignment of Borrower's interests in the Restaurant Notes or in the Assigned Leases or collaterally assign, mortgage, pledge, encumber, grant any security interest in any of the Restaurant Notes or the Leases, whether now owned or hereafter acquired.

 

6.2  Extend Credit. 

 

Except as contemplated in this Agreement, lend money or credit to or make or permit to be outstanding loans or advances to third parties, including, without limitation, members of the Borrower.

 

6.3  Merger or Consolidation. 

 

Enter into any merger or consolidation in which the Borrower is not the surviving entity.

 

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6.5  Transfer or Encumbrance of Interests in the Borrower. 

 

Sell, convey, transfer, lease or further encumber any interest in the Borrower, without the prior written consent of Bank. If any person should obtain an interest in the Borrower pursuant to any sale, transfer, conveyance or other disposition not so approved by the Bank or pursuant to the execution or enforcement of any lien, security interest or other right, such event shall be deemed to be a breach of this covenant by Borrower and an Event of Default under this Agreement and the Note.

 

ARTICLE 7

 

 

7.1  Closing. 

 

The closing of the transactions contemplated hereby (the "Closing") shall be held at a place acceptable to Bank and Borrower.

 

7.2   Conditions Precedent to the Closing. 

 

The Bank shall have no obligation to close the transactions contemplated hereby or to make any Advances to the Borrower under the Facility until the Bank has received the items listed below (but only to the extent current versions of such items have not been previously provided to Bank and remain unmodified), and/or the events described below have occurred, as the case may be:

 

7.2.1  Loan Documents. The Note, this Agreement and any other Loan Documents shall have been duly executed by the Borrower and delivered to the Bank and the Guaranty has been executed and delivered by the Guarantor to the Bank.

 

7.2.2  Borrowing Resolutions. A copy of the resolutions of the members of the Borrower certified by the Borrower's duly elected or appointed Manager, authorizing the execution of this Agreement and the other Loan Documents and authorizing the Manager of the Borrower to execute and deliver this Agreement and the other Loan Documents.

 

7.2.3  Guarantor's Resolutions. A certificate, certified by the Guarantor's duly elected or acting corporate secretary, stating that duly resolutions of the Board of Directors of the Guarantor have been adopted which authorize the execution and delivery of the Guaranty.

 

7.2.4  Certificates of Incumbency. (i) A certificate of incumbency of Borrower, showing the present members and Managers of the Borrower and specimen signatures of said members and Managers, and (ii) a certificate of incumbency of the Guarantor, showing the present officers and directors of the Guarantor and specimen signatures of said officers and directors.

 

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7.2.5  Certificate of Good Standing; Articles of Organization, Regulations. A certified copy of the Articles of Organization, as amended to date, of the Borrower and a certificate of good standing with respect to the Borrower from the Secretary of State of the State of Nevada and a copy of the Regulations, as amended to date, of the Borrower certified by its duly elected or acting Manager.

 

7.2.6  Certificate of Good Standing; Articles of Incorporation; By-Laws. A certificate of good standing with respect to the Guarantor from the Secretary of State of the State of Delaware; and a certificate of duly elected or acting corporate secretary stating that the Articles of Incorporation and By-Laws of the Guarantor which have previously been delivered to the Bank have not been changed or amended.

 

7.2.7  No Adverse Change. No conditions occur or arise regarding the Borrower's or the Guarantor's financial condition which the Bank deems, in its sole discretion, to have a materially adverse impact on the Borrower's and/or the Guarantor's financial condition and the Bank receives an Officer's Certificate from each such entity, stating that no such material adverse change has occurred.

 

ARTICLE 8

 

 

8.1  Events of Default. 

 

The occurrence of one or more of the following events shall constitute an event of default hereunder (an "Event of Default"):

 

8.1.1  Payment of Loan. The failure to pay the any payment required by the Note or this Agreement within ten (10) days after the due date thereof, and the failure to pay any other amount payable hereunder or under any of the other Loan Documents, either by the terms hereof or thereof or otherwise as herein or therein provided.

 

8.1.2  Covenants. The Borrower shall fail to observe or perform the covenant contained in Section 6.5 of this Agreement; or the Borrower or the Guarantor shall fail to observe or perform any other covenant contained in this Agreement for a period of 30 days after written notice thereof has been given to the Borrower and/or Guarantor by the Bank.

 

8.1.3  Representation or Warranty. Any representation or warranty made by the Borrower herein or by Borrower or either Guarantor in any writing furnished in connection with or pursuant to this Agreement or any of the other Loan Documents shall be false or misleading in any material respect on the date upon which made or deemed reaffirmed.

 

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8.1.5  Default under Any Related Loans. An event of default shall occur under the documents evidencing and/or securing any of the Related Loans, or any event or condition shall occur relative to any of the Related Loans, including, without limitation, the Outback Revolving Loan and the T-Bird LLC Loans which (i) results in the acceleration of the maturity of any other obligation of the Guarantor, the Borrower, or an Affiliate of the Guarantor or the Borrower to the Bank, or (ii) with the giving of notice or lapse of time or both, would enable the holder of such ob ligation or any Person acting on such holder's behalf to accelerate the maturity thereof.

 

8.1.6  Liquidation: Dissolution; Voluntary Bankruptcy. The liquidation or dissolution of the Borrower or the Guarantor, or the suspension of the business of the Borrower or the Guarantor, or the filing by the Borrower or the Guarantor of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of the Borrower or the Guarantor indicating it s consent to, approval of or acquiescence in, any such petition or proceeding; the application by the Borrower or the Guarantor for, or the appointment by consent or acquiescence of the Borrower or the Guarantor of a receiver, a trustee or a custodian of the Borrower or the Guarantor for all or a substantial part of its property; the making by the Borrower or the Guarantor of any assignment for the benefit of creditors; the inability of the Borrower or the Guarantor or the admission by the Borrower or the Guarantor in writing of its or their inability to pay its or their debts as they mature; or the Borrower or the Guarantor taking any corporate action to authorize any of the foregoing.

 

8.1.7  Involuntary Bankruptcy. The filing of an involuntary petition against the Borrower or the Guarantor in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of a receiver, a trustee or a custodian of the Borrower or the Guarantor for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or simila r process against any substantial part of the property of the Borrower or the Guarantor, and the continuance of any of such events for ninety (90) days undismissed or undischarged.

 

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8.1.8  Adjudication of Bankruptcy. The adjudication of the Borrower or the Guarantor as bankrupt or insolvent.

 

8.1.9  Order of Dissolution. The entering of any order in any proceedings against the Borrower or the Guarantor decreeing the dissolution, divestiture or split-up of the Borrower or the Guarantor, and such order remains in effect for more than sixty (60) days.

 

8.1.10  Reports and Certificates. Any report, certificate, financial statement or other instrument delivered to the Bank by or on behalf of Borrower or the Guarantor pursuant to the terms of this Agreement or the Loan Documents is false or misleading in any material respect when made or delivered.

 

8.1.11  Judgment. A final judgment (after all avenues of appeal and all applicable appeal periods have expired), which with other outstanding final judgments against the Borrower and/or the Guarantor exceeds an aggregate of Five Hundred Thousand and No/100 Dollars ($500,000.00) (net of amounts covered by insurance), shall be rendered against the Borrower or the Guarantor, and if within sixty (60) days after entry thereof such judgment shall not have been discharged, paid or bonded or execution thereon stayed pending appeal, or if within sixty (60) days after the expiration of any such stay such judgment shall not have been discharged.

 

8.1.12  Illegality of Agreement or the Note. This Agreement or the Note shall have been held by any court of competent jurisdiction, or by any competent regulatory authority, to be illegal, invalid, prohibited or unenforceable in whole or in material part.

 

8.1.13  Sale of Guarantor. The acquisition of substantially all of the stock or assets of Guarantor by a third party after the date hereof or if the shares of Guarantor are no longer traded on a publicly traded stock exchange.

 

8.2  Remedies.

 

8.2.1  Termination of Advances. Upon the occurrence of any Event of Default or Default, the Bank may refuse to make any further Advances under the Facility and the Bank shall have no further obligation to make Advances as long as said Event of Default or Default shall continue uncured or unwaived. In the event that the Bank elects to terminate the making of Advances as provided herein, the Bank shall give written notice of such election to Borrower, but the failure of the Bank to give such notice or of the Borrower to receive such notice shall in no way obligate t he Bank to continue making Advances after the occurrence of an Event of Default.

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8.2.3  Cumulative Remedies. All rights, remedies or recourse of the Bank under this Agreement, the Note, or any other Loan Documents, or under any of the Related Loan Documents, at law, in equity or otherwise, are cumulative, and exercisable concurrently, and may be pursued singularly, successively or together and may be exercised as often as occasion therefore shall arise. No act of commission or omission by the Bank, including, but not limited to, any failure to exercise, or any delay, forbearance or indulgence in the exercise of, any right, remedy or recourse h ereunder or under any other Loan Document shall be deemed a waiver, release or modification of that or any other right, remedy or recourse, and no single or partial exercise of any right, remedy or recourse shall preclude the Bank from any other or future exercise of the right, remedy or recourse or the exercise of any other right, remedy or recourse. No waiver or release of any such rights, remedies and recourse shall be effective against the Bank unless in writing and manually signed by an authorized officer on the Bank's behalf, and then only to the extent recited therein. A waiver, release or modification with reference to any one event shall not be construed as continuing or constituting a course of dealing, nor shall it be construed as a bar to, or as a waiver, release or modification of, any subsequent right, remedy or recourse as to a subsequent event.

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ARTICLE 9

 

 

9.1  Requests for Advance. 

 

To receive an Advance the Borrower shall submit to the Bank, by facsimile transmission with the original to follow by mail, a Request for Advance signed by the Borrower and the Guarantor. Requests for Advance shall be for an amount of not less than $100,000.00. Upon receipt of a Request for Advance by Bank and the Bank having made a determination that sufficient finds are available under the Facility and all other conditions to such Advance shall have been fulfilled, Bank will make the Advance to the Borrower, subject to the terms, provisions and conditions as provided in this Agreement. All disbursements will be made to Borrower in a manner determined by Bank, or with Bank's approval, into the Operating Account or as Borrower otherwise directs in writing. Each Advance shall be considered to have been advanc ed to and received by Borrower upon, and interest on the Loan proceeds will be payable by Borrower from and after, the disbursement of the Advance to or for the benefit of the Borrower as aforesaid. In no event shall Bank be required to make any Advance from and after the Commitment Termination Date.

 

9.2  Conditions to Advance. 

 

It shall be a condition of the obligation of the Bank to make any Advance that the Bank shall have received (by facsimile transmission, with original to follow by mail) a Request for Advance executed by both the Borrower and the Guarantor and that, at the time of each Advance of a portion of the Facility, each of the following statements shall be true in all material respects:

 

9.2.1  All of the representations and warranties of the Borrower and the Guarantor set forth in this Agreement or in any other of the Loan Documents, and of the Guarantor under the Outback Loan Agreement, or any of the "Loan Documents" described therein, shall be correct on and as of the date of such Advance as though made on and as of such date.

 

9.2.2  The Borrower and the Guarantor shall have observed and performed in all material respects all of the terms, conditions and agreements applicable to them set forth herein or in any other Loan Documents on its part to be observed or performed and no Event of Default and no Default shall have occurred and be continuing under this Agreement or the other Loan Documents.

 

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9.2.4  All required financial statements and other material has been delivered to the Bank by the Borrower and the Guarantor; no material adverse changes shall have occurred since the date of such financial statements (except as may be disclosed in subsequent financial statements delivered to the Bank); and no material liabilities, contingent or otherwise, not shown on said financial statements or the notes thereto, shall exist, except those incurred or arising in the ordinary course of business since the end date for the last annual accounting period of the Borrower or the Guarantor, as applicable.

 

9.2.5  There shall be no actions, suits, proceedings or claims pending or threatened against or affecting the Borrower or the Guarantor, the result of which might materially adversely affect the respective consolidated financial condition, business or operations of the Borrower or the Guarantor.

 

ARTICLE 10

 

 

10.1  Waiver of Default. 

 

The Bank may, by written notice to the Borrower at any time and from time to time, waive any default in the performance or observation of any condition, covenant or other term thereof or any Event of Default that shall have occurred hereunder and its consequences. Any such waiver shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, the Borrower shall be restored to its former position hereunder and under the Loan Documents, and any Event of Default so waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Event of Default.

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10.3  Notices. 

 

All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered; the day it is received, if sent by recognized expedited delivery service or by facsimile transmission with receipt confirmation; and upon receipt, if mailed, certified mail, return receipt requested, postage prepaid. In each case notice shall be sent to:

If to the Borrower:	T-BIRD NEVADA, LLC
	13000 North Dale Mabry Highway
	Tampa, FL 33618
	Attention: Mr. Thomas J. Shannon, Jr.

If to the Bank:	BANK OF AMERICA, N.A.
	101 E. Kennedy Boulevard, 5th Floor
	Tampa, FL 33602
	Attention: David Mumma

or to such other address as either party may have specified in writing to the other using the procedures specified above in this Section 10:3.

10.4  No Waiver; Cumulative Remedies. 

 

No failure to exercise and no delay in exercising, on the part of the Bank, any right, power or privilege hereunder or under any of the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or thereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein and in the other Loan Documents provided are cumulative and not exclusive of any rights or remedies provided by law.

 

10.5  Survival of Representations Warranties and Covenants. 

 

All representations, warranties, covenants and other agreements made herein shall survive the execution and delivery of this Agreement and the other Loan Documents.

 

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10.7  No Third Party Beneficiaries. 

 

This Agreement is a contract among the Bank, the Borrower and the Guarantor for their mutual benefit and no third person (other than any Participants) shall have any right, claim or interest against the Bank, the Borrower or the Guarantor by virtue or any provision hereof.

 

10.8  Florida Law. 

 

This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of Florida without regard to the principles of the conflict of laws of Florida.

 

10.9  Paragraph Headings. 

 

Paragraph headings are for the purpose of identification only and are not considered as a substantive part of this Agreement.

 

10.10  Gender; Etc, 

 

Whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural, and the plural number include the singular.

 

10.11  Severability. 

 

Each paragraph, provision, sentence and part thereof of this Agreement shall be deemed separate from each other paragraph, provision, sentence or part thereof, and the invalidity or unenforceability for any reason or to any extent of any such portion of this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any other Loan Document, or the application of such paragraph, provision, sentence or part thereof to other persons and circumstances.

 

10.12  Reimbursement of Expenses. 

 

The Borrower agrees to reimburse the Bank and the Participants for all reasonable costs and out-of-pocket expenses (including reasonable fees of attorneys) incurred in connection with the preparation, execution, delivery, modification, waiver and amendment of this Agreement and the other Loan Documents, and also all reasonable expenses incurred by the Bank and the Participants (including reasonable fees of attorneys) in the collection of any indebtedness incurred hereunder in the event of default by Borrower under any of the Loan Documents. The obligations of the Borrower under this Section 10.12 shall survive the repayment of the Facility and the satisfaction by the Borrower of its other obligations under this Agreement and the other Loan Documents.

 

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10.13  Stamp or Other Taxes. 

 

The Borrower agrees to pay any and all stamp, documentary, exercise and intangible taxes now or hereafter payable in respect of this Agreement, the Note and the other Loan Documents, whether in connection with the execution and delivery thereof, the making of any Advance previously or hereafter made, any modification or renewal thereof, or otherwise, together with any interest and penalties incident thereto. The Borrower agrees to and shall indemnify and hold the Bank harmless from and against all loss, cost, expense and attorneys' fees that may be incurred by the Bank in connection with any such assessment, tax, levy or other charge, or any interest or penalty resulting therefrom. The Bank may, but shall not be obligated to, at any time or from time to time, debit the deposit account of the Borrower at the Bank for the amount of any such obligations. The obligations of the Borrower under this Section 10.13 shall survive the repayment of the Facility and the satisfaction by the Borrower of its other obligations under this Agreement and the other Loan Documents.

 

10.14  Participation Rights. 

 

Nothing contained in this Agreement shall in any way prohibit or otherwise restrict the Bank from (a) entering into agreements with other financial institutions whereby such other institutions participate in the Facility and (b) issuing participation certificates to such other institutions in connection therewith; provided, that the Facility shall be administered by the Bank and all actions permitted to be taken by "the Bank" hereunder shall be taken solely by the Bank (but this provision shall not prohibit (i) a participation agreement from requiring that the Bank first obtain the consent of a Participant with respect to one or more of such actions or (ii) a Participant from taking any action expressly permitted it under this Agreement).

 

10.15  Further Assurances. 

 

The Borrower agrees that, at any time and from time to time after the execution and delivery of this Agreement, it shall, upon request of the Bank, execute and deliver such further instruments and documents and do such further acts and things as the Bank may reasonably request in order to fully effect the purposes of this Agreement.

 

10.16  Execution in Counterparts. 

 

This Agreement and the other Loan Documents may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.

 

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10.18  Waiver of Jury Trial. 

 

 

10.19  Existing Loan Agreement. This Agreement amends and restates the Existing Loan Agreement in its entirety.

 

IN WITNESS WHEREOF, the Borrower and the Bank have caused this Agreement to be duly executed under seal by their duly authorized officers, all as of the day and year first above written.

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The Guarantor joins in the execution of this Agreement for the purpose of agreeing to comply with and be bound by the provisions of this Agreement which apply to the Guarantor.

 

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