<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES ACT OF 1934
AMENDMENT NO. 5
Perkins Family Restaurants, L.P.
--------------------------------
(NAME OF SUBJECT COMPANY)
Depositary Units Representing Limited Partners' Interests
---------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
714063 10 4
-----------------------------------
(CUSIP NUMBER OF CLASS OF SECURITIES)
Donald F. Wiseman
Perkins Family Restaurants, L.P.
6075 Poplar Avenue, Suite 800
Memphis, TN 38119
(901)766-6400
--------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS
September 30, 1997
-----------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1 (b) (3) or (4), check the following box / /
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Perkins Restaurants, Inc.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Minnesota
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
Page 2 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
The Restaurant Company
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
Page 3 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Donald N. Smith
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
Page 4 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Harrah's Operating Company, Inc.
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
Page 5 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
The Equitable Life Assurance Society of the United States
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC, CO
Page 6 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
The Equitable Companies Incorporated
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (X)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,043,000
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING -0-
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
5,043,000
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
Page 7 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
AXA-UAP
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
Page 8 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
FINAXA
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
Page 9 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Assurances I.A.R.D. Mutuelle
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
Page 10 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Assurances Vie Mutuelle
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
Page 11 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
AXA Courtage Assurance Mutuelle
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
Page 12 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Alpha Assurances Vie Mutuelle
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IC
Page 13 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Claude Bebear, as AXA Voting Trustee
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
Page 14 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Patrice Garnier, as AXA Voting Trustee
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
Page 15 of 21 Pages
<PAGE>
CUSIP NO.: 714063 10 4 13D
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Henri de Clermont-Tonnerre, as AXA Voting Trustee
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) (_)
(b) (_)
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) (_)
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
- ------------------------------------------------------------------------------
7 SOLE VOTING POWER
(See Item 5)
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY (See Item 5)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON ----------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
(See Item 5)
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,043,000 (See Item 5) (Not to be construed as an admission of beneficial
ownership)
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (_)
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
48.6% (See Item 5)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
Page 16 of 21 Pages
<PAGE>
Pursuant to Rule 13d-2(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Act")
the undersigned hereby amend their Schedule 13D statement dated October 24,
1986, as amended by Amendments No. 1 through 4 thereto (as so amended, the
"Schedule 13D"), relating to depositary units representing limited partners'
interests (the "Units") of Perkins Family Restaurants, L.P. (the "Issuer").
Unless otherwise indicated, all capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Schedule
13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Approximately $88 million will be required to consummate the Merger and
to pay related fees and expenses. On September 30, 1997, TRC entered into a
commitment agreement (the "Commitment Letter") with a bank to provide a
combination of term loan faciilities (the "Term Loans") and a new $50,000,000
revolving line of credit facility (the "Line") (together, the "Facilities")
which are intended to finance the purchase of the Public Units and refinance
the Partnership's existing credit facilities. The Term Loans consist of two
separate facilities in the amounts of $50,000,000 ("Term Loan A") and
$80,000,000 ("Term Loan B").
Term Loan A matures five years from the date of closing and is to be
repaid in eighteen consecutive quarterly installments, commencing in the
third quarter after the closing date. Term Loan B matures eight years from
the date of closing and is to be repaid in thirty consecutive quarterly
installments, also commencing in the third quarter after the closing date.
The Line matures five years from the date of closing and contains a
$5,000,000 sublimit for letters of credit.
Although the Facilities are available to finance the Merger, TRC plans to
raise a significant portion of the required financing through a private
placement of debt securities. As currently contemplated, Term Loan B would
be eliminated and the combined amounts of Term Loan A and the Line would be
reduced by the net amount of funds raised through a private placement. TRC
plans to complete the closings of the Facilities and the private placement
concurrently with the consummation of the Merger.
The Commitment Letter is attached hereto as Exhibit 99.7 and is
incorporated herein by this reference.
ITEM 4. PURPOSE OF TRANSACTION.
On October 1, 1997, TRC and the Issuer entered into an Amended and
Restated Agreement and Plan of Merger (the "Amended Merger Agreement"), which
amends and restates the original Merger Agreement in its entirety. The
amendments effected by the Amended Merger Agreement were needed to effectuate
a provision in the original Merger Agreement that would give TRC the tax
benefit for funding the payment for certain expenses connected with the
Merger.
The Amended Merger Agreement provides that TRC and its affiliates will be
entitled to contribute any amount necessary to pay any costs incurred by the
Issuer in connection with
Page 17 of 21 Pages
<PAGE>
the repayment of the Issuer's existing indebtedness or in connection with any
other transaction connected with the Merger and that payment of such expenses
will be specially allocated to the party paying such expense in order to
satisfy the "substantial economic effect" requirement of Section 704(b) of
the Internal Revenue Code of 1986, as amended (the "Code"). In order to
effectuate the provision in the original Merger Agreement that would give TRC
the tax benefit for funding such expenses, the Amended Merger Agreement
provides for an amendment of the Issuer's Amended and Restated Agreement of
Limited Partnership (the "Partnership Agreement") beginning on the effective
date of the Merger. As so amended, the Partnership Agreement will provide
that if any amount is contributed or deemed to be contributed to the Issuer
or its affiliates to pay expenses incurred by the Issuer or its affiliates in
connection with the repayment of debt or any other transaction connected with
the Merger, such expenses shall be specially allocated to the partner making
such contribution or deemed contribution in accordance with Section 704(b) of
the Code. Prior to such amendment, the tax benefit of some of these expenses
might have been allocated to all of the partners of the Partnership,
including the public Unitholders. The public Unitholders therefore will not
receive any tax benefit as a result of the contribution by TRC and its
affiliates to the Partnership of amounts for payment of expenses in
connection with the Merger.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) PRI is the direct owner of 5,043,000 Units. PRI is a wholly-owned
subsidiary of TRC. Smith, HOC and Equitable Life are the owners (directly or
indirectly) of 33.2%, 33.2% and 28.1%, respectively, of the outstanding
capital stock of TRC. By virtue of such ownership in TRC, Smith, HOC and
Equitable Life may be deemed to have shared voting and dispositive power over
all of the Units owned directly by PRI.
Because of EQ's ownership interest in Equitable Life, EQ may be deemed,
for purposes of Rule 13d-3 under the Act, to beneficially own indirectly the
Units that may be deemed to be beneficially owned indirectly by Equitable
Life.
Because of AXA-UAP's ownership interest in EQ, and the AXA Voting
Trustees' power to vote the EQ shares placed in the AXA Voting Trust, each of
AXA-UAP and the AXA Voting Trustees may be deemed, for purposes of Rule 13d-3
under the Act, to beneficially own indirectly the Units that EQ may be deemed
to beneficially own indirectly. Because of the direct and indirect ownership
interest in AXA-UAP of Finaxa and the Mutuelles AXA, each of Finaxa and the
Mutuelles AXA may be deemed, for purposes of Rule 13d-3 under the Act to
beneficially own indirectly the Units that AXA-UAP may be deemed to
beneficially own indirectly. AXA-UAP, Finaxa, the Mutuelles AXA, and the AXA
Voting Trustees expressly disclaim beneficial ownership of any of the Units.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Page 18 of 21 Pages
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The information set forth in Item 4 is incorporated herein by reference.
Reference is made to the full text of the Amended Merger Agreement which is
attached hereto as Exhibit 99.6 and is incorporated herein by this reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT NO.: DESCRIPTION:
99.6 Amended and Restated Agreement and Plan of Merger dated
September 11, 1997.
99.7 Commitment Letter dated September 30, 1997.
Page 19 of 21 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October , 1997
PERKINS RESTAURANTS, INC.
By: /s/ Donald N. Smith
-----------------------------
Name: Donald N. Smith
Title: Chairman of the Board and Chief Executive Officer
THE RESTAURANT COMPANY
By: /s/ Donald N. Smith
-----------------------------
Name: Donald N. Smith
Title: Chairman of the Board and Chief Executive Officer
/s/ DONALD N. SMITH
---------------------------
DONALD N. SMITH
HARRAH'S OPERATING COMPANY, INC.
By: /s/ Charles L. Atwood
-----------------------------
Name: Charles L. Atwood
Title: Vice President and Treasurer
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Alvin H. Fenichel
-----------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
Page 20 of 21 Pages
<PAGE>
THE EQUITABLE COMPANIES INCORPORATED
By: /s/ Alvin H. Fenichel
-----------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
AXA-UAP
FINAXA
AXA ASSURANCES I.A.R.D. MUTUELLE
AXA ASSURANCES VIE MUTUELLE
AXA COURTAGE ASSURANCE MUTUELLE
ALPHA ASSURANCES VIE MUTUELLE
CLAUDE BEBEAR, AS AXA VOTING TRUSTEE
PATRICE GARNIER, AS AXA VOTING TRUSTEE
HENRI DE CLERMONT-TONNERRE, AS AXA VOTING TRUSTEE
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-----------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Page 21 of 21 Pages
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EXHIBIT 99.6
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMONG
THE RESTAURANT COMPANY,
PERKINS ACQUISITION CORP.
AND
PERKINS FAMILY RESTAURANTS, L.P.
DATED AS OF SEPTEMBER 11, 1997
<PAGE>
TABLE OF CONTENTS
ARTICLE I
THE MERGER
<TABLE>
<S> <C>
SECTION 1.01 The Merger.............................................................. 3
SECTION 1.02 Effective Time; Closing................................................. 3
SECTION 1.03 Effect of the Merger.................................................... 3
SECTION 1.04 Agreement of Limited Partnership........................................ 4
SECTION 1.05 Conversion of Securities; Merger Consideration.......................... 4
SECTION 1.06 Surrender of Units...................................................... 4
SECTION 1.07 Restricted Limited Partnership Unit Plan................................ 5
SECTION 1.08 Redemption.............................................................. 5
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PERKINS
SECTION 2.01 Organization and Qualification.......................................... 5
SECTION 2.02 Capitalization.......................................................... 6
SECTION 2.03 Authority Relative to this Agreement.................................... 6
SECTION 2.04 No Conflict; Required Filings and Consents.............................. 6
SECTION 2.05 Compliance.............................................................. 7
SECTION 2.06 Litigation.............................................................. 7
SECTION 2.07 SEC Filings; Financial Statements....................................... 7
SECTION 2.08 Proxy Statement......................................................... 7
SECTION 2.09 Brokers................................................................. 8
SECTION 2.10 Fairness Opinion........................................................ 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGERCO. AND TRC
SECTION 3.01 Corporate Organization.................................................. 8
SECTION 3.02 Authority Relative to this Agreement.................................... 8
SECTION 3.03 No Conflict; Required Filings and Consents.............................. 8
SECTION 3.04 Proxy Statement......................................................... 9
SECTION 3.05 Brokers................................................................. 9
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01 Meeting of Unitholders.................................................. 9
SECTION 4.02 Proxy Statement and Schedule 13E-3...................................... 9
SECTION 4.03 Further Action; Reasonable Best Efforts................................. 10
SECTION 4.04 Public Announcements.................................................... 10
SECTION 4.05 Financing............................................................... 10
SECTION 4.06 Updated Fairness Opinion................................................ 10
SECTION 4.07 Distributions........................................................... 10
SECTION 4.08 Capital Contributions................................................... 10
ARTICLE V
CONDITIONS TO THE MERGER
SECTION 5.01 Conditions to Each Party's Obligation to Effect the Merger.............. 10
SECTION 5.02 Additional Conditions to Obligations of TRC and MergerCo. to Effect the
Merger.............................................................................. 11
SECTION 5.03 Additional Conditions to Obligation of Perkins to effect the Merger..... 11
</TABLE>
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<TABLE>
<S> <C>
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01 Termination............................................................. 12
SECTION 6.02 Effect of Termination................................................... 12
SECTION 6.03 Fees and Expenses....................................................... 12
SECTION 6.04 Amendment............................................................... 12
SECTION 6.05 Waiver.................................................................. 12
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 Non-Survival of Representations, Warranties and Agreements.............. 12
SECTION 7.02 Notices................................................................. 13
SECTION 7.03 Certain Definitions..................................................... 13
SECTION 7.04 Severability............................................................ 14
SECTION 7.05 Entire Agreement; Assignment............................................ 14
SECTION 7.06 Parties in Interest..................................................... 14
SECTION 7.07 Specific Performance.................................................... 14
SECTION 7.08 Governing Law........................................................... 14
SECTION 7.09 Headings................................................................ 14
SECTION 7.10 Counterparts............................................................ 14
</TABLE>
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of September 11,
1997 (this "AGREEMENT") among The Restaurant Company, a Delaware corporation
("TRC"), Perkins Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Perkins Management Company, Inc. ("MERGERCO."), and Perkins Family
Restaurants, L.P., a Delaware limited partnership ("PERKINS").
WHEREAS, the Board of Directors (the "BOARD") of Perkins Management Company,
Inc. ("PMC" or in its capacity as the sole general partner of Perkins, the
"GENERAL PARTNER"), at a meeting duly called and held on September 11, 1997, has
(A) determined that this Agreement and the transactions contemplated hereby (the
"TRANSACTIONS") are fair to and in the best interests of holders (other than
TRC, its affiliates and the employees, officers and directors of TRC and its
affiliates) of depositary units ("UNITS") representing limited partners'
interests in Perkins (the "PUBLIC UNITHOLDERS"), (B) approved and adopted this
Agreement and the Transactions, including the merger of MergerCo. with and into
Perkins (the "MERGER") in accordance with the Delaware General Corporation Law
(the "DGCL") and the Delaware Revised Uniform Limited Partnership Act ("DRULPA")
and upon the terms and subject to the conditions set forth herein, and (C)
recommended that the Public Unitholders approve and adopt this Agreement and the
Transactions; and
WHEREAS, Morgan Keegan & Company, Inc. ("MORGAN KEEGAN") has delivered to
the Board a written opinion that the consideration to be received by the Public
Unitholders pursuant to the Merger is fair to the Public Unitholders from a
financial point of view (the "MORGAN KEEGAN OPINION"); and
WHEREAS, the Boards of Directors of MergerCo. and TRC have each determined
that this Agreement and the Transactions, including the Merger, are in the best
interests of the stockholders of MergerCo. and TRC; and
WHEREAS, in order to protect the interests of the Public Unitholders, the
Board has determined that the Merger and this Agreement require the affirmative
vote of the holders of a majority of the Units that are held by the Public
Unitholders (the "PUBLIC UNITS") actually voting on the Merger ("PUBLIC
UNITHOLDER APPROVAL");
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, TRC,
MergerCo. and the General Partner, on behalf of Perkins, hereby agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.01 THE MERGER. Upon the terms and subject to the conditions set
forth in ARTICLE V, and in accordance with Section 263 of the DGCL and Section
17-211 of the DRULPA, at the Effective Time (as hereinafter defined) MergerCo.
shall be merged with and into Perkins. As a result of the Merger, the separate
corporate existence of MergerCo. shall cease and Perkins shall continue as the
surviving partnership after the Merger (the "SURVIVING PARTNERSHIP").
SECTION 1.02 EFFECTIVE TIME; CLOSING. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in ARTICLE
V, the parties hereto shall cause the Merger to be consummated by filing a
certificate of merger with the Secretary of State of the State of Delaware (the
"CERTIFICATE OF MERGER"), in such form as is required by, and executed in
accordance with the relevant provisions of, the DGCL and the DRULPA (the date
and time of such filing being the "EFFECTIVE TIME"). Prior to such filing, a
closing shall be held at the offices of Mayer, Brown & Platt, 190 South LaSalle
Street, Chicago, Illinois, 60603, or such other place as the parties shall
agree, for the purpose of confirming the satisfaction or waiver, as the case may
be, of the conditions set forth in ARTICLE V (the "CLOSING").
SECTION 1.03 EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of the DGCL and
DRULPA. Without limiting the generality of the
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foregoing, and subject thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of MergerCo. and Perkins shall vest in the
Surviving Partnership, and all debts, liabilities, obligations, restrictions,
disabilities and duties of MergerCo. and Perkins shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Surviving
Partnership.
SECTION 1.04 AGREEMENT OF LIMITED PARTNERSHIP. The Agreement of Limited
Partnership of Perkins Family Restaurants, L.P. (the "PARTNERSHIP AGREEMENT")
shall be the Agreement of Limited Partnership of the Surviving Partnership and
thereafter may be amended as provided in the Partnership Agreement or by law.
This Agreement shall effect no amendment or other change whatsoever to the
Partnership Agreement except that the Partnership Agreement shall be amended as
provided in EXHIBIT 1.04.
SECTION 1.05 CONVERSION OF SECURITIES; MERGER CONSIDERATION. At the
Effective Time, by virtue of the Merger and without any action on the part of
TRC, MergerCo. or the holders of any of the following securities:
(a) Each Public Unit and each Unit held by any person other than TRC or
its direct or indirect subsidiaries, including any Units that are then
outstanding but subject to restriction and held by participants in the Unit
Plan (as hereinafter defined), shall, upon surrender in the manner provided
in SECTION 1.06 of the depositary receipt that formerly evidenced such Unit
(each a "RECEIPT"), be canceled and shall be converted automatically into
the right to receive an amount equal to $14 per Unit in cash (the "MERGER
CONSIDERATION") payable, without interest, to the holder of such Unit;
(b) Each general or limited partnership interest of Perkins owned by TRC
or any direct or indirect subsidiary of TRC immediately prior to the
Effective Time shall remain a general or limited partnership interest of the
Surviving Partnership and no payment or distribution shall be made with
respect thereto;
(c) Each Unit held in the treasury of Perkins immediately prior to the
Effective Time shall be canceled and retired and no payment shall be made
with respect thereto; and
(d) Each share of Common Stock, par value $.01 per share, of MergerCo.
issued and outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one Unit in the Surviving Partnership.
SECTION 1.06 SURRENDER OF UNITS. (a) Prior to the Effective Time, TRC
shall designate a bank or trust company to act as agent (the "PAYING AGENT") for
the holders of Units to receive the funds to which they shall become entitled
pursuant to SECTION 1.05(A). Promptly after the Effective Time, the Surviving
Partnership shall cause to be mailed to each person who was, at the Effective
Time, a holder of record of Units entitled to receive the Merger Consideration
pursuant to SECTION 1.05(A) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Receipts
shall pass, only upon proper delivery of the Receipts to the Paying Agent) and
instructions for use in effecting the surrender of the Receipts pursuant to such
letter of transmittal. Upon surrender to the Paying Agent of a Receipt, together
with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may be
required pursuant to such instructions, the holder of such Receipt shall be
entitled to receive in exchange therefor the Merger Consideration for each Unit
formerly evidenced by such Receipt, and such Receipt shall then be canceled. No
interest shall accrue or be paid on the Merger Consideration payable upon the
surrender of any Receipt for the benefit of the holder of such Receipt. If
payment of the Merger Consideration is to be made to a person other than the
person in whose name the surrendered Receipt is registered on the books of the
depositary, it shall be a condition of payment that the Receipt so surrendered
shall be endorsed properly or otherwise be in proper form for transfer and that
the person requesting such payment shall have paid all transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered
4
<PAGE>
holder of the Receipt surrendered or shall have established to the satisfaction
of the Surviving Partnership that such taxes either have been paid or are not
applicable.
(b) When and as needed, TRC, MergerCo. or Perkins shall deposit, or
cause to be deposited, in trust with the Paying Agent the Merger
Consideration to which the holders of Units shall be entitled at the
Effective Time pursuant to SECTION 1.05(A) hereof.
(c) The Merger Consideration shall be invested by the Paying Agent;
PROVIDED, that such investments shall be limited to direct obligations of
the United States of America, obligations for which the full faith and
credit of the United States of America is pledged to provide for the payment
of principal and interest, commercial paper rated of the highest quality by
Moody's Investors Services, Inc. or Standard & Poor's, or certificates of
deposit issued by a commercial bank having at least $1,000,000,000 in
assets; and PROVIDED, FURTHER, that no loss on investment made pursuant to
this SECTION 1.06(C) shall relieve TRC or MergerCo. of its obligation to pay
the Merger Consideration pursuant to SECTION 1.05(A).
(d) At any time following the sixth month after the Effective Time, the
Surviving Partnership shall be entitled to require the Paying Agent to
deliver to it any funds which had been made available to the Paying Agent
and not disbursed to holders of Units (including, without limitation, all
interest and other income received by the Paying Agent in respect of all
funds made available to it), and thereafter such holders shall be entitled
to look to the Surviving Partnership (subject to abandoned property, escheat
and other similar laws) only as general creditors thereof with respect to
any Merger Consideration that may be payable upon due surrender of the
Receipts held by them. Notwithstanding the foregoing, neither the Surviving
Partnership nor the Paying Agent shall be liable to any holder of a Unit for
any Merger Consideration delivered in respect of such Unit to a public
official pursuant to any abandoned property, escheat or other similar law.
(e) After the close of business on the day of the Effective Time, there
shall be no further registration of transfers of Units on the records of the
depositary for the Units. From and after the Effective Time, the holders of
Units outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such Units except as otherwise provided
herein or by applicable law.
SECTION 1.07 RESTRICTED LIMITED PARTNERSHIP UNIT PLAN. After the date of
this Agreement, Perkins shall not issue any Units pursuant to its Restricted
Limited Partnership Unit Plan of October 22, 1987 (the "UNIT PLAN") and shall
terminate the Unit Plan, effective as of the Effective Date.
SECTION 1.08 REDEMPTION. Immediately after the Effective Time, the
Surviving Partnership shall redeem, for $14 per Unit, all Units received by PMC
in connection with the conversion of MergerCo.'s common stock in the Merger.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PERKINS
Perkins hereby represents and warrants to MergerCo. and TRC that:
SECTION 2.01 ORGANIZATION AND QUALIFICATION. Perkins and each partnership
controlling, controlled by or under common control with Perkins (an "AFFILIATED
PARTNERSHIP"), including, without limitation, Perkins Restaurants Operating
Company, L.P. ("PROC"), is a partnership duly organized, validly existing and in
good standing under Delaware law and has the requisite power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or in good standing or to have such power,
authority and governmental approvals would not, individually or in the
aggregate, have a Material Adverse Effect (as defined below). Each of Perkins
and its Affiliated Partnerships is duly qualified to do business, is in good
standing and has obtained all necessary licenses and approvals in all
5
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jurisdictions where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except for such failures to be so qualified or licensed and in good
standing that would not, individually or in the aggregate, have a Material
Adverse Effect. When used in connection with Perkins or any Affiliated
Partnership, the term "MATERIAL ADVERSE EFFECT" means any change or effect that
is or is reasonably likely to be materially adverse to the business, operations,
properties, condition (financial or otherwise), assets or liabilities
(including, without limitation, contingent liabilities), results of operations
or prospects of Perkins and its Affiliated Partnerships taken as a whole. A true
and complete list of all Affiliated Partnerships, together with the jurisdiction
of organization of each Affiliated Partnership and the percentage of ownership
in each Affiliated Partnership owned by Perkins, is set forth in SECTION 2.01 of
the Disclosure Schedule to this Agreement previously delivered by Perkins to TRC
(the "DISCLOSURE SCHEDULE"). Except as disclosed in such SECTION 2.01, Perkins
does not directly or indirectly own any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for, any equity or
similar interest in, any corporation, partnership, joint venture or other
business association or entity.
SECTION 2.02 CAPITALIZATION. As of the date hereof, (i) 10,487,495 Units
are issued and outstanding, (ii) 5,043,000 Units are held by Perkins
Restaurants, Inc., a wholly owned subsidiary of TRC, (iii) 5,268,410 Units are
held by the Public Unitholders and (iv) 176,085 Units are held by employees of
TRC and its affiliates. Perkins owns a 99% limited partner's interest in PROC,
the entity through which the operations of Perkins are conducted. PMC, a wholly
owned subsidiary of Perkins Restaurants, Inc., a wholly owned subsidiary of TRC,
is the sole general partner of Perkins and PROC. PMC owns a 1% general partner's
interest in each partnership. Except as set forth in SECTION 4.08, there are no
options, warrants or rights, agreements, arrangements or commitments of any
character relating to the issued or unissued Units of Perkins or any Affiliated
Partnership or obligating Perkins or any Affiliated Partnership to issue or sell
any Units, or other partnership interests in, Perkins or any Affiliated
Partnership. Except as set forth in SECTION 1.08, there are no outstanding
contractual obligations of Perkins or any Affiliated Partnership to repurchase,
redeem or otherwise acquire any Units or any partnership interests of any
Affiliated Partnership.
SECTION 2.03 AUTHORITY RELATIVE TO THIS AGREEMENT. The General Partner has
all necessary partnership power and authority to execute and deliver this
Agreement on behalf of Perkins. The execution and delivery of this Agreement by
the General Partner, on behalf of Perkins, and the consummation by Perkins and
the General Partner of the Transactions have been duly and validly authorized by
all necessary partnership action and no other partnership proceedings on the
part of Perkins or the General Partner are necessary to authorize this Agreement
or to consummate the Transactions (other than, with respect to the Merger, (i)
the approval and adoption of this Agreement by a Majority Interest (as defined
in the Partnership Agreement), (ii) Public Unitholder Approval as required by
the terms of this Agreement, and (iii) the filing and recordation of appropriate
merger documents as required by the DGCL and DRULPA). This Agreement has been
duly and validly executed and delivered by the General Partner, on behalf of
Perkins, and, assuming the due authorization, execution and delivery by
MergerCo. and TRC, constitutes a legal, valid and binding obligation of Perkins,
enforceable against Perkins in accordance with its terms.
SECTION 2.04 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution
and delivery of this Agreement by the General Partner, on behalf of Perkins, do
not, and the performance of this Agreement by Perkins will not, (i) conflict
with or violate the organizational documents of Perkins or any Affiliated
Partnership, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Perkins or any Affiliated Partnership or by
which any property or asset of Perkins or any Affiliated Partnership is bound or
affected, or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or other encumbrance on any property or
asset of Perkins or any Affiliated Partnership pursuant to, any note, bond,
6
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mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Perkins or any Affiliated Partnership is
a party or by which Perkins or any Affiliated Partnership or any of their
respective properties is bound or affected except, in the case of this clause
(iii), for breaches, defaults, rights, liens and encumbrances which would not
individually or in the aggregate have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by the General Partner, on
behalf of Perkins, do not, and the performance of this Agreement by Perkins will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, domestic or
foreign, except (i) for applicable requirements, if any, of the Securities and
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), state securities
or "blue sky" laws ("BLUE SKY LAWS") and state takeover laws, and filing and
recordation of appropriate merger documents as required by the DGCL and the
DRULPA and (ii) where failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or delay
consummation of the Merger, or otherwise prevent Perkins from performing its
obligations under this Agreement, and would not, individually or in the
aggregate, have a Material Adverse Effect.
SECTION 2.05 COMPLIANCE. Neither Perkins nor any Affiliated Partnership is
in conflict with, or in default or violation of, (i) any law, rule, regulation,
order, judgment or decree applicable to Perkins or any Affiliated Partnership or
by which any property or asset of Perkins or any Affiliated Partnership is bound
or affected, or (ii) any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Perkins or any Affiliated Partnership is a party or by which Perkins or any
Affiliated Partnership or any property or asset of Perkins or any Affiliated
Partnership is bound or affected, except for any such conflicts, defaults or
violations that would not, individually or in the aggregate, have a Material
Adverse Effect.
SECTION 2.06 LITIGATION. Except as set forth in the SEC Filings (as
hereinafter defined) or SECTION 2.06 of the Disclosure Schedule, there are no
actions, suits, claims, investigations or proceedings pending or threatened
against, relating to, involving or otherwise affecting Perkins or any Affiliated
Partnership or any of their respective properties or assets before any court,
governmental agency, commission, or administrative or regulatory authority
which, if adversely decided, in the aggregate, would have a Material Adverse
Effect or would affect the consummation of the Transactions.
SECTION 2.07 SEC FILINGS; FINANCIAL STATEMENTS. As of their respective
dates, none of the reports, statements and registration statements filed by
Perkins with the SEC since January 1, 1994 (including, without limitation,
Perkins' (i) Annual Report on Form 10-K for the year ended December 31, 1996,
and (ii) Quarterly Reports on Form 10-Q for the three months ended March 31,
1997 and the six months ended June 30, 1997 (the "SEC FILINGS") contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of Perkins included in the SEC Filings
present fairly the financial position and the results of operations and cash
flows of Perkins as of the dates or for the periods indicated therein in
conformity with generally accepted accounting principles applied on a consistent
basis (except as otherwise indicated in such financial statements or the notes
thereto), subject, in the case of unaudited interim consolidated financial
statements, to normal recurring year-end adjustments.
SECTION 2.08 PROXY STATEMENT. The proxy statement to be sent to the
holders of Units (such proxy statement, as amended or supplemented, being
referred to herein as the "PROXY STATEMENT"), shall not, at the date the Proxy
Statement (or any amendment or supplement thereto) is first mailed to the
holders of Units, at the time of the Unitholders' Meeting (as hereinafter
defined) and at the Effective Time, be false or misleading with respect to any
material fact, or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
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circumstances under which they are made, not misleading or necessary to correct
any statement in any earlier communication with respect to the solicitation of
proxies for the Unitholders' Meeting which shall have become false or
misleading. The Proxy Statement shall comply in all material respects as to form
with the requirements of the Exchange Act and the rules and regulations
thereunder.
SECTION 2.09 BROKERS. No broker, finder or investment banker (other than
Morgan Keegan) is entitled to any brokage, finder's or other fee or commission
in connection with the Transactions based upon arrangements made by or on behalf
of Perkins. Perkins has heretofore furnished to TRC a complete and correct copy
of all agreements between Perkins and Morgan Keegan pursuant to which such firm
would be entitled to any payment relating to the Transactions.
SECTION 2.10 FAIRNESS OPINION. The Board has received from Morgan Keegan
the Morgan Keegan Opinion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGERCO. AND TRC
MergerCo. and TRC hereby, jointly and severally, represent and warrant to
Perkins that:
SECTION 3.01 CORPORATE ORGANIZATION. Each of MergerCo. and TRC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the requisite power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as it is now being conducted, except where the failure to
be so organized, existing or in good standing or to have such power, authority
and governmental approvals would not, individually or in the aggregate, have a
TRC Material Adverse Effect (as defined below). When used in connection with
MergerCo. or TRC, the term "TRC MATERIAL ADVERSE EFFECT" means any change or
effect that is reasonably likely to be materially adverse to the business,
operations, properties, condition (financial or otherwise), assets or
liabilities (including, without limitation, contingent liabilities), results of
operations or prospects of MergerCo. or TRC and their respective subsidiaries
taken as a whole.
SECTION 3.02 AUTHORITY RELATIVE TO THIS AGREEMENT. Each of MergerCo. and
TRC has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
Transactions. The execution and delivery of this Agreement by MergerCo. and TRC
and the consummation by MergerCo. and TRC of the Transactions have been duly and
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of MergerCo. or TRC are necessary to authorize this
Agreement or to consummate the Transactions (other than, with respect to the
Merger, the filing and recordation of appropriate merger documents as required
by the DGCL and DRULPA). This Agreement has been duly and validly executed and
delivered by MergerCo. and TRC and, assuming the due authorization, execution
and delivery by Perkins, constitutes a legal, valid and binding obligation of
each of MergerCo. and TRC enforceable against each of MergerCo. and TRC in
accordance with its terms.
SECTION 3.03 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution
and delivery of this Agreement by MergerCo. and TRC do not, and the performance
of this Agreement by MergerCo. and TRC will not, (i) conflict with or violate
the articles of incorporation or by-laws or similar organizational documents of
either MergerCo. or TRC, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to MergerCo. or TRC or by which
any property or asset of either of them is bound or affected, or (iii) result in
any breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of MergerCo. or
TRC pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
MergerCo. or TRC is a party or by which MergerCo. or TRC or any property or
asset of either of them is bound or affected,
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except for any such breaches, defaults or other occurrences which would not,
individually or in the aggregate, have a TRC Material Adverse Effect.
(b) The execution and delivery of this Agreement by MergerCo. and TRC do not,
and the performance of this Agreement by MergerCo. and TRC will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Exchange Act, the HSR Act, Blue Sky
Laws and state takeover laws and filing and recordation of appropriate merger
documents as required by the DGCL and the DRULPA and (ii) where failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not prevent or delay consummation of the Merger,
or otherwise prevent MergerCo. or TRC from performing their respective
obligations under this Agreement.
SECTION 3.04 PROXY STATEMENT. The information supplied by TRC for
inclusion in the Proxy Statement will not, on the date the Proxy Statement (or
any amendment or supplement thereto) is first mailed to the holders of Units, at
the time of the Unitholders' meeting and at the Effective Time, contain any
statement which, at such time and in light of the circumstances under which it
is made, is false or misleading with respect to any material fact, or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein not false or misleading or necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies in connection with the Unitholders' Meeting which shall have become
false or misleading. Notwithstanding the foregoing, MergerCo. and TRC make no
representation or warranty with respect to any information supplied by Perkins
or any of its representatives which is contained in any of the foregoing
documents.
SECTION 3.05 BROKERS. No broker, finder or investment banker (other than
Smith Barney, Inc.) is entitled to any brokerage, finder's or other fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of MergerCo. or TRC.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01 MEETING OF UNITHOLDERS. (a) The General Partner shall, in
accordance with applicable law and the Partnership Agreement, (i) duly call,
give notice of, convene and hold a meeting of the holders of Units as soon as
practicable following the date hereof for the purpose of considering and taking
action on this Agreement and the Transactions (the "UNITHOLDERS' MEETING") and
(ii) subject to its fiduciary duties under applicable law, (A) include in the
Proxy Statement the recommendation of the General Partner that the Public
Unitholders approve and adopt this Agreement and the Transactions and (B) use
its reasonable best efforts to obtain such approval and adoption. At the
Unitholders' Meeting, TRC shall, if Public Unitholder Approval is obtained,
cause all Units and general partners' interests then owned by it and its direct
and indirect wholly owned subsidiaries to be voted in favor of the approval and
adoption of this Agreement and the Transactions.
SECTION 4.02 PROXY STATEMENT AND SCHEDULE 13E-3. (a) Perkins shall file
the Proxy Statement with the SEC under the Exchange Act, and shall use its
reasonable best efforts to have the Proxy Statement cleared by the SEC. TRC and
Perkins shall cooperate with each other in the preparation of the Proxy
Statement, and each of Perkins, TRC and MergerCo. agrees to use its reasonable
best efforts, after consultation with the other parties hereto, to respond
promptly to all comments of and requests by the SEC and to cause the Proxy
Statement and all required amendments and supplements thereto to be mailed to
the holders of Units at the earliest practicable time.
(b) TRC and Perkins shall together prepare and file with the SEC a Transaction
Statement on Schedule 13E-3 (the "SCHEDULE 13E-3") under the Exchange Act at the
time of filings made in connection with the Proxy Statement, and shall file with
the SEC appropriate amendments to the Schedule 13E-3. The
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Schedule 13E-3 will comply as to form in all material respects with the Exchange
Act and the rules and regulations promulgated thereunder.
SECTION 4.03 FURTHER ACTION; REASONABLE BEST EFFORTS. Upon the terms and
subject to the conditions hereof, each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
Transactions, including, without limitation, making and facilitating a prompt
filing under the HSR Act and using its reasonable best efforts to obtain all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of governmental authorities and parties to contracts with Perkins and its
Affiliated Partnerships as are necessary for the consummation of the
Transactions and to fulfill the conditions to the Merger. In case at any time
after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement, the proper officers and directors of each
party to this Agreement shall use their reasonable best efforts to take all such
action.
SECTION 4.04 PUBLIC ANNOUNCEMENTS. TRC and Perkins shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement or any Transaction and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by law.
SECTION 4.05 FINANCING. TRC shall use its reasonable best efforts to
obtain financing for aggregate funds sufficient to satisfy the obligations of
TRC, PMC, Perkins and MergerCo. hereunder, including, without limitation, the
obligation to pay the Merger Consideration pursuant to SECTION 1.05(A) and to
pay all related fees and expenses payable by TRC, PMC, Perkins and MergerCo. in
connection with the Merger and the other Transactions (the "FINANCING"). Perkins
shall use its reasonable best efforts to facilitate the Financing and at the
Closing shall be the borrower thereunder at TRC's request.
SECTION 4.06 UPDATED FAIRNESS OPINION. The Parties shall use their
reasonable best efforts to obtain from Morgan Keegan a written fairness opinion,
dated as of the date of the Proxy Statement, and otherwise substantially the
same as the Morgan Keegan Opinion (the "UPDATED MORGAN KEEGAN OPINION").
SECTION 4.07 DISTRIBUTIONS. Perkins shall make a final cash distribution
of $0.325 per Unit to Unitholders of record, as of September 30, 1997, for the
third quarter of Perkins' fiscal year, payable on or before November 20, 1997,
and between the date of such distribution and the Effective Time shall cease
making distributions.
SECTION 4.08 CAPITAL CONTRIBUTIONS. In order to prevent a "termination" of
the partnership for federal income tax purposes, TRC or one of its affiliates
agrees to contribute cash to Perkins in the amount of $4.410 million to acquire
newly issued Units of Perkins prior to the Effective Time and shall be entitled
to contribute any amount necessary to pay any costs incurred by Perkins or the
Affiliated Partnerships in connection with the repayment of their existing
indebtedness or any other transaction connected with the Merger; PROVIDED,
HOWEVER, that if the Merger is for any reason not consummated, such capital
contribution may be withdrawn and shall be repaid by Perkins promptly upon
notice from TRC or such affiliate. Any expense paid by TRC or its affiliates
pursuant to this SECTION 4.08 shall be specially allocated to the party paying
such expense in order to satisfy the "substantial economic effect" requirement
of Section 704(b) of the Internal Revenue Code of 1986, as amended.
ARTICLE V
CONDITIONS TO THE MERGER
SECTION 5.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligations of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
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(a) This Agreement and the Transactions, including the Merger, shall
have been approved and adopted by a Majority Interest (as defined in the
Partnership Agreement) and by the affirmative vote of a majority of the
Public Units actually voting on the Merger;
(b) No governmental authority or other agency or commission or court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any law, rule, regulation, executive order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is then in
effect and has the effect of making the acquisition of Units by MergerCo. or
TRC or any affiliate of either of them illegal or otherwise restricting,
preventing or prohibiting consummation of the Transactions;
(c) Any waiting period applicable to the consummation of the Merger
under the HSR Act shall have expired or been terminated; and
(d) Morgan Keegan shall have provided and not withdrawn the Updated
Morgan Keegan Opinion.
SECTION 5.02 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TRC AND MERGERCO. TO
EFFECT THE MERGER. The obligations of TRC and MergerCo. to effect the Merger
are further subject to the satisfaction or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Perkins contained in this Agreement shall be true and correct in all
material respects when made and on and as of the Effective Time, except for
changes contemplated by this Agreement, with the same force and effect as if
made on and as of the Effective Time, except for any representation or
warranty made or given as of a specified time, which shall have been true
and correct in all material respects as of such time;
(b) AGREEMENTS AND COVENANTS. Perkins shall have performed or complied
in all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Effective Time;
(c) NO MATERIAL ADVERSE EFFECT. Since the date of this Agreement, no
event shall have occurred or shall be reasonably expected to occur which
has, or is reasonably expected to have, a Material Adverse Effect;
(d) LITIGATION, ETC. There shall be no pending or threatened actions or
proceedings by any person against Perkins or its Affiliated Partnerships,
TRC, the General Partner, MergerCo., or any of their subsidiaries or any
director, officer or employee thereof challenging or in any way or in any
manner seeking to restrict or prohibit the Merger or any other Transaction
or seeking to obtain any damages against any person as a result of the
Merger or any other Transaction; and
(e) FINANCING. The Financing shall be available on terms satisfactory to
TRC.
SECTION 5.03 ADDITIONAL CONDITIONS TO OBLIGATION OF PERKINS TO EFFECT THE
MERGER. The obligation of Perkins to effect the Merger is further subject to
the satisfaction or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of TRC and MergerCo. contained in this Agreement shall be true and correct
in all material respects when made and on and as of the Effective Time,
except for changes contemplated by this Agreement, with the same force and
effect as if made on and as of the Effective Time, except for any
representation or warranty made or given as of a specified time, which shall
have been true and correct in all material respects as of such time; and
(b) AGREEMENTS AND COVENANTS. TRC and MergerCo. shall have performed or
complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by them on or prior to
the Effective Time.
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ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION 6.01 TERMINATION. This Agreement may be terminated and the Merger
and the other Transactions may be abandoned at any time prior to the Effective
Time, notwithstanding any requisite approval and adoption of this Agreement and
the Transactions by the Public Unitholders:
(a) By mutual written consent duly authorized by the Boards of Directors
of MergerCo., TRC and the General Partner; or
(b) By either TRC or Perkins if (i) the Effective Time shall not have
occurred on or before February 28, 1998; PROVIDED, HOWEVER, that the right
to terminate this Agreement under this SECTION 6.01(B) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of, or resulted in, the failure of the
Effective Time to occur on or before such date or (ii) any court of
competent jurisdiction or other governmental authority shall have issued an
order, decree or ruling or taken any action restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling or other
action shall have become final and nonappealable; or
(c) By Perkins if the Board shall have determined that it has a
fiduciary duty to withdraw its approval or recommendation of this Agreement,
the Merger or any other Transaction.
(d) By TRC if the Board shall have withdrawn or modified in a manner
adverse to TRC its approval or recommendation of this Agreement or the
Merger.
SECTION 6.02 EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to SECTION 6.01, this Agreement shall forthwith become
void, and there shall be no liability on the part of any party hereto except as
set forth in SECTIONS 6.03 and 7.01; PROVIDED, HOWEVER, that neither anything
herein nor the termination of this Agreement shall relieve any party from
liability for any breach hereof.
SECTION 6.03 FEES AND EXPENSES. All fees, costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the party
bearing such cost.
SECTION 6.04 AMENDMENT. This Agreement may be amended by the parties
hereto by action taken by or on behalf of the Boards of Directors of TRC,
MergerCo. and the General Partner at any time prior to the Effective Time;
PROVIDED, HOWEVER, that after the approval and adoption of this Agreement and
the Transactions by the Public Unitholders, no amendment may be made which would
reduce the amount or change the type of consideration to which each Public
Unitholder shall be entitled upon consummation of the Merger. This Agreement may
not be amended except by an instrument in writing signed by the parties hereto.
SECTION 6.05 WAIVER. At any time prior to the Effective Time, any party
hereto may (i) extend the time for the performance of any obligation or other
act of any other party hereto, (ii) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement or condition contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. The representations, warranties and agreements in this Agreement
shall terminate at the Effective Time or upon the termination of this Agreement
pursuant to SECTION 6.01, as the case may be, except that the agreements set
forth in
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Article I and SECTION 4.08 shall survive the Effective Time indefinitely and
those set forth in SECTION 6.02 and SECTION 6.03 shall survive termination
indefinitely.
SECTION 7.02 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this SECTION 7.02):
if to TRC or MergerCo.:
Michael P. Donahoe
The Restaurant Company
One Pierce Place
Suite 100E
Itasca, IL 60143
Facsimile: (630) 250-0382
if to Perkins:
Steven R. McClellan
Perkins Family Restaurants, L.P.
6075 Poplar Avenue
Memphis, TN 38119
Facsimile: (901) 766-6482
SECTION 7.03 CERTAIN DEFINITIONS. For purposes of this Agreement, the
term:
(a) "AFFILIATE" of a specified person means a person who directly or
indirectly through one or more intermediaries controls, is controlled by, or
is under common control with, such specified person;
(b) "BENEFICIAL OWNER" with respect to any Units means a person who
shall be deemed to be the beneficial owner of such Units (i) which such
person or any of its affiliates or associates (as such term is defined in
Rule 12b-2 promulgated under the Exchange Act) beneficially owns, directly
or indirectly, (ii) which such person or any of its affiliates or associates
has, directly or indirectly, (A) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
consideration rights, exchange rights, warrants or options, or otherwise, or
(B) the right to vote pursuant to any agreement, arrangement or
understanding or (iii) which are beneficially owned, directly or indirectly,
by any other persons with whom such person or any of its affiliates or
associates or person with whom such person or any of its affiliates or
associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any Units;
(c) "BUSINESS DAY" means any day on which the principal offices of the
SEC in Washington D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized to close in the City of New York;
(d) "CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management
and policies of a person, whether through the ownership of voting
securities, as trustee or executor, by contract or credit arrangement or
otherwise;
(e) "PERSON" means an individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person" as
defined in Section 13(d)(3) of the Exchange Act),
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trust, association or entity or government, political subdivision, agency or
instrumentality of a government; and
(f) "SUBSIDIARY" or "SUBSIDIARIES' of Perkins, MergerCo., TRC, the
Surviving Partnership or any other person means an affiliate controlled by
such person, directly or indirectly, through one or more intermediaries.
SECTION 7.04 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 7.05 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. This
Agreement shall not be assigned by operation of law or otherwise, except that
TRC and MergerCo. may assign all or any of their rights and obligations
hereunder to any affiliate of TRC provided that no such assignment shall relieve
the assigning party of its obligations hereunder if such assignee does not
perform such obligations.
SECTION 7.06 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Article I (which, solely from and after the Effective
Time, is intended to be for the benefit of the Public Unitholders).
SECTION 7.07 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 7.08 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 7.09 HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, TRC, MergerCo. and Perkins have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
<TABLE>
<S> <C> <C>
THE RESTAURANT COMPANY
By: /s/ MICHAEL P. DONAHOE
------------------------------------------
Title: Vice President
PERKINS ACQUISITION CORP.
By: /s/ STEVEN R. MCCLELLAN
------------------------------------------
Title: President
PERKINS FAMILY RESTAURANTS, L.P.
By: PERKINS MANAGEMENT COMPANY, INC.
its General Partner
By: /s/ DONALD F. WISEMAN
------------------------------------------
Title: Vice President
</TABLE>
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EXHIBIT 1.04
Section 5.2 of the Partnership Agreement shall be amended to add a new
paragraph (k) which would read as follows:
(k) If any amount is contributed or deemed to be contributed to the
Partnership or its affiliates to pay expenses incurred by the Partnership or
its affiliates in connection with the repayment of debt or any other
transaction connected with the merger of the Partnership and
Perkins Acquisition Corp., such expenses shall be specially allocated to the
Partner making such contribution or deemed contribution in accordance with
section 704(b) of the Code.
<PAGE>
September 29, 1997
The Restaurant Company
6075 Poplar Avenue, Suite 800
Memphis, Tennessee 38119
Attention: Steve McClellan
Re: COMMITMENT LETTER
Ladies and Gentlemen:
We are pleased to confirm the commitment of ________________, subject to
the terms and conditions set forth in this letter and in the Outline referred
to below, to provide financing to Perkins Restaurants Operating Company, L.P.
("PROC" or the "Borrower"), an indirect subsidiary of The Restaurant Company
("TRC") in an aggregate amount of up to $180,000,000 (the "Facilities") to
refinance certain existing debt, to repurchase publicly held partnership
units of Perkins Family Restaurants, L.P. ("PFR"), pay related fees and
expenses, and for working capital and other general corporate or partnership
purposes. The financing will be secured by all assets of the Borrower, and
will be guaranteed by PFR, TRC and all current and future subsidiaries of the
Borrower (collectively, the "Guarantors"), which guaranties will be secured by
all assets of the respective Guarantors. ___ will act as agent (the "Agent")
for ___ and any other lending institutions which may become party to the
financing (the "Lenders") with respect to such financing and ___ will act as
the exclusive syndication agent and arranger for the Lenders (the "Arranger")
with respect to the financing. ___ will provide the full amount of such
financing, but intends to syndicate the financing either before or after
the closing.
Based on our discussions and on the financial statements, projections and
other information and documents previously furnished to us, we are enclosing
herewith an outline of terms (the "Outline") which sets forth the principal
terms on which we are willing to provide the proposed financing to the
Borrower (this letter, together with the Outline, is referred to as the
"Commitment Letter").
Although the Outline sets forth the principal terms of the financing, you
should understand that the Agent and the Arranger reserve the right to
propose terms in addition to these terms which will not substantially change
or alter the terms of this commitment and the enclosed Outline. Moreover, the
Outline does not purport to include all of the
<PAGE>
The Restaurant Company
September 29, 1997
Page 2
representations, warranties, covenants, defaults, definitions and other
terms which will be contained in the definitive documents for the
transaction, all of which must be satisfactory in form and substance to us
and our counsel and to the Borrower, PFR, TRC and their counsel prior to
proceeding with the proposed financing.
Our willingness to proceed with the proposed financing is conditioned on
the satisfaction of all the conditions precedent set forth in the Outline,
there being no material misstatements in or omissions from the materials
which previously have been or are being furnished to us for our review and
there being in our judgement no material adverse change in the assets,
business or financial condition of the Borrower and the Guarantors taken as a
whole, or the ability of the Borrower, PFR, TRC or any Guarantor to perform
their respective obligations described in the Outline. In addition, the
proposed financing is subject to the condition that no material adverse
changes in governmental regulation or policy affecting us, the Borrower, PFR,
TRC or any Guarantor and no material changes or disruptions in the
syndication, financial or capital markets that could materially impair the
syndication of the financing occur prior to the closing. You understand that
we may terminate our commitments hereunder or propose alternative terms and
conditions if at any time any event of the kind described above in this
paragraph shall occur.
By your signature below, you agree to assist and cooperate with the
Arranger in its syndication efforts, including, but not limited to, promptly
preparing and providing materials and information reasonably deemed
necessary by the Arranger to successfully complete and otherwise facilitate
the syndication of the facility described herein. In the event that such
syndication cannot be achieved in a manner satisfactory to ___ and ___ under
the structure described in the Outline, you agree to cooperate with ____ and
____ in developing a mutually acceptable alternative structure (which will
not include changes to the aggregate amount, term or pricing of the
Facilities, or the collateral securing them) that will permit a satisfactory
syndication of the Facilities. Without limiting the foregoing, you hereby
agree (a) that the Arranger shall have the exclusive right to syndicate the
financing contemplated by this Commitment Letter and manage all aspects of
the syndication (including, without limitation, in consultation with the
Borrower, decisions as to the selection of institutions to be approached and
when they will be approached, when their commitments will be accepted, which
institutions will participate, the allocations of the commitments among the
syndicate lenders and any titles to be given to any lender participating in
the facility) and that you will assist the Arranger in contacting and
soliciting potential co-lenders and will provide to the Arranger, at its
reasonable request, financial and organizational information as well as
financial projections needed for syndications purposes; (b) that the Arranger
shall be expressly permitted to distribute any and all documents and
information relating to the transactions contemplated hereby and received
from you or any other source to any potential lender,
<PAGE>
The Restaurant Company
September 29, 1997
Page 3
participant or assignee, on a confidential basis and subject to reasonable
confidentiality agreements requested by you; (c) to make available the
relevant management personnel related to the financing or operations of the
Borrower and its subsidiaries for meetings with potential syndicate members
upon reasonable notification and at reasonable times to be mutually agreed;
(d) to permit the Arranger to publicize information in respect of this
facility (including the Agent's and the Arranger's roles in the structuring
and financing thereof) subject to your prior reasonable approval of the form
and content thereof; and (e) that prior to or after the execution of the
definitive documentation for the facilities, _____ reserves the right to
syndicate all or any portion of its commitment hereunder to one or more
financial institutions after consultation with the Borrower and the Arranger,
and, upon the acceptance by _____ of a written commitment of any lender to
provide a portion of the facilities, _____ shall be released from a portion
of its commitment hereunder in an aggregate amount equal to the commitment of
such lender. In particular, and without limitation of the foregoing, you
agree to negotiate in good faith with ____ and ____ regarding any changes in
the definitive loan documents that may be requested by prospective Lenders.
By your signature below, you agree to pay all reasonable out-of-pocket
costs and expenses incurred by ____ and ____ in connection with this
Commitment Letter, the transactions contemplated hereby, the preparation and
negotiation of all loan documentation, the syndication of the loans and
____'s ongoing due diligence in connection with the transactions contemplated
hereby (the "Expenses") (including, without limitation, travel expenses;
attorneys' fees, expenses and disbursements; asset evaluation expenses;
syndication expenses; and other charges and disbursements and any other
reasonable out-of-pocket costs and expenses) whether or not such transactions
are consummated.
Further, in consideration of the commitment contained herein, you agree
to pay the fees described in the fee letter enclosed herewith on the dates
and in the amounts referred to in the fee letter.
By your signature below, you further agree to indemnify and hold harmless
____, ____ and their respective officers, directors, employees, affiliates,
agents and controlling persons from and against any and all losses, claims,
damages and liabilities to which any such person may become subject arising
out of, or in connection with, this Commitment Letter, the transactions
contemplated hereby (including, without limitation, all due diligence and
syndication activities) or any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any of such indemnified
persons is a party thereto, and to reimburse each of such indemnified
persons, from time to time upon their demand, for any reasonable legal or
other expenses incurred in connection with investigating or defending any of
the foregoing, whether or not the transactions contemplated hereby are
consummated,
<PAGE>
The Restaurant Company
September 29, 1997
Page 4
PROVIDED, that the foregoing indemnity will not, as to any indemnified
person, apply to losses, claims, damages, liabilities or related expenses to
the extent that they arise from the bad faith, willful misconduct or gross
negligence of such indemnified person.
You agree that this Commitment Letter and the related fee letter are for
your confidential use only and that they will not be disclosed by you to any
person (including any lender bidding for the financing contemplated by this
Commitment Letter), other than your employees, officers, directors,
accountants, attorneys, and other advisors and in materials required to be
filed with the Securities and Exchange Commission or other regulatory bodies
and then only in connection with the transactions contemplated hereby and on
a confidential basis.
We agree to keep any information delivered or made available by you to us
confidential from anyone other than our employees, officers, attorneys and
other advisors who are or are expected to become engaged in evaluating,
approving, structuring or administering the Facilities or rendering legal
advice in connection therewith, PROVIDED that nothing herein shall prevent us
from disclosing such information (a) on a confidential basis to potential
Lenders, and participants in and assignees of the Facilities, (b) upon the
order of any court or administrative agency or upon the request of any
administrative agency or authority, (c) upon the request or demand of any
regulatory agency or authority, (d) to the extent that such information
has been publicly disclosed other than as a result of a disclosure by us, or
(e) otherwise as required by law.
This letter is issued with the specific understanding that, except as
specifically set forth in the preceding paragraphs, it is not intended to
give rise to any legal liability on the part of either you, ____ or ____ (or
any other party claiming an interest) and that the proposal set forth herein
shall be considered withdrawn if for any reason you fail to return to ____ by
5:00 P.M. (____ time) on September 30, 1997 (the "Expiration Date"), to the
attention of ____________, Division Executive, the enclosed copy of this
letter and the fee letter signed by you.
<PAGE>
The Restaurant Company
September 29, 1997
Page 5
If the foregoing is in accordance with your understanding, please accept
this letter by signing where indicated in the space below and return it to us
together with the signed fee letter on or prior to the Expiration Date. This
letter supersedes all of our prior letters and communications to you, if any,
regarding the subject matter of this letter.
Very truly yours,
By:
----------------------------
Title:
By:
----------------------------
Title:
Accepted and Agreed to this
30th day of September, 1997.
THE RESTAURANT COMPANY
By: /s/ Stephen R. McClellan
--------------------------
Title:
<PAGE>
THE CONTENT OF THIS OUTLINE OF PROPOSED OF TERMS AND CONDITIONS IS
CONFIDENTIAL, FOR THE EXCLUSIVE USE OF THE RESTAURANT COMPANY, PERKINS FAMILY
RESTAURANTS, L.P. AND PERKINS RESTAURANTS OPERATING COMPANY, L.P., AND MAY NOT
BE DISCLOSED IN WHOLE OR IN PART TO ANY OTHER PARTY WITHOUT THE PRIOR WRITTEN
PERMISSION OF , CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THE
SAME MEANING AS IN .
PERKINS RESTAURANTS OPERATING COMPANY, L.P.
Outline of Proposed Terms and Conditions
September 29, 1997
BORROWER: Perkins Restaurants Operating Company, L.P. ("PROC" or the
"Borrower").
GUARANTORS: Perkins Family Restaurants, L.P. and its successors
("PFR"). The Restaurant Company and its successors
("TRC"), and all present and future subsidiaries of the
Borrower will be guarantors.
AGENT: ( or the "Agent").
SYNDICATION AGENT: ( or the "Syndication Agent").
LENDERS: The Agent and the Syndication Agent will underwrite the
Credit Facilities with the intention of syndicating the
Credit Facilities to other financial institutions to be
identified by the Agent and the Syndication Agent with the
reasonable consent of the Borrower. The Agent's desired
hold level for the Credit Facilities is $30,000,000.
CREDIT FACILITIES: $180,000,000 in total aggregate amount, comprised of:
(a) $50,000,000 Revolving Credit Facility (the "Revolver");
(b) $50,000,000 Term Loan ("Term Loan A"); and
(c) $80,000,000 Term Loan ("Term Loan B")
The Agent reserves the right to reallocate $20,000,000
from Term Loan A to Term Loan B.
USE OF PROCEEDS: To refinance all existing funded indebtedness of the PROC
and to finance the purchase of certain limited partnership
interests of PFR (the "Public Units") (collectively the
"Transaction"), to pay fees and expenses associated with
the Transaction in an amount acceptable to the Agent, for
the acquisition and/or construction of new operating
facilities, for operating facility upgrades, for the
issuance of standby letters of credit and for working
capital and other partnership and general corporate
purposes.
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 2
- -----------------------------------------------------------------------------
CLOSING DATE: December 30, 1997, or such other date as may be agreed
between the Agent and the Borrower.
I. REVOLVING CREDIT
AMOUNT: $50,000,000 Revolver with a Letter of Credit sublimit
of $5,000,000 for stand-by Letters of Credit.
LETTER OF CREDIT
ISSUING BANK:
AVAILABILITY: Advances under the Revolver may be borrowed, repaid and
reborrowed until Maturity.
MATURITY: Five years from the Closing Date.
II. TERM LOAN A
AMOUNT: $50,000,000.
MATURITY: Five years from the Closing Date.
AMORTIZATION: Term Loan A shall be payable in eighteen consecutive
calendar quarterly installments, commencing in the
third quarter after the Closing Date, in accordance
with the schedule shown in Exhibit I attached.
III. TERM LOAN B
AMOUNT: Up to $80,000,000.
MATURITY: Eight years from the Closing Date.
AMORTIZATION: Term Loan B shall be payable in thirty consecutive
calendar quarterly installments, commencing in the
third quarter after the Closing Date, in accordance
with the schedule shown in Exhibit I attached.
GENERAL PROVISIONS
COMMITMENT FEE: A fee on the unused portion of the Revolver payable
quarterly in arrears at a rate per annum of .50% after
the Closing Date.
INTEREST RATE: For the Revolver and the Term Loans, interest rates
shall be the Agent's Base Rate or Eurodollar Rate plus,
in each case, the Applicable Margin. Base Rate will be
defined as the higher of the Base Rate announced by the
Agent from time to time or the Federal Funds Rate plus
1/2%. Eurodollar loans will be available for 1, 2, 3
or 6 month periods. Customary provisions regarding
breakage costs, reserves, taxes, illegality, etc. shall
apply. The credit agreement will restrict the number of
Eurodollar loans which may be outstanding at any one
time.
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 3
- -----------------------------------------------------------------------------
APPLICABLE MARGIN: In accordance with Exhibit II attached.
DEFAULT PRICING: Applicable Margin over the Base Rate + 3%.
LETTER OF CREDIT FEE: A per annum fee equal to the Applicable Eurodollar
Margin for Revolving Credit Loans, payable on the face
amount of cash outstanding letter of credit quarterly
in arrears. Fees to be shared by the Revolving Credit
Lenders on a pro rata basis. Letters of credit issued
under the Revolver shall count as utilization for all
purposes, including the commitment fee calculation. An
additional 1/8% per annum shall be paid to the Issuing
Bank as a fronting fee, in addition to customary
administrative fees.
OTHER FEES: As indicated in the Fee Letter.
YIELD PROTECTION: Customary yield protection provisions regarding
capital adequacy, reserves, taxes, regulatory changes,
etc.
OPTIONAL
PREPAYMENTS: Optional prepayments shall be permitted at any time
(subject to breakage costs if paid prior to the end of
any Eurodollar interest period, if applicable) in
minimum amounts of $1,000,000 and subject to call
protection for Term Loan B. Optional prepayments shall
be applied ratably to the remaining scheduled principal
payments on the Term Loans on a pro rata basis until
repaid in full. Term Loan B shall be prepayable at
100.5% of the outstanding par amount if prepaid prior
to August 31, 2000.
MANDATORY
PREPAYMENTS: 1. 100% of net proceeds from asset sales in excess
of $5,000,000, equity issuance, certain permitted new
debt issuance, tax refunds and insurance claims not
reinvested within one year. Net proceeds will be
applied first to required principal repayments of Term
Loan A and Term Loan B (on a pro rata basis) in inverse
order of maturity and then to permanent reductions of
the Revolver until fully repaid.
2. 75% of excess operating cash flow through fiscal
year ending 1999 and 50% thereafter, provided that
mandatory repayments will be waived when and for so
long as the Borrower's Leverage Ratio (as defined
below) is less than 3.00: 1. Any repayment waiver will
be conditioned on Borrower's compliance with the above
Leverage Ratio as at the end of the applicable fiscal
year and at the end of the fiscal quarter next
proceeding the otherwise applicable payment date.
Excess operating cash flow shall be defined as pretax
income plus depreciation and amortization minus the sum
of (a) capital expenditures in excess of the amount
financed by other permitted indebtedness, (b) cash
taxes and Tax Distributions, (c) required principal
payments, and (d) any voluntary Term Loan prepayments
during such period. Excess operating cash flow
repayments will be payable 105 days after the end of
each fiscal year beginning December 31, 1998 and
applied first (on a PRO RATA basis) to required
principal repayments of Term Loan A and Term Loan B in
the inverse order of maturity. Any then remaining
Excess Cash Flow shall be applied to the Revolver until
fully repaid.
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 4
- --------------------------------------------------------------------------------
Term Loan B Lenders may at their option decline Mandatory
Prepayments, in which case proceeds shall be applied in the
manner outlined above solely to Term Loan A and the Revolver.
COLLATERAL: The Revolver and the Term Loans will share a common
collateral pool consisting of a first perfected security
interest in all assets of the Borrower and the Guarantors,
including but not limited to accounts and notes receivable,
inventory, equipment, real property, stock of subsidiaries
and intangible assets (including patents, trademarks,
copyrights etc.). At all times after an Event of Default,
and at other times in the Agent's discretion, the Borrower
and the Guarantors will provide the Agent with dominion over
their domestic cash receipts through lock box accounts with
or agency agreements with other institutions. The
Borrower and the Guarantors will provide customary real
estate collateral support, such as title insurance,
environmental studies, surveys, etc.
REPRESENTATIONS
AND WARRANTIES: Usual and customary for facilities of this type, including
but not limited to, organization, authority, financial
statements, compliance with law, material contracts,
environmental matters, absence of material adverse change,
absence of material litigation, absence of default or
unmatured default, no conflict with agreements, payment of
taxes and certain business-specific matters.
FINANCIAL
COVENANTS: Usual and customary for facilities of this type.
Consolidated Financial Covenants will be measured quarterly
and include, without limitation, the following (see Exhibit
III for definitions):
1. MAXIMUM CONSOLIDATED LEVERAGE RATIO. The ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA (the
"Leverage Ratio") shall not exceed at any time during the
periods set forth below, the ratio set forth opposite the
applicable period set forth in the table below:
PERIOD RATIO
------ -----
Closing - 06/29/98 4.75:1
06/30/98 - 12/30/98 4.50:1
12/31/98 - 12/30/99 4.25:1
12/31/99 - 12/30/00 3.75:1
12/31/00 - 12/30/01 3.25:1
Thereafter 3.00:1
2. MINIMUM NET WORTH: Net worth will at all times be at
least net worth reported in the Borrower's pro forma closing
balance sheet minus $5,000,000, stepping up each fiscal year
thereafter by 50% of Consolidated Net Income (without
deduction for any losses) and 100% of the proceeds of new
equity issuance.
3. CONSOLIDATED CASH FLOW RATIO: The ratio of Consolidated
Cash Flow for the period consisting of the four fiscal
quarters ending on the last day of any fiscal quarter to
Consolidated Financial Obligations for such period shall not
be less than 1.25:1.
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 5
- --------------------------------------------------------------------------------
4. CONSOLIDATED EBITDA/INTEREST EXPENSE: The ratio of
Consolidated EBITDA for the period consisting of the four
fiscal quarters ending on the last day of any fiscal quarter
set forth in the table below to consolidated interest
charges for such period shall not be less than the amounts
set forth below in such table opposite such date:
PERIOD RATIO
------ -----
Closing - 12/30/98 2.50:1
12/31/98 - 12/30/99 2.60:1
12/31/99 - 12/30/00 3.00:1
12/31/00 - 12/30/01 3.25:1
Thereafter 3.50:1
5. CONSOLIDATED CAPITAL EXPENDITURES: The Borrower and its
affiliates shall not permit the amounts of Maintenance,
Improvement and New Site Capital Expenditures during each
period set forth below to be greater than the amount set
forth below opposite such period:
<TABLE>
<CAPTION>
PERIOD MAINTENANCE IMPROVEMENT NEW SITE
------ ----------- ----------- --------
<S> <C> <C> <C>
Fiscal Year 1997 $8,100,000 $6,270,000 $ 6,200,000
Fiscal Year 1998 $8,400,000 $3,750,000 $10,400,000
Fiscal Year 1999 $8,700,000 $3,100,000 $12,400,000
Fiscal Years thereafter $9,000,000 $3,350,000 $14,600,000
</TABLE>
Allowances for Capital Expenditures of any category not
spent in a given year may be carried over and added to the
basket for such category for the following year, such carry
over not to exceed one year. The unused portion of the
Maintenance Capital Expenditure basket for any year may be
added to the Improvement or New Site Capital Expenditure
basket for the same year.
FINANCIAL
REPORTS: Financial information to include audited annual and
unaudited quarterly consolidating and consolidated financial
statements, including no default certificate and
calculations demonstrating compliance with all covenants.
OTHER
COVENANTS: Restrictions on indebtedness, guarantees, non-cancelable
rental payments due under operating leases, other
liabilities, liens, acquisitions, investments, dividends and
other distributions, mergers, sales of assets, limits on
subsidiary distributions, voluntary payments of other debt,
derivative contracts, affiliate transactions, negative
pledges, etc. (other than certain permitted baskets to be
determined). Standard affirmative covenants regarding
payment of claims and taxes, conduct of business, compliance
with laws and contracts, maintenance of insurance, ERISA
compliance, etc.
Cash distributions on the PROC's partnership interests not
exceeding specified amounts will be permitted, subject to
covenant compliance, only when and for so long as the
Leverage Ratio is no greater than 3.00:1. PROC will be
permitted to pay tax distributions to its partners to
provide funds for the payment of such partners' tax
liability arising from the taxable
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 6
- --------------------------------------------------------------------------------
income of PROC, so long as no Default or Event of Default has
occurred and is continuing.
The Borrower will be required to maintain interest rate hedging
agreements in amounts and with terms acceptable to the Agent.
EVENTS OF
DEFAULTS: Usual and customary for facilities of this type, including but
not limited to, failure to pay any interest, principal or other
amounts when due, failure to comply with covenants, inaccurate
or false representations or warranties, cross defaults, change
of control, judgment defaults, ERISA, bankruptcy and insolvency.
CLOSING
CONDITIONS: Closing shall be conditioned upon the satisfaction of the
following conditions precedent and other conditions customary
to transactions of this type or reasonably required by the Agent:
1. The Borrower and its subsidiaries having a Capital
Structure satisfactory to the Agent.
2. The Agent's satisfactory review and approval of the
Transaction.
3. No material adverse change in the business, assets,
management, financial condition, income or prospects of the
Borrower, PFR or PROC or in the ability of Sponsor to complete
the Transaction. The failure of Donald N. Smith to be chief
executive officer at closing shall be deemed a material adverse
change.
4. A satisfactory commercial finance exam of Borrower and its
subsidiaries and appropriate environmental review of fixed assets
(including, without limitation, satisfactory environmental
consultants' reports as required by the Agent) acceptable to the
Agent.
5. Purchase price for the partnership interests of the
Selling Partners will not exceed $14 per unit and $76,500,000 in
aggregate before contemplated adjustments. Transaction costs
and related expenses (including, without limitation, tender
offer expenses and expenses relating to redeeming existing
indebtedness and issuing new indebtedness), paid by the
Borrower and its Subsidiaries will not exceed an amount
approved by the Agent.
6. No material misstatements in or omissions from the
materials previously furnished to the Agent for its review.
The Agent must be satisfied that any financial statements
delivered to it fairly present the business and financial
condition of PFR, PROC, the Borrower and its subsidiaries,
and that there has been no material adverse change in the
assets, business, financial condition, income or prospects of
such persons since the date of the most recent financial
information delivered to the Agent.
7. The negotiation, execution and delivery of documentation,
satisfactory to the Agent and the Borrower and their respective
counsel (each of which documents shall be in full force and
effect on the closing date), containing
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 7
- --------------------------------------------------------------------------------
representations and warranties, conditions, covenants, events of
default, indemnifications, and increased cost and capital
requirement provisions customary in bank financing documents in
transactions of this type, including, without limitation, the
covenants described above.
8. The receipt by all parties to the transaction of all
necessary regulatory, creditor and other third party approvals,
including, without limitation, evidence of compliance with all
laws applicable to any of the parties to the transaction.
9. The Agent's receipt of satisfactory evidence of appropriate
partnership, corporate and other approval of all proposed
transactions as well as opinions of counsel satisfactory to it
as to, among other things, the due consummation of the
transactions, legality, validity and binding effect of all loan,
guaranty, security and related documents, the perfection of the
liens of the documents, and the absence of any violation of any
law, regulation or contract applicable to the parties to the
loan transaction.
10. The Agent's receipt of an opinion from Valuation Research
Inc. (or other satisfactory firm) as to the solvency of the
Borrower and its subsidiaries in form and substance satisfactory
to the Agent.
11. The absence of any litigation or other proceeding the
result of which might impair or prevent the consummation of the
transactions contemplated or have a material adverse effect on
the Borrower or its subsidiaries.
12. The absence of any default of any material contract or
agreement of the Borrower or any of its subsidiaries.
13. The Agent's receipt of evidence satisfactory to it as to
real estate collateral value, including third party FIRREA real
estate appraisals and title insurance.
14. Completion of the Transaction on terms satisfactory to
the Agent.
15. No material changes in governmental regulation or policy
or in the syndication, financial or capital markets affecting
the Agent, Lenders or the Borrower occur prior to the Closing
Date.
16. Receipt by the Agent of a satisfactory day one balance
sheet and sources and uses of funds, showing the effects of
the Transaction, the refinancing required as a result of the
Transaction, and compliance with Financial Covenants and other
terms and conditions of the Credit Facilities outlined herein.
EXPENSES: All out-of-pocket expenses incurred by the Agent in connection
with the syndication and documentation of the proposed Credit
Facilities (including, without limitation, fees and expenses
of legal counsel, asset appraisers and examiners and
environmental consultants) will be for the account of the
Borrower.
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P. Page 8
- --------------------------------------------------------------------------------
SYNDICATION: Management of the Borrower, its subsidiaries and
Sponsors agree to assist the Agent and the Syndication
Agent in all aspects of its syndication efforts,
including assistance in the preparation of a
confidential information memorandum, attending bank
meetings, providing information requested by Lenders,
and general assistance and support in the syndication
process.
ASSIGNMENTS AND
PARTICIPATIONS: Lenders will be permitted to grant participations or
assignments of their loans and commitments. Any
Lender will be permitted to assign a portion of the
Credit Facilities (on a non pro-rata basis) to
another lending institution in minimum amounts of $5
million, subject to consent of the Borrower (so long
as no Default exists) and Agent, which consent will
not be unreasonably withheld.
VOTING RIGHTS: Lenders holding a majority of all of the outstanding
commitments under the Revolving Credit Facility and
Term Loans for all amendments and waivers, provided
that the following shall require 100% of the
Lenders: (1) increase in commitments; (2) decreases
in interest rates; (3) postponement of scheduled
amortization or final maturity; (4) release of
material collateral and (5) changes in the
percentage voting rights. Voting rights provisions
are subject to adjustment by the Agent to address
concerns of potential Lenders in the syndication
process.
INDEMNIFICATION: The Borrower shall indemnify the Agent and Lenders
against all losses, liabilities, claims, damages or
expenses relating to their loans, the loan
documents, the Borrower's use of loan proceeds or
the commitments, including but not limited to
attorneys and other professional fees and settlement
costs.
GOVERNING LAW:
AGENT'S COUNSEL:
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P.
Outline of Proposed Terms and Conditions
EXHIBIT I
AMORTIZATION SCHEDULE
--------------------------------------------------------------
TERM LOAN A TERM LOAN B TOTAL AMORTIZATION
--------------------------------------------------------------
1998 $ 3,750,000 $ 1,250,000 $ 5,000,000
1999 $ 7,500,000 $ 2,500,000 $ 10,000,000
2000 $10,000,000 $ 2,500,000 $ 12,500,000
2001 $12,500,000 $ 2,500,000 $ 15,000,000
2002 $16,250,000 $ 2,500,000 $ 18,750,000
2003 $15,000,000 $ 15,000,000
2004 $15,000,000 $ 15,000,000
2005 $38,750,000 $ 38,750,000
--------------------------------------------------------------
$50,000,000 $80,000,000 $130,000,000
--------------------------------------------------------------
--------------------------------------------------------------
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P.
Outline of Proposed Terms and Conditions
Exhibit II
APPLICABLE MARGIN
<TABLE>
<CAPTION>
LEVEL I LEVEL II LEVEL III
------- -------- ---------
<S> <C> <C> <C>
REVOLVER:
Base Rate Margin 0.50% 1.00% 1.50%
Eurodollar Margin 2.00% 2.50% 3.00%
TERM LOAN A:
Base Rate Margin 0.50% 1.00% 1.50%
Eurodollar Margin 2.00% 2.50% 3.00%
TERM LOAN B:
Base Rate Margin 1.50% 1.50% 2.00%
Eurodollar Margin 3.00% 3.00% 3.50%
DESCRIPTION OF MARGIN LEVELS (to be determined)
Level I: Leverage Ratio LESS THAN 2.75x
Level II: Leverage Ratio LESS THAN 3.50 GREATER THAN 2.75x
Level III: Leverage Ration GREATER THAN 3.50x
</TABLE>
INITIAL PRICING WILL BE BASED ON PROFORMA DAY 1 LEVERAGE RATIO
<PAGE>
PERKINS RESTAURANTS OPERATING COMPANY, L.P.
Outline of Proposed Terms and Conditions
Exhibit III
DEFINITIONS
CAPITAL
EXPENDITURES: Amount expended or financed for capital assets.
CONSOLIDATED
CASH FLOW: For any period, the sum of (a) the Consolidated Net
Income of the Borrower and its subsidiaries for such
period (before Tax Distributions), MINUS (b) permitted
tax distributions to the partners of PFR ("Tax
Distributions") during such period, PLUS (c) the
aggregate amount of depreciation and amortization
charges made in calculating Consolidated Net Income
for such period, PLUS (d) the Consolidated Interest
Charges of the Borrower and its subsidiaries for such
period, PLUS (e) Minority Interest for such period,
PLUS (f) other non-cash items, if any, for such
period, MINUS (g) the aggregate amount of Maintenance
Capital Expenditures during such period, PLUS without
duplication, (h) nonrecurring noncapitalized transaction
expenses relating to the Transaction and the Facilities.
CONSOLIDATED
EBITDA: For any period, the sum of (a) the Consolidated Net
Income of the Borrower and its subsidiaries for such
period (before Tax Distributions), PLUS (b) Minority
Interest for such period, PLUS (c) the Consolidated
Interest Charges of the Borrower and its subsidiaries
for such period, PLUS (d) consolidated depreciation
and amortization expenses of the Borrower and its
subsidiaries for such period, PLUS (e) other
consolidated non-cash charges of the Borrower and its
subsidiaries for such period PLUS without duplication,
(f) nonrecurring noncapitalized transaction expenses
relating to the Transaction and the Facilities.
CONSOLIDATED
FINANCIAL
OBLIGATIONS: For any period, the sum of all scheduled payments
(including without limitation, principal, interest
and commitment fees) on Indebtedness of the Borrower
and its subsidiaries, including capital leases, which
came due during such period.
CONSOLIDATED
FUNDED
INDEBTEDNESS: At any time, the sum of (a) the aggregate amount of
Indebtedness of the Borrower and its subsidiaries, on
a consolidated basis, relating to the borrowing of
money or the obtaining of credit or in respect of
capitalized leases, PLUS (b) the aggregate maximum
drawing amount of all letters of credit outstanding,
PLUS (without
<PAGE>
duplication) (c) all Indebtedness guaranteed by the
Borrower or any of its subsidiaries.
CONSOLIDATED
NET INCOME: The consolidated net income of the Borrower and its
subsidiaries for any period determined in accordance
with generally accepted accounting principles
consistently applied.
IMPROVEMENT
CAPITAL
EXPENDITURES: Capital Expenditures defined as for improvements in
the Borrower's initial projections in amounts
reasonably acceptable to the Agent.
INDEBTEDNESS: All obligations, contingent or otherwise, that in
accordance with generally accepted accounting
principles should be classified on the obligor's
balance sheet as liabilities, or to which reference
should be made by footnotes.
MAINTENANCE
CAPITAL
EXPENDITURES: All Capital Expenditures other than those constituting
Improvement or New Site Capital Expenditures.
NEW SITE
CAPITAL
EXPENDITURES: Capital Expenditures relating to the construction or
acquisition of new operating units after the Closing
Date.
RESTRICTED
PAYMENTS: Any payment in cash, property, or other assets in
respect of any share of any class of capital stock,
partnership interests of any class or other equity
interests, including but not limited to, dividends
and the repurchase of stock, or in respect of any
subordinated indebtedness.
TAX
DISTRIBUTIONS: As defined in the definition of Consolidated Cash Flow.
