<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
For the fiscal year ended June 30, 1998
------------------------------------------------------
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the transition period from to
---------------------- -----------------------
Commission file Number 1-11754
---------------------------------------------------------
Piccadilly Cafeterias, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Louisiana 72-0604977
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3232 Sherwood Forest Blvd., Baton Rouge, Louisiana 70816
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (504) 293-9440
-----------------------------
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which registered
Common Stock New York Stock Exchange
- ------------------- -----------------------------------------
<S> <C>
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
None
- --------------------------------------------------------------------------------
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (229.405 of this chapter) is not contained herein, and will
not be contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
registrant based on the closing price of such stock on September 17, 1998 was
$102,840,531.
The number of shares outstanding of Common Stock, without par value, as of
September 17, 1998 was 10,528,368.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Annual Report to Shareholders for the fiscal year ended June 30,
1998 are incorporated by reference into Part II.
Portions of the definitive proxy statement for the 1998 annual meeting of
shareholders are incorporated by reference into Part III.
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PART I ITEM 1. BUSINESS
GENERAL DEVELOPMENT OF BUSINESS
Piccadilly Cafeterias, Inc. was incorporated under the laws of
Louisiana in 1965 and is the successor to various predecessor corporations and
partnerships which operated "Piccadilly" cafeterias beginning with the
acquisition of the first unit in 1944. Except where the context otherwise
indicates, the terms "Company", "Piccadilly", and "Registrant" as used herein
refer to Piccadilly Cafeterias, Inc.
On May 28, 1998, the Company completed a $5.00 per share tender offer
for all outstanding shares of Morrison Restaurants, Inc. (Morrison), acquiring
approximately 89% of the outstanding shares. A merger was then completed on July
31, 1998 in which the remaining Morrison shares were converted into the right to
receive $5.00 per share and Morrison became a wholly-owned subsidiary of the
Company. The Company believes that the acquisition of Morrison provides broader
market coverage and opportunities for improved operating efficiencies. The
Company has begun integrating the Morrison units into the Company's existing
operations. The Company plans to convert all Morrison cafeterias to Piccadilly
cafeterias within two years.
At June 30, 1998, the Company operated 257 cafeterias in 17 states, 127
under the Morrison's name and 130 under the Piccadilly name. Of these, 131 are
in suburban malls, 25 are in suburban strip centers, and 101 are free-standing
suburban locations. The Company also operates four Piccadilly Express units in
Associated Grocer supermarkets and nine Morrison's Quick-Serve restaurants,
"QSR's", located primarily in mall food courts. Up to three new cafeterias are
expected to be opened during the year ending June 30, 1999. The following table
sets forth certain information regarding development of the Company's cafeteria
chain during the five years ended June 30, 1998:
<TABLE>
<CAPTION>
Year Ended June 30 1998(B) 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Net sales per unit (in thousands)(A) $2,226 $2,179 $2,058 $1,990 $1,916
Units opened 4 3 1 5 3
Units closed 3 4 3 3 4
Units open at year-end 130 129 130 132 130
Total customer volume (in thousands) 48,786 49,483 49,629 48,274 48,098
</TABLE>
- ----------
(A) Excludes cafeterias opened or closed during period.
(B) Fiscal 1998 data excludes the one month of operations of Morrison's.
----------
At June 30, 1998 the Company operated seven "Ralph and Kacoo's" seafood
restaurants in Louisiana, Alabama, and Mississippi. No additional Ralph &
Kacoo's seafood restaurants are expected to be opened in the year ending June
30, 1999. The following table sets forth certain information regarding the
Company's "Ralph and Kacoo's" seafood restaurant chain during the five years
ended June 30, 1998:
<TABLE>
<CAPTION>
Year Ended June 30 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Net sales per unit (in thousands)(A) $3,585 $3,509 $3,428 $3,394 $3,344
Units opened 0 0 0 1 0
Units closed 0 1 0 0 0
Units open at year-end 7 7 8 8 7
</TABLE>
- ----------
(A) Excludes restaurants opened or closed during period.
----------
Although the Company's operations are primarily in the southern,
southwestern, and western regions of the United States, the Company does not
consider its growth to be limited to such areas. Piccadilly evaluates numerous
potential expansion locations, focusing on demographic data such as population
densities, population profiles, income levels, traffic counts, as well as the
extent of competition. The number of new cafeterias and
2
<PAGE> 3
restaurants that the Company can open depends upon its ability to secure
appropriate locations, generate necessary financial resources, and develop
personnel for expansion.
CAFETERIA AND RESTAURANT OPERATIONS
The Company's traditional cafeterias seat from 250 to 450 customers
each. During 1997, the Company completed the design of a new cafeteria
prototype. The prototype has approximately 6,000 square feet compared to the
Company's 10,000 square feet traditional cafeteria and seats from 165 to 200
customers. This smaller cafeteria allows the Company to access a broader range
of markets.
Each cafeteria unit offers a wide variety of food, at reasonable
prices, and with the convenience of cafeteria service, to a diverse luncheon and
dinner clientele. Cafeteria personnel cook and prepare from scratch
substantially all food served. All items are prepared from standardized recipes.
Menus are varied at the discretion of unit management in response to local and
seasonal customer preferences.
Through an agreement with Associated Grocers, Inc., a Baton Rouge-based
association of 235 food stores in Louisiana, Mississippi and Texas, the Company
has begun placing small cafeterias in grocery stores. The agreement with
Associated Grocers, Inc. allows the Company to rent a portion of the space
within the supermarket. These mini cafeterias called Piccadilly Express, feature
a scaled-down version of the cafeteria serving counter and feature many of the
Company's most popular items that are prepared on-site. This initiative focuses
on the take-out segment of the Company's business by providing home meal
solutions through convenient customer alternatives while leveraging the high
traffic flow of grocery stores. Some seating capacity is provided within the
Piccadilly Express when space is available.
Like most industry participants, the Company purchases foodstuffs in
small quantities from local and regional suppliers in order to better assure
freshness. As a result, inventory is kept relatively low; average
per-cafeteria-inventory at June 30, 1998 was $12,300.
Ralph & Kacoo's restaurants seat from 250 to 600 customers each. These
restaurants are full-service menu facilities. All of the food served is cooked
and prepared by the restaurant staff from standardized recipes. Substantially
all of the food, supplies, and other materials required for the preparation of
meals are supplied by the Company-owned commissary.
The commissary, located in Baton Rouge, Louisiana, contains
approximately 26,500 square feet of restaurant food and supplies storage.
Seafood accounts for approximately 50% of inventory at the commissary. In order
to provide consistent quality, selection, and price throughout the year, the
commissary purchases in-season seafood in quantities sufficient to supply the
restaurants during periods when such products would otherwise not be available
at reasonable prices in the marketplace. On the average, seafood inventory turns
approximately once every four months. Inventory maintained at the commissary at
June 30, 1998, was approximately $2,532,000 while the average "Ralph and
Kacoo's" restaurant inventory level at year-end was approximately $55,300. The
commissary is not dependent upon a single supplier nor a small group of
suppliers.
Each cafeteria, express unit, and restaurant is operated as a separate
unit under the control of a manager and associate manager who have
responsibility for virtually all aspects of the unit's business, including
purchasing, food preparation, and employee matters. Twelve district managers,
under the supervision of one general manager, and the chief executive officer
oversee and regularly inspect cafeteria operations. Two district managers, under
the supervision of a general manager and the chief executive officer, oversee
restaurant operations. The Company employed approximately 15,800 persons at June
30, 1998, of whom all but 73 corporate headquarters employees worked at
Piccadilly's 267 cafeteria and restaurant locations and its commissary.
The food service industry is highly competitive. Competitive factors
include food quality and variety, price, customer service, location, the number
and proximity of competitors, decor, and public reputation. The Company
considers its principal competitors to be other cafeterias, casual dining
venues, and fast-food operations. Like other food service operations, the
Company is attuned to changes in both consumer preferences for food and habits
in patronizing eating establishments.
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Customer volume at established cafeterias and sales volume at
established restaurants are generally higher in the Company's second fiscal
quarter and lower in the third quarter. These patterns reflect the general
seasonal fluctuations of the retail industry.
Cost of sales is affected by statutory minimum wage rates. The
Company's operations are subject to federal, state, and local laws and
regulations relating to environmental protection, including regulation of
discharges into the air and water, and relating to safety and labor, including
the Federal Occupational Safety and Health Act and wage and hour laws.
Additionally, the Company's operations are regulated pursuant to state and local
sanitation and public health laws. Operating units utilize electricity and
natural gas, which are subject to various federal and state regulations
concerning the allocation of energy. The Company's operating costs have been and
will continue to be affected by increases in the cost of energy.
ITEM 2. PROPERTIES
All but 35 of the cafeterias, express units, and restaurants operated
by the Company at June 30, 1998, were operated on premises held under long-term
leases with differing provisions and expiration dates. The 35 cafeterias and
restaurants not operated on premises held under long-term leases are owned.
Leases provide for monthly rentals, typically computed on the basis of a fixed
amount plus a percentage of sales. Most leases contain provisions permitting the
Company to renew for one or more specified terms. These leases are scheduled to
expire, exclusive of renewal provisions, as follows:
<TABLE>
<CAPTION>
Five-year
periods Units Units
ending June 30 Operating Closed
--------------------------------------
<S> <C> <C>
2003 143 15
2008 72 9
2013 20 7
2018 7 --
--------------------------------------
Total 242 31
======================================
</TABLE>
Reference is made to Note 5 of the Notes to Consolidated Financial
Statements for certain additional information regarding the Company's leases.
The Company's maintenance program provides for remodels of existing
properties generally on ten year cycles. All equipment is maintained and
modernized as necessary to maintain appearance and utility. The list below
provides a general geographic review of the locations of the Company's
operations at June 30, 1998:
<TABLE>
<CAPTION>
Morrison Piccadilly Piccadilly Ralph & Kacoo's
State Cafeterias Cafeterias Express & QSR's Restaurants
--------------- ---------- ---------- --------------- ---------------
<S> <C> <C> <C> <C>
Alabama 17 6 1
Arizona 2
Florida 47 21
Georgia 21 17 2
Kansas 1
Kentucky 4 1
Louisiana 2 31 2 5
Maryland 2
Mississippi 8 5 2 1
Missouri 3
North Carolina 3 4
Oklahoma 3
South Carolina 7 2
Tennessee 6 11 1
Texas 17 1
Virginia 11 6 3
West Virginia 1
</TABLE>
4
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The Company utilizes generally standardized building configurations for
its new cafeterias and restaurants in terms of seating, food display,
preparation areas, and other factors and attempts to build out floor space to
maximize efficient use of available space.
The Company continues to pursue strategies to increase the capacity and
utilization of its cafeterias. The Company is converting its "order pick-up"
counters to Piccadilly Express hot counters where the physical facilities are
conducive to doing so. The new counters allow customers to view and select their
choices rather than simply ordering to go items from a menu. This delivery
system increases the number of take-out orders that can be filled at peak order
times.
Piccadilly's corporate headquarters occupy approximately two-thirds of
a Company-owned 45,000 square foot office building completed in 1974 and located
on a Company-owned tract comprising approximately five acres in Baton Rouge,
Louisiana. The remainder of the building is leased to commercial tenants.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to and does not have any property that is
the subject of any legal proceedings pending or, to the knowledge of management,
threatened, other than ordinary routine litigation incidental to its business
and proceedings which are material or as to which management believes the
Company does not have adequate insurance.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 4(a). EXECUTIVE OFFICERS OF THE REGISTRANT
Executive officers are elected annually by the Board of Directors and hold
office until a successor is duly elected. The names and positions of executive
officers of the Registrant, together with a brief description of the business
experience of each such person during the past five years, is set forth below.
W. Scott Bozzell, Vice President and Controller, age 35, has held such positions
since July 1996. From May 1992 to July 1996 he was Vice President and Assistant
Controller. Prior to that he was Assistant Controller.
Frederick E. Fuchs Jr., Executive Vice President and Director of Real Estate,
age 51, has held such positions since June 1986.
Jere W. Goldsmith Jr., Executive Vice President and Director of Training, age
52, has held such positions since July 1995. Mr. Goldsmith previously served in
this capacity from May 1987 to February 1992. From February 1992 to July 1995 he
was Executive Vice President and Region Manager.
J. Fred Johnson, age 47, Executive Vice President, Treasurer, and Chief
Financial Officer, has held such positions since November 1995. From August 1985
through October 1995 he was with Graphic Industries, Inc., a printing company,
in various capacities, including Chief Financial Officer and Treasurer.
Ronald A. LaBorde, age 42, President and Chief Executive Officer, has held such
positions since June 1995. From January 1992 to May 1995 he was Executive Vice
President, Treasurer and Chief Financial Officer. Prior to that he was Executive
Vice President, Secretary, and Controller.
D. Thomas Landry, Executive Vice President and Director of Maintenance,
Construction and Design, age 46, has held such positions since May 1992. From
July 1990 to May 1992 he was Vice President and Director of Maintenance.
Robert P. Listen, Executive Vice President and Director of Technical Services,
age 50, has held such positions since December 1992. From July 1987 to November
1992 he was Executive Vice President and District Manager.
5
<PAGE> 6
Mark L. Mestayer, Executive Vice President, Secretary, and Director of Finance,
age 40, has held such positions since July 1996. From May 1992 to July 1996, he
was Executive Vice President, Secretary and Controller. From January 1992 to May
1992, he was Vice President and Controller. Prior to that, he was Vice President
and Controller, Ralph & Kacoo's.
Joseph S. Polito, Executive Vice President and General Manager, age 56, has held
such positions since July 1995. From October 1992 to July 1995, he was Executive
Vice President and Director of Training. From 1987 to October 1992 he was
Executive Vice President and District Manager.
Patrick R. Prudhomme, Executive Vice President and Region Manager, age 46, has
held such positions since February 1992. From January 1989 to February 1992 he
was Vice President and District Manager, Ralph & Kacoo's.
C. Warriner Siddle, Executive Vice President and Director of Development, age
47, has held such positions since July 1995. From February 1992 to July 1995 he
was Executive Vice President and Region Manager. From October 1984 to February
1992 he was Executive Vice President and District Manager.
Donovan B. Touchet, Executive Vice President and Director of Data Processing,
age 49, has held such positions since June 1988.
Brian G. Von Gruben, Executive Vice President and Director of Administrative
Services, age 50, has held such positions since May 1987.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED SECURITY HOLDER
MATTERS
Information regarding Common Stock market prices and dividends, on the inside
cover of the Annual Shareholders Report for the year ended June 30, 1998, is
incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA
"Selected and Other Financial Data", on page 13 of the Annual Shareholders
Report for the year ended June 30, 1998, is incorporated herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations, on pages 14 through 16 of the Annual Shareholders Report for the
year ended June 30, 1998, is incorporated herein by reference.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
None.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The following consolidated financial statements and supplementary data, included
on pages 17 through 27 of the Annual Shareholders Report for the year ended June
30, 1998, are incorporated herein by reference:
Consolidated balance sheets as of June 30, 1998 and 1997
Consolidated statements of income for the fiscal years ended June 30, 1998, 1997
and 1996
Consolidated statements of changes in shareholders' equity for the fiscal years
ended June 30, 1998, 1997 and 1996
Consolidated statements of cash flows for the fiscal years ended June 30,
1998, 1997 and 1996
Notes to consolidated financial statements
6
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ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
In accordance with General Instruction G (3) to Form 10-K, Items 10, 11, 12, and
13 have been omitted since the Company has filed with the Commission a
definitive proxy statement complying with Regulation 14A relating to its 1998
annual meeting and involving the election of directors not later than 120 days
after the close of its fiscal year. The Company incorporates by reference the
information in response to such items set forth in its definitive proxy
statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) (1) Financial Statements--The following are incorporated herein by
reference in this Annual Report on Form 10-K from the indicated pages
of the Registrant's Annual Shareholders Report for the year ended June
30, 1998:
<TABLE>
<CAPTION>
Annual
Shareholders
Description Report Page
----------- ------------
<S> <C>
Consolidated balance sheets as of June 30, 1998 and 1997 17
Consolidated statements of income for the fiscal years ended June 30, 1998,
1997 and 1996 18
Consolidated statements of changes in shareholders' equity for the fiscal
years ended June 30, 1998, 1997 and 1996 18
Consolidated statements of cash flows for the fiscal years ended June 30,
1998, 1997 and 1996 19
Notes to consolidated financial statements 20-27
Report of independent auditors 27
</TABLE>
(2) Schedules--The following consolidated schedules and information are
included in this annual report on Form 10-K on the pages indicated. All
other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and
therefore have been omitted.
<TABLE>
<CAPTION>
Annual Report on
Description Form 10-K Page
----------- ----------------
<S> <C>
Schedule II--Valuation and qualifying accounts 10
</TABLE>
(3) Listing of Exhibits - See sub-section (c) below.
(b) On June 5, 1998, the Company filed a report on Form 8-K related to its
purchase of Morrison Restaurants, Inc. Financial statements and
pro-forma financial information related to the acquired business were
subsequently filed by amendment on Form 8-K/A on August 11, 1998.
(c) EXHIBITS
2. Plan and Agreement of Merger dated April 22, 1998, among Piccadilly,
Purchaser and Morrison.(1)
3. (a) Articles of Incorporation of the Company(2), as amended on September
14, 1987(3) as amended on September 27, 1988(4), and as amended on
September 28, 1989(5).
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<PAGE> 8
(b) By-laws of the Company, as amended through July 22, 1996(6).
10. (a) Piccadilly Cafeterias, Inc. 1993 Incentive Compensation Plan(7).
(b) Form of Management Continuity Agreement, effective March 27, 1995,
unless otherwise indicated, between Piccadilly Cafeterias, Inc. and
each of Messrs. LaBorde, Bozzell, Fuchs, Goldsmith, Johnson (November
16, 1995), Landry, Listen, Mestayer, Polito, Prudhomme, Siddle,
Touchet, and Von Gruben(6).
(c) Form of Director Indemnity Agreement, effective April 27, 1995, unless
otherwise indicated, between Piccadilly Cafeterias, Inc. and each of
Messrs. LaBorde, Francis (September 25, 1995), Guyton (July 1, 1996),
Murrill, Redman (September 25, 1995), Simmons and Smith(6).
(d) Agreement between Piccadilly Cafeterias, Inc. and Ronald A. LaBorde,
effective June 26, 1995(6).
(e) Form of Agreement, effective August 1, 1995, between Piccadilly
Cafeterias, Inc. and each of Malcolm T. Stein, Jr. and James E.
Durham, Jr. (6).
(f) $125,000,000 Credit Agreement dated as of June 24, 1998 and First
Amendment to Credit Agreement dated July 31, 1998 filed herewith on
pages 11 through 129.
13. The Registrant's Annual Report to Shareholders for the fiscal year ended
June 30, 1998.
21. List of Subsidiaries of the Registrant
23. Consent of Independent Auditors
27. Financial Data Schedule.
- ----------
(1) Incorporated by reference from Exhibit (c) (1) to the Company's Schedule
14D-1 dated April 29, 1998.
(2) Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration No. 2-63249) filed with the Commission on December
19, 1978.
(3) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1987.
(4) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1988.
(5) Incorporated by reference from the Registrant's Annual Report on Form 10-K,
as amended, for the fiscal year ended June 30, 1989.
(6) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996.
(7) Incorporated by reference from the Company's Annual Report on Form 10-K, as
amended, for the fiscal year ended June 30, 1993.
8
<PAGE> 9
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Piccadilly Cafeterias, Inc.
-----------------------------------------
(Registrant)
By: /s/ Ronald A. LaBorde
-------------------------------------
Ronald A. LaBorde
President and Chief Executive Officer
Date: September 24, 1998
-----------------------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C> <C>
/s/ Norman C. Frances 9/23/98 /s/ Dale E. Redman 9/22/98
- -------------------------------------------- ---------- ----------------------------------------- ---------
Norman C. Frances, Director Date Dale E. Redman, Director Date
/s/ Robert P. Guyton 9/22/98 /s/ Christel C. Slaughter 9/25/98
- -------------------------------------------- ---------- ----------------------------------------- ---------
Robert P. Guyton, Director Date Christel C. Slaughter, Director Date
/s/ Ronald A. LaBorde 9/24/98
- -------------------------------------------- ---------- ----------------------------------------- ---------
Ronald A. LaBorde, President, Date Edward M. Simmons, Sr., Director Date
Chief Executive Officer and Director
/s/ Paul W. Murrill 9/22/98 /s/ C. Ray Smith 9/22/98
- -------------------------------------------- ---------- ----------------------------------------- ---------
Paul W. Murrill, Chairman of the Board Date C. Ray Smith, Director Date
/s/ Ralph Erben 9/22/98 /s/ J. Fred Johnson 9/23/98
- -------------------------------------------- ---------- ----------------------------------------- ---------
Ralph Erben, Director J. Fred Johnson Date
Executive Vice President, Treasurer
and Chief Financial Officer
(Principal Financial Officer)
/s/ Mark L. Mestayer 9/23/98
- -------------------------------------------- ----------
Mark L. Mestayer, Secretary Date
and Director of Finance
(Principal Accounting Officer)
</TABLE>
9
<PAGE> 10
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
====================================================================================================================================
COL. A COL. B COL. C COL. D COL. E
====================================================================================================================================
Additions
---------
(2)
Balance at (1) Charged to
Beginning of Charged to costs Other Deduction-- Balance at
Description Period and expenses Accounts-Describe Describe End of Period
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Reserves for Unit Closings:
Year ended June 30, 1998:
Property, plant & equipment allowance $ 2,046,488 $ 939,000 $ 1,057,977 (A) $ 1,927,511
Current liability -- --
Long-term liability 2,774,941 2,514,000 16,466,339(B) 1,651,178 (A) 20,104,102
------------ ------------ ------------ ------------ ------------
$ 4,821,429 $ 3,453,000 $ 16,466,339 $ 2,709,155 $ 22,031,613
============ ============ ============ ============ ============
Year ended June 30, 1997:
Property, plant & equipment allowance $ 4,407,472 $ 2,360,984 (A) $ 2,046,488
Current liability 347,496 347,496 (A) --
Long-term liability 5,049,509 2,274,568 (A) 2,774,941
------------ ------------ ------------
$ 9,804,477 $ 4,983,048 $ 4,821,429
============ ============ ============
Year ended June 30, 1996:
Property, plant & equipment allowance $ 800,796 $ 3,726,958 $ 120,282 (A) $ 4,407,472
Current liability 254,339 100,000 6,843 (A) 347,496
Long-term liability 5,009,297 1,000,819 960,607 (A) 5,049,509
------------ ------------ ------------ ------------
$ 6,064,432 $ 4,827,777 $ 1,087,732 $ 9,804,477
============ ============ ============ ============
</TABLE>
(A) Deductions are for the write-off of certain property, plant and equipment
relating to units closed and for the payment of other obligations (primarily
rent) for those units closed and for those units for which a provision for unit
closing was recorded during the years ended June 30, 1992, 1996 and 1998. During
1997, the Company reduced its accrued liability for rental and other occupancy
costs associated with these properties by $600,000 as a result of a favorable
change in management's estimate of future sublease income.
(B) Represents reserves for Morrison units which were recorded as part of the
allocation of purchase price.
10
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
2. Plan and Agreement of Merger dated April 22, 1998, among Piccadilly,
Purchaser and Morrison.(1)
3. (a) Articles of Incorporation of the Company(2), as amended on
September 14, 1987(3) as amended on September 27, 1988(4), and as
amended on September 28, 1989(5).
(b) By-laws of the Company, as amended through July 22, 1996(6).
10. (a) Piccadilly Cafeterias, Inc. 1993 Incentive Compensation Plan(7).
(b) Form of Management Continuity Agreement, effective March 27,
1995, unless otherwise indicated, between Piccadilly Cafeterias,
Inc. and each of Messrs. LaBorde, Bozzell, Fuchs, Goldsmith,
Johnson (November 16, 1995), Landry, Listen, Mestayer, Polito,
Prudhomme, Siddle, Touchet, and Von Gruben(6).
(c) Form of Director Indemnity Agreement, effective April 27, 1995,
unless otherwise indicated, between Piccadilly Cafeterias, Inc.
and each of Messrs. LaBorde, Francis (September 25, 1995), Guyton
(July 1, 1996), Murrill, Redman (September 25, 1995), Simmons and
Smith(6).
(d) Agreement between Piccadilly Cafeterias, Inc. and Ronald A.
LaBorde, effective June 26, 1995(6).
(e) Form of Agreement, effective August 1, 1995, between Piccadilly
Cafeterias, Inc. and each of Malcolm T. Stein, Jr. and James E.
Durham, Jr. (6).
(f) $125,000,000 Credit Agreement dated as of June 24, 1998 and First
Amendment to Credit Agreement dated July 31, 1998 filed herewith
on pages 35 through 154.
13. The Registrant's Annual Report to Shareholders for the fiscal year
ended June 30, 1998.
21. List of Subsidiaries of the Registrant
23. Consent of Independent Auditors
27. Financial Data Schedule.
</TABLE>
- ----------
(1) Incorporated by reference from Exhibit (c) (1) to the Company's Schedule
14D-1 dated April 29, 1998.
(2) Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration No. 2-63249) filed with the Commission on December
19, 1978.
(3) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1987.
(4) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the fiscal year ended June 30, 1988.
(5) Incorporated by reference from the Registrant's Annual Report on Form 10-K,
as amended, for the fiscal year ended June 30, 1989.
(6) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996.
(7) Incorporated by reference from the Company's Annual Report on Form 10-K, as
amended, for the fiscal year ended June 30, 1993.
<PAGE> 1
EXHIBIT 10(f)
$125,000,000
CREDIT AGREEMENT
dated as of
June 24, 1998
among
PICCADILLY CAFETERIAS, INC.,
The Banks Listed Herein
HIBERNIA NATIONAL BANK,
as Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank
and
WACHOVIA BANK, N.A.,
as Co-Arranger, Documentation Agent and a Bank
<PAGE> 2
CREDIT AGREEMENT
AGREEMENT dated as of June 24, 1998 among PICCADILLY CAFETERIAS, INC.,
the BANKS listed on the signature pages hereof, HIBERNIA NATIONAL BANK, as
Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank and
WACHOVIA BANK, N.A., as Co-Arranger, Documentation Agent and a Bank.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . The terms as defined in this Section 1.1
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.6(c).
"Administrative Agent" means HIBERNIA NATIONAL BANK, a national banking
association organized under the laws of the United States of America, in its
capacity as Administrative Agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Affiliate" means any Person that directly or indirectly controls, or
is under common control with, or is controlled by, the Borrower and, if such
Person is an individual, any member of the immediate family (including parents,
spouse, children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and" under common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of Stock, partnership or other ownership interests or other
Securities, by contract or otherwise), provided that, in any event, any Person
that owns directly or indirectly Securities having 10% or more of the voting
power for the election of directors or other governing body of a corporation or
10% or more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to control
such corporation or other Person. Notwithstanding the foregoing, (a) no
individual shall be an Affiliate solely by reason of his or her being a
director, officer or employee of the Borrower or any of its Subsidiaries and (b)
none of the Subsidiaries of the Borrower shall be Affiliates.
"Agent's Letter Agreement" means that certain letter agreement, dated
as of May 7, 1998, between the Borrower, Hibernia and Wachovia relating to the
structure of the Loans and Letters of Credit, and certain fees from time to time
payable by the Borrower to Hibernia and Wachovia, together with all amendments
and modifications thereto.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Anniversary Date" means the Closing Date and each anniversary of the
Closing Date thereafter.
"Applicable Commitment Fee Rate" has the meaning set forth in Section
2.7(a).
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<PAGE> 3
"Applicable Margin" has the meaning set forth in Section 2.6(a).
"Assignee" has the meaning set forth in Section 9.7(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed
in accordance with Section 9.7(c) in the form attached hereto as Exhibit J.
"Authority" has the meaning set forth in Section 8.2.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the Prime Rate. For purposes of determining the Base Rate for any
day, changes in the Prime Rate shall be effective on the date of each such
change.
"Base Rate Loan" means a Loan which bears or is to bear interest at a
rate based upon the Base Rate.
"Borrower" means Piccadilly Cafeterias, Inc., a Louisiana corporation,
and its successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of: (1) Loans made
to the Borrower at the same time by, in the case of a Syndicated Borrowing, the
Banks; or (2) in the case of a Swing Line Borrowing, a Swing Line Advance made
to the Borrower by the Swing Line Lender, in each case pursuant to Article II. A
Borrowing is a "Syndicated Borrowing" if such Loans are Syndicated Loans. A
Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans. A Borrowing is a
"Swing Line Borrowing" if such Borrowing is a Swing Line Advance.
"Capital Expenditures" means for any period the sum of all capital
expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries, as determined in accordance with GAAP. "Capital Stock" means any
capital stock (other than Redeemable Preferred Stock) of the Borrower or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C.Section 9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.2.
"Closing Certificate" has the meaning set forth in Section 3.1(e).
"Closing Date" means June 24, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
2
<PAGE> 4
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, or (ii) as to any
Bank which enters into an Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.8 and 2.9.
"Commitment Fee Determination Date" has the meaning set forth in
Section 2.7(a).
"Compliance Certificate" has the meaning set forth in Section 5.1(c).
"Consolidated Fixed Assets" means, at any time, the fixed assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Fixed Charges" means, as of the date of determination,
the sum (without duplication) of (a) Consolidated Interest Expense, (b)
regularly scheduled payment obligations of the Borrower and its Consolidated
Subsidiaries under all leases and rental agreements (including, without
limitation, any and all payment obligations of the Borrower and its Consolidated
Subsidiaries, with respect to common area maintenance charges, but expressly
excluding any and all prepayments under any leases or rental agreements), (c)
Maintenance Capital Expenditures; and (d) Current Maturities of Long-Term Debt.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Consolidated Net Worth" means, at any time, Stockholders' Equity, as
set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Total Funded Debt" means at any date the Debt of the
Borrower and all its Consolidated Subsidiaries, determined on a consolidated
basis as of such date; provided that for purposes of this definition only, in
determining Consolidated Total Funded Debt: (1) clause (vii) of the definition
of Debt contained in this Agreement shall be disregarded with respect to a
letter of credit or similar instrument so long as no amount is drawn under such
letter of credit or similar instrument; and (2) clause (x) of the definition of
Debt contained in this Agreement shall be disregarded.
"Consolidated Total Capital" means, at any time, the sum of (i)
Consolidated Net Worth, and (ii) Consolidated Total Funded Debt, provided, that
for purposes of this definition only, in determining Consolidated Total Funded
Debt, clauses (vii), (viii), (ix) and (x) of the definition of Debt contained in
this Agreement shall be disregarded.
3
<PAGE> 5
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Current Maturities of Long-Term Debt" means, at any date, the
aggregate amount of all principal payments which are scheduled to be made by the
Borrower and its Consolidated Subsidiaries in respect of Long Term Debt during
the twelve month period beginning on such date or (if such date is not the first
day of a month) on the first day of the month immediately following such date;
provided that for purposes of this definition only, the outstanding Debt of the
Borrower under this Credit Agreement shall be excluded from the calculation of
Long Term Debt.
"Debt" of any Person means 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 and accrued expenses payable arising in the
ordinary 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 or payable under a
letter of credit or similar instrument with an expiration date more than one
year from such date, (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, and (x) all obligations of such Person with
respect to Hedge 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 Hedge Agreement if any).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan or Letter of Credit
Advance, on any day, the sum of 2% plus the then highest interest rate
(including the Applicable Margin) which may be applicable to any Loans hereunder
(irrespective of whether any such type of Loans are actually outstanding
hereunder).
"Depreciation and Amortization" means for any period the sum of all
depreciation and amortization expenses of the Borrower and its Consolidated
Subsidiaries for such period, as determined in accordance with GAAP.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Louisiana are authorized or required by
law to close.
"EBITDA" 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, and (iii)
Depreciation and Amortization, all determined with respect to the Borrower and
its Consolidated Subsidiaries on a consolidated basis for such period and in
accordance with GAAP; provided, however, in determining the "Applicable Margin"
under Section 2.6 and "Applicable Commitment Fee Rate" under Section 2.7, the
calculation of EBITDA made at the Fiscal Quarters ending (1) September 30, 1998,
shall be based upon the actual EBITDA determined with respect to the Borrower
and its Consolidated Subsidiaries (excluding Morrison Restaurants Inc.) and an
annualized EBITDA for Morrison Restaurants Inc. based upon the Fiscal Quarter
ending September 30, 1998; (2) December 31, 1998 shall be based upon the actual
EBITDA
4
<PAGE> 6
determined with respect to the Borrower and its Consolidated Subsidiaries
(excluding Morrison Restaurants Inc.) and an annualized EBITDA for Morrison
Restaurants Inc. based upon the Fiscal Quarters ending September 30, 1998 and
December 31, 1998; and (3) March 31, 1999, shall be based upon the actual EBITDA
determined with respect to the Borrower and its Consolidated Subsidiaries
(excluding Morrison Restaurants Inc.) and an annualized EBITDA for Morrison
Restaurants Inc. based upon the Fiscal Quarters ending September 30, 1998,
December 31, 1998 and March 31, 1999.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to bear interest at a
rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.6(c).
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<PAGE> 7
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Letters of Credit" means the letters of credit described on
Schedule 1.01 - Existing Letters of Credit.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Hibernia on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" means, at any date, the ratio of (a)
Income Available for Fixed Charges for the period of four consecutive Fiscal
Quarters ended on such date or (if such date is not the last day of a Fiscal
Quarter) most recently ended to (b) Consolidated Fixed Charges as of such date.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.2, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means, collectively, the following: (i) Piccadilly
Restaurants, Inc.; (ii) Morrison Restaurants Inc.; and (iii) each Significant
Subsidiary that executes the Guaranty pursuant to Section.5.23.
"Guaranty" means the Guaranty Agreement executed by each of the
Guarantors substantially in the form of Exhibit E hereto, either as originally
executed or as it may be from time to time supplemented, modified, amended,
renewed or extended.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. Section 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b) any
"hazardous substance", "pollutant" or "contaminant", as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined
6
<PAGE> 8
in the Toxic Substances Control Act of 1976, or in any applicable state or local
law or regulation and (e) insecticides, fungicides, or rodenticides, as defined
in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any
applicable state or local law or regulation, as each such Act, statute or
regulation may be amended from time to time.
"Hedge Agreement" means any interest rate, currency or commodity swap,
cap, floor or collar agreement or similar hedging or arrangement providing for
the transfer or mitigation of interest rate, commodity price, or currency value
or exchange rate risk, either generally or under specific contingencies.
"Hibernia" means Hibernia National Bank, a national banking association
and its successors.
"Income Available for Fixed Charges" means, for any period, the sum of
(a) EBITDA for such period, plus (b) the amount deducted in determining EBITDA
for such period for all cash and non-cash expenses of the Borrower and its
Consolidated Subsidiaries under all leases and rental agreements (including,
without limitation, any and all payment obligations of the Borrower and its
Consolidated Subsidiaries with respect to common area maintenance charges, but
expressly excluding any and all prepayments under any leases or rental
agreements).
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing (excluding Swing Line
Borrowings) the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be extended
to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing and ending on the Quarterly Payment Date immediately
succeeding the date of such Borrowing; provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be extended to
the next succeeding Domestic Business Day; and
(b) an Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date, shall end on the Termination
Date.
7
<PAGE> 9
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent.
"Letter of Credit Advance" means an advance made by the Letter of
Credit Issuer pursuant to Section 2.14(c).
"Letter of Credit Agreement" means any agreement entered into by the
Borrower and the Letter of Credit Issuer pursuant to which a Letter of Credit is
issued, as amended, modified or restated from time to time.
"Letter of Credit Issuer" means Hibernia National Bank, as issuer of
the Letters of Credit and any successor Letter of Credit Issuer appointed in
accordance with Section 2.15.
"Letter of Credit Subcommitment" means, with respect to the Letter of
Credit Issuer, $20,000,000.
"Letters of Credit" means the letters of credit issued by the Letter of
Credit Issuer pursuant to Section 2.14(a) and "Letter of Credit" means any one
of such Letters of Credit, as any of such letters of credit may be extended,
renewed, replaced or amended from time to time.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Syndicated Loan or a Swing Line Advance and "Loans"
means Syndicated Loans or Swing Line Advances, or any or all of them, as the
context shall require.
"Loan Documents" means this Agreement, the Notes, the Letter of Credit
Agreement, the Guaranty, any other document evidencing, relating to or securing
the Loans or the Letters of Credit, and any other document or instrument
delivered from time to time in connection with this Agreement, the Guaranty, the
Notes, the Letters of Credit or the Loans, as such documents and instruments may
be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.6(c).
"Long Term Debt" at any time means all Consolidated Total Funded Debt
at such time that, in accordance with GAAP, would be classified as long-term
debt, but in any event shall include, without limitation, (i) any Consolidated
Total Funded Debt that matures (or the maturity of which may at the option of
the Borrower or any Subsidiary be extended such that it matures) more than one
year after the creation of such Consolidated Total Funded Debt or issuance of
the commitment to advance the same, and (ii) without duplication, any
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<PAGE> 10
Consolidated Total Funded Debt outstanding under a line of credit, revolving
credit or similar facilities the commitment for which to advance the same
expires (or the expiration of which may at the option of the Borrower or any
Subsidiary be extended such that it expires), more than one year after the date
of such commitment.
"Maintenance Capital Expenditures" means for any period Capital
Expenditures incurred during such period by the Borrower and its Consolidated
Subsidiaries for the purposes of and in connection with regularly scheduled
maintenance and remodeling of the Properties and other assets of the Borrower
and its Consolidated Subsidiaries, provided that Maintenance Capital
Expenditures shall not be less than $8,000,000 in any Fiscal Year.
"Margin Stock" means "margin stock" as defined in Regulation T, U or X
of the Board of Governors of the Federal Reserve System, as in effect from time
to time, together with all official rulings and interpretations issued
thereunder.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Consolidated Subsidiaries, taken as a whole, (b) the rights and
remedies of the Administrative Agent or the Banks under the Loan Documents, or
the ability of the Borrower or any Guarantor to perform its obligations under
the Loan Documents to which it is a party, as applicable, or (c) the legality,
validity or enforceability of any Loan Document.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Note" means a Syndicated Note or a Swing Line Note and "Notes" means
Syndicated Notes or Swing Line Notes, or any or all of them, as the context
shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
"Officer's Certificate" has the meaning set forth in Section 3.1(f).
"Overnight Euro-Dollar Rate" means the Adjusted London Interbank
Offered Rate applicable for deposits in Dollars for one Euro-Dollar Business
Day.
"Participant" has the meaning set forth in Section 9.7(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability
company, a partnership (including without limitation, a joint venture), an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
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<PAGE> 11
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate denominated as the "base
rate" on corporate loans, adjusted daily, as reported by the Wall Street
Journal, or if the Wall Street Journal discontinues its publication of said base
rate of interest, then the rate of interest established from time to time by the
Board of Directors of Citibank, N.A., New York, New York (or any successor to
Citibank, N.A.), as its "prime" or its "base" lending rate, whether or not that
rate is published, such rate to be adjusted automatically on and as of the
effective date of any change in such Prime Rate. The Prime Rate is but one of
several interest rate bases used by Citibank, N.A. and the Banks. The Banks and
Citibank, N.A. lend at interest rates above and below the Prime Rate.
"Principal Officer" means the chief executive officer or the chief
financial officer of the Borrower.
"Pro Rata Share" of any amount means, with respect to any Bank at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Bank's Commitment at such time and the denominator of which is
the aggregate amount of the Commitments of all of the Banks at such time.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Quarterly Payment Date" means each March 31, June 30, September 30 and
December 31, commencing on June 30, 1998 and continuing thereafter until and
including the Termination Date.
"Rate Determination Date" has the meaning set forth in Section 2.6(a).
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Termination Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the sum of: (A) the aggregate
outstanding principal amount of the Notes; (B) the aggregate outstanding
principal amount of the Letter of Credit Advances; and (C) the aggregate Undrawn
Amount.
"Restricted Payment" means (a) any dividend or other distribution on or
in respect of any shares of the Stock of the Borrower or any Subsidiary of the
Borrower other than dividends payable in shares of common stock or (b) any
payment by the Borrower or any Subsidiary on account of the purchase,
redemption, retirement or acquisition of (i) any shares of the Borrower's or
such Subsidiary's Stock (except shares acquired upon the conversion thereof into
other shares of Stock) or (ii) any option, warrant or other right to acquire
shares of the Borrower's Stock or other Securities of the Borrower or any
Subsidiary convertible into shares of the Borrower's Stock or other Securities
of the Borrower or any Subsidiary convertible into shares of the Borrower's
Stock; provided, however, that Restricted Payments shall not include any payment
or investment described in (a) or (b) above made by a Subsidiary to the Borrower
or to a Significant Subsidiary and provided further that "Restricted Payments"
shall not include any payment for the purchase by the Borrower or by a
Subsidiary of the Borrower from a Person (other than the Borrower or a
Subsidiary of the Borrower) of common stock of Morrison Restaurants Inc.
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<PAGE> 12
(or any other Subsidiary which is not a Wholly Owned Subsidiary) which purchase
is intended to result in Morrison Restaurants Inc. (or such other Subsidiary
which is not a Wholly Owned Subsidiary) becoming a Wholly Owned Subsidiary of
the Borrower.
"Security" has the meaning assigned to such term in Section 2(l) of the
Securities Act of 1933, as amended.
"Significant Subsidiary" means at any time (a) any Subsidiary with
assets greater than or equal to 10% of all assets of the Borrower and its
Consolidated Subsidiaries, (b) any Subsidiary with stockholders' equity greater
than or equal to 10% of the stockholders' equity of the Borrower and its
Consolidated Subsidiaries, and (c) any Subsidiary that represented 10% or more
of the net income or gross revenues of the Borrower and its Consolidated
Subsidiaries during the previous 12 months, in each case as determined based on
the most recent annual or quarterly financial statements delivered to the Bank
pursuant to pursuant to Section 5.1; provided that, if at any time the Borrower
and its Significant Subsidiaries as heretofore defined have aggregate assets of
less than 65% of all assets of the Borrower and its Consolidated Subsidiaries,
then the group of Significant Subsidiaries shall be expanded by reducing the
percentage set forth in clause (a) until the group of Subsidiaries included as
Significant Subsidiaries by such reduction have aggregate assets representing
65% or more of all assets of the Borrower and its Consolidated Subsidiaries, all
determined as set forth above.
"Stock" of any Person means any capital stock or other equity Security,
of any classification, of such Person or any Subsidiary of such Person (to the
extent issued to a Person other than such Person or a Wholly Owned Subsidiary of
such Person).
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock (excluding Redeemable Preferred
Stock but including preferred stock which is not redeemable prior to the
Termination Date), (ii) capital surplus, (iii) retained earnings, and (iv)
various deductions such as (A) purchases of treasury stock, (B) valuation
allowances, (C) receivables due from an employee stock ownership plan, (D)
employee stock ownership plan debt guarantees, and (E) translation adjustments
for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Swing Line Lender" means Hibernia National Bank.
"Swing Line Advance" means a loan made by the Swing Line Lender
pursuant to Section 2.3 hereof.
"Swing Line Loan Request" has the meaning set forth in Section 2.3(b).
"Swing Line Note" means the promissory note of the Borrower,
substantially in the form of Exhibit B hereto, evidencing the obligation of the
Borrower to repay the Swing Line Advances, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
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<PAGE> 13
"Syndicated Loan" means a Base Rate Loan or a Euro-Dollar Loan
(excluding Swing Line Advances) and Syndicated Loans means Base Rate Loans or
Euro-Dollar Loans (excluding Swing Line Advances), or any or all of them, as the
context shall require.
"Syndicated Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the obligation of the
Borrower to repay the Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto and "Syndicated
Note" means any one of such Syndicated Notes.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means June 22, 2001.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Total Unused Commitments" means at any date, an amount equal to: (A)
the aggregate amount of the Commitments of all of the Banks at such time, less
the sum of: (B) (i) the aggregate outstanding principal amount of the Loans of
all of the Banks at such time, and (ii) the aggregate outstanding principal
amount of the Letter of Credit Advances and (iii) the aggregate Undrawn Amounts.
"Transferee" has the meaning set forth in Section 9.7(d).
"Undrawn Amount" means, with respect to any Letter of Credit, at any
time, the maximum amount available to be drawn under such Letter of Credit at
such time and "Undrawn Amounts" means, at any time, the sum of all Undrawn
Amounts at such time.
"Unused Commitment" means at any date, with respect to any Bank, an
amount equal to: (a) its Commitment, less the sum of: (b)(i) the aggregate
outstanding principal amount of its Loans; (ii) its Pro Rata Share of the
aggregate outstanding principal amount of the Letter of Credit Advances and
(iii) its Pro Rata Share of the aggregate Undrawn Amounts.
"Wachovia" means Wachovia Bank, N.A., a national banking association
and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Year 2000 Compliant and Ready" as used herein means that the
Borrower's and its Subsidiaries' hardware and software systems with respect to
the operation of its business and its general business plan will: (i) handle
date information involving any and all dates before, during and/or after January
1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without material
interruption on and in respect of any and all dates before, during and/or after
January 1, 2000 and without any material change in performance; (iii) respond to
and process two digit year input without creating any ambiguity as to the
century; and (iv) store and provide date input information without creating any
ambiguity as to the century.
SECTION 1.2 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with
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<PAGE> 14
GAAP, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants or otherwise required by a change in
GAAP) with the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Banks, unless with
respect to any such change concurred in by the Borrower's independent public
accountants or required by GAAP, in determining compliance with any of the
provisions of this Agreement or any of the other Loan Documents: (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Banks shall
so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.1 hereof,
shall mean the financial statements referred to in Section 4.4).
SECTION 1.3 Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.4 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.5 References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are references
to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.1 Commitments to Make Syndicated Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Syndicated Loans
to the Borrower from time to time before the Termination Date; provided that,
immediately after each such Syndicated Loan is made, the sum of (i) the
aggregate outstanding principal amount of all Syndicated Loans by such Bank,
together with such Bank's Pro Rata Share of the aggregate outstanding Swing Line
Advances; (ii) such Bank's Pro Rata Share of the outstanding principal amount of
all Letter of Credit Advances and (iii) such Bank's Pro Rata Share of the
aggregate Undrawn Amounts, shall not exceed the amount of such Bank's
Commitment, provided further that the sum of (i) the aggregate principal amount
of all Loans, (ii) the aggregate outstanding principal amount of all Letter of
Credit Advances and (iii) the aggregate Undrawn Amounts at any one time
outstanding shall not exceed the aggregate amount of the Commitments of all of
the Banks at such time. Each Syndicated Borrowing under this Section shall be in
an aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000
(except that any such Syndicated Borrowing may be in the aggregate amount of the
Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.2 Method of Borrowing Syndicated Loans.
(a) The Borrower shall give the Administrative Agent notice in the
form attached hereto as Exhibit K (a "Notice of Borrowing") prior to 11:00 A.M.
(New Orleans, Louisiana time) at least 1 Domestic Business Day before each Base
Rate Borrowing and at least 3 Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
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<PAGE> 15
(i) the date of such Syndicated Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Syndicated Borrowing and such Notice of Borrowing shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (New Orleans, Louisiana time) on the
date of each Syndicated Borrowing, each Bank shall (except as provided in
subsection (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in New
Orleans, Louisiana, to the Administrative Agent at its address referred to in or
specified pursuant to Section 9.1. Unless the Administrative Agent determines
that any applicable condition specified in Article III has not been satisfied,
the Administrative Agent will make the funds so received from the Banks
available to the Borrower at the Administrative Agent's aforesaid address.
Unless the Administrative Agent receives notice from a Bank, at the
Administrative Agent's address referred to in Section 9.1, no later than 4:00
P.M. (local time at such address) on the Domestic Business Day before the date
of a Syndicated Borrowing stating that such Bank will not make a Syndicated Loan
in connection with such Syndicated Borrowing, the Administrative Agent shall be
entitled to assume that such Bank will make a Syndicated Loan in connection with
such Syndicated Borrowing and, in reliance on such assumption, the
Administrative Agent may (but shall not be obligated to) make available such
Bank's ratable share of such Syndicated Borrowing to the Borrower for the
account of such Bank. If the Administrative Agent makes such Bank's ratable
share available to the Borrower and such Bank does not in fact make its ratable
share of such Syndicated Borrowing available on such date, the Administrative
Agent shall be entitled to recover such Bank's ratable share from such Bank or
the Borrower (and for such purpose shall be entitled to charge such amount to
any account of the Borrower maintained with the Administrative Agent), together
with interest thereon for each day during the period from the date of such
Syndicated Borrowing until such sum shall be paid in full at a rate per annum
equal to the rate at which the Administrative Agent determines that it obtained
(or could have obtained) overnight Federal funds to cover such amount for each
such day during such period, provided that any such payment by the Borrower of
such Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank. If such Bank shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Syndicated Loan included in such Syndicated Borrowing for
purposes of this Agreement.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Syndicated Loan
from such Bank, such Bank shall apply the proceeds of its new Syndicated Loan to
make such repayment and only an amount equal to the difference (if any) between
the amount being borrowed and the amount being repaid shall be made available by
such Bank to the Administrative Agent as provided in subsection (c) of this
Section, or remitted by the Borrower to the Administrative Agent as provided in
Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
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<PAGE> 16
(f) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the Borrower
is otherwise entitled under this Agreement to repay any Loans maturing at the
end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Borrowing, a new
Borrowing shall be deemed to be made on the date such Loans mature in an amount
equal to the principal amount of the Loans so maturing, and the Loans comprising
such new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, (i)
there shall not be more than 5 different Interest Periods with respect to
Euro-Dollar Borrowings (excluding Swing Line Advances) outstanding at the same
time (for which purpose Interest Periods described in clause (1) of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous) and (ii) the proceeds of any Base
Rate Borrowing shall be applied first to repay the unpaid principal amount of
all Base Rate Loans (if any) outstanding immediately before such Base Rate
Borrowing.
SECTION 2.3 Swing Line Advances.
(a) The Borrower may prior to the Termination Date, as set forth in
this Section, request the Swing Line Lender to make, and the Swing Line Lender
prior to the Termination Date will make, Swing Line Advances to the Borrower, in
an aggregate principal amount at any one time outstanding, not exceeding
$10,000,000, provided that:
(i) the aggregate principal amount of all outstanding Swing
Line Advances, together with the sum of: (1) the aggregate outstanding
principal amount of all other outstanding Loans, at any one time
outstanding and (2) the sum of: (A) the aggregate outstanding principal
amount of the Letter of Credit Advances and (B) the aggregate Undrawn
Amounts shall not at any one time exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(ii) the aggregate principal amount of all outstanding Swing
Line Advances shall not exceed $10,000,000.
(b) Except as the Borrower and Swing Line Lender may otherwise
agree, when the Borrower wishes to request a Swing Line Advance, it shall give
the Administrative Agent notice substantially in the form of Exhibit L hereto (a
"Swing Line Loan Request") so as to be received no later than 11:00 A.M. (New
Orleans, Louisiana time) on or before the date of the proposed Swing Line
Borrowing proposed therein (or such other time and date as the Borrower and the
Swing Line Lender may agree), specifying:
(i) the proposed date of such Swing Line Borrowing, which
shall be a Domestic Business Day (the "Borrowing Date"); and
(ii) the aggregate amount of such Swing Line Borrowing, which
shall be at least $250,000 (or in larger multiples of $50,000) but
shall not cause the limits specified in Section 2.3(a) to be violated;
Each Swing Line Advance shall be for an Interest Period of one day.
Except as the Borrower and Swing Line Lender may otherwise agree, the Borrower
shall not deliver a Swing Line Loan Request more frequently than once every 3
Domestic Business Days.
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<PAGE> 17
(c) Except as the Borrower and Swing Line Lender may otherwise
agree, the Swing Line Lender shall make the amount of such Swing Line Advance
available to the Borrower on such date by depositing the same, in immediately
available funds, in an account of such Borrower maintained with the Swing Line
Lender.
(d) Subject to the limitations contained in this Agreement, the
Borrower may borrow under this Section 2.3, prepay and reborrow under this
Section 2.3 at any time before the Termination Date.
(e) At any time, upon the request of the Swing Line Lender, each
Bank other than the Swing Line Lender shall, on the third Domestic Business Day
after such request is made, purchase a participating interest in Swing Line
Advances in an amount equal to its ratable share (based upon its respective
Commitment) of such Swing Line Advances. On such third Domestic Business Day,
each Bank will immediately transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation. Whenever, at any time after
the Swing Line Lender has received from any such Bank its participating interest
in a Swing Line Advance, the Administrative Agent receives any payment on
account thereof, the Administrative Agent will distribute to such Bank its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by the Administrative Agent is required to
be returned, such Bank will return to the Administrative Agent any portion
thereof previously distributed by the Administrative Agent to it. Each Bank's
obligation to purchase such participating interests shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation: (i) any set-off, counterclaim, recoupment, defense or other right
which such Bank or any other Person may have against the Swing Line Lender
requesting such purchase or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default or the termination
of the Commitments; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, any Guarantor or any other Person; (iv) any breach
of this Agreement by the Borrower, any Guarantor or any other Bank; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
(f) Notwithstanding anything contained in this Agreement to the
contrary, the Swing Line Advance facility contained in this Section 2.3 shall
terminate immediately upon: (i) Hibernia's removal or resignation as
Administrative Agent; or (ii) termination of the Commitments (whether at
maturity or otherwise).
SECTION 2.4 Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a
single Syndicated Note payable to the order of such Bank for the account of its
Lending Office in an amount equal to the original principal amount of such
Bank's Commitment.
(b) The Swing Line Advances made by the Swing Line Lender to the
Borrower shall be evidenced by a single Swing Line Note payable to the order of
the Swing Line Lender.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.1, the
Administrative Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the schedule
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with respect thereto
and whether, in the case of such Bank's Syndicated Note, such Syndicated Loan is
a Base Rate Loan or Euro-Dollar Loan, and such schedule shall constitute
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Bank's Notes; provided that the failure of
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<PAGE> 18
any Bank to make, or any error in making, any such recordation or endorsement
shall not affect the obligation of the Borrower hereunder or under the Notes or
the ability of any Bank to assign its Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.5 Maturity of Loans. Each Loan (excluding Swing Line
Advances) included in any Borrowing shall mature, and the principal amount
thereof (together with accrued interest thereon) shall be due and payable, on
the last day of the Interest Period applicable to such Borrowing. Any and all
Swing Line Advances shall mature, and the principal amount thereof shall be due
and payable, on the Termination Date.
SECTION 2.6 Interest Rates.
(a) "Applicable Margin" shall be determined quarterly based upon
the ratio of Consolidated Total Funded Debt (calculated as of the last day of
each Fiscal Quarter) to EBITDA (calculated for the Fiscal Quarter then ended and
the immediately preceding three Fiscal Quarters), as follows:
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<PAGE> 19
<TABLE>
<CAPTION>
Consolidated Swing Line
Total Funded Advances and
Debt to Base Rate Letters of Euro-Dollar
EBITDA Loans Credit Loans
------------------ --------- ---------- ------------
<S> <C> <C> <C>
Greater than or 0% 1.75% 1.75%
equal to 2.00
Greater than or 0% 1.50% 1.50%
equal to 1.50, but
less than 2.00
Greater than or 0% 1.25% 1.25%
equal to 1.00, but
less than 1.50
Greater than or 0% 1.00% 1.00%
equal to 0.75, but
less than 1.00
Less than 0.75 0% .75% 0.75%
</TABLE>
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 50 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 50 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new Rate
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date occurring on November
19, 1998, the Applicable Margin shall be (A) 0% for Base Rate Loans, (B) 1.50%
for Letters of Credit, and (C) 1.50% for Euro-Dollar Loans and Swing Line
Advances, (ii) in the case of any Applicable Margin determined for the final
Fiscal Quarter of a Fiscal Year, the Rate Determination Date shall be the date
which is 100 days after the last day of such final Fiscal Quarter and such
Applicable Margin shall be determined based upon the annual audited financial
statements for the Fiscal Year ended on the last day of such final Fiscal
Quarter, and (iii) if on any Rate Determination Date the Borrower shall have
failed to deliver to the Banks the financial statements required to be delivered
pursuant to Section 5.1(a) or Section 5.1(b) with respect to the Fiscal Year or
Fiscal Quarter, as the case may be, most recently ended prior to such Rate
Determination Date, then for the period beginning on such Rate Determination
Date and ending on the earlier of (A) the date on which the Borrower shall
deliver to the Banks the financial statements to be delivered pursuant to
Section 5.1(b) with respect to such Fiscal Quarter or any subsequent Fiscal
Quarter, or (B) the date on which the Borrower shall deliver to the Banks annual
financial statements required to be delivered pursuant to Section 5.1(a) with
respect to the Fiscal Year which includes such Fiscal Quarter or any subsequent
Fiscal Year, the Applicable Margin shall be determined as if the ratio of
Consolidated Total Funded Debt to EBITDA was more than 2.00 at all times during
such period. Any change in the Applicable Margin on any Rate Determination Date
shall result in a corresponding change, effective on and as of such Rate
Determination Date, in the interest rate applicable to each Syndicated Loan and
in the fees applicable to each Letter of Credit outstanding on such Rate
Determination Date; provided, that: (i) for Euro-Dollar Loans, changes in
Applicable Margin shall only be effective for Interest Periods commencing on or
after the Rate Determination Date; and (ii) no Applicable Margin shall be
decreased pursuant to this Section 2.6 if a Default is in existence on the Rate
Determination Date.
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<PAGE> 20
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the Quarterly Payment Date immediately succeeding the date of the Borrowing
which included such Base Rate Loan.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin plus the applicable Adjusted
London Interbank Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day of such Interest Period and, if such
Interest Period is longer than 3 months, at intervals of 3 months after the
first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Banker's Association for the purpose of displaying London Interbank
Offered Rates for U.S. dollar deposits) determined as of 1:00 p.m., New York
City time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks by telecopy of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(e) After the occurrence and during the continuance of a Default,
the principal amount of the Loans (excluding any Swing Line Advances) may, at
the election of the Required Banks, bear interest at the Default Rate; provided,
however, that automatically whether or not the Required Banks elect to do so,
any overdue principal of and, to the extent permitted by law, overdue interest
on any Loan (excluding any Swing Line Advance) shall bear interest payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
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(f) Each Letter of Credit Advance shall bear interest on the
outstanding principal amount thereof, payable on demand, for each day from the
date such Letter of Credit Advance is made until paid in full at a rate per
annum equal to the Default Rate.
(g) Each Swing Line Advance shall bear interest on the outstanding
principal amount thereof, for each day such Swing Line Advance is outstanding,
at a rate per annum equal to the sum of the Applicable Margin plus the Overnight
Euro-Dollar Rate. Such interest shall be payable on each Quarterly Payment Date
and on the Termination Date. Any overdue principal of and, to the extent
permitted by applicable law, overdue interest on the Swing Line Advances may, at
the election of the Swing Line Lender, bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
SECTION 2.7 Fees.
(a) The Borrower shall pay to the Administrative Agent for the
ratable account of each Bank a commitment fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Unused Commitment, times
(ii) a per annum percentage equal to the Applicable Commitment Fee Rate. Such
commitment fee shall accrue from and including the Closing Date to and including
the Termination Date. Commitment fees shall be payable quarterly in arrears on
the first Quarterly Payment Date following each Commitment Fee Determination
Date and on the Termination Date; provided that should the Commitments be
terminated at any time prior to the Termination Date for any reason, the entire
accrued and unpaid commitment fee shall be paid on the date of such termination.
The "Applicable Commitment Fee Rate" shall be determined quarterly based upon
the ratio of Consolidated Total Funded Debt (calculated as of the last day of
each Fiscal Quarter) to EBITDA (calculated for the Fiscal Quarter then ended and
the immediately preceding three Fiscal Quarters), as follows:
<TABLE>
<CAPTION>
Ratio of Consolidated Total Applicable
Funded Debt to EBITDA Commitment Fee Rate
------------------------------------------ -------------------
<S> <C>
Greater than or equal to 2.00 .375%
Greater than or equal to 1.50, but less .375%
than 2.00%
Greater than or equal to 1.00 but less .375%
than 1.50
Greater than or equal to 0.75 but less .250%
than 1.00
Less than 0.75 .250%
</TABLE>
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<PAGE> 22
The Applicable Commitment Fee Rate shall be determined effective as of the date
(herein, the "Commitment Fee Determination Date") which is 50 days after the
last day of the Fiscal Quarter as of the end of which the foregoing ratio is
being determined, based on the quarterly financial statements for such Fiscal
Quarter, and the Applicable Commitment Fee Rate so determined shall remain
effective from such Commitment Fee Determination Date until the date which is 50
days after the last day of the Fiscal Quarter in which such Commitment Fee
Determination Date falls (which latter date shall be a new Commitment Fee
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Commitment Fee Determination Date occurring on
November 19, 1998, the Applicable Commitment Fee Rate shall be .375% (ii) in the
case of any Applicable Commitment Fee Rate determined for the fourth and final
Fiscal Quarter of a Fiscal Year, the Commitment Fee Determination Date shall be
the date which is 100 days after the last day of such final Fiscal Quarter and
such Applicable Commitment Fee Rate shall be determined based upon the annual
audited financial statements for the Fiscal Year ended on the last day of such
final Fiscal Quarter, and (iii) if on any Commitment Fee Determination Date the
Borrower shall have failed to deliver to the Banks the financial statements
required to be delivered pursuant to Section 5.1(a) or Section 5.1(b) with
respect to the Fiscal Year or Fiscal Quarter, as the case may be, most recently
ended prior to such Commitment Fee Determination Date, then for the period
beginning on such Commitment Fee Determination Date and ending on the earlier of
(A) the date on which the Borrower shall deliver to the Banks the financial
statements to be delivered pursuant to Section 5.1(b) with respect to such
Fiscal Quarter or any subsequent Fiscal Quarter, and (B) the date on which the
Borrower shall deliver to the Banks annual financial statements required to be
delivered pursuant to Section 5.1(a) with respect to the Fiscal Year which
includes such Fiscal Quarter or any subsequent Fiscal Year, the Applicable
Commitment Fee Rate shall be determined as if the ratio of Consolidated Total
Funded Debt to EBITDA was more than 2.00 at all times during such period.
(b) The Borrower shall pay to the Administrative Agent for the
ratable account of each Bank, with respect to each Letter of Credit, a per annum
letter of credit fee (the "Letter of Credit Fee") equal to the product of: (i)
the aggregate average daily Undrawn Amounts, times (ii) a per annum percentage
equal to the Applicable Margin for Letters of Credit (determined in accordance
with Section 2.13 hereof). Such Letter of Credit Fees shall be payable in
arrears for each Letter of Credit on each Quarterly Payment Date during the term
of each respective Letter of Credit and on the termination thereof (whether at
its stated expiry date or earlier). The "Applicable Margin" for Letters of
Credit shall be as determined in Section 2.6(a).
(c) The Borrower shall pay to the Administrative Agent for the
account of the Letter of Credit Issuer a per annum facing fee (the "Facing Fee")
with respect to each Letter of Credit equal to the product of: (i) the aggregate
average daily Undrawn Amounts, times (ii) one-eighth (1/8th) of one percent per
annum (0.125%) (determined in accordance with Section 2.13). Such Facing Fee
shall be due and payable in arrears for each Letter of Credit on each Quarterly
Payment Date during the term of each respective Letter of Credit and on the
termination thereof (whether at its stated expiry date or earlier). The Borrower
shall pay to the Letter of Credit Issuer, for its own account, transfer fees,
drawing fees and such other fees and charges as may be provided for in any
Letter of Credit Agreement. No Bank shall be entitled to any portion of the
Facing Fees or any other fees payable by the Borrower to the Letter of Credit
Issuer pursuant to this Section 2.7(c).
(d) The Borrower shall pay to the Administrative Agent and
Documentation Agent, for the account and sole benefit of the Administrative
Agent and Documentation Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
SECTION 2.8 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately reduce from time
to time by an aggregate amount of at least $5,000,000 or any larger multiple of
$1,000,000, the Commitments; provided, however, no such termination or reduction
shall be in an amount greater than the Total Unused Commitments on the date of
such termination or reduction. If the Commitments are terminated in their
entirety, all accrued fees (as provided under Section 2.7) shall be payable on
the effective date of such termination.
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<PAGE> 23
SECTION 2.9 Mandatory Reduction and Termination of Commitments.
(a) The Commitments shall terminate on the Termination Date and any
Loans and if demand has not been earlier made, Letter of Credit Advances then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
(b) If at any time after the Closing Date, the Borrower or any of
its Subsidiaries shall issue any Debt permitted under Section 5.24(vii), the
amount of each Bank's Commitment shall be reduced ratably in an amount equal to
100% of the proceeds of such issuance, net of reasonable issuance expenses and
reasonable transaction costs incurred in connection with such issuance; provided
that: (i) reductions under this Section 2.9(b) shall be applied ratably among
the several Banks, provided that no such reduction shall reduce the Swing Line
Lender's obligations under Section 2.3 or the Letter of Credit Subcommitment;
and (ii) if any such reduction pursuant to this Section 2.9(b) shall result in
the aggregate Commitments of all of the Banks to be reduced to an amount less
than $30,000,000, the Borrower shall be required to terminate the Commitments
(including without limitation, the Swing Line Subcommitment and the Swing Line
Lender's obligations under Section 2.3) in their entirety.
SECTION 2.10 Optional Prepayments.
(a) The Borrower may, upon at least 1 Domestic Business Day's
notice to the Administrative Agent, prepay any Base Rate Borrowing in whole at
any time, or from time to time in part in amounts aggregating at least
$5,000,000, or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Base Rate
Loans of the several Banks included in such Base Rate Borrowing.
(b) The Borrower may, upon at least three Euro-Dollar Business
Days' notice to the Administrative Agent, prepay any Euro-Dollar Borrowing in
whole at any time, or from time to time in part in amounts aggregating at least
$5,000,000, or any larger multiple of $1,000,000, by paying the principal amount
to be prepaid together with: (i) accrued interest thereon to the date of
prepayment; and (ii) any amounts due under Section 8.5. Each such optional
prepayment shall be applied to prepay ratably the Euro-Dollar Loans of the
several Banks included in such Euro-Dollar Borrowing.
(c) The Borrower may, at any time and from time to time prepay all
or any portion of the principal amount of any Swing Line Advance.
(d) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such prepayment and such
notice shall not thereafter be revocable by the Borrower.
SECTION 2.11 Mandatory Prepayments. On each date on which the
Commitments are reduced or terminated pursuant to Section 2.8 or Section 2.9,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amounts due under
Section 8.5(a)), as may be necessary so that after such payment the sum of: (i)
the aggregate unpaid principal amount of all Loans, (ii) the aggregate
outstanding principal amount of all Letter of Credit Advances and (iii) the
aggregate Undrawn Amounts, does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Loans of the several Banks; provided that such
prepayment shall be applied, first, to Syndicated Loans outstanding on the date
of such prepayment (in direct order of maturity) and then, to the extent
necessary, to Swing Line Advances outstanding on the date of such prepayment (in
direct order of maturity).
SECTION 2.12 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans, Letter of Credit Advances and of fees hereunder, not
later than 11:00 A.M. (New Orleans, Louisiana time)
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<PAGE> 24
on the date when due, in Federal or other funds immediately available in New
Orleans, Louisiana, to the Administrative Agent at its address referred to in
Section 9.1. The Administrative Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Administrative Agent for the
account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base
Rate Loans, Letter of Credit Advances or the Swing Line Advances or of fees
shall be due on a day which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar Loans shall be due
on a day which is not a Euro-Dollar Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(c) Subject to the provisions of paragraphs (d) and (e) below, all
payments of principal, interest and fees and all other amounts to be made by the
Borrower pursuant to this Agreement with respect to any Loan, Letter of Credit
Advances or fee relating thereto shall be paid without deduction for, and free
from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of each Bank,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan,
Letter of Credit Advances or fee or other amount, the Borrower shall pay such
deduction or withholding to the applicable taxing authority, shall promptly
furnish to any Bank in respect of which such deduction or withholding is made
all receipts and other documents evidencing such payment and shall pay to such
Bank additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the amount
such Bank would have received had no such withholding or other payment been
made; provided, however, that no Participant Assignee or Transferee of any Bank
shall be entitled to receive any greater payment under this Section 2.12 than
such transferor Bank would have been entitled to receive with respect to the
rights assigned unless such assignment shall have been made and assigned at a
time when the circumstances giving rise to such greater payment did not exist.
If no withholding or deduction of Taxes are payable in respect of any Loan,
Letter of Credit Advances or fee relating thereto, the Borrower shall furnish
any Bank, at such Bank's reasonable request, a certificate from each applicable
taxing authority or an opinion of counsel acceptable to such Bank, in either
case stating that such payments are exempt from or not subject to withholding or
deduction of Taxes. If the Borrower fails to provide such original or certified
copy of a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower hereby agrees to compensate such Bank for,
and indemnify them with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12, it will pay to the Borrower the amount
of such refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
(d) At the time it becomes a party to this Agreement or an
Assignee, each Bank (or Assignee) that is organized under the laws of a
jurisdiction outside the United States shall be exempt from or otherwise not
subject to United States Federal withholding tax and shall deliver to the
Administrative Agent and the Borrower the forms prescribed by the Internal
Revenue Service of the United States certifying as to such Bank's (or
Assignee's) status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank (or
Assignee) under the Credit Agreement and the Notes.
(e) Notwithstanding anything to the contrary contained in this
Section 2.12, the Borrower shall not be required to pay any additional amounts
to any Bank (or Assignee) in respect of United
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<PAGE> 25
States Federal withholding tax pursuant to paragraph (c) above if the obligation
to pay such additional amounts would not have arisen but for a failure by such
Bank (or Assignee) to comply with the provisions of paragraph (d) above.
(f) Any Bank (or Assignee) claiming any additional amounts payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Borrower or to change the jurisdiction of its applicable lending office
if the making of such filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would not,
in the sole determination of such Bank (or Assignee), be otherwise
disadvantageous to such Bank (or Assignee).
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall be applicable with respect to any Participant, Assignee
or other Transferee, and any calculations required by such provisions (i) shall
be subject to the terms and conditions of Section 9.7(e), and (ii) constitute a
continuing agreement and shall survive the termination of this Agreement and the
payment in full or cancellation of the Notes.
SECTION 2.13 Computation of Interest and Fees. Interest on Loans and
Letter of Credit Advances based on the Base Rate shall be computed on the basis
of a year of 365/366 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest on Letter of
Credit Advances based on the Default Rate shall be computed on the basis of a
year of 365/366 days and paid for the actual number of days elapsed (including
the first day but excluding the last day). Interest on Euro-Dollar Loans and
interest on Swing Line Advances shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable hereunder shall be
computed on the basis of a year of 365/366 days and paid for the actual number
of days elapsed (including the first day but excluding the last day).
SECTION 2.14 Letters of Credit.
(a) The Letter of Credit Issuer may, from time to time upon request
of the Borrower, in its sole discretion issue Letters of Credit for the account
of the Borrower, subject to satisfaction of the conditions referenced in Section
3.3.
(b) Each Letter of Credit shall be subject to the provisions of
this Agreement and to the provisions set forth in the Letter of Credit Agreement
executed by the Borrower in connection with the issuance of such Letter of
Credit. The Borrower agrees to promptly perform and comply with the terms and
conditions of each Letter of Credit Agreement.
(c) The payment by the Letter of Credit Issuer of a draft drawn
under any Letter of Credit shall constitute for all purposes of this Agreement a
Letter of Credit Advance in the amount of such draft. Upon written demand by the
Letter of Credit Issuer, with a copy to the Administrative Agent, each Bank
shall purchase from the Letter of Credit Issuer, and the Letter of Credit Issuer
shall sell to each Bank, a participation interest in such Letter of Credit
Advance equal to such Bank's Pro Rata Share of such Letter of Credit Advance as
of the date of such purchase, by making available to the Administrative Agent
for the account of the Letter of Credit Issuer in Federal or other funds
immediately available an amount equal to such Bank's Pro Rata Share of the
outstanding principal amount of such Letter of Credit Advance. Promptly after
receipt thereof, the Administrative Agent shall transfer such funds to the
Letter of Credit Issuer. The Borrower hereby agrees to each such sale and
purchase of participation interests in Letter of Credit Advances outstanding
from time to time. Each Bank agrees to purchase its participation interest in an
outstanding Letter of Credit Advance on (i) the Domestic Business Day on which
demand therefor is made by the Letter of Credit Issuer, provided notice of such
demand is given not later than 1:00 P.M. (New Orleans, Louisiana time) on such
Domestic Business Day or (ii) the first Domestic Business Day next succeeding
the date of such demand if notice of such demand is given after 1:00 P.M. (New
Orleans, Louisiana time) on any Domestic Business Day. The Letter of Credit
Issuer makes no representation or warranty and assumes no responsibility with
respect to any sale and purchase of a participation interest in any Letter of
Credit Advance. If and to the extent that any Bank shall not have so made the
amount available to the Administrative Agent in connection with its purchase of
a participation interest in any Letter of
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<PAGE> 26
Credit Advance, such Bank agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by the Letter of Credit Issuer until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for the account of the Letter of
Credit Issuer.
(d) The obligation of each Bank to purchase a participation
interest in any Letter of Credit Advance pursuant to Section 2.14(c) shall be
unconditional and shall not be affected by the existence of any Default, the
failure to satisfy any condition set forth in Section 3.1, 3.2 or 3.3 or the
termination of the Commitments (whether by the Borrower pursuant to Section 2.8
or by the Administrative Agent pursuant to Section 6.1 or otherwise).
(e) The Letter of Credit Issuer shall furnish (A) to the
Administrative Agent and each Bank on the first Domestic Business Day of each
month a written report summarizing the issuance and expiration dates of Letters
of Credit issued during the preceding month and (B) to the Administrative Agent
and each Bank on each Quarterly Payment Date a written report setting forth the
aggregate Undrawn Amounts on such date.
(f) The failure of any Bank to purchase a participation interest in
any Letter of Credit Advance shall not relieve any other Bank of its obligation
hereunder to purchase its participation interest in any Letter of Credit Advance
on such date, but no Bank shall be responsible for the failure of any other Bank
to so purchase a participation interest on such date.
(g) The Borrower shall pay to the Administrative Agent for the
account of each Bank that has purchased a participation interest in a Letter of
Credit Advance on the earlier of demand and the Termination Date the outstanding
principal amount of such Letter of Credit Advance. The Administrative Agent will
promptly distribute to each Bank its ratable share of any payment of principal
of or interest on any Letter of Credit Advance received by the Administrative
Agent; provided, however, that in the event that such payment received by the
Administrative Agent is required to be returned, such Bank will return to the
Administrative Agent any portion thereof previously distributed by the
Administrative Agent to it.
(h) The Letter of Credit Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit (on the date of presentment, if possible, and otherwise on the next
Domestic Business Day, it being agreed that such notice may be made by phone),
together with notice of the date such payment shall be made, and the
Administrative Agent promptly will notify the Banks of such matters.
SECTION 2.15 Substitute Letter of Credit Issuer. The Borrower, with
the consent of the Administrative Agent (which consent shall not be unreasonably
withheld) may in the exercise of its business judgment, remove the Letter of
Credit Issuer and appoint a successor Letter of Credit Issuer; provided that:
(1) any successor Letter of Credit Issuer shall be a Bank under this Agreement;
and (2) prior to the removal of such Letter of Credit Issuer, the Borrower, the
then current Letter of Credit Issuer, the successor Letter of Credit Issuer and
all of the other Banks shall make arrangements (including, without limitation,
amendments and modifications to this Agreement) satisfactory to the then current
Letter of Credit Issuer, the successor Letter of Credit Issuer, the Borrower and
all of the other Banks with respect to the issuance of any Letters of Credits
issued prior to such removal.
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.1 Conditions to First Borrowing. The obligation of each Bank
to make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.2 and the following
additional conditions:
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<PAGE> 27
(a) receipt by the Administrative Agent from each of the parties
hereto of either (i) a duly executed counterpart of this Agreement signed by
such party or (ii) a facsimile transmission stating that such party has duly
executed a counterpart of this Agreement and sent such counterpart to the
Administrative Agent;
(b) receipt by the Administrative Agent of a duly executed
Syndicated Note for the account of each Bank and a duly executed Swing Line Note
for the account of the Swing Line Lender, complying with the provisions of
Section 2.4;
(c) receipt by the Administrative Agent of an opinion of Jones,
Walker, Waechter, Poitevent, Carrere & Denegre, LLP, counsel for the Borrower
and Guarantors, dated as of the Closing Date, substantially in the form of
Exhibit C hereto and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent or any Bank may
reasonably request;
(d) receipt by the Administrative Agent of an opinion of Womble
Carlyle Sandridge & Rice, PLLC, special counsel for the Administrative Agent and
Documentation Agent, dated as of the Closing Date, substantially in the form of
Exhibit D hereto and covering such additional matters relating to the
transactions contemplated hereby as the Administrative Agent may reasonably
request;
(e) receipt by the Administrative Agent of a certificate (the
"Closing Certificate"), dated the date of the first Borrowing, substantially in
the form of Exhibit G hereto, signed by a Principal Officer of the Borrower and
each Guarantor, to the effect that (i) no Default has occurred and is continuing
on the date of the first Borrowing; (ii) the representations and warranties of
the Borrower contained in Article IV are true on and as of the date of the first
Borrowing hereunder; and (iii) the representations and warranties of the
Guarantors contained in the Guaranty are true on and as of the Closing Date;
(f) receipt by the Administrative Agent of all documents which the
Administrative Agent or any Bank may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including without limitation
a certificate of incumbency of the Borrower (the "Officer's Certificate"),
signed by the Secretary or an Assistant Secretary of the Borrower, substantially
in the form of Exhibit H hereto, certifying as to the names, true signatures and
incumbency of the officer or officers of the Borrower authorized to execute and
deliver the Loan Documents, and certified copies of the following items: (i) the
Borrower's Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a
certificate of the Secretary of State of the State of Louisiana as to the good
standing of the Borrower as a Louisiana corporation, and (iv) the action taken
by the Board of Directors of the Borrower authorizing the Borrower's execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party;
(g) (i) receipt by the Administrative Agent of a Notice of
Borrowing (in the case of a Syndicated Borrowing); and (ii) in the case of a
Swing Line Advance, compliance with Section 2.3; and
(h) receipt by the Administrative Agent of all documents which the
Administrative Agent or any Bank may reasonably request relating to the
existence of the Guarantors, the corporate authority for and the validity of the
Guaranty and the other Loan Documents, and any other matters relevant hereto,
all in form and substance satisfactory to the Administrative Agent, including
without limitation a certificate of incumbency of each Guarantor (the "Guarantor
Officer's Certificate"), signed by the Secretary or an Assistant Secretary of
each Guarantor, substantially in the form of Exhibit F hereto, certifying as to
the names, true signatures and incumbency of the officer or officers of the
respective Guarantors authorized to execute and deliver the Loan Documents, and
certified copies of the following items: (i) the Guarantor's Articles of
Incorporation, (ii) the Guarantor's Bylaws, (iii) a certificate of the Secretary
of State of the State of the Guarantor's incorporation as to the existence of
the Guarantor as a corporation, and (iv) the action taken by the Board of
Directors of the Guarantor authorizing the Guarantor's execution, delivery and
performance of the Guaranty and the other Loan Documents to which such Guarantor
is a party;
(i) receipt by the Administrative Agent of the Guaranty, duly
executed by each Guarantor;
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(j) on or before the Closing Date, the Borrower shall have acquired
Morrison Restaurants, Inc. upon terms and conditions substantially similar to
the terms and conditions as set forth in the Borrower's Offer to Purchase For
Cash All Outstanding Common Stock of Morrison Restaurants, Inc., a copy of which
has been delivered by the Borrower to the Administrative Agent and the Banks;
(k) receipt by the Administrative Agent and the Banks of the
calculations, financial information and other supporting data, in form
satisfactory to the Administrative Agent and Banks, in their sole discretion,
identifying the Significant Subsidiaries; and
(l) such other documents or items as the Administrative Agent, the
Banks or their counsel may reasonably request.
SECTION 3.2 Conditions to All Borrowings. The obligation of each Bank
to make a Loan on the occasion of each Borrowing is subject to the satisfaction
of the following conditions:
(a) either (i) receipt by the Administrative Agent of Notice of
Borrowing as required by Section 2.2 (if such Borrowing is a Syndicated
Borrowing), or (ii) compliance with the provisions of Section 2.3 (if such
Borrowing is a Swing Line Borrowing);
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of such Borrowing; and
(d) the fact that the representations and warranties of the
Guarantors contained in the Guaranty shall be true on and as of the date of such
Borrowing;
(e) the fact that, immediately after such Borrowing (i) the sum of
(A) the aggregate outstanding principal amount of the Syndicated Loans of each
Bank, together with such Bank's Pro Rata Share of the aggregate outstanding
Swing Line Advances, (B) each Bank's Pro Rata Share of the aggregate outstanding
principal amount of the Letter of Credit Advances and (C) each Bank's Pro Rata
Share of the aggregate Undrawn Amounts, will not exceed the amount of such
Bank's Commitment and (ii) the sum of (A) the aggregate outstanding principal
amount of the Loans, (B) the aggregate outstanding principal amount of all
Letter of Credit Advances and (C) the aggregate Undrawn Amounts, will not exceed
the aggregate amount of the Commitments of all of the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c), (d) and (e) of this Section.
SECTION 3.3 Conditions to Issuance of Letters of Credit. The issuance
by the Letter of Credit Issuer of each Letter of Credit shall be subject to
satisfaction of the conditions set forth in the related Letter of Credit
Agreement and satisfaction of the following conditions:
(a) the fact that, immediately before and after the issuance of
such Letter of Credit, no Default shall have occurred and be continuing;
(b) the fact that the representations and warranties of (i) the
Borrower contained in Article IV of this Agreement shall be true on and as of
the date of issuance of such Letter of Credit; and (ii) the Guarantors contained
in the Guaranty shall be true on and as of the date of issuance of such Letter
of Credit;
(c) the fact that, immediately after the issuance of such Letter of
Credit: (i) the sum of (A) the aggregate outstanding principal amount of the
Syndicated Loans of each Bank, together with such Bank's Pro Rata Share of the
aggregate outstanding Swing Line Advances, (B) each Bank's Pro Rata Share of the
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aggregate outstanding principal amount of the Letter of Credit Advances and (C)
each Bank's Pro Rata Share of the aggregate Undrawn Amounts, will not exceed the
amount of such Bank's Commitment; and (ii) the sum of (A) the aggregate
outstanding principal amount of the Loans, (B) the aggregate outstanding
principal amount of all Letter of Credit Advances and (C) the aggregate Undrawn
Amounts, will not exceed the aggregate amount of the Commitments of all of the
Banks as of such date; and (iii) the aggregate outstanding principal amount of
all Letter of Credit Advances and the aggregate Undrawn Amounts, will not exceed
the Letter of Credit Subcommitment as of such date; and
(d) no Letter of Credit shall have an expiry date or termination
date on or after the Termination Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1 Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction wherein the failure to so qualify could have or cause a
Material Adverse Effect, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.2 Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of the Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
SECTION 4.3 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.4 Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of June 30, 1997 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Ernst & Young, copies of which have been delivered to
each of the Banks, and the unaudited consolidated financial statements of the
Borrower for the interim period ended March 31, 1998, copies of which have been
delivered to each of the Banks, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since June 30, 1997 there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.5 Litigation. There is no action, suit or proceeding pending,
or to the knowledge of the Borrower threatened, against or affecting the
Borrower or any of its Significant Subsidiaries before any court or arbitrator
or any governmental body, agency or official which could reasonably be expected
to have a Material Adverse Effect or which in any manner draws into question the
validity or enforceability of, or
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could impair the ability of the Borrower to perform its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
SECTION 4.6 Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have
fulfilled their obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group has
incurred any withdrawal liability with respect to any Multiemployer Plan under
Title IV of ERISA in excess of $1,000,000, and no such liability in excess of
$1,000,000 is expected to be incurred.
SECTION 4.7 Taxes. There have been filed on behalf of the Borrower and
its Subsidiaries all Federal, state and local income, excise, property and other
tax returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of the
Borrower or any Subsidiary have been paid; except liabilities being contested in
good faith by appropriate proceedings diligently pursued and against which, if
requested by the Administrative Agent, the Borrower shall have set up reserves
in accordance with GAAP. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate. United States income tax returns
of the Borrower and its Subsidiaries (excluding Morrison Restaurants Inc.) have
been examined and closed through the Fiscal Year ended June 30, 1996. United
States income tax returns of Morrison Restaurants Inc. have been examined and
closed through the Fiscal Year ended June 4, 1994.
SECTION 4.8 Subsidiaries. Each of the Borrower's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, is duly qualified to transact business in
every jurisdiction wherein the failure to so qualify could have or cause a
Material Adverse Effect, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. The Borrower has no Subsidiaries except those
Subsidiaries listed on Schedule 4.8, which accurately sets forth each such
Subsidiary's complete name and jurisdiction of incorporation.
SECTION 4.9 Not an Investment Company. Neither the Borrower nor any of
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11 Ownership of Property; Liens. Each of the Borrower and its
Significant Subsidiaries has title to its properties sufficient for the conduct
of its business, and none of such property is subject to any Lien except as
permitted in Section 5.10.
SECTION 4.12 No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could reasonably be expected to have or cause a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13 Full Disclosure. All information heretofore furnished by
the Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Administrative
Agent or any Bank will be, true, accurate and complete in every material respect
or based on reasonable estimates on the date as of which such information is
stated or certified. The Borrower has disclosed to the Banks in writing any and
all facts which could reasonably be expected to have or cause a Material Adverse
Effect.
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SECTION 4.14 Environmental Matters.
(a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which could reasonably be expected to have or cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. Except as set forth on Schedule 4.14, none of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. Section 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties, except
for Hazardous Materials used, stored or disposed of in the ordinary course of
business in compliance with all applicable Environmental Requirements, except
where any failure to comply with any such Environmental Requirement would not,
alone or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(c) The Borrower, and each of its Subsidiaries, has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Borrower's, and each of its Subsidiary's,
respective businesses, except where any failure to procure any such
Environmental Authorization or to comply with any such Environmental Requirement
would not, alone or in the aggregate, reasonably be expected to have a Material
Adverse Effect
SECTION 4.15 Compliance with Laws. The Borrower and each Subsidiary is
in compliance with all applicable laws, including, without limitation, all
Environmental Requirements, except where any failure to comply with any such
laws would not, alone or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 4.16 Capital Stock. All capital stock, debentures, bonds, notes
and all other securities of the Borrower and its Subsidiaries presently issued
and outstanding are validly and properly issued in accordance with all
applicable laws, including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws, except where any failure to
comply with any such law would not, alone or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The issued shares of capital stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
SECTION 4.17 Margin Stock. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation X.
SECTION 4.18 Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement,
the Borrower will not be "insolvent," within the meaning of such term as used in
O.C.G.A. Section 18-2-22 or as defined in Section 101 of Title 11 of the United
States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent transfers, as each may be amended
from time to time, or be unable to pay its debts generally as such debts become
due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.19 Computer Systems. The Borrower has developed a
comprehensive plan (the "Y2K Plan") for insuring that the Borrower's and its
Subsidiaries' software and hardware systems which materially impact or affect
the business operations of the Borrower and its Subsidiaries will be Year 2000
Compliant and Ready.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
SECTION 5.1 Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, an audited, consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related audited, consolidated statements of income, shareholders' equity and
cash flows for such Fiscal Year, setting forth in each case in comparative form
the figures for the previous fiscal year, all certified by Ernst & Young or
other independent public accountants of nationally recognized standing, with
such certification to be free of exceptions and qualifications not reasonably
acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after the
end of each of the first 3 Fiscal Quarters of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter and the related statement of income and statement of cash
flows for such Fiscal Quarter and for the portion of the Fiscal Year ended at
the end of such Fiscal Quarter, setting forth in each case in comparative form
the figures for the corresponding Fiscal Quarter and the corresponding portion
of the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by a Principal
Officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit I (a "Compliance Certificate"), of a
Principal Officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 5.3 through 5.8, inclusive, 5.13, 5.15, 5.20, 5.23
and 5.24 on the date of such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual and
quarterly financial statements referred to in paragraphs (a) and (b) above, a
statement of a Principal Officer to the effect that nothing has come to their
attention to cause them to believe that the Borrower's and its Subsidiaries
hardware and software systems will not be Year 2000 Compliant and Ready in
accordance with the Y2K Plan;
(e) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of a Principal Officer of
the Borrower setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto;
(f) within 5 Domestic Business Days after the Borrower becomes
aware of any deviations from the Y2K Plan which would cause compliance with the
Y2K Plan to be delayed or not achieved, a statement of a Principal Officer
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
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(i) promptly upon the receipt thereof, a copy of any third party
assessments of the Borrower's Y2K Plan together with any recommendations made by
such third party with respect to Year 2000 compliance;
(j) if and when the Borrower or any member of the Controlled Group
(i) gives or is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) with respect to any Plan which would
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
(k) promptly after the Borrower knows of the existence or
commencement thereof, notice of any litigation, Environmental Liability,
Environmental Notice, Environmental Judgment and Order, dispute or proceeding
(including without limitation, an Environmental Proceeding) involving a claim
against the Borrower and/or any Subsidiary which, if adversely determined, could
reasonably be expected to: (i) have a Material Adverse Effect or (ii) result in
an Event of Default;
(l) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
SECTION 5.2 Inspection of Property, Books and Records. The Borrower
will (i) keep, and will cause each Subsidiary to keep, proper books of record
and account in which full, true and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of an
Event of Default and at the Borrower's expense after the occurrence of an Event
of Default to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable times
and as often as may reasonably be desired.
SECTION 5.3 Ratio of Consolidated Total Funded Debt to EBITDA. At the
end of each Fiscal Quarter the ratio of Consolidated Total Funded Debt,
calculated on the last day of the Fiscal Quarter then ended, to EBITDA,
calculated for the Fiscal Quarter then ended and the immediately preceding three
Fiscal Quarters shall at all times be less than: (i) at the end of each Fiscal
Quarter ending between the Closing Date and March 31, 2000, inclusive, 2.50 to
1.00; (ii) at the end of each Fiscal Quarter ending after March 31, 2000 and on
or before March 31, 2001, 2.25 to 1.00; and (iii) at the end of each Fiscal
Quarter ending after March 31, 2001, 2.00 to 1.00.
SECTION 5.4 Fixed Charge Coverage Ratio. The Borrower shall not suffer
or permit the Fixed Charge Coverage Ratio to be less than: (i) 1.25 to 1.00 at
any time between the Closing Date and March 31, 2000, inclusive, and (ii) 1.50
to 1.00 at any time, after March 31, 2000.
SECTION 5.5 Ratio of Consolidated Total Funded Debt to Consolidated
Total Capital. The ratio of Consolidated Total Funded Debt to Consolidated Total
Capital will not at any time exceed: (i) between the Closing Date and March 31,
2000, inclusive, .60; and (ii) at all times after March 31, 2000, .50 to 1.00.
SECTION 5.6 Restricted Payments. The Borrower will not make any
Restricted Payment during any Fiscal Quarter in an aggregate amount exceeding
$2,000,000; provided that after giving effect to any Restricted Payment
permitted by this Section, no Default shall have occurred and be continuing. The
Borrower will not permit any Subsidiary that is not a Wholly Owned Subsidiary to
declare or make any Restricted Payment.
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SECTION 5.7 Capital Expenditures.
Capital Expenditures will not exceed in the aggregate in any Fiscal
Year the sum of: (1) $20,000,000; plus (2) any Available Restricted Payment,
which sum, if not expended during any Fiscal Year, may be accumulated and
expended in subsequent Fiscal Years; provided that: (1) after giving effect to
the incurrence of any Capital Expenditures permitted by this Section, no Default
shall have occurred and be continuing; and (2) no acquisition permitted under
Section 5.20 shall be included as a Capital Expenditure for purposes of this
Section 5.7. As used herein, "Available Restricted Payment" means at any time,
an amount, if any, equal to: (1) the aggregate amount of Restricted Payments
actually made during the immediately preceding Fiscal Year, subtracted from (2)
$8,000,000.
SECTION 5.8 Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except:
(a) loans or advances to employees not exceeding $500,000 in the
aggregate outstanding made in the ordinary course of business and consistent
with practices existing on June 30, 1997,
(b) deposits required by government agencies or public utilities,
(c) loans or advances to and Investments in Wholly Owned
Subsidiaries, other than Significant Subsidiaries, not exceeding $1,000,000 in
the aggregate outstanding;
(d) with respect to each Significant Subsidiary, for so long as
such Significant Subsidiary shall remain a Wholly Owned Subsidiary, Investments
in such Significant Subsidiary and loans or advances to such Significant
Subsidiary for cash management purposes consistent with the Borrower's historic
practices with respect to its Significant Subsidiaries so long as such
Significant Subsidiary shall have guaranteed the payment and performance of the
Guaranteed Obligations (as defined in the Guaranty) pursuant to the Guaranty,
which guaranty shall remain in full force and effect until such time as the
Guaranteed Obligations (as defined in the Guaranty) shall have been finally and
indefeasibly paid in full and this Agreement shall have been terminated in
writing; provided that no such loans, advances or deposits otherwise permitted
by this Section shall be made if a Default shall have occurred and be continuing
or would occur after giving effect thereto. (a)
SECTION 5.9 Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by Section
5.8 and except Investments in (i) direct obligations of the United States
Government maturing within one year, (ii) certificates of deposit issued by, or
deposit or money market accounts maintained with, a commercial bank or other
financial institution whose credit is satisfactory to the Administrative Agent,
(iii) commercial paper rated A-1 or the equivalent thereof by Standard & Poor's
Corporation or P-1 or the equivalent thereof by Moody's Investors Service, Inc.
and in either case maturing within 6 months after the date of acquisition; (iv)
prime commercial paper and repurchase agreements of United States commercial
banks, whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by Standard & Poor's Corporation and Aa or the equivalent
thereof by Moody's Investors Service, Inc., due within one year from the date of
purchase and payable in the United States in the United States dollars, (v)
tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by
Standard & Poor's Corporation and Aa or the equivalent thereof by Moody's
Investors Service, Inc., and/or (vi) common stock of Morrison Restaurants Inc.
(or any other Subsidiary which is not a Wholly Owned Subsidiary) purchased by
the Borrower or a Subsidiary of the Borrower from a Person (other than the
Borrower or a Subsidiary of the Borrower) which purchase is intended to result
in Morrison Restaurants Inc. (or such other Subsidiary which is not a Wholly
Owned Subsidiary) becoming a Wholly Owned Subsidiary of the Borrower.
SECTION 5.10 Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary will create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with
respect to any of its properties, rights or other assets of any character
(including, without limitation, accounts), whether now owned or hereafter
acquired, or sign or file, or permit any of its Subsidiaries to sign or file,
under the Uniform Commercial Code of any jurisdiction, a financing statement
which names the Borrower or any of its Subsidiaries as debtor, or sign, or
permit any
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Subsidiary to sign, any security agreement, mortgage, deed of trust or other
security instrument authorizing any secured party thereunder to file such
financing statement or assign, or permit any of its Subsidiaries to assign, any
accounts, or assign or otherwise transfer, or permit any of its Subsidiaries to
assign or otherwise transfer, any right to receive income, other than:
(a) Liens for taxes, assessments or governmental charges, levies or
Liens in favor of the United States of America or any subdivision thereof given
to secure partial payments pursuant to contracts, and Liens securing claims or
demands of mechanics and materialmen; provided the Borrower or any of its
Subsidiaries shall not be required to pay any such tax, assessment, charge,
levy, account payable or claim if (i) not paid in good faith or the validity,
applicability or amount thereof is being contested in good faith by such
appropriate actions or proceedings which are necessary to prevent the forfeiture
or sale of any material property of the Borrower or any of its Subsidiaries or
any material interference with the use thereof by the Borrower or any of its
Subsidiaries, and (ii) the Borrower or any of its Subsidiaries shall record on
its books, such reserves, if any, as are deemed by it to be required with
respect thereto;
(b) Liens of or resulting from any judgment or award or otherwise
arising in connection with court proceedings, the time for the appeal or
petition for rehearing of which shall not have expired, or in respect of which
the Borrower or any of its Subsidiaries shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in respect of which a stay
of execution pending such appeal or proceeding for review shall have been
secured or the execution of which is otherwise stayed;
(c) Liens incidental to the conduct of business or the ownership of
properties and assets (including easements and similar encumbrances, Liens in
favor of contractors, materialmen, warehousemen or similar Persons, and
attorneys' liens and statutory or contractual landlords' liens under operating
leases) and deposits, pledges or liens to secure obligations under workers'
compensation laws, unemployment insurance or other forms of governmental
insurance or benefits, or judgments thereunder which are not currently
dischargeable, or to secure the performance of bids, tenders, leases or
contracts, or to secure statutory obligations, surety or appeal bonds or other
Liens of like general nature incurred in the ordinary course of business and not
in connection with the borrowing of money, provided such Liens do not have a
Material Adverse Effect on the Borrower and its Subsidiaries taken as a whole;
(d) restrictions on the use of real or immovable property and minor
irregularities in the title thereto, minor survey exceptions or minor
encumbrances, easements or reservations, or rights of others for rights-of-way,
utilities and other similar purposes, or zoning or other restrictions as to the
use of real or immovable properties, which are necessary for the conduct of the
activities of the Borrower and any of its Subsidiaries or which customarily
exist on properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair the business of the
Borrower or any of its Subsidiaries taken as a whole;
(e) Liens securing Debt of any Subsidiary to the Borrower or to
another Subsidiary;
(f) Liens securing Debt arising from the Borrower's reimbursement
obligations in respect of amounts paid under the Existing Letters of Credit,
which Liens shall be released on or before August 15, 1998;
(g) Liens on Margin Stock; and
(h) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that (1) such Debt is permitted under Section 5.24(v); (2) such Lien
attaches to such asset concurrently with the acquisition thereof; and (3) each
such Lien shall be confined only to the asset financed by the Debt referred to
in this subsection (h).
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SECTION 5.11 Maintenance of Existence. The Borrower shall, and shall
cause each Subsidiary to, maintain its corporate existence and carry on its
business in substantially the same manner and in substantially the same fields
as such business is now carried on and maintained, except through corporate
reorganization to the extent permitted by Section 5.13.
SECTION 5.12 Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except through (1) corporate reorganization to the extent permitted
by Section 5.13; or (2) Restricted Payments to the extent permitted by Section
5.6.
SECTION 5.13 Consolidations, Mergers and Sales of Assets.
(a) The Borrower will not, nor will it permit any Subsidiary to,
consolidate or merge with or into, or sell, assign, lease, transfer, convey or
otherwise dispose of all or any substantial part of its properties, rights or
other assets to, any other Person, or discontinue or eliminate any business line
or segment, provided that, so long as no Default shall have occurred and is
continuing or would occur after giving pro forma effect thereto,
(i) the Borrower or a Significant Subsidiary may merge with
another Person if (1) such Person was organized under the laws of the
United States of America, one of its states or the District of
Columbia, and (2) the Borrower or such Significant Subsidiary, as the
case may be, is the corporation surviving such merger, and
(ii) Subsidiaries of the Borrower (excluding Significant
Subsidiaries) may merge with one another, provided that in the case of
any such merger involving a Wholly Owned Subsidiary, the corporation
surviving such merger is and remains a Wholly Owned Subsidiary.
(b) The Borrower shall not, nor shall it permit any of its
Subsidiaries to, sell, assign, lease, transfer, convey or otherwise dispose of,
all or any substantial part of its properties, rights or other assets to, any
other Person or discontinue or eliminate any business line or segment (whether
now owned or hereafter acquired), other than: (i) dispositions of inventory in
the ordinary course of business; and (ii) the foregoing limitation on the sale,
assignment, lease, transfer, conveyance or other disposition of assets and on
the discontinuation or elimination of a business line or segment shall not
prohibit, during any Fiscal Quarter, a transfer of assets or the discontinuance
or elimination of a business line or segment (in a single transaction or in a
series of related transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be so discontinued, when combined
with all other assets transferred, and all other assets utilized in all other
business lines or segments discontinued during such Fiscal Quarter (the "Current
Fiscal Quarter") and the immediately preceding three Fiscal Quarters (excluding
from such computation the acquisition by Piccadilly Acquisition Corp. of the
common stock of Morrison Restaurants Inc.), contributed more than 10% of EBITDA,
for the four Fiscal Quarters immediately preceding the Current Fiscal Quarter.
SECTION 5.14 Use of Proceeds. The proceeds of the Loans shall be used
solely for: (i) the repayment of outstanding current Debt of the Borrower; (ii)
for general working capital and general corporate purposes; (iii) capital
expenditures, and (iv) the acquisition of Morrison Restaurants, Inc. No portion
of the proceeds of the Loans will be used by the Borrower or any Subsidiary (i)
in connection with, either directly or indirectly, any tender offer for, or
other acquisition of, stock of any other corporation with a view towards
obtaining control of such other corporation, unless such offer or acquisition is
made on a negotiated basis with the approval of the Board of Directors of the
Person to be acquired and, if necessary, the shareholders of the Person to be
acquired, (ii) directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of purchasing or carrying any Margin Stock in violation
of any applicable law or regulation, or (iii) for any other purpose in violation
of any applicable law or regulation.
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SECTION 5.15 Compliance with Laws; Payment of Taxes.
(a) The Borrower will, and will cause each of its Subsidiaries and
each member of the Controlled Group to, comply with applicable laws (including
but not limited to ERISA), regulations and similar requirements of governmental
authorities (including but not limited to PBGC), except where the necessity of
such compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith by appropriate proceedings diligently pursued and
against which, if requested by the Administrative Agent, the Borrower shall have
set up reserves in accordance with GAAP.
(b) The Borrower shall not permit the aggregate complete or partial
withdrawal liability under Title IV of ERISA with respect to Multiemployer Plans
incurred by the Borrower and members of the Controlled Group to exceed
$1,000,000 at any time. For purposes of this Section 5.15(b), the amount of
withdrawal liability of the Borrower and members of the Controlled Group at any
date shall be the aggregate present value of the amount claimed to have been
incurred less any portion thereof which the Borrower and members of the
Controlled Group have paid or as to which the Borrower reasonably believes,
after appropriate consideration of possible adjustments arising under Sections
4219 and 4221 of ERISA, it and members of the Controlled Group will have no
liability, provided that the Borrower shall obtain prompt written advice from
independent actuarial consultants supporting such determination. The Borrower
agrees (i) once in each year, beginning with 1998, to request and obtain a
current statement of the withdrawal liability of the Borrower and members of the
Controlled Group from each Multiemployer Plan, if any, and (ii) to transmit a
copy of such statement to the Administrative Agent and the Banks within fifteen
(15) days after the Borrower receives the same.
SECTION 5.16 Insurance. The Borrower will maintain, and will cause each
of its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its 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 similar business;
provided that the Borrower and its Subsidiaries may continue, consistent with
current practice, to self insure against such risks as to which the Borrower and
its Subsidiaries have historically self-insured.
SECTION 5.17 Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
SECTION 5.18 Maintenance of Property. The Borrower shall, and shall
cause each Subsidiary to, maintain all of its properties and assets in good
condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.19 Environmental Matters. The Borrower and its Subsidiaries
will not, and will not permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle or ship or transport to or from the Properties any Hazardous Materials
except for Hazardous Materials handled in the ordinary course of business in
material compliance with all applicable Environmental Requirements.
SECTION 5.20 Acquisitions. Neither the Borrower, any Guarantor nor any
Subsidiary of the Borrower or of any Guarantor will purchase, lease or otherwise
acquire, directly or indirectly, all or any substantial part of the assets or
stock of, any other Person, if the aggregate amount expended, assumed or
incurred by the Borrower, the Guarantors and the Subsidiaries of the Borrower
and Guarantors in connection with such purchase, lease or acquisition: (i)
exceeds $20,000,000; or (ii) when aggregated with the total amount expended,
assumed or incurred by the Borrower, the Guarantors and the Subsidiaries of the
Borrower and Guarantors in connection with all such other purchases, leases or
acquisitions and all Investments, during the current month and the immediately
preceding 23 months (but excluding any time period prior to the Closing Date)
exceeds
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$20,000,000; provided that after giving effect to any such purchase, lease or
acquisition permitted by this Section 5.20, the Borrower, each Guarantor and the
other Companies will be in full compliance with all provisions of this
Agreement.
SECTION 5.21 Transactions with Affiliates. The Borrower will not, nor
will it permit any of its Subsidiaries to, directly or indirectly, enter into
any agreement or consummate any transaction (including, without limitation,
making any investments in, paying funds to or for the account of, issuing
Securities to, purchasing, leasing or otherwise receiving property or services
from, or selling, leasing or otherwise transferring property or services to)
with any Affiliate except:
(a) directors, officers and employees of the Borrower or its
Subsidiaries may render services to the Borrower or an Affiliate for
compensation at the same rates (taking into account salaries, bonuses,
reimbursements for business expenses and benefits under employee benefit plans)
customarily paid by the Borrower and its Subsidiaries for such services or
approved by all non-employee members of the compensation committee of the
Borrower's Board of Directors;
(b) the execution, delivery and performance of agreements with
labor unions;
(c) the execution, delivery and performance of documents and
agreements, if any, related to this Agreement and the Loan;
(d) the making or payment of any dividend or other distribution of
any nature (whether in cash, property, Securities or otherwise) on account of
any shares of the capital stock of the Borrower or any of its Subsidiaries or
any purchase, redemption, retirement or acquisition of any such shares (or
warrants, rights or options therefor) by the Borrower to its stockholders or by
any Subsidiary of the Borrower to the Borrower, any other Subsidiary of the
Borrower or any other Person that is not an Affiliate (except for any Person
that was not an Affiliate when such Person purchased the shares on which such
amounts are to be paid) to the extent not otherwise prohibited by this
Agreement;
(e) transactions pursuant to the terms of any contract or agreement
in effect on the Closing Date; and
(f) arms' length transactions not otherwise prohibited by this
Agreement in the ordinary course of business consistent with past practice and
good business judgment and authorized by the Board of Directors of the Borrower.
SECTION 5.22 Certain Obligations Respecting Borrower or Subsidiaries.
Neither the Borrower nor any of its Subsidiaries shall enter into, after the
date of this Agreement, any indenture, agreement, instrument or other
arrangement that, directly or indirectly, prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes materially adverse conditions
upon, the incurrence or payment of Debt, the granting of Liens (other than a
negative pledge limited to the collateral securing Debt permitted under Section
5.24(v)), the declaration or payment of dividends, or the sale, assignment,
transfer or other disposition of Property; provided that the Borrower may enter
into an agreement, indenture or other instrument governing, relating to, or
otherwise in connection with the Debt incurred or assumed under Section
5.24(vii) provided that such agreement, indenture or instrument shall not
include covenants, warranties, representations, defaults or events of default
(or any other type of restriction which would have the practical effect of any
of the foregoing, including, without limitation, any "put" or mandatory
prepayment of such debt) or other terms or conditions which are more favorable
to the lender thereunder than those provided in this Agreement or any other Loan
Document.
SECTION 5.23 Significant Subsidiaries. The Borrower shall (i) provide
the Administrative Agent prompt written notice of the creation, formation or
acquisition of any Significant Subsidiary which has not previously executed the
Guaranty (and of the fact that a Subsidiary which was not previously a
Significant Subsidiary and which has not previously executed the Guaranty has
become a Significant Subsidiary), and (ii) as soon as practicable and in any
event within thirty (30) days after the creation, formation or acquisition of
such Significant Subsidiary cause such Significant Subsidiary to execute the
Guaranty in favor of the
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Administrative Agent and the Banks and deliver to the Administrative Agent all
resolutions, opinions of legal counsel and other documents that the
Administrative Agent or any Bank may reasonably request relating to the
existence of such Significant Subsidiary, the corporate authority for and
validity of the Guaranty and any other matters relevant thereto; provided, that:
(a) except as provided in subsection 5.23(b), once a Significant Subsidiary
executes the Guaranty, if at any time thereafter the Subsidiary is not a
Significant Subsidiary, such Subsidiary shall, nevertheless, continue to be
obligated under the Guaranty and shall not be released from the Guaranty; and
(b) if a Significant Subsidiary ceases to be a Subsidiary of the Borrower as a
result of the Borrower's transfer or sale of one hundred percent (100%) of the
capital stock or assets of such Significant Subsidiary in accordance with and
subject to the terms of Section 5.13 (b), the Administrative Agent and Banks
agree to release such Significant Subsidiary from the Guaranty. Notwithstanding
anything contained herein to the contrary, Piccadilly Acquisition Corp. shall
not be required to execute the Guaranty on the Closing Date; provided that if
Piccadilly Acquisition Corp. has not merged into Morrison Restaurants Inc. on or
before August 31, 1998, then upon the request of any Bank, Piccadilly
Acquisition Corp. shall promptly execute the Guaranty.
SECTION 5.24 Debt. Neither the Borrower nor any Subsidiary shall at any
time incur, create, assume, or permit to exist any Debt except: (i) the Loans
and Letters of Credit; (ii) trade indebtedness incurred in the ordinary course
of business; (iii) the Existing Letters of Credit; (iv) loans or advances
permitted under Sections 5.8(c) and (d); (v) Debt incurred or assumed for the
purpose of financing all or any part of the cost of an asset provided that the
aggregate outstanding Debt incurred or assumed pursuant to this Section 5.24(v)
shall not at an time exceed $250,000; (vi) Hedge Agreements entered into from
time to time in the ordinary course of Borrower's business, and (vii) other Debt
the proceeds of which are used to repay the Loans in accordance with Sections
2.9 and 2.11, provided that any such Debt incurred or assumed under this Section
5.24(vii) shall not mature, expire or otherwise become due or payable prior to
the Termination Date.
SECTION 5.25 Existing Letters of Credit. The Borrower shall cause the
Existing Letters of Credit to be terminated on or before July 24, 1998.
SECTION 5.26 Morrison Restaurants Inc. On or before August 31, 1998,
the Borrower shall cause the stock of Morrison Restaurants Inc. to not be
included within the definition of Margin Stock.
ARTICLE VI
DEFAULTS
SECTION 6.1 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or shall fail to pay any interest on any Loan within five Domestic Business
Days after such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within five Domestic Business Days after such fee or
other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.2(ii), 5.3 to 5.15, inclusive, or Section 5.20, 5.23 or
5.24; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for thirty days after the earlier of (i) the first day on which the
Borrower has knowledge of such failure or (ii) written notice thereof has been
given to the Borrower by the Administrative Agent at the request of any Bank; or
(d) any representation, warranty, certification or statement made
or deemed made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
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(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of Debt outstanding (other than the Notes) in an aggregate amount in
excess of $1,000,000 when due or within any applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate principal amount in excess of $1,000,000 or the
mandatory prepayment or purchase of such Debt by the Borrower (or its designee)
or such Subsidiary (or its designee) prior to the scheduled maturity thereof, or
enables the holders of such Debt or any Person acting on such holders' behalf to
accelerate the maturity thereof or require the mandatory prepayment or purchase
thereof prior to the scheduled maturity thereof, without regard to whether such
holders or other Person shall have exercised or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail
to pay when due any material amount (i.e., an amount which, when added to all
such other amounts, shall equal or exceed $1,000,000) which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by
the Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter and such proceeding, and all other such proceedings, if adversely
determined, would result in an aggregate liability in excess of $1,000,000; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Plan or Plans must be terminated and such
termination and all other terminations would result in an aggregate liability in
excess of $1,000,000; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in either
case such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(l) (i) any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
40% or more of the outstanding shares of the voting stock of the Borrower; or
(ii) as of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either
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(A) directors of the Borrower as of the corresponding date of the previous year,
(B) selected or nominated to become directors by the Board of Directors of the
Borrower of which a majority consisted of individuals described in clause (A),
or (C) selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in clause
(A) and individuals described in clause (B); or
(m) (i) the Guaranty shall for any reason cease to be in full force
and effect (other than a Significant Subsidiary being released from such
Guaranty pursuant to Section 5.23) or any Guarantor shall so assert in writing;
or (ii) the occurrence of an Event of Default (as defined in the Guaranty) under
the Guaranty;
(n) the occurrence of any event, act or condition which the
Required Banks determine either does or has a reasonable probability of causing
a Material Adverse Effect;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, (ii) if requested by the Swing Line Lender, by
notice to the Borrower terminate the Swing Line facility set forth in Section
2.03, and (iii) if requested by the Required Banks, by notice to the Borrower
declare the Notes (together with accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents to be, and the Notes
(together with all accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall thereupon become, immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; provided that if any Event
of Default specified in clause (g) or (h) above occurs with respect to the
Borrower, without any notice to the Borrower, any Guarantor or any other act by
the Administrative Agent or the Banks, the Commitments and the Swing Line
facility set forth in Section 2.3 shall thereupon automatically terminate and
the Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. Notwithstanding the
foregoing, the Administrative Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Banks.
SECTION 6.2 Notice of Default. The Administrative Agent shall give
notice to the Borrower of any Default under Section 6.1(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
SECTION 6.3 Cash Cover. If any Event of Default shall have occurred and
be continuing, the Borrower shall, if requested by the Administrative Agent at
the request of the Required Banks, pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to the aggregate
Undrawn Amounts, provided that, if any Event of Default specified in clause (g)
or (h) above occurs with respect to the Borrower, the Borrower shall be
obligated to pay such amount to the Administrative Agent forthwith without any
notice to the Borrower or any other act by the Administrative Agent or the
Banks.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.1 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such other powers as are reasonably incidental thereto.
The Administrative Agent: (a) shall have no duties or responsibilities except as
expressly set forth in this Agreement and the other Loan Documents, and shall
not by reason of this Agreement or any other Loan Document be a trustee for any
Bank; (b) shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any Bank under, this Agreement or any other Loan Document, or
for the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by the Borrower to perform any
of its obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to the Administrative Agent,
and (d) shall not be responsible for any action taken or omitted to be taken by
it hereunder or under any other Loan Document or any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Administrative Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Borrower. The duties of the Administrative Agent shall be
ministerial and administrative in nature, and the Administrative Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.2 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telefax, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the Required Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.3 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or an Event of Default (other than
the non-payment of principal of or interest on the Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or an Event of Default, the Administrative Agent
shall give prompt notice thereof to the Banks. The Administrative Agent shall
give each Bank prompt notice of each non-payment of principal of or interest on
the Loans, whether or not it has received any notice of the occurrence of such
non-payment. The Administrative Agent shall (subject to Section 9.5) take such
action with respect to such Default or Event of Default as shall be directed by
the Required Banks, provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
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SECTION 7.4 Rights of Administrative Agent and its Affiliates as a
Bank. With respect to any Loan made by Hibernia or an Affiliate of Hibernia such
Affiliate and Hibernia in their capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Hibernia (or in Hibernia's case, acting as
the Administrative Agent) and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include such Affiliate of Hibernia or Hibernia in
its individual capacity. Such Affiliate and Hibernia may (without having to
account therefor to any Bank) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the Borrower (and
any of its Affiliates) as if they were not an Affiliate of the Administrative
Agent or the Administrative Agent, respectively, and such Affiliate and Hibernia
may accept fees and other consideration from the Borrower (in addition to any
agency fees and arrangement fees heretofore agreed to between the Borrower and
Hibernia) for services in connection with this Agreement or any other Loan
Document or otherwise without having to account for the same to the Banks.
SECTION 7.5 Indemnification. Each Bank severally agrees to indemnify
the Administrative Agent, to the extent the Administrative Agent shall not have
been reimbursed by the Borrower, ratably in accordance with its Commitment, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other Loan Document or
any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided, however, that no Bank shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct of the
Administrative Agent. If any indemnity furnished to the Administrative Agent for
any purpose shall, in the opinion of the Administrative Agent, be insufficient
or become impaired, the Administrative Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
SECTION 7.6 CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT SHALL NOT
BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.7 Payee of Note Treated as Owner. The Administrative Agent
may deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent and the provisions of
Section 9.7(c) have been satisfied. Any requests, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor or replacement thereof. Each Bank acknowledges that
each Bank designated as a "Co-Arranger" or "Documentation Agent" on the
signature pages of this Agreement shall have no right, duty or responsibility,
and shall incur no liability, under this Agreement in its capacity as a
"Co-Arranger" or "Documentation Agent."
SECTION 7.8 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the
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Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any other Person (or any of their
Affiliates) which may come into the possession of the Administrative Agent.
SECTION 7.9 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.5 against any and all liability and expense which may be
incurred by the Administrative Agent by reason of taking, continuing to take, or
failing to take any such action.
SECTION 7.10 Resignation or Removal of Administrative Agent. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Borrower and the Administrative Agent may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's notice of resignation or the
Required Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent. Any successor Administrative Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.1 Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in Dollars
(in the applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Administrative Agent that the
London Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding the relevant
type of Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make the type of Euro-Dollar Loans specified in such
notice shall be suspended. Unless the Borrower notifies the Administrative Agent
at least 2 Domestic Business Days before the date of any Borrowing of such type
of Euro-Dollar Loans for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing.
SECTION 8.2 Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any existing or future law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such authority, bank or
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or
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impossible for any Bank (or its Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.5(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.3 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any
Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of any Authority:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans, or shall change the
basis of taxation of payments to any Bank (or its Lending Office) of
the principal of or interest on its Euro-Dollar Loans or any other
amounts due under this Agreement in respect of its Euro-Dollar Loans
or its obligation to make Euro-Dollar Loans (except for changes in the
rate of tax on the overall net income of such Bank or its Lending
Office imposed by the jurisdiction in which such Bank's principal
executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
(b) If any Bank shall have determined that after the date hereof
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
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(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.3 shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made, subject to the terms and conditions
of Section 9.7(e), based upon the circumstances of such Participant, Assignee or
other Transferee.
SECTION 8.4 Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans has been
suspended pursuant to Section 8.2 or (ii) any Bank has demanded compensation
under Section 8.3, and the Borrower shall, by at least 5 Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (in all cases
interest and principal on such Loans shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
(c) In the event that the Borrower shall elect that the provisions
of this Section shall apply to any Bank, the Borrower shall remain liable for,
and shall pay to such Bank as provided herein, all amounts due such Bank under
Section 8.3 in respect of the period preceding the date of conversion of such
Bank's Loans resulting from the Borrower's election.
SECTION 8.5 Compensation. Upon the request of any Bank, delivered to
the Borrower and the Administrative Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.9, Section
2.10, Section 8.2 or otherwise) of a Euro-Dollar on a date other than the last
day of an Interest Period for such Euro-Dollar Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the
date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the
date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.2;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably
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determined by such Bank) such Bank would have paid on deposits in Dollars of
comparable amounts having terms comparable to such period placed with it by
leading banks in the London interbank market (if such Euro-Dollar Loan is a
Euro-Dollar Loan).
SECTION 8.6 Replacement of Bank. In the event that any Bank gives any
notice under Section 8.2 resulting in the suspension of its obligation to make
Euro-Dollar Loans or requests compensation pursuant to Sections 2.12 or 8.3,
then, so long as the condition giving rise to such suspension or compensation
exists, the Borrower may designate another bank or financial institution (such
bank or financial institution being herein called a "Replacement Bank")
acceptable to the Administrative Agent (which acceptance will not be
unreasonably withheld) and which is not an Affiliate of the Borrower, to assume
such Bank's Commitment hereunder and to purchase the Loans of such Bank and such
Bank's rights under this Agreement and the Notes held by such Bank, all without
recourse to or representation or warranty by, or expense to, such Bank, for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Bank plus any accrued but unpaid interest on such Loans and accrued but
unpaid fees owing to such Bank plus any amounts payable to such Bank under
Section 8.05, and upon such assumption, purchase and substitution, and subject
to the execution and delivery to the Agent by the Replacement Bank of
documentation satisfactory to the Agent (pursuant to which such Replacement Bank
shall assume the obligations of such original Bank under this Agreement), the
Replacement Bank shall succeed to the rights and obligations of such Bank
hereunder. In the event that the Borrower exercises its rights under the
preceding sentence, the Bank against which such rights were exercised shall no
longer be a party hereto or have any rights or obligations hereunder; provided
that the obligations of the Borrower to such Bank under Article VIII and Section
9.03 with respect to events occurring or obligations arising before or as a
result of such replacement shall survive such exercise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted or
receipt of such telecopy transmission is otherwise confirmed, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, and (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article II or Article VIII shall not
be effective until received.
SECTION 9.2 No Waivers. No failure or delay by the Administrative Agent
or any Bank in exercising any right, power or privilege hereunder or under any
Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.3 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses of the Administrative Agent and Documentation Agent,
including fees and disbursements of Womble, Carlyle, Sandridge & Rice, PLLC
special counsel for the Administrative Agent and Documentation Agent, in
connection with the preparation of this Agreement and the other Loan Documents,
any waiver or consent hereunder or thereunder or any amendment hereof or thereof
or any Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Administrative Agent or any
Bank, including fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting therefrom,
including out-of-pocket expenses incurred in enforcing this Agreement and the
other Loan Documents.
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(b) The Borrower shall indemnify the Administrative Agent and each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any Authority by reason of the execution and delivery of this Agreement or
the other Loan Documents.
(c) The Borrower shall indemnify the Administrative Agent, the
Banks and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or result
from any actual or proposed use by the Borrower of the proceeds of any extension
of credit by any Bank hereunder or breach by the Borrower of this Agreement or
any other Loan Document or from investigation, litigation (including, without
limitation, any actions taken by the Administrative Agent or any of the Banks to
enforce this Agreement or any of the other Loan Documents) or other proceeding
(including, without limitation, any threatened investigation or proceeding)
relating to the foregoing, and the Borrower shall reimburse the Administrative
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and Administrative Agents, upon demand for any expenses
(including, without limitation, legal fees) incurred in connection with any such
investigation or proceeding; but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified.
SECTION 9.4 Setoffs; Sharing of Set-Offs.
(a) The Borrower hereby grants to each Bank, as security for the
full and punctual payment and performance of the obligations of the Borrower
under this Agreement, a continuing lien on and security interest in all deposits
and other sums credited by or due from such Bank to the Borrower or subject to
withdrawal by the Borrower; and regardless of the adequacy of any collateral or
other means of obtaining repayment of such obligations, each Bank may at any
time upon or after the occurrence of any Event of Default, and without notice to
the Borrower, set off the whole or any portion or portions of any or all such
deposits and other sums against such obligations, whether or not any other
Person or Persons could also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Notes held
by it or the Letter of Credit Advances owed to it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Notes held by and the Letter of
Credit Advances owed to such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Notes held by and the
Letter of Credit Advances owed to the other Banks owing to such other Banks,
and/or such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by and the
Letter of Credit Advances owed to the Banks owing to such other Banks shall be
shared by the Banks pro rata; provided that (i) nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or counterclaim it
may have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes and the
Letter of Credit Advances, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note or Letter of Credit Advance,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
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SECTION 9.5 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall, unless
signed by all the Banks, (i) change the Commitment of any Bank or subject any
Bank to any additional obligation, (ii) change the principal of or rate of
interest on any Loan or any fees hereunder, or the amount of the Guaranteed
Obligations (as defined in the Guaranty) payable by any Guarantor under the
Guaranty, (iii) change the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, or any of the Guaranteed Obligations
(as defined in the Guaranty) under the Guaranty (iv) change the amount of
principal, interest or fees due on any date fixed for the payment thereof, (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the percentage of Banks, which shall be required for the
Banks or any of them to take any action under this Section or any other
provision of this Agreement, (vi) change the manner of application of any
payments made under this Agreement, the Guaranty or the Notes, (vii) amend
Section 2.15, (viii) release or substitute all or any substantial part of the
collateral (if any) held as security for the Loans, or (ix) release any guaranty
given to support payment of the Loans (including, without limitation, the
Guaranty, but expressly excluding the release of a Significant Subsidiary from
the Guaranty pursuant to and in accordance with Section 5.23).
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement unless each Bank shall be informed thereof by the Borrower and shall
be afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be delivered
by the Borrower to each Bank forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks. The
Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.6 Margin Stock Collateral. Each of the Banks represents to
the Administrative Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.7 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder; provided that the interest of such Bank being participated pursuant
to such participation (determined as of the effective date of the participation)
shall be equal to $2,000,000 (or any larger multiple of $1,000,000). In the
event of any such sale by a Bank of a participating interest to a Participant,
such Bank's obligations under this Agreement shall remain unchanged, such Bank
shall remain solely responsible for the performance thereof, such Bank shall
remain the holder of any such Note for all purposes under this Agreement, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. In no event shall a Bank that sells a participation be
obligated to the Participant to take or refrain from taking any action hereunder
except that such Bank may agree that it will not (except as provided below),
without the consent of the Participant, agree to (i) the change of any date
fixed for the payment of principal of or interest on the related Loan
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or Loans, (ii) the change of the amount of any principal, interest or fees due
on any date fixed for the payment thereof with respect to the related Loan or
Loans, (iii) the change of the principal of the related Loan or Loans, (iv) any
change in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) commitment fee is payable hereunder
from the rate at which the Participant is entitled to receive interest or
commitment fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any guaranty given
to support payment of the Loans, but excluding the release of a Significant
Subsidiary from the Guaranty pursuant to and in accordance with Section 5.23.
Each Bank selling a participating interest in any Loan, Note, Commitment or
other interest under this Agreement shall, within 10 Domestic Business Days of
such sale, provide the Borrower and the Administrative Agent with written
notification stating that such sale has occurred and identifying the Participant
and the interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in Loans outstanding from time to time, subject to the
limitations set forth in Section 9.7(e).
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
J, executed by such Assignee, such transferor Bank and the Administrative Agent
(and, in the case of: (i) an Assignee that is not then a Bank or an Affiliate of
a Bank; and (ii) an assignment not made during the existence of a Default or an
Event of Default, by the Borrower); provided that (i) no interest may be sold by
a Bank pursuant to this paragraph (c) unless the Assignee shall agree to assume
ratably equivalent portions of the transferor Bank's Commitment, (ii) the amount
of the Commitment of the assigning Bank being assigned pursuant to such
assignment (determined as of the effective date of the assignment) shall be
equal to $5,000,000 (or any larger multiple of $1,000,000), (iii) no interest
may be sold by a Bank pursuant to this paragraph (c) to any Assignee that is not
then a Bank or an Affiliate of a Bank without the consent of the Borrower, which
consent shall not be unreasonably withheld, provided that the Borrower's consent
shall not be necessary with respect to any assignment made during the existence
of a Default or an Event of Default; (iv) a Bank may not have more than one
Assignee that is not then a Bank at any one time, and (v) no interest may be
sold by a Bank pursuant to this paragraph (c) to any Assignee that is not then a
Bank or an Affiliate of a Bank, without the consent of the Administrative Agent,
which consent shall not be unreasonably withheld, provided, that although the
Administrative Agent's consent may not be necessary with respect to an Assignee
that is then a Bank or an Affiliate of a Bank, no such assignment shall be
effective until the conditions set forth in the following sentence are
satisfied. Upon (A) execution of the Assignment and Acceptance by such
transferor Bank, such Assignee, the Administrative Agent and (if applicable) the
Borrower, (B) delivery of an executed copy of the Assignment and Acceptance to
the Borrower and the Administrative Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment by the assigning Bank of a
processing and recordation fee of $3,500 to the Administrative Agent, such
Assignee shall for all purposes be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank under this Agreement (including,
without limitation, the obligations of a Bank under Sections 2.3 and 2.14) to
the same extent as if it were an original party hereto with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by the Borrower, the Banks or the Administrative Agent
shall be required. Upon the consummation of any transfer to an Assignee pursuant
to this paragraph (c), the transferor Bank, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note is
issued to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.8, the Borrower authorizes
each Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 2.12 or 8.3 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
49
<PAGE> 51
Section 8.2 or 8.3 requiring such Bank to designate a different Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Anything in this Section 9.7 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
SECTION 9.8 Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided, however, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Bank's legal counsel and independent auditors and (viii) to any actual or
proposed Participant, Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 9.8.
SECTION 9.9 Representation by Banks. Each Bank hereby represents
that it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however,
that, subject to Section 9.7, the disposition of the Note or Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.10 Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11 Survival of Certain Obligations. Sections 8.3(a),
8.3(b), 8.5 and 9.3, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding, the termination
of this Agreement and the Commitments and the payment in full of the principal
of and interest on all Loans.
SECTION 9.12 Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13 Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14 Interest. In no event shall the amount of interest due
or payable hereunder or under the Notes exceed the maximum rate of interest
allowed by applicable law, and in the event any such payment is inadvertently
made to any Bank by the Borrower or inadvertently received by any Bank, then
such
50
<PAGE> 52
excess sum shall be credited as a payment of principal, unless the Borrower
shall notify such Bank in writing that it elects to have such excess sum
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Banks not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
applicable law.
SECTION 9.15 Interpretation. No provision of this Agreement or any
of the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16 Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Notes and the other Loan Documents, (b) waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State of
Georgia for the purpose of litigation to enforce this Agreement, the Notes or
the other Loan Documents, and (c) agrees that service of process may be made
upon it in the manner prescribed in Section 9.1 for the giving of notice to the
Borrower. Nothing herein contained, however, shall prevent the Administrative
Agent from bringing any action or exercising any rights against any security and
against the Borrower personally, and against any assets of the Borrower, within
any other state or jurisdiction.
SECTION 9.17 Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
51
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, under seal, by their respective authorized officers as of
the day and year first above written.
PICCADILLY CAFETERIAS, INC.
By: /s/ Ronald A. LaBorde (SEAL)
-----------------------------------
Name: Ronald A. LaBorde
-----------------------------------
Title: President & Chief Executive Officer
-----------------------------------
3232 South Sherwood Forest Blvd.
Baton Rouge, LA 70821-2467
Attention: Fred J. Johnson, Chief
Financial Officer
Telecopy number: (504) 296-8370
Telephone number: (504) 293-9440
52
<PAGE> 54
COMMITMENTS HIBERNIA NATIONAL BANK, as Co-Arranger,
Administrative Agent, Letter of Credit
Issuer and as a Bank
Commitment:
$25,000,000 By: /s/ Janet O. Rack (SEAL)
---------------------------------
Name: Janet Olson Rack
---------------------------------
Swing Line Commitment: Title: Senior Vice President
---------------------------------
$10,000,000 Lending Office:
Letter of Credit Subcommitment:
Hibernia National Bank
$20,000,000 440 Third Street
3rd Floor
Baton Rouge, LA 70801
Attention: Janet Rack
Telecopy number: (504) 381-2003
Telephone number: (504) 381-2140
53
<PAGE> 55
Commitment: WACHOVIA BANK, N.A., as Co-Arranger,
Documentation Agent and as a Bank
$25,000,000
By: /s/ Charles L. Battle (SEAL)
---------------------------------
Name: Charles L. Battle
---------------------------------
Title: Senior Vice President
---------------------------------
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N. E.
Mail Code GA-3940
Atlanta, Georgia 30303-1757
Attention: Terribian Atkins (29th Floor)
Telecopy number: (404) 332-5016
Telephone number: (404) 442-4208
with a copy to:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Mail Code GA-3940
Atlanta, Georgia 30303-1757
Attention: Charles Battle (29th Floor)
Telecopy number: (404) 332-5016
Telephone number: (404) 332-6589
54
<PAGE> 56
Commitment: SOUTHTRUST BANK, NATIONAL ASSOCIATION
$11,250,000
By: /s/ Hal Clemmer (SEAL)
---------------------------------
Name: Hal Clemmer
---------------------------------
Title: Vice President
---------------------------------
Lending Office:
420 North 20th Street
Birmingham, Alabama 35203
Attention: Hal Clemmer, Vice President
Telecopy number: (205) 254-5022
Telephone number: (205) 254-5386
55
<PAGE> 57
Commitment: AMSOUTH BANK
$11,250,000
By: /s/ Alan Lott (SEAL)
---------------------------------
Name: Alan Lott
---------------------------------
Title: Vice President
---------------------------------
Lending Office:
P.O. Drawer 11007
1900 5th Avenue North
Birmingham, Alabama 35288
Attention: Regional Banking
Telecopy number: (205) 583-4436
Telephone number: (205) 801-0605
56
<PAGE> 58
Commitment: BRANCH BANKING AND TRUST COMPANY
$11,250,000
By: /s/ Thatcher L. Townsend, III (SEAL)
------------------------------------
Thatcher L. Townsend, III
------------------------------------
Vice President
------------------------------------
Lending Office:
110 South Stratford Road
P.O. Box 15008
Winston-Salem, NC 27113-5008
Attention: Corporate Accounts Division
Telecopy number: (336) 733-3254
Telephone number: (336) 733-3245
57
<PAGE> 59
Commitment: WHITNEY NATIONAL BANK
$11,250,000
By: /s/ Paul J. Brown (SEAL)
---------------------------------
Name: Paul J. Brown
---------------------------------
Title: Senior Vice President
---------------------------------
Lending Office:
P. O. Box 2862
Baton Rouge, LA 70821
Attention: Paul J. Brown
Telecopy number: (504) 381-0469
Telephone number: (504) 381-0449
58
<PAGE> 60
Commitment: BANK ONE, LOUISIANA, N.A.
$9,000,000 By: /s/ Jeffrey E. Gould (SEAL)
---------------------------------
Name: Jeffrey E. Gould
---------------------------------
Title: Sr. Vice President
---------------------------------
Lending Office:
P. O. Box 1511
Baton Rouge, LA 70821-1511
Attention: Jeffrey E. Gould
Commercial Banking
Telecopy number: (504) 332-4305
Telephone number: (504) 332-4305
59
<PAGE> 61
Commitment: THE FUJI BANK, LIMITED
$9,000,000
By: /s/ David Kelley (SEAL)
---------------------------------
Name: David Kelley
---------------------------------
Title: Sr. Vice President
---------------------------------
Lending Office:
1 Houston Center, Suite 4100
1221 McKinney Street
Houston, Texas 77010
Attention: Jay Fort
Telecopy number: (713) 759-0048
Telephone number: (713) 650-7855
60
<PAGE> 62
Commitment: FIRST TENNESSEE BANK NATIONAL ASSOCIATION
$6,000,000
By: /s/ Rosemary R. Moody (SEAL)
---------------------------------
Name: Rosemary R. Moody
---------------------------------
Title: Vice President
---------------------------------
Lending Office:
800 South Gay Street
P. O. Box 280
Knoxville, TN 37995-0280
Attention: Rosemary Moody
Corporate Banking Division
Telecopy number: (423) 971-2769
Telephone number: (423) 971-2138
61
<PAGE> 63
Commitment: DEPOSIT GUARANTY NATIONAL BANK
$6,000,000
By: /s/ Samuel M. Lane (SEAL)
---------------------------------
Name: Samuel M. Lane
---------------------------------
Title: Senior Vice President
---------------------------------
Lending Office:
3525 N. Causeway Blvd.
Metairie, LA 7002
Attention: Bill Hindrichs
Telecopy number: (504) 838-4651
Telephone number: (504) 838-4541
62
<PAGE> 64
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
LETTER ISSUE EXPIRY STATED
ISSUER ACCOUNT PARTY NUMBER DATE DATE AMOUNT
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
AmSouth Morrison S314037 6/23/97 6/19/99 $ 100,000.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
AmSouth Morrison S314038 6/23/97 6/19/99 $3,790,166.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
AmSouth Morrison S314039 6/23/97 6/19/99 $ 60,000.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
AmSouth Morrison S314040 6/23/97 6/19/99 $ 250,000.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
AmSouth Morrison S314041 6/23/97 6/19/99 $ 355,000.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
AmSouth Morrison S315024 4/24/98 6/01/99 $ 775,000.00
Restaurants Inc.
- ---------------------------------------------------------------------------------------------------
Wachovia Piccadilly 870-007145 4/05/98 4/05/99 $5,745,703.00
Cafeterias, Inc.
- ---------------------------------------------------------------------------------------------------
Hibernia Piccadilly 5125 2/04/88 1/02/99 $ 50,000.00
Cafeterias, Inc.
- ---------------------------------------------------------------------------------------------------
Hibernia Piccadilly 7154 4/15/97 4/07/99 $ 350,000.00
Cafeterias, Inc.
- ---------------------------------------------------------------------------------------------------
</TABLE>
63
<PAGE> 65
SCHEDULE 4.08
EXISTING SUBSIDIARIES
<TABLE>
<CAPTION>
Name of Subsidiary Jurisdiction of Incorporation
- ------------------ -----------------------------
<S> <C>
Piccadilly Restaurants, Inc. Louisiana
Morrison Restaurants, Inc. Georgia
Cajun Bayou Distributor & Louisiana
Management, Inc.
Piccadilly Beverage, Inc. Louisiana
Piccadilly Acquisition Corp., Inc. Georgia
</TABLE>
64
<PAGE> 66
SCHEDULE 4.14
ENVIRONMENTAL MATTERS
1. Morrison Shopping Center lease site located at 4500 Hollywood Boulevard,
Hollywood, Florida. Phase II Environmental Site Assessment prepared for
Morrison in 1997 shows that there were releases of solvent from an adjacent
dry cleaning facility. However, these releases were below action levels
established by the Florida Department of Environmental Protection (DEP).
There was no indication that there had been any other correspondence,
reporting to, or closure issued by, DEP.
2. The second Morrison site is located at the Timberland Crossing Shopping
Center, 2792 Hargrove Road, Smyrna, in Cobb County, Georgia. There was
release of dry cleaning solvent into the soil and ground water by Fashion
Care, Inc.
The site in question was formerly owned by Morrison and is now subject to a
sale lease back to them for their location. The contamination reportedly
occurred after the sale.
The documents provided by Fashion Care representatives indicates there is
monitoring and ground water remediation ongoing at the site since 1996.
Remediation is under the supervision of the Georgia Environmental
Protection Division (EPD). The ground water contamination appears to be
decreasing over time as a result of the remediation; however, the EPD has
not issued a closure letter or no further action letter yet for the site.
This site is listed on a state priority list.
3. The third site is a Borrower site and is on a data base for leaking
underground storage tanks. This site is located at 1906 St. Charles Rock,
St. Ann, Missouri, 63074. It was the subject of a leaking underground
storage tank. The data base indicates that one steel tank was removed by
1997. It had a capacity of holding 300 gallons of fuel. The tank material
was steel, the interior protection was unknown, and the exterior protection
was paint. The piping was of galvanized steel. There is no further
information about this site other than it is inactive.
With respect to potential contingent liability of the Borrower to pay
additional costs to remediate these three sites, the Borrower believes that
any such costs will not have a material adverse effect on the Borrower's
consolidated results of operations, financial position or cash flows.
65
<PAGE> 67
EXHIBIT A
SYNDICATED NOTE
$_______________________ Atlanta, Georgia June _____, 1998
For value received, PICCADILLY CAFETERIAS, INC., a Louisiana
corporation (the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Syndicated Note on the dates and at the rate or rates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of HIBERNIA NATIONAL BANK, 313 Carondelet Street, New Orleans,
Louisiana 70130, or such other address as may be specified from time to time
pursuant to the Credit Agreement.
All Syndicated Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make, or any error of the Bank in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Note is one of the Syndicated Notes referred to in the Credit
Agreement dated as of June ___, 1998 among the Borrower, Hibernia National Bank,
as Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank,
Wachovia Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and certain
other Banks listed on the signature pages thereof and their successors and
assigns (as the same may be amended or modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment and the repayment hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
The Borrower agrees, in the event that this Note or any portion hereof
is collected by law or through an attorney at law, to pay all reasonable costs
of collection, including, without limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated Note to be
duly executed under seal, by its duly authorized officer as of the day and year
first above written.
PICCADILLY CAFETERIAS, INC.
By:
--------------------------------------
Title:
-----------------------------------
66
<PAGE> 68
SYNDICATED NOTE (CONT'D)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
AMOUNT OF
TYPE OF INTEREST AMOUNT OF PRINCIPAL MATURITY NOTATION
DATE LOAN(1) RATE LOAN REPAID DATE MADE BY
---- ------- --------- --------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
</TABLE>
- ----------
(1) I.e., a Base Rate or Euro-Dollar Loan.
67
<PAGE> 69
EXHIBIT B
SWING LINE NOTE
$10,000,000 Atlanta, Georgia June ____, 1998
For value received, PICCADILLY CAFETERIAS, INC., a Louisiana
corporation (the "Borrower"), promises to pay to the order of HIBERNIA NATIONAL
BANK (the "Bank"), for the account of its Lending Office, the principal sum of
TEN MILLION and No/100 Dollars ($10,000,000), or such lesser amount as shall
equal the unpaid principal amount of each Swing Line Advance made by the Bank to
the Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of this Swing Line Note on the dates
and at the rate or rates provided for in the Credit Agreement. Interest on any
overdue principal of and, to the extent permitted by law, overdue interest on
the principal amount hereof shall bear interest at the Default Rate, as provided
for in the Credit Agreement. All such payments of principal and interest shall
be made in lawful money of the United States in Federal or other immediately
available funds at the office of HIBERNIA NATIONAL BANK, 313 Carondelet Street,
New Orleans, Louisiana 70130, or such other address as may be specified from
time to time pursuant to the Credit Agreement.
All Swing Line Advances made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make, or any error of the Bank in making, any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
68
<PAGE> 70
This Note is the Swing Line Note referred to in the Credit Agreement
dated as of June ___, 1998 among the Borrower, Hibernia National Bank, as
Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank, Wachovia
Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and certain other
Banks listed on the signature pages thereof and their successors and assigns (as
the same may be amended or modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment and
the repayment hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
The Borrower agrees, in the event that this Note or any portion hereof
is collected by law or through an attorney at law, to pay all reasonable costs
of collection, including, without limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line
Note to be duly executed under seal, by its duly authorized officer as of the
day and year first above written.
PICCADILLY CAFETERIAS, INC.
By:
--------------------------------------
Title:
-----------------------------------
69
<PAGE> 71
SWING LINE NOTE (CONT'D)
SWING LINE ADVANCE AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
AMOUNT OF AMOUNT OF NOTATION
DATE ADVANCE PRINCIPAL REPAID MATURITY DATE MADE BY
---- --------- ---------------- ------------- --------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------
</TABLE>
70
<PAGE> 72
EXHIBIT C
[See Attachment]
71
<PAGE> 73
EXHIBIT D
OPINION OF
WOMBLE, CARLYLE, SANDRIDGE & RICE, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
Hibernia National Bank, as Administrative Agent
313 Carondelet Street
New Orleans, LA 70130
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of June ___, 1998 among PICCADILLY CAFETERIAS,
INC., a Louisiana corporation (the "Borrower"), Hibernia National Bank, as
Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank, Wachovia
Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and certain other
Banks listed on the signature pages thereof and their successors and assigns,
and have acted as special counsel for the Administrative Agent for the purpose
of rendering this opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, and assuming the due authorization, execution and
delivery of the Guaranty by or on behalf of each Guarantor, we are of the
opinion that the Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note constitutes valid and binding obligations of the
Borrower, and the Guaranty constitutes a valid and binding agreement of each
Guarantor, in each case enforceable in accordance with its terms except as: (i)
the enforceability thereof may be affected by bankruptcy, insolvency,
reorganization, fraudulent conveyance, voidable preference, moratorium or
similar laws applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement, the Guaranty and the Notes may be
further limited by the laws of the State of Georgia; provided, however, such
additional laws do not, in our opinion, substantially interfere with the
practical realization of the benefits expressed in the Credit Agreement, the
Guaranty and the Notes, except for the economic consequences of any procedural
delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction except the State of Georgia. We
express no opinion as to the effect of the compliance or noncompliance of the
Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by reason
of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
72
<PAGE> 74
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
WOMBLE, CARLYLE, SANDRIDGE & RICE, PLLC
By:
-------------------------------------
Christopher E. Leon
Manager
73
<PAGE> 75
EXHIBIT E
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (as amended, supplemented, restated, extended,
renewed or otherwise modified and in effect from time to time, this "Agreement")
is made as of the 24th day of June, by and from PICCADILLY RESTAURANTS, INC., a
Louisiana corporation and MORRISON RESTAURANTS INC., a Georgia corporation
(hereinafter collectively referred to herein with their respective successors
and assigns as the "Guarantors" and individually as a "Guarantor"), to and for
the benefit of HIBERNIA NATIONAL BANK, a national banking association (together
with its successors, assigns, endorsees and transferees, the "Administrative
Agent") in its capacity as Administrative Agent for the Banks as defined in that
certain Credit Agreement of even date herewith between Piccadilly Cafeterias,
Inc., a Louisiana corporation (together with its successors and assigns, the
"Borrower"), Hibernia National Bank, as Co-Arranger, Administrative Agent,
Letter of Credit Issuer and a Bank, Wachovia Bank, N.A., as Co-Arranger,
Documentation Agent and a Bank and certain other Banks listed on the signature
pages thereof and their successors and assigns (as the same shall be amended,
supplemented, restated, extended, renewed or otherwise modified and in effect
from time to time, the "Credit Agreement").
BACKGROUND:
A. The Guarantors have requested the Banks to extend credit to the Borrower
under the Credit Agreement and the Banks have agreed to extend such credit by
reason of such request and in reliance upon this Agreement;
B. The Administrative Agent and the Banks require additional assurances and
guarantees by the Guarantors as one of the conditions for making the Loans, the
Letters of Credit and the other financial accommodations provided in the Credit
Agreement to the Borrower;
C. The Guarantors are Wholly Owned Subsidiaries of the Borrower and, as
described in the following paragraph, will receive substantial benefit from the
Credit Agreement and the terms of the covenant permitting the Borrower to make
loans and advances to the Guarantors;
D. As part of their negotiation of the terms and provisions of the Credit
Agreement, the Banks have agreed, in Section 5.8(d) of the Credit Agreement,
that notwithstanding the limitation set forth in Section 5.8(c) thereof on the
aggregate amount of loans and advances that may be made to Subsidiaries of the
Borrower, the Borrower may make loans or advances to Guarantors for cash
management purposes consistent with the Borrower's historic practices with
respect to its Significant Subsidiaries so long as the Guarantors shall have
guaranteed the payment and performance of the Guaranteed Obligations, which
guaranty shall remain in full force and effect until such time as the Guaranteed
Obligations shall have been finally and indefeasibly paid in full and the Credit
Agreement shall have been terminated in writing;
E. Each Guarantor acknowledges the receipt of substantial direct benefits by the
making of the Loans and Letters of Credit to the Borrower;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Guarantors hereby
agree as follows:
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1. Definitions. Unless otherwise defined herein, capitalized terms defined in
the Credit Agreement are used herein as therein defined. In addition, the
following terms used herein shall have the following meanings:
2. "Guaranteed Obligations" means any and all liabilities, indebtedness and
obligations of any and every kind and nature, heretofore, now or hereafter
owing, arising, due or payable from the Borrower to the Banks, the
Administrative Agent, the Letter of Credit Issuer, the Documentation Agent
or any of them, arising under or evidenced by the Credit Agreement, the
Notes, the Letter of Credit Agreement, or any other Loan Document, whether
primary, secondary, direct, contingent, fixed, joint and several, joint or
several or otherwise, heretofore, now or hereafter executed and delivered
by the Borrower or for or under which the Borrower is or may be liable or
has or may become liable, whether arising by assumption, operation of law
or otherwise, together with any and all extensions and renewals of such
liabilities, indebtedness and obligations.
3. Unconditional Guaranty. Each Guarantor hereby jointly and severally,
irrevocably and unconditionally guarantees, as a primary obligor and not
merely as a surety, to the Banks and the Administrative Agent the due and
punctual payment of the principal of and the premium, if any, and interest
on the Guaranteed Obligations and any and all other amounts due under or
pursuant to the Loan Documents, when and as the same shall become due and
payable (whether at stated maturity or by optional or mandatory prepayment
or by demand, declaration, redemption or otherwise) in accordance with the
terms of the Loan Documents. The guarantee of the Guarantors under this
Section is an absolute, present and continuing guarantee of payment and not
of collectibility, and is in no way conditional or contingent upon any
attempt to collect the Guaranteed Obligations, or any them, from the
Borrower, any Subsidiary of the Borrower or any other guarantor of the
Guaranteed Obligations (or any portion thereof) or upon any other action,
occurrence or circumstances whatsoever. In the event that the Borrower or
any Subsidiary of the Borrower shall fail so to pay any such principal,
premium, interest or other amount, the Guarantors will, jointly and
severally, pay the same forthwith, without demand, presentment, protest or
notice of any kind (all of which are waived by the Guarantors to the
fullest extent permitted by law), in lawful money of the United States, at
the place for payment from time to time specified in the Loan Documents or
specified by the Administrative Agent in writing, to the Administrative
Agent. The Guarantors further agree, promptly after demand, to pay to the
Administrative Agent and the Banks the costs and expenses incurred in
connection with enforcing the rights of the Administrative Agent and the
Banks against the Guarantors hereunder (whether in a bankruptcy proceeding
or otherwise) following any default in payment of any of the Guaranteed
Obligations or the obligations of the Guarantors hereunder, including,
without limitation, the fees and expenses of the counsel to the
Administrative Agent and the Banks.
4. Obligations Absolute. The obligations of the Guarantors hereunder are and
shall be absolute and unconditional, irrespective of the validity,
regularity or enforceability of this Agreement, any of the Guaranteed
Obligations or any of the Loan Documents, shall not be subject to any
counterclaim, set-off, deduction or defense based upon any claim the
Guarantors may have against the Borrower, any Subsidiary of the Borrower,
the Administrative Agent or the Banks hereunder or otherwise, and shall
remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, to the fullest extent
permitted by law, any circumstance or condition whatsoever (whether or not
the Guarantors shall have any knowledge or notice thereof), including,
without limitation:
a. any amendment or modification of or supplement to any of the Loan
Documents or any other instrument referred to herein or therein, or
any assignment or transfer of any thereof or of any interest therein,
or any furnishing or acceptance of additional security for any of the
Guaranteed Obligations;
b. any waiver, consent or extension under any Loan Document or any such
other instrument, or any indulgence or other action or inaction under
or in respect of, or any extensions or renewals of, any Loan Document,
any such other instrument or any Guaranteed Obligation;
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<PAGE> 77
c. any failure, omission or delay on the part of the Administrative Agent
or any Bank to enforce, assert or exercise any right, power or remedy
conferred on or available to the Administrative Agent or any Bank
against the Borrower, any Subsidiary of the Borrower or any other
guarantor;
d. any bankruptcy, insolvency, readjustment, composition, liquidation or
similar proceeding with respect to the Borrower, any Subsidiary of the
Borrower or any property of the Borrower or any such Subsidiary or any
unavailability of assets against which the Guaranteed Obligations, or
any of them, may be enforced;
e. any merger or consolidation of the Borrower, any Subsidiary of the
Borrower or any Guarantor into or with any other Person or any sale,
lease or transfer of any or all of the assets of any Guarantor, the
Borrower or any Subsidiary of the Borrower to any Person;
f. any failure on the part of the Borrower or any Subsidiary of the
Borrower for any reason to comply with or perform any of the terms of
any other agreement with any of the Guarantors;
g. any exercise or non-exercise of any right, remedy, power or privilege
under or in respect of any of the Loan Documents or the Guaranteed
Obligations, including, without limitation, under this Section;
h. any default, failure or delay, willful or otherwise, in the
performance or payment of any of the Guaranteed Obligations;
i. any furnishing or acceptance of security, or any release, substitution
or exchange thereof, for any of the Guaranteed Obligations;
j. any failure to give notice to any Guarantor of the occurrence of any
breach or violation of, or any event of default or any default under
or with respect to, any of the Loan Documents or the Guaranteed
Obligations;
k. any partial prepayment, or any assignment or transfer, of any of the
Guaranteed Obligations; or
l. any other circumstance (other than final and indefeasible payment in
full) which might otherwise constitute a legal or equitable discharge
or defense of a guarantor or which might in any manner or to any
extent vary the risk of any Guarantor.
Each Guarantor covenants that its obligations hereunder will not be
discharged except by complete performance of the obligations contained in
the Loan Documents and this Agreement and the final and indefeasible
payment in full of the Guaranteed Obligations. Each Guarantor
unconditionally waives, to the fullest extent permitted by law (i) notice
of any of the matters referred to in this Section, (ii) all notices which
may be required by statute, rule of law or otherwise to preserve any of the
rights of the Administrative Agent or any Bank against any Guarantor,
including, without limitation, presentment to or demand of payment from the
Borrower, any of the Borrower's Subsidiaries or any Guarantor with respect
to any Loan Document or this Agreement, notice of acceptance of this
Agreement or the guarantee of any Guarantor hereunder and/or notice to the
Borrower, any of the Borrower's Subsidiaries or any Guarantor of default or
protest for nonpayment or dishonor, (iii) any diligence in collection from
or protection of or realization upon all or any portion of the Guaranteed
Obligations or any security therefor, any liability hereunder, or any party
primarily or secondarily liable for all or any portion of the Guaranteed
Obligations, (iv) any duty or obligation of the Administrative Agent or any
Bank to proceed to collect all or any portion of the Guaranteed Obligations
from, or to commence an action against, the Borrower, any of its
Subsidiaries or any other Person, or to resort to any security or to any
balance of any deposit account or credit on the books of the Administrative
Agent or any Bank in favor of the Borrower, any of its Subsidiaries or any
other Person, despite any notice or request of any Guarantor to do so, and
(v) any rights of a Guarantor pursuant to O.C.G.A. Section 10-7-24 or any
similar or subsequent law.
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<PAGE> 78
5. Full Recourse Obligations. Subject to the terms of Section 26, the
obligations of the Guarantors are full recourse obligations of each
Guarantor and may be enforced against any or all of the assets of any or
all of the Guarantors notwithstanding any limitation on enforceability of
all or any of the Guaranteed Obligations or the Loan Documents against
assets of the Borrower, any of its Subsidiaries or any other Person.
6. Continuing Obligations; Reinstatement. The obligations of the Guarantors
under this Agreement are continuing obligations and shall continue in full
force and effect until such time as all of the Guaranteed Obligations (and
any renewals and extensions thereof) shall have been finally and
indefeasibly paid and satisfied in full and the Loan Documents shall have
been terminated in writing. The obligations of the Guarantors hereunder
shall continue to be effective or be automatically reinstated, as the case
may be, if any payment made by the Borrower, any Subsidiary of the Borrower
or any other Person on, under or in respect of any of the Guaranteed
Obligations is rescinded or must otherwise be restored or returned by the
recipient upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any such Subsidiary or other Person, or
upon or as a result of the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to the Borrower or any such
Subsidiary or other Person or any substantial part of the property of the
Borrower or any such Subsidiary or other Person, or otherwise, all as
though such payment had not been made. If an event permitting the
acceleration of all or any portion of the Guaranteed Obligations shall at
any time have occurred and be continuing, and such acceleration shall at
such time be stayed, enjoined or otherwise prevented for any reason,
including without limitation because of the pendency of a case or
proceeding relating to the Borrower, any of its Subsidiaries or any other
Person under any bankruptcy or insolvency law, for purposes of this
Agreement and the obligations of the Guarantors hereunder, such Guaranteed
Obligations shall be deemed to have been accelerated with the same effect
as if such Guaranteed Obligations had been accelerated in accordance with
the terms of the applicable Loan Documents or of this Agreement.
7. Authorization. Each Guarantor authorizes the Administrative Agent and each
Bank without notice to or demand on the Guarantors and without affecting
their liability hereunder, from time to time (a) to obtain additional or
substitute endorsers or guarantors; (b) to exercise or refrain from
exercising any rights against, and grant indulgences to, the Borrower, any
Subsidiary of the Borrower or others; and (c) to apply any sums, by
whomsoever paid or however realized, to the payment of the principal of,
premium, if any, and interest on, and other obligations consisting of, the
Guaranteed Obligations. Each Guarantor waives any right to require the
Administrative Agent or any Bank to proceed against any additional or
substitute endorsers or guarantors or the Borrower or any of its
Subsidiaries or any other Person or to pursue any other remedy available to
the Administrative Agent or any Bank.
8. Information Concerning Borrower. Each Guarantor assumes all responsibility
for being and keeping itself informed of the financial condition and assets
of the Borrower and its Subsidiaries, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which each Guarantor assumes and
insures hereunder, and agrees that neither the Administrative Agent nor any
Bank will have any duty to advise any Guarantor of information known to the
Administrative Agent and the Banks regarding or in any manner relevant to
any of such circumstances or risks.
9. Performance by Guarantors. The Guarantors may at any time elect to pay or
otherwise perform any obligation of the Borrower or a Subsidiary of the
Borrower under any Loan Document or in respect of any Guaranteed
Obligation, which payment or performance shall operate as a discharge and
release of the Borrower or such Subsidiary (but only to the extent of such
payment or performance) from such obligation to the Administrative Agent
and the Banks, provided that no such election shall release the Borrower or
any such Subsidiary from any of its other indebtedness, obligations or
liabilities under or in respect of the Loan Documents or the Guaranteed
Obligations.
10. Subordination. The Guarantors hereby absolutely subordinate, both in right
of payment and in time of payment, any present and future indebtedness of
the Borrower or any Subsidiary of the Borrower to the Guarantors to the
indebtedness of the Borrower or any such Subsidiary to the Administrative
Agent and the Banks. Notwithstanding any payment made by the Guarantors
hereunder, no Guarantor shall be entitled to be subrogated to any rights of
the Administrative Agent or any Bank until the final and indefeasible
payment in full of the principal of, the premium, if any, and interest on
the Guaranteed Obligations (whether of the Borrower or a Subsidiary of the
Borrower) and the written termination of the Loan Documents.
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<PAGE> 79
11. Waiver of Subrogation. Notwithstanding anything herein to the contrary,
each Guarantor hereby waives any right of subrogation (under contract,
Section 509 of the Bankruptcy Code or otherwise) or any other right of
indemnity, reimbursement or contribution and hereby waives any right to
enforce any remedy that the Administrative Agent or any Bank now has or may
hereafter have against the Borrower, any of its Subsidiaries or any
endorser or any other guarantor of all or any part of the Guaranteed
Obligations, and each Guarantor hereby waives any benefit of, and any right
to participate in, any security or collateral given to the Administrative
Agent or any Bank to secure payment or performance of the Guaranteed
Obligations or any other liability of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Bank. The waiver contained
in this Section shall continue and survive the termination of this
Agreement and the final and indefeasible payment in full of the Guaranteed
Obligations.
12. Enforcement Actions. In the event that the Guarantors shall fail forthwith
to pay upon demand of the Administrative Agent or any Bank any amounts due
pursuant to this Agreement or to perform or comply with or to cause
performance or compliance with any other obligation of the Guarantors under
this Agreement, the Administrative Agent and Banks shall be entitled and
empowered to institute any action or proceeding at law or in equity for the
collection of the sums so due and unpaid or for the performance of or
compliance with such terms, and may prosecute any such action or proceeding
to judgment or final decree and may enforce such judgment or final decree
against the Guarantors and collect in the manner provided by law out of the
property of the Guarantors, wherever situated, any monies adjudged or
decreed to be payable. The obligations of the Guarantors under this
Agreement are continuing obligations and a fresh cause of action shall
arise in respect of each default hereunder.
13. Representation and Warranties. The Guarantors, jointly and severally,
represent and warrant to the Administrative Agent and each Bank as follows:
a. The execution, delivery and performance by each Guarantor of this
Agreement and the consummation of the transactions contemplated hereby
(i) are within the legal powers of such Guarantor, (ii) have been duly
authorized by all requisite corporate action, (iii) do not and will
not conflict with, contravene or violate any provision of, or result
in a breach of or default under, or require the waiver (not already
obtained) of any provision of or the consent (not already given) of
any Person under the terms of, (A) such Guarantor's articles of
incorporation or by-laws, or (B) any indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to
which such Guarantor or any subsidiary of such Guarantor is a party or
by or to which such Guarantor or any subsidiary of such Guarantor is
bound or to which any properties of such Guarantor or any subsidiary
of such Guarantor are subject, (iv) do not and will not violate,
conflict with, give rise to any liability under, or constitute a
default under any law, regulation, order or any other requirement of
any court, tribunal, arbitrator, or governmental authority; and (v) do
not and will not result in the creation, imposition, or acceleration
of any indebtedness or tax or any mortgage, lien, reservation,
covenant, restriction, or other encumbrance of any nature upon, or
with respect to, such Guarantor or any properties of such Guarantor.
This Agreement constitutes a valid and legally binding obligation of
each Guarantor, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors'
rights.
b. The execution and delivery of this Agreement by each Guarantor and the
performance of the transactions contemplated hereby do not require any
action, approval or consent of, or filing with or notice to, any
governmental authority.
14. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given, if to the Administrative Agent and the Banks,
at their respective addresses or telecopy numbers set forth in the Credit
Agreement or, if to the Guarantors, at their respective addresses or
telecopy numbers set forth on the signature pages hereof or, in either
case, such other address or telecopy number as such party may hereafter
specify for the
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purpose by notice to the other party. Each such notice, request or other
communication shall be effective (a) if given by telecopier, when such
telecopy is transmitted to the telecopy number referred to in or specified
pursuant to this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted
or receipt of such telecopy transmission is otherwise confirmed, (b) if
given by mail, 72 hours after such communication is deposited in the mails
for delivery by first class, certified mail (with return receipt
requested), postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address referred to in or specified
pursuant to this Section.
15. No Waivers . No failure or delay by the Administrative Agent or any Bank in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
16. Georgia Law. This Agreement shall be construed in accordance with and
governed by, and any dispute arising out of or related to the relationship
established between the Guarantors, the Administrative Agent and the Banks
in connection with this Agreement (and whether arising in contract, tort,
equity, or otherwise) shall be resolved in accordance with, the internal
laws and not the conflicts of law provisions of the State of Georgia, but
giving effect to federal laws applicable to national banks. This Agreement
is intended to be effective as instruments executed under seal.
17. Severability. This Agreement is intended to be performed in accordance
with, and only to the extent permitted by, all applicable laws. If any
provision of any of this Agreement or the application thereof to any Person
or circumstances shall, for any reason and to any extent, be invalid or
unenforceable, neither the remainder of this Agreement nor the application
of such provision to other Persons or circumstances shall be affected
thereby, but rather, the same shall be enforced to the greatest extent
permitted by law.
18. Captions. The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
19. Changes, Waivers, Etc. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is
signed by the Guarantors and the Administrative Agent.
20. Terms Binding. This Agreement shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Administrative
Agent and the Banks and their respective successors, endorsees, transferees
and assigns. The Guarantors may not delegate their respective obligations
under this Agreement except with the prior written consent of the
Administrative Agent and the Banks.
21. Setoff. Regardless of the adequacy of any collateral or other means of
obtaining repayment of the Guaranteed Obligations, if an Event of Default
shall have occurred and is continuing, the Administrative Agent, any of the
Banks, any Participant, any Assignee or any other Transferee may at any
time, and without notice to any Guarantor, set off the whole or any portion
or portions of any or all deposits and other sums credited by or due from
the Administrative Agent or any Bank (or from such Participant, Assignee or
other Transferee) to any Guarantor or subject to withdrawal by any
Guarantor, whether or not any other Person or Persons could also withdraw
money therefrom.
22. No Setoff. Except as otherwise expressly provided in this Agreement, no act
of commission or omission of any kind or at any time upon the part of
Administrative Agent or any Bank in respect of any matter whatsoever shall
in any way affect or impair the rights of the Administrative Agent or any
Bank to enforce any right, power or benefit of the Administrative Agent or
any Bank under this Agreement, and no set-off, claim, reduction or
diminution of any obligation or any defense of any kind or nature which any
Guarantor has or may have against the Administrative Agent or any Bank
shall be available to such Guarantor or asserted against the Administrative
Agent or any Bank in any suit or action brought by the Administrative Agent
or any Bank to enforce or collect any Guaranteed Obligation, any Loan
Document
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or any obligation, indebtedness, right, power or benefit under this
Agreement. Nothing in this Agreement shall be construed as a waiver by any
Guarantor of any rights or claims it may have against the Administrative
Agent or any Bank, but any recovery upon such rights and claims shall be
had from the Administrative Agent and Banks separately, the intent of this
Agreement being that the Guarantors shall be unconditionally and absolutely
obligated to perform fully all of their obligations, agreements and
covenants hereunder for the benefit of the Administrative Agent and the
Banks.
23. Continuing Guarantee. The obligations of the Guarantors under this
Agreement are continuing obligations.
24. Reproduction of Documents. This Agreement and all documents relating
hereto, including without limitation consents, waivers and modifications
which may hereafter be executed, and all financial statements, certificates
and other information previously or hereafter furnished to the
Administrative Agent or any Bank may be reproduced by the Administrative
Agent or any Bank by a photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process and the Administrative
Agent and the Banks may destroy any original document so reproduced. The
Guarantors agree and stipulate that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
The purpose of this Section is to constitute a waiver of the "best
evidence" rule with respect to this Agreement and the documents referred to
herein and this Section shall not constitute a waiver of any other
objection to the admissibility of such document in any judicial or
administrative proceeding.
25. Expenses. The Guarantors shall pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Banks, including fees and
disbursements of counsel, in connection with the collection and enforcement
of the Guarantor's obligations under this Agreement.
26. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
27. Maximum Obligations. Notwithstanding anything in this Agreement to the
contrary, the maximum liability of each Guarantor under this Agreement
shall in no event exceed such Guarantor's Maximum Obligated Amount.
"Maximum Obligated Amount" of any Guarantor shall mean the maximum amount
which could be paid out by such Guarantor without rendering this Agreement,
in whole or in part, void or voidable under applicable law, including,
without limitation, (i) the Bankruptcy Code of 1978, as amended, and (ii)
any applicable state or federal law relative to fraudulent conveyances.
[Guarantors' signatures appear on the following page]
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IN WITNESS WHEREOF, the Guarantors, by their officers duly authorized
to do so, have signed, sealed and delivered this Guaranty Agreement as of the
date set forth at the beginning of this Agreement.
GUARANTORS:
PICCADILLY RESTAURANTS, INC.
By: (SEAL)
----------------------------------
Name:
Title:
Send Notices to:
Piccadilly Restaurants, Inc.
3232 Sherwood Forest Boulevard
Baton Rouge, Louisiana 70816
Attention: Chief Financial Officer
Telecopy number: (504) 296-8370
Telephone number: (504) 293-9440
MORRISON RESTAURANTS INC.
By: (SEAL)
----------------------------------
Name:
Title:
Send Notices to:
Morrison Restaurants Inc.
3232 Sherwood Forest Boulevard
Baton Rouge, Louisiana 70816
Attention: Chief Financial Officer
Telecopy number: (504) 296-8370
Telephone number: (504) 293-9440
Accepted:
HIBERNIA NATIONAL BANK,
as Administrative Agent
By:
------------------------------
Name:
Title:
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EXHIBIT F
[GUARANTOR]
SECRETARY'S CERTIFICATE
The undersigned, _____________, ____________ of
_______________________, a ___________ corporation (the "Guarantor"), hereby
certifies that he has been duly elected, qualified and is acting in such
capacity and that, as such, he is familiar with the facts herein certified and
is duly authorized to certify the same, and hereby further certifies, in
connection with the Credit Agreement dated as of June ___, 1998 among Piccadilly
Cafeterias, Inc., Hibernia National Bank, as Co-Arranger, Administrative Agent,
Letter of Credit Issuer and a Bank, Wachovia Bank, N.A., as Co-Arranger,
Documentation Agent and a Bank and certain Banks listed on the signature pages
thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Guarantor as in full force and effect on the
date hereof as certified by ______________ of the [Commonwealth/State] of
_________, the Guarantor's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Guarantor as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Guarantor on
________________ and the resolutions of the Board of Directors of the Guarantor
effective _______________ approving, and authorizing the execution and delivery
of the Guaranty (as such term is defined in the Credit Agreement) and the other
Loan Documents (as such term is defined in the Credit Agreement) to which the
Guarantor is a party. Such resolutions have not been repealed or amended and are
in full force and effect, and no other resolutions or consents have been adopted
by the Board of Directors of the Guarantor in connection therewith.
4. _______________, who as ______________________ of the Guarantor
signed the Guaranty and the other Loan Documents to which the Guarantor is a
party, was duly elected, qualified and acting as such at the time he signed the
Guaranty and other Loan Documents to which the Guarantor is a party, and his
signature appearing on the Guaranty and the other Loan Documents to which the
Guarantor is a party is his genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
the ____ day of June, 1998.
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT G
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of June ___, 1998 among PICCADILLY CAFETERIAS, INC. (the "Borrower"),
Hibernia National Bank, as Co-Arranger, Administrative Agent, Letter of Credit
Issuer and a Bank, Wachovia Bank, N.A., as Co-Arranger, Documentation Agent and
a Bank and certain other Banks listed on the signature pages thereof and their
successors and assigns. Capitalized terms used herein have the meanings ascribed
thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
___________________, the duly authorized ____________________ of the Borrower,
_______________, the duly authorized ___________ of Piccadilly Restaurants, Inc.
and ___, the duly authorized ____ of Morrison Restaurants, Inc. , hereby
certifies to the Administrative Agent and the Banks that: (i) no Default has
occurred and is continuing on the date hereof; and (ii) the representations and
warranties of the Borrower contained in Article IV of the Credit Agreement are
true on and as of the date hereof; and (iii) the representations and warranties
of the Guarantors contained in the Guaranty are true on and as of the Closing
Date.
Certified as of the ___ day of _________, 19__.
PICCADILLY CAFETERIAS, INC.
----------------------------------------
Name:
Title:
MORRISON RESTAURANTS INC.
----------------------------------------
Name:
Title:
PICCADILLY RESTAURANTS, INC.
----------------------------------------
Name:
Title:
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<PAGE> 85
EXHIBIT H
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of PICCADILLY
CAFETERIAS, INC. , a Louisiana corporation (the "Borrower"), hereby certifies
that he has been duly elected, qualified and is acting in such capacity and
that, as such, he is familiar with the facts herein certified and is duly
authorized to certify the same, and hereby further certifies, in connection with
the Credit Agreement dated as of June ___, 1998 among the Borrower, Hibernia
National Bank, as Co-Arranger, Administrative Agent, Letter of Credit Issuer and
a Bank, Wachovia Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and
certain other Banks listed on the signature pages thereof and their successors
and assigns.
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of __________,
the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on
___________ __, 19__ approving, and authorizing the execution and delivery of,
the Credit Agreement, the Notes (as such term is defined in the Credit
Agreement) and the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions have not been
repealed or amended and are in full force and effect, and no other resolutions
or consents have been adopted by the Board of Directors of the Borrower in
connection therewith.
4. ____________, who as ________________________ of the Borrower
signed the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
he signed the Credit Agreement, the Notes and other Loan Documents to which the
Borrower is a party, and his signature appearing on the Credit Agreement, the
Notes and the other Loan Documents to which the Borrower is a party is his
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of
the ____ day of _________, 19__.
----------------------------------------
Name:
Title:
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<PAGE> 86
EXHIBIT I
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of June ___, 1998 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement") among Piccadilly Cafeterias, Inc., Hibernia National Bank, as
Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank, Wachovia
Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and certain other
Banks listed on the signature pages thereof and their successors and assigns.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.1(c) of the Credit Agreement, __________, the duly
authorized __________, of Piccadilly Cafeterias, Inc. hereby certifies to the
Administrative Agent and the Banks that the information contained in the
Compliance Check List attached hereto is true, accurate and complete as of
______, 199_, and that no Default is in existence on and as of the date hereof.
PICCADILLY CAFETERIAS, INC.
By:
-------------------------------------
Title:
----------------------------------
85
<PAGE> 87
COMPLIANCE CHECK LIST
PICCADILLY CAFETERIAS, INC.
DATE ____________________
<TABLE>
<S> <C>
1. Ratio of Consolidated Total Funded Debt to EBITDA (Section 5.3)
(a) Consolidated Total Funded Debt $___________
(b) EBITDA $___________
Actual Ratio of (a) to (b) ___________
Maximum Ratio 2.50 to 1.00 (between Closing Date
and March 31, 2000)
2.25 to 1.00 (after March 31, 2000
and on or before March 31, 2001)
2.00 to 1.00 (after March 31, 2001)
2. Fixed Charge Coverage (Section 5.4)
(a) Income Available for Fixed Charges $____________
(b) Consolidated Fixed Charges $____________
Actual Ratio of (a) to (b) ____________
Minimum Ratio 1.25 to 1.00 (between Closing Date
and March 31, 2000)
1.50 to 1.00 (after March 31, 2000)
3. Ratio of Consolidated Total Funded Debt to Consolidated Total Capital (Section 5.5)
(a) Consolidated Total Funded Debt $____________
(b) Consolidated Total Capital $____________
Actual Ratio of (a) to (b)
Maximum Ratio .60 to 1.00 (between Closing
Date and March 31, 2000)
.50 to 1.00 (at all times after
March 31, 2000)
4. Restricted Payments (Section 5.6)
(a) Actual Restricted Payments during Fiscal Quarter $____________
Maximum Allowed $ 2,000,000
</TABLE>
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<PAGE> 88
<TABLE>
<S> <C>
5. Capital Expenditures (Section 5.7)
(a) Capital Expenditures during Fiscal Year $___________
(b) Amount not expended during
prior Fiscal Years $___________
(c) Available Restricted Payment $___________
Maximum Allowed $20,000,000, plus (b), plus (c).
6. Loans or Advances (Section 5.8)
(a) Loans or advances to employees $___________
Maximum Allowed $ 500,000
(b) Loans or advances to and Investments in
Wholly Owned Subsidiaries (excluding
Significant Subsidiaries) $___________
Maximum Allowed $ 1,000,000
7. Consolidations, Mergers and Sale of Assets (Section 5.13)
(a) EBITDA attributable to all assets transferred and all other
assets utilized in all other business lines or segments
discontinued during current Fiscal Quarter $___________
(b) EBITDA attributable to all assets transferred and all other
assets utilized in all other business lines or segments
discontinued during preceding three Fiscal Quarters $___________
(c) Total $___________
Maximum Allowed - 10% of EBITDA $___________
8. Withdrawal Liability (Section 5.15)
Aggregate complete or partial withdrawal liability $___________
Maximum Allowed $ 1,000,000
9. Acquisitions (Section 5.20)
(a) Acquisitions (i.e., stock, assets) during current month $___________
</TABLE>
87
<PAGE> 89
<TABLE>
<S> <C>
(b) Acquisitions (i.e., stock, assets) during preceding 23 months $___________
(c) Total $___________
Maximum Allowed $ 20,000,000
10. Debt (Section 5.24)
Debt incurred under Section 5.24(v) $___________
Maximum Allowed $ 250,000
Supporting Calculations
1. EBITDA [sum of (a) plus (b)] $__________
(a) Consolidated Net Income for the Fiscal Quarter
just ended and the immediately preceding three
Fiscal Quarters (the "Determination Period") $__________
(b) Additions:
(i) Consolidated Interest Expense for the
Determination Period $__________
(ii) Income Taxes for the Determination Period $__________
(iii) Depreciation for the Determination Period $__________
(iv) Amortization for the Determination Period $__________
Total Additions $__________
2. Income Available for Fixed Charges
[sum of (a) plus (b)] $__________
(a) EBITDA $__________
(b) The amount deducted in determining EBITDA
for expenses under leases and rental agreements $__________
3. Consolidated Fixed Charges $__________
[sum of (a) plus (b) plus (c) plus (d)]
(a) Consolidated Interest Expense for the Fiscal Quarter $__________
just ended and the immediately preceding three
Fiscal Quarters (the "Determination Period")
(b) Payment obligations under leases and rental $__________
agreements for the Determination Period
(c) Maintenance Capital Expenditures for the $__________
Determination Period
(d) Current Maturities of Long-Term Debt $__________
</TABLE>
88
<PAGE> 90
<TABLE>
<S> <C>
4. Consolidated Total Capital
[sum of (a) plus (b)] $__________
(a) Consolidated Net Worth $__________
(b) Consolidated Total Funded Debt $__________
5. Capital Expenditures - Clarifying Comments
(a) Compliance with 5.7 is tested annually at the end of the Fiscal
Year.
(b) The "Amount not expended during prior Fiscal Years" will need to
be recalculated at the end of each Fiscal Year, recognizing that
the amount reported here covers a multi-Fiscal Year period.
</TABLE>
89
<PAGE> 91
EXHIBIT J
ASSIGNMENT AND ACCEPTANCE
DATED ______________________
Reference is made to the Credit Agreement dated as of June ____, 1998
(together with all amendments and modifications thereto, the "Credit Agreement")
among PICCADILLY CAFETERIAS, INC., a Louisiana corporation (the "Borrower"),
Hibernia National Bank, as Co-Arranger, Administrative Agent, Letter of Credit
Issuer and a Bank, Wachovia Bank, N.A., as Co-Arranger, Documentation Agent and
a Bank and certain other Banks listed on the signature pages thereof and their
successors and assigns. Terms defined in the Credit Agreement are used herein
with the same meaning.
_____________________________________________________ (the "Assignor")
and _____________________________________________ (the "Assignee") agree as
follows:
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<PAGE> 92
The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement and the other Loan Documents as of the
Effective Date (as defined below) (including, without limitation, a ______%
interest (which on the Effective Date hereof is $_______________) in the
Assignor's Commitment and a ______% interest (which on the Effective Date hereof
is $_______________) in the Syndicated Loans owing to the Assignor and a ______%
interest in the Syndicated Note held by the Assignor (which on the Effective
Date hereof is $__________________)).
The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$_________________ and the aggregate outstanding principal amount of Syndicated
Loans owing to it (without giving effect to assignments thereof which have not
yet become effective) is $_________________; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any Guarantor or the performance or observance by the
Borrower or any Guarantor of any of its obligations under the Credit Agreement,
any other Loan Document or any other instrument or document furnished pursuant
thereto; and (iii) attaches the Note[s] referred to in paragraph 1 above and
requests that the Administrative Agent exchange such Note[s] as follows: [a new
Syndicated Note dated _______________, ____ in the principal amount of
_________________ payable to the order of the Assignee] [new Syndicated Notes as
follows: a Syndicated Note dated _________________, ____ in the principal amount
of $_______________ payable to the order of the Assignor and a Syndicated Note
dated ______________, ____ in the principal amount of $______________ payable to
the order of the Assignee].
The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.4(a) thereof (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.1(a) or (b) thereof) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement and the other Loan Documents; (iii)
confirms that it is a bank or financial institution; (iv) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement and the other Loan Documents are required to
be performed by it as a Bank; (vi) specifies as its Lending Office (and address
for notices) the office set forth beneath its name on the signature pages
hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action[, and (viii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement, the Guaranty and the Notes
or such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty].(2)
The Effective Date for this Assignment and Acceptance shall be _______________
(the "Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for execution and
acceptance by the Administrative Agent [and to the Borrower for execution by the
Borrower](3).
- ----------
(2) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
(3) If required under the Credit Agreement.
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<PAGE> 93
Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to the Assignee by
this Assignment and Acceptance, relinquish its rights (other than under Section
8.3 and Section 9.3 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by the
Administrative Agent directly between themselves.
This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
--------------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
--------------------------------------------
Title:
Lending Office:
[Address]
HIBERNIA NATIONAL BANK, as Administrative Agent
By:
--------------------------------------------
Title:
[PICCADILLY CAFETERIAS, INC.(4)
By:
--------------------------------------------
Title:
- ----------
(4) If required under the Credit Agreement.
92
<PAGE> 94
EXHIBIT K
NOTICE OF BORROWING
__________, 19__
Hibernia National Bank, as
Administrative Agent
313 Carondelet Street
New Orleans, LA 70130
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of June ___, 1998 by and
among Piccadilly Cafeterias, Inc., Hibernia National Bank, as
Co-Arranger, Administrative Agent, Letter of Credit Issuer and
a Bank, Wachovia Bank, N.A., as Co-Arranger, Documentation
Agent and a Bank and certain other Banks listed on the
signature pages thereof and their successors and assigns
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.2
of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing][Base Rate
Borrowing] in the aggregate principal amount of $___________ to be made on
________, 19__, and for interest to accrue thereon at the rate established by
the Credit Agreement for [Euro-Dollar Loans][Base Rate Loans]. The duration of
the Interest Period with respect thereto shall be [___ days][1 month] [2 months]
[3 months] [6 months].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ___ day of ____, 199_.
PICCADILLY CAFETERIAS, INC.
By:
--------------------------------------
Title:
93
<PAGE> 95
EXHIBIT L
SWING LINE LOAN REQUEST
[DATE]
To: Hibernia National Bank
From: Piccadilly Cafeterias, Inc.
Re: Swing Line Advance Request
Pursuant to Section 2.3 of the Credit Agreement (the "Credit Agreement")
dated as of June ___, 1998, among Piccadilly Cafeterias, Inc., Hibernia National
Bank, as Co-Arranger, Administrative Agent, Letter of Credit Issuer and a Bank,
Wachovia Bank, N.A., as Co-Arranger, Documentation Agent and a Bank and certain
other Banks listed on the signature pages thereof and their successors and
assigns, we hereby give notice that we request the following Swing Line Advance:
Date of Borrowing:
Principal Amount Interest Period
Terms used herein have the meanings assigned to them in the Credit
Agreement.
PICCADILLY CAFETERIAS, INC.
By:
--------------------------------------
Title:
94
<PAGE> 96
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
made as of the 31st day of July, 1998, by and among PICCADILLY CAFETERIAS, INC.
(the "Borrower"), HIBERNIA NATIONAL BANK, as Co-Arranger, Administrative Agent,
Letter of Credit Issuer and a Bank, WACHOVIA BANK, N.A., as Co-Arranger,
Documentation Agent and as a Bank, SOUTH TRUST BANK, NATIONAL ASSOCIATION,
AMSOUTH BANK, BRANCH BANKING AND TRUST COMPANY, WHITNEY NATIONAL BANK, BANKONE
LOUISIANA, N.A., THE FUJI BANK, LIMITED, FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, and DEPOSIT GUARANTY NATIONAL BANK (collectively referred to herein
as the "Banks"), PICCADILLY RESTAURANTS, INC. and MORRISON RESTAURANTS INC.
(collectively referred to herein as the Guarantors).
RECITALS:
The Borrower, the Administrative Agent, the Documentation Agent
and the Banks have entered into a certain Credit Agreement dated June 24, 1998
(the "Credit Agreement"). Capitalized terms used in this Amendment which are not
otherwise defined in this Amendment shall have the respective meanings assigned
to them in the Credit Agreement.
The Guarantors have executed a certain Guaranty Agreement dated
June 24, 1998 (the "Guaranty").
The Borrower and Guarantors have requested the Administrative
Agent, the Documentation Agent and the Banks to amend the Credit Agreement upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Administrative Agent, the Documentation Agent and the Banks, intending to be
legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by
reference and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended as
set forth in this Section 2.
SECTION 2.1. Amendment to Section 1.01. The following definition
set forth in Section 1.01 is hereby amended and restated to read in its entirety
as follows:
"Letter of Credit Agreement" means any agreement entered
into by the Borrower (whether individually or with one or more
Guarantors) and the Letter of Credit Issuer pursuant to which a Letter
of Credit is issued, as amended, modified or restated from time to
time.
SECTION 2.2. Amendment to Section 2.14. Section 2.14(a) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(a) The Letter of Credit Issuer may, from time to time upon
request of the Borrower, in its sole discretion issue Letters of
Credit for the account of the Borrower (individually or with one or
more Guarantors), subject to satisfaction of the conditions referenced
in Section 3.3.
2.03 Amendment to Section 5.25. Section 5.25 of the Credit
Agreement is hereby amended and restated to read as follows:
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<PAGE> 97
SECTION 5.25 Existing Letters of Credit. The Borrower shall
cause the Existing Letters of Credit to be terminated on or before
August 31, 1998
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Required Banks waive such conditions:
(a) receipt by the Administrative Agent from each of the
parties hereto of a duly executed counterpart of this Amendment signed
by such party; and
(b) the fact that the representations and warranties of the
Borrower and Guarantors contained in Section 5 of this Amendment shall
be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set
forth above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single agreement. Nothing herein contained shall waive,
annul, vary or affect any provision, condition, covenant or agreement contained
in the Credit Agreement, except as herein amended, nor affect nor impair any
rights, powers or remedies under the Credit Agreement as hereby amended. The
Banks, the Documentation Agent and the Administrative Agent do hereby reserve
all of their rights and remedies against all parties who may be or may hereafter
become secondarily liable for the repayment of the Notes. The Borrower promises
and agrees to perform all of the requirements, conditions, agreements and
obligations under the terms of the Credit Agreement, as heretofore and hereby
amended, the Credit Agreement, as amended, being hereby ratified and affirmed.
The Borrower hereby expressly agrees that the Credit Agreement, as amended, is
in full force and effect.
SECTION 5. Representations and Warranties. The Borrower and
Guarantors hereby represent and warrant to each of the Banks as follows:
(a) No Default or Event of Default, nor any act, event, condition
or circumstance which with the passage of time or the giving of notice, or both,
would constitute an Event of Default, under the Credit Agreement or any other
Loan Document has occurred and is continuing unwaived by the Banks on the date
hereof.
(b) The Borrower and Guarantors have the power and authority to
enter into this Amendment and to do all acts and things as are required or
contemplated hereunder, or thereunder, to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and Guarantors and
constitutes a legal, valid and binding obligation of the Borrower and each
Guarantor enforceable against it in accordance with its terms, provided that
such enforceability is subject to general principles of equity.
(d) The execution and delivery of this Amendment and the
performance of the Borrower and Guarantors hereunder do not and will not require
the consent or approval of any regulatory authority or governmental authority or
agency having jurisdiction over the Borrower or any Guarantor, nor be in
contravention of or in conflict with the articles of incorporation or bylaws of
the Borrower or any Guarantor, or the provision of any statute, or any judgment,
order or indenture, instrument, agreement or undertaking, to which the Borrower
or any Guarantor is party or by which the assets or properties of the Borrower
and Guarantors are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
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<PAGE> 98
SECTION 7. Governing Law. This Amendment shall be considered in
accordance with and governed by any applicable federal laws of the United States
of America and in the absence of applicable federal laws of the United States of
America, the laws of the State of Georgia.
SECTION 8. Consent by Guarantors. The Guarantors consent to the
foregoing amendments. The Guarantors promise and agree to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Guaranty, said Guaranty being hereby ratified and affirmed. The Guarantors
hereby expressly agree that the Guaranty is in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered, or have caused their respective duly authorized officers or
representatives to execute and deliver, this Amendment as of the day and year
first above written.
BORROWER:
PICCADILLY CAFETERIAS, INC.
By: /s/ Ronald A. LaBorde
-------------------------------------
Title: President & CEO
----------------------------------
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<PAGE> 99
HIBERNIA NATIONAL BANK,
As Co-Arranger, Administrative Agent,
Letter of Credit Issuer and a Bank
By: /s/ Janet O. Rack
-------------------------------------
Title: Senior Vice President
----------------------------------
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98
<PAGE> 100
WACHOVIA BANK, N.A.,
as Documentation Agent, Co-Arranger and
as a Bank
By: /s/ C. L. Battle
-------------------------------------
Title: Senior Vice President
----------------------------------
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99
<PAGE> 101
SOUTH TRUST BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Hal Clemmer
-------------------------------------
Title: Vice President
----------------------------------
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100
<PAGE> 102
AMSOUTH BANK,
as a Bank
By: /s/ D. M. Sinclair
-------------------------------------
Title: Vice President
----------------------------------
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101
<PAGE> 103
BRANCH BANKING AND TRUST COMPANY,
as a Bank
By: /s/ Thatcher L. Townsend III
-------------------------------------
Title: Vice President
----------------------------------
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102
<PAGE> 104
WHITNEY NATIONAL BANK,
as a Bank
By: /s/ Paul J. Brown
-------------------------------------
Title: Senior Vice President
----------------------------------
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103
<PAGE> 105
BANKONE LOUISIANA, N.A., as a Bank
By: /s/ Jeffery E. Gould
-------------------------------------
Title: Senior Vice President
----------------------------------
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104
<PAGE> 106
THE FUJI BANK, LIMITED
as a Bank
By: /s/ Philip C. Lauinger III
-------------------------------------
Title: Vice President & Manager
----------------------------------
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<PAGE> 107
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as a Bank
By: /s/ Rosemary R. Moody
-------------------------------------
Title: Vice President
----------------------------------
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106
<PAGE> 108
DEPOSIT GUARANTY NATIONAL BANK,
as a Bank
By: /s/ Bill Hicks
-------------------------------------
Title: Senior Vice President
----------------------------------
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107
<PAGE> 109
Guarantor:
PICCADILLY RESTAURANTS, INC.
By: /s/ Ronald A. LaBorde
-------------------------------------
Title: President
----------------------------------
ATTEST:
/s/ J. F. Johnson
- ----------------------------------
Secretary
[CORPORATE SEAL]
[Remainder of this page intentionally left blank]
108
<PAGE> 110
MORRISON RESTAURANTS INC.
By: /s/ Ronald A. LaBorde
-------------------------------------
Title: President
----------------------------------
ATTEST:
J. F. JOHNSON
SECRETARY
[CORPORATE SEAL]
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109
<PAGE> 1
EXHIBIT 13(a)
PICCADILLY CAFETERIAS, INC.
SELECTED AND OTHER FINANCIAL DATA
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
(Amounts in thousands - except per share data)
June 30 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Net sales $335,388 $304,838 $300,550 $287,848 $276,223
Cost of Sales 194,898 175,685 171,224 163,830 155,411
Other operating expense 109,725 100,334 101,459 97,213 92,250
Net income 7,903(A) 9,390 385(A) 4,051 7,407
Per share data:
Net income .75(A) .89 .04(A) .40 .70
Cash dividends .48 .48 .48 .48 .48
Long-term debt 78,979 27,240 25,700 18,000 24,000
Shareholders' equity 80,436 77,604 73,293 76,445 75,874
Total assets 253,860 147,332 148,280 165,121 154,773
</TABLE>
OTHER DATA
<TABLE>
<CAPTION>
(Amounts in thousands - except number of employees)
June 30 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Operating income(B) $30,765 $28,819 $27,867 $26,805 $28,562
Depreciation and amortization 12,677 12,116 12,916 12,880 11,720
Capital expenditures for new projects 10,287 5,616 1,247 22,303 27,663
Other capital expenditures 4,641 5,254 5,440 4,639 4,232
Total capital expenditures 14,928 10,870 6,687 26,942 31,895
Cash flow provided by operating
activities 23,268 14,857 21,404 20,823 23,426
Free cash flow(C) 18,272 16,252 13,426 12,292 14,535
Net income as a percent of beginning
shareholders' equity 10.2%(A) 12.8% 0.5%(A) 5.3% 9.8%
Number of employees 15,800 8,200 8,500 7,600 7,300
</TABLE>
(A) Includes $3,453,000 ($2,175,000 after-tax effect or $.21 per share) and
$9,404,000 ($5,830,000 after-tax effect or $.56 per share) in 1998 and 1996,
respectively, for the write-down of long-lived assets in accordance with
Statement of Financial Accounting Standards (SFAS) No. 121 (see Note 3 for
further discussion).
(B) Defined as net sales less cost of sales and other operating expense.
(C) Defined as net income adjusted for depreciation and amortization and reduced
by other capital expenditures. The 1998 and 1996 amounts exclude the non-cash
effect of the charges discussed in (A). Management believes that free cash flow
is a relevant indicator of liquidity. The amounts presented may not be
comparable to similarly titled measures reported by other companies.
<PAGE> 2
EXHIBIT 13(b)
PICCADILLY CAFETERIAS, INC.
STOCK INFORMATION
The Company's Common Stock is traded on the New York Stock Exchange under the
symbol "PIC." The following table sets forth the high and low sales prices for
each quarter within the last two fiscal years. As of August 27, 1998, there were
approximately 2,654 record holders of the Company's Common Stock.
<TABLE>
<CAPTION>
Per
Share
Cash
Quarter High Low Dividends
<S> <C> <C> <C> <C>
FISCAL YEAR ENDED 1ST $14.50 $10.50 $.12
JUNE 30, 1998 2ND 15.38 12.38 .12
3RD 13.13 10.00 .12
4TH 14.00 12.19 .12
</TABLE>
<TABLE>
<CAPTION>
Per
Share
Cash
Quarter High Low Dividends
<S> <C> <C> <C> <C>
Fiscal year ended 1st $10.75 $ 9.00 $.12
June 30, 1997 2nd 9.50 8.13 .12
3rd 10.00 8.75 .12
4th 10.88 8.63 .12
</TABLE>
<PAGE> 3
EXHIBIT 13(c)
PICCADILLY CAFETERIAS, INC.
LIQUIDITY AND CAPITAL RESOURCES
In May 1998, the Company acquired 89% of the common stock of Morrison
Restaurants, Inc. (Morrison) for $5.00 per share. The merger was completed on
July 31, 1998 when the Company purchased the remaining outstanding Morrison
shares for $5.00 per share (the Morrison Acquisition). The aggregate purchase
price for the Morrison shares, including debt assumed, was approximately
$57,270,000. The Morrison Acquisition was financed through borrowings under
senior credit arrangements described below.
During 1998, cash generated from operations of $23,268,000 combined with cash
from available lines of credit were used primarily to fund $14,928,000 of
capital expenditures, $4,500,000 principal payments for the 10.2% senior notes
and $5,044,000 of dividends. Working capital decreased $14,686,000. The
Company's long-term debt facilities include senior credit arrangements with a
syndication of banks for which up to $125,000,000 can be borrowed. At June 30,
1998, approximately $46,021,000 was available under these senior credit
arrangements.
For 1999, total capital expenditures are expected to approximate $20,000,000.
These expenditures include $10,000,000 for new investments including purchasing
land, constructing up to three new cafeteria units, constructing up to 19
Piccadilly Express units, and integrating up to 56 existing Morrison cafeterias
to Piccadilly Cafeterias. Management anticipates that cash generated from
operations, together with funds available from existing lines of credit, will be
sufficient to fund capital expenditures and dividends.
YEAR 2000 IMPACT
Some of the Company's older computer programs were written using two digits
rather than four to define the applicable year. As a result, those computer
programs have time-sensitive code which treat a date ending in "00" as the year
1900 rather than the year 2000. This could cause a system failure or
miscalculations causing disruptions, including, among other things, a temporary
inability to process transactions, process reports, or engage in similar normal
business activities (Year 2000 Issues).
During fiscal 1996, the Company began migrating its information technology (IT)
from internally developed systems to commercially available products. The
decision to invest in updated technology was made for a number of reasons
including Year 2000 Issues. The Company has completed an assessment of its Year
2000 Issues and believes that previously scheduled replacements of its IT, will
function properly with respect to dates in the Year 2000 and thereafter. The
related projects of migrating the Company's IT and addressing Year 2000 Issues
are hereinafter collectively referred to as the Year 2000 Project.
The total cost of the Year 2000 Project is estimated to be approximately
$700,000, primarily for the purchases of new software, which will be
capitalized. To date, the Company has incurred and capitalized approximately
$650,000 of such costs. The Company believes these costs would have been
incurred notwithstanding the Year 2000 Issues. The funds necessary to complete
the Year 2000 Project are considered in total capital expenditures discussed
above.
With respect to the acquisition of Morrison, it is the Company's intent to
absorb the IT requirements of Morrison into the Company's systems during fiscal
1999. Accordingly, no additional Year 2000 Issues are anticipated as a result of
the acquisition of Morrison. The acquisition of Morrison has the effect of
delaying completion of the Year 2000 Project to not later than June 30, 1999,
which is prior to any anticipated impact on its operating systems.
The Company believes that with conversions to new IT, Year 2000 Issues will not
pose significant operational problems for its computer systems. As of June 30,
1998, the Company has completed the conversion for all systems for which Year
2000 Issues could have a material impact on the operations of the Company,
except that Morrison systems are not scheduled for conversion to the Company's
systems until the first and second quarters of fiscal 1999. The Company has no
contingency plan, nor does it intend to create one, in the event that Year 2000
Issues are not fully addressed in time. The Company believes that the likelihood
of such an occurrence having a material impact on the Company's operations is
remote.
<PAGE> 4
RESULTS OF OPERATIONS
1998 COMPARED TO 1997. Total sales increased $30,550,000, or 10.0%, from 1997.
Increases in cafeteria sales account for $30,108,000 of the total increase.
Ralph & Kacoo's restaurant sales increased $442,000. Cafeteria sales for 1998
include approximately one month of sales of Morrison Restaurants, Inc. amounting
to $21,285,000. The remaining increase in cafeteria sales is the net result of
price changes, customer traffic changes, new-unit openings, and unit closings.
The following table reconciles total cafeteria sales to same-store cafeteria
sales (units that were open for 12 full months in both periods) for the fiscal
years ended June 30, 1998 and 1997:
<TABLE>
<CAPTION>
(Sales in thousands)
1998 1997
Sales
SALES UNITS Sales Units Change
<S> <C> <C> <C> <C> <C>
Total cafeteria sales $307,149 $277,041 10.9%
Less units opened in fiscal 1998 2,923 7(A) -- --
Less units opened in fiscal 1997 7,286 4(A) 2,557 4(A)
Less units closed in fiscal 1998 4,096 3 3,231 3
Less units closed in fiscal 1997 -- -- 3,626 4
Less Morrison acquisition 21,285 --
-------- --------
Net same-store cafeteria sales $271,559 122 $267,627 122 1.5%
======== ========
</TABLE>
(A) Includes three and one Piccadilly Express (Associated Grocers supermarkets)
units opened in fiscal 1998 and 1997, respectively.
The increase in same-store sales of 1.5% is the net result of a 2.9% decline in
customer traffic and a 4.5% increase in check average. Cafeteria prices were
increased an average of 4.0% in September 1997.
During 1998 and 1997, operating income (net sales less cost of sales and other
operating expenses) as a percentage of net sales was 9.2% and 9.5%,
respectively. Food costs as a percentage of sales decreased 0.1%. Labor costs as
a percentage of sales increased 0.5%.
Other operating expenses as a percentage of sales improved from 32.9% in 1997 to
32.7% in 1998. Initiatives to increase take-out sales increased advertising and
supplies expenses by 0.5% of sales. These increases were offset by decreases in
repairs and utilities expenses as a percent of sales.
Interest expense decreased $200,000 in 1998. Payments of $4,500,000 and
$7,500,000 of the 10.2% senior notes were made in 1998 and 1997, respectively,
using funds available under one of the Company's line-of-credit arrangements,
which had an average interest rate of 7.1% during 1998. Interest expense of
$357,000 was recorded relating to the acquisition of Morrison Restaurants, Inc.
As of June 30, 1998, the Company had continuing rent obligations not offset by
sublease arrangements for 17 properties related to closed units including 12
properties relating to the Morrison acquisition. Several of these properties are
under varying stages of sublease negotiation. Management will continue to pursue
disposition of these properties at terms favorable to the Company. See further
discussion in Note 3 to the Consolidated Financial Statements.
1997 COMPARED TO 1996. Total sales increased $4,288,000 net, or 1.4%, from 1996.
Cafeteria sales increased $7,247,000 while Ralph & Kacoo's restaurant sales
decreased $2,959,000.
<PAGE> 5
The increase in cafeteria sales is the net result of price changes, customer
traffic changes, new-unit openings, and unit closings. The following table
reconciles total cafeteria sales to same-store cafeteria sales (units that were
open for 12 full months in both periods) for the fiscal years ended June 30,
1997 and 1996:
<TABLE>
<CAPTION>
(Sales in thousands)
1997 1996
Sales
Sales Units Sales Units Change
<S> <C> <C> <C> <C> <C>
Total cafeteria sales $277,041 $269,794 2.7%
Less units opened in fiscal 1997 2,557 4(A) -- --
Less units closed in fiscal 1997 3,626 4 6,618 4
Less units closed in fiscal 1996 -- -- 1,446 2
-------- --------
Net same-store cafeteria sales $270,858 125 $261,730 125 3.5%
======== ========
</TABLE>
(A) Includes one Piccadilly Express (Associated Grocers supermarkets) unit.
The increase in same-store sales of 3.5% is the combined result of a 0.7%
increase in customer traffic and a 2.9% increase in check average. Cafeteria
prices were increased approximately 4.0% in October 1996. Ralph & Kacoo's
restaurant sales decreased $2,959,000, or 9.0%, resulting primarily from the
closing of one restaurant during the first quarter of 1997. Same-store sales
decreased 6.3% as sales were impacted by normal leveling of new-unit volume at
the Birmingham, Alabama restaurant, which opened in April 1995.
During 1997 and 1996, operating income (net sales less cost of sales and other
operating expenses) as a percentage of net sales was 9.5% and 9.3%,
respectively. Food costs as a percentage of sales increased 0.4%. Labor costs as
a percentage of sales increased 0.3%. Other operating expenses as a percentage
of sales improved from 33.8% in 1996 to 32.9% in 1997, reflecting decreases in
depreciation and workers compensation costs.
Interest expense decreased $2,539,000 in 1997, of which $1,011,000 resulted
because $7,500,000 and $12,000,000 of the 10.2% senior notes were paid in 1997
and 1996, respectively, using funds available under one of the Company's
line-of-credit arrangements, which had an average interest rate of 6.8% during
1997. Interest expense for 1996 included a charge of $1,528,000 for interest
related to examinations of the Company's tax returns by the Internal Revenue
Service.
The Company settled these examinations during 1997 and no further charges were
required.
During 1997, the Company reduced its accrued liability for rental and other
occupancy costs associated with these properties by $600,000 as a result of a
favorable change in management's estimate of future sublease income.
KNOWN TRENDS OR UNCERTAINTIES
Most of the Company's operating costs are subject to inflationary pressures.
Historically, the Company has generally been able to maintain its operating
margins through increases in selling prices.
The Company has provided no valuation allowance for deferred tax assets.
Management believes the deferred tax assets at June 30, 1998 are realizable
through carrybacks and future reversals of existing taxable temporary
differences, if necessary, the implementation of tax planning strategies.
Uncertainties that affect the ultimate realization of deferred tax assets
include the risk of not being able to complete certain tax planning strategies,
such as sales-leaseback transactions. This factor has been considered in
determining the valuation allowance. Management will continue to assess the
adequacy of the valuation allowance on a quarterly basis.
The Company is not aware of other material trends that may be expected to cause
reported financial information not to be indicative of future operating
results or of future financial condition.
Forward-looking Statements
<PAGE> 6
FORWARD-LOOKING STATEMENTS
The costs of the Year 2000 Project and the date on which the Company believes it
will complete the Year 2000 Project are based on management's best estimates,
which were derived utilizing numerous assumptions of future events, including
the continued availability of certain resources and other factors. However,
there can be no guarantee that these estimates will be achieved and actual
results could differ materially from those anticipated. Specific factors that
might cause such material differences include, but are not limited to the
availability and cost of personnel trained in this area, the ability to identify
and replace all non-compliant software applications and similar uncertainties.
Forward-looking statements regarding management's present plans or expectations
for new unit openings, remodels, other capital expenditures, the financing
thereof, and disposition of impaired units involve risks and uncertainties
relative to return expectations and related allocation of resources, and
changing economic or competitive conditions, as well as the negotiation of
agreements with third parties, which could cause actual results to differ from
present plans or expectations, and such differences could be material.
Similarly, forward-looking statements regarding management's present
expectations for operating results involve risks and uncertainties relative to
these and other factors, such as advertising effectiveness and the ability to
achieve cost reductions, which also would cause actual results to differ from
present plans. Such differences could be material. Management does not expect to
update such forward-looking statements continually as conditions change, and
readers should consider that such statements speak only as to the date hereof.
<PAGE> 7
EXHIBIT 13(d)
CONSOLIDATED BALANCE SHEETS
PICCADILLY CAFETERIAS, INC.
<TABLE>
<CAPTION>
(Amounts in thousands)
Balances at June 30
1998 1997
<S> <C> <C>
ASSETS
CURRENT ASSETS
Accounts and notes receivable $ 1,602 $ 611
Inventories 12,489 10,400
Deferred income taxes 10,559 3,546
Other current assets 1,634 766
-------- --------
TOTAL CURRENT ASSETS 26,284 15,323
PROPERTY, PLANT AND EQUIPMENT
Land 26,323 19,390
Buildings and leasehold improvements 165,481 112,872
Furniture and fixtures 117,269 98,868
Machinery and equipment 17,088 13,522
Construction in progress 6,757 1,998
-------- --------
332,918 246,650
Less allowances for depreciation and unit closings 129,053 120,630
-------- --------
NET PROPERTY, PLANT AND EQUIPMENT 203,865 126,020
GOODWILL, net of $20 accumulated amortization 12,447 --
OTHER ASSETS 11,264 5,989
-------- --------
TOTAL ASSETS $253,860 $147,332
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 18,359 $ 9,579
Accrued interest 418 941
Accrued salaries, benefits and related taxes 24,869 13,224
Accrued rent 5,036 4,969
Other accrued expenses 11,455 1,277
Current portion of long-term debt -- 4,500
-------- --------
TOTAL CURRENT LIABILITIES 60,137 34,490
LONG-TERM DEBT, less current portion 78,979 27,240
DEFERRED INCOME TAXES 1,417 5,223
RESERVE FOR UNIT CLOSINGS 20,104 2,775
ACCRUED EMPLOYEE BENEFITS, less current portion 12,787 --
SHAREHOLDERS' EQUITY
Preferred Stock, no par value; authorized 50,000,000
shares; issued and outstanding: none -- --
Common Stock, no par value, stated value $1.82 per share,
authorized 100,000,000 shares; issued and outstanding:
10,528,368 shares at June 30, 1998 and at June 30, 1997 19,141 19,141
Additional paid-in capital 18,735 18,735
Retained earnings 42,810 39,965
-------- --------
80,686 77,841
Less treasury stock, at cost: 25,000 common shares at
June 30, 1998 and at June 30, 1997 250 237
-------- --------
TOTAL SHAREHOLDERS' EQUITY 80,436 77,604
-------- --------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $253,860 $147,332
======== ========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 8
CONSOLIDATED STATEMENTS OF INCOME
PICCADILLY CAFETERIAS, INC.
<TABLE>
<CAPTION>
(Amounts in thousands - except per share data)
Year Ending June 30 1998 1997 1996
<S> <C> <C> <C>
Net sales $ 335,388 $ 304,838 $ 300,550
Costs and expenses:
Cost of sales 194,898 175,685 171,224
Other operating expenses 109,725 100,334 101,459
Provision for unit impairments and closings 3,453 -- 9,404
General and administrative expenses 12,832 11,465 12,761
Interest expense 2,514 2,714 5,253
Other expenses (income) (590) (505) (179)
--------- --------- ---------
322,832 289,693 299,922
--------- --------- ---------
INCOME BEFORE INCOME TAXES 12,556 15,145 628
Provision for income taxes 4,653 5,755 243
--------- --------- ---------
NET INCOME $ 7,903 $ 9,390 $ 385
========= ========= =========
Weighted average number of shares outstanding 10,503 10,506 10,401
========= ========= =========
Net income per share - basic and diluted $ .75 $ .89 $ .04
========= ========= =========
</TABLE>
See Notes to Consolidated Financial Statements
CONSOLIDATED STATEMENTS OF CHANGES
IN SHAREHOLDERS' EQUITY
PICCADILLY CAFETERIAS, INC.
<TABLE>
<CAPTION>
(Amounts in thousands - except per share data)
Additional
Common Stock Paid-In Retained Treasury Stock
Shares Amount Capital Earnings Shares Amount
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
BALANCES AT JUNE 30, 1995 10,317 $ 18,758 $ 17,416 $ 40,271 -- $ --
Net income 385
Cash dividends declared ($.48 per share) (4,995)
Sales under employee stock purchase plan 120 218 671
Sales under dividend reinvestment plan 16 30 108 (19)
Sales under employee stock option plan 50 90 360
---------- ---------- ---------- ---------- ---------- ----------
BALANCES AT JUNE 30, 1996 10,503 19,096 18,555 35,642 -- --
Net income 9,390
Cash dividends declared ($.48 per share) (5,047)
Sales under dividend reinvestment plan (20)
Sales under employee stock purchase plan 25 45 180
Purchases of treasury stock 25 237
---------- ---------- ---------- ---------- ---------- ----------
BALANCES AT JUNE 30, 1997 10,528 19,141 18,735 39,965 25 237
Net income 7,903
Cash dividends declared ($.48 per share) (5,044)
Sales under dividend reinvestment plan (23)
Stock issuances from treasury 9 (5) (50)
Purchases of treasury stock 5 63
---------- ---------- ---------- ---------- ---------- ----------
BALANCES AT JUNE 30, 1998 10,528 $ 19,141 18,735 $ 42,810 25 $ 250
========== ========== ========== ========== ========== ==========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 9
CONSOLIDATED STATEMENTS OF CASH FLOWS
PICCADILLY CAFETERIAS, INC.
<TABLE>
<CAPTION>
(Amounts in thousands - except per share data)
Year Ending June 30 1998 1997 1996
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net Income $ 7,903 $ 9,390 $ 385
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 12,677 12,116 12,916
Costs associated with closed units (1,132) (1,522) (1,092)
Provision for unit impairments and closings 3,453 -- 9,404
Provision for deferred income taxes (benefit) 100 343 (4,037)
Loss on disposition of assets 148 194 50
Pension expense - net of contributions (467) (339) 1,036
Changes in operating assets and liabilities, net of effects
from acquisition:
Accounts and notes receivable 32 8 (137)
Inventories 110 (313) 497
Other current assets (292) (187) 48
Other assets (63) (101) 168
Accounts payable 1,708 (292) 1,097
Accrued interest (756) (2,647) 1,340
Accrued expenses (153) 1,793) (271)
-------- -------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 23,268 14,857 21,404
INVESTING ACTIVITIES
Acquisition of business (41,974) -- --
Purchases of property, plant and equipment (14,928) (10,870) (6,887)
Proceeds from sale of property, plant and equipment 2,288 1,052 1,881
-------- -------- --------
NET CASH USED BY INVESTING ACTIVITIES (54,614) (9,818) (5,006)
FINANCING ACTIVITIES
Payments on short-term debt due to banks - net -- -- (20,577)
Proceeds from long-term debt 81,515 7,540 21,020
Payments on long-term debt (44,636) (7,500) (13,320)
Financing costs (467) -- --
Net proceeds from sales of Common Stock -- 205 1,458
Purchase of treasury stock (22) (237) --
Dividends paid (5,044) (5,047) (4,979)
-------- -------- --------
NET CASH PROVIDED (USED) BY FINANCING
ACTIVITIES 31,346 (5,039) (16,398)
-------- -------- --------
Changes in cash and cash equivalents -- -- --
Cash and cash equivalents at beginning of year -- -- --
-------- -------- --------
Cash and cash equivalents at end of year $ -- $ -- $ --
======== ======== ========
SUPPLEMENTARY CASH FLOW DISCLOSURES
Income taxes paid (net of refunds received) $ 3,805 $ 6,071 $ 4,389
======== ======== ========
Interest paid $ 3,145 $ 5,461 $ 3,913
======== ======== ========
</TABLE>
See Notes to Consolidated Financial Statements
<PAGE> 10
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
PICCADILLY CAFETERIAS, INC.
NOTE 1 -- SIGNIFICANT ACCOUNTING POLICIES
USE OF ESTIMATES. The preparation of the Consolidated Financial Statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
PRINCIPLES OF CONSOLIDATION. The accompanying Consolidated Financial Statements
include the accounts of Piccadilly Cafeterias, Inc. and its subsidiaries
(hereinafter referred to as the Company). All significant intercompany balances
and transactions have been eliminated in consolidation.
INDUSTRY. The Company's principal industry is the operation of Company-owned
cafeterias and seafood restaurants primarily in the Southeast and Mid-Atlantic
regions of the United States.
INVENTORIES. Inventories consist primarily of food and supplies and are stated
at the lower of cost (first-in, first-out method) or market.
PROPERTY, PLANT AND EQUIPMENT. Property, plant and equipment (PP&E) is stated at
cost, except for PP&E that have been impaired, for which the carrying amount is
reduced to estimated fair value. Depreciation is provided using the
straight-line method for financial reporting purposes on the following estimated
useful lives:
<TABLE>
<S> <C>
Buildings and component equipment 10-30 years
Furniture and fixtures 10 years
Machinery and equipment 4 years
</TABLE>
Leasehold improvements are amortized over the original lease term, including
expected renewal periods if applicable. The cost of leasehold improvements has
been reduced by the amount of construction allowances received from developers
and landlords. Repairs and maintenance are charged to operations as incurred.
Renewals and betterments which increase the value or extend the lives of assets
are capitalized and depreciated over their estimated useful lives. When assets
are retired, or are otherwise disposed of, cost and the related accumulated
depreciation are eliminated from the accounts and any resulting gain or loss is
included in the determination of income.
LONG-LIVED ASSETS. The Company reviews long-lived assets to be held and used in
the business for impairment whenever events or changes in circumstances indicate
that the carrying amount of an asset or a group of assets may not be
recoverable. The Company considers a history of operating losses to be its
primary indicator of potential impairment. Assets are evaluated for impairment
at the operating unit level. An asset is deemed to be impaired if a forecast of
undiscounted future operating cash flows directly related to the asset,
including disposal value, if any, is less than its carrying amount. If an asset
is determined to be impaired, the loss is measured as the amount by which the
carrying amount of the asset exceeds its fair value. The Company generally
estimates fair value by discounting estimated future cash flows. Considerable
management judgment is necessary to estimate cash flows. Accordingly, it is
reasonably possible that actual results could vary significantly from such
estimates.
INCOME TAXES. The Company accounts for income taxes using the liability method.
Under this method, deferred income taxes reflect the net tax effects of
temporary differences between the carrying amounts of assets and liabilities for
financial reporting and the amounts used for income taxes.
STOCK-BASED COMPENSATION. The Company accounts for its stock compensation
arrangements under the provisions of Accounting Principles Board (APB) No. 25,
"Accounting for Stock Issued to Employees," and makes the pro forma information
disclosures required under the provisions of Statement of Financial Accounting
Standards (SFAS) No. 123, "Accounting for Stock-Based Compensation."
EARNINGS PER SHARE. Earnings per share of Common Stock are calculated under the
provisions of SFAS No. 128, "Earnings Per Share", which the Company adopted
during the three-month period ended December 31, 1997.
<PAGE> 11
NOTE 2 -- MORRISON ACQUISITION
On May 28, 1998, the Company completed a $5.00 per share cash tender offer for
all outstanding shares of Morrison Restaurant, Inc. (Morrison), acquiring
approximately 89% of the outstanding Morrison shares. The merger was completed
on July 31, 1998 when the Company purchased the remaining outstanding Morrison
shares for $5.00 per share (the Morrison Acquisition). The total acquisition
cost, including $10,360,000 of debt assumed, was approximately $57,270,000. On
May 28, 1998, Morrison operated 142 restaurants in 13 southeastern and
mid-Atlantic states.
This acquisition has been accounted for using the purchase method of accounting
and the results of operations have been included in the accompanying
Consolidated Financial Statements since May 28, 1998. The purchase price for
Morrison was allocated to the assets and liabilities based on fair value (assets
of $98,464,000 and liabilities of $64,021,000), resulting in approximately
$12,467,000 of goodwill, which is being amortized using the straight-line method
over 30 years. However, the purchase price allocation is tentative and may be
adjusted as additional information is obtained.
Unaudited pro forma results of operations of the Company for the years ended
June 30, 1998 and 1997, giving effect to the Morrison Acquisition as if it had
occurred as of July 1, 1996, are as follows (in thousands, except per share
data):
<TABLE>
<CAPTION>
1998 1997
<S> <C> <C>
Net sales $532,586 $533,399
Operating income 40,712 54,850
Net income 5,386 14,484
Net income per share - basic and diluted .51 1.38
</TABLE>
The unaudited pro forma results of operations for the years ended June 30, 1998
and 1997 include pro forma adjustments for unfavorable leases; the incremental
increase in amortization of goodwill; incremental depreciation of property,
plant and equipment; interest expense; and income taxes associated with the
acquisition. It does not reflect all anticipated cost savings and other
operating synergies which management expects to achieve at Morrison during the
periods presented. In connection with the Morrison Acquisition, the Company
recorded liabilities at the date of acquisition for lease buyouts, occupancy
costs and employee termination costs related to the planned closing of 18
Morrison cafeterias and for 23 Morrison properties that were closed prior to the
acquisition date. As of June 30, 1998, the Company has completed the planned
closing of five of the above-mentioned Morrison cafeterias and has a remaining
accrual of approximately $13,460,000 to settle the remaining leases and pay
remaining severance costs. While management believes this amount is adequate to
finalize the closure of these Morrison cafeterias, the actual settlements may
result in additional adjustments to this accrual.
NOTE 3 -- IMPAIRMENTS OF LONG-LIVED ASSETS
The Company adopted SFAS No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed Of," during the fourth quarter
of 1996. The initial, non-cash charge in connection with the adoption of SFAS
No. 121 was $9,404,000 ($5,830,000 after-tax or $.56 per share), which included
$4,668,000 ($2,894,000 after-tax or $.28 per share) related to four operating
units for which closure decisions were made during the fourth quarter. The
initial charge represented a reduction of the carrying amounts of the impaired
assets to their estimated fair value, as determined by using discounted
estimated future cash flows, and a reserve for future rental commitments.
During the fourth quarter of 1998, the Company recorded a non-cash charge of
$3,453,000 ($2,175,000 after tax or $.21 per share) related to asset write-downs
under SFAS No. 121 and related future rent commitments for operating units for
which closure decisions were made during the fourth quarter. The closure
decisions primarily related to certain Piccadilly units expected to close in
connection with the Morrison Acquisition.
<PAGE> 12
NOTE 4 -- INCOME TAXES
Significant components of the Company's deferred tax liabilities and assets are
as follows:
<TABLE>
<CAPTION>
(Amounts in thousands)
June 30 1998 1997
<S> <C> <C>
Deferred tax assets:
Accrued expenses $13,203 $ 4,280
Unit closing reserves 8,185 2,057
Intangible assets 1,339 1,854
NOL and tax credit carryforwards 7,094 107
------- -------
29,821 8,298
Deferred tax liabilities:
Property, plant and equipment 16,751 6,191
Prepaid pension costs 3,048 2,902
Inventories 880 882
------- -------
20,679 9,975
------- -------
Net deferred tax assets (liabilities) $ 9,142 $(1,677)
======= =======
</TABLE>
At June 30, 1998 the Company has net operating loss carryforwards of $18,288,000
and general business tax credit carryforwards of $264,000 resulting from the
Morrison Acquisition. These carryforwards, which expire from 2010 through 2012,
give rise to deferred tax assets. SFAS 109 specifies that deferred tax assets
are to be reduced by a valuation allowance if it is more likely than not that
some portion of the deferred tax assets will not be realized. Although
provisions of the Internal Revenue Code limit the amount of the net operating
loss carryforward that can be utilized each year to $2,332,000, management
believes that carrybacks and future reversals of existing taxable differences
and, if necessary, the implementation of tax planning strategies, should be
sufficient to realize all of the Company's deferred tax; therefore, a valuation
allowance has not been established.
The components of the provision for income taxes are as follows:
<TABLE>
<CAPTION>
(Amounts in thousands)
Year Ended June 30 1998 1997 1996
<S> <C> <C> <C>
Current:
Federal $ 4,371 $ 4,719 $ 3,752
State 182 693 528
------- ------- -------
4,553 5,412 4,280
Defferred:
Federal $ 96 $ 254 $(3,588)
State 4 89 (449)
------- ------- -------
100 343 (4,037)
------- ------- -------
Total provision for income taxes $ 4,653 $ 5,755 $ 243
======= ======= =======
</TABLE>
<PAGE> 13
Differences between the provision for income taxes and the amount
computed by applying the federal statutory income tax rate to income before
income taxes are as follows:
<TABLE>
<CAPTION>
(Amounts in thousands)
Year Ended June 30 1998 1997 1996
<S> <C> <C> <C>
Income taxes at statutory rate $ 4,269 $ 5,201 $ 217
State income taxes, net of federal taxes 502 464 79
------- ------- -------
4,771 5,665 296
Tax credits $ (161) $ (163) $ (78)
Other items 43 253 25
------- ------- -------
Total provision for income taxes $ 4,653 $ 5,755 $ 243
======= ======= =======
</TABLE>
NOTE 5 -- LEASED PROPERTY
The Company rents most of its cafeteria and restaurant facilities under
long-term leases with varying provisions and with original lease terms generally
of 20 to 30 years. The Company has the option to renew the leases for specified
periods subsequent to their original terms. Minimum future lease commitments, as
of June 30, 1998, including $19,580,000 for closed units, are as follows:
<TABLE>
<CAPTION>
(Amounts in thousands)
Year Ending June 30
<S> <C>
1999 $ 20,757
2000 17,869
2001 16,327
2002 15,109
2003 13,021
Subsequent 40,693
--------
123,776
Less sublease income 11,437
--------
Net minimum lease commitments $112,339
========
</TABLE>
The leases generally provide for percentage rentals based on sales. Certain
leases also provide for payments of executory costs such as real estate taxes,
insurance, maintenance and other miscellaneous charges. Rent expense for the
periods shown below does not include these executory costs.
<TABLE>
<CAPTION>
(Amounts in thousands)
Year Ended June 30 1998 1997 1996
<S> <C> <C> <C>
Minimum rentals $10,581 $ 7,999 $ 7,966
Contingent rentals 1,385 2,482 2,728
------- ------- -------
Total $11,966 $10,481 $10,694
======= ======= =======
</TABLE>
<PAGE> 14
NOTE 6 -- LONG-TERM DEBT AND LINES OF CREDIT
<TABLE>
<CAPTION>
(Amounts in thousands)
June 30 1998 1997
<S> <C> <C>
Note payable to banks, due at maturity on June 22, 2001 (Amount available $ 78,979 $ --
at June 30, 1998-- $46,021,000; fair value at June 30, 1998--
$78,979,0000)
10.15% senior notes, due on January 31, 1998 (Fair value at June 30, 1997 -- 4,500
-- $4,525,000)
Note payable to bank, due at maturity on September 30, 1999 (Amount -- 18,740
available at June 30, 1997-- $11,260,000; fair value at June 30,
1997-- $18,740,000)
Note payable to bank, due at maturity on September 30, 1999 (Amount -- 8,500
available at June 30, 1997 -- $6,500,000; fair value at June 30,
1997 -- $8,500,000)
-------- --------
78,979 31,740
Less current portion -- (4,500)
-------- --------
Total long-term debt, net of current portion $ 78,979 $ 27,240
======== ========
</TABLE>
The fair values of the Company's long-term borrowings are estimated using
discounted cash flow analyses, based on the Company's current incremental
borrowing rates for similar types of borrowing arrangements. The Company has
credit agreements totaling $125,000,000 with two banks. These credit agreements
are unsecured and bear interest at varying rates (7.15% at June 30, 1998) based
upon the Company's debt to EBITDA ratios, as defined in the credit agreements.
The Company pays quarterly commitment fees which range from .25% to .375%, based
upon the Company's debt to EBITDA ratios, per annum of the unused portion of the
available credit under the notes. The facilities contain covenants that include
provisions for the maintenance of net worth, limitations on the level of
liabilities, and requirements for minimum coverage of fixed charges. At June 30,
1998, the Company was in compliance with all such covenants. Both facilities
contain prepayment options, without penalty, which can be exercised at any time
during the term of the agreements.
The Company capitalized interest costs of $120,000 in 1998, $ 100,000 in 1997
and $85,000 in 1996 with respect to qualifying construction. Total interest cost
incurred was $ 2,634,000 in 1998, $2,814,000 in 1997 and $5,338,000 in 1996,
including interest reserves relating to IRS examinations of $1,528,000 in 1996.
NOTE 7 -- PENSION PLAN AND OTHER POSTRETIREMENT BENEFITS
The Company has a defined benefit pension plan covering substantially all
employees, except for Morrison employees, who meet certain age and
length-of-service requirements. Retirement benefits are based upon an employee's
years of credited service and final average compensation. Annual contributions
are made in amounts sufficient to fund normal costs as accrued and to amortize
prior service costs over a 40-year period. Assets of the plan are invested
principally in obligations of the United States Government and other marketable
debt and equity securities including 367,662 shares of the Company's Common
Stock held at June 30, 1998 and June 30, 1997 with a fair value of $4,734,000
and $3,906,000, respectively.
At the time of its acquisition by the Company on May 28, 1998, Morrison
maintained two non-qualified employee defined benefit pension plans and one
frozen qualified defined benefit pension plan.
<PAGE> 15
The following tables set forth the pension plans' funded status and amounts
recognized in the Company's financial statements.
<TABLE>
<CAPTION>
(Amounts in thousands)
Morrison Piccadilly
June 30 1998 1998 1997
<S> <C> <C> <C>
Accumulated benefit obligations $ 12,613 $ 57,954 $ 47,641
======== ======== ========
Vested benefit obligations $ 12,613 $ 55,085 $ 45,085
======== ======== ========
Fair value of plan assets $ 8,738 $ 65,438 $ 53,072
Projected benefit obligation 14,482 67,853 55,775
-------- -------- --------
Plan assets under projected benefit obligation (5,744) (2,415) (2,703)
Unrecognized prior service cost -- (32) (36)
Unrecognized net loss -- 8,203 8,029
-------- -------- --------
Prepaid (accrued) pension cost included in other
non-current assets (liabilities) $ (5,744) $ 5,756 $ 5,290
======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
(Amounts in thousands)
Piccadilly
Year Ended June 30 1998 1997 1996
<S> <C> <C> <C>
Net pension expense:
Service cost $ 2,207 $ 1,942 $ 1,854
Interest cost on projected benefit obligation 4,364 4,001 3,569
Actual return on plan assets (12,540) (6,547) (5,187)
Net amortization and deferral 7,902 2,765 1,084
-------- -------- --------
$ 1,933 $ 2,161 $ 1,320
======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
(Amounts in thousands)
Morrison Piccadilly
June 30 1998 1998 1997 1996
<S> <C> <C> <C> <C>
Actuarial assumptions:
Discount rate 7.25% 7.0% 8.0% 8.0%
Compensation increases 4.0% 3.5% 4.0% 4.0%
Long-term rate of return 9.0% 9.0% 9.0% 9.0%
</TABLE>
Additionally, at the time of its acquisition by the Company, Morrison provided
certain health care benefits and life insurance benefits to eligible retirees.
At June 30, 1998, the Company's financial statements included a liability of
$1,972,000 related to these accumulated postretirement benefit obligations. This
liability was measured based on an assumed 8.25% discount rate for fiscal 1998.
Retirees become eligible for retirement benefits if they have met certain
service and minimum age requirements at date of retirement.
Management is in the process of evaluating the benefits it offers its employees.
As a result of this process, which management expects to complete by December
31, 1998, the pension and other postretirement benefit plans discussed above may
undergo changes, including the possible termination of certain plans.
NOTE 8 -- COMMON STOCK
On August 3, 1987, the Board of Directors adopted the Piccadilly Cafeterias,
Inc. Dividend Reinvestment and Stock Purchase Plan. Shareholders of record may
reinvest quarterly dividends and/or up to $5,000 per quarter in the Company's
Common Stock. Stock obtained through reinvested dividends is issued at a 5%
discount. At June 30, 1998, there were 338,955 unissued Common Shares reserved
under the plan. On November 2, 1987, the Company's stockholders adopted the
Piccadilly Cafeterias, Inc. Employee Stock Purchase Plan. The Company terminated
this plan in 1996.
<PAGE> 16
On November 1, 1993, the Company's stockholders approved the Piccadilly
Cafeterias, Inc. 1993 Incentive Compensation Plan (the 1993 Plan). Under the
terms of the plan, which amends and restates the Piccadilly Cafeterias, Inc.
1988 Stock Option Plan (the 1988 Plan), incentive stock options and
non-qualified stock options, stock appreciation rights, stock awards, restricted
stock, performance shares, and cash awards may be granted to officers or key
employees. Options to purchase shares of the Company's Common Stock may be
issued at no less than 100% of the fair market value on the date of grant. The
Company has reserved 1,000,000 shares, in total, for issuance under the 1988 and
1993 Plans. At June 30, 1998 96,325 shares were available for future option
grants and options to purchase 814,675 shares were exercisable. Options
outstanding at June 30, 1998, have exercise prices which range from $9.63 to
$12.00 and a weighted average remaining contractual life of 8.3 years.
Transactions under the restated 1993 Plan for the last three fiscal years are
summarized as follows:
<TABLE>
<CAPTION>
(Dollars in thousands - except per share data)
Common Weighted
Stock Average
Shares Exercise Price Total
<S> <C> <C> <C>
OUTSTANDING AT JUNE 30, 1995 973,000 $10.79 $ 10,502
Cancelled/expired (110,500) 15.04 (1,662)
Exercised (50,000) 9.00 (450)
Granted 82,500 9.63 794
-------- --------
OUTSTANDING AT JUNE 30, 1996 895,000 10.26 9,184
Cancelled/expired (676,000) 10.37 (7,013)
Exercised (25,000) 9.00 (225)
Granted -- -- --
-------- --------
OUTSTANDING AT JUNE 30, 1997 194,000 10.03 1,946
Cancelled/expired (14,000) 12.75 (179)
Exercised -- -- --
Granted 634,675 12.00 7,616
-------- --------
OUTSTANDING AT JUNE 30, 1998 814,675 11.52 9,383
======== ========
</TABLE>
PRO FORMA SFAS NO. 123 RESULTS. Pro forma information regarding net income and
net income per share is required by SFAS No. 123, and has been determined as if
the Company had accounted for its employee stock options under the fair value
method of SFAS No. 123. The fair value for these options was estimated at the
date of grant using a Black-Scholes option pricing model with the following
weighted average assumptions: risk-free interest rate of 5.0%; dividend yield of
5.0%; volatility factors of the expected market price of the Company's common
stock of 23%; and a weighted average expected life of the options of 5.0 years.
The weighted average fair value of the stock options granted in 1998 and 1996
were $1.84 and $1.20 per share, respectively. 1998 pro forma net income and net
income per share, assuming that the Company had accounted for its employee stock
options using the fair value method would have been reduced by $624,000 and
$.06, respectively. 1997 and 1996 amounts would not be different from those
reported.
<PAGE> 17
EARNINGS PER SHARE. A reconciliation of the income and common stock share
amounts used in the calculation of basic and diluted net income per share for
the years ended June 30, 1998, 1997 and 1996 are as follows (net income in
thousands).
<TABLE>
<CAPTION>
Per Share
Net Income Shares Amount
<S> <C> <C> <C>
FOR THE YEAR ENDED JUNE 30, 1998
Basic net income $ 7,903 10,503,368 $0.75
Effect of dilutive securities -- 65,104 --
---------- ---------- -----
Diluted net income $ 7,903 10,568,382 $0.75
========== ========== =====
FOR THE YEAR ENDED JUNE 30, 1997
Basic net income $ 9,390 10,505,602 $0.89
Effect of dilutive securities -- 236 --
---------- ---------- -----
Diluted net income $ 9,390 10,505,838 $0.89
========== ========== =====
FOR THE YEAR ENDED JUNE 30, 1996
Basic net income $ 385 10,401,381 $0.04
Effect of dilutive securities -- 3,056 --
---------- ---------- -----
Diluted net income $ 385 10,404,437 $0.04
========== ========== =====
</TABLE>
NOTE 9 -- QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
<TABLE>
<CAPTION>
(Amounts in thousands -- except per share data)
YEAR ENDED JUNE 30, 1998 Year Ended June 30, 1997
9/30 12/31 3/31 6/30 9/30 12/31 3/31 6/30
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales $ 78,952 $ 79,189 $ 76,641 $100,606 $ 75,500 $ 77,469 $ 74,160 $ 77,709
Cost of sales and other
operating expense 72,105 71,679 69,124 91,715 69,802 69,496 66,585 70,136
Net income 2,076 2,827 2,592 408 1,387 2,843 2,589 2,571
Net Income per share-
diluted $ .20 $ .27 $ .25 $ .04 $ .13 $ .27 $ .25 $ .24
</TABLE>
During the quarter ended June 30, 1998, the Company recorded a $3,453,000
($2,175,000 after-tax or $.21 per share) charge for the write-down of long-lived
assets in accordance with SFAS No. 121 (see Note 2 for further discussion) and
related rental commitments for units to be closed. Also during the quarter ended
June 30, 1998, the Company acquired 89% of the outstanding shares of Morrison
Restaurants, Inc. (see Note 2 and Management's Discussion and Analysis of
Financial Condition and Results of Operations for further discussion).
<PAGE> 18
EXHIBIT 13(e)
Shareholders and Board of Directors
Piccadilly Cafeterias, Inc.
Baton Rouge, Louisiana
We have audited the accompanying consolidated balance sheets of Piccadilly
Cafeterias, Inc. as of June 30, 1998 and 1997, and the related consolidated
statements of income, changes in shareholders' equity, and cash flows for each
of the three years in the period ended June 30, 1998. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Piccadilly
Cafeterias, Inc. at June 30, 1998 and 1997, and the consolidated results of its
operations and its cash flows for each of the three years in the period ended
June 30, 1998 in conformity with generally accepted accounting principles.
Ernst & Young LLP
New Orleans, Louisiana
July 27, 1998
<PAGE> 1
EXHIBIT 21
LIST OF SUBSIDIARIES
Piccadilly Cafeterias, Inc.
(1) Piccadilly Restaurants, Inc.
Louisiana Corporation
100% owned
(2) Cajun Bayou Distributors and Management, Inc.
Louisiana Corporation
100% owned
(3) Liquor PR, Inc.
Texas Corporation
49% owned
(4) Morrison Restaurants, Inc.
Georgia Corporation
100% owned
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Piccadilly Cafeterias, Inc. of our report dated July 27, 1998, included in
the 1998 Annual Report to Shareholders of Piccadilly Cafeterias, Inc.
Our audits also included the financial statement schedule of Piccadilly
Cafeterias, Inc. listed in Item 14(a). This schedule is the responsibility of
the Company's management. Our responsibility is to express an opinion based on
our audits. In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
We also consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 33-17737 and Form S-8 No. 33-27793) and in the Registration
Statement and related Prospectuses (Form S-3 No. 33-17131) of our report dated
July 27, 1998, with respect to the consolidated financial statements
incorporated herein by reference and our report included in the preceding
paragraph with respect to the financial statement schedule included in this
Annual Report (Form 10-K) of Piccadilly Cafeterias, Inc.
Ernst & Young LLP
New Orleans, Louisiana
September 23, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE FOLLOWING FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE COMPANY'S ANNUAL SHAREHOLDERS REPORT FOR THE YEAR ENDED JUNE
30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> JUN-30-1998
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 1,602
<ALLOWANCES> 0
<INVENTORY> 12,489
<CURRENT-ASSETS> 26,284
<PP&E> 332,918
<DEPRECIATION> 127,125
<TOTAL-ASSETS> 253,860
<CURRENT-LIABILITIES> 60,137
<BONDS> 0
0
0
<COMMON> 19,141
<OTHER-SE> 61,295
<TOTAL-LIABILITY-AND-EQUITY> 253,860
<SALES> 335,388
<TOTAL-REVENUES> 335,388
<CGS> 194,898
<TOTAL-COSTS> 310,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,514
<INCOME-PRETAX> 12,556
<INCOME-TAX> 4,653
<INCOME-CONTINUING> 7,903
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,903
<EPS-PRIMARY> 0.75
<EPS-DILUTED> 0.75
</TABLE>
